• UC SOUTHERN REGIONAL LIBRARY FACILITY THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW C. M. OAKES, Attorney* TY^ ^ ^^e gorn6ooft ^erie0 Ot elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. (^ Euccincf efafemenf of ha^inq princtpfce in fifocfi; fetter fgpc. 2. (^ more erfoibeb commenfarg, efuci^ating f^e ptindphz. 3- (Uofee an^ aut^ritiee. Published in regular octavo form, and sold at the uniform price of S}'75 per tjofume, tncfubing ^efit?erg. 1. Norton on Bills and Notes. {3d Edition.) 2. Clark's Criminal Law. (2d Edition. ) 3. Shipman^s Cofnmoti- Law Pleading. (2d Edition.) 4. Clark on Contracts. (2d Edition ) 5. Black's Constitutional Law. (2d Edition. ) 6. Fetter on Equity. 7. Clark on Criminal Procedure. 8. Tiffany on Sales. 9. Glenn's International Law. 10. Jaggard on Torts. (2 vols.) 11. Black on Interpretation of Laws. 12. Hale on Bailments and Carriers. 13. Smith's Elementary Law. 14. Hale on Datnages. 15. Hopkins on Real Property. 1 6. Hale on Torts. 17. Tiffany on Persons and Domestic Relations. 18. Croswell on Executors and Administrators. 19. Clark on Corporations. 20. George on Partnership. 21. Shipman on Equity Pleading. 22. McKelvey on Evidence. 23. Barrows on Negligence. 24. Hughes on Admiralty. 25. Eaton on Equity. 26. Tiffany on Principal and Agent. 27. Gardner on Wills. 28. Vance on Insurance. 29. Ingersoll on Public Corporations. 30. Hughes on Federal Jurisdiction and Procedure. In preparation: Handbooks »f the law on other subjects to be announced later. ^fifie^eb mC^ for cafe 6p nrefit gf)u6ft6?in5 Co., ^t. Qpduf, Otinn. F8381 HAND-BOOK OF THE LAW OF SALES By FRANCIS B. TIFFANY Author of Death by Wrongful Act St. Paul, Minn. WEST PUBLISHING CO. 1895 COPTRIGHT, 1895, BY WEST PUBLISHING COMPANY. PREFACE. The object of this handbook is to present concisely the general principles of the law of the sale of personal property. The arrange- ment is in the main that of Benjamin. The statement of rules and principles in the black-letter text has to a considerable extent, though with many modifications, necessitated by the differences between the American and English law, or by other reasons, been taken from the English Sale of Goods Bill, as drafted by his Honor, Judge Chalm- ers, and published together with his invaluable notes under the title of " The Sale of Goods." This bill, which was purely a codify- ing measure, has since been substantially enacted as "An act for codifying the law relating to the sale of goods" (56 & 57 Vict. c. 71; February 20, 1894). The writer has made frequent use both of the notes of Judge Chalmers and of the text of Benjamin on Sales. The references to Benjamin are to the sections as found in the sixth American edition, of Messrs. Edmund H. and Samuel G. Bennett. F. B. T. St. Paul, June 1, 1895. BALB8 0'^)* - Har. (Del.) 428; Price v. Sanders, 60 Ind. 311. 83 Johnson v. Lines. 6 Watts & S. 80; Nicholson v. Wilbom, 13 Ga. 467. 34 Cook V. Deaton, 3 Car. & P. 114; Bainbridge v. Pickering, 2 W. Bl. 1.325; Brooker v. Scott, 11 Mees. & W. 67; Swift v. Bennett, 10 Cush. 436, 437; Hoyt V. Casey, 114 Mass. 397; Trainer v. Trumbull, 141 Mass. 527, 16 N. E. 761; Wailing v. Toll, 9 Johns. 141; Guthrie v. Murphy, 4 Watts, 80; Con- nolly V. Hull, 3 McCord, 6; Kline v. L'Amoureux, 2 Paige, 419; Atchison v. BrufC, 50 Barb. 381; Perrin v. Wilson, 10 Mo. 451; McKanna v. Merry, 61 111. 117. If the infant was already suflBciently supplied, it is immaterial that the seller was ignorant of the fact. Brayshaw v. Eaton, 7 Scott, 183; Barnes V. Toye, 13 Q. B. Div. 414; Johnstone v. Marks, 19 Q. B. Div. 509; Johnson V. Lines, 6 Watts & S. 80. But having an income out of which the infant might keep himself supplied is not equivalent to being actually supplied. Burghart v. Hall, 4 Mees. & W. 727; Nicholson v. Wilborn, 13 Ga. 469; Rivers v. Gregg, 5 Rich. Eq. 274. Ch. 1] CAPACITY OF INFANTS. ' 11 court, and that the question whether they were necessaries in fact is for the jury.^"^ In England it has been settled that the question wliether the articles were necessaries is one of fact, and therefore for the jury; but that, like other questions of fact, it should not be left to the jury unless there is evidence on which they can reasonably find in the affirmative.^® Practically, there is little difference in the two rules, for the cases involving articles intrinsically incapable of being necessaries are rare, and the question in most cases de- pends on the particular circumstances. It is impossible, therefore, in most cases, for the judge to say whether articles are within the class of necessaries, without taking into consideration the circum- stances of the case; and if he determines that the articles do not, under the circumstances, come within the class, he in effect deter- mines that there is not evidence on which the jury could reasonably find them to be necessaries. The burden of proving that the articles were necessaries is on the plaintiff.^'' The amount for which the infant can be held liable is not the contract price, but the reasonable value of the goods.^^ Even if he gives his note in payment, the seller can recover thereon no more than what the goods were worth.^® 8 8Tupper v. Cadwell, 12 Mete. (Mass.) 559, 563; Merriam v. Cunningham, 11 Cush. 40, 44; Bent v. Manning, 10 Vt. 225; Stanton v. Willson, 3 Day, 37, 56; Glover v. Ott, 1 McCord, 572; Beeler v. Young, 1 Bibb. 519; Grace v. Hale, 2 Humph. 27; McKanna v. Merry, 61 111. 117. 3 8 Ryder V. Womb well, L. R. 3 Exch. 93, L. R. 4 Exch. 32. See, also, Peters V. Fleming, 6 Mees. & W. 42; Wharton v. Mackenzie, 5 Q. B. 606; Davis v. Caldwell. 12 Cush. 512, per Shaw, C. J.; Johnson v. Lines, 6 Watts & S. SO; Mohney v. Evans, 51 Pa. St. 80. 37 Thrall v. Wright, 38 Vt. 494; Wood v. Losey. 50 Mich. 475, 15 N. W. 557; Nicholson v. Wilborn, 13 Ga. 467, 475. 8 8 Stone V. Dennison, 13 Pick. 1; Vent v. Osgood, 19 Pick. 572, 575; Locke V. Smith, 41 N. H. 346; Beeler v. Young, 1 Bibb. 519; Bouchell v. Clary, 3 Brev. 194. «» Earle v. Reed, 10 Mete. (Mass.) 387; Bradley v. Pratt, 23 Vt. 378; Guthrie V. Morris, 22 Ark. 411. Some cases hold the note void. Swasey v. Vander- heyden's Adm'r, 10 Johns. 33; McMinn v. Richmonds, 6 Yerg. 9; Ayers v^ Burns, 87 Ind. 245. See Byles, Bills (7th Am. Ed.) 61. 1- FORMATION OF THE CONTRACT. [Ch. 1 CAPACITY OF LUNATICS AND DRUNKEN MEN. 8. Contracts of sale and purchase by a lunatic or drunken man, or other person non compos mentis, are voidable at his option, if at the time of making the contract he -was incapable of understanding its effect. EXCEPTIONS— (a) The sale or purchase is not void- able if the other party did not know, or have reasonable cause to know, the condition of the lunatic or drunken man, and if the contract has been so far executed that the other party cannot be restored to his former position, (b) The contract, if fair, cannot be avoided if it be for necessaries purchased by the lunatic or drunken man. Ijunatics. The general rule of the common law is that the contract of a luna- tic or other person non compos mentis, like that of an infant, is not void, but is voidable at his option,*" Thus, it may be ratified or disaffirmed by the lunatic on recovery of his sanity,*^ or by his guardian or other representative,*^ but not by the other party.*^ The principal difference between the contract of a lunatic and that of an infant is that if the other party did not know, or have reasonable cause ** to know, of the lunatic's condition of mind, and acted in good faith, and the contract has been so far executed that the parties cannot be placed in statu quo, it cannot be avoided. *o Molton V. Camroux, 2 Exch. 487, 4 Exch. 17; Matthews v. Baxter, L. R. 8 Exch. 132; Seaver v. ThelpS, 11 Pick. 304; Carrier v. Sears, 4 Allen, 336; Chew V. Bank of Baltimore, 14 Md. 299; lugraham v. Baldwin, 9 N. Y. 45; Pol. Cont. 91; Bish. Cont G18; Clark, Cont. 263; 2 Kent, Comm. 451. *i Allis V. Billings, 6 Mete. (Mass.) 415; Arnold v. Richmond Iron Works, 1 Gray, 434; Gibson v. Sopor, 6 Gray, 279; Turner v. Rusk, 53 Md. 65. *2 McClain v. Davis, 77 Ind. 419; Ilalley v. Troester, 72 Mo. 78; Moore v. Hershey, 90 Pa. St. 196; Flint v. Valpey, 130 Mass, 385. *3 Allen V. Berryhill, 27 Iowa, 534. ** Beavan v. McDonnell, lU E.\ch. 184; Lincoln v. Buckmaster, 32 Vt 652; Matthiessen & W. R. Co. v. McMahon's Adm'r, 38 N. J. Law, 536, 544. Ch. 1] CAPACITY OF LUNATICS AND DRUNKEN MEN. IS The leading case on this point is Molton v. Camroux," the principle of which has generally, though not universally, been followed in this country.*^ This has been called a decision of necessity, as a contrai-y doctrine would render all ordinary dealings between man and man unsafe.*^ If, however, the lunatic restores, or offers to restore, the consideration which he has received, the necessity ceases, and he may avoid the contract.*^ The contractual capacity of a lunatic or insane person under guardianship depends upon stat- ute, and differs in different states.*® Drunken Men. The rules in regard to the contracts of a man who is so intoxi- cated as not to know what he is doing are the same.^° His con- tracts are voidable, but not void, and hence may be ratified by him when sober. ^^ *5 2 Exch. 487, 4 Exch. 17, Ewell, Lead. Cas. 614. See, also, Beavan v. Mc- Donnell, 9 Exch. 309, 10 Exch. 184; Elliot v. Ince, 7 De Gex, M. & G. 475, 487; Drew V. Nunn, 4 Q. B. Div. 6G1; Iiuperial Loan Co. v. Stone [1892] 1 Q. B. 599; Niell v. Morley, 9 Ves. 478, Ewell, Lead. Cas. 628. *6 Young V. Stevens, 48 N. H. 133; Beals v. See, 10 Pa. St. 56; Lancaster Co. Nat. Bank v. Moore, 78 Pa. St. 407; Mutual Life Ins. Co. v. Hunt, 14 Hun, 169, 79 N. Y. 541; Ballard v. McKenna, 4 Rich. Eq. 358; Matthiessen & W. R. Co. v. McMahon's Adm'r, 38 N. J. Law, 536; Wilder v. Weakley, 34 Ind. 181; Fay V. Burditt, 81 Ind. 433; Northwestern Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535; Abbott v. Creal, 56 Iowa, 175, 9 N. W. 115; Alexander v. Has- kins, 68 Iowa, 73, 25 N. W. 935; Rusk v. Fentou, 14 Bush, 490; Riggan v. Green, 80 N. C. 236; Burnham v. Kidwell, 113 111. 425; Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 584; Leavitt v. FUes, 38 Kan. 26, 15 Pac. 891. The leading case against this doctrine is Seaver v. Phelps, 11 Pick. 304, Ewell, Lead. Cas. 610. See, also, Gibson v. Soper, 6 Gray, 279; Brigham v. Fayerweather, 144 Mass. 52, 10 N. E. 735; Hovey v. Hobson, 53 Me. 451; Edwards v. Davenport, 20 Fed. 756. In Crawford v. Scovell, 94 Pa. St. 48, Trunkey, J., says: "In this country that rule is not universally extended to sales of personalty, and is not applied tu conveyances of real estate." In several of the cases above cited, however, it is applied to conveyances. *' Elliot V. Ince, 7 De Gex, M. & G. 475, per Lord Cranworth. *8 Boyer v. Berryman, 123 Ind. 451, 24 N. E. 249; Myers v. Knabe, 51 Kan. 720, 33 Pac. 602; Warfield v. Warfield, 76 Iowa, 633, 41 N. W. 383; Eaton v. Eaton, 37 N. J. Law, 108. *» Bish. Cont. § 977; Clark, Cont. 268. 60 Pol. Cont. 87; Bish. Cont. § 979; Clark, Cont. 274. 61 Matthews v. Baxter, L. R. 8 Exch. 132. Pointing out that "void," as used In Gore v. Gibson, 13 Mees. & W. 623, Ewell, Lead. Cas. 734, must be taken to 14 FORMATION OF THE CONTRACT. [Ch. 1 Neceasarie*. So far as relates to the contracts of a lunatic for necessaries, where no advantage is taken of his condition by the seller, the pur- chases will be held vaJid." As in the case of an infant, "neces- saries'' embrace ai'ticles suitable to his condition and degree,"^' but in the case of a lunatic the term would probably be more liberally construed.'* It seems that a drunken man also is liable for neces- saries." CAPACITY OF MARRIED WOMEN. 9. At common la^w contracts of sale and purchase by married -women are in general void; but the capacity of married -women to contract has generally been extended by statute. Although the common-law capacity, or rather incapacity, of a married woman to buy and sell is coextensive with her general ca- pacity or incapacity to contract, and the subject therefore falls rather within the law of contract and of married women than of sale, a few words on the subject may not be out of place. At com- mon law a married woman is incompetent to contract.**' A con- tract with her is not, as in the case of an infant or lunatic, merely mean "voidable." Molton v. Camroux, 4 Exeh. 17; Carpenter v. Rodgers, 61 Mich. 3S4, 28 N. W. 150; Broadwater v. Dame, 10 Mo. 277; Bish. Cont. § 985; Clark, Cont. 274. s: Baxter V. Earl of Portsmouth. 5 Barn. &. C 170; Bagster v. Same. 7 Dow. & R. 614; Manby v. Scott, 1 Sid. 112; Dane v. Kirkwall. 8 Car. & P. 679; Wentworh v. Tnbb. 1 Younge & C. Ch. 171; Williams v. Wentworth, 5 Beav. 325; Nelson v. Duncombe, 9 Beav. 211; Richardson v. Strong, 13 Ired. 106; La Rue V. Gilkyson, 4 Pa. St. 375; Sawyer v. Lufkin. 56 Me. SOS; Hallett v. Cakes. 1 Cnsh. 290; Kendall v. May, 10 Allen. 59; Skidmore v. Romaine, 2 Bradf. (Sur.) 122; Barnes v. Hathaway, 66 Barb. 453; Blaisdell v. Holmes, 48 Vt. 492; McCormick v. Littler, 85 111. 62. 53 Baxter v. Earl of Portsmouth, 5 Barn. & C. 170; Bagster v. Same, 7 Dow. & R. 014; La Rue v. Gilkyson, 4 Pa. St. 375; Richardson v. Strong, 13 Ired. 106. »* Kendall v. May, 10 Allen. 59. See In re Persse, 3 Malloy, 94. B6 Gore V. Gibson, 13 Mees. & W. 023, per Pollock, C. B., and AldiJisoD, B. 8 8 Co. Litt. Ii2d. Ch. 1] CAPACITY OF MARRIED WOMKN. 15 voidable, but is void," and hence is incapable of ratification upon termination of coverture." She cannot, even while living apart from her husband and enjoying a separate maintenance secured by deed, make a valid purchase, on her own account, even of neces- saries/' To the general rule of her incapacity to contract, how- ever, there are several exceptions: (1) T\Tien the husband is civil- iter mortuus (that is, dead in law, as when he is under sentence of penal servitude, transportation, or banishment), her disability is sus- pended,®*' and, according to some authorities, it is suspended when he is an alien and resident abroad.®^ (2) By the custom of the city of London, a married woman might trade, and for that purpose might make valid contracts.®^ (3) In equity, when a married wo- man has separate property, she may, under certain circumstances, contract so as to render it liable.®^ It is to be noticed that the ex- ceptions to the incapacity of married women to contract are not confined, as is the exception in the case of infants and lunatics, sim- ply to purchases of necessaries, but that it extends to their general contractual capacity. The power of a married woman, when living with her husband, to bind him by contract for necessaries for herself and her house- hold, relates rather to her implied authority than to her capacity to contract.'* The common law in regard to the contractual capacity of married women has been radically changed by legislation in England '^ and 8T Anson, Cont. (4th E(L) 117; Bish. Cont. § 949; Clark, Cont. 27G; Schouler, Husb. & Wife, §§ 97, 98. 6 8 Zouch V. Parsons, 3 Burrows, 1794; Schouler, Husb. & Wife, § 99. There are, however, some authorities which hold that the moral consideration is sufficient to support a promise after termination of coverture. Lee v. Mug- geridge, 5 Taunt. 36. Ewell, Lead. Cas. .322, 331; Stew. Husb. & Wife, § 366. o» Marshall v. Button, 8 Term B. 545. 80 Benj. Sales, § 32; Stew. Husb. & Wife, § 358. «i Benj. Sales, §§ 33, 34; Stew. Husb. & Wife, § 358; Gregory v. Paul, 15 Mass. 31; McArthur v. Bloom, 2 Duer, 151. So where the husband was a citi- zen and resident in another state. Abbot v. Bayley, 6 Pick. 89. «2 Beard v. Webb, 2 Bos. & P. 93. «s Anson, Cont. (4th Ed.) 118; Clark, Cont. 279; Schouler, Husb. & Wife, § 189 et seq. «* Schouler, Husb. & Wife, § 100 et seq. 6 5 Benj. Sales, § 37 et seq. 16 FORMATION OF TIIK CONTRACT. [Ch. 1 in most of the states of this country," and in many states her disability to contract has been wholly removed. These statutory provisions differ greatly among themselves, and a consideration of the statutory capacity of married women to buy and sell cannot be here attempted. WHO MAY SELL. 10. As a rule, no person can sell personal property unless he be the ow^ner. EXCEPTIONS— (a) In England, but not in the TJnitea States, "where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith, and "writhout notice of defect of title.^ (b) Where promissory notes, bills of exchange, or other negotiable securities are transferred by the holder before maturity to a bona fide pur- chaser, for value, the purchaser may acquire a good title. (c) A person, not being the owner of goods, may sell them, so as to pass a good title thereto, if he acts under authority or power given by the owner, or conferred by law, and duly exercises such authority or power. (d) By statute in England and in many states, pur- chasers from factors and other persons in- trusted w^ith and in the possession of goods or the documents of title may, under certain cir- cumstances, acquire good title, though the factor or other person w^as not authorized to sell. •« Stim. Am. St. Law, § 6482. «7 The Case of Market-Overt. 5 Coke. S3b; Tud. Merc. Cas. (3d Ed.) p. 274; Crane v. London Dock Co., 5 Best & S. 313, 33 Law J. Q. B. 224, 229; Benj. Sales. § 8 et seq. Ch. 1] WHO MAY SELL. 17 (e) When the seller of goods has a voidable title, but his title has not been avoided at the time of sale, the buyer, in general, acquires a good title, provided he buys them in good faith and "without notice of the seller's defect of title. (f ) A sale made by a person not thereto authorized, may be good, as against the ov^ner, by "way of estoppel. Not only must the parties to a sale be capable of contracting, but one of them, the seller, must (subject to the exceptions men- tioned) be the owner of the thing sold, for, as a rule, no one can pass to the buyer a better title than he himself possesses. "Nemo dat quod non habet." ®* A person, therefore, however innocent, who buys goods from one not the owner, obtains, in general, no property in them whatever; and even if, in ignorance that the goods were lost or stolen, he resells them in good faith to a third person, he remains liable in trover to the original owner.^® It is to be observed that, in the cases covered by the first and second ex- ceptions, the buyer, like one who in good faith receives money in payment,'''* obtains a good title as against all the world, — that is, even against one who has lost the thing sold, or from whom it has been stolen, — while in the cases covered by the other exceptions the buyer simply obtains the title (if any) of a particular person, who 68 Pee? V. Humphrey, 2 Adol. & E. 495; Whistler v. Forster, 32 Law J. C. .P. 161; Cooper v. Willomatt, 1 C. B. 672, 14 Law J. C. P. 219;-Cuudy v. Liud- say, 3 App. Cas. 459; Stanley v. Gay lord, 1 Gush. 536; Chapman v. Cole, 12 Gray, 141; Parsons v. Webb, 8 Greenl. (Me.) 38; Galvin v. Bacon, 11 Me. 28; Prime v. Cobb, 63 Me. 200; Kiford v. Montgomery, 7 Vt. 418; BiTant v. Whitcher, 52 N. H. 158; Barrett v. Warren, 3 Hill, 348; Williams v. Merle, 11 Wend. SO; Saltus v. Everett, 20 Wend. 267. The cases cited under the ex- ceptions may also generally be cited under the rule. Benj. Sales, § 6; Chalm. Bale, § 24. 69 Stone V. Marsh, 6 Bam. & C. 551; Marsh v. Keating, 1 Bing. N. C. 198, 2 Clark & F. 250; White v. Spettigue, 13 Mees. & W. 603; Lee v. Bayes, 18 C. B. 599; Hoffman v. Carow, 20 Wend. 21; Courtis v. Cane, 32 Vt 232; Gilmore V. Newton, 9 Allen, 171; Riley v. Boston Water- Power Co., 11 Gush. 11. TO Miller v. Race, 1 Burrows, 452; Saltus T. Everett, 20 Wend. 267; Cha^ man v. Cole, 12 Gray, 141. SALES— 3 18 FOKMATION OF THE CONTRACT. [Ch. 1 may or mav not be the true owner, without prejudice to the rights of any person who may in fact have a superior title. Market Overt. The rules of market overt apply only to a limited class of retail transatdons.'^ All shops in the city of London are market overt, for the purpose of their own trade; ^* but a sale by sample is not within the custom, because the whole transaction, and not merely the formation of the contract, must take place within the open mar- ket.^ ^ Outside the city of London, markets overt may exist by grant or prescription.'* The exception in favor of sales in market overt has never existed in the United States.^* Negotiable Instilments. For the rules relating to the transfer of negotiable securities, the reader is referred to the works upon bills and notes. Sale under Power. The owner may, of course, make a sale by an agent thereto au- thorized; and he may, as in the case of a mortgage, expressly con- fer on another the power of making a sale upon a certain contin- gency. But, besides these cases of express authorization, there are many cases where the authority is implied by law from the rela- tion of the parties. Thns a pawnee of goods has authority, implied by law, in case of default, to sell the goods pledged; ^' and the master of a ship has implied authority, in case of necessity, to sell the goods of the shippers of the cargo.'' ^ So a landlord distraining for rent may sell the goods of his tenant® And a sheriff, as an oflScer on whom the law confers a power, may sell the goods of the ■Ti Benj. Sales, § 8; Chalm. Sale, § 25. 72 See Wilkinson v. Rex, 2 Camp. 333. 7 3 Crane v. London Dock Co., 5 Best & S. 313, 33 Law J. Q. B. 224. -I* Chalm. Sale, 40. 75 Dame v. Baldwin, 8 Mass. 518; Towne v. Collins, 14 Mass. 500; Wheel- wright V. Depeyster, 1 Johns. 471; Hoffman v. Carow, 22 Wend. 285; Hosack V. Weaver, 1 Yeates, 478; Easton v. Worthington, 5 Serg. & R. 130; Browning V. Magill, 2 Har. & J. 308; Rolan v. Gundy, 5 Ohio, 202; Ventress v. Smith, 10 Pet. 161, 2 Kent, Comm. 324. 76 2 Kent, Comm. 582; Schouler, Bailm. § 227 et seq. T7 3 Kent, Comm. 173. 7 8 Woodf. LandL & Ten. (13th Ed.) 479-481; TayL LandL & Ten. (8th Ed.) I 57 et seq. Ch. 1] WHO MAY SELL. 19 defendant in execution; nor will the title to them be affected if the execution was voidable/' though, if the defendant had no title, the sheriff can, of course, give none.*** It would be useless to multiply illustrations of the cases in which property may be sold, without the consent of the owner, under process of law. Factors^ Acta. As the earlier English factors' acts have been, to a great extent, the models of the various enactments on the same subject in the United States, it will be sufScient for the present purpose to refer briefly to the history and effect of the English acts. The factors' act (6 Geo. IV. c. 94, § 2) enacted that "persons in- trusted with and in the possession of any bill of lading, Indian warrant, dock warrant, warehouse-keeper's certificate, warrant, or order for the delivery of goods, shall be deemed and taken to be the true owner of the goods so far as to give validity to sales" by them to buyers without notice that such vendors were not owners; and by 5 «& 6 Vict. c. 39, this section was amended so as to give the same effect to the possession of the goods themselves as to the bill of lading, "or other documents of title." The fourth section of the earlier act provided that purchasers from "any agent or agents in- trusted with any goods, wares, or merchandise," or to whom the same might be consigned, should be protected in their purchases notw ithstanding notice that the vendors were agents, provided that the purchase and payment were made in the usual course of busi- ness and the buyer had not notice of the absence of authority of the agent. These acts applied solely to persons intrusted as factors or commission merchants, and not to persons to whose employment a power of sale is not ordinarily incident; for example, a wharfin- 7 8 Turner v. Felgate, 1 Lev. 95; Manning's Case, 8 Coke, 94b; Emmett v. Thorn, 1 Maule & S. 425; Bank of U. S. v. Bank of Washington, 6 Pet. 9; Park v. Darling, 4 Cush. 197; Jackson v. Cadwell, 1 Cow. 623; Woodcock v. Bennet, Id. 711; Stinson v. Ross, 51 Me. 556. Otherwise where the judgment or ex- ecution is void. Lock v. Sellwood, 1 Q. B. 736; Camp v. Wood, 10 Watts, 118; Caldwell v. Walters, 18 Pa. St. 79; Kennedy v. Duncklee, 1 Gray. 65. 80 Farrant v. Thompson, 5 Barn. & Aid. 826; Shearick v. Huber, 6 Bin. 2; Griffith V. Fowler, 18 Vt. 390; Buffum v. Deane, 8 Cush. 41; Champney v. Smith, 15 Gray, 512; Williams v. Miller, 16 Conn. 146; Symonds v. Hall, 37 Me. 354; Coombs v. Gorden, 59 Me. Ill; Bryant v. Whitcher, 52 N. H. 158. 20 FORMATION OF THE CONTRACT. [Ch. 1 ger."* They were limited in their scope to mercantile transactions, and did not embrace sales of furniture or goods in possession of a tenant or bailee for hire.*' It might be supposed that the effect of these enactments was that if the owner of goods intrusted their possession or their indicia of title to a person who, from the nature of his employment, might be taken prima facie to have the right to sell, a sale by such person to a purchaser without notice would bind the true owner. "^ But in Fuentes v. Montis,** where the plaintiff consigned wine for sale to a factor, who, after revocation of his authority, pledged it as se- curity for advances made by defendant, it was held that though the revocation was unknown to the defendant, and the wine was still in the factor's possession, the latter was no longer "intrusted with and in possession" of the goods, the courts also held that, to consti- tute a person "an agent intrusted with the possession of goods," he must have been intrusted in the character of such agent; that is, for the purpose of sale.*"* They also held that the acts did not cover the case of a seller left in possession of the goods or docu- ments of title,*® or of a buyer thus left in possession so as to defeat the rights of an unpaid seller.**^ The effect of the decisions was partly annulled by 40 & 41 Vict. c. 39, which provided that a secret revocation of agency should not be operative, and which extended the scope of the acts to buyers and sellers left in possession of the documents of title. Finally, the recent factors' act (1889) still further extends the effect of the former acts. It would be beyond the scope of an elementary book upon sales 81 Monk V. Whlttenbury, 2 Barn. & AdoL 484; Wood v. RowcliCfe, 6 Hare, 183; Lamb v. Attenborough, 1 Best & S. 831; Jaulerry v. Britten, 5 Scott, 655, 4 Bing. N. C. 242; Hellings v. Russell, 33 Law T. (N. S.) 380. 82 Loeschman v. Machiu, 2 Starkie, 311; Cooper v. Willomatt, 1 C. B. 672. 88 Beuj. Sales, §§ 19, 20. 8* L. R. 3 C. P. 268, 37 Law J. C. P. 137, L. R. 4 C. P. 93. See, also, Shep- pard V. Union Bank of London, 7 Hurl. & N. 661, 31 Law J. Exch. 154. 8 5 Cole V. North Western Bank, L. R. 9 C. P. 470, affirmed L. R. 10 C. P. 354; Johnson v. Credit Lyonnais Co., 2 C. P. Div. 224, affirmed 3 C. P. Dlv. 32; Hel- lings V. RusseU, 33 Law T. (N. S.) 380. 88 Johnson v. Credit Lyonnais Co., 3 C. P. Div. 32. 8T Jenkyns v. Usborne, 7 Man. & G. 678, 8 Scott, N. R. 505; McEwan v. Smith, 2 H. L. Cas. 309. Ch. 1] WHO MAY SELL. 21 to consider the varying provisions of the different factors' acts passed in the United States." Enough has been said, however, to Illustrate the struggle which has existed between the common law rule, "nemo dat quod non habet," and the contention of the mer- cantile community, now partially embodied in legislation, that, if a person is put in possession of goods or documents of title, he ought, as regards innocent third persons, to be regarded as the owner of the goods. ®^ SaU under Voidable Title. *^Where goods have been obtained by means amounting to larceny, the thief has, of course, no title; but where goods have been ob- tained by fraud the person who so obtains them may have no title »8 Factors' acts have been passed in the following states: Kentucky, Laws 1880. May 5; Maine, Rev. St. c. 31; Maryland, Rev. Code, art. 34; Massa- chusetts, Pub. St. c. 71; Missouri, Rev. St. § 6281; New York, Acts 1830, c. 179; Ohio, Rev. St. §§ 3215-3219; Pennsylvania, Brightly, Purd. Dig. p. 773; Rhode Island, Pub. St. c. 136; Wisconsin, Rev. St. §§ 3345, 3346. A warehouseman, who la also a broker, with authority only to receive offers for merchandise stored with him as warehouseman, and report them to his principal, is not a "factor or other agent intrusted with the possession of merchandise for the purpose of sale," or "a person intrusted with merchandise, and having author- ity to sell or consign the same," or a "consignee or factor having possession of merchandise with authority to sell the same," within the provisions of the Massachusetts factors' act. Thacher v. Moors, 134 INIass. 156. See, also, Nick- erson v. Darrow, 5 Allen, 419; Stolleuwerck v. Thacher, 115 Mass. 224; Good- win V. Massachusetts Loan & Ti-ust Co., 152 Mass. 189, 25 N. E. 100. The New York factors' act, which declares that one intrusted with the possession of the goods of another, for the purpose of sale, shall be deemed the true owner, so far as to give validity to a disposition thereof for money advanced, does not protect a party who has made advances on goods to a factor, with kuot\ledge that he was not the true owner. Stevens v. Wilson, 3 Denio, 472. As to what amounts to "Intrusting": Collins v. Ralli, 20 Hun, 246, 85 N. Y. 637; Soltau V. Gerdau, 119 N. Y. 380, 23 N. E. 864; Kinsey v. Leggett, 71 N. Y. 387, 395; Mechanics' & Traders' Bank v. Farmers' & Mechanics' Nat Bank, 60 N. Y. 40. A factor has no power to pledge, unless the power is conferred by stat- ute. Cole V. North Western Bank, L. R. 10 C. P. 354; Johnson v. Credit Lyon- nais Co., 3 C. P. Div.' 32; Warner v. Martin, 11 How. 209; Allen v. St. Louis Bank, 120 U. S. 20, 7 Sup. Ct. 460; Commercial Bank v. Hurt, 99 Ala. 130, 12 South. 568, 572; Michigan State Bank v. Gardner, 15 Gray, 362; Gray v. Agnew, D5 111. 315; Wright v. Solomon, 19 Cal. 64. See Wllliston, Cas. Sales, p. 603, note •» See Chalm. Sale, 97 et seq. 22 FORMATION OF THE CONTRACT. [Ch. 1 at all, or may have a voidable title, according to the nature of the transaction. If the nature of the fraud be such that there was never a contract between the parties, as if A. obtains goods from B. by falsely pretending to be C, then A. has no title at all, and can give none.^" Hut if the person defrauded really intended to part with the property in, and possession of, the goods, though in- duced to do so by fraud, there is a contract which he may affirm or disaffirm at his election." *^ Hence the person who obtains the goods has a voidable title, and can give a good title to an innocent pur- chaser before the other party has disaffirmed." And the same rule prevails where the sale is voidable in favor of creditors." .^Estoppel. "VMiere the owner of goods, by his words or conduct, willfullj' causes another to believe that the goods belong to a third person, and to buy them from such person in that belief, he is estopped to assert his title against such buyer.** THE THING SOLD. 11. The thing -which forms the subject-matter of a sale m^ust be in existence and o-v^ned by the seller. 12. A contract to sell goods not yet in existence or ac- quired by the seller can only operate as an agreement to seU. EXCEPTIONS— (a) A contract to sell goods which have a "potential existence" — that is, -which «o Higgons V. Burton, 26 Law J. Exch. 342; Hardman v. Booth, 32 Law J. Exch. 105; Cundy v. Lindsay, 3 App. Cas. 459. • 1 CLalm. Sale, 41; Clough v. London & N. W. Ry. Co., L. R. 7 Exch. 26. 8 2 White V. Garden, 10 C. B. 919, 20 Law J. C. P. 166; Kingsford v. Merry, 25 Law J. Exch. 166; Pease v. Gloahec, L. R. 1 P. C. 219, 229; Hoffman v. Noble, 6 Mete. (Mass.) 68; Zoeller v. Riley, 100 N. Y. 102, 2 N. E. 388; Chalm. Sale, § 26; post, p. 122. •8 Green v. Tanner, 8 Mete. (Mass.) 411; Sleeper v. Chapman, 121 Mass. 404; Neal v. Williams, 18 Me. 391; Comey v. Pickering, 63 N. H. 126; Gordon v. Ritcnour, 87 Mo. 54; post, p. 128. »■* Pickard v. Sears, 6 Adol. & E. 469; Gregg v. Wells, 10 Adol. & E. 90; Waller v. Drakeford, 22 Law J. Q. B. 274; Freeman v. Cooke, 2 Exch. 654; Knights V. WifEen, L. R. 5 Q. B. 660; post, p. 212. Ch. IJ THE THING SOLD. 25 are the expected product or increase of souie- thing owned by the seller — may operate to pass the property in the goods upon their com- ing into existence. (b) A contract to sell goods not yet acquired by the seller may operate to pass the equitable inter- est of the seller in the goods upon their ac- quisition by him. 13. Goods not yet in existence or acquired by the seller^ or the acquisition of which by him is dependent on a con- tingency which may or may not happen, may be the sub- ject of an agreement to sell. Sale of Thing Which has Ceased to Exist. From the very definition of a sale, it follows that there can be no sale without the existence of the thing sold.®"^ Accordingly, if there is a contract for the present sale of specific goods, and the goods, unknown to the parties, have ceased to exist at the time of the contract, the contract is void. Thus in the leading case of Hastie v. Couturier,^^ where a bought note had been signed for a cargo of corn on a vessel not yet arrived, but before the sale, and unknown to the parties, the cargo had been discharged and sold at an intermediate port, it was held in the house of lords that what the parties contemplated was that there was an existing something to be sold and bought, and that, no such thing existing, there was no contract which could be enforced. The rule may be based both on the ground of mutual mistake and on the ground of impossibility of performance.*^ And upon the latter ground, when the contract is for the future sale of specific goods, and, without the fault of «B Hastie v. Couturier, 9 Exch. 102, 5 H. L. Cas. 673, reversing S Exch. 40; Stricliland v. Turner, 7 Excli. 208; Allen v. Hammond, 11 Pet. 63; Tlaompson V. Gould, 20 Pick. 134; per WUde, J., 139; Rice v. D wight Manuf'g Co., 2 Cusb. 80, 86; Fraaklin v. Long, 7 Gill & J. 407; Gibson v. Pelkie, 37 Mich. 380. Partial loss does not avoid the conti"act. The question Is whether the article has been so far destroyed as no longer to answer the description. Barr v. Gibson, 8 Mees. & W. 390. 86 9 Exch. 102, 5 H. L. Cas. 673. •7 Pol. Cent (4th Ed.) 370. Cf. Farrer v. Nightingal, 2 Esp. 639. 24 FORMATION OF THE CONTRACT. [Ch. 1 buyer or seller, the goods perish before the property has passed, the contract is avoided."' The necessity of ownership by the seller of the thing sold has al- ready been considered." Sali of Thing not yet in Existence or Acquired. A contract for the sale of goods not yet in existence or acquired by the seller can obviously have no greater effect, as a present sale, than a contract for the sale of goods that have ceased to exist. Nor can a contract purporting to effect a present sale of goods to be ac- quired operate so as to pass the property in the goods upon their acquisition by the seller, or have any greater force than an agree- ment to sell.^°° In such case, therefore, though the contract be in the form of a present sale, the legal property in the goods does not pass to the buyer unless the seller, after his acquisition of the goods, and before the rights of third persons, such as bona fide pur- chasers or attaching creditors, have intervened, does some act clearly showing his intention of giving effect to the original agree- ment,^"^ or the buyer takes possession of them under authority to seize, which is equivalent to a delivery.^"* «8 Post, p. 160. 09 Aute, p. 10. xoo Lunn v. Thornton, 1 C. B. 379, 14 Law J. C. P. 161; Gale v. Bumell, 7 Q. B. 850; Congieve v. Evetts, 10 Exch. 298, 23 Law J. Exch. 273; Hope v. Hayley, 5 El. & Bl. 830, 25 Law J. Q. B. 155; Chidell v. Galsworthy, 6 C. B. (N. S.) 471; Allatt v. Carr, 27 Law J. Exch. 385; Jones v. Richardson, 10 Mete (Mass.) 481; Moody v. Wright, 13 Meta (Mass.) 17; Rice v. Stone, 1 Allen, 566; Head v. Goodwin, 37 Me. 182; Emerson v. European & N. A. Ry. Co., 67 Me. 387; Williams v. Briggs, 11 R. I. 476; Gardner v. McEwen, 19 N. Y. 123; Gressey v. Sabre, 17 Hun, 120; Hamilton v. Rogers, 8 Md. 301; Gittings v. Nelson, 86 111. 591; Hunter v. Bosworth, 43 Wis. 586. 101 Langton v. Higgins, 28 Law J. Exch. 252. 10 2 Congreve v. Evetts, 10 Exch. 298, 23 Law J. Exch. 273; Hope v. Hay- ley, 5 El. & Bl. 830, 25 Law J. Q. B. 155; Chidell v. Galsworthy, 6 C. B. (N. S.) 471; Allatt v. Carr, 27 Law J. Exch. 385; Rowan v. Sharps' Rifle Manuf g CJo., 29 Conn. 283; Rowley v. Rice, 11 Mete (Mass.) 333; Ghase v. Denny, 130 Mass. 566; Cook v. Corthell, 11 R, I. 482; Chapman v. Weimer, 4 Ohio St. 481; McCaffrey v. Woodin, 65 N. Y. 459. See, also, cases cited in pre- ceding note. Contra: Allen v. Goodnow, 71 Me. 420; Deering v. Cobb, 74 Me, 334. As to the revocability of the license to seize: Chynoweth v. Teuney, 10 Wis. 341; McCaffrey v. Woodin, supra; Jones, Chat Mortg. (3d Ed.) g 105 et seq. Ch. 1] THE THING SOLD. 25 Potential Existence. If, however, the goods have a "potential existence," as defined in the first exception, the property in them passes upon their coming into actual existence. In this way a man may sell the crop of hay to be grown on his field, the wool to be clipped from his sheep at a future time, the milk that his cows may yield the coming month, but not the wool of any sheep, or the milk of any cows, that he may buy within the year.^"^ The exception in favor of goods having a "potential existence" is doubted by Chalmers, J., who says that there is no rational distinction between one class of future goods and another, and that the supposed rule appears never to have been acted on.^°* But the dicta of the English cases have been repeat- edly acted on in the United States, and the exception is here gen- erally recognized.^*"' Ride in Equity. Similarly in equity, which treats as done what ought to be done, a contract for the sale of goods afterwards to be acquired, provided they are sufficiently described to be identified, transfers the beneficial interest in them to the buyer as soon as they are ac- quired.^"'' But it is only the equitable interest which passes, and 108 Grantham v. Hawley, Hob. 132; Robinson v. MacDonnell, 5 Maule & S. 228; 14 Vln. Abr. tit. "Grant," p. 50; Shep. Touch. "Grant," 241; Perk. §§ 65, 90. See, also, Foster's Case, 1 Leon. 42. 104 Chalm. Sale, 10. 105 Unborn offspring of animals: Fonville v. Casey, 1 Murph. 3S9; Hall v. Hall, 24 Conn. 358. During gestation: McCarty v. Blevins, 5 Yerg. 195; Sawyer v Gerrish, 70 Me. 254. Butter and cheese to be made: Conderman V. Smith, 41 Barb. 404. Crop not yet sown: Brlggs v. U. S., 143 U. S. 346, 12 Sup. Ct. 391; Watkins v. Wyatt, 9 Baxt. 250; Andrew v. Newcomb, 32 N. Y. 417, 421; Rawlings v. Hunt, 90 N. C. 270; Gotten v. Willoughby, 83 N, C. 75 (already sown); McCown v. Mayer, 65 Miss. 537, 5 South. 98; Moore V. Byrum, 10 S. C. 452; Arques v. Wasson, 51 Cal. 620; Headrick v. Brat- tain, 63 Ind. 438 But not where the grant covered an indefinite time. Shaw V. Gilmore, 81 Me. 396, 17 Atl. 314; Pennington v. .Tones, 57 Iowa, 37, 10 N. W. 274. See, also, Lewis v. Lyman, 22 Pick. 437; Heald v. Builders' Ins. Co., Ill Mass. 38; Van Hoozer v. Corey, 34 Barb. 9; Smith v. Atkins, 18 Vt 461, Contra: Comstock v. Scales, 7 Wis. 159; Gittings v. Nelson, 86 111. 591; Hutchinson v. Ford, 9 Bush, 318. loeHolroyd v. Marshall, 10 H. L. Cas. 191, 33 Law J. Ch. 193; Tailby v. Official Receiver, 13 App. Cas. 523; Collyer v. Isaacs, 19 Ch. Div. 342; 26 FORMATION OF TUE CONTRACT. [Ch. 1 if, before the buyer gets the legal property, the seller disposes of the goods to a bona fide purchaser without notice, the rights of the buyer are defeated.^ ''^ Wagering Contract — Sale of Chance. It was once held that a contract for the sale of goods to be deliv- ered at a future day, when the seller had not the goods, but in- tended to go into the market and buy them, was a mere wager on the price of the commodity, and was hence invalid.^"* But this doc- trine has been exploded.^"® Nor is an executory contract of sale invalid because the acquisition of the thing by the seller is uncer- tain, as in the case of goods to arrive by a certain ship."" It is only in this sense that there can be the sale of a chance, known to the civil law as "venditio spei." "^ Thus it has been held that a sale of fish to be caught had no effect to pass the property in the fish when caught,"^ but there seems no reason why a contract by a fisherman to sell all the fish he might catch on a particular voyage should not be good as an executory agreement. Mitchell V. Winslow, 2 Story, 630, Fed. Cas. No. 9,673; Pennock v. CJoe, 23 How. 117; Beall v. White, 94 U. S. 382; Brett v. Carter, 2 Low. 458, Fed. Cas. No. 1,844; Barnard v. Norwich & W. R. R. Co., 4 Clifie. 351, Fed. Cas. No. 1,007; McCaffrey v. Woodin, 65 N. Y. 459; Benjamin v. Elmira, J. & C. R. Co., 49 Barb. 441; Philadelphia, W. & B. R. Co. v. Woelpper, 64 Pa. St. 366; Smithurst v. Edmunds, 14 N. J. Eq. 408; Williams v. Winsor, 12 R. I. 9; Apperson v. Moore, 30 Ark. 56; Sillers v. Lester, 48 Miss. 513. In Massa- chusetts the rule appears to be the same in equity as at law. Moody v. Wright, 13 Mete, (Mass.) 17, 30; Blanchard v. Cooke, 144 Mass. 225, 11 N. E. 83. So, also, in Wisconsin, Hunter v. Bosworth, 43 Wis. 583. The cases cited generally relate to chattel mortgages, but the principles discussed ap- ply equally to sales. See Jones, Chat. Mortg. (3d Ed.) § 173. 107 Joseph V. Lyons, 15 Q. B. Div. 280, 54 Law J. Q. B. 3; Hallas v. Robin- son, 15 Q. B. Div. 2S8; Morrill v. Noyes, 56 Me. 458, 466. 10 8 Bryan v. Lewis, Ryan & M. 386. 109 Hibblewhite v. McMorine, 5 Mees. & W. 462; Mortimer v. McCallan, 6 Mees. & W. 58; Appleman v. Fisher, 34 Md. 551; Stanton v. Small, 3 Sandf. 230; Clarke v. Foss, 7 Biss. 541, Fed. Cas. No. 2,852; post, p. 44. 110 Hale v. Rawson, 27 Law J. C. P. 189. 111 Poth. Cont. de Vente, No. 61. See Buddie v. Green, 27 Law J. Exch. 33, 34, per Martin, B.: Hitchcock v. Giddings, 4 Price, 135, 140, per Richards, C. B.; Hanks v. Palling, 6 El. & Bl. 659, 669, 25 Law J. Q. B. 375, per Lord Campbell, C. J. 112 Low v. Pew, 108 Mass. 347. Ch. 1] MUTUAL ASSENT AND FORM OF CONTRACT. 27 MUTUAL ASSENT AND rORM OT CONTRACT. 14. The transfer of the property is effected by the mu- tual assent of the parties to the contract of sale. 15. At common la-w a contract of sale may be made in ■writing (either with or without seal), or by word of mouth, or may be implied from the conduct of the parties. Mutual Assent. If there be parties capable of contracting, and a thing in exist- ence and owned by one of them, the property in the thing may be transferred wlienever the parties mutually assent to the transfer. Neither delivery of the thing nor payment of the price is necessary to perfect the transfer.^^^ The parties may make whatever bargain they please. They may agree that the transfer shall take effect at once, or they may agree that it shall not take effect until after de- livery or payment, or the happening of some other condition; and if they express their intentions clearly, the law will give effect to them. The contract of sale, like other contracts, is founded on mutual assent. The principles of law which govern the formation of the contract are the same as those which govern the formation of con- tracts generally, and little need be said in regard to them. Thus an offer to buy or to sell, in order to ripen into a binding agree- ment, must be accepted, and the acceptance must be uncondi- tional;^^* and until acceptance, but not after, the offer may be withdrawn.^ ^"^ »" Benj. Sales, § 3; Chalm. Sale, 3; post, p. 83. 11* Hutchison v. Bowker, 5 Mees. & W. 535; Hyde v. Wrench, 3 Beav. 3^; Jordan v. Norton, 4 Mees. & W. 155; Felthouse v. Bindley, 11 C. B. (N. S.> 869, 31 Law J. C. P. 204; Minneapolis & St. L. Ry. Co. v. Columbus RoUing- MUl Co., 119 U. S. 149, 7 Sup. Ct. 168; Carr v. Duvall, 14 Pet 77; Myers v. Smith, 48 Barb. 614; Potts v. Whitehead, 23 N. J. Eq. 512; Hutoheson v. Blakeman, 8 Mete. (Ky.) 80; Smith v. Gowdy, 8 Allen, 566; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37; Maclay v. Harvey, 90 111. 525; Robinson V. Weller, 81 Ga. 704, 8 S. E. 447; Maynard v. Tabor, 53 Me. 511; Mcintosh V. Brill, 20 U. C. C. P. 426. 115 Cooke V. Oxley, 3 Term R. 653; Routledge v. Grant, 4 Bing. 653; Paine v. Cave, 3 Term R. 148; Head v. Diggon, 3 Man. & R. 97; Smith v» 28 FORMATION OF THE CX)NTBACT. [Ch, 1 Effect of Mistake. From the principle that contracts can be effected only by mutual a,ssent, it follows that where, throuj;h some mistake of fact, each was assenting to a different contract, there is no valid agreement, notwithstanding the apparent mutual assent.^^' Mistake as to Parties. Such a mistake may arise as to the person with whom the con- tract is made. Thus if G. substitutes himself for B., so that A. contracts with C. under the belief that he is contracting with B., the contract is void. For example, if a buyer sends an order for goods to a firm, and the order is filled by a different firm, which has succeeded the firm to which the order was sent, and the buyer supposes it to have been filled by the firm to whom he gave the order, there is no contract.^^' In such a case the seller could re- cover the goods from the supposed buyer, if he refused to pay for them, provided they were unconsumed, but he could not recover the price. Hudson, 6 Best & S. 431, 34 Law J. Q. B. 145; Dickinson v. Dodds, 2 Ch. Div. 463; Byrne v. Van Tienhoven, 5 C. P. Div. 344; Stevenson v. McLean, 5 Q. B. Div. 346; Craig v. Harper, 3 Cush. 158; Boston & M. R. Co, v. Bart- lett. Id. 224; Fislier v. Seltzer, 23 Pa. St. 308; Johnston v. Fessler, 7 Watts, 48; Grotenkemper v. Achtermeyer, 11 Bush, 222; Tucker v. Woods, 12 Johns, 190; Faulkner v. Hebard, 26 Vt. 452; Falls v. Gaither, 9 Port. (Ala.) 605; Eskridge v. Glover, 5 Stew. & P. 264; Larmon v. Jordan, 56 111. 204; Johnson V. Filkington, 39 Wis. 62. As to contracts by letter, see Benj. Sales, § 44 et seq; Pol. Cont. (4th Ed.) 31 et seq; Id. 640 et seq; Langd. Cas. Cont. 993; "Contract by Letter," by Prof. Langdell, 7 Am. Law Rev. 432. lie Benj. Sales, § 50; Utley v. Donaldson, 94 U. S. 29, 47. Although the general rule of law is "ignorantia juris baud excusat," when the word jus is used in the sense of a private right, that maxim has no application. For example, private right of ownership is a matter of fact; and, though it may also be the result of matter of law, if parties contract under a mistake as to their relative rights, the agreement is liable to be set aside as having pro- ceeded upon a common mistake. Jones v. Clifford, 3 Ch. Div. 779, per Lord Westbm-y. 11 T Boulton V. Jones, 2 Hurl. & N. 504, 27 Law J. Exch. 117; Boston Ice Co. V. Potter, 123 Mass. 28. As to fraudulert impersonation, post, 122. Where the plaintiffs consigned wool to a broker to whom they would not sell, on the understanding that it was sold to an undisclosed principal in good credit with the plaintiffs, there was no sale to the broker, and he had no power to convey a good title to a buna flde purchaser. RodlifC v. Dallinger, 141 Mass. 1, 4 N. E 805. Ch. 1] MUTUAL ASSENT AND FORM OF CONTRACT. 29 Mistake as to Tiling Sold. Mistake may arise as to the identity or existence of the thing sold. When a person has entered into a contract, the nature of which he understands, he will not generally be heard to say that his meaning was not expressed in his words, and that he intended to contract for something different from that which- his words naturally indicate.^'* But a contract may be void for mistake when two things have the same names, and the parties, owing to the identity of names, mean different things; ^^' for example, where the buyer agreed to buy a cargo "to arrive ex Peerless from Bombay," and there were two ships of that name, and the buyer meant one, and the seller the other.^^o q^ ^he seller, having goods of two sorts, may undertake to sell goods of one sort which he mistakenly supposes are contained in a particular package; and if, under this common mistake, the parties agree to buy and sell the goods in that package, there is no contract.^'^^ Or the mistake may arise by the fault of a broker who makes the sale, and de- scribes a different article to each party.^^^ As we have seen, if the subject of sale is not in existence there is no contract, and this both upon the ground of impossibility of performance and of mutual mistake.^ ^' 118 Benj. Sales, § 417. 118 Raffles V. Wichelhaus, 2 Hurl. & C. 906, 33 Law J. Exch. 160; Kyle v. Kavanagh, 103 Mass. 356. 120 Raffles V. Wiclielhaus, cited in preceding note. 121 Harvey v. Harris, 112 Mass. 32. See, also, Sheldon v. Capron, 3 R. I. 171. 122 Thornton v. Kempster, 5 Taunt. 786. 123 Ante, p. 23. Mistake as to the situation of the goods may avoid the contract. Ketchum v. Catlin, 21 Vt. 191. Hervey v. Rhode Island Locomo- tive Works, 93 U. S. 664; March v. Wright, 46 111. 487; Gross v. Jordan, 83 Me. 380, 22 Atl. 250; Summerson v. Hicks, 134 Pa. St. 566, 19 Atl. 808; Greer v. Church, 13 Bush, 430; Singer Manuf'g Co. v. Cole, 4 Lea, 439; Hays v. Jordan, 85 Ga. 749, 11 S. E. 833;' National Car & Locomotive Builder v. Cy- clone Steam-Plow Co. (Minn.) 51 N. W. 657. "Sale or return," or contract of del credere agency. Ex parte White, 6 Ch. App. 397; Nutter v. Wheeler, 2 Low. 346, Fed. Cas. No. 10,384; In re Linforth, 4 Sawy. 370, Fed. Cas. No. 8,369. Sale or agency: First Nat Bank v. Kilbourne, 127 111. 573, 20 N. E. 681; Braun v. Keally (Pa. Sup.) 23 Atl. 389; Columbus Construction Co. v. Crane Co., 3 C. C. A. 216, 9 U. S. App. 46, 52 Fed. 635; National Bank v. 30 FORMATION OF TUE CONTRACT. [Ch. 1 Mistake as to Price. As price is an essential element in a contract of sale, a mistake in respect to the amount to be paid may avoid the contract/** as when the price named was f3.25, and one party thought this meant per bunch, and the other per 1,000.^*" Mistake must go to tJie Root of the Contract. Mistake, however, to have the effect of invalidating the contract, must go to the root of the contract, and must be such as to negative the idea that the parties were ever ad idem;^^° for, if the buyer purchases the very article at the very price and on the very terms intended by him and by the seller, the sale is completed by mutual assent, even if it may be liable to be avoided for fraud, illegality, or some other cause,^^'' or even though the buyer and the seller may be totally mistaken in the motive which induces the assent.^*' Goodyear (Ga.) 16 S. E. 962. Contract of sale or of guaranty: Hutton v. Lip- pert, 8 App. Cas. 309. Transaction held to be executed sale, though bill of sale read, "I agree to sell." Bangs v. Friezen, 36 Minn. 423. 32 N. W. 173. 124 Phillips V. Bistolli, 2 Barn. & C. 511; Rupley v. Daggett, 74 III. 351; Rovegno v. Defferari, 40 Cal. 459. 12 6 Greene v. Bateman, 2 Woodb. & M. 359, Fed. Cas. No. 5,762. Where the seller, intending to offer cattle for $261.50, by a lapsus linguae offered them for 5^161.50, and the buyer, having good reason to suppose that the offer was a mistake, accepted it, and paid $20 on account, and the seller ten- dered back the $20 and repudiated the sale, the buyer was not entitled to maintain replevin. Harran v. Foley, 62 Wis. 584, 22 N. W. 837. 128 Pol. Cont. (4th Ed.) 411. 12T Post, cc. 5. 6. i28Benj. Sales, § 54. Mistaken belief that thing would answer a certain purpose: Chanter v. Hopkins, 4 Mees. & W. 399; OUivant v. Bayley, 5 Q. B. 288; Prideaux v. Bunnett, 1 C. B. (N. S.) 613. Mistake as to condition of horse: Wheat v. Cross, 31 Md. 99. Mistake as to solvency of maker of note bought through broker: Hecht v. Batcheller, 147 Mass. 335, 17 N. E. 651; Taylor v. Fleet, 4 Barb. 95. Where a woman sold an uncut diamond for $1 to a jeweler, both being ignorant of its value, and it proved to be worth $1,000, she could not rescind. Wood y. Boynton, 64 Wis. 265, 25 N. W. 42. It is difficult to reconcile with the current of authority the case of Sher- wood V. Walker, 66 Mich. 568, 33 N. W. 919, where the subject of sale was a blooded cow, believed by the parties to be barren, and hence worth only $80, which was the price, but actually capable of breeding, and hence worth $750 or .iil.OOO, and ii was held that tlie seller could rescind on the ground that the mistake affected the substance of the whole consideration. Ch. 1] MUTUAL ASSENT AND FORM OF CONTRACT. 31 Form of Contract. Aside from the provisions of the statute of frauds, which will be considered later, no writing or other formality is necessary to effect a sale or contract for sale. If the contract is in writing, the ordinary rules of evidence apply. If the assent of the parties is not clearly expressed, it may be implied from their language ^^^ or conduct, as if a customer takes goods from a counter, and nothing is said as to price, a contract to pay their reasonable value is implied.^ ^° In the same way, where there is an express contract, and goods are sent which are not in accordance with it, but which neverthe- less the buyer keeps, a contract to pay for them is implied. This doctrine is most frequently applied where the contract is for a certain quantity of goods, only a part of which are delivered.^"* Sale by Suit. There is one case where a sale takes place by implication of law rather than by the mutual assent of the parties, either express or implied. Where in an action for trespass to goods, or the deten- tion or wrongful conversion thereof, the plaintiff recovers the value of the goods, as damages, and the defendant satisfies the judgment, the transaction operates as a sale of the goods by the plaintiff to the defendant.^ ^* An unsatisfied judgment does not pass the prop- gjvj-y 133 129 A "grumbling" assent Joyce v. Swann, 17 C. B. (N. S.) 84, 101. 130 Bl. Comm. bk. 2, c. 30; Hoadly v. McLaiue, 10 Bing. 482, 487, per Tindal, C. J. Using goods sent without order, with knowledge that the sender ex- pects payment, constitutes an Implied sale. Wellauer v. Fellows, 48 Wis. 105, 4 N. W. 114; Indiana Manuf'g Co. v. Hayes, 155 Pa. St. 160, 26 Atl. 6. 131 Oxendale v. Wetherell, 9 Bam. & G. 386; Colonial Ins. Co. of New Zealand v. Adelaide Mar. Ins. Co., 12 App. Cas. 128, 138; Richardson v. Dunn, 2 Q. B. 218; Hart v. Mills, 15 Mees. & W. 85; Bowker v. Hoyt, 18 Pick. 555; Sentell v. Mitchell, 28 Ga. 196; Richards v. Shaw, 67 111. 222; Flanders v. Putney, 58 N. H. 358; Booth v. Tyson, 15 Vt. 515, 518. Oxen- dale V. Wetherell, supra, has sometimes been disapproved. Champlin v. Row- ley, 13 Wend. 258, 18 Wend. 187; Kein v. Tupper, 52 N. Y. 555; Witherow V. Witherow, 16 Ohio, 238. See post, p. 190. 13 2 Jenk. 4 Cent. 88; Cooper v. Shepherd, 8 C. B. 206, 15 Law J. C. P. 237. On principle, the recovery would only have this effect where the value of the thing converted is included in the judgment. Benj. Sales, § 49. 133 Brinsmead v. Harrison, L. R. G C. P. 584, affirmed in L. R. 7 G. P. 547; Ex parte Drake, 5 Ch. Div. 866; Hepburn v. Sewell, 5 Har. & J. 211; Love- 32 FORMATION OF THE CONTRACT. [Ch. 1 Whether the Contract be of Sale a Question of Intention, Whether a contract be a contract of sale, or some other kind of a contract, is a question of substance, not of form, and depends on the intention of the parties. Thus, as has been seen, it is a ques- tion of the reaJ meaning of the parties, whether a contract is to be construed as a contract of sale or of bailment;^'* and the law will look to the substance of the transaction, and not to the name by which the parties designate it.^^"^ And if the mutual intention to buy and sell be wanting there is no sale. Thus the sale of an article containing a hidden treasure is no sale of the treasure;^" and if, by mistake, other goods than those agreed upon be de- livered, the property in the goods is not transferred.*" THE PRICE. 16. The price may be fixed by the contract of sale, or may be left to be fixed in a manner thereby agreed, or may be left to subsequent arrangement. 17. When tlie price is not determined by the contract of sale, the lavsr implies an agreement to pay a reasonable price. As has been stated, the consideration for a sale must be a price in money, paid or promised. Where the price has been expressly agreed on, no question can arise. But the price need not be specified, if it can be ascertained in accordance with the contract.*'* joy V. Murray, 3 Wall. 1, 16; Osteihout v. Roberts, 8 Cow. 43; Marsden v. Cornell, 62 N. Y. 215; Brady v. Whitney, 24 Mich. 154. Contra: Floyd v. Brown, 1 Rawle, 121; Marsh v. Pier, 4 Rawle, 273; Merrick's Estate, 5 Watts & S. 17. 18* Ante, p. 3. ISO Sale or lease. Hervey v. Rhode Island Locomotive Works, 93 U. S. 664. Post, 3. i8« Merry v. Green, 7 Mees. & W. 623; Huthmacher y. Harris* Adm'rs, 38 Pa. St 491; Durfee v. Jones, 11 R. I. 588; Bowen v. Sullivan, 62 Ind. 281; Ray V. Light, 34 Ark. 421. Cf. Gardner v. Lane, 9 Allen, 492. 187 Gardner v. Lane, 9 Allen, 492. issvalpy V. Gibson, 4 C. B. 837, at page 864, per Wilde, C. J.; Joyce v. Swann, 17 C. B. (N. S.) 84, 100; Holbrook v. Setchel, 114 Mass. 435; Chalm. Sale, § 9. Ch. 1] THE PRICE. 83 "Id certum est quod certum reddi potest." ^'* For example, the price may be left to be fixed by the market price of the com- modity/*" or by the price another article shall fetch at auction/*^ or by the price the tiling sold may afterwards fetch/ *^ or by future arrangement/*^ or by the valuation of a third person.^** If such third person cannot or does not make the valuation, the agree- ment is avoided/*^ though if the goods, or any part of them, have- been delivered, and appropriated by the buyer, he must pay a reasonable price for them.^** But as the assent to the sale may be implied, as well as express, so the assent to the payment of a reason- able price may be implied from the circumstances.^*' This im- plication arises naturally when the sale has been executed, but an agreement to pay a reasonable price may also be implied in an executory contract.^*® Such cases are, of course, to be distiu- 139 Brown v. Bellows, 4 Pick. 179, 189. 140 Price 10 cents less than Milwaukee price on any day seller might name. McConuell v. Hughes, 29 Wis. 537. Market price when buyer should demand payment. McBriile v. Silverthorue, 11 U. C. Q. B. 545; Phifer v. Erwin, 100 N. C. 59, 6 S. E. G72. Price to be regulated by the price of gold. Ames v. Quimby, 96 U. S. 324. Cf. Acebal v. Levy, 10 Bing. 370, 382. 1*1 Cunningham v. Brown, 44 Wis. 72. 142 Phifer V. Erwin. 100 N. C. 59, 6 S. E. 672. 143 Where the sale is for a reasonable price, to be afterwards agreed upon, the title passes, if such is the mutual intention, though no price is afterwards agreed upon. Greene v. Lewis, 85 Ala. 221, 4 South. 740. Otherwise where the Intention is to defer the passing of title till the price shall be agreed on. Wittkowsky v. Wasson, 71 N. C. 451. 144 Brown v. Bellows, 4 Pick. 179, 189. 14 6 Thurnell v. Balbirnie. 2 Mees. & W. 786; Cooper v. Shuttleworth, 25 Law J. Exch. 114; Vickers v. Vickers, L. R. 4 Eq. 529; Milnes v. Gery, 14 Ves. 400; Wilks v. Davis, 3 Mer. 507; Benj. Sales. § 87; Chalm. Sale, § 10. i*c Clarke v. Westrope, 25 Law .T. C P. 287. Valuation prevented by seller. Humaston v. Telegraph Co., 20 Wall. 20; Henniston v. Ham, 9 Post (N. H.> BOl. The same rule was applied where the goods had been constructively, but not actually, delivered, and the seller prevented the valuation, on the ground that prevention was equivalent to performance. Smyth v. Craig, 3 Watts & S. 14. 147 Acebal v. Levy, 10 Bing. 376; Bennett v. Adams, 2 Cranch, C. C. 551, Fed. Cas. No. 1,316; Taft v. Travis, 136 Mass. 95; James v. Muir, 33 Mich. 223; Lovejoy v. Michels. 88 Mich. 15, 49 N. W. 901; McEwen v. Moiey, 60 lU. 32. 148 Uoadly v. McLaine, 10 Bing. 482; Valpy v. Gibson, 4 C. B. 837. SALES — 3 34 FORMATION OF THE CONTRACT. [Cll. 1 guished from cases in which the contract of sale has never been com- pleted, by reason of fail are to agree upon a price.^** What is a reasonable price is a question of fact, dependent on the circum- stances of each particular case; for, while a reasonable price is ordinarily the market price, the market price may be unreason- able, from accidental circumstances, as on account of the commodity having been kept back by the seller himself.^ ''° i*» Bigley V. Rlsher, 63 Pa. St. 152; Foster v. Lumbermen's Mln. Co., 68 Mich. 188, 36 N. W. 171; Whiteford v. Hitchcock, 74 Mich. 208, 41 N. W. 898. iBo Acebal v. Levy, 10 Bing. 376, per Tindal, C. J., 383; Jamea y. Mulr, 33 Mich. 223; Lovejoy v. Michels, 88 Mich. 15, 49 N. W. 901. Ch. 2] WHAT C0NTBACT8 ARE WITHIN THE 8TATUTB. 35 CHAPTER n. FORMATION OF CONTRACT (Continued)— UNDER THE STATUTE OF FRAUDS. 18-20. What Contracts are Within the Statute. 21-22. What are Goods, Wares, and Merchandise. 23. What is a Contract for the Price or Value of £10 ($50). 24-26. Acceptance and Receipt. 27-29. Acceptance. 30-31. Actual Receipt 82-33. Earnest or Part Payment. 34-36. The Note or Memorandum. 87-38. Siguature of the Party. 39-40. Agents Authorized to Sign. 41. Effect of Noncompliance with the Statute. WHAT CONTRACTS ARE WITHIN THE STATUTE. 18. The seventeenth section of the English statute of frauds, which has been substantially followed in most of the states and territories of the United States, enacts that "no contract for the sale of any goods, wares, or merchan- dises, for the price of ten pounds sterling, or upwards, shall be allow^ed to be good, except (a) The buyer shall accept part of the goods so sold, and actually receive the same, (b) Or give something in earnest to bind the bargain, or in part payment, (c) Or that some note or memorandum in vtrriting of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." 19. The statute of frauds applies to executory as well as executed contracts of sale. 20. The statute does not apply to contracts for work, labor and materials. The rule for determining whether 36 FORMATION OF THE CONTRACT. [Ch. 3 the contract is for \\rork, labor and materials, or a contract of sale, varies in different jurisdictions. (a) ENGLISH RULE— The English rule, which is fol- lowed in some states, is that a contract whereby the property in a chattel is to be transferred for a price from one person to another is a contract of sale, and is w^ithin the statute, although the chattel is to be the product of the work, labor, and materials of the person w^ho is to transfer the property. (b) MASSACHUSETTS RULE — The Massachusetts rule, which is followed in some states, is the same, except that if the chattel is to be manu- factured especially for the buyer, upon his spe- cial order, and is not such as the seller in his ordinary business manufactures for the general market, the contract is for work, labor, and ma- terials, and is not within the statute. (0) NEW YORK RULE— The New York rule, which is follow^ed in some states, is that a contract for the sale of a chattel not in existence, which the seller is to manufacture, is a contract for w^ork, labor, and materials, and is not witliin the statute; but, if the chattel is in existence, the contract is one of sale, and is w^ithin the statute, although the seller is to adapt it to the use of the buyer. The common law, which recognized the validity of verbal con- tracts of sale of personal property for any amount, and however proved, was greatly modified by the seventeenth section of the stat- ute of 29 Car. II. c. 3, known as the "statute of frauds," which has been quoted above. To reproduce here the language of the vari- ous similar enactments in the United States would be impossible,* » This section is not in force in Rhode Island, Delaware, Pennsylvania, Virginia, North Carolina, Mississippi, Kentucky, Tennessee, Ohio, Illinois, Kansas, or Texas. See Browne, St. Frauds, § 117. Ch. 2] WHAT CONTRACTS ARE WITHIN THE STATUTE. 37 nor is it necessary to do so, as their provisions are in the main substantially the same as those of the English original. The latter will therefore serve as the basis of discussion. Executed and Executory Contracts. A question arose at an early day, on which in England the cases were conflicting, whether the words "contract of sale," as used in the statute, apjjlied to executory contracts, or merely to executed contracts, of sale.^ The question was settled in England by "Lord Tenterden's Act," ^ so called, which enacted that the provisions of the seventeenth section "shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwith- standing the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, 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." The two enactments must be construed to- gether,* and Lord Tenterden's act appears to be merely declara- tory of the true construction of the statute of frauds." In the United States, it has been universally held, without the interven- tion of the legislature, and in conformity with the apparent policy and natural construction of the statute, that it applies as well to executory as to executed sales.^ Contract of SaU or Contract for Work, Labor, and Materials — English Rule. Another question has arisen as to the meaning of "contract of sale," on which there was long a conflict of opinion in England, 2 That executory contracts were not within the statute, see Towers v. Osborne, 1 Strange, 50L1; Clayton v. Andrews, 4 Burrows, 2101; Groves v. Buck, 3 Maule & S. 178. Contra, Rondeau v. Wyatt, 2 H. Bl. 63; Cooper V. Elston, 7 Term R. 14; Garbutt v. Watson, 5 Barn. & Aid. 613. 8 9 Geo. IV. c. 14, § 7. * Chalm. Sale, 8; Scott v. Eastern Counties Ry. Co., 12 Mees. & W. 33; Harman v. Reeve, 18 C. B. 587, 25 Law J. C. P. 257. 6 Langd. Cas. Sales, 1025. 6 Newman v. Morris, 4 Har. & McH. 421; Bennett v. Hull, 10 Johns. 364; Orookshank v. Burrell, 18 Johns. 58; Jackson v. Covert, 5 Wend. 139; Ide V. Stanton, 15 Vt. 685; Waterman v. Meigs, 4 Cush. 497; Hight v. Ripley, 19 Me. 137; Edwards v. Grand Trunk Ry. Co., 48 Me. 379; Atwater v. Hough, 29 Conn. 508; Carman v. Smick, 15 N. J. Law, 252; Finney v. Apgar, 31 Is'. J. Law, 266; Cason v. Cheely, 6 Ga. 554. 38 FORMATION OF THE CONTRACT. [Ch. 2 and on which different conclusions have been reached in the United States, namely, whether a contract for the sale of goods to be afterwards manufactured is a "contract of sale," or a mere con- tract for work and labor done and materials furnislied, to which the statute does not apply.'' The conclusiou which has finally been reached in Enjj^land, and iu several states in America, is that if the contract is intended to result in transferring for a price a chat- tel it is a contract for the sale of a chattel, notwithstanding that the chattel is not in existence at the time of the contract, and is to be the product of the labor and materials of the seller, and that unless the contract is intended to result in the transfer of a chattel the contract is not one of sale. This test was first clearly stated and applied in the leading case of Lee v. Griffin,® decided in the queen's bench in 18G1. That action was brought by a dentist to recover for tw^o sets of artificial teeth ordered by a deceased lady of whom the defendant was executor, and it was held that the con- tract was one of sale, and not for work, labor, and materials. Blackburn, J., said: "If the contract be such that it will result in the sale of a chattel, the proper form of action, if the employer refuses to accept the article when made, would be for not accept ing. But if the work and labor be bestowed in such a manner as that the result would not be anything which could properly be said to be the subject of sale, then an action for work and labor is the proper remedy." Before the case of Lee v. Griffin, three other principles had been suggested in England as affording a test in such cases, and as the earlier English views have been influential in shaping the decisions in this country, and throw light upon the question involved, they may be briefly stated: First. It was suggested that, if the subject- matter of the contract is not in existence, the contract is not for the sale of goods.® Thus in Groves v. Buck ^° it was held on this ground that a contract for the sale of oak pins to be cut by the T Benj. Sales, §§ 94-107. 8 1 Best & S. 272, 30 Law J. Q. B. 252. » Groves v. Buck, 3 Maule & S. 178; Garbutt v. Watson, 5 Barn. & Aid. 613, per Abbott, C. J.; Rondeau v. Wyatt. 2 IT. Bl. G3, per Lord Lough- borough; Cooper V. Elston, 7 Term li. 14, per Lord Kenyon, 0. J. 10 3 Maule & S. 178. Ch. 2] WHAT CONTRACTS ARK WITHIN THK STATUTE. 39 plaintiff out of slabs owned by him was not within the statute. Second. It was suggested that, if the materials be furnished by the employer, the contract is for work and labor, and not of sale; but that if the materials be furnished by the workman, who makes the chattel, he cannot maintain work and labor, because his labor is bestowed on his own materials and for himself." The first branch of this rule falls within Lee v. Griffin, because, if the mate- rials are furnished by the employer, there can be no sale of them to him. But the second branch of the rule is inaccurate, since a man may be employed to do work on his own materials without an intention on the part of himself and his employer to transfer the property in the completed article; for example, to expend work and materials in perfecting an invention. ^^ Third. It was suggested that the true test was "whether the work and labor is the essence of the contract, or whether it is the materials that are found." ^' But the fatal objection to this test, as pointed out by Benjamin,^* and indeed to any test except that applied in Lee v. Griffin, is that, however small the relative value of the materials to the labor, as in the case of a painting, the employer cannot get title to the thing except through the transfer of the property in it from the maker. And it is the acquisition of the thing by the employer which the contract really contemplates. It is true that extreme cases may be put, such as that of an attorney employed to draw a deed and using his own paper and ink, or that of a man sending a button to be used by his tailor in making a coat. But such trifling matters cannot be considered as having entered into the contemplation of the parties, nor as forming part of the real consideration, and are to be disposed of by the rule, "De minimis non curat lex." ^' 11 Smith V. Surman, 9 Barn. & C. 568, per Bayley, J.; Atkinson v. Bell, 8 Barn. & C. 277, per Bayley, J. 12 Grafton v. Armltage, 2 C. B. 336, 15 Law J. C. P. 20. Or If a farrier be employed professionally, using his own medicines, there is no sale of the medicine, but the contract is for work, labor, and materials. Clark v. Mum- ford, 3 Camp. 37; Langd. Cas. Sales, 1039. 18 Clay V. Yates, 1 Hurl. & N. 73, 25 Law J. Bxch. 237. 1* Benj. Sales, § 106. " Benj. Sales, § 107. 40 FORMATION OF THE CONTRACT. [Ch. 2 Same — Massachvsetts Rule. In the Eu;^lish case of Garbutt v. Watson,^* where a contract for the sale of flour to be manufactured was held to be within the stat- ute, Abbott, C. J., remarked: "In Towers v. Osborne [1 Strange, 50G], the chariot which was ordered to be made would never, but for that order, have had anv exis^tence. But here the plaintiffs were pro- ceeding to grind the flour for the purpose of general sale, and sold this flour to the defendant as part of their general stock." In ac- cordance with this dictum, though not expressly upon its authority, it was held in Mixer v. Howarth ^^ that a contract to build a buggy for the defendant out of materials partly wrought, but not put together, was not a contract of sale within the statute, and Shaw, C. J., said that "when the contract is a contract of sale, either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute ap- plies." In Gardner v. Joy,^® on the other hand, where the defend- ant ordered 100 boxes of candles, at 21 cents a box, which the plain- tiff was to manufacture, the same judge held that the ease was not distinguishable from Garbutt v. Watson. And in a later case ^' he laid down the distinction that "when a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made and finished, it is essentially a con- tract of sale, and not a contract for labor; otherwise, when the article is made pursuant to the agreement." In Goddard v. Bin- ney,'° in which the facts are similar to those in IMixer v. Howarth, the court refers to Lee v. Griffin, but adheres to the Massachusetts rule, the correctness and justice of which it approves. Same — New York Rule. The principle acted on in the earlier English cases, that a con- tract for the sale of an article not in existence is not within the 18 5 Barn. & Aid. 613. 17 21 Pick. 20.5. 18 9 Mete. (Mass.) 177. i» Lamb v. Crafts, 12 Mete. (Mass.) 356. to 115 Mass. 450. See, also, Spencer v. Cone, 1 Mete. (Mass.) 283; Water- man V. Meigs, 4 Cush. 497; Clark v. Nichols, 107 Mass. 547; DowUng T. McKennej, 124 Mass. 480; May v. Ward, 134 Mass. 127. Ch. 2] WHAT CONTRACTS AKE WITHIN THE STATUTE. 41 statute,^^ is the foundation of the so-called New York rule. Thus in Crookshank v. Burrell ^^ it was held that a contract to manu- facture the woodwork of a wagon was not within the statute, and in Sewall v. Fitch ^^ the same decision was reached in regard to a contract to sell rails which were to be made by the seller; and the rule was enunciated that a contract for the sale of goods existing in solido is within the statute, but that a contract for the sale of goods not yet made, and to be delivered at a future day, is a con- tract for work and labor, and is not within the statute. In Downs V. Koss,^* however, a limitation of this rule was introduced, and it was held that a contract to sell wheat, part of which was to be cleaned and part threshed, was within the statute, Brouson, J,, observing that, "if the thing exist at the time in solido, the merp fact that something remains to be done to put it in a marketable condition will not take the contract out of the operation of the statute," The rule *" and the limitation ^' have been followed in the later New York cases. The cases are discussed and recon oiled in Cooke v. Millard,'^^ in which it was held that a contract for the sale of lumber which the seller was to dress and put in condi tion to fill the order of the buyer was within the statute. The rule is there stated that an agreement for the sale of a commodity not in existence, but which the seller is to manufacture or put in condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale; but that, when the chattel is in existence, the contract should be deemed to be one of sale, even though it may have been ordered from a seller who is to do some work upon 21 Ante, p. 38. 2 2 18 Johns. 58. «3 8 Cow. 215. 2* 23 Wend. 270. 2B Robertson v. Vaughn, 5 Sandf. 1; Bronson v. Wiman, 10 Barb. 40G; Parker v. Schenck, 28 Barb. 38; Parsons v. Loucks, 48 N. Y. 17; Warren Chemical & Manufacturing Co. v. Holbrook, 118 N. Y. 586, 23 N. E. 908. See Hinds v. Kellogg (Com. PI. N. Y.) 13 N. Y. Supp. 922. 26 Smith V. New York Cent. R. Co., *43 N. Y. 180; Cooke v. Millard, 65 N. Y. 352; Alfred Shrimpton & Sons v. Dworsky, 2 Misc. Rep. 123, 21 N. Y. Supp. 461. 2T 65 N. Y. 352. 42 FORMATION OF THK CONTRACT. [Ch. 2 it to adapt it to the use of the j)urchaser. Dwight, C, who deliv- ered the oj)inion, observed in regard to Lee v. Griirm that, if the subject were opeu, no more convenient rule than that of Lee v. Grillin, which is at once so philosophical and comprehensible, could be adopted, but that it was too late to adopt it in full. Same — Iiulc Elsexcliere in United States. It would be diflicult, if not impossible, to classify the American cases as falling within the English, the New York, or the Massa- chusetts rule.^® The later rule has, however, met with most gen- eral ajiproval.^® The New York rule has been followed in Mary- laud.^" The English rule seems to prevail in Minnesota,^ ^ and has in a recent case been expressly adopted in Missouri.'* Oiattel Intended for a Fixture. Contracts for furnishing an article, and fixing it to the free- hold, are to be distinguished from contracts of sale." In such 2 8 In rrescott v. Locke, 51 N. H. 94, it was held that a contract to buy what spokes plaintiff should saw at his mill was within the statute, and the opin- ion cites Lee v. Griffin, 1 Best. & S. 272, 30 Law J. Q. B. 252; but the court draws a distinction like that at one time suggested in England (supra) be- tween contracts of sale and those in which the labor and skill of the work- man are the essence of the contract. See, also, Pitkin v. Noyes, 48 N. H. 294. Cf. Oilman v. Hill, 30 N. H. 311. A contract to cut all the trees on defendant's land, and to deliver the logs with others already cut at plaintiff's mill, is within the statute. Ellison v. Brigham, 38 Vt. G4. A contract to paint a portrait is not within the statute. Turner v. Mason, 65 Mich. 662, 32 N. W. 846. 28 Hight V. Ripley, 19 Me. 137; Abbott v. Gilchrist, 38 Me. 260; Edwards V. Grand Trunk Ry., 48 Me. 379, 54 Me. 105; Crockett v. Scribner, G4 Me. 447; Finney v. Apgar, 31 N. J. Law, 271 (Cf. Pawelski v. Hargreaves, 47 N. J. Law, 334); Bird v. Muhlinbrink, 1 Rich. Law, 199; Meincke v. Falk, 55 Wis. 427, 13 N. W. 545, distinguishing Hardell v. McClure, 1 Chand. (Wis.) 271, 2 Pin. 289, in which the modera English rule was approved; Cason v. Cheely, 6 Ga. 554; O'Neil v. New York & Silver Peak Min. Co., 3 Nov. 141; Orman v. Hager, 3 N. M. 331, 9 Pac. 363; Mighell v. Dougherty, 86 Iowa, 480, 53 N. W. 402. See, also, Allen v. Jarvis, 20 Conn. 38; Atwater v. Hough, 29 Conn. 509. 8 Eichelberger v. McCauley, 5 Har. & J. 213; Rentch v. Long, 27 Md. 188. «i Brown v. Sanborn, 21 Minn. 402. 8 2 Pratt V. Miller, 109 Mo. 78, 18 S. W. 965; Burrell v. Highleyman, 83 Mo. App. 183. Also in Wolfenden v. Wilson, 33 U. C. Q. B. 442. 88 Benj. Sales, § 108. Ch. 2] WHAT ARE GOODS, WARES, AND MERCHANDISE. 4S oases the intention is not to make a sale of movables, but to make iinprovcinonts on the real property of which the article furnished, upon being affixed, becomes a part; and the consideration to be paid is, not for a transfer of chattels, but for work and labor done and materials furnished in adding something to the land.'* Similarly, a contract to make improvements upon a chattel be- longing to the employer is a contract for work, labor, and ma- terials.'" Auction Sales. Although it was questioned by Lord Mansfield whether the stat- ute applied to sales of goods at auction,^ ^ it is universally held that it applies to them as well as to private sales.'^ WHAT ARE GOODS, WARES, AND MERCHANDISE. 21. "Goods, wares, and merchandise" comprehend: (a) All corporeal movable property. (b) In the United States, generally, (but not in England), incorporeal property, such as shares, promissory notes, bank bills, etc. (c) Fructus naturales and fructus industriales, the ownership w^hereof is to pass to the buyer after severance thereof from the soil. (d) Fructus industriales (perhaps) also w^hen such ownership is to pass before severance. 22. "Goods, wares, and merchandise" do not compre- hend: (a) Fructus naturales, the ownership whereof i& to pass before severance [and from the fur- si Tripp V. Armitage, 4 Mees. & W. 687; Clark v. Bulmer, 11 Mees, & W. 243. 86 Anglo-Egyptian Nav. Co. v. Rennie, L. R. 10 C. P. 271. 86 Simon v. Motivos, 3 Bun-ows, 1921, 1 Wm. Bl. 599. 87 Hinde v. Whitebouse, 7 East, 558, per Lord EUenborough; Kenworthy V. Schofield, 2 Bam. & C. 945; Davis v. Rowell, 2 Pick. 64; Morton v. Dean,. 13 Mete. (Mass.) 385; Pike v. Balch. 38 Me. 302; Johnson v. Buck, 35 N. J. Law, 338; Davis v. Robertson, 1 Mill, Const 71; Sanderlin v. Trustees, R. M. Charlt (Ga.) 551. 44 FORMATION OF THE CONTKACT. [Cll. 2 ther growth whereof the buyer is to derive benefit].*' (b) Tenants' fixtures sold w^hile unsevered. Incorporeal Property — Choscs in Action. To Enj;land the term "^oods, wares, and merchandise" has been limited to corporeal movable property, and is held not to include shares, stock, documents of title, choses in action, and other in corporeal rights and property.^* In the United States, however, 1 lie- term is as a rule held to include incorporeal property, such as stock,*" bills and notes," bank bills," and accounts." In some states a broader rule is required by the language of the statute, as in New York, California, Wisconsin, and Minnesota, where the 38 If Marshall v. Green. 1 C. P. Div. 35. and the similar decisions in this country, be good law, the words within the brackets must stand. See post, p. 40. 38 Humble V. Mitchell, 11 Adol. & E. 205; Knight v. Barber. 16 Mees. & W. t;6, 16 L. J. Exch. 18; Bradley v. Holdsworth, 3 Mees. & W. 422; Dun- cuft V. Albrecht, 12 Sim. 189; Colonial Bank v. Whinney, 30 Ch. Div. 261, 286; Benj. Sales, § 111. See Evans v. Davies [1803] 2 Ch. Div. 216. *o Tisdale v. Harris, 20 Pick. 9; Boardman v. Cutter, 128 Mass. 388; North V. Forest, 15 Conn. 400: Pray v. Mitchell, 60 Me. 430; Fine v. Hornsby, 2 Mo. App. 61; Bernhardt v. Walls, 29 Mo. App. 206. See Somerby v. Buntin. 118 Mass. 279; Meehan v. Sharp, 151 Mass. 504. 24 N. E. 907; Green v. Brookins, 23 Mich. 48, 54; Gadsden v. Lance, 1 McMul. Eq. 87. "The words of the statute have never yet been extended by any court beyond securities which are subjects of common sale and barter, and which have a visible and palpable form." Somerby v. Buntin, supra, per Gray, C. J., and Meolmii V. Sharp, supra. But Webb v. Baltimore & E. S. K. Co., 77 Md. 92, 26 Atl. 113, follows the English rule, notwithstanding a dictum to the contrary in Colvln V. Williams, 3 Har. & J. 38. *i Baldwin v. Williams, 3 Mete. (Mass.) 367; Gooch v. Holmes, 41 Me. 523; Pray v. Mitchell, 60 Me. 430, 435; Hudson v. Weir, 29 Ala. 294; Greenwood v. Law, 55 N. J. Law, 168, 26 Atl. 134 (bond and mortgage). Contra, Whit- temore v. Gibbs, 24 N. H. 484; Beers v. Crowell, Dud. (Ga.) 28 (United States treasury checks on Bank of U. S.); Vawter v. GrifBu, 40 Ind. 600. 42 Riggs V. Magruder, 2 Cranch, C. C. 143, Fed. Cas. No. 11,828; Gooch v. Holmes, 41 Me. 523. Gold coin, when the subject of a contract of sale, Is within the statute. Peabody v. Speyers, 56 N. Y. 230. *8 Walker v. Supple, 54 Ga. 179. Ch. 21 WHAT ARE GOODS, WARES, AND MERCHANDISE. 45' provision expressly includes choses in action,** and in Florida, where it uses the term "personal property." *' Interest in Land — Fourth Section of the Statute. The fourth section of the statute of frauds, which has been sub- stantially enacted in most states of this country, provides that "no action shall be brought ♦ » • upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, ♦ * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other per- son thereunto by him lawfully authorized." When a contract of sale is made, the subject-matter of which is something attached to the soil, the question frequently ai'ises whether such sale is of an interest in land, and hence whether it is within the fourth sec- tion, or whether it is a sale of goods, wares, and merchandise, and hence within the seventeenth section, or whether it is neither. The question which section governs may be of vital importance, because the fourth section requires a written memorandum or note under all circumstances and whatever the amount, while under the seventeenth section the necessity of a writing does not exist if the amount is under £10, or if the provisions in respect of performance or payment have been satisfied. Fructus Naturales and Fmctus Lidustriales. Inasmuch as "goods, wares, and merchandise" comprehends all movable corporeal property, an executory contract for the sale of a thing attached to the soil, for example, trees, if the thing is to be severed from the soil before the sale, is within the seventeenth section, and is not within the fourth section, of the statute; for, though the subject of sale be an interest in land when the contract is made, it has, by severance from the soil, become "goods, wares, and merchandises" when the sale is executed.*^ But, if the con- 44Artcher v. Zeh, 5 Hill, 200; Peabody v. Speyers, 56 N. Y. 230; Allen v. Aguirre, 7 N. Y. 543; Mayer v. Child, 47 Cal. 142; Spear v. Bach, 82 Wis. 192, 52 N. W. 97. 45 Southern Life Ins. & Trust Co. v. Cole, 4 Fla. 359. *6 Smith V. Surman, 9 Barn. & C. 561; Washbourn v. Burrows, 1 Exch. 107, per curiam; Watts v. Friend, 10 Barn. & C. 44G; Parker v. Staniland, 11 East, 362; Sainsbury v. Matthews, 4 Mees. & W. 343; Whitmarsh v. Walker, 46 FORMATION OF THE CONTRACT. [Ch. 2 tract contemplates a present sale, a dififerent question arises, which is to be determined in the case of growing crops upon a somewhat artificial distinction. A distinction exists between what are known as "fructus natu- rales," which are the natural product of the soil, as trees and grass, and "fructus indnstriales," which are the product of annual labor, as wheat or potatoes. Fructus naturalcs are an interest in land, but fructus indnstriales are chattels, and not an interest in land. From the character of fructus naturales as an interest in land, it follows that an agreement vesting a present interest in them be- fore severance is within the fourth section. Such, at least, is the prevailing rule in this country,*^ and was supposed to be the law under all circumstances in England *^ until the case of Marshall V. Green, *^ in 1875, in which it was held that a sale of standing timber, to be cut by the purchaser as soon as possible, was within the seventeenth, and not within the fourth, section. It is said by the English editors of Benjamin '° that this decision is open to criticism, and must be supported either on the ground that title was not to pass until severance, which would bring it within the 1 Mete. (Mass.) 313; Claflin v. Carpenter, 4 Mete. (Mass.) 580; Nettleton v. Sikes, 8 Mete. (Mass.) 34; Drake v. Wells, 11 Allen, 141; White v. Foster, 102 Mass. 375, 378; Fletcher v. Livingston, 153 Mass. 388, 390, 26 N. E. 1001; Banton v. Shorey, 77 Me. 48, 51; Kilmore v. Hewlett, 48 N. Y. 569; Boyce V. Washburn, 4 Hun, 792; Upson v. Holmes, 51 Conn. 500. See, also, Slo- cum V. Seymour. 36 N. J. Law, 138, per Bedle, J.; Green v. North Carolina R. Co., 73 N. C. 524; Owens v. Lewis, 46 Ind. 488; Cool v. Peters Box & Lumber Co., 87 Ind. 531; Brown v. Sanborn, 21 Minn. 402; Benj. Sales, §§ 118, 119; Blackb. Sales, p. 5. *^ White v. Foster, 102 Mass. 375; Putney v. Day, 6 N. H. 430; Olmstead V. Niles, 7 N. H. 522; KIngsley v. Holbrook, 45 N. H. 313; Howe v. Batchel- der, 49 N. H. 204; Green v. Armstrong, 1 Denio, 550; Thomson v. Poor, 10 N. Y. Supp. 597, 57 Hun, 288; Id., 22 N. Y. Supp. 570, 67 Hun, 653; Slo- cum v. Seymour, 36 N. J. Law, 138; Harrell v. Miller, 35 Miss. 700; Owens V. Lewis, 46 Ind. 489; Daniels v. Bailey, 43 Wis. 566; Lillle v. Dunbar, 62 Wis. 198, 22 N. W. 467; Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90. *8 Rodwell V. Phillips, 9 Mees. & W. 501; Crosby v. Wadsworth, 6 East, 602; Teal v. Auty, 2 Brod. & B. 99 (trees); Seorell v. Boxall, 1 Younge & J. 396: Anonymous, 1 Ld. Raym. 182, eontra. *» 1 C. P. Div. 35. »o Benj. Sales, § 126. See, also, Kerr, Dig. Law Saies, p. 5 (s). Ch. 2] WHAT ARK GOODS, WARES, AND MERCHANDISE, 47 principle governing executory contracts of sale above stated, or that it must be taJien to have introduced the limitation that, even when the property in fructus naturales passes before severance, if the intention is that the buyer is to derive no benefit from their further growth, the sale is within the seventeenth, and not within the fourth, section. Apparently the judges who decided Marshall v. Green took the latter view of the case, and the same has been taken by some courts in the United States.''^ In a later English case,"^ Chitty, J., refused to apply the limitation to the sale of building materials in a building to be removed by the buyer, and his criti- cisms apply equally to Marshall v. Green and to the American cases referred to. "It is sold,'' he says, "as building materials, and, if the intention of the parties prevailed, it might mean that it is sold as a chattel, but the point still is that it is not a chattel at the time of the sale, and the statute of frauds, so far as I can see, does not enable parties to say: *We will agree to treat this thing as a chattel, when in point of law it is a hereditament.'" In Massa- chusetts, where the above limitation of the rule is not recognized, the courts construe contracts for the sale of trees and other fructus naturales, even if the trees are to be cut by the purchaser, as exec- utory contracts in which the title is not to pass until severance and conversion into personalty and by which the purchaser has until severance only a revocable license to enter and remove the trees."** Bi Sterling v. Baldwin, 42 Vt. 306; McClintock's Appeal, 71 Pa. St. 365; Cain V. McGuire, 3 B. Mod. 340; Byassee v. Reese, 4 Mete. (Ky.) 372. See, also, Bostwick v. Leach, 3 Day, 476; Purner v. Piercy, 40 Md. 212; Smith V. Bryan, 5 Md. 141; Foster v. Mabe, 4 Ala. 402; Scoggin v. Slater, 22 Ala. 687. If the timber is to be taken off by the purchaser without specification as to time, the contract is within the fourth section. Huff v. McCauley, 53 Pa. St. 206; Pattison's Appeal, 61 Pa. St. 294; Miller v. Stevens, 100 Mass. 518. B» Lavery y. Pursell, 39 Ch. Div. 508, 57 L. J. Ch. Div. 570. B8 White V. Foster. 102 Mass. 375, 379, and Massachusetts cases cited in note supra. Usher, Sales, § 96. The Massachusetts cases construe in this way contracts which elsewhere would perhaps be construed as intended to pass title before severance, and as hence within the fourth section, but the peculiarity of the Massachusetts cases concerns, at most, the construction of the contract, and not the application of the statute. If the contract grants 48 FORMATION OP THE CONTRACT. [Ch. 2 From the character of fruetus industriales as chattels, on the other hand, it follows that a sale of them is not within the fourth section.'* But, though they are chattels,**' it is an open question whether they are "goods, wares, and merchandises," and conse- quently within the seventeenth section.'* Whether fruetus indus- triales include a crop which is neither annual nor permanent, but which affords a crop either the second or third year, or a succession of crops for several years, is a question on which there is little au- thority; but it would seem that the crop of the first year would be fruetus industriales, and that the crops of subsequent years would be fruetus naturales, unless, like hops, they require cultivation for each successive crop, in which case they would be fruetus indus- triales till exhausted." Removable Fixtures. Removable fixtures are neither within the fourth section " nor the seventeenth section;'® though an executory contract for the an estate in the trees while growing, the fourth section applies. White v. Foster, supra. 54 Evans v. Roberts, 5 Barn. & C. 836; Jones v. Flint, 10 Atlol. & E. 753; Warwick v. Bruce, 2 Maule & S. 205; Dunne v. Ferguson, Hayes, 540; Back- enstoss v. Stahler, 33 Pa. St. 251, 255; Marshall v. Ferguson, 23 Cal. 60; Davis V. McFarlane, 37 Cal. 634; Vulicevich v. Skinner, 77 Cal. 239, 19 Pac. 424; Graff v. Fitch, 58 111. 373. 66 Whipple V. Foot, 2 Johns. 418; Newcomb v. Ramer, Id. 421, note a; Brittaiu v. McKay, 1 Ired. 265; Penhallow v. Dwight, 7 Mass. 34; West- brook V. Eager, 16 X. J. Law, 81; Brlcker v. Hughes, 4 Ind. 140; Bull v. Griswold. 19 111. 631. 68 For dicta in the afiirmative: Evans v. Roberts, 5 Barn. «& C. 836, per Bayley, J., and Liltledale, J.; Marshall v. Green, 1 C. P. Div. 35, 42, per Brett, J.; Dunne v. Ferguson, Hayes, 540, per .Toy, C. B. ; Marshall v. Fer- guson, 23 Cal. 66, per Crocker, J.; Sherry v. Picken, 10 Ind. 375, per Perkins, J. See, also, Ross v. Welch, 11 Gray, 235. Lord Blackburn says that the proposition is "exceedingly questionable." Blnckb. Sales (2d Ed.) p. 13; Benj. Sales, § 127; Laugd. Cas. Sales, 1031. 07 Benj. Sales. §§ 128, 129. citing Graves v. Weld. 5 Barn. & Add. 105. "A growing crop of peaches or other fruit, requiring periodical expense, in- dustry, and attention, ♦ * ♦ may be well classed as fruetus industriales." Purner v. Plercy, 40 Md. 212. 223, per Stewart, J. 68 Heyshara v. Dettre, SO Pa. St. 506; Powell v. McAshan, 28 Mo. 70. "In 68 Hallen v. Runder, 1 Cromp., M. & R. 266; Lee T. Gaskell, 1 Q. B. Div. 700, 45 Law J. Q. B. 540. See Benj. Sales, § 127. Ch. 2] CONTRACT FOB THE PRICE OR VALUE OF £10 ($50). 49 sale of fixtures to be severed before the title passed would doubt- less be held an executory sale of goods, within the principle pre- viously stated."* WHAT IS A CONTBACT FOR THE PRICE OR VALUE OP £10 ($50). 23. The statute of frauds includes: (a) An entire contract for the sale of goods and for other objects not -within the statute, -wrhere the value of the goods exceeds the statutory amount. (b) An entire contract for the sale of different goods, the joint value vsrhereof exceeds the statutory amount. (c) A contract for the sale of goods of unascer- tained value at the date of the contract, the value vsrhereof is afterwards ascertained to exceed the statutory amount." The rule that an entire contract for the sale of goods, and for other matters not within the statute, is invalid, if the value of the goods exceeds the statutory amount, was established by Harman V. Reeve,® ^ in which the plaintiff agreed to sell to the defendant a mare and foal, which were above the value of £10, and also to agist them and another mare and foal for £30. The statute was held to apply, but the court said that the plaintiff might recover the value of the agistment. In the Massachusetts case of Irvine v. Stone,® ^ however, in which a contract for the purchase of a cargo of the case of fixtures which are not incorporated with, but merely annexed to, the freehold, the rule is well settled that the statute does not apply." Strong V. Doyle, 110 Mass. 92, per Colt, J. But see Conner v. Coffin, 22 N. H. 538. 80 Kerr, Dig. Sales, p. 6 (t). «i See Kerr, Dig. Sales, § 7. 62 18 C. B. 587, 25 Law J. C. P. 257. See, also, Astey v. Emery, 4 Maule &. S. 262; Cobbold v. Caston, 1 Bing. 399, 8 Moore, 45G. 6 3 6 Cush. 508. See, also, McMullen v, Riley, 6 Gray, 500. SALES — 4 ■ 60 FORMATION OF THE CONTRACT. [Ch. 2 coal at Philadelphia at an agreed price per ton, and for the pay- ment of the freight, was held within the statute, the contract was held 111 so to be unenforceable as to the freight The leading case upon the rule that an entire contract for the sale of various articles, neither of which is of the statutory value, but whose value in gross exceeds it, is within the statute, is Baldey v. Pniker.®* In this case the defendant bought at the plaintiff's shop a number of articles, each at a separate price less than £10, the whole amount being £70, and the case was decided upon the ground that the transaction constituted one entire contract. The cases in this country are in harmony with Baldey v. Parker," and they even extend the rule to an auction, where the articles are struck off separately at distinct prices,^® though in England in such a case a distinct contract arises for each lof The rule that the statute applies, although it be not ascertained till after the date of the contract that the value exceeds the stat- utory amount, was involved in Watts v. Friend,®® where the sale was of a future crop of turnip seed at a guinea a bushel, and the value of the crop when produced exceeded £10. The point was not argued or mentioned by the court, but the decision has been fol- lowed in the United States.'* e* 2 Barn. & C. 37. 85 Gilman v. Hill, 36 N. H. 318; Gault v. Brown. 48 N, H. 183; Allard v. Greasert. 61 N. Y. 1. 8 8 Mills V. Hunt. 17 Wend. 333, 20 Wend. 431; Coffman v. Hampton, 2 Watts & S. 377; Tompkins v. Haas, 2 Pa. St. 74; Kerr v. Shrader, 1 Wkly. Notes Gas. 33; Jenness v. Wendell, 51 N. H. 63. But separate sales of real estate are distinct contracts. Van Eps v. Schenectady, 12 Johns. 436; Rob- inson V. Green, 3 Mete. (Mass.) 159; Wells v. Day, 124 Mass. 38. 67 Emmerson v. Heelis, 2 Taunt. 38. See, also, Rugg v. Mlnett, 11 East, 218, per Le Blanc, J.; Roots v. Dormer, 4 Barn. & Adol. 77; Couston v. Chap- man, L. R. 2 H. L. Sc. 250. 6 8 10 Barn. & C. 446. 6 9 Carpenter v. Galloway, 73 Ind. 418; Bowman v. Ck>nn, 8 Ind. 68; Brown T. Sanborn, 21 Minn. 402. Ch. 23 ACCEPTANCE AND KECEIPT. 61 ACCEPTANCE AND RECEIPT. 24. In order to satisfy the exception, in case "the buyer shall accept part of the goods so sold, and actually receive the same," there must be both acceptance and actual re- ceipt. 25. Acceptance may precede, be contemporaneous -with, or subsequent to, receipt, and both may be subsequent to the contract of sale. 26. A sample constitutes a "part of the goods," if it be considered by the parties as part of the bulk sold. Having considered the meaning of the words, "no contract for the sale of goods, wares, or merchandise for the price of £10 or up- wards," it remains to consider under what circumstances such con- tracts "shall be allowed to be good." The section provides that they shall not be allowed to be good, "except (1) the buyer shall accept part of the goods so sold, and actually receive the same; (2) or give something in earnest to bind the bargain, or in part pay- ment; (3) or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." ■" Acceptance and Receipt. Referring to the first exception, Lord Blackburn says: ^^ "If we seek for the meaning of the enactment, judging merely from its words, and without reference to decisions, it seems that this pro- vision is not complied with, unless the two things concur: The buyer must accept, and he must actually receive part of the goods, and the contract will not be good unless he does both; and this is to be borne in mind, for, as there may be an actual receipt without an acceptance, so there may be an acceptance without any receipt. In the absence of authority, and judging merely from the ordinary meaning of language, one would say that an acceptance of part of the goods is an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his property under the TO Benj. Sales, § 138 et seq. ii Blackb. Sales, 16. 62 FORMATION OF THE CONTRACT. [Cli. 2 contract, and as so far satisfying the contract So long aa the buver can, without self-contradiction, declare that the goods are not to be taken in fulfillment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reason- able or not. If he refuses the goods, assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted, them. The question of acceptance or not is a question as to what was the intention of the buyer, as signified by his outward acts. The receipt of part of the goods is the taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a re- ceipt is often evidence of acceptance, but it is not the same thing; indeed, the receipt by the buyer may be, and often is, for the ex- press purpose of seeing whether he will accept or not. If goods of a particular description are ordered to be sent by a carrier, the buyer must in every case receive the package to see whether it answers his order or not. It may even be reasonable to try part of the goods by using them; but, though this is a very actual receipt, it is no acceptance, so long as the buyer can consistently objet^t to the goods as not answering his order." It is to be observed that the two questions of acceptance and receipt are frequently confused in the cases, and it has sometimes been questioned whether any distinction existed between them.^^ It is clearly established, however, that they are distinct, and that both acceptance and receipt are essential.^ ^ Acceptance may pre- cede receipt,^* or receipt may precede acceptance,"* and both may be subsequent to the contract of sale.''* Their effect is to prove T2 Castle V. Sworder, 6 Hurl. & N. 832, 30 Law J. Exch. 310, per Crompton, J., and Cockburn, C. J. 73 Smith V. Hudson, 6 Best & S. 431, 34 Law J. Q. B. 145; Cusack v. Robin- son, 1 Best & S. 299, 30 Law J. Q. B. 201; Bill v. Bament, 9 Mees. & W. 3(J; Baldey v. Parker, 2 Barn. & C. 37; Saunders v. Topp, 4 Exch. 390; Caulkins V. Hellman. 47 N. Y. 449; Cooke v. Millard. 65 N. Y. 352. 367; Maxwell v. Brown, 39 Me. 98. 7 4 Post, p. 54. 7 6 Post, p. 55. 76 Gault V. Brown, 48 N. H. 183, 188; McKnight v. Dunlap, 5 N. Y. 537; Marsh v. Hyde, 3 Gray, 331; Bush v. Holmes, 53 Ale. 417; Field v. Runk, Ch. 2] ACCEPTANCE AND RECEIPT. 53 that there was a contract, the terms of which may then be proved by parol. ^'^ Acceptance and Receipt of Part — Sample. As the statute requires an acceptance and receipt simply of a part, it is immaterial how small such part is.''* Thus acceptance and re- ceipt of a sample is sufficient, provided it be considered by the par- ties as part of the bulk sold.^^ It is not sufficient if the sample be not so considered.*" So, also, acceptance and receipt of a part is sufiScient, though the rest of the goods are still unmade,*^ or though the contract embraces different kinds of goods, only one of which is accepted and received.** SAME— ACCEFTANCE. 27. Acceptance is an assent by the buyer that the goods are to be taken by him under and in performance of the contract of sale. Whether the buyer has accepted is a question of his intention, as evidenced by his words and acts. In England (but not in the United States) any deal- ing with the goods which recognizes a pre-existing con- tract of sale constitutes an acceptance. 28. If the contract be for the sale of specific goods, the acceptance takes place w^hen the contract is entered into, 22 N. J. Law, 525, 530; McCarthy v. Nash, 14 Minn. 127 (Gil. 95); Ricky v. Tenbroeck, 63 Mo. 563. Acceptance can have no effect after the seller has disaffirmed. Taylor v. Wakefield, 6 El. & Bl. 765. See Washington Ice Co. V. Webster, 62 Me. 341, 361; Brand v. Focht, *42 N. Y. 409. 7 7 Tonikinson v. Staight, 25 Law J. C. P. 85, 17 C. B. 697; Garfield v. Paris, 96 U. S. 557. 5G6. 7 8 Garfield v. Paris, 96 U. S. 557 (labels deliverable under a contract for liquors as part of the goods sold); Damon v. Osborn, 1 Pick. 476; Farmer v. Gray, 16 Neb. 401, 20 N. W. 276. 7 9 Hinde v. Whitehouse, 7 East, 558; Talver v. West, Holt, 178; Klinitz v. Surry, 5 Esp. 267; Gardner v. Grout, 2 C. B. (N. S.) 340; Brock v. Knower, 37 Hun, 609. 80 Cooper v. Elston, 7 Term R. 14; Simonds v. Fisher, cited in Gardner ▼. Grout, 2 C. B. (N. S.) 340; Moore v. Love, 57 Miss. 765. See Carver v. Lane, 4 E, D. Smith, 168. 81 Scott V. Eastern Counties Ry. Co., 12 Mees. & W. 33. •a Elliott V. Thomas. 3 Mees. & W. 170. 54 FORMATION OF THK CONTRACT. [Ch. 2 and is proved by the same evidence ■which proves the contract. 29. CONSTRUCTIVE ACCEPTANCE— If the goods have been received by the buyer, any dealing -with them by him as owner is evidence of acceptance. Lord Blackburn adds at the close of the passage quoted on a preceding page that "on the whole the cases are pretty consistent with these suggestions and with each other, as to what forms an acceptance within the statute, though not as to the strength of the proof required to establish it" *^ The American cases also are pretty consistent with this statement of the law, but in England, as will be seen, an artificial construction has since the passage was written been put upon "acceptance," which is quite inconsistent with the views there expressed. The nature of an acceptance can best be understood by a consideration of the circumstances under which it is held to take place. If the contract of sale is for specified goods, an acceptance nec- essarily takes place when the contract is entered into.** Thus in Cusack V. Robinson, ^° where the buyer was shown a lot of 15G firkins of butter and agreed to buy the lot, and the goods were for- warded to him, it was held that there was sufficient evidence to justify the jury in finding an acceptance. Blackburn, J., said: "There was sufficient evidence that the defendant had at Liverpool selected these specific 150 firkins of butter as those which he then agreed to take as his property as the goods sold, and that he di- rected those specific goods to be sent to London. This was cer- tainly evidence of an acceptance." In such cases the acceptance of course precedes the receipt If the goods are ready for deliv- 88 Blackb. Sales. 17. 84 Cusack V. Robinson, 1 Best & S. 299, 30 Law J. Q. B. 261; Bog Lead Min. Co. V. Montague, 10 C. B. (N. S.) 481, 489; Cross v. O'Dounell, 44 N. Y. 661; United States Reflector Co. v. Rush ton, 7 Daly, 410; Vietor v. Stroock (City CL N. Y.) 3 N. Y. Supp. 801; Id. (Com. PL N. Y.) 5 N. Y. Supp. 659. See, also. Ex parte Safford, 2 Low. 563, 565, Fed. Cas. No. 12,212; Knight V. Mann, 118 Mass. 143, 145; Hewes v. Jordan, 39 Md. 472, 484; Simpson v. Ki-umdick, 28 Minn. 352, 355, 10 N. W. 18; Langd. Cas. Sales, 1021. 88 1 Best & S. 299, 30 Law J. Q. B. 261. Ch. 2] ACCEPTANCE AND RECEIPT. 55 ery, an acceptance will readily be implied, for example, from mark- ing the goods with the name of the buyer by his consent,*' al- though such marking would not constitute an actual receipt; but, if the goods are not ready for delivery, an acceptance will not read- ily be implied.*^ If the contract of sale be for goods which are not specific when the contract is entered into, there can be no acceptance till the seller has indicated to the buyer what goods he proposes to deliver in performance of the contract,®* and it seems that the buyer is then entitled to a reasonable time to examine the goods before deciding whether to accept them,*® though he may doubtless waive his right of examination.®" After the goods have been received by the buyer, his acceptance may be proved by any dealing with 8 « Bill V, Bament, 9 Mees. & W. 36; Hodgson v. Le Bret, 1 Camp. 233; Proctor V. Jones, 2 Car. & P, 532, per Best, C. J.; Saunders v. Topp, 4 Exch. 390, per Alderson, B.; Benj. Sales, § 166, note y; Rappleye v. Adee, 1 Thomp. & C. 127. 87 Maberley v. Sheppard, 10 Blng. 99. 88 Langd. Cas. Sales, 1021. 89 Hunt V. Hecht, 8 Exch. 814; Nicholson v. Bower, 1 El. & El. 172; Smith V. Hudson, 6 Best & S. 431, 34 Law J. Q. B, 145, per Cockburn, C. J.; Langd. Cas. Sales, 1021. In Morton v. Tibbett, post, Lord Campbell says: "The acceptance is to be something which is to precede, or at any rate to be contemporaneous with, the actual receipt of the goods, and Is not to be a subsequent act after the goods have been actually received, weighed, meas- ured, or examined." This view may be required by the artificial construc- tion put on "acceptance" by Lord Campbell and the latest English decisions. But, where the term is construed in its natural sense, the right to examine before acceptance or rejection would seem to exist of necessity. See Kent V. Huskinson, 3 Bos. & P. 233. «o "It [acceptance] means some act done after the vendee has exercised, or had the means of exercising, his right of rejection." Himt v. Hecht, 8 Exch. 814, 22 Law J. Exch. 293, per Martin, B. "According to Lord Camp- bell [Morton v. Tibbett, cited post], there may be an acceptance and receipt of goods by a purchaser within the statute of frauds, although he has had no opportunity of examining them, and although he has done nothing to preclude himself from objecting that they do not correspond with the contract. I agree with that But in such case the party must have done something to waive his right to reject the goods." Per Bi-amwell, B., in Coombs v. Bristol & E. Ry. Co., 3 Hurl. & N. 510, 27 Law J. Exch. 401. Of course, the buyer may waive the right to examine. Currie v. Anderson, 2 El. & El. 592. 56 FORMATION OF THE CONTRACT. [Ch. 2 the goods on his part as owner,'* for example by a resale," and even by his retaining them for such time as to lead to the pre- sumption that he intended to keep them as owner.*' And a deal- ing with the goods, such as to constitute an acceptance, may take place as effectively with the bill of lading, which represents the goods, as with the goods themselves.'* An acceptance implied from the conduct of the buyer is called a constructive acceptance. Whether the acts or omissions of the buyer amount to a construct- ive acceptance is a question of fact for the jury, though the ques- tion is, of course, to be determined by the court, if the evidence is capable of only one construction.'" It is sometimes said that an acceptance must be established by some act of the buyer, and that mere words are not enough, but the cases in which such statements occur generally involve simply the proposition that mere words are not enough to constitute acceptance and receipt," and there is on principle no reason why the acceptance may not be evidenced by «i Beaumont v. Brengeri, 5 C. B. 301; Parker ▼. Wallls, 5 El. & Bl. 21; Garfield v. Paris, 96 U. S. 557, 563; Vincent v. Germond, 11 Johns. 282; Gray v. Davis, 10 N. Y. 285; Jones v. Reynolds, 120 N. Y. 213, 24 N. E. 279; Town- send V. Hargraves, 118 Mass. 325, 332; Ex parte Safiford, 2 Low. 563, Fed. Cas. No. 12,212; Barkalow v. Pfeiffer, 38 Ind. 214; Bacon v. Eccles, 43 Wis. 227, 238; Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472. 9 2 Chaplin v. Rogers, 1 East, 195; HUl v. McDonald, 17 Wis. 100; Phillips V. Ocmulgoe Mills, 55 Ga. 633; Marshall v. Ferguson, 23 Gal. 66. »s Bushel V. Wheeler, 15 Q. B. 442; Coleman v, Gibson, 1 Moody & R. 168; Currie v. Anderson, 2 El. & El. 592; Farina v. Home, 16 Mees. & W. 119; Borrowscale v. Bosworth, 99 Mass. 379; Spencer v. Hale, 30 Vt. 314; Downs V. Marsh, 29 Conn. 409; Gaff v. Homeyer, 59 Mo. 345; Hobbs v. Massasoit Whip Co.. 158 Mass. 194, 33 N. E. 495. 94 Currie v. Anderson, 2 El. & El. 592, 29 Law J. Q. B. 87; Meredith v. Meigh, 2 El. & Bl. 364, 22 Law J. Q. B. 401. See Quiutard v. Bacon, 99 Mass. 185; Rodgers v. Phillips, 40 N. Y. 519. 9 5 Edan v. Dudfield, 1 Q. B. 302, per Donman, C. J.; Bushel v. Wheeler, 15 Q. B. 442, per Coleman and Williams, JJ.; Garfield. v. Paris, 96 U. S. 557, 563; Hinchman v. Lincoln, 124 U. S. 38, 8 Sup. Ct. 369; Stone v. Browning. 68 N. Y. .598; Shepherd v. Pressey, 32 N. H. 49, 57. 9 6 Shindler v. Houston, 1 N. Y. 261; Bailey v. Ogden, 3 Johns. 421; Kel- logg v. Witherhead, 6 Thomp. & C. 525; Dole v. Stimpson, 21 Pick. 384; Ed- wards V. Grand Trunk Ry. Co., 54 Me. 105; Kirby v. Johnson, 22 Mo. 354; Northrup r. Cook, 39 Mo. 208; Clark v. Labreche, 63 N. H. 397. Ch. 2] ACCEPTANCE AND RECEIPT. 57 the buyer's declarations.®'' Tlie receipt of goods by a carrier or wharfinger appointed by the buyer does not constitute an accept- ance. These agents have authority to receive, but not to accept®* WJiether Acceptance must he in Performance of the Contract — In England. Beginning with the case of Morton v. Tibbett/' a different con- struction began in England to be placed on "acceptance," and it has become established that the acceptance need not be in perform- ance of the contract, but that any dealing with the goods which recognizes a pre-existing contract of sale constitutes an accept- ance.^°° In Morton v. Tibbett, the defendant had made a verbal agreement with the plaintiff for the purchase of 50 quarters of wheat according to sample, each quarter to be of a specified weight, and the wheat was received on the defendant's lighter for conveyance to its destination, where it duly arrived, but in the meantime the defendant resold it on the same understanding as to weight. The wheat on arrival was rejected by the second pur- chaser for short weight, and was thereupon rejected by the de- fendant on the same ground. It was held that the defendant had accepted, and Lord Campbell, after observing that it would be open to the buyer, after acceptance of a part, "to object at all events to the quantity and quality of the residue," announced: "We are of the opinion that * * * there may be an acceptance and receipt within the meaning of the act, without the buyer having examined the goods, or done anything to preclude him from contending that they do not correspond with the contract The acceptance to let in parol evidence of the contract appears to us to be a different •T Caulkins v. Hellman, 47 N. Y. 449; Shepherd v. Pressey. 32 N. H. 49, 58; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Galvin v. MacKenzie, 21 Or. 184, 27 Pac. 1039. See Stone v. Browning, 68 N. Y. 598. Acceptance Is evidence by mere words, where the contract is for specific goods, supra. 9 8 Hanson v. Armitage, 5 Barn. & Aid. 557; Norman v. Phillips, 14 Meea & W. 276; Hunt v. Hecht, 8 Exch. 814; Meredith v. Meigh, 2 El. & Bl. 370, 22 Law J. Q. B. 401, overniling Hart v. Sattley, 3 Camp. 528; Allerd v. Greasert, 61 N. Y. 1, 5; Jones v. Mechanics' Bank, 29 Md. 287; Johnson v. Cuttle, 105 Mass. 447; Keiwert v. Meyer, 62 Ind. 587; Grimes v. Van Vechten, 20 Mich. 410; Billin v. Henkel, 9 Colo. 394, 13 Pac. 420; Fontaine v. Bush, 40 Minn. 141, 41 N. W. 465; Spencer v. Hale, 30 Vt 814, contra. »» 15 Q. B. 428. 19 Law J. Q. B. 382. 100 Chalm. Sale, 121; KeiT, Dig. Sales, § 10. 58 FORMATION OF THE CONTRACT. [Ch. 2 acceptance from that which affords exclusive evidence of the con- tract having been fulfilled. We are therefore of the opinion in this case that, although the defendant had done nothing which would have precluded him from objecting that the wheat delivered was not according to the contract, there was evidence to justify the jury in finding that the defendant accepted and received it." It would seem that the resale before examination was such an act of ownership as was inconsistent with the continuance of the right of property in the seller, that the defendant had thereby waived his right to reject the wheat, and that his conduct was sufficient evidence of an acceptance.^"^ But the construction announced by Lord Campbell, that acceptance does not preclude rejection, has, after some dissent,^"^ prevailed, and was adopted by the court of appeals in the recent case of Page v. Morgan,^ °^ in which the natu- ral meaning of "accept" is entirely abandoned. There the buyer ex- amined the goods simply to see if they agreed with the sample, and rejected them as not equal to sample, and it was held that this constituted an acceptance. Brett, M. R., in giving judgment, said: "All that is necessary is an acceptance which could not have been made except upon admission that there was a contract, and the goods were sent to fulfill that contract." "I rely * * * on the fact that the defendant examined the goods to see if they agreed with the sample. I do not see how it is possible to come to any other conclusion with regard to that fact than that it was a dealing with the goods, involving an admission that there was a contract" 101 BenJ. Sales, § 150. 102 Hunt V. Hecht, 8 Exch. 814, 22 Law J. Exch. 29,3; Coombs v. Bristol & E. Ry. Co., 3 Hurl. & N. 510, 27 Law J. Exch. 401. See, also. Smith v. Hudson, 6 Best & S. 431, 34 Law J. Q. B. 145; Castle v. Sworder, 6 Hurl. & N. 832, 30 Law J. Exch. 310. per Cockbnrn. C. J. 108 15 Q. B. Div. 228. See, also, Cusack v. Robinson, 1 Best & S. 299, 30 Law J. Q. B. 2G1, per Blackburn, J.; Currie v. Anderson, 2 El. & El. 592, 29 Law J. Q. B. 87, per Crompton, J.; Kibble v. Gough, 38 Law T, (N. S.) 204; Rickard v. Moore, Id. 841. But where the buyer inspected the goods at the carrier's wharf on arrival, and wrote across the note of advice, "Re- fused, not according to representation," and 10 days later notified his re- fusal to the seller, it was held no acceptance, and Page v. Morgan, 15 Q. B. DIv. 228, was distinguished. Taylor v. Smith [1893] 2 Q. B. 65. Ch. 2] ACCEPTANCE AND RECEIPT. 59 Same — In the United States. In the United States, however, the later artificial construction of the English couits has never been adopted, and it is clearly estab- lished, in accordance with the statement of the law made by Lord Blackburn,^"* and with the earlier English cases,""* that the ac- ceptance must be in performance of the conti'act; that is, "there must be an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his property under the contract, and as so far satisfying the contract." ^°^ As was observed in Phil lips V. Bistolli,"^ in a passage frequently quoted in the American cases: "There must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with an intention of taking to the possession as owner." And in the leading case of Oaulkins v. Hellman, Rapallo, J., said: "Some act or conduct on the part of the vendee, or his authorized agent, manifesting an inten- tion to accept the goods as a performance of the contract, and to ap- propriate them, is required." "^ This view is not inconsistent with the statement of Lord Campbell in Morton v. Tibbett that it would be open to the buyer, after acceptance of a part, to object to the quantity or quality of the residue, — a principle which is fully rec- ognized by the American cases."" It is enough if the part re- 104 Ante, p. 51. 10 8 Howe V. Palmer, 3 Barn. & Aid. 321; Hanson v. Armltage, 5 Barn. & Aid. 557; Phillips v. Bistolli, 2 Barn. & C. 511; Smith v. Surnam, 9 Barn. & C. 561; Acebal v. Levy, 10 Bing. 376; Norman v. Phillips, 14 Mees. & W. 277. 106 Caulkins v. Hellman, 47 N. Y. 449; Stone v. Browning, 51 N. Y. 211, 68 N. Y. 598; Cooke v. Millard, 65 N. Y. 352, 370; Knight v. Mann, 118 Mass. 143, 120 Mass. 219; Meehan v. Sharp, 151 Mass. 564, 24 N. E. 907; Shep- herd V. Pressey, 32 N. H. 49; Gorham v. Fisher, 30 Vt. 428; Smith v. Fisher, 59 Vt. 53, 7 Atl. 816; Hewes v. Jordan, 39 Md. 472; Bacon v. Eccles, 43 Wis. 227; Scotten v. Sutter, 37 Mich. 526; Simpson v. Krumdlck, 28 Minn. 352, 354, 10 N. W. 18; Jamison v. Simon, 68 Cal. 17, 8 Pac. 502: Garfield v. Paris, 96 U. S. 567; Meyer v. Thompson, 16 Or. 194, 18 Pac. 16; Schmidt v. Thomas, 75 Wis. 529. 44 N. W. 771. 107 2 Barn, & C. 511. 108 47 N, Y. 449. 109 Garfield v. Paris, 96 U. S. 557, 562; Hewes v. Jordan, 39 Md. 472, 483. In Remick v. Sandford, 120 Mass. 309, 316, it is said by Devens, J., that "if 60 FOiniATION OF THE CONTRACT. [Ch. 2 ceived is accepted as a partial fulfillment of the contract It must, however, distinctly appear that the goods were accepted under the <;ontract^^° This was strongly illustrated in Atherton v. New- hall,^ ^^ where a small part of the goods was delivered by an ex- pressman, and the buyer, having learned that the rest of the goods had been destroyed by fire, at once notified the seller that he would pay only for the part received. It was held that there was no acce[)tance. Gray, C. J., said: "The acceptance by the buyer of the part brought by the expressman was not a sufScient accept- ance to take the sale of the whole out of the statute, because it appears that it was not with the intention to perform the whole contract, and to assert the buyer's ownership under it, but, on the contrary, that he immediately informed the seller's clerk that he would be responsible only for the part received.'* SAME— ACTUAL RECEIPT. 30. Actual receipt is the taking possession of the goods by the buyer with the seller's consent. It implies such a transfer of possession as to divest the seller's lien, and may be effected: (a) By the actual delivery of the goods by the seller to the buyer or to his agent ; or (b) By agreement. 31. BY AGREEMENT— An actual receipt takes place by agreement: (a) When the goods are in the actual possession of the seller, if he becomes bailee of the goods for the buyer. the buyer accepts the goods as those which he purchased he may afterward* reject them if they are not what they were warranted to be, but the statute is satisfied." This, however, must rest on the rule peculiar to Massachusetts, and some other states, that the buyer may avoid the sale for breach of war- ranty. See post, p. 244. 110 Davis V. Eastman, 1 Allen, 422; Townsend v. Hargraves, 118 Mass. 325; Atherton v. Ncwhall, 123 Mass. 141; Van Woert v. Albany & S. R. Co., €7 N. Y. 538; Matthiessen & W. Refining Co. v. McMahon, 38 N. J. Law, 538. 111 123 Mass. 141. Ch. 2] ACCEPTANCE AND RECEIPT. 61 (b) When the goods are in the custody of a third person as bailee of the seller, if such third person, "with the consent of the seller, be- comes bailee of the buyer, (c) When the goods are in the custody of the buy- er, as bailee of the seller, if with the consent of the seller he ceases to hold them as bailee, and holds them as o^wner. Where acceptance is shown, a very liberal construction is placed on actual receipt.^^^ The simplest way in which a transfer of pos- session may be effected is by the removal of the goods by the buyer or his agent.^^^ Receipt, however, implies delivery,^^* and the receipt must be with the seller's consent, and with the intention on his part of transferring possession to the buyer as owner. The test for determining whether there has been such a transfer of possession is whether the seller has parted with his lien.^^"^ If the goods are to be forwarded to the buyer, the time when the possession is trans- ferred depends on the character of the person by whom the goods are carried. If they are carried by the seller's servant or agent, there Is, of course, no transfer of possession so long as they remain in his hands,^^® If they are forwarded by a carrier designated by the buyer, an actual receipt takes place when they are delivered to him for carriage.^ ^^ And, where goods are forwarded by a common car- 112 Chalm. Sale, 121. 11 « Blackb. Sales, 25; Benj. Sales, § 180; Rodgers v. Jones, 129 Mass. 420, 422. 11* Saunders v. Topp, 4 Exch. 390, per Parke, B. iisPtiillips V. BistoUi, 2 Barn. & C. 511; Baldey v. Parker, Id. 37, perHolroyd, J.; Bill V. Bament, 9 Mees. & W. 37; Cusack v. Robinson, 30 Law J. Q. B. 264, 1 Best. & S. 299; Castle v. Sworder, 29 Law J. Exch. 235, 30 Law J. Exch. 310, 6 Hurl. & N. 832; Safford v. McDonough, 120 Mass. 290; Rodgers V. Jones, 129 Mass. 420; Ex parte Safford, 2 Low. 5G3, Fed. Cas. No. 12,- 212; Green v, Merriam, 28 Vt. 801; Marsh v. Rouse, 44 N. Y. 643; Stone v. Browning, 51 N. Y. 211; Maxwell v. Brown, 39 Me. 98, 103; Gardet v. Bel- knap, 1 Cal. 399; Hinchman v, Lincoln, 124 U. S, 38, 8 Sup. Ct. 369; post, p. 210. lie Grey v. Gary, 9 Daly, 363; Agnew v. Dumas, 64 Vt. 147, 23 Atl. 634. iiT Bullock V. Tschergi, 4 McCrary, 184, 13 Fed. 345; Cross v. O'Donuell, 44 N Y. GCl; Wilcox Silver Plate Co. v. Green, 72 N. Y, 17. See, also, cases cited ante, p. 57, note 98, and post, p. 195. 62 FORMATION OF THE CONTRACT. [Ch, 2 rier, the carrier is, in the absence of special agreement, regarded as the agent of the buyer, and the result is the same as if the carrier were specially designated by him.^^* The seller may, however, preserve his lien by reserving to himself the jus disponendi, as by taking from the carrier a bill of lading to his own order, and in such a case delivery to the carrier does not constitute an actual receipt.^^® Actual Receipt by Agreement. The possession of the goods may, however, be transferred and an actual receipt take place, by agreement, without the physical de livery of the goods. Same — Wlien Goods are in Possession of Seller. If the goods are in the possession of the seller at the time of the contract, an actual receipt takes place if the parties agree that the seller shall cease to hold as owner, and shall assume the character of bailee or agent of the buyer in respect to the custody of the goods, the possession of the seller being by the agreement converted into the possession of the buyer/^° A leading case on this point is Elmore v. Stone,^" where the buyer of horses left them with the seller at livery. It was held that as soon as the seller consented to keep them at livery his possession was changed, and that from that time he held, not as owner, but as any other liveryman might do. But an agreement to hold in this changed character will not readily be presumed, and it must distinctly appear that the seller has consented to abandon his lien.^^^ Some cases even hold that a mere agreement that the seller shall hold as bailee is not enough, 118 Post, p. 195. 119 Post, p. 104. 120 Elmore v. Stone, 1 Taunt. 458; Beaumont r. Brengeri, 5 C. B. 301; Marvin v. Wallis, 6 El. & Bl. 726, 25 Law J. Q. B. 369; Castle v. Sworder, 29 Law J. Exch. 235, 30 Law J. Exch. 310, 6 Hurl. «& N. 832; Cusack v. Rob- inson, 1 Best & S. 299, per Blackburn, J.; Green v. Merriam, 28 Vt. 801; Means v. Williamson, 37 Me. 556; Ex parte Safford, 2 Low. 563, Fed. Cas. No. 12,212; Janvrin v. Maxwell, 23 Wis. 51; Rodgers v. Jones, 129 Mass. 420, 422; Safford v. McDouough, 120 Mass. 290, 291; Webster v. Anderson, 42 Mich. 554, 4 N. W. 288. Post, p. 180. 121 1 Taunt 458. 122 Tempest v, Fitzgerald, 3 Barn. & Aid. 680; Carter v. Toussaint, 5 Barn. & Aid. 855; Holmes v. Hoskins. 9 Exch. 753. See Blackb. Sales, 26; post, p. 210. Ch. 2] ACCEPTANCE AND RECEIPT. 63 and that some act Is necessary to establish the changed character of the ownership; ^^^ but on principle it would seem that the only question is whether the agreement is distinctly established.^^* Same — When Goods are in Possession of Third Person. If the goods at the time of the contract are in the custody of a third person as bailee, an actual receipt takes place when the buyer, the seller, and the bailee agree that the latter shall cease to hold for the seller, and shall hold for the buyer, or, as is sometimes said, when the bailee, with the seller's consent, attorns to the buyer.^^'* The possession of the agent being, in contemplation of law, the possession of the principal, a transfer of possession is thus effected by simply constituting the custodian the agent of the buyer. The consent of all parties is, of course, essential, and therefore an order from the seller to a warehouseman, wharfinger, carrier, or other bailee to deliver the goods to the buyer will be inoperative to transfer the possession, unless the bailee attorns.^** 128 Matthiessen & W. Refining Co. v, McMahon, 38 N. J. Law, 536; Kirby V. Johnson, 22 Mo. 354; Bowers v. Anderson, 49 Ga. 143; Malone v. Plato, 22 Cal. 103. It is said in Shindler v. Houston, 1 N. Y. 261, and some otlier cases (ante, p. 56), that mere words cannot constitute acceptance and receipt, and that superadded to the language of the contract there must be some acts of the parties amounting to a change of possession. See, also, Bailey v. Ogden, 3 Johns. 399; Ely v. Ormsby, 12 Barb. 570; Hallenbeck v. Cochran, 20 Hun, 416. In those cases there was nothing to show a change of posses- sion from that of owner to that of bailee. But in Rappleye v. Adee, 65 Barb. 589, where the sheep sold were separated from the rest of the seller's flock, the buyer's mark put upon them, and the parties agreed to let them run with the seller's sheep for a few days, it was held that the evidence warranted the jury in finding delivery and acceptance, and that the rule of Shindler v. Houston was properly applied. See, also, Wylie v. Kelly, 41 Barb. 594. 124 Benj. Sales, § 182. 125 Bentall v. Bum, 3 Barn. & C. 423; Farina v. Home, 16 Mees. & W. 119; Simmonds v. Humble, 13 C. B. (N. S.) 258; Townsend v. Hargraves, 118 Mass. 325, 332; Bassett v. Camp, 54 Vt. 232; post, p. 210. 126 Cases cited in note 125, supra. But where the goods were in a United States bonded warehouse, and the duties were unpaid, it was held that an at- tornment by the warehouseman could have no effect to change the posses- sion, since the goods were in possession of the United States, and the ware- houseman was not the bailee of the seller. In re Clifford, 2 Sawy. 428, Fed, Cas. No. 2,89a. 64 FORMATION OF THE CONTRACT. [Ch. 2 If, however, the goods are on the premises of a third person, who is not bailee, as timber hing at the disposal of the seller on land of a person from whom he bought it, or at a public wharf, it seems that possession may be transferred by the mere agreement of the buyer and seller.^'^ Same — When Goods are in Possession of Buyer. If the goods, at the time of the contract, are already in the posses- sion of the buyer, an actual receipt takes place when the parties agree that the latter shall cease to hold them as bailee, and shall hold them as owner.^^* Thus, in Lillywhite v. Devereux,^'® it is said that if the buyer, under such circumstances, deals with the goods in a manner inconsistent with the supposition that his former possession remains unchanged, he may be said to have ac- cepted and actually received them; the court apparently taking the view that the consent of the seller to the transfer of possession was given by entering into the contract, and that the same acts on the part of the seller which were evidence of an acceptance were also evidence that he had begun to hold in the character of owner. EARNEST OR PART PAYMENT. 32. Earnest is something of value, not forming part of the price given, and received to mark the final assent of the parties to the bargain. 33. Part payment may be made at or subsequently to the time of the contract of sale, either in money or any- 12T Tansley v. Turner, 2 Bing. N. C. 151; Cooper v. Bill, 3 Hurl. & C. 722; Marshall v. Green, 1 C. P. Diy. 35, per Grove, J.; Leonard v. Davis, 1 Black, 47(); Thompson v. Baltimore & O. R. Co., 28 Md. 3'JG; Bre\YSter v. Leith, 1 Minn. 5() (Gil. 40); Langd. Cas. Sales, 1023; Benj. Sales, S 178. So of logs floating in the river. Post, p. 180. 12 8 Edan v. Dudfield, 1 Q. B. 306; Lillywhite v. Devereux, 15 Mees. & W. 285; Snider v. Thrall, 56 Wis. 674, 14 N. W. 814; Langd. Cas. Sales, 1023; Benj. Sales, § 173; Cf. Markham v. Jaudon, 41 N. Y. 235, 242; Brown v. War- ren, 43 N. H. 430; Dorsey v. Pike, 50 Hun, 534, 3 N. Y. Supp. 730. Post, p. 210. 129 15 Mees. & W. 285, Ch. 2] EARNEST OR PART PAYMENT. 65 thing of value, or by the actual extinguishment of an ex- isting indebtedness by means of an agreement independent of the contract of sale. Earnest. The giving of earnest was formerly a prevalent custom in Eng- land, but it has fallen so much into disuse that the provision in respect to it is of little practical importance. Earnest may be money or some gift or token given ^'° by the buyer to the seller to mark the final assent of both to the bargain.^ '^ It follows that earnest and part payment are distinct.^ ^* In a Massachusetts case/^' how- ever, it was said that earnest is regarded as part payment of the price, — a dictum which was hardly necessary to support the de- cision that money deposited with a third person by the parties, to be paid to either as a forfeiture if the other should neglect to fulfil his part of the contract, was not given in earnest. The thing must have some value, and on this ground a note given by the buyer for the price, and void for want of consideration, could not be re« garded as given in earnest.^'* Part Payment. The part payment, like the acceptance and receipt, may be sub- sequent to the contract of sale,^^" unless, as in some states, the stat- ute expressly provides that it must be at the time of the contract^'* The payment must, of course, be accepted.^^^ 180 Where the buyer drew a shilling across the seller's hand, which was called "striking a bargain," but kept the coin, the statute was not satlsfled. Blenkinsop v. Clayton, 7 Taunt. 597. 131 Brae. 1, 2, c. 27. 132 Benj. Sales, § 189; Kerr, Dig. Sale, § 16; Howe v. Smith, 27 Ch. Div. 89, 101, per Fry, L. J. 188 Howe y. Hay ward, 108 Mass. 54. See, also, Noakes v. Morey, 30 Ind. 103. 134 Krohn v. Bantz, 68 Ind. 277. 13 6 Walker v. Nussey, 16 Mees. & W. 302, per Parke, B.; Thompson ▼. Alger, 12 Mete. (Mass.) 428, 435; Marsh v. Hyde, 3 Gray, 331. 18 6 Hunter v. Wetsell, 57 N. Y. 375, 84 N. Y. 549; Jackson v. Tupper, 101 N. Y. 515, 5 N. B. 65; Bates v. Cheesbro, 32 Wis. 594; Kerkhof v. Atlas Pa- per Co., 68 Wis. 674, 32 N. W. 766. 187 Edgerton v. Hodge, 41 Vt. 67U. SALES— 5 66 FORMATION OF THE CONTRACT. [Ch. 2 Payment need not be in money, but may be by means of any- thing of value wliicli by mutual agreement is given by the buyer, and accepted by the seller, on account or in part satisfaction of the price.^^' Thus it would seem that the transfer of a bill or note would suffice; ^^® and, under the New York statute requiring pay- ment at the time, the delivery of a check has been held sufficient.^*" But the delivery of the buyer's note does not operate as payment^** Nor does a mere agreement, forming part of the contract of sale, to set off a debt due to the buyer constitute payment.^** Such an agreement, to be effective, must be by independent contract,^*^ and many cases even hold that mere words are not sufficient, and that some act, such as the surrender or cancellation of the evidence of the indebtedness, or a receipt, is requisite.^** But, on principle, any independent verbal agreement, whereby the indebtedness is ex- tinguished, would seem to be sufficient.^*' THE NOTE OR MEMORANDUM. 34. The note or memorandum must state: (a) The names or descriptions of the parties in their respective capacities as seller and buyer. !«• White V. Drew, 56 How. Pr. 53. Surrender of note of seller held by buyer. Sharp v. Carroll, 66 Wis. 62, 27 N. W. 832; Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24; Benj. Sales, § 194. 18 9 Chamberlyn v. Delaiive, 2 Wils. 353; Kearslake v. Morgan, 5 Term R. 513; Griffiths v. Owen, 13 Mees. & W. 58. 140 Hunter v. Wetsell, 84 N. Y. 549. 1*1 Krohn v. Bantz, 68 Ind. 277; Combs v. Bateman, 10 Barb. 573; Hooker V. Knab, 26 Wis. 511. 142 Walker v. Nussey, 16 Mees. & W. 302; Artcher v. Zeh, 5 Hill, 200; Mattice v. Allen, *42 N. Y. 493; Pitney v. Glen's Falls Ins. Co., 65 N. Y. 6; Matthiessen & W. Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536. 148 Walker v. Nussey, 16 Mees. & W. 302, per Parke, B.; Norwegian Plow Co. V. Hanthom, 71 Wis. 529, 37 N. W. 825. 144 See Artcher v. Zeh, Mattice v. Allen, Pitney y. Glen's Falls Ins. Co., Matthiessen & W. Refining Co. v. McMahon's Adm'r, cited in note 142. 145 Dow V. Worthen, 37 Vt. 108. An agreement that the buyer shall pay a debt due by the seller to a third person assented to by the latter. Cotterill T. Stevens, 10 Wis. 366; Langd. Cas. Sales. 1037. Ch. 2] THE NOTE OR MEMORANDUM. 67 (b) The price, if agreed on. (c) The goods sold. (d) Any other material terms of the contract, ex- cept that it need not state the consideration of the promise of the party to be charged. 35. The note or memorandum may be made at any time before action brought, and may be -written on sepa- rate papers, provided they are all signed by the party to be charged or his agent, or that such as are not so signed are attached to or referred to in a signed paper. 36. The note or memorandum need not be delivered to the party seeking to enforce the contract; it is sufficient if it admits the contract. Difference between Contract in Writing and Note or Memorandum. At common law, the parties to a contract may reduce it to writ- ing, or may agree upon some existing writing as containing the terms of contract, and when they do so they are bound by the terms of the written contract, and are not allowed to offer proof of different or additional terms. The same rule applies to a writ- ing which they agree upon as containing part of the terms of the contract; for example, the specifications of an article to be manu- factured. In all such cases the contract, so far as it is reduced to writing, cannot, in general, be proved by any other means than by the writing. This result takes place, of course, only when the writing is by the consent of both parties agreed upon as containing their contract, in whole or in part.^*® The statute of frauds leaves the common-law rule in respect to contracts in writing as it was before. If the contract be in writing, the writing must be proved as containing the only legal evidence of the terms of the contract, even though the statute has been satisfied by acceptance and receipt, or by earnest or part payment, and although, for lack of the signature of the party to be charged, the writing would not be sufficient as a statutory note or memorandum.^*^ The note or memorandum differs from a contract in writing, in that under the 14 6 Black b. Sales, 40-42; BenJ. Sales, §§ 201-206. 1*7 Slevewright v. Archibald, 17 Q. B. 103, per Brie, J. 68 FORMATION OF THE CONTRACT. [Ch. 2 statute any writing which contains the terms of the contract is sufficient, if it be signed by the party to be charged. A contract in writing, indeed, if signed by the party to be charged, will satisfy the statute, but a mere admission in writing of an antecedent oral contract is sufficient^*® In other words, the statute may be satis- fied in writing in two ways: By putting the contract in writing, or by furnishing evidence in writing of an oral contract.^** A mere note or memorandum, however, unlike a contract in writing, need not be introduced in evidence at all, if the contract can be brought within the first or second exceptions, though in such a case it may still be introduced as an admission of the terms of the contract, of which it would be strong, though not conclusive, evi- dence.^'" Note or Memorandum in the Nature of an Admission. The note or memorandum is in the nature of an admission of the contract by the party to be charged. Thus it may be in the form of a letter, and it is immaterial to whom the letter is addressed, — whether to a third person ^'^^ or to the writer's own agent"' The memorandum is sufficient though never delivered;^*' for example, if it be in the form of a resolution of a corporation sought to be charged."* It is even sufficient if it is in the form of a letter re- pudiating,""^ but not denying, the existence of the contract"* It i*« Slevewright v. Archibald, 17 Q. B. 103, per Patteson, J.; Saunderson V. Jackson, 2 Bos. & P. 238, per Lord Eldon; Parton v. Crofts, 33 Law J. 0. P. 189, per Erie, C. J.; Bailey v. Sweeting, 9 C. B. (N. S.) 843, 30 Law J. C. P. 150; Lerned v. Wannemacher, 9 Allen, 412, 416; Townsend v. Hargraves, 118 Mass. 325, 334; Bird v. Munroe, 66 Me. 337. i*» Langd. Cas. Sales, 1032. 180 Blaclib. Sales, 42. 181 Peabody v. Speyers, 56 N. Y. 230; Moore v. Mountcastle, 61 Mo. 424. 152 Gibson v. Holland, L. R. 1 C. P. 1, 35 Law J. C. P. 5; Kleeman v. Col- lins, 9 Bush, 460, 467; Lee v. Cherry, 85 Tenn. 707, 4 S. W. 835. 153 Drury v. Young, 58 Md. 546. 184 Johnson v. Trinity Church, 11 Allen, 123; Tufts v. Plymouth Gold Min. Co., 14 Allen, 407; Argus Co. v. Mayor, etc., of Albany, 55 N. Y. 495. 188 Bailey v. Sweeting, 9 C. B. (N. S.) 843, 30 Law J. O. P. 150; Wilkinson V. Evans, L. R. 1 C. P., at page 411; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140; Louisville Asphalt Varnish Co. v. Lorick, 29 S. 0. 533, 8 S. B. 8; Drury v. Young, 58 Md. 546. iBe Bacon v. Eccles, 43 Wis. 227. Ch. 2] THE NOTE OR MEMORANDUM. 69 is enough if the memorandum be in existence at the time the action is brought.^'*' But the memorandum cannot be regarded as being nothing more than evidence of the contract, since it is held that its existence is a condition precedent to the right of action.^"^ What the Note or Memorandum must Contain — Names of Parties. The statute itself expressly provides that the name of the party to be charged must be signed, and it has been settled by the deci- sions that the name or description of the other party must appear, since it takes two to make a bargain, and otherwise no contract is shown. The memorandum must not only contain the names or descriptions of the buyer ^^® and of the seller,^^° but must show which is buyer and which is seller.^*^ A description of the par- ties, however, instead of their names, is sufiBcient, and parol evi- dence is admissible to identify the persons described,^'^ Thus, when an agent signs his name without mentioning a principal, the other party may show that the contract was really made with the principal, who has chosen to describe himself by the name of his 167 See cases cited in next note. 168 Bill V. Bament, 9 Mees. & W. 36. See, also, Gibson v. Holland. L. R. 1 C. P. 1, 35 Law J. C. P. 5, per Willes, J.; Lucas v. Dixon, 22 Q. B. Div. 857; Bird V. Munroe, 66 Me. 337; Phillips v. Ocmulgee Mills, 55 Ga. 633. 159 Champion v. Plnmmer, 1 Bos. & P. (N. R.) 252. See, also. Sanborn v. Flagler, 9 Allen, 474, 476; Williams v. Robinson, 73 Me. 186; McConnell V. Brillhart, 17 111. 354; Mayer y. Adrian, 77 N. C. 83; Harvey v. Stevens, 43 Vt. 657. 160 Klinitz v. Surry, 5 Esp. 267; Vandenbergh v, Spooner, L. R. 1 Exch. 316, 35 Law J. Exch. 201; Grafton v. Cummings, 99 U. S. 100; Sherburne v. Shaw, 1 N. H. 157; McElroy v. Seery, 61 Md. 389; Mentz v. New witter, 122 N. Y. 491, 25 N. E. 1044. 161 Vandenbergh v. Spooner, L, R. 1 Exch. 316, 35 Law J. Exch, 201; Bailey V. Ogden, 3 Johns. 399; Calkins v. Falk, 1 Abb. Dec. 291; Nichols v. Johnson, 10 Conn. 192; Sanborn v. Flagler, 9 Allen, 474, 477. The requirement that the writing should show which is seller and which buyer has been relaxed in some cases, where parol evidence — for example, proof of the occupation of the parties— has been admitted to raise an inference on this point. Newell V. Radford, L. R. 3 C. P. 52, 37 Law J. C. P. 1; Salmon Falls Manuf'g Co. v, Goddard, 14 How. 446. But see dissenting opinion of Curtis, J., in the lat- ter case, and Grafton v. Cummings, 99 U. S. 100, 111. 162 Commins v. Scott, L. R. 20 Eq. 11; Catling v. King, 5 Ch. Div. 660; Bibb V. Allen, 149 U. S. 481, 13 Sup. Ct 950; Jones v. Dow, 142 Mass. 130, 7 N. E. 839. 70 FORMATION OF THE CONTRACT. [Ch. 2 agent, just as it would be admissible to show his identity if he had used a feigned name.^®* But the converse of the proposition does not hold true, and an agent so contracting cannot show by parol that he did not intend to bind himself, since this would be to con- tradict the memorandum."* Same — Pnce. The fourth section of the statute requires that "the agreement on which such action shall be brought, or some memorandum or note thereof, shall be in writing," while the seventeenth section simply requires that "some note or memorandum in writing of the said bargain be made." A fine distinction has been drawn in some cases between "agreement" and "bargain," the cases which maintain the distinction holding that "agreement" includes all the 'stipulations of the contract, and that, since the promise of one party is the consideration for the promise of the other, the memo- randum must contain both promises.""* But it is held, even by the courts which hold that a memorandum under the fourth sec- tion must state the consideration, that under the seventeenth sec- tion it is enough if the memorandum contain the promise or under- taking of the party to be charged, and that it need make no ex- press reference to the promise of the other party."' And this rule is applied even where the memorandum is in the form of a mere offer, the acceptance of which is verbal,"^ though it is dififi- 168 Trueman v. Loder, 11 Adol. & E. 589; Dykers v. Townsend, 24 N. Y. 57; Sanborn v. Flagler, 9 Allen, 474, 477; Gowen v. Klous, 101 Mass. 449; Briggs V. Munchon, 56 Mo. 467. 164 Higgins V. Senior, 8 Mees. & W. 834. See, also, Nash v. Towne, 5 Wall. 689; Chandler v. Coe, 54 N. H. 561; Coleman v. First Nat. Bank, 53 N. Y. 388. 168 The leading case holding that under the fourth section the memorandum must state the consideration is Wain v. Warlters, 5 East, 10, 2 Smith, Lead. Cas. (8th Ed.) 251, Many states have refused to follow it. See Packard v. Richardson, 17 Mass. 122. the leading case against the rule there decided. Benj. Sales (Corbin's 6th Am. Ed.) § 232, and note; Id. § 248. 166 Egerton v. Mathews, 6 East, 307; Sari v. Bourdillon, 1 C. B. (N. S.) 188; Smith v. Ide, 3 Vt 290; Williams v. Robinson, 73 Me. 186; Kerr, Dig. Sale, § 18; Langd. Cas. Sales, 1032. In some states there is an express pro- vision either that the consideration must, or that It need not, be stated. See Browne, St. Frauds, §§ 376, 377. 167 Warner v. Williugton, 3 Drew, 523, 25 Law J, Ch. 662; Reuss v. Picks- Ch. 2] THE NOTE OR MEMORANDUM. 71 cult to comprehend how a writing can be called a "memorandum" of a bargain when the bargain was not yet made at the time the writing was signed.^^^ But the price constitutes a material part of the bargain, and must be stated; ^^^ though if the price be not agreed upon, but is implied, a memorandum which states no price is suflBcient.^^** Same — Subject- Matter and Other Terms. The memorandum must designate the goods sold,*^^ and all the other terms and conditions of the contract, so far as to enable the court to ascertain what they were.^" But parol evidence is ad- missible, as in the case of other writings, to identify the subject- ley, L. R. 1 Exch. 342, 35 Law J. Exch. 218; Sanborn v. Flagler, 9 Allen, 474; Justice V. Lang, 42 N. Y. 493; Farwell v. Lowther, 18 111. 252; Gradle v. Warner, 140 111. 123, 29 N. E. 1118. 18 8 See Watts v. Ainsworth, 1 Hurl. & C. 83, 31 Law J. Exch. 448. per Bramwell, B.; Banks v. Chas. P. Harris Manuf g Co., 20 Fed. 667. 169 Elmore v. Kingscote, 5 Bam. & C. 583; Acebal v. Levy, 10 Bing. 376; Goodman v. Griffiths, 1 Hurl. & N. 574, 26 Law J. Exch. 145; Ide v. Stanton, 15 Vt. 685; Ashcroft v. Butterworth, 136 Mass. 511; James v. Muir, 33 Mich. 223; Stone v. Browning, 68 N. Y. 598; Phelps v. Stillings, 60 N. H. 505; Hanson v. Marsh, 40 Minn. 1, 40 N. W. 841. Contra, O'Neil v. Grain, 67 Mo. 250. If the price Is to be determined in a manner agreed upon, a mem- orandum stating the agreement on this point is sufficient. Atwood v. Cobb, 16 Pick. 227; Argus Co, v. Mayor, etc., of Albany, 55 N. Y. 495; Norton v. Gale, 95 111. 533. 170 Hoadly v. M'Laine, 10 Bing. 482; Ashcroft v. Morrin, 4 Man. & G. 450; Benj. Sales, § 249. 171 Thornton v. Kempster, 5 Taunt. 786; Waterman v. Meigs, 4 Gush. 497; May V. Ward, 134 Mass. 127; Johnson v. Delbridge, 35 Mich. 436. 1T2 McLean v. Nicoll, 7 Jur. (N. S.) 999; Pitts v. Beckett, 13 Mees. & W. 743; Archer v. Baynes, 5 Exch. 625; Coddington v. Goddard, 16 Gray, 436, 442; Riley v. Farnsworth, 116 Mass. 223 (a memorandum containing a clause that the vendor shall "fulfill the conditions of sale," but not setting forth the conditions, is defective); Callanan v. Chapin, 158 Mass. 113. 32 N. E. 941; Williams v. Robinson, 73 Me. 186; Stone v. Browning, 68 N. Y. 598; John- son V. Buck, 35 N. J. Law, 338, 343; James v. Muir, 33 Mich. 223; Noiris V. Blair, 39 Ind. 90; Reid v. Kentworthy, 25 Kan. 701. Terms of payment: Davis V. Shields, 26 Wend. 341; Wright v. Weeks, 25 N. Y. 153; O'Donnell V. Leeman, 43 Me. 158. Time of delivery, if agreed: Kriete v. Myer, 61 Md. 558; Smith v. Shell, 82 Mo. 215; Hawkins v. Chase, 19 Pick. 502 (other- wise, if not agreed, since it will be presumed to be on demand). 72 FORMATION OF THE CONTRACT. [Cll. 2 matter,"' to show the situation of the parties and the circum- stances, and to explain the meaning of words and latent ambigui- ties."* Parol Euidence to Show that the Writing is not a Note or Memorandum. Since the note or memorandum implies the existence of a parol contract, it maj' be shown, for the purpose of proving the insuffi- ciency of the memorandum, that it is not the record of any parol contract; either that no contract in fact existed,""^ or that the actual contract was different from that evidenced by the memo- randum, — for example, that it omitted a material term.^^' As was said by Lord Selborne, the statute of frauds "is a weapon of de- fense, and not offense, and does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and real intention of the parties." ^^^ Parol Evidence as to Subsequent Agreement to Modify Original Contract. At common law a written contract, not under seal, may be waived, annulled, changed, or qualified by means of a subsequent parol contract, w ritten or unwritten. But this rule is not applica- 17 8 Macdonald v. Longbottom, 28 Law J. Q. B. 293, on appeal 1 El. & El. 977, 29 Law J. Q. B. 256 ("your wool"); Barry v. Coombe, 1 Pet. 640; Tall- man V. Franklin, 14 N. Y. 584; Mead v. Parker, 115 Mass. 413. 174 Salmon Falls Manuf g Co. v. Goddard, 14 How. 446; BenJ. Sales, §§ 213-215. In Doherty v. Hill, 144 Mass. 465, 11 N. E. 581, it was held that, under the fourth section, a memorandum describing equally two pieces of real estate could not be supplemented by introducing a letter from the owner to the agent, showing which estate he had authority to sell, nor by evidence that the purchaser only knew of one estate owned by the seller. There are few cases involving the description under the seventeenth section, and those under the fourth section are conflicting. See Wood, St. Frauds, § 353; Williston, Cas. Sales, p. 994, note. 17 6 Hussey v. Home- Payne, 4 App. Cas. 315, per Lord Calms, at page 320. 176 Pitts V. Beckett, 13 Mees. & W. 743 (that the wool sold should be dry); McMuUen v. Helberg, 4 L. R. Ir. 94, 6 L. R. Ir. 463 (that the sale was by sample); McLean v. Nicoll, 7 Jur. (N. S.) 999 (that glass should be of best quality); Peltier v. Collins, 3 Wend. 459 (warranty); Boardman v. Spooner, 13 Allen, 353 (that the goods are to be subject to approval); Remick v. Sand- ford, 118 Mass. 102 (that sale was by sample). See, also, Jenness v. Mt Hope Iron Co., 53 Me. 20; Lang v. Henry, 54 N. H. 57; Frank v. Miller, 88 Md. 450; Lee v. Hills, 66 Ind. 474, and see note 27 ante. ITT Hussey v. Horne-Payne, 4 App. Cas. 311, 323. Ch. 2] THE NOTE OR MEMORANDUM. 73 ble to a contract which has been satisfied by a statutory note or memorandum. If the original contract be thus satisfied, a subse- quent contract, not evidenced by a sufficient note or memoran- dum, to modify the original contract, is invalid.^^' The subse- quent contract being invalid, the original contract may be en- forced.^^® But whether parol evidence is admissible to prove a sub- sequent contract for a waiver or abandonment of the entire con- tract is an open question.^*** Parol evidence is admissible, however, to prove substantial performance when the performance is com- pleted and accepted, and such performance is a defense by way of accord and satisfaction.^ ^^ Separate Papers. It is immaterial whether the note or memorandum be written at one time, or at different times, and it may consist of any number of letters, telegrams, or other pieces of paper. If the connection between the papers be physical, it is enough if they were attached at the time of signature, and this may be shown by parol.^** If they were never attached, the signed paper must make such a ref- erence to the other as to enable the court to construe the whole together, as containing all the terms of the bargain.^" If they are 1T8 stead V. Dawber, 10 Adol. & E. 57, overruling Cuff v. Penn, 1 Maule &. S. 21; Marshall v. Lynn, 6 Mees. & W. 109; Swain v. Seamens, 9 Wall. 254, 269; Ladd v. King, 1 R. I. 224; Dana v. Hancock, 30 Vt. G16; Blood v. Good- rich, 9 Wend. 68; Hill v. Blake, 97 N. Y. 216; Carpenter v. Galloway, 73 Ind. 418. Contra: Cummings v. Arnold, 3 Mete (Mass.) 486; Stearns v. Hall, 9 Cush. 31; Whittier v. Dana, 10 Allen, 326; Negley v. JefCers, 28 Ohio St, 90. See, also, Richardson v. Cooper, 25 Me. 450. 1T8 Moore v. Campbell, 10 Exch. 323, 23 Law J. Exch. 310; Noble v. Ward, L. R. 1 Exch. 117, 35 Law J. Exch. 81. 180 Goss V. Lord Nugent, 5 Barn. &, Adol. 65, per Denman, C. J.; Harvey V. Graham, 5 Adol. & E. 61, 73. The affirmative was held in Buel v. Miller, 4 N. H. 196. 181 Moore v. Campbell, 10 Exch. 323, per Parke, B.; Leather Cloth Co. v. Hieroiiimus, L. R. 10 Q. B. 140; Long v. Hartwell, 34 N. J. Law, 116, 127; Ladd V. King, 1 R. I. 224, 231; Swain v. Seamens, 9 Wall. 254; Langd. Cas. Sales, 1034 182 Ken worthy v. Schofield, 2 Bam. & C. 945, per Holroyd, J. 183 Saunderson v. Jackson, 2 Bos. & P. 238; Jackson v. Lowe, 1 Bing. 9; Salmon Palls Manuf'g Co. v. Goddard, 20 Curt. Dec. 376; 14 How. 446; Newton v. Bronson, 13 N. Y. 587; Fisher v. Kuhn, 54 Miss. 480; Olson v. 74 FORMATION OF THE CONTRACT. [Ch. 2 not connected by attachment or reference, they cannot be con- nected by parol. ^^* Parol evidence is, however, admissible to ex- plain an ambiguous reference, and to identify the document to which the signed paper refers.^ ^^ Papers connected by reference must be consistent, for otherwise it would be impossible to deter- mine what the bargain was without parol evidence to show which stated it correctly.^®" The memorandum may be in pencil.^*' SAME— SIGNATURE OF THE PARTY. 37. Only the signature of the party against whom the contract is sought to be enforced is required. Sharpless (Minn.) 55 N. W. 125; Ryan v. U. S., 13G U. S. 68, 10 Sup. Ct. 913; Bayne v, Wiggins, 139 U. S. 210, 11 Sup. Ct 521. But if all the separate pa- pers are signed, reference in the one to the other need not be made, If by inspection and comparison it appears that they severally form part of the same transaction. Thayer v. Luce, 22 Ohio St. 62. The paper referred to need not be in existence when the signed paper Is executed. Freeland v. Ritz, 154 Mass. 257, 28 N. E. 226. i84Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 Barn. & C. 945; Pierce v. Corf, L. R. 9 Q. B. 210; Boydell v. Drummond, 11 East, 142; Johnson v. Buck, 35 N. J. Law, 338; O'Donnell v. Leeman, 43 Me. 158; Morton v. Dean, 13 Mete. (Mass.) 385; Coe v. Tough, 116 N. Y. 273, 22 N. E. 550; Frank v. Miller, 38 Md. 450; Brown v. Whipple, 58 N. H. 229; North V. Mendel, 73 Ga. 400. But in Lerned v. Wannemacher, 9 Allen, 412, it was held that, when a memorandum is drawn up in duplicate, one signed by the seller and the other by the buyer, they may be read together as if signed by both. See, also, Rhoades v. Castner, 12 Allen, 130. In Ridgway V. Ingram, 50 Ind. 145, where the memorandum was indorsed on an order of sale, but, without referring to It, the court held that there was no con- nection. Followed in Wilstach v. Heyd, 122 Ind. 574, 23 N. E. 963. 18B Ridgway v. Wharton, 6 H. L. Cas. 238 (instructions); Baumann v. James, 3 Ch. App. 508 ("terms agreed upon"); Long v. Millar, 4 C. P. Div. 450 ("purchase"); Cave v. Hastings, 7 Q. B. Div. 125 ("our arrangement"); Beckwith v. Talbot, 95 U. S. 289 (but see Grafton v. Cummings, 99 U. S. 100, 112). An extreme application of the rule admitting parol evidence was made in Louisville Asphalt Varnish Co. v. Lorick, 29 S. C. 533, 8 S. E. 8. The late case of Oliver v. Hunting, 44 Ch. Div. 205, seems Irreconcilable with the earlier decisions. 188 Smith v. Surman, 9 Barn. & C. 561; Thornton v. Kempster, 5 Taunt 786. Calkins v. Falk, 1 Abb. Dec. 291; Phippen v. Hyland, 19 U. C. C. P. 416. 18T Clason's Ex'rs v. Bailey, 14 Johns. 484; Merritt v. Clason, 12 Johns. 102. Ch. 2] THE >fOTE OR MEMORANDUM. 75 38. The signature may be by mark or initials, and may be -written in pencil. Unless the statute requires the name to be "subscribed," the signature may be printed, and may be at the beginning or in the body of the document. Although the seventeenth section requires the writing to be signed by the "parties" ^^® to be charged, the memorandum is sufficient if signed only by the party against whom the contract is sought to be enforced.^ ^"^ It follows that the contract is good or not at the option of the party who has not signed. The signature may be by mark,^^" though not by mere descrip- tion,^*^ or may be by initials, if they are intended as a signature.^** It may be writteninpencil; ^®^ or it may be printed, provided there is suf- ficient evidence of the adoption of the printed name, as where the sel- ler fills out and gives the buyer a bill of parcels, with the name of the seller printed thereon.^** Some statutes require the name to be "sub- is* The language of the fourth section is "by the party to be charged." 189 Allen v. Bennet, 3 Taunt. 169; Thornton v. Kempster, 5 Taunt. 786 Clason's Ex'rs v. Bailey, 14 Johns. 484; McCrea v. Purmort, 16 Wend. 460 Justice v. Lang, 42 N. Y. 493; Old Colony R. R. v. Evans, 6 Gray, 25, 31 Williams v. Robinson, 73 Me. 186; Hodges v. Rowing, 58 Conn. 12, 18 Atl. 979; Easton v. Montgomery, 90 Cal. 307, 27 Pac. 280; Cunningham v. Wil- liams, 43 Mo. App. 629. See, also, Reuss v. Picksley, L. R. 1 Exch. 342, and other cases cited in note 167, ante, which hold that a written offer ac- cepted by parol is a sufficient memorandum. Contra, Wilkinson v. Heav- enrich, 58 Mich. 574, 26 N. W. 139. 190 Baker v. Dening. 8 Adol. & E. 94 (under fifth section). See, also, Zach- arie v. Franklin, 12 Pet. 151, i»i A letter by a mother to her son, beginning, "My dear Robert," and ending, "Your affectionate mother," with a full direction containing the son's name and address, is not sufficiently signed. Selby v. Selby, 3 Mer. 2. 192 Sanborn v. Flagler, 9 Allen, 474; Salmon Falls Manuf'g Co. v. Goddard, 14 How. 446. See Palmer v. Stephens, 1 Denio, 471; Benj, Sales, § 257. The omission of a middle name is immaterial. Fessenden v. Mussey, 11 Gush. 127. 188 Merritt v. Clason, 12 Johns. 102; Clason's Ex'rs v. Bailey, 14 Johns. 484. 18* Saunderson v. Jackson, 2 Bos. & P. 238; Schneider v. Norris, 2 Maule & S. 286; Drury v. Young, 58 Md. 546; Com. v. Ray, 3 Gray, 441, 447, Oth- erwise where the statute requires the name to be "subscribed." Viele v. Os- good, 8 Barb. 130. 76 FORMATION OF THE CONTRACT. [Ch. 2 scribed," and under them the si^ature must be at the end.^" Under the original enactment, however, and generally in the ab- sence of express provisions requiring a different construction, the signature is good, though it be at the beginning or in the body of the document; but, if the name is put in an unusual place, it is a question of fact whether it was so written for the purpose of au- thenticating the document.^^' As was said by Lord Westbury, in a case ^®^ under the fourth section, where it was held that the name, which occurred in the body of the instrument, referred only to the particular part in which it was found, and was insufficient: "The signature must be so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument." SAME— AGENTS AUTHORIZED TO SIGN. 39. The authority of an agent to sign the memorandum may be conferred by parol, and may be proved by subse- quent ratification. 40. The agent must be a third person, and not one of the parties; but a person who acts as the agent of one party in making the contract may act as the agent of both parties in making the memorandum. The statute simply provides that the note or memorandum shall be signed by the parties to be charged, "or their agents thereunto 195 Davis V. Shields, 26 Wend. 341; James v. Patten, 6 N. Y. 9; Doughty V. Manhattan Brass Co., 101 N. Y. 644, 4 N. E. 747. 18 6 Johnson v. Dodgson, 2 Mees. & W. 653; Dun-ell v. Evans, 1 Hiu-1. & G. 174, 31 Law J, Exch. 337; Clason's Ex'rs v. Bailey, 14 Johns. 484; Hawkins V. Chase, 19 Pick. 502; Penniman v. Hartshorn, 13 Mass. 87; Coddington v. Goddard, 16 Gray, 436; Batturs v. Sellers, 5 Har. & J. 117; Drury v. Young, 58 Md. 546; Anderson v. Harold, 10 Ohio, 400; McConnell v. Brillhart, 17 HI. 354; Tingley v. Bellingham Bay Boom Co., 5 Wash. 644, 32 Pac. 737, and 33 Pac. 1055. Defendants' clerk by their authority drew up a letter addressed to them, containing the terms on which plaintiff was to serve them, which plaintiff signed. Held, that the letter was a sufficient memorandum to bind defendants. Evans v. Hoare [1802] 1 Q. B. 593. See, also, Smith t. Howell, 11 N. J. Eq. 349; Adams v. Field, 21 Vt 256. »»T Caton V. Caton, L. R. 2 H. L. 127. Ch. 2] THE NOTE OR MEMORANDUM. 77 lawfully authorized." The manner in which their agents may be authorized is left to the rules of the common law. Thus the agent need not be authorized in writing, and subsequent ratification is equivalent to prior appointment.^^* And, as we have seen, it is im- material whether the agent sign his own name or that of his prin- cipal.^®' Authority to contract implies authority to sign the mem- orandum, and the memorandum may be made subsequently to the contract, if the authority has not been revoked.^"" Who May be Agent to Sign. The agent to sign must be a third person, and not the other party to the contract.^ °^ This rule does not, however, exclude the agent of the seller from acting as the agent of buyerj^"^ but such agency must be clearly proved. For example, the mere fact that the sel- ler's salesman signs his own name to the memorandum at the re- quest of the buyer is not proof of agency to sign the buyer's name.*"* The auctioneer at a public sale is the agent of the buyer as well as of the seller to sign the memorandum.^"* "The technical groundis," 188 Maclean v. Dunn, 4 Blng. 722; Soames v. Spencer, 1 Dowl. & R. 32; Hawkins v. Chase, 19 Pick. 502, 505; Batturs v. Sellers, 5 Har. & J. 117; Yerby v. Grigsby, 9 Leigh, 387; Gonaway v. Sweeney, 24 W. Va. 643; Roehl V. Haumesser, 114 Ind. 311, 15 N. E. 345; Wiener v. Whipple, 53 Wis. 298, 302, 10 N. W.1433. 199 Ante, p. 69. See, also, Williams v. Bacon, 2 Gray, 387; Yerby v. Grigsby, 9 Leigh, 387; Gonaway v. Sweeney, 24 W. Va. 649; Hargrove v. Ad- cock, 111 N. C. 166, 16 S. E. 16. 200 Williams v. Bacon, 2 Gray, 387, per Merrick, J.; Farmer v. Robinson, cited in note to Heyman v. Neale, 2 Camp. 337. 201 Sbarman v, Brandt, L. R. 6 Q. B. 720; Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 Barn. & Aid. 333 (memorandum signed by auc- tioneer, suing as seller); Smith v. Arnold, 5 Mason, 414, Fed. Gas. No. 13,- 004; Bent v. Cobb, 9 Gray, 397; Johnson v. Buck, 35 N. J. Law, 338, 342; TuU v. David, 45 Mo. 444. «oa Durrell v. Evans, 30 Law J. Exch. 254, 6 Hurl. & N. 660; Benj. Sales, §§ 267, 267a. 208 Graham v. Musson, 5 Bing. N. C. 603; Graham v. Fretwell, 3 Man. & G. 368; Murphy v. Boese, L. R. 10 Exch. 126. See, also, Sewall v. Fitch, 8 Cow. 215; IJams v. Hoffman, 1 Md. 423; Bamber v. Savage, 52 Wis. 110, 8 N. W. 609. 204 Simon v. Metivier, 1 Wm. Bl. 599; Hinde v. Whitehouse, 7 East, 558; Morton v. Dean, 13 Mete. (Mass.) 385; McComb v. Wright, 4 Johns. Ch. 659; 78 FORMATION OF THE CONTRACT. [Ch. 2 as was said by Shaw, C. J., "that the purchaser, by the very act of bid- ding, connected with the usage and practice of auction sales, loudly and notoriously calls on the auctioneer or his clerk to put down his name as the bidder, and thus confers on the auctioneer or his clerk authority to sign his name, and this is the whole extent of his au- thority." 2°° It follows that the auctioneer's authority to sign the memorandum ends with the sale, and that a memorandum subse- quently signed is invalid,^''"' and that he is not the agent to sign for the buyer at a private sale.^" The auctioneer's clerk, as well as the auctioneer himself, may make the memorandum, provided, at least, that he acts openly in entering the bids, so that the assent of the bidder may be implied.^"' The signature of a clerk of a telegraph company to a dispatch, the sending of which is authorized by either party, is sufficient."' An agent must sign as such, and his signature as a mere witness is inoperative.*^" Same — Broker. Brokers are as a rule agents for both parties. When so acting, they have authority to do all that is necessary to bind the bargain, and hence may sign the requisite memorandum.* ^^ In this country Harvey v. Stevens, 43 Vt. 653; Johnson v. Buck, 35 N. J. Law, 338; Gill v. Hewett, 7 Bush, 10. 20 6 Gill V. Bicknell, 2 Gush. 355, at page 358. See, also, Emmerson v. Heelis, 2 Taunt. 38, per Sir James Mansfield. The inference of agency to sign for the bidders may be rebutted. Bartlett v. Purnell, 4 Adol. '& E. 792. 208 Horton v. McCarty, 53 Me. 394. Cf. Smith v. Arnold, 5 Mason, 414. Fed. Cas. No. 13,004, per Story, J.; Bamber v. Savage, 52 Wis. 110, 113, 8 N. W. 609. 207 Mews V. Carr, 1 Hurl. & N. 486, 26 Law J. Exch. 39. Cf. Bartlett v. Purnell, 4 Adol. & E. 792. 20 8 Bird V. Boulter, 4 Barn. & Adol. 443; Johnson v. Buck, 35 N. J. Law, 338; Cathcart v. Kiernaghan, 5 Strob. 129; Gill v. Bicknell, 2 Gush. 355, 358; Frost V. Hill, 3 Wend. 386; Goate v. Terry, 24 U. C. G. P. 571. But it seems that there is no general custom by which the clerk as such is the bidder's agent. Pierce v. Gorf, L. R. 9 Q. B. 210, 215, per Blackburn, J. Cf. Cathcart v. Keii-naghan, 5 Strob. 129, per Waldlaw, J. 208 Godwin v. Francis, L. R. 5 C. P. 295; Smith v. Baston, 54 Md. 138; Howley v. Whipple, 48 N. H. 487; Gray, Communication, TeL §§ 138-142. 210 Gosbell V. Archer, 2 Adol. & E. 500. »ii Goddington v. Goddard, 16 Gray, 436. Ch. 2] THE NOTE OR MEMORANDUM. 79 it is customary for the broker to make an entry of the sale in a book kept for that purpose, and such an entry, if it contains the terms of the bargain, is a sufficient memorandum,*^' nor need it be signed by the broker.^^^ A note containing the terms of the bargain, and delivered by him to either party, is also sufficient,^^* though, if he delivers to buyer and seller notes which materially differ, there is no valid memorandum.^ ^' In England it is customary for the broker, when he makes a con- tract, to reduce it to writing, and to deliver to each party a copy of the terms as reduced to writing by him, and also to enter them in his book and to sign the entry.*^* As to the effect of the entry in the broker's book, there has been great difference of opinion. The view which seems to have prevailed, unlike that adopted in this country, and founded, perhaps, in some measure on the fact that brokers in London were until recently required by law to make such entries, is that the entry constitutes the contract itself, and is a contract in writing.*" It is natural, therefore, that difficult que* 212 Coddington V. Goddard, 16 Gray, 436; Clason's Bx'rs v. Bailey, 14 Johns. 484; Merritt v. Clason, 12 Johns. 102; Sale y. Darragh, 2 Hilt 184; Williams v. Woods, 16 Md. 220; Bacon v. Eccles, 43 Wis. 227. 213 Coddington v. Goddard, 16 Gray, 436; Merritt v. Clason, 12 Johns. 102; Clason's Ex'rs v. Bailey, 14 Johns. 484. 21* Butler V. Thompson, 92 U. S. 412; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct 950; Remick v. Sandford, 118 Mass. 102; Newberry v. Wall, 84 N. Y. 576; Weidmann v. Champion, 12 Daly, 522; Bacon v. Eccles, 43 Wis. 227. 21 B Peltier v. Collins, 3 Wend. 459; Suydam v. Clark, 2 Sandf. 133; Bacon V. Eccles, 43 Wis. 227; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, per Jackson, J. 216 Ben j. Sales, § 276. 217 Heyman v. Neale, 2 Camp. 337, per Lord EUenborough; Thornton v. Charles, 9 Mees. & W. 802, per Parke, B.; Sievewright v. Archibald, 17 Q. B. 115, 20 Law J. Q. B. 529, per Lord Campbell, C. J., and Patterson, J.; Thompson v. Gardiner, 1 C. P. Div. 777; Thornton v. Meux, Moody & M. 43, per Abbott, C. J.; Townend v. Drakeford, 1 Car. & K. 20, per Denman, G. J.; Thornton v. Charles, supra, per Lord Abinger. But these authorities are overruled by Sievewright v. Archibald, supra. Benj. Sales, § 294. See Langd. Gas. Sales, 1035. The view was held by some judges ttiat the entry not only did not constitute the contract, but was not even admissible in evidence, at least not without proof that it was seen by the parties when they contracted or was assented to by them. Gumming v. Roebuck, Holt, 172, per Gibbs, C. J. 80 FORMATION OF THE CONTRACT. [Ch. 2 tions have arisen in England, where the sold note and the bought note differ from each other or from the entry in the broker's book. The result of the English decisions on this point, which owing to- the difference in the law and the custom are of comparatively little value as precedents in this country, may be briefly stated as fol- lows:"' (1) If the broker make and sign an entry of the agree- ment in his books, the entry so signed constitutes the original agree- ment between the parties, and is the primary evidence thereof,'^* to the exclusion of any notes which may be delivered to the par- ties.^^° But if such notes correspond with one another, and differ from the entry, it becomes a question of fact for the jury whether their acceptance by the parties constitutes a new contract, as evi- denced by the notes."^ (2) If there be no signed entry, the notes,, if they correspond with one another and state all the terms of the bargain, together constitute a memorandum of the contract*" But if they do not correspond, or are insufficient, no memorandum at all exists.'*''' (3) Either note by itself constitutes a memorandum, in the absence of evidence that the signed entry or the other note differs therefrom."* EFFECT OP NONCOMPLIANCE WITH THE STATUTE. 41. Failure to comply ■with the provisions of the statute in respect to acceptance and receipt, earnest or part pay- ment, or note or memorandum, [probably] does not ren- der the contract void, but merely prevents its enforce- ment. 218 The statement is taken from Kerr, Dig. Sales, § 20. Cf. Benj. Sales, J 292. 218 Cases cited in note 217, ante. 220 Tlie notes do not constitute the contract Thornton v. Charles, 9 Mees, & W. 802, per Parke, B.; Heyman v. Neale, 2 Camp. 337, per Lord Ellen- borough; Sievewright v. Archibald, 20 Law J. Q. B. 529, 17 Q. B. 115. 221 Thornton v. Charles, 9 Mees. «& W. 802; Sievewright v. Archibald, supra. 222 Goom V. Aflalo, 6 Barn. & G. 117; Sievewright v. Archibald, supra. 223 Thornton v. Kempster, 5 Taunt. 786; Grant v. Fletcher, 5 Bam. & O. 436; Sievewright v. Archibald, supra. 22 4 Hawes v. Forster, 1 Moody & R. 368; Parton v. Crofts, 16 0. B. (N. S.> 11; Thompson v. Gardiner, 1 C. P. Div. 777. Ch. 2] EFFECT OF NONCOMPLIANCE WITH THE STATUTE. 81 The seventeenth section declares that, if there be no acceptance and receipt, no earnest or part payment, and no note or mem- orandum, the contract shall not "be allowed to be good." As to the meaning of these words, there are in England conflicting dicta, but no direct decision; some judges assuming that the words of the seventeenth section (unlike those of the fourth section, which de- clares that "no action shall be brought") go to the existence of the contract,^'"* and others that there is no difference in the effect of the two sections, and that the provision affects only the remedy.''^* The latter view is sustained by the weight of opinion, ^^^ and is certainly in conformity with the construction of the section in other respects, — for example, that, if one party has signed the contract, it may be enforced against him, though not against the other; that a mere written admission at any time before action brought, even if it repudiates the contract, is sufficient, because it is evidence of the existence of the contract; that acceptance and receipt or part payment before action brought satisfies the section. This view has been affirmed by decision in Massachusetts,^^® though the opposite view has been taken iu Missouri.--'^ In some states, however, the statute declares that the contract shall be "void." 225 Leroux v. Brown, 12 C. B. 809; Laythoarp v. Bryant, 2 Bing. N. C. 735, 747. 22 8 Bailey v. Sweeting, 9 C. B. (N. S.) 843, 30 Law J. C. P. 150, per Williams. J.; Maddison v. Alderson, 8 App. Cas. 467, 488, per Lord Blackburn; Britain V. Rossiter, 11 Q. B. Div. 123, 127, per Brett, L. J, 2 27 Pol. Cont. (2d Am. Ed,) 605; Anson, Cont. 67; Clark, Cent. 128, 145. See Browne, St. Frauds, c. 8; 9 Am. Law Rev. 434. 228 Townsend v. Hargraves, 118 Mass. 325; Amsinck v. American Ins. Co., 129 Mass. 185; Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335, 26 N. B. 877. See, also, Jackson v. Stanfield (Ind. Sup.) 37 N. E. 14. *2» Houghtaling v. Ball, 20 Mo. 563. To the same effect, Green v. Lewis, 26 U. C. Q. B. 6ia BALES — 6 U2 EFFECT OF THE CONTIIACT IN PASSING THE PROPERTY. [Ch. 3 CHAPTER m. EFFECT OF THE CONTRACT IN PASSING THE PROPERTY— SALE OF SPECIFIC CHATTEL. 42. In General. 43. Unconditional Sale. 44. Rules for Ascertaining Intention. 45. Conditional Sale Accompanied by Delivery, 4G. Sale on Trial or ApprovaL 47. Sale or Return. IN GENERAL. 42. When there is a contract for the sale of specific goods, the property in them is transferred at such time as the parties to the contract intend it to be transferred. Executed and Executory Sales. The distinction between executed and executory sales has been already pointed out^ As we have seen, in an executed sale the property passes at once, and in an executory sale it does not jjass until the contract is executed. In the one case the seller sells; in the other, he promises to seJl. We have also seen that the thing which is the subject of sale must be owned by the seller, and that a contract to sell goods not yet in existence or acquired by the seller can only take effect as an executory sale." Moreover, even if the goods which are the subject of sale are actually owned by the seller, it is clear that if they are part of other similar goods, as 10 sheep out of a flock of 20, the property in the part sold can- not pass unless the particular goods are designated; in other words, unless the goods are specific' But provided the goods are specific, the rule holds universally that the property in them will pass whenever the parties so intend.* And, therefore, whether a 1 Ante, p. 5. « Ante, p. 22. 8 Post, p. 94. * Seath V. Moore, 11 App. Cas. 350, 370, 380; Shepherd v. Harrison, L. R. 5 H. L. 110, 127; Hatch v. OU Co., 100 U. S. 124, 130; Elgee Cotton Cases. Ch. 3] UNCONDITIONAL SALE. 83 sale be executed or executory, and, if originally executory, when 5 1 will become executed, depends solely upon the intention of the parties. If the intention is clear, no question can arise. But be- cause the parties often fail to make clear their intention, frequently for lack of clearness in the intention itself, the courts have estab- lished certain rules of construction for the purpose of determining what is to be deemed the intention of the parties. UNCONDITIONAL SALE. 43. When there is a contract for the sale of specific goods, unless a different intention appears, the property in the goods passes to the buyer -when the contract is made. By the modern English rule, when an unconditional bargain is made for the sale of specific goods in a deliverable state, if nothing is said about payment or delivery, the property passes immedi- ately, so as to cast upon the buyer all future risk, though he is not entitled to the possession without payment of the price.° In other words, the property passes subject to the seller's lien. This rule rests upon the presumed intention of the parties. The earlier English law was different, for it was formerly the rule that, un- less payment was made or credit given, the contract was presuma- bly executory; that is, that the intention of the parties was to transfer the property in consideration of actual payment, and not merely of the buyer's promise to pay.' The rule, being one of presumption, must, of course, yield to circumstances from which a 22 Wall. 180, 187; Merchants' Exch. Bank v. McGraw, 8 C. C. A. 420, 59 Fed. 972; Terry v. Wheeler, 25 N. Y. 520, 525; Callaghan v. Myers, 89 111. 566, 570; Winslow v. Leonard, 24 Pa. St. 14; Kent Iron & H. Co. v. Norbeck, 150 Pa. St. 559, 24 Atl. 737; Lingham v. Eggleston, 27 Mich. 324; Blackb. Sales, 123; Benj. Sales, § 309. 6 Tarling v. Baxter, 6 Barn. & C. 360; Simmons v. Swift, 5 Barn, & C. 862, per Bayley, J.; Dixon v. Yates, 5 Barn. & Adol. 313, per Park, J.; Barr v. Gibson, 8 Mees. & W. 390; Martindale v. Smith, 1 Q. B. 389; Gilmour t. Supple, 11 Moore. P. C. 566; Seath v. Moore, 11 App. Gas. 350, 370; Benj. Sales, §§ 313, 317. 8 Xoy, Max. pp. 87-89; Blackb. Sales, 171; Benj. Sales, 8 315; 2 Kent, Comm. 492. 84 EFFECT OF TllK CO.NTUACT IN PASSING THE PROPERTY. [Cll. 3 contrary intention is to be inferred; and tliercfore even today a sale by a tl•adet^man in Ids shop is presumed to be executory.' The general rule in this country coincides with the modern English rule.* A fortiori, if payment be made at the time the bargain or credit is given, the property passes immediately. It is, indeed, frequently said that in a cash sale (and all sales where no time is agreed upon for payment are presumed to be cash sales) ® the proi>- erty does not pass until payment. But tliis is not a correct state- ment of the law, since the seller's lien which arises in such cases can only exist provided the property is in the buyer, and the risk of loss, which always accompanies the right of property, falls upon him, and not upon the seller.^" It is true, however, that the buyer does not acquire a complete title, since until payment he has not the right to possession. And even if the seller delivers posses- sion, if he does so upon the understanding, express or implied, that he is to receive immediate payment, he may reclaim the goods in case of nonpayment" T Bussey v. Barnett, 9 Mees. & W. 312; Blackb. Sales, 173. Cf. Paul v. Reed, 52 N. H. 136. 8 Leonard v. Davis, 1 Black, 476, 483; Blunt v. Little, 3 Mason, 107, 110, Fed. Cas. No. 1,578; Morse v. Sherman, lOG Mass. 430; Haskins v. Warren, 115 Mass. 514, 533; Goddard v. Binney, Id. 450, 455; Townsend v. Hargraves, 118 Mass. 325, 332; Wing v. Clark, 24 Me. 366; Phillips v. Moor, 71 Me. 78; Olyphant v. Baker, 5 Denio, 370-383; Bissell v. Balcom, 39 N. Y, 275, 279: Johnson v. Elwood, 53 N. Y. 431; Morey v. Medbury, 10 Hun, 540; Brock v. O'Donnell, 45 N. J. Law, 441; .Jenkins v. Jarrett, 70 N. C. 255; Sweeney V. Owsley, 14 B. Mon. 413; Barrow v. Window, 71 111. 214; Bortelson v. Bower, 81 Ind. 512; Powers v. Dellinger, 54 Wis. 389, 11 N. W. 597; Rail V. Little Falls Lumber Co., 47 Minn. 422, 50 N. W. 471; Towne v. Davis (N. H.) 22 Atl. 450; Thompson v. Branuin (Ky.) 21 S. W. 1057; 2 Kent, Comm. 492. » Scudder v. Bradbury, 106 Mass. 422, 427; Goodwin v. Boston & L. R. Co., Ill Mass. 487, 489; Riley v. Wheeler. 42 Vt. 528; Ward v. Shaw, 7 Wend. 404; Pickett v. Cloud, 1 Bailey, 362; Wabash Elevator Co. v. First Nat. Bank of Toledo, 23 Ohio St. 311; Michigan C. R. Co. v. Phillips, 60 111. 190; Allen V. Hartfleld, 76 111. 3.58; Fenelon v. Hogoboom, 31 Wis. 172, 176; Southwestern Freight & Cotton Exp. Co. v. Stannard, 44 Mo. 71; Beauchamp V. Archer, 58 Cal. 431; 2 Kent, Comm. 497; post, p. 178. 10 See cases cited In notes 5 and 8, supra. 11 Haskins v. Warren, 115 Mass. 514, 534, per Wells, J.; Goodwin v. Boston & L. R. Co., Ill Mass. 487, 489; I'almer v. Hand, 13 Johns. 434, 435; Leven Ch. 3] JtULES FOR ASCERTAINING INTENTION. 85 RULES FOR ASCERTAINING INTENTION. 44. Unless a different intention appears, the foUo-wlng are rules for ascertaining the intention of the parties as to the time -when the property in the goods is to pass to the buyer: RULE 1 — When there is a contract for the sale of specific goods, and the seller is bound to do some- thing to the goods for the purpose of putting them into a deliverable state, — that is, into a state in "which the buyer is bound to accept them, — the prop- erty does not pass until such thing is done. flULE 2 — When there is a contract for the sale of spe- cific goods in a deliverable state, but the seller [or the buyer] is bound to -weigh, measure, test, or do some other act with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act is done. T. Smith, 1 Denlo, 571; Hayden y. Demets, 53 N. Y. 426, 431; Morey v. Med- bury, 10 Hun, 540; Allen v. Hartfield, 76 HI. 358, 361; Fenelon v. Hogoboom, 31 Wis. 172, 176; Riley v. Wheeler, 42 Vt. 528, 532. See, also, Tyler v. Free- man, 3 Cush. 261; Whitney v. Eaton, 15 Gray, 225; Hirschom v. Canney, 98 Mass. 149; Adams v. O'Connor, 100 Mass. 515; Stone v. Perry, 60 Me. 48; Seed V. Lord, 66 Me. 580; Peabody v. Maguire, 79 Me. 572, 575, 12 Atl. 630; Paul V. Reed, 52 N. H. 136; Dows v. Kidder, 84 N. Y. 121; Harris v. Smith, 8 Serg. iSz; R. 20; Lester v. McDowell, 18 Pa. St. 91; Wabash Elevator Co. v. First Nat. Bank of Toledo, 23 Ohio St. 311; Fishback v. Van Dusen, 33 Minn. Ill, 22 N. W. 244; 2 Kent, Comm. 497. In many of these cases it is said that the "property" had not passed, and in some of them it is clear that it had not, either because at the time of the bargain the goods were not in a deliver- able state or were not specific, or because delivery was to be made by the buyer at a particular place, or for some other reason. But in others it is clear that it must have been held, had the question been raised, that the risk of loss was by the contract cast upon the buyer, and hence that the property passed. In all such cases, where the question Is simply whether the buyer acquired a 'good "title," it is immaterial to determine whether the sale was conditional, or whether only the delivery was conditional, since in either ca.se the title of the buyer is conditional upon payment. See Benj. Sales (Corbin's 6th Am. Ed.) § 318 et seq. 86 EFFECT OF THE CONTRACT IN PASSING THE TROPERTY. [Ch- 3 Although an agreement for the sale of a specific chattel is prima facie an executed sale, the presumption may, as we have seen, be rebutted; and, if it ai)i)ears that the jtarties have agreed that the property shall pass on tbe performance of a condition, the property will not j>ass until the condition is performed; and, if nothing has occurred in the meantime to defeat the transfer, it will then take place. When the parties have not expressed their intention clear- ly, it must be collected from the whole agreement. For the pur- pose of ascertaining the intention, the two rules of construction stated at the head of this paragraph have been adopted uy the courts. These rules, of which there is no trace in the reports be- fore the time of Lord EUenborough, appear to have been adopted from the ci\il law.^' Rule 1. Blackburn observes that the first rule is founded in reason. In- asmuch as it is for the benefit of the seller that the property should pass and the risk of loss be thereby transferred from the seller, who may still retain possession of the goods as security for the price, it is reasonable that, where the seller is bound to do some- thing before he can call upon the buyer to accept the goods, the intention of the parties should be presumed to be that the seller is to do the thing before obtaining the benefit of the transfer.^' The rule is firmly established both in England ^* and in America.^" Thus, where trees are to be trimmed,^ ^ cotton to be ginned and baled,^'' fish to be dried,^* grain to be threshed,^^ or hops to be n Blackb. Sales, 174. 18 Blackb. Sales, 175; Benj. Sales, § 318 et seq; Chalm. Sale, § 21. " Rugg V. Mlnett, 11 East, 210; Acraman v. Morrice, 8 C. B. 449, 19 Law J. C. P. 57; Tansley v. Turner, 2 Scott, 238, 2 Bing. N. C. 151; Boswell v. Kilborn, 15 Moore, P. C. 309, 8 Jur.' 443; Seath v. Moore, 11 App. Cas. 350. 370. 16 Elgee Cotton Cases, 22 Wall. 180, 188; Foster v.. Ropes, 111 Mass. 10; Sumner v. Hamlet, 12 Pick. 76, 82; North Pacific L. & M. Co. v. Kerron, 5 Wash. 214, 31 Pac. 595. See, also, cases cited in the succeeding notes to this paragraph. !'• Acraman v. Morrice, 8 C. B. 449, 19 Law J. C. P. 57. 17 Elgee Cotton Cases, 22 Wall. 180, 193; Bond v. Greenwald, 4 Helsk. 453. 18 Foster v. Ropes, 111 Mass. 10. »w Groff V. Belch, 62 Mo. 400; Thompson v. Conover, 32 N. J. Law, 468. Ch. 3] RULES FOB ASCERTAINING INTENTION. 87 baled,'" by the seller, the doing of these things is presumptively a condition precedent to the transfer of the property. And if the parties contract for the sale of an unfinished chattel, as a partly- built carriage or ship, in the absence of anything to show a con trary intention, the property will not pass until the chattel is com- pleted.^^ It is also within the principle of this rule that, if the goods are to be paid for on delivery at a particular place, the prop- erty will not pass until delivery,^^ unless a contrary intention is ex- pressed ^^ or is inferable.^* But the fact that something is to be done to the goods by the seller after delivery will not prevent the property from passing." Rule 2. Blackburn states the second rule without confining it to acts to be done by the seller, and regards it as hastily adopted from the civil law, where it was a logical deduction from the principle that there could be no sale until the price was fixed.^' But the court of exchequer, in 1863, reviewed the English authorities,^^ and con- cluded that the rule should be modified by confining it to acts to be done by the seller, thus bringing it within the principle of the first «o Keeler v. Vandervere, 5 Lans. 313. 21 Halterline v. Rice, 62 Barb. 593; Pritchett v. Jones, 4 Rawle, 260. As to contracts for chattels to be manufactured by the seller, see post, 103. 2 2 Calcutta & B. S. Nav. Co. v. De Mattos, 32 Law J. Q. B. .322, 335, per Cockbum, C. J.; The Venus, 8 Cranch, 253, 275; Suit v. Woodhall, 113 Mass. 391; McNeal v. Braun, 53 N. J. Law, 617, 23 Atl. 687; Sneathen v. Grubbe, 88 Pa. St. 147; Braddock Glass Co. v. Irwin, 153 Pa. St. 440, 25 Atl. 490; Devine v. Edwards, 101 111. 138. «» Lynch v. O'Donnell, 127 Mass. 311. 24 Weld V, Came, 98 Mass. 152; Terry v. Wheeler, 25 N. Y. 520; Bethel Steam-Mill Co. v. Brown, 57 Me. 9, 18; LIngham v. Eggleston, 27 Mich. 324, 329; Rail v. Little Falls Lumber Co., 47 Minn. 422, 50 N. W. 471. 2B Hammond v. Anderson, 1 Bos. & P. (N. R.) 69; Greaves v. Hepke, 2 Barn. & Aid. 131; Mount Hope Iron Co. v. Buffinton, 103 Mass. 62; Morrow v. Reed, 30 Wis. 81. 2 8 Blackb. Sales, 175. 2T Hanson v. Meyer, 6 East, 614; Zagury v. Fumell, 2 Camp. 240; Withers V. Lyss. 4 Camp. 237; Simmons v. Swift, 5 Bam. & G. 857; Logan v. Le Mesurier, 6 Moore, P. 0. 116. 88 EFFECT OF THE CONTRACT IN PASSING THE PROPERTY. [Ch. 3 rule." Such a modification appears to rest upon sound principle; for, as Blackburn observes, there is little reason in supposing it to be the intention of the parties to render beneficial to the buyer the delay of an act in which he is to concur. The rule is generally laid down in the United States without qualification,''" though it is sometimes confined to acts to be done by the seller or by the seller in connection with the buyer."* If, however, the goods are actually delivered, this shows an intention to complete the sale; and in such case a provision that they are to be weighed or meas- ured will not prevent the property from passing.'^ If they have been weighed or measured, the mere arithmetical calculation of the price is immaterial." 2 8 Tiirley v. Bates, 2 Hurl. & C. 200. 33 Law J. Exch. 43; Chalm. Sale, p. 31. The point was not necessary to the decision of Turley v. Bates. 2» Macomber v. Parker, 13 Pick. 175, 183; Riddle v. Varnum, 20 Pick. 280; Barnard v. I'oor, 21 Pick. 378; Sherwin v. Mudge, 127 Mass. 547; Smart v. Batchelder, 57 N. H. 140; Nesbit v. Burry, 25 Pa. St. 208; Nicholson v. Tay- lor, 31 Pa. St. 128; Frost v. Woodruff, 54 111. 155; Rosenthal v. Kahn, 19 Or. 571, 24 Pac. 989. 30 Elgee Cotton Cases, 22 Wall. 180, 188, et seq.; Olyphant v. Baker, 5 Denlo, 379, 381; Kein v. Tupper, 52 N. Y. 550; Russell v. Carrington, 42 N. Y. 118, 124; Lingham v. Eggleston, 27 Mich. 324; Boswell v. Green, 25 N. J. Law, 390, 398; Haxall v. Willis, 15 Grat. 434, 442; McClung v. Kelley, 21 Iowa, 508, 511; King v. Jarman, 35 Ark. 190. 81 Macomber v. Parker, 13 Pick. 175, 183; Riddle v. Varnum, 20 Pick. 280; Odell V. Boston & M. R. R., 109 Mass. 50; Burrows v. Whittaker, 71 N. Y. 291; Boswell v. Green, 25 N. J. Law. 390; Scott v. Wells, 6 Watts & S. 357; Leonard v. Davis, 1 Black, 476, 483; Upson v. Holmes, 51 Conn. 500; Bald- win V. Doubleday, 59 Vt 7, 8 AU. 576; Haxall v. Willis, 15 Grat. 434, 445; Shealy v. Edwards, 73 Ala. 175; CunniuKham v. Asbbrook, 20 Mo. 553; Morrow v. Reed, 30 Wis. 81; Foster v. Magill, 119 111. 75, 8 N. E. 771; Sedg- wick V. Cottingham, 54 Iowa, 512, 6 N. W. 738; King v. Jarman, 35 Ark, 190. «2 Tansley y. Turner, 2 Bing. N. C. 151; Bradley v. Wheeler, 44 N. Y. 495. €h. 3] CONDITIONAL SALE ACCOMPANIED BY DELIVERY. 89 CONDITIONAL SALE ACCOMPANIED BY DELIVERY. 45. Where the buyer is by the contract bound to do something as a condition, either precedent or concurrent, on -wrhich the passing of the property depends, the prop- erty ■will not pass until the condition be fulfilled, even though the goods have been actually delivered into the possession of the buyer. The commonest condition precedent to the passing of the property is the payment of the price. Such a condition is frequently ex- pressed,^^ as where goods are sold upon the installment plan;^* and it may be implied from the circumstances, as where goods are ordered to be sent by the seller, to be paid for on delivery, either in cash or by note or acceptance.^ ^ If the goods are delivered without payment, the presumption is that the condition is waived, or that none originally existed.^® But this presumption may be rebutted by evidence of the acts or declarations of the parties, or of other facts, tending to show an intention to assert the condition.''' If the sale is conditional, no title passes to the buyer; and, where the «8 Mires v. Solebay, 2 Mod. 243. 8 4 Ex parte Crawcour, 9 Ch. Div. 419. See cases cited in notes 39 and 40, post. SB Bishop V. Shillito, 2 Barn. & Aid. 329, note a; Brandt v. Bowlby. 2 Barn. & Adol. 932. And see cases cited in note 11, supra, and notes 36 and 37, post. 8 8 Smith V. Dennie, 6 Piclf. 262; Farlow v. Ellis, 15 Gray, 229; Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Wigton v. Bowley, 130 Mass. 252; Peabody v. Maguire, 79 Me. 572, 585, 12 Atl. 630; Paul v. Reed, 52 N. H. 136; Ward v. Shaw, 7 Wend. 404; Smith v. Lynes, 5 N. Y. 41; Parker v. Baxter. 86 N. Y. 586; Cole v. Ben-y, 42 N. J. Law, 308; Bowen v. Burk, 13 Pa. St. 146; Mackaness v. Long, 85 Pa. St. 158; Thompson v. Wedge, 50 Wis. 642, 7 N. W. 560; Fishback v. Van Dusen, 33 Minn. Ill, 22 N. W. 244; Warder, Mitchell & Co. v. Hoover, 51 Iowa, 491, 1 N. W. 795. «7 Tyler v. Freeman, 3 Cush. 261; Whitney v. Eaton, 15 Gray, 225; Farlow V. Ellis, 15 Gray, 229; Peabody v. Magnire, 79 Me. 572, 585, 12 Atl. 630; Langd. Gas. Sales, 1026; and cases cited in last note. 90 EFFECT OF THE CONTRACT IN PASSINQ THE PROPERTY. [Ch. 3 question is unaffected by statute,^* none can be acquired by his creditors,"'* or by bona fide purchasers from him.''" But, although the property does not pass, the buyer acquires a defeasible interest, which before breach of condition he may sell,*^ and which is subject to attachment by his creditors,*^ and which upon the performance of the condition becomes perfect. And, like other bailees, he may maintain an action of trover against one who wrongfully invades his possession.*^ The seller also may sell or 88 Under statutes enacted in many states making chattel mortgages void against creditors and purcliasers from the mortgagor unless filed or recordetl, conditional sales are frequently held to be chattel moi-tgages. llervey v. Rhode Island Locomotive Works, 93 U. S. 664; Murch v. Wright, 46 lU. 487; Heryford v. Davis, 102 U. S. 235. See Benj. Sales (Corbin's 6th Am. Ed.) § 452 et seq. In some states, also, statutes have been enacted providing that conditional sales, where possession is delivered and the property reserved by the seller to secure the price, shall be void against creditors of the buyer or purchasers from him unless filed or recorded. See Benj. Sales (Corbin's 6th Am. Ed.) § 461. 3 9 Hussey v. Thornton, 4 Mass. 404; Barrett v. Prltchard, 2 Pick. 512; Forbes v. Marsh, 15 Conn. 3S4; Mack v. Story, 57 Conn. 407, 18 Atl. 707; Armington v. Houston, 38 Vt. 448; Rogers v. Whitehouse, 71 Me. 222; Strong v. Taylor, 2 Hill, 326; Herring v. Hoppock, 15 N. Y. 409; Goodell v. Fair- brother, 12 R. I. 233; Call v. Seymour, 40 Ohio St 670; Dewes Brewery Co. V. Men-itt, 82 Mich. 198, 46 N. W. 379; City Nat. Bank v. Tufts, 63 Tex. 113. 40 Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51; Coggill v. Hartford & N. H. R. Co., 3 Gray, 545; Hirschorn v. Canney, 98 Mass. 149; Zuchtmann V. Roberts, 109 Mass. 53; Ballard v. Burgett, 40 N. Y. 314; Weeks v. Pike, 60 N. H. 447; Cole v. Berry, 42 N. J. Law, 308; Sanders v. Keber, 28 Ohio St. 630; Bradshaw v. Warner, 54 Ind. 58; Sumner v. Cottey, 71 Mo. 121; Fairbanks v. Eureka Co., 67 Ala. 109; Sumner v. Woods, Id. 139; National Bank of Commerce v. Chicago, B. & N. R. Co., 44 Minn. 224, 46 N. W. 342, 560; McComb v. Donald's Adm'r, 82 Va. 903, 5 S. E. 558; Standard Imp. Co. V. Parlin & Orendorff Co. (Kan. Sup.) 33 Pac. 360. A different rule, however, appears to prevail in Pennsylvania, Illinois, Kentucky, and Maryland. See Benj. Sales (Corb. 6th Am. Ed.) § 446 et seq. *i Day V. Bassett, 102 Mass. 445; Chase v. Ingalls, 122 Mass. 381; Car- penter v. Scott, 13 R. I. 477; Nutting v. Nutting, 63 N. H. 221. See Win- chester v. King, 46 Mich. 102, 8 N. W. 722. *2 Newhall v. Kingsbury, 131 Mass. 445; Denny v. Eddy, 22 Pick. 535; Hurd V. Fleming, 34 Vt 169. But the seller may retain the right to posses- sion notwithstanding deliveiy. Nichols v. Ashton, 155 Mass. 205, 29 N. E. 519. *8 Harrington v. King, 121 Mass. 269. Ch. 3] SALE ON TRIAL OR APPROVAL. 91 mortgage his interest, and it may be attaclied by his creditors.** The property being in the seller, the risk of loss remains in him.*' Upon breach of the condition, the right of possession revests in the seller,*' and he may replevy the goods or sue to recover their value.*^ It is generally held that he need not, in a suit to recover the value, allow for partial payments, or, in replevin, refund the same,*^ and that, although the seller reclaims the goods, the buyer cannot recover for installments paid;*® but some courts, upon equi- table principles, require the seller to account for payments re- ceived.'** SALE ON TRIAL OR APPROVAL. 46. Where goods are delivered to the buyer on trial or on approval, the property therein passes to him — (a) When he signifies his approval; or (b) On the expiration of the time limited for trial; or (c) If no time is limited, on the expiration of a rea- sonable time. 47. SALE OR RETURN— Where goods are delivered to the buyer -with the understanding that the property is ta pass to him immediately, but that he may afterwards re- 44 Burnell v. Marvin, 44 Vt. 277; Everett v. Hall, 67 Me. 497; McMillan V. Larned, 41 Mich. 521, 2 N. W. G62. *6 Randle v. Stone & Co., 77 Ga. 501; Stone v. Waite, 88 Ala. 599, 7 South. 117; Swallow v. Emery, 111 Mass. 355. See Kortlander v. Elston, 2 C. C. A. 657, 52 Fed. 180. Contra, Tiifts v. Griffin, 107 N. C. 49, 12 S. E. 68; Burnley V. Tufts, 66 Miss. 49, 5 South. 627; Tufts v. Wynne, 45 Mo. App. 42. 48 Hubbard v. Bliss, 12 Allen, 590. 47 Hill V. Freeman, 3 Cush. 257; Salomon v. Hathaway, 126 Mass. 482; Hughes V. Kelly, 40 Conn. 148; Stone v. Perry, 60 Me. 48; Whitney v. Me- Connell, 29 Mich. 12; Wiggins v. Snow, 89 Mich. 476, 50 N. W. 991. But see Wheeler & Wilson INIanuf'g Co. v. Teetzlaff, 53 Wis. 211, 10 N. W. 155, where a provision authorizing the seller on default to take the machine at his option was held to require demand. 48 Angier v. Taunton Paper Co., 1 Gray, 621; Brown v. Haynes, 52 Me. 578; Duke v. Shackleford, 56 Miss. 552; Fleck v. Warner, 25 Kan. 492. 49 Haviland v. Johnson, 7 Daly, 297; Latham v. Sumner, 89 111. 233. 80 Preston v. Whitney, 23 Mich. 260; Hine v. Roberts, 48 Conn. 267; Guil- ford v. McKinley, 61 Ga. 230; Third Nat. Bank v. Armstrong, 25 Minn. 530;. Snook V. Raglan, 89 Ga. 251, 15 S. B. 364. 92 EFFECT OF THE CONTRACT IN PASSING THE PROPERTY. [Ch. 3 turn the goods if he sees fit, the property passes to the buyer, and, in case of a return of the goods, revests in the seller. Conditions postponing the transfer of the property may exist for the benefit of the buyer as well as of the seller. Instances of such conditions are afforded in sales "on trial" or "on approval." Such a transaction amounts to a bailment, with the right in the buyer to convert the bailment into a sale, at his option. In such cases there is no sale until the buyer signifies to the seller his approval or acceptance, or does some act adopting the transaction as a sale."^ If he does not signify his approval or acceptance, but retains the goods without giving notice of rejection, it is generally held that the property passes on the expiration of the time limited for trial, "' or, if no time is limited, on the expiration of a reasonable time,"' although some cases hold that failure to return is merely evidence of intention on the buyer's part to exercise his right to purchase."* Sale or return. A bailment with an option in the bailee to buy is, however, es- sentially different from a sale with the right of return. It is, of course, competent for the parties to agree that the property in the goods shall pass to the buyer on delivery, and that, if he does not approve of the goods, he may return them. In the latter case the transaction is a sale defeasible on the fulfillment of a condition sub- Bi Swain v. Shepherd, 1 Moody & R. 223; Elphick v. Barnes, 5 C. P. Div. 321, 32G; Hunt v. Wyman, 100 Mass. 198; Pitts' Sons Manuf g Co. v. Poor, 7 111. App. 24; Mowbray v. Cady, 40 Iowa, 604; Pierce v. Cooley, 56 Mich. 552, 23 N. W. 310. 62 Humphries v. Caivalho, 16 East, 4.t; Elphick v. Barnes, 5 C. P. Div. 321; Waters Heater Co. v. Mansfield, 48 Vt. 378; Butler v. School Dist., 149 Pa. SL 3.11. 24 All. 308; Spiclder v. Marsh, 36 Md. 222; Delamater v. Chappoll, 48 Md. 244, 2.53; Prairie Farmer Co. v. Taylor, 60 111. 440; Aultman v. Theirer, 34 Iowa, 272. A sale on condition that the buyer may return on a certain continj?ency becomes absolute if he disables himself from performing the con- dition by mortgaging the goods. Lynch v. Willford (Minn.) 59 N. W. 311. B3 Moss V. Sweet, 16 Q. B. 493, 20 Law J. Q. B. 167; Dewey v. Erie Bor- ough, 14 Pa. St. 211. »* Hunt V. Wyman, 100 Mass. 198, per Wells, .7.; Kahn v. Klabunde, 50 Wis. 235, 6 N. W. 888. See Sturm v. Boker, 150 U. S. 312, 331, 14 Sup. Ct. 99. Ch. 3] SALE ON TRIAL OR APPROVAL, 93 sequent." The property vests in the buyer, and, upon the ex- ercise of his right of return, it revests in the seller. In case the buyer disables himself from performiug, the sale becomes absolute. The difficulty lies in ascertaining the intention, and different con- structions would probably be placed upon the same transaction by different courts.'*" Thus, in several cases where goods were de- livered to the buyer upon his agreement to return them on a specified day, or else to pay for them, the transaction has been construed as an executed sale with the right of return; ^'^ but it is perhaps open to doubt whether it would not be more in accordance with the in- tention of the parties to construe such a transaction as a bail ment with the right to purchase. The terms "sale on trial," "sale on approval," and "sale or return" are generally used without much distinction; "^ but the term "sale or return" is in this country often confined to sales defeasible upon the return of the goods, in dis- tinction to the terms "sale on trial" and "sale on approval," which are confined to cases in which the approval of the buyer is a condi- tion precedent to the transfer of the property; "^^ and the distinction is a convenient one. 6 6 Ray V. Thompson, 12 Gush. 281; Schlesinger v. Stratton, 9 R. I. 578, 580; Hotchkiss v. Higgins, 52 Conn. 205; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552. Cf. Head v. Tattersall, L. R, 7 Exch. 7; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99. See Clark, Cont. 621-624. 66 Ray V. Thompson, 12 Cush. 281. 67 Dearborn v. Turner, 16 Me. 17; Buswell v. Bicknell, 17 Me. 344; Crocker V. Gullifer, 44 Me. 491, 494; McKinney v. Bradlee, 117 Mass. 321; Martin V. Adams, 104 Mass. 262. 68 Cf. Moss V. Sweet, 16 Q. B. 493, 20 Law J. Q. B. 167; Kahn v. Klabunde, 50 Wis. 235, 238, 6 N. W. 888; Spickler v. Marsh, 36 Md. 222; Benj. Sales, § 595; Chalm. Sale, pp. 29, 32. 6 9 Cf. Schlesinger v. Stratton, 9 R. I. 578, 580; Hotchkiss v. Higgins, 52 Conn. 205; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552; Benj. Sales (Bennett's 6th Am. Ed.) pp. 568, 569; Id. (Corbin's Bd.) p. 796, note 30. 94 KFFECT OF THE CONTRACT IN PASSING THE PROPERTY. [Ch. 4 CHAPTER IV. EFFBOT OF THE CONTRACT IN PASSING THE PROPERTY (Continued) -SALE OF CHATTEL NOT SPECIFia 48-49. In General. 50-53. Subsequent Appropriation. 54-56. Reservation of Right of Disposal. IN GENERAL. 48. Where the contract is for the sale of unascertained goods, the contract is executory, and no property is thereby transferred. 49. Where the goods -which are the subject-matter of a contract of sale are part of a specific stock from -which they have not been separated, no property passes until separation. EXCEPTION— In some states it is held that, where the goods sold are a part of a specific bulk of uni- form character, the property in an undi-vided part is transferred by the contract, and -without sepa- ration, if such be the intention of the parties. The rule that the parties must be agreed on the specific goods which are to be the subject of the sale is founded, as Blackburn says, on the very nature of things; for, until the parties are agreed on the specific goods, the contract can be no more than a contract to supply goods answering a particular description, and since the seller would fulfill his contract by furnishing any goods answering the description, and the buyer could not object to them, provided they answered the description, it is clear that there can be no intention to transfer the property in any particular goods.* Where Goods are Part of Specific Stock. But, where the goods are so far ascertained that the parties have agreed to take them from a particular stock owned by the seller, 1 Blackb. Sales, 124; Benj. Sales, 352; 2 Kent, Comm. 49flL Ch. 4] IN GENERAL. 95 a different qnestion may arise. If the goods are part of a specific stock, consisting of units of varying quality or value, as a number of sheep out of a flock, it is clear that a selection must take place before the property in any particular units can pass. But if the goods are part of a uniform mass, such as grain or oil or coal, it is possible that the parties may intend that the property in an un- divided part shall pass, the parties becoming quasi tenants in com- mon of the mass; and such an intention may be inferable although the contract is not in terms for the sale of an undivided interest, as a half or a third, but where it is for the sale of a certain number of bushels or gallons or tons of the mass of grain or oil or coal. In England no such distinction is recognized, and the general rule is applied, even though the mass be of uniform quality and value.^ But in the United States, while many cases maintain strictly the older rule,^ others hold that if the sale be of a certain quantity, by weight or measure or count, its separation from a specific, uniform mass is not necessary to pass the property, when the intention to do so is otherwise manifested.* Upon the ques- 2 Wallace v. Breeds, 13 East, 522; Austen v. Craven, 4 Taunt. 644; White V. Wilks, 5 Taunt. 176; Busk v. Davis, 2 Maule & S. 397; Shepley v. Davis, 5 Taunt. 617; Gillett v. Hill, 2 Cromp. & M. 530; Gabarron v. Kreeft, L. R. 10 Exch. 274. Whitehouse v. Frost, 12 East, 614, may, perhaps, rest upon this distinction. See Busk v. Davis, 2 Maule & S. 397. But the case has been much questioned in England. Benj. Sales, § 354. It is, however, fre- quently cited as an authority in the American cases v^'hich recognize the distinction. » Woods V. McGee, 7 Ohio, 127 (but see Newhall v. Langdon, 89 Ohio St. 87); Scudder v. Worcester, 11 Gush. 573; Ropes v. Lane, 9 Allen, 502; Mes- ser V. Woodman, 22 N, H. 172; Reeder v. Machen, 57 Md. 56; Ferguson v. Louisville City Nat. Bank, 14 Bush, 555; Courtright v. Leonard, 11 Iowa, 32; McLaughlin v. Piatti, 27 Cal. 451; Dunlap v. Berry, 4 Scam. 327; Warten v. Strane, 82 Ala. 311, 8 South. 231; Commercial Nat. Bank v. Gillette, 90 Ind. 268. See, also, Golden v. Ogden, 15 Pa. St, 528; Haldeman v. Duncan, 51 Pa. St. 66. Some cases cited as authorities on this point, perhaps, rest on the ground that the mass was not uniform. Woods v. McGee, supra; Hutch- inson V. Hunter, 7 Pa. St. 140; McLaughlin v. Piatti, 27 Cal. 451 (see Horr V. Barker, 8 Cal. 003, 11 Cal. 393). See Stone v. Peacock, 35 Me. 385, 388. * Kimberly v. Patchin, 19 N. Y. 330; Russell v. Carrington, 42 N. Y. 118; Pleasants v. Pendleton, 6 Rand. (Va.) 473; HurCC v. Hires, 40 N. J. Law, 581; Chapman v. Shepard, 39 Conn. 413; Waldron v. Chase, 37 Me. 414 (but Bee Morrison v. Dlngley, 03 Me. 553); Newhall v. Langdon, 39 Ohio St. 87: 96 EFFECT OF THE CONTRACT IN PASSING THE PROPERTY. [Ch. 4 tion of intention, the payment of the price, and particularly the undortakin Kan. 735, 14 Pae. IGS; Nash v. Brewster, 39 Minn. 530, 41 N. W. 105; Mac- kellar v. Pillsbury, 48 Minn. 396, 51 N. W. 222; Phillips v. Ocmulgee Mills, 55 Ga. 633; Watts v. Hendry, 13 Fla. 523. Where the contract was for "merchantable brick." to be sorted from the kiln by the buyer, the title did not pass; it being impossible to determine either \vhat brick, or what rel- ative portion of the kiln, were sold. Kimborly v. Patchin, supra, distin- guished on the ground that it did not appear that the brick were uniform and of equal value. Anderson v. Crisp, 5 Wash. 178, 31 Pac. 638. Page V. Caiijenter, 10 N. H. 77; Lamprey v. Sargent, .'>8 N. H. 241; Weld V. Cutler, 2 Gray, 195. But see Kimberly v. Patchiu, 19 N. Y. 33U, per Com- stock, J., commenting on Crofoot v. Bennett, 2 N. Y. 258. « Pleasants v. Pendleton, 6 Rand. (Va.) 473, a leading case, of which it was observed by Grimke, J., In Woods v. McGee, 7 Ohio, 127, that "it was a hard case, and hard cases make shipwreck of principles." 7 Gushing v. Breed, 14 Allen, 376; Keeler v. Goodwin, 111 Mass. 490; Dole V. Olmstead, 36 111. 150, 41 111. 344; Warren v. MliUken, 57 Me. 97. Ch. 4] SUBSEQUENT APPROPBIATION. 97 SUBSEQUENT APPROPRIATION. 50. When there is a contract for the sale Ox ■unascer- tained goods, no property is transferred until there has been an appropriation of goods to the contract, — that is, a designation by the seller and buyer of the goods which are to be the subject-matter of the sale, -with the inten- tion of passing the property in them ; and, vsrhen goods are so appropriated to the contract, the property in them is transferred. 61. HOW EFFECTED— Appropriation to the contract can only take place by the concurrence of buyer and seller, unless one of them has been authorized by the other to act on behalf of both. 52. BY ACT OF ONE PARTY— Appropriation by the act of one of the parties takes place 'when, in pursuance of express or implied authority conferred by the other, he does an act in respect to the goods "which, from its nature, he cannot do until the goods are appropriated. 53. BY DELIVERY TO CARRIER— An appropriation takes place by the act of the seller w^hen, in pursuance of the contract, he delivers goods to a carrier for transmis- sion to the buyer, and does not reserve the right of dis- posal. Although no property can pass until the goods have been ascer- tained, it does not necessarily follow that because they have been ascertained the property passes. The transfer of the property, in such case, as well as in the case of a contract for the sale of goods originally specific, depends solely on the intention of the parties, and. while in both cases the presumption is that the parties intend the property to pass,® it may well happen that, though they subse- quently agree upon the specific goods, they intend that the property shall remain in the seller until the performance of a condition. To effect a transfer of the property, it is necessary, not only that the 8 Blackb. Sales (2d Ed.) 128. SALES — 7 98 EFFECT OF THE CONTRACT IN PASSING THE PROPERTY. [Ch. 4 goods be ascertained, but that they be appropriated to the contract. The term "appropriation to the contract," as has been observed by Chalmers, J.," is unfortunate; for it sometimes moans simply that the goods have been specified as the subject-matter of the con- tract, so that the seller would brc;ik it by delivering any other goods, though the property still remains in him, while, on the other hand, it may, and usually does, mean that the goods have been designated with the intention of passing the property in them to the buyer, — that is, finally appropriated to the contract, so as to pass the property in them.^" For the sake of clearness, the term will here be confined to the latter meaning. How Effected, An appropriation can only take place by the assent of both par- ties,^^ but the assent may be implied as well as express;" and it may be given by either party after ^^ or before a selection by the other. When the goods are afterwards selected by the buyer with the assent of the seller, or, if selected by the seller, are approved by the buyer, no difficulty arises.^* As was said by Holroyd, J., •'The selection of the goods by the one party, and the adoption of the act by the other, converts that which was before a mere agree- ment to sell into an actual sale, and the property thereby passes." *" Appropriation by Act of Seller. The difficulty arises when the seller makes the selection pursuant to authority derived from the buyer; and it is often a nice question •of law whether the acts done by the seller merely express a rev- ■ocable intention to appropriate certain goods to the contract, or » Chalm. Sale, 32. 10 Wait v. Baker, 2-Exch. 1, 8, per Parke, B. 11 Campbell v. Mersey Docks & Harbour Board, 14 C. B. (N. S.) 412, per Willes, J.; Godts v. Rose, 17 C. B. 229, per Willes, J.; Jenner v. Saiitb, L. R. 4 C. P. 270, per Brett, J.; Reeder v. Macben, 57 Md. 56; Home Ins. Co. T. Heck, 65 111. 111. 12 Campbell v. Mersey Docks & llaibour Board. 14 C. B. (N. S.) 412, per Erie, J.; Alexander v. Gardner, 1 Bing. N. C 671; Sparkes v. Marsball, 2 Biug. N. C. 7G1. 13 Robde V. Thwaltes, 6 Barn. & O. 388. !♦ Benj. Sales, § 358. 16 Robde v. Thwaites, G Barn. & C. 388. See, also, Hatch v. Oil Co., 100 U. S. 124, 136. Ch. 4] SUBSEQUENT ArPROPRIATIOX. 99 whether they show an irrevocable determination of a right of elec- tion.*' Authority to make the appropriation is generally con- ferred upon the seller by implication upon the ground that he is by the contract authorized or required to do an act in respect to the goods on behalf of the buyer which, from the nature of the act, he cannot do until the goods are appropriated.*^ Until he per- forms the act, he may change his mind as often as he will as to what goods he will select, for the contract gives him till then to make the choice; but, when once he has performed the act, his election is determined, and the property in the goods passes to the buyer.** Thus where, by the contract, the seller is to sell a certain number of barrels of flour, and to load them into the wagon or vessel of the buyer, who is to fetch them away, the seller has implied authority to appropriate the goods, and he may select any goods he pleases, provided they conform to the contract, and he may select first one lot, and then another, without affecting the property in them; bu*^^ when once he loads the barrels into the buyer's wagon or vessel the appropriation is final, and the property passes.** So when the seller is to deliver the goods at a place designated by the con- tract, the property passes upon the delivery.** Appropriation by Delivery to Carrier. The commonest form of appropriation by act of the seller is by the delivery of the goods to a carrier as agent for the buyer. Thus i« Chalm. Sale, 32. IT Langd. Cas. Sales, 1028: Smith v. Edwards, 156 Mass. 221, 30 N. E. 1017, per Holmes, J. 18 Blackb. Sales, 128; Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. 19 Benj. Sales, § 359; Gill v. Benjamin, 64 Wis. 362, 25 N. W. 445 (to be delivered over the rail of the buyer's vessel). A foreign merchant contracted for several cargoes of lumber, to be delivered, seasoned, f. o. b., within seven months of May 1st; certain advances to be made before June 1st. The advances were made, and the first cargo was prepared by August, piled by itself, and the buyer notified. The buyer had difficulty in chartering ships, and the lumber was burned. Held, that the title had not passed. Schreyer V. Kimball Lumber Co., 4 C. C. A. 547, 54 Fed. 653. 2 National Bank v. Dayton, 102 U. S. 59; Hyde v. Lathrop, 2 Abb. Dec. 436; Claflin v. Boston & L. R. Co., 7 Allen, 341; Veazie v. Holmes, 40 Me. 69; Bloyd v. Pollocks, 27 W. Va. 75; Sedgwick v. Cottingham, 54 Iowa, 512, 6 N. W. 738. 100 EFFECT OF THE CONTRACT IN PASSING THE rBOPERTY. [Ch. 4 if the buyer orders goods to be sent to him at his expense, and the seller delivers goods conformiug to the contract to a carrier for transmission to tlie buyer, the appropriation is complete upon such delivery, provided that the seller does not reserve the right of dis- posal.'^ The right to make the appropriation springs from the au- thority to deliver to the carrier as agent for the buyer, which is equivalent to delivery to him personally, and such authority may either be conferred by the express terms of the contract, or may be implied from the course of trade. If, however, the seller is to de- liver to the buyer at the place of destination, delivery to the car- rier is not delivery to him as agent of the buyer, but as agent of the seller, and hence does not pass the property.''^ Whether delivery to the carrier in pursuance of an order to that effect from the buyer, with directions to collect the price on delivery to the buyer, or, as the transaction is usually designated, "shipment C. O. D.," operates as an appropriation to the contract is a question on which the authorities differ. On the one hand, it is held, with what ap- pears to be the better reason, that in such a case the carrier is the 21 Fragano v. Long, 4 Barn. & C. 219; Browne v. Hare, 4 Hud. & N. 822, 29 Law J. Exch. 6; affirming 3 Hurl. & N. 484, 27 Law J. Excb. 372; Tre- gelles V. Sewell, 7 Hurl. & N. 574; Calcutta & B. S. Nav. Co. v. De Mattos, 32 Law J. Q. B. 322, 328, per Blackburn, J.; The Mary and Susan, 1 Wheat. 25; Blum v. The Caddo, 1 Woods, 64, Fed. Cas. No. 1,573; Low v. Andrews. 1 Stoiy, 38, Fed. Cas. No. 8,559; Fenton v. Braden, 2 Cranch, C. C. 550, Fed. Cas. No. 4,730; Finch v. Mansfield, 97 Mass. 89; Merchants' Nat. Bank v. Bangs, 102 Mass. 291; Odell v. Boston & M. R. Co., 109 Mass. 50; Frank V. Hoey, 128 Mass. 263; Smith v. Edwards, 156 Mass. 221, 30 N. E, 1017; Torrey v. Corliss, 33 Me. 3.33; Arnold v. Prout, 51 N. H. 587; Hobart v. Littlefield, 13 R. I. 341; Krulder v. Ellison, 47 N. Y, 36; Bailey v. Hudson R. R. Co., 49 N. Y. 70; Pacific Iron Works v. Long Island R. Co., 62 N. Y. 272; Schmertz v. Dwyer, 53 Pa. St. 335; Kelsea v. Ramsey & Gore Manuf'g Co., 55 N. J. Law, 320, 26 Atl. 907; Magruder v. Gage, 33 Md. 344; Watklns V. Paine, 57 Ga. 50; Pilgreen v. State, 71 Ala. 368; Diversy v. Kellogg, 44 111. 114; Ellis V. Roche, 73 111. 280; Ranney v. Iligby, 4 Wis. 174; Sarbecker V. State, 65 Wis. 171, 26 N. W. 541; Garretson v. Selby, 37 Iowa, 529; Bur- ton V. Baird, 44 Ark. 556. 2 2 Calcutta & B. S. Nav. Co. v. De Mattos, 32 Law J. Q. B. 322, per Blackburn, J.; Dunlop v. Lambert, 6 Clark & F. 600, per Lord Cottenham; Suit V. Woodhall, 113 Mass. 391; McNeal v. Braun, .53 N. J. Law, 617, 23 Atl. 687; Bloyd v. Pollocks, 27 W. Va. 75; Cougar v. Galena & C. U. R. Co., 17 Wis. 477. Ch. 4] SUBSEQUENT APPKOPRIATION. 101 seller's agent, and hence that the property does not pass until de- livery by the carrier to the buyer; ^^ but other cases hold that the condition as to payment is intended merely to reserve the seller's lien for the price, and that the delivery of the goods to the carrier, being made in pursuance of the instructions of the buyer, passes the property.^* Other Forms of Appropriation by Act of Seller, Appropriation by the act of the seller may take place even be- fore the goods are forwarded, as where they are to be sent in sacks furnished by the buyer. Under such circumstances, unless the seller retains the right of disposal, the appropriation is complete as soon as the seller puts the goods into the sacks.^° Another common form of appropriation by act of the seller is where, in pursuance of the contract, he incorporates his own ma- terials with the property of the buyer, as where a carpenter is em- ployed to repair a chattel or to erect a building on land of his employer. As soon as the incorporation takes place, the property in the materials passes; but up to that moment the carpenter has the right to use any materials he sees fit, and the mere fact that he has selected materials with the intention of incorporating them confers upon the employer no right of property in them.^® 23 state V. O'Neil, 58 Vt. 140, 2 Atl. 586 (see, al^o, dissenting opinion of Harlan, J., in O'Neil v. Vermont, 144 U. S. 323, 12 Sup. Ct 693, in whicb a writ of error was dismissed on the ground that no fedei'al question was involved); Lane v. Chadwick, 146 Mass. 68, 15 N. B. 121; Baker v. Bourci- cault, 1 Daly, 23; U. S. v. Shriver, 23 Fe± 134; Wagner v. Hallack, 3 Colo. 176. 24 Com. V. Fleming, 130 Pa. St. 138, 18 Atl. 622; Higgins v. Murray, 73 N. Y. 252, semble; State v. Intoxicating Liquors, 73 Me. 278; Pilgreen v. State, 71 Ala. 368; State v. Carl, 43 Ark. 353; Hunter v. State, 55 Ark. 357, 18 S. W. 374; Norfolk S. R. Co. v. Barnes, 104 N. C. 25, 10 S. B. 83. 2 5 Aldridge v. Johnson, 7 El. & Bl. 885, 26 Law J. Q. B. 296; Langton v. Higgins, 4 Hurl. & N. 402, 28 Law J. Bxch. 252. In Ogg v. Shuter, 1 C. P. Div. 47, reversing L. R. 10 C. P. 159, it was held that, by taking a bill of lading to his own order, the seller reserved the right of disposal, notwith- standing the fact that he had put the goods in the buyer's sacks. 2 6 Tripp V. Armitage, 4 Mees. & W. 687; Wood v. Bell, 6 Bl. & Bl. 355, affirming 5 El. & Bl. 772; Seath v. Moore, 11 App. Cas. 350, 381; Johnson v. Hunt, 11 Wend. 135; Wilkins v. Holmes, 6 Gush. 147; Laugd. Cas. Sales, 1029. 102 EFFECT OF THE CONTRACT IN PASSING THE PROPERTY. [Ch. 4 Seller must Act in Conformity with Authority. Where the approjiiiation is to be made by the seller, no prop- erty in the goods selected by him will pass unless he exercises his authority in conformity with the contract. Thus no property will pass if the jj^oods do not conform to the description,^^ or unless he ships the goods within the time specified,^* or unless he delivers to the carrier designated, if a particular carrier be designated by the contract" Again, no property will pass if he sends a greater quantity of goods than the buyer has ordered; and if he does so there must be a subsequent acceptance by the buyer, in order to pass the pro|)erty.^° Appropriation by Act of Buyer. Although cases in which authority to make the appropriation is conferred on the buyer are comparatively rare, the same principle applies to him as to the seller, if by the contract an act which neces- sarily determines the selection is to be performed by the buyer. For example, suppose that by the contract the seller sells out of a stack of bricks 1,000, to be selected by the buyer, who is to send 27 Wait V. Baker, 2 Exch. 1, per Tarke, B.; Gardner v. Lane, 12 Allen, 39 (cf. 9 Allen, 492, 98 Mass. 517); Wolf v. Dietzsoh, 75 111. 205; Brown v. Berry, 14 N. H. 459; Aultman, Miller & Co. v. Clifford, 55 Minn. 159, 56 N. W. 593. 2 8 Rommel v. Winjrate, 103 Mass. 327. Where the order requires shipment on a specified day, shipment before the day does not pass the property. Hoover v. Maher, 51 Minn. 269, 53 N. W. 646. > 29 Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787. 80 Cunliffe v. Harrison, 6 Exch. 903; Downer v. Thompson, 2 Hill, 137 (cf. 6 Hill, 208); Rommel v, Wingate, 103 Mass. 327; Barton v. Kane, 17 Wis. 38; Bailey v. Smith, 43 N. H. 141. Where earthenware was ordered, and additional earthenware, entirely different, was sent in the same crate, held, that the property had not jiassed. Levy v. Green, 1 El. & El. 9G9, 28 Law J. Q. B. 319. Some American cases hold that the seller "may satisfy the contract by tendering a greater quantity, from which the buyer may select, provided tlie mass does not vary in quality." Ben.j. Sales (Corbiu's 6th Am. Ed.) §§ 512, 531. This is said to be a sequence from Kimberly v. Patchin, supra, and other cases holding that where the goods sold are part of a specific bulk, of uniform character, the property in an undivided part may be transferred without separation. But, admitting the correctness of those cases, it would be an undue extension of the principle governing them to hold that a delivery of a greater amount than that ordered, out of which the buyer is to select, is a delivei'y in conformity with the contract. Ch. 4] SUBSEQUENT APPROPRIATION. 103 his cart and fetch them away. Here the buyer may choose first one part of the stack, and then another, until he has done the act determining his election; that is, until he has put the bricks into his cart. When he has done that, his election is determined, and he cannot put back the bricks and take others from the stack.'* Chattel Made to Order. Where a chattel is made to order out of the materials of the maker, it seems, on principle, that the ordinary rule should apply; that is, that unless the maker is authorized or required to do in respect to it, after it is completed, some act necessarily involving its appropriation to the contract, — ^for example, to forward it to the buyer, — the property will not pass until it is accepted by him. In making the chattel, as in procuring goods in any other way to ful- fill a contract, the seller is acting for himself, and not for the buyer, and he can satisfy his contract equally well by making and tendering another chattel within the stipulated time as by tendering the chat- tel first made. This view has been sustained in England, and in many of the courts of this country; °^ but in others it is held that the property passes as soon as the seller finishes the chattel, and sets it apart for the buyer. ^^ Chattel to he Paid for in Installments as Work Progresses. In shipbuilding contracts, where it is provided that the pay- ments shall be made in installments at particular stages in the prog- ress of the work, a peculiar rule of construction has been adopted in England, by which the parties are held, by implication, to have »i Benj. Sales, § 359; Valentine v. Brown, 18 Pick. 549. Of. Inhabitants of Westfleld v. Mayo, 122 Mass. 100. 32 Mucklow V. Mangles, 1 Taunt. 318; Atkinson v. Bell, 8 Barn. & C. 277; Moody V. Brown, 34 Me. 107; Tufts v. Grewer, 83 Me. 407, 22 Atl. 382; Shaw V. Smith, 48 Conn. 306; Rider v. Kelley, 32 Vt. 268; Scudder v. Calais Steamboat Co., 1 Cliff. 370, 378, Fed. Cas. No. 12,505, per Clifford, .T. ; Butter- worth V. McKinly, 11 Plumph. 200, per Totten, J.; Tufts v. Lawrence, 77 Tex. 526, 14 S. W. 165. See Goddard v. Binney, 115 Mass. 450, 456; Whit- comb V. Whitney, 24 Mich. 485; Pratt v. Peck, 70 Wis. 020, 36 N. W. 410; Langd. Cas. Sales, 1029. 3 3 Beraent v. Smith, 15 Wend. 493; Ballentine v. Robinson, 4G Pa. St. 177; Shawhau v. Van Nest, 25 Ohio St. 490; Higj^ins v. Murray, 4 Hun, 505. See, also. West Jersey R. Co. v. Trenton Car-Works Co., 32 N. J. Law, 517; Gor- don v. Norris, 49 N. H, 376. 104 EFFECT OF THE CONTRACT IN PASSING THE PROPERTY. [C"l). 1 evinced an intention that the property in the uncompleted vessel shall pass on the payment of the first installment.'* It follows that, as new materials are incorporated in the nnfinished vessel, they become the property of the buyer. This rule of construction has not met with approval in the United States, and it is gen- erally ^"^ held that the intention of the parties as to the time when the property is to be transferred is to be detemiined, as in other cases, from the terms of the contract and the circumstances of the transaction.^' Therefore, unless a contrary intention appears, the ordinary rule will prevail, — that no property passes before the chattel is completed.'^ RESERVATION OF RIGHT OF DISPOSAL. 54. When there is a contract for the sale of unascer- tained goods, and the seller, in pursuance thereof, deliv- ers goods to a carrier for transmission to the buyer, but reserves the right of disposal until certain conditions are fulfilled, notwithstanding the shipment, the appropriation does not become absolute, and the property does not pass until the conditions are fulfilled. 55. BY BILL OF LADING— When the goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal.^ 56. When the seller, upon shipment, takes a bill of lad- ing to his own order, and deals with it so as to secure the »4 Woods v. Russell, 5 Barn. & Aid. 1)42; Clarke v. Spence, 4 Adol. & B. 448. See, also, Seath v. Moore, 11 App. Cas. 350, 380. SB The English rule was followed in Scuddor v. Calais Steamboat Co., 1 Cliff. 370, Fed. Cas. No. 12,.jG5, and Sandford v. Wiggins Ferry Co., 27 Ind. 522. se Clarkson v. Stevens, 106 U. S. 505, 1 Sup. Ct. 200, affirming Stevens v. Shippen, 29 N. J. Eq. G02. 37 Andrews v. Durant, 11 N. Y. 35; Williams v. Jackman, 16 Gray, 514; Briggs v. Light Boat, 7 Allen, 287; Wright v. Tetlow, 99 Mass. 397; Elliott V. Edwards, 35 N. J, Law, 265, Edwards v. Elliott, 36 N. J. Law, 449; Derby- shire's Estate, 81 Pa. St. 18; Green v. Hall, 1 Houst. 506, 546. •8 Chalm. Sale, 33. Cll. 4] RESERVATION OP RIGHT OF DISPOSAL. 105 contract price, either by sending to an agent the bill of lading, together with a bill of exchange drawn on the buyer for the price, with instructions to deliver the bill of lading only on acceptance or payment of the bill of ex- change, or by delivering the bill of lading as security to a banker w^ho has discounted the bill of exchange, the appro- priation is conditional on the acceptance or payment of the bill of exchange, as the case may be. The rule that the seller who delivers goods to a carrier in pur- suance of authority derived from the buyer is presumed thereby to appropriate the goods to the contract, like other rules for de- termining when the property has passed, is simply a rule of con- struction adopted for the purpose of ascertaining the real intention of the parties, which they have failed to express.^ ** And therefore, if it appears that the seller, though authorized to make the appropria- tion, has failed to do so, or has done so upon condition, the pre- sumption must yield to the facts. The commonest way of rebutting this presumption is by showing that he has reserved the right of disposal, or, as it is frequently called, the "jus disponendi." Reservation of Right of Disposal by Bill of Lading. A bill of lading is a writing signed on behalf of the carrier to whom goods are delivered for transportation, acknowledging their receipt, and undertaking to deliver them at their place of destina- tion to the person named therein. When a bill of lading is given, no one is entitled to receive the goods except the person therein named, or one to whom the bill of lading has been properly in- dorsed. During the transit the bill of lading is the symbol of property, and the indorsement and delivery of the bill of lading operate as a symbolical delivery of the goods, and by such indorse- ment and delivery the property passes, if such is the intention of the parties. When, therefore, the seller ships the goods which he intends to deliver under the contract, but takes a bill of lading to his own order, not as agent of the buyer, but on his behalf, he thereby reserves the power of disposing of the property in the goods; and consequently there is no final appropriation, but, at most, a conditional appropriation, and the property does not, on shipment, «» Benj. Sales, § 381. 106 EFFKCT OF TIIL: CO-NTKACT in PAiJSl.NG TUE PROPERTY. [Cll. 4 pass to the buyer.*" The fact that the seller takes the bill of lad- ing to his own order is almost decisive to show his intention to reserve the right of disposal.*' The presumption that he thereb}- reserves such right may, indeed, be rebutted by proof that in so doing he acted as agent of the buj'er, and did not intend to retain control of the property; and it is for the jury to determine, as a question of fact, what the real intention was.*? But the mere fact that the seller sends to the buyer an invoice describing the goods as shipped on his account and at his risk is not enough to rebut the presumption;*' and the presumption arises although the seller ships the goods in the buyer's own vessel, and the bill of lading states that the goods are freight free, and the buyer's own property.** Dealing with Bill of Lading to Secure Contract Price. A common method of dealing with the bill of lading, when the seller reserves the right of disposal so as to secure the payment of the contract price, is to send the bill of lading, together with a bill of exchange drav,n on the buyer for the price, to an agent of the seller, with instructions that the bill of lading is not to be de- liv^ered to the buyer until acceptance or payment of the bill of *o Mirabita v. Imperial Ottoman Bank, 3 Exch. Div. 164, 172, per Cotton, L. J.; Wait V. Baker, 2 Exch. 1; Brandt v. Bowlby, 2 Bam. & Add. 932; Moakes v. Nicholson, 19 C. B. (N. S.) 290, 34 Law J. C. P. 273; Ogg v. Shuter. 1 C. P. Div. 47, reversing L. R. 10 C. P. 159; Ellershaw v. Magniac, 6 Exch 070; Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295; Farmers' & Mechanics' Nat Bank v. Logan, 74 N. Y. 5G8. 578; Erwin v. Harris, 87 Ga. 333. 13 S. E. 513; Alabama, G. S. R. Co. v. Mt. Vernon Co., 84 Ala. 173, 4 South. 356; Forcheimer v. Stewart, 65 Iowa, 593, 22 N. W. 886; Bergman v. Indianapolis & St. L. R. Co., 104 Mo. 77, 15 S. W. 992. See, also, Stollen- werck v. Thacher, 115 Mass. 224. Where the seller delivers goods to a car- rier, consigned to himself, in care of the buyer, the property does not pass. Ward V. Taylor, 56 111. 494. *i Shepherd v. Harrison, L. R. 5 H. L. IIG; Dows v. National Exchange Bank, 91 U. S. 618; Newcomb v. Boston & L. R. Co., 115 Mass. 230. *2 Joyce v. Swann, 17 C. B. (N. S.) 84; Van Casteel v. Booker, 2 Exch. 691; Browne v. Hare, 4 Hurl. & N. 822, 29 Law J. Exch. 6; Moakes v. Nichol- son, 19 C. B. (N. S.) 290, 34 Law J. C. P. 273; Merchants' Nat Bank v. Bangs, 102 Mass. 291; Hobart v. Littlefield, 13 R, I. 341. *^ Cases cited in note 41, supra. 4+ TuiTier V. Trustees of Liverpool Docks, Exch. 543; Gabarron v. Kreeft, L. R. 10 Exch. 274. Ch. 4] RESERVATION OF RIGHT OF DISPOSAL. 107 excliange. In such a case the appropriation does not become ab- solute, and the property does not pass, until the buyer accepts or pays the bill of exchange, as the case may be.** And if the seller transmits the bill of exchange and the bill of lading directly to the buyer, upon condition that he is not to retain the bill of lading unless he honors the bill of exchange, the buyer is bound to return the bill of lading if he does not comply with the condition; and if he wrongfully retains the bill of lading the property in the goods does not pass to him.*^ More frequently still, the seller obtains a discount of the bill of exchange from a banker to whom he delivers it with the indorsed bill of lading attached. Under these circum- stances, the banker acquires a special property in the goods to secure his advances, and the appropriation of the goods to the contract is conditional upon the buyer's payment of the bill of exchange,*^ but upon payment or tender by him the property vests in him. *6 Mirabita v. Imperial Ottoman Bank, 3 Exch. Div. 164, per Cotton, L. J.; Shepherd v. Harrison, L. R. 4 Q. B. 196; Id. 493, in the house of lords, L. R. 5 H. L. 116; Ogg v. Shuter, 1 C. P. Div. 47; Alderman v. Eastern R. R., 115 Mass. 23;!; Farmers' & Mecliauics' Nat. Bank v. Logan, 74 N. Y. 568, 578; Seeligson v. Philbrick, 30 Fed. 600; Jones v. Brewer, 79 Ala. 545. A bill of lading deliverable to order, when attached to and forwarded with a time draft, without special instructions, to an agent, for collection, may be surrendered to the drawee on acceptance of the draft. National Bank of Commerce v. Merchants' Nat Bank, of Memphis, 91 U. S. 92. But where the seller delivered goods to a canier, consigned to the buyer, and took a shipping receipt in the name of the buyer, which he sent with a draft to a bank, with directions to deliver the receipt on acceptance of the draft, a finding that the property passed to the buyer on delivery to the carrier was warranted. Wigton v. Bowley, 130 Mass. 252. 48 Shepherd v. Harrison, L. R. 4 Q. B. 196; Id. 493, L. R. 5 H. L. 116, 133, per Lord Cairns; Cayuga County Nat. Bank v. Daniels, 47 N. Y. 631. Where the seller deposited in the mail, directed to the buyer, an unindorsed bill of lading, attached to a draft for the price, the question whether the property had passed was for the jury. Alabama G. S. R. Co. v. Mt. Vernon Co., 84 Ala. 173, 4 South. 356. See Ex parte Banner, 2 Ch. Div. 278. 4T Mirabita v. Imperial Ottoman Bank, 3 Exch. Div. 164; Jenkyus v. Brown, 14 Q. B. 496, 19 Law J. Q. B. 286; Dows v. National Exchange Bank, 91 U. S. 618; Forty Sacks of Wool, 14 Fed. 043; First Nat. Bank of Caira V. Crocker, 111 Mass. 163; Fifth Nat. Bank of Chicago v. Bayley, 115 Mass. 228; Bank of Rochester v. Jones, 4 N. Y. 497; Farmers' & Mechanics' Nat. Bank v. Logan, 74 N. Y. 568; Hieskell v. Farmers' & Mechanics' Nat. Bank, 89 Pa. St. 155; Emery v. Irving Nat. Bank, 25 Ohio St. 360; Halsey v. Warden, 25 Kan. 128; Merchants' Exchange Bank v. McGraw, 8 C. C. A. 420, 59 Fed. 972. lUS MISTAKE, FAILURE OF CONSIDERATION, AMD FRAUD. [Ch. 5 CHAPTER V. MISTAKE. FAILURE OF CONSIDERATION, AND FRAUD. 57-58. Mistake. 59. Failure of Consideration. 60-61. Fraud. 62-66. Election to Affirm or Rescind for Fraud. 67-69. Fraud on Creditors. 70. How Far Delivery is Essential to the Transfer of the Property against Creditors and Purchasers. MISTAKE. 57. The effect of mistake, -when it has any operation at all, is to render the contract void. 58. A person -who has entered into a contract of sale, void on the ground of mistake, may, if it is still execu- tory, repudiate it, and successfully defend an action upon it. If he has paid money or delivered goods under the contract, he may, upon returning -what he has received under it, recover the money or the goods. As has been previously explained, when a contract has been entered into by the parties under a material mistake of fact of such a character that there was no mutual assent, the contract is void.* The effect of the mistake is to prevent the contract from ever coming into existence, and hence to prevent its enforcement. A party to such an apparent agreement may wait until the other party seeks to enforce it, and then assert its nullity by way of defense; or he may, if he prefers, come forward actively as |)laiutiff.^ If 1 Ante, p. 28 et seq. It Is sometimes said that a pai-ty to an apparent agree- ment, void by reason of mistake, may elect *o treat it as subsisting, but, strictly speaking, the agreement which he so elects to treat as subsisting is a new agreement, based on the state of facts which he has subsequently discov- ered to exist Pol. Cont. 450. » He may, where the facts warrant such a course, sue In equity to have the transaction declared void, and to be relieved from any possible claims in respect to it Pol. Cont. 450. Ch. 5] FAILURE OF CONSIDEBATION. lO^ the contract has been executed under a continuance of the mistake^ a party who has performed his part may repudiate it on discovering his mistake, and may then recover the money paid or the goods delivered by him under the contract, unless he has done something to render impossible a restitutio in integrum; that is, a restora- tion of the other party to the condition he was in before the supposed contract was entered into.^ In such a case the buyer can maintain an action for money had and received, and the seller can maintain an action of replevin; and, since the sale is void, the buyer acquires no title under it, and can pass no title, even to a bona fide purchaser.* FAILURE OF CONSIDERATION. 69. When the buyer has paid the price in "whole or in part, and the consideration for such payment totally fails, he may rescind the contract, and recover the money so paid. When the seller fails entirely to perform his part of the contract, the buyer may put an end to it, and recover in an action for money had and received any part of the price which he has advanced.^ In this respect, as will be seen, a greater effect is given to failure of performance on the part of the seller than on the part of the buyer. ^ The same right of action arises in favor of the buyer when it turns 8 Cox V. Prentice, 3 Maule & S. 344; Grymes v. Sanders, 93 U. S. 55, G2: Harris v. Hanover Nat. Bank, 15 Fed. 78G; Benj. Sales, § 415, and see post, p. 121, where the same rule Is applied to rescission for fraud. Inasmuch as mistake, unlike fraud, renders the contract void, and not merely voidable, there can, strictly speaking, be no rescission but simply a repudiation of the supposed contract. * Chapman v. Cole, 12 Gray, 141; Rodllff v. Dallinger, 141 Mass. 1, 4 N. E. 805; Alexander v. Swackhamer, 105 Ind. 81, 4 N. E. 433, and 5 N. E. 908. Giles v. Edwards, 7 Term R. 181; Hill v. Rewee, 11 Mete. (Mass.) 268, 271; Miner v, Bradley, 22 Pick. 457, 458; Howe Mach. Co. v. Willie, 85 111. 333; Benj. Sales, § 423. Money paid for shares in a projected company, which is not formed, may be recovered back. Kempson v. Saunders, 4 Bing. 5. In some states the buyer may avoid the sale for breach of an express warranty. Post, p. 244. « Post, p. 234. But see p. 229. 110 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 out that the seller had no title to the thing sold/ So if the thing sold be a bill or note or other security, and it turn out to be invalid because of forgery,' or material alteration,^ or for any other cause,^° the buyer may rescind for failure of consideration. So, on the sale of a patent, if the patent be void, the consideration fails." But, though the thing sold turn out to be worthless, if it be what the buyer intended to buy, there is no failure of consideration.^^ Tlie Faihire must be Total. To authorize rescission, if the contract be entire, the failure of consideration must be total. The buyer is not obliged, indeed, to accept a partial performance, and, if such performance only is tendered, he may rescind the contract, and recover back the price.^' But, if he has accepted a partial performance, he cannot, at least without returning what he has received, afterwards rescind, but I Post, p. 167. 8 Jones V. Ryde, 5 Taunt. 488; Gurney v. Womersley, 4 El. & Bl. 133, 24 Law J. Q. B. 46; Terry v. Bissell, 26 Conn. 23; Aldrich v. Butts, 5 II. I. 218; Merriam v. Wolcott, 3 Allen, 258. See, also, Whitney v. National Bank of Potsdam, 45 N. Y. 303; Bell v. Dagg, 60 N. Y. 528. 8 Burchfield v. Moore, 3 El. & Bl. 683, 23 Law J. Q. B. 261. 10 Gompertz v, Bartlett, 2 El. & Bl. 849, 23 Law J. Q. B. 65 (a bill of ex- change purporting to be a foreign bill, which turned out to be a domestic bill, and invalid because unstamped; Wood v. Sheldon, 42 N. J. Law, 421 (scrip illegally and fraudulently issued); Paul v. City of Kenosha, 22 Wis. 2.57 (bonds void for want of power in the city to issue them). But in Lit- tauer v. Goldman, 72 N. Y. 506, it was held that the buyer of a note void for usury could not recover for failure of consideration. II Nash V. Lull, 102 Mass. 60; Harlow v. Putnam, 124 Mass. 553; Shepherd v. .Jenkins, 73 Mo. 510; Green v. Stuart, 7 Baxt. *418. But where the plaintiff bought the exclusive right to use a patent in a foreign coimtry, being aware that no such right could legally be obtained, but desiring an ostensible grant of the right, with the object of floating a company, it was held that, having obtained wiiat he intended to buy, he could not recover the purchase money on the ground that the consideration had failed. Begbie v. Phosphate Sew- age Co., L. R. 10 Q. B. 491, affirmed in 1 Q. B. Dlv. 679. And see, also, Tay- lor V. Hare, 1 Bos. & P. N. R. 260; Lawes v. Purser, 6 El. & Bl. 930, 26 Law J. Q. B. 25. 12 Lambert v. Heath. 15 Mees. & W. 487; Bryant v. Pember, 45 Vt. 487; Blattcnberger v. Holman, 103 Pa. St. .555; Xeidefer v. Chastaiu, 71 lud. 363; Wheat V. Cross, 31 Md. 99. IS Giles V. Edwards, 7 Term R. 181. See Smith v. Lewis, 40 Ind. 98. Ch. 5] FRAUD. Ill must sue for breach of the contract.** If he has enjoyed part of the consideration, there can be no rescission.^' Nevertheless, al- rbough the contract be entire, if it is for a definite quantity of goods all of one quality at a fixed price per ton or pound, and the seller delivers only a part and makes default in delivering the remainder, it is held that the buyer who has advanced the price of the whole may recover back the price of the part which is deficient.^" In this case the entirety of the contract is broken by the concurrent act of the parties.^^ But, if the failure is merely as to the quality of a part of the goods, the buyer cannot rescind unless he rescinds as to the whole.^* FRAUD. 60. When a party to a contract of sale has been induced to enter into it by the fraud of the other party, the con- tract is voidable at his option. 61. CHARACTERISTICS— Fraud is a false representa- tion of fact, made w^ith a kno^wledge of its falsehood, or in reckless disregard -whether it be true or false, "writh the intention that it shall be acted upon by the complain- ing party, and actually inducing him to act upon it. Fraud renders all contracts voidable both at law and in equity. A man is not bound by a contract to which his consent has been obtained by fraud, because but for the fraud he would not have con- sented.^* 1* Hamor v. Groves, 15 C. B. CG9, 24 Law J. C. P, 53; Miner v. Bradley, 22 Pick. 457; Clark v. Baker, 5 Mete. (Mass.) 452. 18 Taylor v. Hare, 1 Bos. & P. N. R. 260; Lawes v. Purser, 6 El. & Bl. 930, 26 Law J. Q. B. 25; Bcnj. Sales, § 427. i« Devaux v. Conolly, 8 C. B. 040; Hill v. Rewee, 11 Mete. (Mass.) 2GS, 272. This is in the nature of a total failure of consideration for part of the price paid, not a partial failure for the whole. Benj. Sales, § 420. As to what constitutes a severable contract, see Norris v. Harris, 15 Cal. 220; McGiath v. Cannon (Minn.) 57 N. W. 150; Potsdamer v. Kruse (Minn.) 58 N. W. 983. 17 Mansfield v. Trigg, 113 Mass. 3."J0, 352, per Wells, J. 18 Harnor v. Groves, 15 C. B. 609, 24 Law J. C. P. 53; Clark v. Baker, 5 Mete. (Mass.) 452; Morse v. Brackett, 98 Mass. 205, 104 Mass. 494; Mansfield V. Trigg, 113 Mass. 350. i» Benj. Sales, § 428 et seq. 112 MISTAKE, FAILURE OF COKSIDEUATION, AND FUAUD. [Ch. 5 Fiaud is commonly said to be so subtle in its nature aad mani- fold in its forms as to be impossible of definition. Nevertheless the statement of its essential characteristics which has been given above in the langua^^e of Sir William R. Anson ^° sufficiently indi- cates the nature of such fraud as will render voidable a contract of sale. The same state of facts which is ground for avoidance also gives rise to an action at common law for deceit, in which the defrauded party may recover such damages as he has suffered by reason of the false representation. And a practical test of fraud, as opposed to misrepresentation which is not fraudulent, is that the first does, and the second does not, give rise to an action ex delicto.^ ^ Fraud ta a Fake Representation. A mistaken belief in the facts may be created by active means, as by fraudulent concealment or misrepresentation, or passively, by mere nondisclosure. But it is only when a man is under some obligation to disclose facts that mere silence w-ill be considered as a means of deception. In contracts of sale, disclosure is not ordi- narily incumbent on the parties.^^ The rule is caveat emptor. It has even been held that the seller is under no obligation to com- municate the existence of latent defects, such as a hidden disease in an animal, unless by act or implication he represents such defects not to exist; ^^ but it is generally held in this country that the in- tentional nondisclosure of such a defect by the seller, when he knows that it is unknown to the buyer, is fraudulent.'* On the other hand, the buyer is not bound to disclose to the seller facts 20 Anson, Cont. 145. His discussion of fraud has been closely followed. And see Clark, Cont. 324. 21 Anson, Cont. 129; Clark, Cont. 324. 22 Smith V. Hughes, L. R. 6 Q. B. 597; Laidlaw v. Organ, 2 Wheat. 178; People's Bank v. Bogart, 81 N. Y. 101; Kiutzing v. McElrath, 5 Pa. St. 467; Cogel V. Kniseley, 89 111. 598. 23 Ward V. Hobbs, 3 Q. B. Div. 150, 4 App. Cas. 13; Beninger v. Corwin. 24 N. J. Law, 257; Paul v. Hadley, 23 Barb. 521; Morris v. Thompson, 85 111. 16. 24 Paddock v. Strobridge, 29 Vt. 471; Maynard v. Maynard, 49 Vt. 297; Jeffrey v. Bigelow, 13 Wend. 518; Hanson v. Edgerly, 29 N. H. 343; Barron V. Alexander, 27 Mo. 530; Grigsby v. Stapleton, 94 Mo. 423, 7 S. W. 421; Cardwell v. McClelland, 3 Sneed, 150; Armstrong v. Huffstatler, 19 Ala. 51; Marsh v. Webber, 13 Minn. 109 (Gil. 99); Turner v. Huggins, 14 Ark 21: Dowling V. Lawrence, 58 Wis. 282, 16 N. W. 552; Stewart v. Wyoming Cat- Ch. 5] FRAUD. 113 as to which information is equally open to both; for example, facts which would enhance the price. '^^ As a rule, to charge a party to a contract of sale with fraud, there must be some active attempt to deceive either by statement which is false, or, at least, by representa- tion which, though true as far as it goes, is accomDanied by such a suppression of the facts as to convey a misleading impression.^* If the buyer wishes to protect himself further, he must require of the seller a warranty of any matter the risk of which he is unwilling to assume.^^ Any device, however, used by the seller to induce the buyer to omit inquiry or examination into defects, is as much a fraud as active concealment.*® The Representation must be of Fact. Fact is here used in distinction from opinion, intention, and law- Same — Not Matter of Opinion. A mere representation of opinion which turns out to be unfounded will not invalidate a contract.*® Thus statements of value are generally immaterial, •''° though representations of facts affecting the value,^^ for example that a third person gave so much for a thiug,^* tie Ranche Co., 128 U. S. 383, 388, 9 Sup. Ct. 101; Clark, Cont. 329, and cases there cited- 2 5 Fox V. Mackreth, 2 Brown, C. C. 400; Turner v. Harvey, Jac. 170, per Lord Eldon; Laidlaw v. Organ, 2 Wheat. 178; Blydenburgh v. Welsh, Baldw. 331, Fed. Cas. No. 1,583; Kintzing v, McElrath, 5 Pa. St. 467. 2 6 Peek V. Gurney, L, R. 6 H. L. 377, 403, per Lord Cairns; Newell v. Ran- dall, 32 INIinn. 171, 19 N. W. 972; Chamberlin v. Fuller, 59 Vt. 247, 9 Atl. 832^ Clark, Cont. 326, and cases cited. 27 Veasey v. Doton, 3 Allen, 380, 381; Morrison v. Koch, 32 Wis. 254, 261. 2 8 Matthews v. Bliss, 22 Pick. 48, 52; Smith v. Countryman, 30 N. Y. 66a, 681; Roseman v. Canovan, 43 Cal. 110; Croyle v. Moses, 90 Pa. St. 250; Clark, Cont. 328, and cases cited. 28 Belcher v. Costello, 122 Mass. 189; Homer v. Perkins, 124 Mass. 431; Holbrook v. Connor, 60 Me. 578; Lyons v. Briggs. 14 R. I. 222; Watts v. Cummins, 59 Pa, St. 84; Buschman v. Codd, 52 Md. 207, Clark, Cont. 331» and cases cited. 30 Gordon v. Butler, 105 U. S, 553; Poland v, Brownell, 131 Mass. 138; Uhler V. Semple, 20 N. J. Eq. 288; Schramm v. O'Connor, 98 111. 539; Kennedy v. Richardson, 70 Ind. 524. 3 1 Chrysler v. Canaday, 90 N. H. 272, 278; Collins v. Jackson, 54 Mich. 186, 19 N. W. 947; Coolidge v. Goddard, 77 Me. .578, 1 Atl. 831. 82 Belcher y. Costello, 122 Mass. 189. Market value: Manning v. Albee, 114 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 are material. B3' a somewhat fine distinctiou, liowever, state- ments of what the seller gave or was offered for the thing sold are by some courts deemed to be mere statements of value, on which the buyer is not entitled to rely.^^ In like manner, com- mendatory expressions, such as men habitually use to induce others to enter into a bargain, known as "dealer's talk," are not deemed representations of fact.** Simplex commendatio non obligat The line between fact and opinion is a narrow one, and, when a state- ment may be taken in either sense, it is for the jury to determine which it is.*" Same — Not Matter of Intention — Intention not to Pay. Again, an expression of intention does not amount to a statement of fact, nor does a promise; and a representation that a thing is must be distinguished from a promise that it shall be.*' Yet there is a distinction between a promise which the promisor intends to perform and one which he intends to break. In the first place, he represents his intention that something shall take place in the future; in the second case, he not only makes a promise which is ultimately broken, but he represents his existing intention, — that is, he represents his state of mind to be other than it really is.*^ And accordingly it is held that if a man buys goods on credit not intending to pay for them, he makes a fraudulent misrepresen- tation, and that the seller may rescind the sale.** 11 Allen, 520; Richardson v. Noble, 77 Me. 390. Contra, Graffensteln v. Epstein, 23 Kan. 443. See, also, Ives v. Carter, 24 Conn. 392; Somers v. Richards, 46 Vt 170. 33 Medbury v. Watson, 6 Mete. (Mass.) 249, 259; Hemmer v. Cooper, 8 Allen, 334; Holbrook v. Connor, 60 Me. 578. Contra, Sandford v. Handy, 23 Wend. 260; Van Epps v. HaiTison, 5 Hill, 63. See, also. Page v. Parker, 43 N. H. 363, 368; Smith v. Countryman, 30 N. Y. 655; Kenner v. Harding. 85 111. 264. See Clark, Cont. 334. 34 Morse v. Shaw, 124 Mass. 59; Teague v. Irwin, 127 Mass. 217; Sledge V. Scott, 56 Ala. 202; Jackson v. Collins, 39 Mich. 557, 561. 86 Homer v. Perkins, 124 Mass. 431, ■i.i'.i; Kimball v. Bangs, 144 Mass. 321, 11 N. E. 113; Dawson v. Graham, 48 Iowa, 378. 3 6 Long v. Woodman, 58 Me. 49; Clark, Cont. 332, and cases there cited. 8 7 Anson, Cont. 148; Clark, Cont. 333. 88 Load V. Green, 15 Mees. & W. 216; Ferguson v. Carrington, 9 Barn, & C 59; Donaldson v. Farwell, 93 U. S. 631; Byrd v. Hall, *41 N. Y. 646; .Johnson v. Monell, Id. 655; Stewart v. Emerson, 52 N. H. 301; Dow r. Ch. 5] FRAUD. 115 Sa.iie — Not Matter of Law. Fiuallj, a misrepresentation of law does not ordinarily give rise to an action of deceit or make a contract voidable.'* Vi^ Representation mtist be Made with Knowledge of It» Falsity, or in Reckless Disregard of the Truth. A false statement made by one who believes the truth of what he asserts, though it may warrant avoidance for mistake,*** or may amount to a warranty or condition,*^ is not fraudulent.** A representation to be fraudulent must not only be false, but it must be made with knowledge of its falsity,** or at least without belief in ita truth. The mere absence of belief is enough; for, if a man Sanborn, 3 Allen, 181; Parker v. Byrnes, 1 Low. 539, Fed. Cas. No. 10,728 Burrill v. Stevens, 73 Me. 395; Stoutenbourgh v. Konkle, 15 N. J. Eq. 33 Powell V. Bradlee, 9 Gill & J. 220; Shipman v. Seymour, 40 Mich. 274, 283 Talcott V. Henderson, 31 Ohio St. 1G2; Allen v. Hartfield, 76 111. 358; Far well V. Hanchett, 120 111. 573, 11 N. E. 875; Fox v. Webster, 46 Mo. 181 Lane v. Robinson, 18 B. Mon. 623; Belding v. Frankland, 8 Lea, 67; Os- wego Starch Factory v. Lendrum, 57 Iowa, 573, 10 N. W. 900. In Penn- sylvania it is held that insolvency and the knowledge of it are not suffi- cient, but that there must be artifice, trick, or false pretense to avoid the sale. Smith v. Smith, 21 Pa. St 367; Rodman v. Thalheimer, 75 Pa. St. 232; Bughman v. Central Bank, 159 Pa. St. 94, 28 Atl. 209. And in Ala- bama it is held that there must be fraudulent concealment or representa- tion. Le Grand v. Eufaula Nat. Bank, 81 Ala. 123, 1 South. 460. See, also, Wilson V. White, 80 N. C. 280. And see Clark, Cont. 327. 39 Upton V. Tribilcock, 91 U. S. 45, 49; Starr v. Bennett, 5 Hill, 303; Town- send V. Cowles, 31 Ala. 428; Fish v. Cleland, 33 111. 237; Clem v. Newcastle & D. R. Co., 9 Ind. 4S8; People v. Board of Sup'rs, 27 Cal. 655; Clark, Cont 333, and cases cited. 40 Ante, p. 28 et seq. 41 Post, p. 150 et seq. 42 Benj. Sales, § 429; Clark, Cont. 338. 43 Collins V. Evans, 5 Q. B. 820; Ormrod v. Huth, 14 Mees. & W. 651; Lord V. Goddard, 13 How. 198; King v. Eagle Mills, 10 Allen, 548; Petti- grew V. Chellis, 41 N. H. 95; Allen v. Wanamaker, 31 N. J. Law, 370; Big- ler V. Flickinger, 55 Pa. St. 279; Lamm v. Port Deposit H. Ass'n, 49 Md. 233; Mason v. Chappell, 15 Grat. 572; Kimbell v. Moreland, 55 Ga. 164; Parmlee v. Adolph, 28 Ohio St 10; Tone v. Wilson, 81 111. 529; Gregory v, Schoenell, 55 Ind, 101; Rawson v. Harger, 48 Iowa, 269; Mamlock v. Fair- banks, 46 Wis. 415, 1 N. W. 167; Merriam v. Pine City Lumber Co., 23 Minn. 314; Rightor v. Roller, 31 Ark. 171; Clark, Cont 338. 116 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Cll. 5 states as true that of which he is ij^norant, he must be held as respousible as if he had asserted what he knew to be untrue. There- fore, if a man in reckless disregard of the truth makes a statement which is actually false, his liability is the same as if he knew it was false; ** and, if he represents a fact as true of his own knowl- edge when he has no knowledge, it is immaterial that he believed it to be true.*' Motive. If the representation was fraudulent as the term has above been explained, it is immaterial that the motive was innocent*" <* Western Bank of Scotland v. Addie, L. R. 1 H. L. Sc. 145; Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 64; Weir v. Bell, 3 Exch. Dlv. 238. 242; Nettleton v. Beach, 107 Mass. 499; Fisher v. Mellen, 103 Mass. 503; Cole v. Cassidy, 138 Mass, 437; Hammond v. Pennock, Gl N. Y. 145; Meyer v. Amidon, 45 N. Y. 169; Bower v. Fenn, 90 Pa. St. 359; Cowley v. Smyth, 46 N. J. Law. 380; Smith v. Newton, 59 Ga. 113; Foard v. McComb, 12 Bush, 723; Freuzel v. Miller, 37 Ind. 1; Parmlee v. Adolph, 28 Ohio St. 10; Cotzhausen v. Simon, 47 Wis. 103. 1 N. W. 473; Walsh v, Morse, 80 Mo. 509. It was formerly held that a false representation, though the party making It was charged neither with fraud nor negligence, was actionable. Evans v. Collins, 5 Q. B. 804. To such a misrepresentation the term "legal fraud" or "constructive fraud," as opposed to "moral fi-aud," was applied, but in the present state of the law the term "legal fraud" has become meaningless. The term was condemned by Bramwell, L. J., in Weir v. Bell, 3 Exch. Div. 238, 242, in which case, after saying that moral fraud must be proved, he observes: "I do not understand legal fraud. It has no more meaning than legal heat or legal cold, legal light or legal shade. There never can be a well-founded complaint of legal fraud, or of anything else, except where some duty is shown, and correlative right, and some violation of that duty and right. And, when these exist, It Is much better that they should be stated and acted on than that recourse should be had to a phrase illogical and unmeaning, with the consequent uncertainty." See Clark, Cont. 338. *8 Litchfield v. Hutchinson, 117 Mass. 195; Cabot v. Christie, 42 Vt. 121; Marsh v. Falker, 40 N. Y. 562; Dulaney v. Rogers, 64 Mo. 201; Clark, Cont. 339. 48 Polhill V. Walter, 3 Barn. & Adol. 114; Peek v. Gurney, L. R. 6 H. L. 409; Hammond v. Pennock, 61 N. Y. 145; Cowley v. Smyth, 46 N. J. Law, 380; Clark, Cont. 343. Ch. 5] FRAUD. 117 The Representation mvM have been Made with the Intention that It should be Acted On. Another statement of this rule is that the representation must be made as part of the same transaction.*^ Therefore, if a rep- resentation is made by one of the parties to the contract, the inten- tion that it should be acted on will generally be manifest. It is in cases where the representation has caused injury to a third person that the question of such ir tention will generally arise. That a repre- sentation, in order to give grounds for an action of deceit, need not be made directly to the injured party is well settled.*^ Thus where the defendant sold a gun to the father of the plaintiff for the use of the buyer and his sons, falsely representing that it was safe, and the plaintiff used it and it exploded and injured him, it was held that he could recover.*" But in such cases it must appear that the representation was made with the intention that it should be acted upon by such third person in the manner that occasioned the injury. '*° The right of action is based solely on tort, for no action can be maintained on the contract except by parties and proxies."^' The Representation must be Material and must Induce the Sale. A material representation is one which would affect the judgment of a reasonable man governing himself by the principles on which men in practice act in the kind of business on hand." If such an untrue statement has been made and was in fact an inducement to the other party to enter into the contract, it is unimportant that it was not the sole inducement; but it is enough if it was a material element in iulluenciug him to enter into if^ Moreover, 4T Pol. Cont 533. *8 Barry v. Croskey, 2 Johns. & H. 1,. 17, per Wood, V. O., at page 22; Langridge v. Levy, 2 Mees. & W. 519; Peek v. Gurney, L. R. 6 H. L. 377; Wells V. Cook, 16 Ohio St 67; Bank of Montreal v. Thayer, 7 Fed. 623; Clark, Cont. 341. *9 Langridge v. Levy, 2 Mees. & W. 519. 80 Cases cited In note 48. 61 Gerhard v. Bates, 2 El. & Bl. 476, 22 Law J. Q. B. 364. »a Pol. Cont. 528. B8 Safford v. Grout, 120 Mass. 20; McAleer v. Horsey, 35 Md. 439; Ruff T. Jarrett, 94 111. 475; Moline-Milbum Co. y. Franklin, 37 Minn, 137, 83 ^. W. 323; Clark, Cont 344. 118 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 if the representation was such tliat it might induce the other party to enter into the contract on the faith of it, he will be pre- sumed to have acted in reliance upon it" And, if he actually relies upon the representation, the fact that he had means of knowledge which, if used, would have led to a discovery of the untinith will not bar him of his remedy."' But, however false or dishonest the representations may be which are used to induce a party to enter into a contract, they do not constitute a fraud if he is not deceived; for under such circum- stances the inducement or motive is not the representations, which are not believed, but some independent motive.''* The represen- tations must be relied upon." For the same reason, if the at- tempted fraud does not come to the knowledge of the other party, it will not avail him in avoidance of the contract. Thus where the seller inserted a metal plug to conceal a weak spot in a gun manufactured to the order of the buyer, who took it without in- spection, it was held that the attempted fraud did not exonerate him from paying for the gun; since, although the seller intended to deceive him, he had in fact not been deceived.^^ If the action is for deceit, damages from the fraud must be proved." 6 4 Redgrave v. Hurd, 20 Ch. Div. 1; Holbrook v. Burt, 22 Pick. 546; Hicks T. Stevens, 121 111. 186, 11 N. E. 241. 6B Redgrave v. Hurd, 20 Ch. Div. 1; Jackson v. Collins, 39 Mich. 557; Kendall v. Wilson, 41 Vt. 567; Stewart v. Stearns, 63 N. H. 99; Union Nat. Bank v. Hunt. 7G Mo. 439; Clark, Cont. 330. 6 8 Gunby v. Sluter, 44 Md. 237; Phipps v. Buckman, 30 Pa. St. 401; Greg- ory V. Schoenell, 55 Ind. 101; Sledge v. Scott, 56 Ala. 202; Smith v. Newton, 59 Ga. 113. If the buyer accepts the goods with knowledge of the fraud, he cannot repudiate the contract. Baird v. Mayor, etc., of New York, 96 N. Y. 567; Thompson v. Libby, 36 Minn. 287, 31 N. W 52. 6T Ming V. Woolfolk, 116 U. S. 599, 6 Sup. Ct 489; Hanna v. Rayburn, 84 111. 533; Holdom v. Ayer, 110 111. 448; Clark, Cont. 344. 68 Horsfall v. Thomas, 1 Hurl. & C. 90. See remarks on this case in Anson, Cont 152. 6 9 Pasley v. Freeman, 8 Term R. 51; 2 Smith, Lead. Cas. (8th Ed.) 66; Brown v. Blunt, 72 Me. 415; Weaver v. Wallace, 9 N. J. Law, 251. Ch. 6] FRAUD. 119 SAME— ELECTION TO A.FFIRM OR RESCIND FOR FRAUD. 62. The defrauded party may: (a) Affirm the contract. (b) Rescind the contract -within a reasonable time after discovery of the fraud, unless it has become impossible to restore the other party to the condition in which he would have been if the contract had not been made, or unless a third person has in good faith and for value acquired an interest in the goods. 63. The contract must be afiBLrmed or rescinded in toto, and the election once exercised is final. 64. If the defrauded party afidrm, he may recover dam- ages for the fraud in an action of deceit, or, if sued for the price, he may set up the fraud in reduction thereof. 65. If the defrauded party rescind, he may: (a) Set up the rescission in defense of an action on the contract. (b) If he be the buyer and has paid the price, he may maintain an action to recover the amount. If he be the seller, and has deliv- ered the goods, he may maintain an action of trover or replevin. 66. A bona fide purchaser for value from the fraudulent buyer acquires an indefeasible title. A contract induced by fraud is not void, but only voidable, at the op- tion of the party defrauded; in other words, it is valid until rescinded. It is for the party defrauded to elect whether he will be bound.®** But, if he affirms the contract, he must affirm it in all its terms. Thus a seller who has been induced by fraud to sell on credit cannot sue on the contract price before the expiration of the credit, but 60 Rawlius V. Wickham, 3 De Gex & J. 304, 322; Clough v. London & N. W. Ry. Co., L. R. 7 Exch. 2G; Clark, Cont. 346. 120 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 must rescind, and sue in trover or replevin."^ T\Tien the contract is once affirmed, the election is completely determined. ^^ After affirmance, the sole remedy of the defrauded party for the fraud is by way of damages, which he may recover in an action of deceit; or, if he be the buyer, he may set up the fraud by way of recoupment in an action by the seller for the price."" It is not necessary that the affirmance should be express. Any acts which unequivocally treat the contract as subsisting, such as dealing with the goods as his own on the part of the buyer or taking security for the price on the part of the seller, will have the same effect.'* Bringing suit on the contract is a conclusive affirmance.®' Bringing an action for deceit, if the buyer retains the goods, and asks damages for the difference between the goods as represented and as they actually were, is an affirmance.®' Where the election to affirm has once «i Ferguson v. Can-in^ton, 9 Bam, & C. 59; Emma Silver Min. Co. v. Emma Silver Min. Co. of New York, 7 Fed. 401; Adler v. Fenton, 24 How. 407; Butler v. Hildreth, 5 Mete, (Mass.) 49; Dellone v. Hull, 47 Md. 112; Stewart v. Emerson, 52 N. H. 301, 310; Bulkley v. Morgan, 46 Conn. 393; Kellogg V. Turpie. 93 111. 2G5; Stoutenbourgh v. Konkle, 15 N. J. Eq. 33; Weed V. Page, 7 Wis. 503. Otherwise in New York, where it is held that the seller may waive the tort, and sue in assumpsit. Wigand v. Sichel, *42 N. Y. 120; Roth v. Palmer, 27 Barb. 652. See, also, Dietz v. Sutcliffe, 80 Ky. 650. 8 2 Clough V. London & N. W. Ry. Co., L. R. 7 Exch. 26, 34; Moller v. Tuska, 87 N. Y. 166; Pence v. Langdon, 99 U. S. 578, 582. 83 Harrington v. Stratton, 22 Pick. 510; Perley v. Balch, 23 Pick. 283; Foulk V. Eckert, 61 111. 318. 64 Clough V. London & N. W. Ry. Co., L. R. 7 Exch. 26, 34; Grymes v. Sanders, 93 U. S. 55, 62; Joslin v. Gowee, 52 N. Y. 90; Seavy v. Potter, 121 Mass. 297; Cross v. Hayes, 45 N. J. Law, 565; Davis v. Betz, 66 Ala. 206; Evans v. Montgomery, 50 Iowa, 325, 337; Bridgeford v. Adams, 45 Ark. 136. 86 Cases cited in note 61, supra. But obtaining judgment in ignorance ot the fraud does not amount to an affirmance. Clough v. London & N. W. Ry. Co., L. R. 7 Exch. 26, 35; Kraus v. Thompson, 30 Minn. 64, 14 N. W. 268. 66 Emma Silver Min. Co. v. Emma Silver Min. Co. of New York, 7 Fed 401, 402. It has indeed been laid down broadly that bringing action for deceit affirms the sale. Kimball v. Cunningham, 4 Mass. 505. Cf. White- side v. Brawley, 152 Mass. 133, 134, 24 N. E. 1088. But the action for deceit does not necessarily imply an affirmance, as where the seller reclaims such goods as he can reach, and as to the remainder sues the buyer to recover damages for the fraud. Hersey v. Benedict, 15 Hun, 282. See, also, Hub €h. 5] FRAUD. 121 been exercised, the subsequent discovery of a new incident in the fraud will not revive the right to rescind.^^ If, on the other hand, the defrauded party elects to rescind, he must manifest his election by distinctly communicating to the other party his intention to repudiate the contract.®* It is not nec- •essary to a rescission that the contract should be judicially set aside.®® Thus, if the defrauded party be the buyer, he may refuse to accept the goods if he discover the fraud before delivery, or may return them if the discovery be not made till after delivery; and, if he has paid the price, he may recover it back on offering to return the goods.^° On the other hand, the defrauded party may €et up the rescission as a defense in an action by the other on the contract; ^^ or he may, if the remedy at law is inadequate, insti- tute proceedings in equity to have the contract set aside.'" Elec- tion to rescind waives the right to sue on the contract^* Restitutio in Integrum. The right of a party to rescind for fraud, as for other causes, is <;onditional upon his restoring the other party to the position in which he was before the contract Thus the seller must return or offer to return the price, and the buyer must return or offer to return the goods, ^* though he need not do so if they are absolutely bell V. Meigs, 50 N. Y. 480, 487; Miller v. Barber, 66 N. Y. 558, 564; Lenox V. Fuller, 39 Mich. 268. 67 Campbell v. Fleming, 1 Adol. & E. 40; Pratt v. Philbrook, 41 Me. 132. But see Pierce v. Wilson, 34 Ala. 596. 6 8 Ashley's Case, L. R. 9 Eq. 263; Hammond v. Pennock, 61 N. Y. 145, 155; Potter v. Taggart, 54 Wis. 395, 400, 11 N. W. 678; Gates v. Bliss, 43 Vt. 299. 6» Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 64, 73. 7 Clarke v. Dickson, El. Bl. & El. 148; Coolidge v. Brigham, 1 Mete. (Mass.) 547. See, also, cases cited in note 56, ante. 71 Clough v. London & N. W. Ry. Co., L. R. 7 Bxch. 26, 36. 7 2 Anson, Cent 154; Clark, Cont. 348; Fetter, Eq. 130. 7 8 Farwell v. Myers, 59 Mich. 179, 26 N. W. 328; Wright v. Zeigler, 70 Oa. 501. Cf. Powers v. Benedict, 88 N. Y. 605. 74 Clarke v. Dickson, El. Bl. & El. 148; Grymes v. Sanders, 93 U. S. 55; Kimball v. Cunningham, 4 Mass. 502; Thayer v. Turner, 8 Mete. (Mass.) 550; Cook v. Gilman, 34 N. H. 560; Hammond v. Buckmaster, 22 Vt. 375; Tisdale v. Buckmore, 33 Me. 461; Burton v. Stewart, 3 Wend. 236; Masson 122 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Cll, 5 worthless.'" Accordingly, if the buyer has consumed or sold any part of the goods, he cannot rescind; though, if he is the guilty party, he cannot prevent a rescission if the seller elects to talce a partial restoration,' • But mere depreciation in value of the thing sold before the buyer's discovery of the fraud will not defeat rescission on his part.'"' And if in the meantime he has incurred expenses for repairs he may on rescission and return recover the cost,'^^ but if he is the guilty party he cannot exact a payment of such cost as a condition of rescission. ''' Bona Fide Purchasers from Fraudulent Buyer. It follows from the principle that the contract is voidable, and not void, that, when innocent third persons have for value acquired rights under the sale, their rights are indefeasible. The rule is also stated to be an application of the principle of convenience that, when one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud."" Thus, when a sale is procured by fraud, the property in the goods is transferred by the contract, subject to the seller's right of rescission, and a purchaser in good faith from the fraudulent buyer before the sale is rescinded acquires a good title.*^ The purchase must be for value, and hence the pro- V. Bovet, 1 Denio, 69; Babcock v. Case, 61 Pa. St. 427; Haase v. Mitchell, 58 Ind. 213; Herman v. Haffenegger, 54 Cal. 161; Clark. Cont. 350. TBKent V. Borastein, 12 Allen, 342; Brewster v. Burnett, 125 Mass. 68: Smith V. Smith, 30 Vt. 139; Dill v. O'Ferrall, 45 Ind 268; Clark, Cont. 351. 7 6 Hammond v. Pennock, 61 N. Y. 145; Harper v. Terry, 70 Ind. 264. T7 Veazie v. Williams, 8 How. 134, 158; Neblett v. Macfarland, 92 U, S. 101, 104; Clark, Cont 352. 7 8 Canada v. Canada, 6 Cush. 15; Farris v. Ware, 60 Me. 482; Clark, CJont B52. 7» Guckenheimer v. Angevine, 81 N. Y. 394; Chamberlin t. Fuller, 59 Vt 247, 9 Atl. 832. 80 Pol. Cont 544; Clark, Cont. 352. 81 White V. Garden, 10 C. B. 919, 20 Law J. C. P. 167; Stevenson v. Newn- ham, 13 C. B. 285, 22 Law J. C. P. 110; Pease v. Gloahec, L. R. 1 P. C. 220, 3 Moore, P. C. (N. S.) 556; Rowley v. Bigelow, 12 Pick. 307; Hoffman v. Noble, 6 Mete. (Mass.) 68; Easter v. Allen, 8 Allen, 7; Kingsbury v. Smith, 13 N. H. 109; Titcomb v. Wood, 38 Me. 561; Williamson v. RusseU, 39 Conn- 406; Paddon v. Taylor, 44 N. Y, 371; Stevens v. Brennan, 79 N. Y. Ch. 5] FRAUD. 123 tection does not extend to attaching creditors," to an assignee in bankruptcy," or to a person taking the goods in payment of an ex- isting indebtedness.®* Same — Fraudulent Impersonation. A sale, however, is to be distinguished from a mere delivery of possession induced by fraud; for in the latter case the person obtaining possession acquires no property in the goods, and can pass none to a third person, however innocent. Thus where a per- son obtains goods by fraudulently impersonating a third person, ^^ or by pretending to be the agent of a third person, ^^ to whom the owner supposes he is selling the goods, the person thus obtaining the goods acquires no title, and a bona fide purchaser from him stands in no better position. In such a case there is no contract at all, as the seller never consented to sell to the person to whom he delivered the goods. 254; Sinclair v. Healy, 40 Pa. St 417; Hall v. Hinlss, 21 Md. 406; Williams V. Given, 6 Grat. 268; Kern v. Thurber, 57 Ga. 172; Wood v. Yeatman, 15 B. Mon. 270; Hawkins v. Davis, 8 Baxt. 506; Chicago Dock Co. v. Foster. 48 111. 507; Holland v. Swain, 94 111. 154; Bell v. CafCerty, 21 Ind. 411; Singer Manuf'g Co. v. Sammons, 49 Wis. 316, 5 N. W. 788; Wineland v. Coonce, 5 Mo. 296; Cochran v. Stewart, 21 Minn. 435; Sargent v. Sturm, 23 Cal. 259; Clark, Cont. 352. 82 Buffington v. Gerrish, 15 Mass. 158; Goodwin v. Massachusetts Loan & Trust Co., 152 Mass. 189, 199, 25 N. E. 100; Thompson v. Rose, 16 Conn. 71; Jordan v. Parker, 56 Me. 557; Oswego Starch Fact. v. Lendrum, 57 Iowa, 573, 10 N. W. 900; Henderson v. Gibbs, 39 Kan. 679, 684, 18 Pac. 926. 83 Donaldson v. Farwell, 93 U. S. 631; Bussing v. Rice, 2 Gush. 48; Singer V. Schilling, 74 Wis. 369, 43 N. W. 101. 84 Barnard v. Campbell, 58 N, Y. 73; Stevens v. Brennan, 79 N. Y, 258; Sleeper v. Davis, 64 N. H. 59, 6 Atl. 201; Poor v. Woodman, 25 Vt. 235; McGraw v. Solomon, 83 Mich. 442, 47 N. W. 345. Contra, Shufeldt v. Pease, 16 Wis. 659; Butters v. Haugwout, 42 111. 18. And see Clark, Cont. 355. «B Cnndy v. Lindsay, 3 App. Cas. 459; Edmunds v. Merchants' Despatch Transp. Co., 135 Mass. 283; LoeEfel v. Pohlman, 47 Mo. App. 574. 88 Higgons V. Burton, 26 Law J. Exch. 342; Hardman v. Booth, 1 Hurl. & O. 803. 32 Law J. Exch. 105; Moody v. Blake, 117 Mass. 23; Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805; Barker v. Dinsmore, 72 Pa. St 427; Hamet v. Letcher, 37 Ohio St 356; McCrillis v. Allen, 57 Vt. 505; Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291. See, also, Kinsey v. Leggett 71 N. Y. 387. 124 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Cli. 5 Rescission mv^t he Within a Reasonable THme, What is a reasonable time after the discovery of the fraud de- pends on the circumstances of the case. Mere lapse of time will furnish evidence, and, when the lapse of time is great, probably conclusive evidence, of affiimauce. If in the meantime the su- perior rights of third persons have intervened, or the position of the Dtlicr party has altered to his disadvantage, the buyer would be de- prived of his right to rescind.^^ FRAUD ON CREDITORS. 67. Sales made -with the intent on the part of seller and buyer to delay, hinder, or defraud creditors of the seller are fraudulent, and may be avoided by such creditors, unless a third person has in good faith and for value acquired an interest in the thing sold. 68. Sales fraudulent as to creditors are valid as bet-ween the parties. 69. A bona fide purchaser for value from the fraudulent buyer acquires an indefeasible title. The foundation of the law on this subject is usually considered to be the statute of 13 Eliz. c 5,^* made perpetual by the statute 8T Clough V. London & N. W. Ry. Co., L. R. 7 Exch. 26, 35; Pence v. Lang- don, 99 U. S. 578; Grymes v. Sanders, 93 U. S. 55, 62; Williamson v. New Jersey S. R. Co., 28 N. J. Eq. 277, 293, 29 N. J. Eq. 311, 319; Willoughby V. Moulton, 47 N. H. 205; Burton v. Stewart, 3 Wend. 2:!0; Herrin v. Lib- bey, 36 Me. 357; Chamberlin v. Fuller, 59 Vt. 247, 9 Atl. 832; Wilson v. Fisher, 5 Houst. 395; Bassett v. Brown, 105 Mass. 551, 557; Evans v. Montgomery, 50 Iowa, 325; Hall v. Fullerton, 69 111. 448; Parmlee v. Adolph, 28 Ohio St 10; Collins v. Townsend, 58 Cal. 608; Clark, Cont. 348. 88 "For the avoiding and abolishing of feigned, covinous, and fraudulent feafCments, gifts, grants, aleinations, conveyances, bonds, suits, judgments, and executions, as well of lands and tenements as of goods and chattels, • • * devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts: • • * be it therefore declared, ordained and enacted that all and every feoffment, gift, grant, aleination, bargain, and conveyance of land, tenements, hereditaments, Ch. 5] FRAUD ON CREDITORS. 125 of 29 Eliz. c. 5, although earlier statutes had been previously passed, and it has been said upon high authority that the principles of the common law are so strong against fraud that without these statutes every end proposed by them would have been obtained." The statute of 13 Eliz. c. 5, provides in substance that all conveyances and sales of land or chattels made with intent to delay, hinder, or de- fraud creditors shall be utterly void and of no effect against them, with a proviso that the act shall not extend to defeat any estate or interest conveyed upon good consideration and bona fide to any person not having at the time of such conveyance notice of the fraud. The statute has been substantially re-enacted in many of the states of the Union, but its principles have been adopted even in states where no such statute has been passed.*" Mutual Intent to Defraud. A sale is not fraudulent against creditors unless the intent to delay, hinder, or defraud them is shared by the grantee as well as by the debto^r. Therefore the mere intent on the par-t of the debtor to defeat a creditor will not avoid a sale as fraudulent, if it be made bona fide and for a valuable consideration.^^ It is sufficient if the consideration be a past indebtedness. For it is not fraud- ulent at common law to prefer one creditor to another. If the debtor is unable to pay all his debts, he commits no fraud (in the absence of statutory provisions regulating the distribution of in- goods, and chattels, • * • and also every bond, suit, judgment, and exe- cution * * * had or made to or for any Intent or purpose before declared and expressed shall be from henceforth deemed and taken (only against that person or persons. ♦ * * whose actions, suits, debts, * • ♦ by such guileful, covinous, or fraudulent devices and practices, » • * are * * * in any ways disturbed, hindered, delayed, or defrauded) to be clearly and utterly void. ♦ * *" 13 Eliz. c. 5. 8 8 Cadogan v. Keunett, 1 Cowp. 432, per Lord Mansiield; Hamilton v. Russell, 1 Cranch, 309, 31G, per Marshall, C. J.; Sturtevant v. Ballard, 9 Johns. 337, 338, per Kent, C. J. 8 Dyer v. Homer, 22 Pick. 258; Butler v. Moore, 73 Me. 151. By force of the common law, transfers of goods and chattels with Intent to defraud creditors are voidable, though "goods and chattels" are not named In the Minnesota statute. Byrnes v. Volz, 53 Minn. 110, 54 N. W. 942. 81 Wood V. Dixie, 7 Q. B. 892; Darvill v. Terry, 6 HurL & N. 807, 30 Law J. Excli. 355; Beurmann v. Van Bui'en, 44 Mich. 496. 126 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 solvent estates) by appropriating his property to tlie satisfaction of one or more of his creditors to the exclusion of all others." Nor does it make any difference that both debtor and creditor know that the effect of such appropriation will be to deprive other creditors of the power of reaching the debtor's property by legal process in satisfaction of their claims, or that such is actually the intention of the debtor; provided there is no secret trust agreed upon or understood between the debtor and creditor in favor of the former, and that the sole object of the latter is to obtain pay- ment or security for his debt"^ But if the purpose of the debtor is to defraud his creditors, and that purpose is participated in by the preferred creditors, although the principal purpose of the con- veyance is to secure a bona fide debt of the latter, the conveyance is wholly void as to the creditors intended to be defrauded,"* In respect to the necessity of mutual fraudulent intent, convey- ances for a valuable consideration differ from voluntary convey- ances. The latter may be avoided where a fraudulent intent on the part of the debtor exists, although the grantee did not share it.""^ Fraud a Question of Fact — Retention of Possession. Whether a transfer of goods is bona fide or fraudulent is now generally held to be a question of fact for the jury. Few ques- tions in the law, however, have given rise to greater conflict of authority than that of the effect of retention of possession by the griintor upon the bona fides of the transaction. Retention of pos- »2 Holbird v. Anderson, 5 Term R. 235; Marbury v. Brooks, 7 Wheat. 556, 11 Wheat. 78; Smith v. Skoary, 47 Conn. 47; Ferguson v. Spear, 65 Me. 277; York Co. Bank v. Carter, 38 Pa. St. 446; Gage v. Chesebro, 49 Wis. 486, 5 N. W. 881; Butler v. White, 25 Minn. 432. 93 Banfleld v. Whipple, 14 Allen, 13, 15; Carr v. Briggs, 158 Mass. 78, 81, 30 N. E. 470; Dudley v. Danforth, 61 N. Y. 626; Hessing v. McCloskey, 37 111. 341; Sexton v. Anderson, 95 Mo. 373, 8 S. W. 564; Hirsch v. Richard- son, G5 Miss. 227; Jewell v. Knight, 123 U. S. 426, 434, 8 Sup. Ct. 193. »* Harris v. Sumner, 2 Pick. 137; Crowninshield v. Kittridge, 7 Meta (Mass.) .520; Bean v. Smith, 2 Mason, 252. Fed. Cas. No. 1,174. 9B Blake v. Sawln, 10 Allen, 340; Young v. Heermans, 66 N. Y. 374; Laughton v. Harden, 68 Me. 208. Ch. 5] FRAUD ON CREDITORS. 127 session and use by the grantor was resolved in Twyne's Case," the leading case upon the subject of fraudulent conveyances, to be a sign of fraud. In Edwards v. Harben," it was held that if there be nothing but the absolute conveyance without transfer of pos- session, the transaction is in point of law fraudulent; but later decisions in England establish the proposition that continued pos- session is a fact to be considered by the jury as evidence of fraud, but it is not fraud per se.*^ This view is perhaps the prevailing one in the United States, where the question is unaffected by stat- ute," but statutes have been passed in many states, some declaring sales without transfer of possession fraudulent, and others declar- ing them merely prima facie fraudulent. A consideration of the conflicting decisions on this point and of the various statutory provisions cannot be attempted in an elementary book.^°° In some jurisdictions the rule prevails that delivery, actual or constructive, is necessary to perfect the title of the buyer as against bona fide subsequent purchasers and attaching creditors,^"^ and the question how far delivery is essential to transfer title is to be distinguished from the question how far retention of possession by the seller is fraudulent. Who are Creditors. A sale may be fraudulent as to subsequent as well as existing creditors; and, if it is fraudulent as to existing creditors, it may 86 3 Coke, 80; 1 Smith, Lead. Cas, 1. »T 2 Term. R. 587. »8 Martindale v. Booth, 3 Barn. & Add. 498; Cookson v. Swrie, 9 App. Cas. 653, 664, per Lord Blackburn, who points out that it was to put a stop to the evils growing out of this rule that the bills of sales acts were passed, —acts of similar character to the chattel-mortgage acts in this country. 8 9 Warner v. Norton, 20 How. 448, 460. 100 A full collection of the cases has been made by Judge Bennett, who says that three views seem to prevail in the United States as to the effect of continued possession: (1) That such possession, use, and apparent own- ership is a conclusive badge of fraud, as a rule of law. (2) That such pos- session is prima facie a fraud In law, and, If unexplained, becomes con- clusive as a rule of law. (3) That such possession is prima facie evidence of fraud for the jury, sufficient to warrant, but not to require, them to find the sale fraudulent. Benj. Sales (6th Ed.) p. 458. 101 Post, p. 128. 128 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 be avoided by subsequent creditors.^"* The term "creditors" in- cludes persons having claims sounding in tort^*** Effect of Fraud. iSales which are fraudulent as to creditors are nevertheless valid between the pai'ties, who are not allowed to defeat them by alleg- ing their own fraud.^°* And, although the statute declares that such sales shall be void, they are in fact merely voidable, at the option of the defrauded creditors. And, therefore, as in the case of sales voidable by one of the parties for the fraud of the other,, bona fide purchasers for value from the fraudulent buyer before- avoidance acquire an indefeasible title.^°^ A further illustration of the voidable character of the transaction is the right which the buyer has to purge it of the fraud by the payment, before avoidance, of an adequate consideration.^"' HOW FAR DELIVERY IS ESSENTIAL TO THE TRANSFER OF THE PROPERTY AGAINST CREDITORS AND PURCHASERS. 70. In some states, in exception to the general princi- ple that delivery is not essential to the transfer of the 10 2 Day V. Cooley, 118 Mass. 524; McLane v. Johnson, 43 Vt. 48; Hook V. Monie, 17 Iowa, 195; Jones v. King, 86 IlL 225; Plunkett v. Plunkett, 114 Ind. 484, 16 N. E. 612, and 17 N. E. 562; Byrnes v. Volz, 53 Minn. 110,. 54 N. W. 942. 108 Da;mon v. Bryant, 2 Pick. 411; Jackson v. Myers, 18 Johns. 425. A wife suing for a divorce and alimony is a "creditor." Byrnes v. Volz, 53- Minn. 110, 54 N. W. 942. See, also, Liverraore v. Boutelle, 11 Gray, 217. 104 Dyer v. Homer, 22 Pick. 253; Harvey v. Varney, 98 Mass. 118; Os- borne V. Moss, 7 Johns. 161; Telford v. Adams, 6 Watts, 429; Carpenter v. McClure, 39 Vt. 9; Springer v. Drosch, 32 Ind. 4S(): Clemens v. Clemens,. 28 Wis. 637; Butler v. Moore, 73 Me. 151; Gary v. Jacobson, 55 Miss. 204. Contra, Nellis v. Clark, 20 Wend. 24, 4 Hill, 424; Church v. Muir, 33 N. J. Law, 318. 108 Bean v. Smith, 2 Mason, 252, Fed. Cas. No. 1,174; Green v. Tanner,. 8 Mete. (Mass.) 411; Anderson v. Roberts, 18 Johns. 515; Noal v. Williams, 18 Me. 391; Comey v. Pickering, 63 N. H. 120; Gordon v. Ritenour, 87 Mo. 54. 106 Oriental Bank v. Haskins, 3 Mete. (Mass.) 332; Hutchins v. Sprague, 4 N. H. 469; Bean v. Smith, 2 Mason, 2.">2, 278, Fed. Cas. No. 1,174. Contra^ Merrill v. Meachum. 5 Day, 341; Preston v. Crofut, 1 Conn. 527, note; Rob- erts V. Anderson, 3 Johns. Ch. 371. Ch. 5] DELIVERY AS TO CREDITORS AND PURCHASERS. 129 property, a rule prevails that delivery is essential to such transfer as against bona fl.de purchasers and attaching creditors -without notice. While it is universally held that delivery Is not necessary to transfer the property in the goods sold as between seller and buyer/**^ a rule prevails in some states, as has already been pointed out, that delivery is necessary to transfer the property as against subsequent purchasers and attaching creditors without notice of the prior sale. A discussion of this rule, though logically falling under the head of the transfer of the property, can more conven- iently be made here. The question how far delivery is essential to a transfer of the property against purchasers and attaching creditors is to be dis- tinguished from the question how far retention of possession is fraudulent Even in jurisdictions which agree upon the rule that delivery is necessary for a transfer of the property against pur- chasers and attaching creditors, varying rules prevail as to the effect of retention of possession as evidence of fraud.^°* The lead- 107 Ante, p. 82 et seq. 108 For example, in Massachusetts, tbe continuance of the seller In pos- session is not of Itself enough to render the sale void as fraudulent, but is a fact to be considered as evidence of fraud, which may be rebutted by proof that it was a sale for value and in good faith, and that possession was retained under an agreement not inconsistent with honesty in the transaction. Brooks v. Powers, 15 Mass. 247; Shurtleff v. Willard, 19 Pick. 202, 211; Green v. Rowland, 16 Gray, 58; Usher, Sales, § 292; and of. Id. § 140 et seq. The rule in Maine is the same. Reed v. Jewett, 5 GreenL (Me.) 96. In New Hampshire, if the seller fails to explain the want of change, It is conclusive evidence of fraud. Ooburn v. Pickering, 3 N. H. 428; Coolidge v. Melvin, 42 N. H. 516. In Pennsylvania, retention of pos- session, where the goods are capable of delivery, is fraud in law, and a technical delivery, such as consent by the seller to hold as bailee, is not enough; the cases insisting on visible, rather than legal, change of pos- session. In other words, these cases turn upon fraud, and do not involve the question whether delivery is essential to transfer the property. Clow v. Woods, 5 Serg. & R. 275; McKibbin v. Martin, 64 Pa. St. 352; Stephens V. Gifford, 137 Pa. St. 219, 20 Atl. 542. As has been already said, the sub- ject of the effect of continued possession as evidence of fraud is too ex- tensive for consideration in this book. See Benj. Sales (6th Am. Ed., Ben- nett's note) p. 458. SALES — 9 130 MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 ing case in support of the rule that delivery is necessary to trans- fer the property as against subsequent purchasers and attaching creditors is Lanfear v. Sumner/"® in which an assignment of tea then on a ship at sea was made to a bona fide creditor, and upon its arrivaJ, and before the assignee could take possession, the tea was attached b}' a second creditor without notice of the pi-ior assignment. In an action of trover by the assignee against the sheriff, who levied the attachment, it was held that the want of delivery was fatal to the plaintiff's title. The court said: "Deliv- ery of possession is necessaiy in a conveyance of personal chattels as against every one but the vendor. When the same goods are sold to two diJTerent persons, by conveyances equally valid, he who lirst lawfully acquires the possession will hold against the other." This case has been followed in Massachusetts^^" and some other states,^ ^^ though the rule is opposed to the general principle, else- where recognized, that delivery is not essertial to a transfer of the property.^''' A leading case against this rule is Meade v. Smith,^^^ in which the seller gave a bill of sale to the buyer, both parties being in New York, and the buyer went at once to Con- necticut, where the goods were, to take possession, but in the mean- time they had been attached by a creditor of the seller without notice of the prior sale, and it was held that the sale was not in- valid for lack of delivery, there being no want of diligence on the part of the buyer in taking possession. "This claim proceeds," said Storrs, J., "on the ground, not that the want of a change of pos- session furnishes evidence of fraud in the sale, and that but for such fraud the property would pass to the vendee, as against such purchasers and creditors, but that, as to them, there is no transfer 109 17 Mass. 110. 110 Dempsey v. Gardner, 127 Mass. 381; Hallgarten v. Oldham, 135 Mass. 1. 111 Fairfield Bridge Co. v. Nye, 60 Me. 372; Reed v. Reed, 70 Me. 504; Crawford v. Forristall, 58 N. H. 114; Burnell v. Robertson, 5 Gilman, 282; Huschle V. Monis, 131 111. 587, 23 N. E. 643. See, also, Jewett v. Lincoln, 14 Me. 116; Winslow v. Leonard, 24 Pa. St 14. 112 Ante, p. 83. See Meyerstein v. Barber, L. R. 2 C. P. 38, 51; Hall- garten V. Oldham, 135 Mass. 1, per Holmes. J. 113 16 Conn. 346. This case seems not inconsistent with the rule prevailing In Connecticut that retention of possession is usually conclusive evidence of fraud. See Hatstat v. Blalieslee, 41 Conn. SOL Ch. 5] DELIVERY A3 TO CREDITORS AND PURCHASERS. 131 of the property notwithstanding there be no fraud by reason of Buch want of possession; in other words, that as to them, before such change of possession, the title of the vendee is merely inchoate and incomplete." And the decision rests upon the ground that "want of delivery to, or of the continuance of possession by, the vendee, is in no case considered in any other light than as furnish- ing evidence of fraud in the sale; and where, for want of such de- livery or continuance of possession, the sale has been pronounced void, it was only on the ground of such fraud." The rule requiring delivery, unlike that which makes retention of possession evidence of fraud, does not operate in favor of pur- chasers or creditors who have notice of the sale.^** What Constitutes Delivery. Where the rule of Lanfear v. Sumner prevails, very slight evi- dence is necessary to give a preference to a bona fide buyer as against an attaching creditor of the seller.^^" If the buyer obtains possession before any attachment or second sale, the transfer is complete without formal delivery.^ ^^ A delivery of a part in token of the whole is a sufficient constructive delivery, although the goods are in the possession of various persons. ^^'' And where there can be no manual delivery, as in the case of goods at sea, a symbolical delivery, as of a bill of sale or an invoice, is a good delivery.^^* So the delivery of a bill of sale of a ship at sea is valid, provided the buyer takes actual possession as soon as he reasonably can.^^" The delivery of the key of a warehouse where the goods are stored is a good delivery.^ ^*' If the goods are in the possession of the seller, it is enough if he agrees to hold as bailee 114 Ludwig v. Fuller, 17 Me. 162; Haskell v. Greely, 3 Greenl. (Me.) 425. But notice to the officer holding the writ before service, but uncommuni- cated to the attaching creditor, is not notice to such creditor. McKee v. Garcelon, 60 Me. 165. iisShumway v. Rutter, 8 Pick. 443; Hardy v. Potter, 10 Gray, 89; Stln- son V. Clark, 6 Allen, 340; Ingalls v. Herrick, 108 Mass. 35L lie Shumway v. Rutter, 8 Pick. 443. iiT Legg V. Willard, 17 Pick. 140; Hobbs v. Carr, 127 Mass. 632. 118 Pratt V. Parkman, 24 Pick. 42. 118 Carter v. Willard, 19 Pick. 1, 9, 11; Conard v. Atlantic Ins. Co., 1 Pet 886, 389; Wheeler v. Sumner, 4 Mason, 183, Fed. Cas. No. 17,501. 120 Packard v. Dunsmore, 11 Cush. 282; Vining y. Gilbreth, 39 Me. 496. 132 MISTAKK, FAILURE OF CONSIDERATION, AND FRAUD. [Ch. 5 for the buyer. "^ If they are in the possession of a third person, it is enough if notice of the sale is given to him.^^' But the mere delivery of a bill of sale without delivery, actual or constructive, is not enough.'^' Some of these cases are hard to reconcile with the statement of Holmes, J., in a recent case,^** that the delivery required by the rule in Lanfear v. Sumner is delivery In its natural sense, — that is, change of possession, — for it is generally held, in connection with other branches of sale, that mere notice to a bailee without his attornment does not constitute deliveiy. In the latter case it was held that the indorsement and delivery by the bailor of a receipt for goods stored in a private warehouse, making the goods deliverable to the bailor on the payment of charges, but not to his order, did not pass the title as against a creditor attach- ing the goods before notice to and attornment by the bailee. "1 Ingalls V, Herrick, 108 Mass. 351. 1S2 Carter v. Willard, 19 Pick. 1; Russell v. O'Brien, 127 Mass. 349. 128 Dempsey v. Gardner, 127 Mass. 381; Farrar v. Smith, 64 Me. 74. la* Hallgarten v. Oldliam, 135 Mass. L Oh. 6] IM G£M£RAL. 183 CHAPTER VI. ILLEGALITY. 71-72. In General. 73-75. Sales Prohibited by Common Law. 76. Sales Prohibited by Public Policy. 77. Sales Prohibited by Statute. 78-81. Effect of Illegality. 82. Conflict of Laws. IN GENERAL. 71. A contract of sale -which is prohibited by la"w is voi, Fed. Gas. No. 1.099; Himter v. Talbot, 3 Smedes & M. 754. Where payment is to be on delivery in notes of a third person, who becomes insolvent, the seller need not deliver on tender of such notes. Benedict v. Field, 16 N. Y. 595. 2 2 Benj. Sales, § 7(37. «8 4 Barn. & C. 941. Ch. 9] seller's lien. 209 which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion. If the goods are sold on credit, and nothing is agreed on as to the time of delivering the goods, the vendee is immediately entitled to the possession; and the right of possession and the right of property vest at once in him; but his right of possession is not absolute; it is liable to be defeated if he becomes insolvent before he obtains possession. If the seller has dispatched the goods to the buyer, and insolvency occurs, he has a right, in virtue of his original ownership, to stop them in transitu. Why? Because the property vested in the buyer so as to subject him to the risk of any accident; but he has not an indefeasible right to the possession, and his insolvency, without payment of the price, defeats that right." The same principle was clearly stated in a Pennsylvania case: ^* "Judges do not ordinarily distinguish between the retainer of goods by a vendor and their stoppage in transitu on account of the insolvency of the vendee; because these terms refer to the same right, only at different stages of performance and execution of the contract of sale. If the vendor has a right to stop in transitu, a fortiori he has a right of retainer before any transit has commenced." Even if the seller has broken his contract to deliver while the buyer is solvent, the lien revives on the buyer becoming in- solvent.^^ It follows naturally, from the principle on which this right rests, that the seller does not lose his right to revive the lien on the in- solvency of the buyer, although he may have agreed to hold the goods as the buyer's bailee.^* As in the case of stoppage in tran- situ, the right is not lost by a technical delivery, so long as the i* White V. Welsh, 38 Pa. St 396, per Lowrie, C. .J. «B Valpy V. Oakeley, 16 Q. B. 941, 20 Law J. Q. B. 380; Griffiths v. Perry, 1 EI. & EL 680, 28 Law J. Q. B. 204. 26 Townley v. Crump, 4 Adol. & E. 58; Grice v. Richardson, 3 App. Gas. 319; Arnold v. Delano, 4 Gush. 33, 38; Thompson v. Baltimore & O. R. Co., 28 Md. 396; Conrad v. Fisher, 37 Mo. App. 353; Hamburger v. Rodman. 9 Daly, 93. 96. SALES — 14 210 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. [Ch. 9 seller is in a position to prevent the goods from coming into the buyer's actual possession. Te}inination of Lien — Delivery. Inasmuch as the riy,lit of lien is a right incident to possession, the seller ordinarily loses his lien when he delivers the goods,^' even constructively, to the buyer. "When the buyer is solvent, the cases as to what constitutes an 'actual receipt', within the meaning of the statute of frauds, appear to furnish the test whether the seller's lieu is gone or not," ^® "The principle," says Blackbura, J.,*^ "is that there cannot be an actual receipt by the vendee so long as the goods continue in the possession of the seller, so as to preserve his lien." When the buyer is insolvent, since the lien revives notwith standing that the seller holds the goods as bailee for the buyer, the cases as to what constitutes an actual receipt no longer furnish a test If the goods are in possession of the seller, a delivery takes place, and the seller's lien is divested, whenever the parties agree that the seller shall thenceforth hold as the bailee of the buyer.'" If the goods are in the possession of the buyer, the effect of the contract being to transfer the right of possession as well as that of property, the delivery becomes complete, by necessity, without further act on either side.'^ If the goods are in the possession of a third person as bailee of ^7 Gregory v. Morris, 96 U. S. 619, 623; Arnold v. Delano, 4 Gush. 33, 39; Haskins v. Warren, 115 Mass. 514, 533; Lupin v. Marie, 6 Wend. 77; Bowen V. Burk, 13 Pa. St. 146; .Johnson v. Famum, 56 Ga. 144; Gook v. Perry, 43 Mich. 629, 5 N. W. 1054; Thompson v. Wedge, 50 Wis. 642, 7 N. W. 560. Delivery is not effected by merely marking the goods with the buyer's name or setting them aside. Goodall v. Skelton, 2 H. Bl. 316; Dixon v. Yates, 5 Barn. & Adol. 313; Townley v. Grump, 4 Adol. & E. 58. Or by boxing them by the buyer's orders, so long as the seller holds them as his, and has not given credit Boulter v. Arnott, 1 Cromp. & M. 333. 28 Chalm. Sale, 62. 2 8 Gusack V. Robinson, 30 Law J. Q. B., at page 264, per Blackburn, .J.; ante, p. 60. 80 Ante, p. 62. Bl In re Batchelder, 2 Lowell, 245, Fed. Gas. No. 1,099; Warden v. Mar- shall, 99 Mass. 305; Martin v. Adams, 104 Mass. 262; Benj. Sales, 8 802; auie, p. 64. Ch. 9] seller's lien. 211 the seller, a delivery takes place whenever such third person, with the seller's assent, attorns to the buyer, and not before.'' Thus the transfer of a delivery order, dock warrant, or other document, which operates only as a token of authority to take possession, and not as a transfer of possession, does not divest the seller's lien, but the pereon in whose custody the goods are must first accept the order, or in some way attorn to the buyer, and until such attornment the seller may countermand his authority; and, even though the seller may have waived his lien by a sale on credit or by accepting con- ditional payment, he may nevertheless, upon the occurrence of the buyer's insolvency before such attornment, countermand the au- thority, and revive his lien.^^ Under the factors' acts and other enactments, however, certain other documents are in many juris- dictions put on the same footing as bills of lading, and a transfer of such documents excludes the lien, if the documents get into the hands of a holder for value.'* Same — Delivery to Carrier. Delivery to a common carrier for conveyance to the buyer is prima facie such a delivery of possession as puts an end to the seller's lien."' The right of lien becomes changed into a right of stoppage in transitu should the buyer become insolvent. The seller may, however, retain his lien by reserving the right of disposal.'* Same — Assent to Subsale. At common law, the seller's lien is not affected by any sale, pledge, or other disposition of the goods which the bu.yer may have 82 McEwan v. Smith, 2 H. L. Cas. 309; Farina v. Home, 16 Mees. & W. 119; Keeler v. Goodwin, 111 Mass. 490; In re Batchelder, 2 Lowell, 245, Fed. Cas. No. 1,099; ante, p. 63. 33 McEwan v. Smith, 2 H. L. Cas. 309; Arnold v. Delano, 4 Cush. 33, 39, per Shaw, C. J.; Parker v. Byrnes, 1 Lowell, 539, Fed. Cas. No. 10,728; Keeler v. Goodwin, 111 Mass. 490. 8 4 In some states, warehouse receipts are by statute put on the same footing as bills of lading. In others they have been given the same effect by the courts without legislation. See Merchants' Bank v. Hibbard, 48 Mich. 118, 11 N. W. 834; Davis v. Russell, 52 Cal. 611; Allen v. Maury, (16 Ala. 10. As to factor's acts, ante, p. 19. 3 5 Ante, p. 61. 36 Ante, p. 104. 212 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. [Oil. 9 made, unless he has assented thereto.'^ This fi)lh»\vs, as we have seen, from the general principle, "Nemo dat quod non habet." " Thus where goods lying in a warehouse of a third person were sold, but not delivered, aud were paid for in the buyer'sacceiJlauees, which were subsequently dishonored, and before they became due the buyer sold to a second purchaser, it was held that the second purchaser, who had not obtained actual or constnictive possession, was in the same position as the original buyer, and got his title defeasible on nonpayment of the price by the latter.'® Nor is such second per- son in a better position by reason of the transfer to him of a de- livery order or other document the transfer of which does not oper- ate as a delivery of the goods, unless he obtains an actual or con- structive delivery from the warehouseman before the original seller has countermanded the authority and asserted his lien.*** On the other hand, the seller may be estopped from asserting his lien by assenting to the subsale, either subsequently *^ or in ad- vance.*^ Thus when the second purchaser of timber lying on the premises of the original seller informed him of the subsale, and the latter said, "Very well," and allowed him to mark the timber with his name, this was held a sufficient subsequent assent.*' A seller 87 Dixon V. Yates, 5 Barn. & Adol. 313; Palmer v. Hand, 13 Johns. 434; Mllliken v. Warren, 57 Me. 4G; Haskell v. Rice, 11 Gray, 240, 241. 88 Axite, p. 17. 89 Dixon V. Yates, 5 Barn. & Adol. 313. in which case, as we have seen,^^ the property does not pass, and the seller retains, not strictly speaking the right of stoppage in transitu, but the right of disposal. It has been held, however, in England and in Pennsylvania, that if by the terms of the bill of lading the goods are deliverable to the buyer or his assigns, delivery on the buyer's own ship is delivery to him, and therefore precludes any right of stoppage in transitu; ''^ although a distinction is made between a ship owned by the buyer and one merely chartered by him. In the case of a chartered ves- sel, the master is regarded as an intermediary interposed between the seller and the buyer, and not as the buyer's servant; and hence delivery on board the ship, notwithstanding that by the bill of lad- ing the goods are deliverable to the buyer or assigns, or that no bill of lading is issued, does not preclude the seller from stopping in transitu.^* In this country the courts of several states have refused to rec- 7 4 Van Casteel v. Booker, 2 Exch. G91; Berudtson v. Strang, L. R. 4 Eq. 481, at page 489. 78 Van Casteel v. Booker, 2 Exch. 691; Turner v. Trustees of Liverpool Docks, 6 Exch. 543, 20 Law J. Exch. 394; Gossler v. Schepeler, 5 Daly, 476. 78 Ante, p. 104. 77 Schotsmans v. Lancashire & Y. Ry. Co., 2 Ch. App. 332; Bolin v. HuCf- nagle, 1 Rawle, 9; Thompson v. Stewart, 7 Phiia. 187. 7 8 Bohtlingk v. Inglis, 3 East, 381; Berndtson v. Strang, L. R. 4 Eq. 481, 3 Ch. App. 588; Ex parte Rosevear China Clay Co., 11 Ch. Div. 560; Brindley V. Cilgwyn Slate Co. (1886) 55 Law J. Q. B. Dlv. 68. But, if the charter party Is such that the ship Is demised to the buyer, so that the captain is his agent, the vessel is considered the buyer's own ship. Benj. Sales, § 843. Ch. 9] STOPPAGE IN TRANSITU. 219 ogiiize a different rule as applying to a sLip owned by the buyer.'* "The true distinction,'' says Parsons, C. J., in an early Massachu- setts case,^" "is whether any actual possession by the consignee or his assigns, after the termination of the voyage, be or be not pro- vided for in the bill of lading. When such actual possession, after the termination of the voyage, is so provided for, then the right of stoppage in transitu remains after the shipment. * * * The same rule must govern if the consignor be such owner. If the goods are delivered on board his ship, to be carried to him, an actual possession by him after the delivery is provided for by the terms of the instrument; but, if the goods are put on board the ship to be transported to a foreign market, he has on the shipment all the possession contemplated in the bill of lading." The distinction here dj'awn is, in effect, between delivery to the master, not as the serv- ant of the bu3'er, but as an intermediary for the purpose of convey- ing the goods to him, and delivery on board the ship as the place of delivery appointed by him. In the one case the seller may stop in transitu ; in the other no transitus ever arises. This distinction is reasonable and in accordance with that recognized in respect to the termination of the transit, viz. that delivery to an agent to con- vey the goods to the buyer does not terminate the transit, but that delivery to an agent to hold the goods subject to his further orders does terminate it.®^ That no transitus ever arises where the goods are delivered on board the ship as the place of delivery appointed by the buyer has been recognized on both sides of the Atlantic. Such is the character of the delivery where the buyer orders the goods put on board in order that they may be sent on a mercantile venture or roving voyage,*^ or in order that they may be shipped from his place of business, not to be delivered to him or to his use^ but to a third person.®* 79 Stubbs V. Lund, 7 Mass. 453; Ilsley v. Stubbs, 9 Mass. 65; Newhall v. Vargas, 13 Me. 93; Moore v. Hamilton, 44 N. Y. 661, 666, per Earle, J. But see Sturtevant v. Orser, 24 N. Y. 538, 539. 80 stubbs V- Lund, 7 Mass. 453. 81 Post, p. 221. 82 Fowler v. McTaggart, cited in Hodgson v. Loy, 7 Term R. 442; Berndt* son V. Strang, L. R. 4 Eq. 481, at page 489. as Rowley v. Bigelow, 12 Pick. 307. 220 RIGHTS OF UN AID SELLER AGAINST THE GOODS. [Ch. 9 Termination of Transit — Delivery to Bayer. "Transit embraces not only the carriage of the goods to the place where delivery is to be made, but also delivery of the goods there according to the terms of the contract of conveyance." ®* The trans- it does not terminate until the goods pass into the actual or con- structive possession of the buyer.®" So long as the buyer declines or fails to take delivery the transit continues.*' What will amount to a taking of possession is a question in relation to which much of the law referred to in connection with actual receipt under the stat- ute of frauds *^ and delivery in performance of the contract '* will be found applicable. As in the case of the seller's lien, a mere de- livery of a part does not amount to a delivery of the whole, so as to defeat the seller's right as to the remainder, unless the delivery is made under such circumstances as to show an agreement to give up the whole of the goods.**^ The buyer may anticipate the end of the transit, and thereby put an end to the right of stoppage, by taking the goods into his actual possession before they reach their appointed destination. "" Same — Delivery after Bankruptcy. The bankruptcy of the buyer not being a rescission of the con- tract, delivery to him after bankruptcy, or to his trustee or assignee 8* Kemp V. Falk, 7 App. Cas., at page 588, per Lord Fitzgerald. 8B Whitehead v. Anderson, 9 Mees. & W. 518; Crawshuy v. Eades, 1 Bam. & C. 181; Kitchen v. Spear, 30 Vt 545; Seymour v. Newton, 105 Mass. 272; White v. Mitchell, 38 Mich, 390; Greve v. Dunham, 60 Iowa, 108, 14 N. W. 130; Symns v. Schotten, 35 Kan. 310, 10 Tuc. 828. 86 Bolton V. Lancashire & Y. Ry. Co., L. R. 1 C. P. 431; James v. Griffin, 2 Mees. & W. 623; Jenks v. Fulmer, 160 Pa. St. 527, 28 Atl. 841; Kingman & Co. V. Denison, 84 Mich. 608, 48 N. W. 26; Mason v. Wilson, 43 Ark. 172. 87 Ante, p. 60 et seq. 88 Ante, p. 179 et seq. 89 Bolton V. Lancashire & Y. Ry. Co., L. R. 1 C. P., at page 440; Ex parte €ooper, 11 Ch. Div. 68; Kemp v, Falk, 7 App. Cas., at page 586, per Lord Blackburn; Buckley v. Furniss, 17 Wend. 504. Cf. ante, p. 213. 8 Whitehead v. Anderson, 9 Mees. •& W. 518, 534; London &. N. W. Ry. Co. T. Bartlett, 7 Hurl. «& N. 400, 31 Law J. Exch. 92; Stevens v. Wheeler, 27 Barb. 658; Mohr v. Boston & A. R. R., 106 Mass. 72, per Morton, J.; Wood ▼. Yeatman, 15 B. Mon. 270. Ch. 9] STOPPAGE IN TRANSITU. 221 in bankruptcy, terminates the transit.®^ If the property has passed, and the goods have come into the possession of the insolvent buyer, he cannot afterwards rescind the sale, and thus give a preference to the seller over the general creditors.®^ But before the goods have come into his possession he may, with the assent of the seller, rescind the sale, or else refuse to take possession, and thus leave unimpaired the right of stoppage in transitu, unless his assignee succeeds in getting possession before the right is exercised.®' Same — Delivery to Agent. Delivery of the goods at their appointed destination to an agent authorized to receive delivery is delivery to the buyer, and ends the transit. But delivery to his agent before they have reached their destination does not necessarily end the transit. The goods may be in transit although they have left the hands of the person to whom the seller intrusted them for transmission; it is immaterial how many agents they may have passed through, if they ha^ e not reached their destination. The term "transit" does not necessarily imply that the goods are in motion. "It the goods are deposited with one who holds them merely as agent to forward, and has custody as such, they are as much in transitu as if they were actually moving," ®* Thus goods may still be in transitu, though lying in a warehouse to which they have been sent by the seller's orders. Goods sold in Chicago to a merchant in Liverpool, and lying in a warehouse in New York awaiting shipment to Liverpool in pursuance of the buyer's original order to send them to Liverpool, 81 Ellis V. Hunt, 3 Term R. 467; Inglis v. Usherwood, 1 East, 515; Con- yers v. Ennis, 2 Mason, 236, Fed. Cas. No. 3,149; Millard v. Webster, 54 CJonn. 415, 8 Atl. 470; McElroy v. Seery, 61 Md. 389. 8 2 Barnes v. Freeland, 6 Term R. 80. 83 Atkin V. Barwick, 1 Strange, 165; Salte v. Field, 5 Term R. 211; Grout V. Hill, 4 Gray, 361; Tufts v. Sylvester, 79 Me. 213, 9 Atl. 357; Ash v. Put- nam, 1 Hill, 302; Sturtevant v. Orser, 24 N. Y. 538; Cox v. Burns, 1 Iowa, 64; Mason v. Wilson, 43 Ark. 172. 94 Smith v. Goss, 1 Camp. 282; Ex parte Watson, 5 Ch. Div. 35; Ex parte Rosevear China Clay Co., 11 Ch, Div. 560; Bethell v. Clark, 19 Q. B. Div. 553, affirmed 20 Q. B. Div. 615; Covell v. Hitchcock, 23 Wend. 611; Harris V. Pratt, 17 N. Y. 249; Cabeen v. Campbell, 30 Pa. St. 254; Aguirre v. Parmelee, 22 Conn. 473; White v. Mitchell, 38 Mich. 390; Blackman v. Pierce, 23 Cal. 509; Blackb. Sales, 353; Chalm. Sale, 64. 222 RIGHTS or UNPAID SELLER AGAINST THE GOODS. [Cll. 9 are still in transit, even though the person in possession may be the general agent of the buyer for selling as well as for forwarding the goods. But if the goods are once deposited with one who holds them as agent of the buyer, subject to his further ordei-s, they are no longer in transit^" In each case the question is: "Has the per- son who has the custody of the goods got possession as an agent to forward from the vendor to the buyer, or as an agent to hold for the buyer." ®^ It is often impossible to reconcile the decisions in cases arising upon substantially similar facts. The difficulty lies, not in the statement, but in the application, of the principles. Same — Attornment of Carrier. When the goods have reached their appointed destination, the transitus may be terminated by a constructive as well as by an actual delivery of possession to the buyer. Unless there be a de- livery of actual possession, something must occur to change the actual possession of the carrier into the constructive possession of the buyer; in other words, the carrier must attorn. As in other cases, the attornment must be founded on mutual assent."^ If the carrier does not consent to hold the goods as bailee for the buyer,** or if the buyer does not assent to his so holding them,** there is no Mttoinment. The carrier's change of character into that of warehouseman or bailee for the buyer is not necessarily inconsistent with his main- 9R Dixon V. Baldwen, 5 East, 175; Valpy v. Gibson, 4 C. B. 8,37; Ex parte Gibbes, 1 Ch. Div. 101; Kendal v. Marshall, 11 Q. B. Div. .356; Ex parte Miles. 15 Q. B. Div. 39, 54 Law J. Q. B. 507; Guilford v. Smith, 30 Vt 49; Becker v. Hallgarten, 8G N. Y. 167; Rowley v. Bigelow, 12 Pick. 307, 313; Biggs V. Barry, 2 Curt. 259, Fed. Gas. No. 1,402; Brooke Iron Co. v. O'Brien, 135 Mass. 442, 447. fl« Blackb. Sales, 353. 97 James v. Griffin, 2 Mees. & W. 623; Ex parte Cooper, 11 Ch. Div. 68; Kemp V. Falk, 7 App. Cas. 573, per Lord Blackburn; Hall v. Dimond. 63 N. H. 565, 3 Atl. 423; McFetridge v. Piper, 40 Iowa, 627; Harding Paper Co. V. Allen. 65 Wis. 576. 27 N. W. 329; Laugstaff v. Stix, 64 Miss. 171, 1 South. 97; Williams v. Hodges, 113 N. C. 38, 18 S. E. 83; Blackb. Sales, 364. 8 8 Whitehead v. Anderson, 9 Mees. & W. 518; Coventry v. Gladstone, L. R. 6 Eq. 44. 89 Ex parte Barrow, 6 Ch. Div. 783; O'lSeil v. Garrett, 6 Iowa, 479. Ch. 9] STOrPAGE IN TRANSITU. 223 tenance of his carrier's lien; '"" but the continuance of the Hen, and the fact that his charges are unpaid, is strong, though not con- elusive, evidence that he is still in possession as carrier.^*** Wrongful Refusal to Deluer. Since the buyer has the right of possession subject only to the right of stoppage in transitu, if the buyer is solvent or the seller has failed to exercise his right of stoppage the buyer's right of possession is not affected by the refusal of the carrier to deliver; and, if the carrier wrongfully refuses possession, the right of stop- page is gone.^"' W^auer. Since the right of stoppage in transitu arises by implication of law, the seller may waive it, expressly or by implication.^"* How the Right may he Defeated. The seller may stop in transit notwithstanding that he has de- livered to the buyer a bill of lading by which the goods are de- liverable to his order. But if the buyer transfers the bill of lading to a bona fide purchaser for value, and in such case only, the right of stoppage is defeated.^"* It must be borne in mind, however, that a bill of lading is not like a bill of exchange, and that the trans- feree obtains no greater rights under the instrument than his trans- ferer possessed. The bill of lading represents the goods, and the transfer of the instrument operates simply as a delivery of the goods. Therefore the transfer by one who has no title to the goods con- veys none to the transferee, and a transfer of the bill of lading by way of pledge by one who, like a factor, has no authority to pledge confers no greater rights than would the pledge of the goods them- selves by an agent acting without authority.^"" 100 Allan v. Gripper, 2 Cromp. & J. 218; Hall v. Dimond, G3 N. H. 565, 3 Atl. 423. 101 Kemp v. Fa Ik, 7 App. Gas. 573, per Lord Blackburn. Where the cap- tain promised to deliver, when satisfied as to freight, it was held the transit was not ended. Whitehead v. Anderson, 9 Mees. & W. 518. 10 2 Bird v. Brown, 4 Exch. 786. 108 Ante, p. 207; Ghalm. Sale, § 47 (8). 104 Lickbarrow v. Mason, 2 Term R. 63. 1 H. Bl. "57, 2 H. Bl. 211, 6 East 20, note, 5 Term R. 683, 1 Smith Lead. Gas. (Ed. 1887) 737, and notes. 106 LickbaiTow v. Mason, 1 Smith, Lead. Gas. (Ed. 1887) 737, notes. In 224 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. [Ch. 9 To entitle the transferee to liold the goods free from the right of stoppage in transitu, he must take without notice; not, indeed, without notice that the goods have not been paid for, since that would not affect the buyer's right to sell, but without notice of the buyer's insolvency,^"' or of any other circumstance which would render the bill of lading not fairly and honestly assignable.'" The transfer must be for value, but an antecedent debt is sufficient.^"' The purchaser will, however, take subject to the right of stop- page, unless he actually gets a transfer of the bill of lading.^"^ The right of stoppage may be defeated in part by a transfer of the bill of lading by way of pledge or mortgage. In such case, the buyer still retains the general property, and the seller may in equity exercise his right of stoppage subject to the incumbrance; and he may also compel the incumbrancer to exhaust any other securities he may hold in satisfaction of his claim before proceeding on the goods represented by the bill of lading.^^" some states bills of lading are by statute made negotiable, like bills of ex- change and promissory notes. lOG Yertue v. Jewell, 4 Camp. 31, per Lord Ellenbo rough; Stanton v. Eagor, 16 Pick. 4G7, 476; Loeb v. Peters, 63 Ala. 243. A transfer of the bill of lading, after notice of stoppage has been served on the carrier, to a purchaser for value, without notice of the stoppage or of the insolvency, defeats the seller's right. Newhall v. Central P. R. Co., 51 Cal. 845. 107 Cuming v. Brown, 9 East, 50G; Salomons v. Nissen, 2 Term R. 681. 108 Leask v. Scott, 2 Q. B. Div. 376, dissenting from Rodger v. Comptoir d'Escompte, L. R. 2 P. C. 3Do; St. Paul Roller-Mill Co. v. Great Western Di.spatch Co., 27 Fed. 434; Lee v. Kimball, 45 .Me. 172. See, also, Clemeutson v. Grand Trunk Ry. Co., 42 U. C. Q. B. 263. But it has been hold that a transfer of the bill of lading, as mere collateral to previous obligations, does not defeat the seller's right. Lesassier v. The Southwestern, 2 Woods. 35, Fed. Cas. No. 8.274; Loeb v. Peters. 63 Ala. 243. 109 Kemp V. Falk, 7 App. Cas; 573, per Lord Blackburn; Walter v. Ross, 2 Wash. 283, Fed. Cas. No. 17,122; Stanton v. Eager, 16 Pick. 467, 476; Pat- tison V. Culton. 33 Ind. 240; Clapp v. Sohmer, 55 Iowa, 273, 7 N. W. 639. The transfer of a "duplicate" bill of lading does not defeat the right of stop- page. Castanola v. Missouri Pac. R. Co., 24 Fed. 267. But see note to that case by Adelbert Hamilton, citing Caldwell v. Ball, 1 Term R. 205; Meyer- stein V. Barber, L. R. 2 C. P. 38, 661, L. R. 4 H. L. 317; Glyn v. East & W. L Dock Co., 7 App. Cas. 591, affirming 6 Q. B. Div. 475, reversing 5 Q. B. Uiv. 129; Benj. Sales, § 861. 110 In re Westzinthus, 5 Barn. & Adol. 817; Spalding v. Ruding, 6 Beav. Ch. 9] STOPPAGE IN TRANSITU. 225 Whether, when the bill of lading has been transferred by the buyer to a subpurchaser for value, but the purchase money is wholly or in part unpaid by the subpurchaser, the seller may stop to the extent of such unpaid purchase money, is a question not free from doubt^" Hoxo Stoppage in Transitu is Ejected. It has been said that the vendor is so much favored in exercising his right as to be justified in getting the goods back by any mean&' not criminal before they reach the possession of the insolvent ven jjggiia "The law is clearly settled," says Parke, B., "that the un paid vendor has a right to retake the goods before they have ar rived at the destination originally contemplated by the purchaser,, unless in the meantime they have come into the actual or construct- ive possession of the vendee.'' ^^' Any notice clearly countermanding delivery is enough. Such notice may be given to the person in actual possession of the goods or to his principal or employer.^^* But, if the notice be to a pria- 376, 12 Law J. Ch. 503, affirmed 15 Law J. Ch. 374; Berndtson v. Strang, L. R. 4 Eq. 481, affirmed 3 Ch. App. 588; Kemp v. Falk, 7 App. Cas. 573. But If the goods come into the hands of pledgees of the buyer, holding them under his title and setting up a possession adverse to that of the seller with the buyer's assent, at a place where the seller contemplated and agreed it shcnM be done, the transit is at an end, and the principle of Spalding v. Rudiog does not apply. Brooke Iron Co. v. O'Brien, 135 Mass. 442, 447. 111 The affirmative was substantially held in Ex parte Golding, 18 Ch. DIv. 628, which was followed in Ex parte Falk, 14 Ch. Div. 446. The latter case was aflSrmeci, but on a different ground (7 App. Cas. 573), where Lord Selbourne doubted the rule, and said: "I assent entirely to the proposition that, where the subpurchasers get a good title as against the right of stop- page in transitu, there can be no stoppage in transitu as against the purchase money payable by them to their vendor." See Benj. Sales, § 865a; Chalm. Sale. 72. 112 Snee v. Prescot, 1 Atk. 245, 2.50, per Lord Hardwicke. 118 Whitehead v. Anderson, 9 Mees. & W. 518. 11* Litt V. Cowley, 7 Taunt. 169; Reynolds v. Boston & M. R. R., 43 N. H. 580; Newhall v. Vargas, 13 Me. 93; Jones v. Earl, 37 Cal. 630; Rucker v. Donovan, 13 Kan. 252. The notice need not state the reason. Allen v. Maine Cent. R. Co., 79 Me. 327, 9 Atl. 895. The seller may exercise hi» right by demanding the bills of lading from the shipowner who has re- tained them as security. Ex parte Watson, 5 Ch. Div. 35. But a notice to hold the proceeds of the goods is ineffectual. Phelps v. Comber, 29 Ch. Div. 813. SALES— 15 226 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. [Ch. 9 c'ipal not in actual possession, the notice, to be effectual, must be given at such time and under such circumstances that the principal, in the exercise of reasonable diligence, can communicate with his servant or agent in time to prevent delivery to the buyer; but if the principal receives notice he is bound to use reasonable diligence in forwarding the notice to the proper agent, and if he does so he will be excused if the goods are delivered before the arrival of the notice.^ ^" The seller exercises his right of stoppage at his peril. When no- tice of stoppage is lawfully given to the carrier, the latter must redeliver the goods according to the directions of the seller.^^' In case of real doubt, the carrier must deliver at his peril or resort to an interpleader.^ ^^ Effect of Stoppage in Transitu. The effect of exercising the right is simply to restore the goods into the possession of the seller, so as to enable him to exercise his rights as unpaid seller, and not to rescind the sale. He is replaced in the position he was in before he parted with the possession.^ ^® RIGHT OF RESALE. 122. The unpaid seller, who has exercised his right of lien or of stoppage in transitu, may, upon the failure of 11 B Whitehead v. Anderson, 9 Mees. & W. 518; Kemp v. Falk, 7 App. Cas. :573, 585, per Lord Blackburn; Mottram v. Heyer, 5 Denio, 629. But see Ex parte Falk, 14 Ch. Div. 446, 455, per Bramwell, L. J. 116 The Tigress, 32 Law J. P. M. & Adm. 97; The E. H. Pray, 27 Fed. 474; The Vidette, 34 Fed. 396; Jones v. Earl, 37 Cal. 630; Allen v. Maine Cent. R. Co., 79 Me. 327, 9 Atl. 895. iiT Glyn V. East & W. I. Dock Co., 7 App. Cas. 591, per Lord Blackburn; The Tigress, 32 Law J. P. M. & Adm. 97, 102; Benj. Sales, § 861. lis Martindale v. Smith, 1 Q. B. 389; Wentworth v. Outhwaite, 10 Mees. & W. 436; Schotsmans v. Lancashire & Y. Ry. Co.,- 2 Ch. App. 332, 340, per Lord Cairns; Kemp v. Falk, 7 App. Cas. 573, 581, per Lord Blackburn; Babcock V. Bonnell, 80 N. Y. 244; Rowley v. Bigelow, 12 Pick. 307, 312; Newhall v. Vargas, 15 Me. 314; Patten's Appeal, 45 Pa. St. 151; Pennsyl- vania R. Co. V. American Oil Works, 126 Pa. St 485, 17 Atl. 671; Diem v. Koblitz, 49 Ohio St 41, 29 N. E. 1124; Bloomingdale v. Memphis •& C. R. Co., 6 Lea, 616; Rucker v. Donovan. 13 Kan. 251. Ch. 9] RIGHT OF RESALE. 227 the buyer to pay the price, resell the goods, acting as agent of the buyer, and recover from him the difference between the contract price and the proceeds of the resale. In England. In England the exact extent of the right of the unpaid seller in possession of the goods to resell them upon the buyer's default ap- pears not to be entirely free from doubt. He may resell and give a good title to the buyer as against the original purchaser.^^" And if he resells he may recover from the original purchaser as damages the actual loss on the resale; ^'° and the buyer cannot maintain trover against him, being deprived by his default of that right of possession without which trover will not lie.^^^ But it is said by Benjamin "^ that such resale, even on the buyer's default, is a breach of contract for which damages may be recovered against him, though only the actual damages suffered, — that is, the difference between the contract price and the market value on the resale; and that, if there be no proof of such difference, the recovery will be for nominal damages only. In United States. In this country the right of resale is universally recognized and clearly defined. In making the resale the seller acts as the agent of the buyer, and, if the goods sell for less than the contract price, the seller may recover the difference, together with the expenses of sale, in an action against the buyer.^^^ It must appear that the sale was 118 Milgate v. Kebble, 3 Man. & G. 100. Cf. Lord v. Price, L. R. 9 Exch. 54. 120 Maclean v. Dunn, 4 Bing. 722. 121 Milgate v. Kebble, 3 Man. & G. 100; Lord v. Price, L. R. 9 Exch. 54. 122 Benj. Sales, § 794, citing Valpy v. Oakeley, 16 Q. B. 941, 20 Law J. Q. B. 3S0; Griffiths v. Perry, 1 El. & El. 680, 28 Law J. Q. B. 204. And see Benj. Sales, §§ 782-795, for a discussion of the English cases. "AVhere the goods are of a perishable nature, or where the unpaid seller gives notice of his intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods, and recover from the original buyer damages for any loss occasioned by his breach of contract." Chalm. Sale, § 50 (3), citing Page v. Eduljee, L. R. 1 P. C, at page 145; Lord v. Price, supra; Ex parte Stapleton, 10 Ch. Div. 58G; Mac- lean V. Dunn, supra. 123 Sands v. Taylor, 5 .Tohns. 395; Dustan v. McAndrew, 44 N. Y. 73; Sawyer v. Dean, 114 N. Y. 469, 21 N. B. 1012; Whitney v. Boardman, 118 228 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. [Cll. ^ TN'illiin a reasonable time/" and that it was fairly conducted,^" or else the seller can only recover the difference between the con- tract price and the amount which the goods would have realized upon a proper sale."' Whether the sale should be private or by auction would depend on what was the customary manner of sell- ing the commodity in question and the manner most likely to pro- duce the best price."^ Notice of intention to exercise the right of sale should be given, though cases may arise where, owing to the Mass. 242; Phelps v. Hubbard, 51 Vt. 489; Atwood v. Lucas, 53 Me. 508; Young V. Mertens, 27 Md. 114; Bell v. Offutt, 10 Bush. 632; Bagley v. Find- lay, S2 111. 524; Iloebliug's Sons' Co. v. Lock-Stitch Fence Co., 130 111. 660, 22 N. E. 518; Van Horn v. Rucker, 33 Mo. 391. Some cases hold that the amount obtained on resale is only evidence of the value, and not necessarily conclusive against the buyer. Girard v. Taggart, 5 Serg. & R. 19; Andrews V. Hoover, 8 Watts, 239; McCombs v. McKennan, 2 Watts & S. 216. This is Inconsistent with the theoiy that the seller resells as the buyer's agent, which would only require good faith and reasonable diligence. In these cases it seems tliat the property had passed to the buyer, and they are therefore to be distinguished from those in which the property has not passed, and the resale is resorted to simply as a means of determining the market value for the purijose of establishing the amount of the seller's dam- ages. See Chapman v. Ingram, 30 Wis. 295; Ricky v. Tenbroeck, 63 Mo. 563; Black River Lumber Co. v. Warner, 93 Mo. 374, 386, 6 S. W. 210; Has- kell V. McHenry, 4 Cal. 411. Upon default of a purchaser of an undivided Interest in a partnership, the vendor may resell and recover the deficiency from the first purchaser. Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. 415. 124 Smith v. Pettee, 70 N, Y. 13; Camp v. Hamlin, 55 Ga. 259. See Rosen- baums v. Weeden, 18 Grat. 785. 12B Van Brocklen v. Smeallie, 140 N. Y. 70, 75, 35 N. E. 415; Camp v. Hamlin, 55 Ga. 259; Brownlee v. Bolton, 44 Mich. 218, 6 N. W. 657; Saladin V. Mitchell, 45 lU. 79; Penn v. Smith, 98 Ala. 560, 12 South. 818. A sale elsewhere than at the place of delivery is good, if made in good faith, and In the exercise of a reasonable discretion. Lewis v. Greider, 51 N. Y. 231- Sawyer v. Dean, 114 N. Y. 469, 481, 21 N. E. 1012. But see Chapman v. Ingi-am, 30 Wis. 290; Ricky v. xenbroeck, 63 Mo. 563. The buyer cannot complain that the goods are bought in the name of a third person for the seller, if the full market price is obtained. Lindon v. Eldred, 49 Wis. 305, 5 N. W. 862. It seems that the seller should follow any i-easonable instruc- tions as to the time and manner of sale which he can follow without sacrificing his lien. Smith v. Pettee, 70 N. Y. 13, 18. 126 Pickering v. Bardwell, 21 Wis. 563. 127 Pollen V. Le Roy, 30 N. Y. 549; Van Brocklen v. Smeallie. 140 N. Y. 70, 35 N. E. 415; Whitney v. Boanluiau, 118 Mass. 242, 248. Ch. 9] RIGHT OF RESALE. 229 perishable character of the goods, or other circumstances, notice might be dispensed with.^'* Notice of the time and place of sale, however, is not essential.^" Choice of Remedies — Right to Rescind. It is held in England that the seller has no right to rescind the sale because the hujev is in default for the price,^*"^ his choice of remedies, except for the right of lien, being either to sue for the price or to i^esell. In some cases in this country, it is said that the seller has a third remedy. "The vendor of personal property," says the court, in the leading case of Dustan v. McAndrew,^" "in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of one of three remedies: (1) He may store or retain the property for the vendee, and sue him for the entire price: (2) he may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the con- tract price and the price of resale; or (3) he may keep the property as his OWE, and recover the difference between the market price at the time and place of delivery and the contract price." Sub- stantially the same statement of the law has been made in other cases.^^* While the first and second of these remedies is exercised in affirmance of the contract, the latter since it permits the seller to keep the goods as his own notwithstanding that the property had passed, must rest on the theory of rescission, although the seller is inconsistently allowed to maintain an action on the contract for 128 Holland v. Rea, 48 Mich. 218, 224, 12 N. W. 167; McOlure v. Williams, 5 Sneed, 717; Saladin v. Mitchell, 45 111. 79; Redmond v. Smock, 28 Ind. 365. 129 Pollen V. Le Roy, 30 N. Y. 549; Holland v. Rea, 48 Mich. 218, 12 N. W. 167; Ullmann v. Kent, 60 111. 271. It is not "essential that notice of the time and pJace of sale should be given to the vendee. Still as the sale must be fair, and such as is most likely to produce most nearly the full and fair value of the article, it is always wisest for the vendor to give notice of his Intention to resell, and quite unsafe to omit it." Van Brocklen v. Smeallie, 140 N. Y. 70, 75, 35 N. B. 415, per Finch," J. 180 Post, p. 234. 131 44 N. Y. 73. 182 Hayden v. Demets, 53 N. Y. 426; Mason v. Decker, 72 N. Y. 595; Van Brocklen v. Smeallie, 140 N, Y. 70, 35 N. E. 415; Ba'rr v. Logan, 5 Har. (Del.) 52; Young v. Mertens, 27 Md. 114, 126; Cook v. Brandeis, 3 Mete. (Ky.) 555; Bagley v. Findlay. 82 111. .524; Ames v. Moir, 130 IlL 582, 22 N. B. 535. See, also, Putnam v. Glidden, 159 Mass. 47, 34 N. E. 81. 230 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. [Ch. 9 the difference between the market value of the goods and the price. The exercise of the third remedy was not involved in any of the cases cited. It would seem, on principle, that the only case in which the seller may keep the goods, and sue for the difference between the contract price and the value of the goods, is where the property has not passed.^** 18 8 See Ganson v. Madigan, 15 Wis. 144, 151. Gh. 10] REMEDIES OF SELLER. 231 CHAPTER X. ACTION FOR BREACH OF THE CONTRACT. 123-124. Remedies of Seller— Where Property has not Passed. 125. Measure of Damages for Nonacceotance. 12G. Where Property has Passed. 127. Remedies of the Buyer— Action for Nondelivery, 128. Measure of Damages. 129. Specific Performance. 130. Action for Conversion. 131. Breach of Warranty of Quality— Right to Reject 132. Rights after Acceptance. 133. Measure of Damages for Breach of Warranty. REMEDIES OF SELLER— WHERE PROPERTY HAS NOT PASSED. 123. If the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance. 124. Where the price is payable on a day certain irre- spective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed. 125. MEASURE OF DAMAGES FOR NONACCEPT- ANCE. The measure of damages for nonacceptance is the estimated loss directly and naturally resulting from the breach of contract in the natural course of events, and, w^hen there is an available market for the goods, is prima facie to be ascertained by the difference betw^een the con- tract price and the market price at the agreed time and place of delivery. When the property in the goods has not passed, as where the contract is for the sale of unascertained goods or of goods which are not in a deliverable state, the buyer's breach of his promise 232 ACTION FOR BREACH OF THE CONTRACT. [Ch. 10 to accept and pay for them can only affect the seller by way of dam- ages. The goods are still his. He may resell them or not, at his pleasure. His only remedy, therefore, is an action against the buyer for nonaceeptance.^ To this general rule there is only the one exception, which has been above stated, that, if by the terms of the contract the price is payable irrespective of delivery, the seller may sue for the price at the time agreed upon, leaving the buyer to his cross action in case the seller, after receiving the price, should fail to deliver the goods." Damages for Nonacceptance. The proper measure of damages for nonacceptance Is generally the difference between the contract price and the market price at the place of delivery at the time when the contract is broken, be- cause the seller may take his goods into the market, and obtain the current price for them.' If the goods have no market price, the damages must, of course, be otherwise ascertained;* and if they have no money value the measure of damages would be equal to the whole contract price." The date at which the contract is deemed to be broken is that fixed by the contract for the delivery, and not that at which the buyer may give notice that he intends to break the contract and refuse accepting the goods.' If the 1 Laird v. Pim, 7 Mees. & W. 474, 478; Collins v. Delaporte, 115 Mass. 159, 162; Gordon v. Norris, 49 N. H. 376; Dan forth v. Walker, 37 Vt. 239; Atwood V. Lucas, 53 Me. 508; Brand v. Henderson, 107 111. 141; Ganson V. Madigan, 13 Wis. 68; Chapman v. Ingram, 30 Wis. 290, 294; Peters v. Cooper, 95 Mich. 191, 54 N. W. 694; Benj. Sales, § 758. 2 Dunlop V. Grote, 2 Car. & K. 153. » Barrow v. Arnaud, 8 Q. B. 595, 608, per Tindal, C. J. * Chicago V. Greer, 9 Wall. 726; McCormick v. Hamilton, 23 Grat. 561. Where there was no market, the proper measure of damages was the actual loss which the sellers, acting as reasonable men in the ordinary course of busine.ss, had sustained. Dunkirk Colliery Co. v. Lever, 9 Ch. Div. 20, 25. 8 Allen V. Jarvis, 20 Conn. 38. CL Chicago v. Greer, 9 Wall. 726. « Boorman v. Nash, 9 Barn. «& C. 145; Phillpotts v. Evans, 5 Mees. & W. 475; Thompson v. Alger, 12 Mete. (Mass.) 428, 443; Schramm v. Boston Sugar-Refining Co., 140 Mass. 211, 15 N. E. 571; Gordon v. Norris, 49 N. H. 876; Girard v. Taggart, 5 Serg. & R. 19; Dana v. Fiedler, 12 N. Y. 40; Camp T. Hamlin, 55 Ga. 259; Williams v. Jones, 1 Bush, 621; Pittsburgh, C. & St. L. Ry. Co. V. Heck, 50 Ind. 303; Sanborn v. Benedict, 78 111. 309; Kadish ▼. Young, 108 111. 170. Ch. 10] REMEDIES OF SELLER. 233 contract is for the sale of goods to be manufactured, or otlierwise procured by the seller, and the buyer refuses to accept or gives notice that he intends to refuse acceptance, so that the seller is excused from procuring and tendering the goods, he will be en- titled to such damages as will put him in the same position as if he had been permitted to complete the contract.^ Thus where the contract was for the sale of rails to be rolled by the seller, "and to be drilled as he may be directed," at |58 per ton, and the buyer re- fused to give directions for drilling, and at his request the seller delayed rolling until after the time prescribed for their delivery, and then the buj^er advised the seller that he should decline to take any of the rails under the contract, it was held that the seller was not bound to roll the rails and tender them, and that the proper rule of damages was the difference between the cost per ton of mak- ing and delivering the rails and |58.* When the contract is for the sale of a chattel to be made to order, there is, as we have seen, a conflict of authority as to whether the property passes on completion, or whether acceptance by the buyer is essential to the appropriation ; and in such cases, whether- an action can be maintained for the price or whether the seller is confined to an action for damages for nonacceptance will depend on the rule adopted in the particular jurisdictioit as to what is neces- sary to transfer the property.' SAME— WHERE PROPERTY HAS PASSED. 126. Whore, under a contract of sale, the property in the goods has passed to the buyer, and he -wrrongfuUy neglects or refuses to pay for them according to the terms of the contract, the seller may maintain an action against him for the price of the goods/" 1 Cort v. Ambergate N. & B. & E. J. Ry. Co., 17 Q. B. 127, 20 Law J. Q. B. 460; Hinckley v. Pittsburgh Bessemer Steel Co., 121 U. S. 264, 7 Sup. Ct 875; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210; Muskegon Curtain-Roll Co. v. Keystone Manuf g Co., 135 Pa. St 132, 19 Atl. 1008; Hosmer v. Wilson, 7 Mich. 293; Haskell v. Hunter, 23 Mich. 305; But- ler V. Butler, 77 N. Y. 472; ante, p. 158. 8 Hinckley v. Pittsburgh Bessemer Steel Co., 121 U. S. 264, 7 Sup. Ct. 875. » Ante, p. 103, and cases cited in notes 32, 33. 10 Chalm. Sale, § 51. 234 ACTION FOR BREACH OF THE CONTRACT. [Ch. 10 Wlien the property in the goods has passed, unless the sale is on credit or payniout is made to depend on some contingency, the seller may maintain an action for the price.^^ He may recover the price under the common indebitatus counts: When the contract has been completed in all respects except delivery, and delivery is not a condition precedent to the payment of the price, under the count for goods bargained and sold; when the goods have been de- livered, and the price is payable at the time of action brought, under the count for goods sold and delivered. If the sale is on credit, he must, of course, await the termination of the credit before bring- ing suit.^^ And if the price is pa^^able by a bill or other security, and the security is not given, the seller cannot sue for the price until the bill would have matured, though he may sue at once for damages for breach of the agreement, in which case the measure of his damages will be prima facie the amount of the sum to be se- cured.^ ^ In England it is held that the seller is not entitled, under any circumstances, to rescind the contract for default in the payment of the price; ^* but in this country it has been frequently declared that the unpaid seller, who is in possession of the goods, has, among other remedies, the right to keep the goods as his own, and recover the difference between the market price at the time and place of delivery and the contract price. ^^ 11 Scott V. England, 2 Dowl. & L. 520; Stearns v. Washburn, 7 Gray, 187, 189; Morse v. Sherman, 106 Mass. 430; Frazier v. Simmons, 139 Mass. 531, 535, 2 N. E. 112; Haj'den v. Demets, 53 N. Y, 426; Doremus v. Howard, 23 N. J. Law, 390; Armstrong v. Tm-uer, 49 Md. 589; Ganson v. Madigan, 13 Wis. 67. 12 Calcutta & B. Steam Nav. Oo. v. De Mattos, 32 Law J. Q. B. (N. S.) at page 328; Keller v. Strasberger, 90 N. Y. 379; Dellone v. Hull, 47 Md. 112. Mere insolvency of one of the parties is not equivalent to a rescission or a breach. It simply relieves the seller from his agreement to give credit. Pardee v. Kanady, 100 N. Y. 121, 126, 2 N. E. 885. Cf. New England Iron Co. V. Gilbert Elevated R. Co., 91 N. Y. 153, 168. 13 Paul V. Dod, 2 C. B. 800; Rinehait v. Olwine, 5 Watts & S. 157; Hanna V. Mills, 21 Wend. 90; Barron v. Mullin, 21 Minn. 374. But see Foster v. Adams, 60 Vt. 392, 15 Atl. 169. 14 Martindale v. Smith, 1 Q. B. 389. 16 Ante, y. 229. Ch. 10] REMEDIES OF THE BUYER. 235 REMEDIES OF THE BUYER— ACTION FOR NONDELIVERY. 127. Where the seller ■wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for nondelivery. 128. MEASURE OF DAMAGES. The measure of dam- ages is the estimated loss directly and naturally resulting from the seller's breach of contract, and, -when there is an available market for the goods in question, is prima facie to be ascertained by the difference between the contract price and the market price of the goods at the agreed time and place of delivery. ^^ The breach of contract of which the buyer complains may arise from the seller's default in delivering the goods, or from some defect in the goods delivered. There may be a breach of the principal contract for the transfer of the property and the delivery of posses- sion or of a collateral contract of warranty. The buyer's reme- dies for breach of the contract may be treated in the order of time in which they naturally arise — First, his remedies before obtaining possession of the goods, which may be subdivided into the cases where the contract is executory and the cases where the property has passed; and, second, his remedies after having received posses- sion of the goods.^' Damages for Nondelivery, Before the property has been transferred to the buyer, his only remedy is an action for breach of contract If he has paid the price, and the goods are not delivered, he may, as has been shown, rescind the contract, and recover what he has paid upon an implied contract in an action for money had or received.^ ^ If he has not paid the price, his only remedy, where the seller fails to deliver, is to sue for damages for breach of the contract. His position i» the converse of that of the seller who is suing the buyer for non- 16 See Chalm. Sale, § 53. 17 Benj. Sales, § 861). 18 Nash v. Towne, 5 Wall. 689; Cleveland t. Sterrett, 70 Pa. St. 204; ante p. 109. 236 ACTION FOR BREACH OF THE CONTRACT. [Ch. 10 acceptance. He has tlie money in his hands, and may go into the market and buy. The loss which he sustains by the nondelivery of the goods is therefore, under ordinary circumstances, simply the difference between the contract price and the market price of the goods at the time and place of delivery, and this is the measure of his damages.^' If he has prepaid the price, he may still sue for nondelivery, and is entitled to recover the market price of the goo<]s without deduction.^" If there is no difference between the contract pi'ice and the market price, he is entitled only to nominal dam ^lg(^S.^^ Even if the seller repudiates the contract before the date of de- livery, so that the buyer may sue at once, the damages are to be assessed as of the agreed date of delivery, unless it appears that the buyer could have supplied himself in the market on such terms i» Barrow v. Amaud, 8 Q. B. 604, at page 609; Shaw v. Nudd, 8 Pick. 9; Dana v. Fiedler, 12 N. Y. 40; Cahen v. Piatt. 69 N. Y. 348; Fessler v. Love, 48 Pa. St. 407; Kribs v. Jones, 44 Md. 396; Miles v. Miller, 12 Bush, 134; Mc'Kercher v. Curtis, 35 Mich. 478; Cockburn v. Ashlaud Lumber Co., 54 Wis. 619, 12 N. W. 49; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502; Olson V. Sharpless, 53 Minn. 91, 55 N. W. 125; Hewson-Herzog Supply Co. v. Min- nesota Brick Co., 55 Minn, 530, 57 N. W. 129. In case of a total failure to deliver, the buyer may recover the amount with which he could have pur- chased machines of equal value. If those delivered were defective, the measure of his damages is the cost of supplying the deficiency. Marsh v. McPherson, 105 U. S. 709. See, also, Stillwell & Bierce Manuf'g Co. v. Phelps, 130 U. S. 520, 9 Sup. Ct. 601. When the market value is unnaturally inflated by unlawful means, it is not the true test Kountz v. Kirkpatrick, 72 Pa. St. 376. Where goods are purchased to be shipped abroad, and the fact is known to the seller, and it is impossible for the buyer to dis- Blanchard v. Cooke, 144 Mass. 225, 11 N. E. 83 2& Blattenberger v. Holman, 103 Pa. St. 555 110 Blenkinsop v. Clayton, 7 Taunt. 597 65- Bliss V. Lawrence, 58 N. Y. 442 13S Block V. McMurry, 56 Miss. 217 14G Blood V. Goodrich, 9 Wend. 68 7S V. Palmer, 11 Me. 414 4 Bloom V. Richards, 2 Ohio St. 387 142 Bloomingdale v. Memphis 3 240 Cufif V. Penn, 1 Maule & S. 21 73 Culin V. Woodbury Glass Works, 108 Pa. St. 220 237 Cullum V. Wagstafif, 48 Pa. St. 300 180 -Cuming v. Brown, 9 Eas^ 506 224 CASES CITED. 269' Page Cummin? v. Roebuck, Holt, 172 79^ Cummings v. Arnold, 3 Mete. (Mass.) 486 '. 73 Cundell v. Dawson, 4 0. B. 376 140 Cundy v. Lindsay, 3 App. Cas. 459 17, 22, 123 CunliCfe v. Harrison, 6 Exch. 903, 906 102, 18S, 1S9 Cunningham v. Ashbrook, 20 Mo. 553 88 V. Brown, 44 Wis. 72 83 V. Hall, 1 Sprague, 404, Fed. Cas. No. 3,482 172 V. Williams, 43 Mo. App. 629 75 Currie v. Anderson, 2 El. & El. 592, 29 Law J. Q. B. 87 55, 50, 58 Curtis V. Hannay, 3 Esp. 82 244 Cusack V. Robinson, 30 Law J. Q. B. 261, 264, 1 Best & S. 299 52, 54, 58, 61, 62, 210 Cushing V. Breed, 14 Allen, 376 86 D Dalley y. Green, 15 Pa. St. 118, 126 157, 242, 245 Dakota Stock & Grazing Co. v. Price, 22 Neb. 96, 34 N. W. 97 183 Dame v. Baldwin, 8 Mass. 518 18 V. Flint, 64 Vt. 533, 24 Atl. 1051 149 Damon v. Bryant, 2 Pick. 411 128 V. Osborn, 1 Pick. 476 53 Dana v. Fiedler, 12 N. Y. 40 232, 236 V. Hancock, 30 Vt. 616 73 Dane v. Kirkwall, 8 Car. & P. 679 14 Danforth v. Streeter, 28 Vt. 490 l-;9 V. Walker, 37 Vt. 239 232 Daniels v. Bailey, 43 Wis. 566 46 V. Newton, 114 Mass. 530, 533 159 D'AquIla v. Lambert, 2 Eden, 77, 1 Amb. 399 215 Darvill v. Terry, 6 Hurl. & N. 807, 30 Law J. Exch. 355 125 Dater v. Earl, 3 Gray, 482 135 Davies v. McLean, 21 Wkly. Rep. 264, 28 Law T. (N. S.) 113 184 Davis V. Betz, 66 Ala. 206 120 V. Bronson, 6 Iowa, 410 136, 149 V. Caldwell, 12 Cush. 512, 513 9-11 T. Eastman, 1 Allen, 422 60 V. McFarlane, 37 Gal. 634 48 T. Robertson, 1 Mill, Const. 71 43 V. Rowell, 2 Pick. 64 43 V. Russell, 52 Cal. 611 211 V. Shields, 26 Wend. 341 71, 76 V. Smith, 7 Minn. 414 (GIL 328) 166 270 CASES CITEDi Page Davison t. Von Llngren, 113 U. S. 40, 5 Sup. Ct. 346 151 Dawes v. Peebles, G Fed. 856 172 Dawson v. CoUis, 10 C. B. 523, 533 243 V. Graham, 48 Iowa, 378 114 Day V. Bassett, 102 Mass. 445 90 V. Cooley, 118 Mass. 524 128 V. McAllister, 15 Gray, 433 143 V. Pool, 52 N. Y. 416 244, 248 V. Raguet, 14 Minn. 273 (Gil. 203) 174 Dayton v. Fargo, 45 Mich. 153, 7 N. W. 758 139 V. Hooglund, 39 Ohio St. 671 245, 247 Dearborn v. Turner, 16 Me. 17 93 Deason v. Boyd, 1 Dana, 45 8 Decell V. Lewenthal. 57 Miss. 331 10 Deering v. Chapman, 22 Me. 488 » 148 V. Cobb, 74 Me. 334 24 Delamater v. Chappell, 48 Md. 244, 245, 253 92, 199 Dellone v. Hull, 47 Md. 112 120, 234 Deming v. Foster, 42 N. H. 165, 175 172, 176 Dempsey v. Gardner, 127 Mass. 381 130, 132 Denny v. Eddy, 22 Pick. 535 90 Derbyshire's Estate, 81 Pa. St. 18 104 Devaux V. ConoUy, 8 C. B. 640 Ill Devine v. Edwards, 101 111. 138 87, 195 Devlin v. Mayor, etc., 63 N. Y. 8 240 Dewes Brewery Co. v. Merritt, 82 Mich. 198, 46 N. W. 379 90 Dewey v. Erie Borough, 14 Pa. St. 211 92 De Witt V. Berry, 134 U. S. 306, 10 Sup. Ct. 536 177 Dexter v. Norton, 47 N. Y. 62 161 Dickinson v. Dobbs, 2 Ch. Div. 463 28 V. Gay, 7 Allen, 29 169, 174 Dickson v. Zizinia, 10 C. B. 602, 20 Law J. C. P. 73 176 Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124 216, 226 Dietz V. Sutcliffe, 80 Ky. 650 120 Dilk v. Keighley, 2 Esp. 480. 10 Dill V. O'Ferrall, 45 Ind. 268 122 Dingle V. Hare, 7 C. B. (N. S.) 145, 29 Law .T. C. P. 144 248 Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 11 Fed. 372 158, 159 Diversy v. Kellogg, 44 111. 114 100 Divine v. McCormick, 50 Barb. 116 173 Dixon v. Baldwen, 5 East, 175 222 V. Fletcher, 3 Mees. & W. 146 1S8 V. Yates, 5 Barn. & Adol. 313, 341 83, 210, 212, 213, 216 D. M. Osborne & Co. v. Francis, 38 W. Va. 312, 18 S. E. 591 154 CASES CITED. 271 Page Doaae r. Dunham, 65 111. 512. 79 111. 131 197, 200, 242, 245 Dodsley v. Varloy, 12 Adol. & B. 632 207 Doherty v. Hill, 144 Mass. 405, 11 N. E. 581 72 Dole V. Olmstead, 36 111. 150, 41 lU. 344 90 v^. Stlmpson. 21 Pick. 384 5G Donald v. Sucklin/?, L. R. 1 Q. B. 585 3 Donaldson v. Farwell, 93 U. S. 631 114. 123 Dood V. Farlow, 11 Allen, 426 169 Doremus v. Howard, 23 N. J. Law, 390 234 Dorr V. Fisher, 1 Gush. 271, 273 151 Dorsey v. Pike, 50 Hun, 534, 3 N. Y. Supp. 730 04 Doughty V. Manhattan Brass Co., 101 N. Y. 644, 4 N. E. 747 76 Douglas V. Shumway, 13 Gray, 499 .... 207 Douglass Axe Manuf g Co. v. Gardner, 10 Cush. 88 244 Dounce v. Dow, 64 N. Y. 411 172 Dow V. Sanborn, 3 Allen, 181 114 V. Worthen, 37 Vt. 108 66 Dowling V. Lawrence, 58 Wis. 282, 16 N. W. 552 112 V. McKenney, 124 Mass. 480 4, 40 Downer v. Thompson, 2 Hill, 137, 6 Hill, 208 102, 189 Downs V. Marsh, 29 Conn. 409 50 V. Ross, 23 Wend. 270 41 Dows y. Kidder, 84 N. Y. 121 85 V. National Exchange Bank, 91 U. S. 618 106, 107 Drake, Ex parte, 5 Ch. Div. 866 31 V. Wells, 11 Allen, 141 46 Drew V. Nunn, 4 Q. B. Div. 661 13 Drummond v. Van Ingen, 12 App. Cas. 284, 290 173, 174, 177 Drury v. Defontaine, 1 Taimt. 131 142 V, Young, 58 Md. 546 08, 75, 70 Dube V. Beaudry, 150 Mass. 448, 23 N. E. 222 8 Dudley v. Dauforth, 61 N. Y. 626 126 Duke V. Shackleford, 56 Miss. 552 91 Dulaney v. Rogers, 64 Mo. 201 116 Duncuft V. Albrecht, 12 Sim. 189 44 Dunkirk Colliery Co. v. Lever, 9 Ch. Div, 20, 25 232 Dunlap V. Berry, 4 Scam. 327 95 Dunlop V. Grote, 2 Car. & K. 153 232 V. Lambert, 6 Clark & F. 600 100, 195 Dunne v. Fergusom, Hayes, 540 .' 48 Durant v. Rhener, 26 Minn. 362, 4 N. W. 610 142 Durfee v. Jones, 11 R. I. 588 32 Durgin v. Dyer, 68 Me. 143 140 Durgy Cement & U. Co. v. O'Brien, 123 Mass. 12, 13 216, 217 272 OABES CITED. Pag» Durrell v. Evans, 1 Hurl. A O. 174, 31 Law J. Exch. 337, 30 Law J. Exch. 254, 6 Hurl. & N. 660 76, 77 Dustan v. McAndrew, 44 N. Y. 73 227, 229 Dwight V. Eckert, 117 Pa. St. 490, 12 Atl. 32 185 Dwlnel V. Howard, 30 Me. 258 194 Dyer v. Homer, 22 Pick. 253, 258 125, 128 Dykera v. Townsend, 24 N. Y. 57 « « ^ 70 E Eagan Co. v. Johnson, 82 Ala. 233, 2 South. 302 247 Earle v. Reed, 10 Mete. (Mass.) 387 ^. ^ 11 Easter v. Allen, 8 Allen, 7 „ ^ 122 Easton V. Montgomery, 90 Cal. 307, 27 Pac. 280 ^ « 75 V. Worthington, 5 Serg. & R. 130 18 Eaton V. Cook, 32 Vt. 58 202 V. Eaton, 37 N. J. Law, 108 13 V. Keegan, 114 Mass. 433 141 Echols V. New Orleans, J. & G. N. R. Co., 52 Miss. 610 « .. 185 Eckenrode v. Chemical Co., 55 Md. 51 ^ 159 Edan V. Dudfield, 1 Q. B. 302, 306 56, 64 Eddy V. Capron, 4 R. I. 394 137 V. Clement, 38 Vt. 486 160 Eden v, Parkison, 2 Doug. 735 164 Edgerton v. Hodge, 41 Vt. 676 65 V. Michels, 66 Wis. 124, 26 N. W. 748, and 28 N. W. 408 16G Edmunds v. Merchants' Despatch Transp. Co., 135 Mass. 283 123 Edwards v. Brewer, 2 Mees. & W. 375 ^ . . . . 21G V. Cottrell, 43 Iowa, 194 5 V. Davenport, 20 Fed. 756 13 V. Elliott, 36 N. J. Law, 449 104 V. Grand Trunk Ry., 48 Me. 379, 54 Me. 105 37, 42, 56 V. Harben, 2 Term R. 587 127 V. Marcy, 2 Allen, 486, 490 163 Egerton v. Mathews, 6 East, 307 70 Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37 27 E. H. Pray, The, 27 Fed. 474 226 Eichelberger v. McCauley, 5 Har. & J. 213 42 Eiehholz v. Bannister, 17 C. B. (N. S.) 708, 34 Law J. C. P. 105 165-167 Elbinger Actien-Gesellschafft fur Fabrication von Eisenbahn Materiel y. Armstrong, L. R. 9 Q. B. 473 240 Eldridge v. Benson, 7 Cush. 483 8 Elgee Cotton Cases, 22 Wall. 180, 187, 188, 193 » 82, 86, 88 CASES CITED. 273 Pag* Ellen T.Topp, 6 Exch. 424 246 Ellershaw v. Magnlac, 6 Exch. 570 ..^...^ 106 Elliot V. Ince, 7 De Qei, M. & G. 475, 487.. . « . «. ^. ^ 13 Elliott V. Edwards, 35 N. J. Law, 265 104 V. Thomas, 3 Mees. & W. 170 53 Ellis V. Hammond, 57 Ga. 179 146 V. Hunt, 8 Term R. 4&4, 467 181, 221 V. Roche, 73 111. 280 100 V. Thompson. 3 Mees. & W. 445 185 Ellison V. Brigham, 38 Vt. 64 ^ ,- 42 Elmore v. Kingscote, 5 Barn. & 0. 583 71 V. Stone, 1 Taunt. 458 62 Elphick V. Barnes, 5 C. P. Dlv. 321, 826 »2 Ely V. Ormsby, 12 Barb. 570 63 Emanuel v. Dane, 3 Camp. 299 4 Emerson v. Brigham, 10 Mass. 197 174 V. European & N. A. Ry. Co., 67 Me. 887 24 Emery v. Irving Nat. Bank, 25 Ohio St 860 107 Emma Silver Mln. Co. v. Emma Silver Min. Co. of New York, 7 Fed. 401, 402 120 Emmerson v. Heelis, 2 Taunt. 38 50, 78 Emmerton v. Mathews, 7 Hurl. & N. 586, 31 Law J. Exch. 139 173 Emmett v. Thorn, 1 Maule & S. 425 19 Bngle V. Chipman, 51 Mich. 524, 16 N. W. 886 137 English V. Spokane Commission Co., 48 Fed. 196, 197, 6 C. C. A. 416, 57 Fed. 451 178, 244, 247, 249 Epperson v. Nugent, 57 Miss, 45 9 Equitable Gaslight Co. v. Baltimore Coal Tar & Manuf g Co., 63 Md. 285 241 Erwin v. Harris, 87 Ga. 333, 13 S. E. 513 106 Eskrldge v. Glover, 5 Stew. & P. 264 28 Esson V. Tarbell, 9 Cush. 407 242 Eureka Co. v. Edwards, 71 Ala. 248 7 Evans v. Collins, 5 Q. B. 804 116 V. Davies (1893) 2 Ch. Div. 216 44 T. Hoare (1892) 1 Q. B. 593 76 v. Montgomery, 50 Iowa, 325, 337 120, 124 V. Roberts, 5 Barn, & C. 836 48 Everett v. Hall, 67 Me. 497 91 Everingham v. Meighan, 55 Wis. 354, 13 N. W. 269 145 E wing V. French, 1 Blackf . 354 S Exhaust Ventilator Co. v. Chicago, M. & St. P. Ry. Co., 69 Wis. 454, 34 N. W. 509 200 SALES— 18 274 CULIES orrsD. P Pac* Falrbank Canning Co. r. Metzger, 118 N. Y. 260, 267, 269, 23 N. B. 372.. 174, 243 Fairbanks v. Eureka Co., 67 Ala. 109 90 Fairfield Bridge Co. v. Nye, 60 Me. 372 130 Falcke V. Gray, 4 Drew, 658, 29 Law J. Ch. 28 241 Falk, Ex parte, 14 Ch. Div. 446, 455, 7 App. Cas. 573 225, 226 Falls V. Gaitlier, 9 Port. (Ala.) 605 28 Farebrother v. Simmons, 5 Barn. & Aid. 333 77 Farina v. Home, 16 Mees. & W. 119 56, 63, 211 Farlow v. Ellis, 15 Gray, 229 89 Farmeloe v. Bain, 1 C. P. Div. 445 « 212 Farmer v. Gray, 16 Neb. 401, 20 N. W. 276 53 V. Robinson, cited in note to Heyman v. Neale, 2 Camp. 337 77 Farmers' & Mechanics' Nat. Bank v. Logan, 74 N. Y. 5G8, 578 106, 107 Farrant v. Thompson, 5 Barn. & Aid. 826 19 Farrar v. Smith, 64 Me. 74 ^ 132 Farrer v. Nightingal, 2 Esp. 639 23 Farrls v. Ware, 60 Me. 482 122 Farwell v. Hanchett, 120 111. 573, 11 N. E. 875 115 V. Lowther, 18 111. 252 71 V. Myers, 59 Mich. 179, 26 N. W. 328 121 Faulkner v. Hebard, 26 Vt. 452 28 Fay V. Burditt, 81 Ind. 433....^.. 13 Feise v. Wray, 3 East, 93 215, 216 Felthouse v. Bindley, 11 C. B. (N. S.) 869, 31 Law J. C. P. 204 27 Fenelon v. Hogoboom, 31 Wis. 172, 176 84, 85 Fennell v. Ridler, 5 Barn. & C. 406 142 Fenton v. Braden, 2 Cranch, C. C. 550, Fed. Cas. No. 4,730 100 Ferguson v. Carrington, 9 Bam. & C. 59 114, 120 V. Hosier, 58 Ind. 438 244, 248 V. Louisville City Nat. Bank, 14 Bush, 555 95 V. Spear, 65 Me. 277 126 Fessenden v. Mussey, 11 Cush. 127 75 Fessler v. Love, 48 Pa. St. 407 236, 239 Field V. Chlpley, 79 Ky. 260 138 V. Lelean, 6 Hurl. & N. 617, 30 Law J. Exch. 168 207 V. Runk, 22 N. J. Law, 525, 530 52 Fielder v. Starkln, 1 H. Bl. 17 244 Fifth Nat. Bank of Chicago v. Bayley, 115 Mass. 228 107 Filkins v. Whyland, 24 N. Y. 338 162 Filley v. Pope, 115 U. S. 213, 6 Sup. Ct. 19 157. 196 Filson V. Himes, 5 Pa. St 452 137, 148 GASES CITED. 275 Page Finch V. Barclay, 87 Ga. 393, 13 S, E. 566 141 V. Mansfield, 97 Mass. 89, 92 « . . .^ « . .100, 136 Fine v. Hornsby, 2 Mo. App. 61 ^ 44 Finley v. Quirk, 9 Minn. 194 (Gil. 179) 146 Finn v. Clarli, 10 Allen, 479, 12 Allen, 522 197 Finney v. Apgar, 31 N. J. Law, 266, 271 37, 42 First Nat. Bank v. Kilbourne, 127 111. 573, 20 N. E. 681 29 First Nat. Bank of Cairo v. Crocker, 111 Mass. 163 107 Fish V. Cleland, 33 111. 237 115 V. Kempton, 7 C. B. 687 203 Fishback v. Van Dusen, 33 Minn. Ill, 22 N. W. 244 3, 85, 89 Fisher v. Kuhn, 54 Miss. 480 73 V. Lord, 63 N. H. 514, 3 Atl. 927 149 V. Melleu, 103 Mass. 503 116 V. Seltzer, 23 Pa. St. 308 28 Fitch V. Archibald, 29 N. J. Law, 160 173 Flagg V. Gilpin, 17 R. I. 10, 19 Atl. 1084 144 Flanders v. Putney, 58 N. H. 358 31 Fiarty v. Odium, 3 Term R. 681 138 Fleck V. Warner, 25 Kan. 492 91 Fletcher v. Livingston, 153 Mass. 388, 390, 26 N. E. 1001 46 Fllnn V. St John, 51 Vt. 334, 345 143 Flint V. Lyon, 4 Cal. 17 156 T. Valpey, 130 Mass. 385 12 Floyd V. Brown, 1 llawle, 121 82 Foard V. McComb, 12 Bush, 723 116 Fontaine v. Bush, 40 Minn. 141, 41 N. W. 465 57 Fonville V. Casey, 1 Mm-ph. 389 25 Forlv'8 Y. Marsh, 15 Conn. 384 90 Forcheimer v. Stewart, 65 Iowa, 593, 22 N. W. 886 106 Ford y. Phillips, 1 Pick. 202 8 Foreman v. AM, 55 Pa. St. 325 14;^, 14G Fore.s V. Johnes, 4 Esp. 97 134 Forster v. Taylor, 5 Bam. & Adol. 887 141 Forsyth v. Jervis, 1 Starkie, 437 4 Forty Sacks of Wool, 14 Fed. 643 307 Foss-Sctneider Brewing Co. v. Bullock, 8 C. G. A. 14, 59 Fed. 83 200 Foster v. Adams, 60 Vt 392, 15 Atl. 169 234 Y. Lumbermen's Min. Co., 68 Mich. 188, 36 N. W. 171 34 V. Mabe, 4 Ala. 402 47 V. Magill, 119 111. 75, 8 N. B. 771 88 ▼. Pettibone, 7 N. Y. 433 3 T. Ropes, 111 Mass. 10 86 V. Thurston, 11 Gush. 322 146 276 CASES CITED. Page Foster's Case, 1 Leon. 42 ►^ .. . . . 25 Foulk V. Eckert, 61 111. 318 120 Fowler v. Callan, 102 N. Y. 395, 7 N. E. 169 139 V. McTaggart, cited in Hodgson v. Loy, 7 Term R. 442 219 Fox V. Harding, 7 Gush. 516 ^240 V. Mackreth, 2 Brown, C. C. 400 113 V. Webster, 46 Mo. 181 115 Foy V. Cochran 88 Ala. 353, 6 South. G85 139 Fragano v. Long, 4 Barn. & C. 219 100 France v. Gaudet, L. 11. 6 Q. B. 199 241 Frank v. Hoey, 128 Mass. 263 100 V. Miller, 38 Md. 450 72, 74 Franklin v. Long, 7 Gill & J. 407 23, 244 V. Neate, 13 Mees. «& W. 481 3 Frazier v. Simmons, 139 Mass. 531, 535, 2 N. E. 112 234 Freeland v. Rltz, 154 Mass. 257, 28 N. E. 226 74 Freelove v. Freelove, 128 Mass. 190 242 Freeman v. Cooke, 2 Exch. 654 22 Freeth v. Buit, L. R. 9 C. P. 208 193 Frenzel v. Miller, 37 Ind. 1 116 Freyman v. Knecht, 78 Pa. St. 141 243, 248 Frohreich v. Gammon. 28 Minn. 476, 11 N. W. 88 240, 250 Frost V. Blanehard, 97 Mass. 155 162 V. Hill, 3 Wend. 386 78 V. Knight, L. R. 7 Exch. Ill 159 V. Woodruff, 54 111. 155 88 Fuentes v. Montis, L. R. 3 C. P. 268, 87 Law J. C. P. 137, L. R. 4 C. P. 93. . 20 Fuller V. Duren, 36 Ala. 73 ; 4 Furlong v. PoUeys, 80 Me. 491 237, 239 G Gabarron ▼. Kreeft, L. R. 10 Exch. 274 95, 106 Gadsden v. Lance, 1 McMul. Eq. 87 44 Gaff V. Homeyer, 59 Mo. 345 56, 200 Gage V. Chesebro, 49 Wis. 486, 5 N. W. 881 126 Gale V. Burnell, 7 Q. B. 850 24 Galvin v. Bacon, 11 Me. 28 17 V. Maskenzie, 21 Or. 184, 27 Pac. 1039 57 Ganson v. Madigan, 9 Wis. 146, 13 Wis. 67, 68, 15 Wis. 144, 151 189, 230, 232, 234 Garbutt v. Watson, 5 Barn. & Aid. 613 37, 38, 40 Gardet v. Belknap, 1 Cal. 399 61 CASES CITED. 277 Page Gardiner v. Gray, 4 Camp. 144 174 Gardner v. Grout, 2 C. B. (N. S.) 340 53 V. Joy, 9 Mete. (Mass.) 177 40 V. Lane, 9 Allen 492, 12 Allen, 39, 98 Mass. 517 32, 102 V. McEwen, 19 N. Y. 123 24 Garfield v. Paris, 96 U. S. 557, 562, 563, 566, 567 53, 56. 59 Garforth v. Fearon, 1 H. Bl. 328 137 Garretson v. Selby, 37 Iowa, 529 100, 197 Gary v. Jacobson, 55 Miss. 204 128 Gates V. Bliss, 43 Vt. 299 121 Gault V. Brown, 48 N. H. 183, 188 ^ 50, 52 Gaylord v. Soragen, 32 Vt. 110 136, 149 Gaylord Manuf g Co. v. Allen, 53 N. Y. 515 200, 248 Gentilll v. Starace, 133 N. Y. 140, 30 N. B. 660 248 Gerhard v. Bates, 2 El. & Bl. 476, 22 Law J. Q. B. 364 117 Gerst V. Jones, 32 Grat. 518 172 Gibbes, Ex parte, 1 Ch. Div. 101 222 Gibbs V. Merrill, 3 Taunt. 307 7 Gibson v. Carruthers, 8 Mees. & W. 321, 334, 337 214, 217 V. Cranage, 39 Mich. 49 154 V. Holland, L. R. 1 C. P. 1, 35 Law J. 0. P. 5 68, 69 V. Pelkie, 37 Mich. 380 23 V. Soper, 6 Gray, 279 12, 13 V. Stevens, 8 How. 3M 182 Giles V. Edwards, 7 Term R. 181 109, 110 Gill V. Benjamin, &4 Wis. 362, 25 N. W. 445 99 V. BickneU, 2 Cush. 355, 358 78 V. Hewett, 7 Bush, 10 78 Gillett V. Hill, 2 Cromp. & M. 530 95 GUman v. Andrews, 66 Iowa, 116, 23 N. W. 291 230 V. Hill, 36 N. H. 311, 318 42, 50 Gilmore v. Newton, 9 Allen, 171 17 Gilmour v. Supple, 11 Moore, P. C. 566 83 Girard v. Taggart, 5 Serg. & R. 19 228, 232 Giroux V. Stedman, 145 Mass. 438, 14 N. B. 538 174 Gittings V. Nelson, 86 Bl. 591 24, 25 Glover v. Ott, 1 McCord, 572 11 Glyn V. East & W. I. Dock Co., 7 App, Gas. 591, affirming 6 Q. B. Div. 475, reversing 5 Q. B. Div. 129 224, 226 Goddard v. Binney, 115 Mass. 450, 455, 456 40, 84, 103, 183 Godts v. Rose, 17 C. B. 229 98 Godwin V. Francis, L. K. 5 C. P. 295 78 Golden v. Ogden, 15 Pa, St. 528 95 Golding, Bx parte, 13 Ch. Div. 628 225 278 CASE! CITED. Pago Gompertz v. Bartlett, 2 El. & Bl. 849. 23 Law J. Q. B. 65 110 V. Denton, 1 Cromp. & M, 207 243 Gooch V. Holmes, 41 Me. 523 44 Goodall V. Skelton, 2 H. Bl. 316 210 Goodell V. Fairbrotlier, 12 R. I. 233 90 Goodman v. Griffiths, 1 Hurl. & N. 574, 26 Law J. Exch. 145 71 Goodrich v. Van Nortwick, 43 111. 445 154 Goodwin v. Boston & L. R. Co., Ill Mass. 487, 489 84 V. Massachusetts Loan & Trust Co., 152 Mass. 189, 199, 25 N. E. 100. .21, 123 Goom V. Aflalo, 6 Bam. & C. 117 80 Gordon v. Butler, 105 U. S. 553 113 V. Norris, 49 N. H. 376 103, 232 V. Ritenour, 87 Mo. 54 22, 128 Gore V. Gibson, 13 Mees. & W. 623, Ewell Lead. Cas. 734 13, 14 Gorham v. Fisher, 30 Vt. 428 59 Gosbell V. Archer, 2 Adol. & E. 500 78 Goss V. Lord Nugent, 5 Barn. & Adol. 65 73 Gossler v. Schepeler, 5 Daly, 476 215, 218 Gould V. Bourgeois, 51 N. J. Law, 361, 373, 18 Atl. 64 1G6 V. Murch, 70 Me. 288 161 V. Stein, 149 Mass. 570, 22 N. B. 47 174 Gowen v. KIous, 101 Mass. 449 70 Grace v. Hale, 2 Humph. 27 11 Gradle v. Warner, 140 111. 123, 29 N. E. 1118 71 Graff V. Fitch, 58 111. 373 48 V. Foster, 67 Mo. 512 174 Graffenstein v. Epstein, 23 Kan. 443 114 Grafton v. Armltage, 2 C. B. 336, 15 Law J. O. P. 20 39 V. Cummings, 99 U. S. 100, 111, 112 69, 74 Graham v. Fretwell, 3 Man. & G. 368 77 V. Musson, 5 Bing. N. 0. 603 77 Grand Tower Co. v. Phillips, 23 WaU. 471 237 Grant v, Fletcher, 5 Barn. & C. 436 80 V. Johnson, 5 N. Y. 247 152 V. McGrath, 56 Conn. 333, 15 Atl. 370 143 V. Merchants' & Manufacturers' Bank, 35 Mich. 515 185 Grantham v. Hawley, Hob. 132 23 Graves v. Johnson, 156 Mass. 211, 30 N. E. 818 136, 137, 149 V. Legg, 9 Exch. 709, 23 Law J. Exch. 228 152 T. Weld, 5 Bam. & Adol. 105 48 Gray v. Agnew, 95 HI. 315 21 T. Davis. 10 N. Y. 285 56 T. Hook, 4 N. Y. 449 137 V. Walton, 107 N. Y. 254, 14 N. E. 191 184 OJLSIS CITES. 279 Page Greaves v. Hepke, 2 Bam. & Aid. 131 87 Grebert-Borgnis v. Nugent, 15 Q. B. DIv. 85 240 Green v. Armstrong, 1 Denio, 550 46 V. Brooklns, 23 Mich. 48, 54 44 V. Collins, 3 Cliff. 494, 501, Fed. Cas. No. 5,755 135, 136 V. Godfrey, 44 Me. 25 146 V. Green, 69 N. Y. 553 7 V. Hall, 1 Houst. 506, 546.... »...^ 104 V. Lewis, 26 D, O. Q. B. 618. 81 V. Merriam, 28 Vt 801 61, 62 V. North Carolina R. Co., 73 N. C. 524 46 V. Rowland, 16 Gray, 58 129 V. Stuart, 7 Baxt. 418 110 V. Tanner, 8 Mete. (Mass.) 411 22, 128 Greene v. Bateman, 2 Woodb. & M. 359, Fed. Cas. No. 5,762 30 V. Lewis, 85 Ala. 221, 4 South. 740 33 Grcenman v. Cohee, 61 Ind. 201 139 Greenwood v. Curtis, 6 Mass. 358 149 V. Law, 55 N. J. Law, 168, 26 Atl. 134 44 Greer v. Church, 13 Bush, 430 29 Gregg V. Wells, 10 Adol. & E. 90 22 Gregory r. Morris, 96 U. S. 619, 623 207, 210 V. Paul, 15 Mass. 31 15 V. Schoenell, 55 Ind. 101 ._ 115, 118 V. Wendell, 39 Mich. 337 144, 145 Greve v. Dunham, 60 Iowa, 108, 14 N. W. 130 217, 220 Grey v. Cary, 9 Daly, 363 61 Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 584 13 Grice v. Richardson, 3 App. Cas. 319 209 Grieb v. Cole, 60 Mich. 397, 27 N. W. 579 163 Griffin v. Colver, 16 N. Y. 489 238 Griffith V. Fowler, 18 Vt. 390.... 19 V. Wells, 3 Denio, 226 140, 142 Griffiths V. Owen, 13 Mees. & W. 58 66 V. Perry, 1 El. & El. 680, 28 Law J. Q. B. 204, 207 207-209, 227 Grigsby v. Stapleton, 94 Mo. 423, 7 S. W. 421 112 Grimes v. Van Vechten, 20 Mich, 410 57 Grimoldby v. Wells, L. R. 10 O. P. 391... «.. 200 Grizewood v. Blane, 11 C. B. 526 144 Groff V. Belch, 62 Mo. 400 86 Gross V. Jordan, 83 Me. 380, 22 Atl. 250 29 V. Kierski, 41 Cal. Ill 166, 167 Grotenkemper v. Achtermeyer, 11 Bush, 222 28 Groton v. Waldoborough, 11 Me. 306 138 280 GISES CITED. Page Gront r. Htll, 4 Gvny. 361 221 Groves v. Buck, 3 Maule & S. 178 37, 38 Grymes v. Sanders, 93 U. S. 55. 62 109, 120, 121, 124 Guckenhelmer y, Angevine, 81 N. Y. 394 « 122 Guernsey v. Cook, 120 Mass. 501 138 Guilford v. McKinley, 61 Ga. 230 91 V. Smith, 30 Vt. 49 222 Gunby v. Sluter, 44 Md. 237 118 Gunderson v. Richardson, 56 Iowa, 56, 8 N. W. 683 146 Gunn V. Bolckow, 10 Ch. App. 491, 496 208, 212 Gunter v. Leckey, 30 Ala. 596 4 Gunther v. Atwell, 19 Md. 157 174 Guthrie v. Morris, 22 Ark. 411 11 V. Murphy, 4 Watts, 80 10 Gurney v. Atlantic & G. W. R. Co., 58 N, T. 358 248 V. Womersley, 4 El. & Bl, 133, 24 Iaw J. Q. B. 46 110 Gwlnn V. Slmes, 61 Mo. 335 143 Gwyn V. Richmond & D. R. Co., 85 N. C. 429....»^„. 215 Haase v. Mitchell, 58 Ind. 218 „ 122 V. Nonnemacher, 21 Minn. 486, 490 157, 247 Hadley v. Baxendale, 9 Exch. 341, 354, 23 Law J. Bxch. 179 238 Haines v. Tucker, 50 N. H. 307, 311 159 Haldeman v. Duncan, 51 Pa. St 66 ^ 95 Hale V, Rawson, 27 Law J. C. P. 189 26 Hall V. Butterfield, 59 N. H. 354 ^ 7, 8 V. Corcoran, 107 Mass. 251 147 T. Dlmond, 63 N. H. 565, 3 Atl. 423 222, 223 V. Fullerton, 69 111. 448 124 V. Gavlt, 18 Ind. 390 „ ^ 138 V. Hall, 24 Conn. 358 25 V. Hinks, 21 Md. 406 123 Hallas V. Robinson, 15 Q. B. Dlv. 288 26 Hallen v. Runder, 1 Cromp., M. & R. 266 48 Hallenbeck v. Cochran, 20 Hun, 418 63 Hallett V. Novlon, 14 Johns. 273 „ 140 V. Oakes, 1 Cush. 296 14 Halley y. Troester, 72 Mo. 78 «..^ 12 Hallgarten v. Oldham, 135 Mass. 1, 9 130, 132, 182 Halllday y. Holgate, L. R. 8 Bxch. 299 3 Halsey y. Warden, 25 Kan. 128 „ 107 Halterline v. Rice, 62 Barb. 593 87 GASES CITED. 281 Page Hamburger v. Rodman, 9 Daly, 93, 96 209, 213 Hamet v. Letcher, 37 Ohio St. 356 123 Hamilton v. Calhoun, 2 Watts, 139.... «...^ 183 V. Rogers, 8 Md. 301 ^^^^^^ 24 V. Russell, 1 Cranch, 309, 316 125 Hammer v. Schoeaf elder, 47 Wis. 455, 2 N. W. 1129 237, 239 Hammond v. Anderson, 1 Bos. «& P. (N. R.) 69 87 V. Buckmaster, 22 Vt 375 121 V, Bussey, 20 Q. B. Div. 79 249 V. Pennock, 61 N. Y. 145, 155 116, 121, 122 Hanauer v. Doane, 12 Wall. 342 136 Hands v. Burton, 9 East, 349. ..... ^ 4 V. Slaney, 8 Term R. 578 9 Handy v. Publishing Co., 41 Minn. 188, 42 N. W. 872 149 Hanington v. Du Chatel, 1 Brown, C. C. 124 137 Hanks v. Palling, 6 El. & Bl. 659, 669, 25 Law J. Q. B. 375 26 Hanna v. Mills, 21 Wend. 90 234 V. Rayburn, 84 111. 533 118 Hansen v. Consumers' Steam-Heating Co., 73 Iowa, 77, 34 N. W. 495. ... 194 Hanson v. Armitage, 5 Barn. & Aid. 557 57, 59 T. Busse, 45 111. 496 174 V. Edgerly, 29 N. H. 343 112 T. Marsh, 40 Minn. 1, 40 N. W. 841 71 V. Meyer, 6 East, 614 87 Hapgood V. Rosenstock, 23 Fed. 86 241 T. Shaw, 105 Mass. 278 179, 184 Harden v. McClure, 1 Chand. (Wis.) 271, 2 Pin. 289 42 Harding Paper Co. v. Allen, 65 Wis. 576, 27 N. W. 329 222 Hardman v. Booth, 1 Hurl. & C. 803, 32 Law J. Exch. 105 22, 123 Hardy v. Potter, 10 Gray, 89 131 Hargous v. Stone, 5 N. Y. 73 168, 174 Hargrove v. Adcock, 111 N. C. 166, 16 S. E. 16 77 Harknesg r. Russell, 118 U. S. 663, 7 Sup. Ct. 51 90 Harlow v. Putnam, 124 Mass. 553 110 Harman v. Reeve, 18 C. B. 587, 25 Law J. O. P. 257-, 37, 49 Harmony v. Bingham, 12 N. Y. 99 160 Harnor v. Groves, 15 C. B. 667, 669, 24 Law J. C. P. 53 Ill, 199 Harper v. Craln. 36 Ohio St. 838 144 V. Godsell, L. R. 5 Q. B. 424... 3 V. Terry, 70 Ind. 264 122 Harran v. Foley, 62 Wis. 584, 22 N. W. 837 30 Harrell v. Miller, 35 Miss. 700 46 Harrington v. King, 121 Mass. 269 90 V. Stratton, 22 Pick. 510 120 282 OASES CITED. Pag©- Harris v. Fowle, cJted In Barbe v. Parker, 1 H. Bl. 287 4 V. Hanover Nat. Bank, 15 Fed. 786 109- V. Pratt, 17 N. Y. 249 ^ 221 V. Runnels, 12 How. 79, 84 140 V. Smith, 3 Serg. & R. 20 85 V. Sumner, 2 Pick. 137 120 V. Waite, 51 Vt. 480 172 Harrison v. Colton, 31 Iowa, 16.... ► 143 V. Fane, 1 Man. & G. 550 « -. 9 V. Luke, 14 Mees. & W. 139 4 Hart V. Mills, 15 Mees. & W. 85 31, 188 V. Prater, 1 Jur. 623 9 V. Sattley, 3 Camp. 528 57 Harvey v. Graham, 5 Add, & E. 61, 73 73 V. Harris, 112 Mass. 32 29 V. Merrill, 150 Mass. 1, 22 N. E. 49 144, 145 V. Stevens, 43 Vt. 653, 657 69, 78 V. Varney, 98 Mass. 118 128 Haskell v. Greely, 3 Greenl. (Me.) 425 131 V. Hunter, 23 Mich. 305 233 T. McHenry. 4 Cal. 411 228 V. Rice, 11 Gray, 240, 241 208, 212, 213 Haskins v. Warren, 115 Mass. 514, 533, 534 84, 210 Haslack v. Mayers, 26 N. J. Law, 284 190 Hastie v. Couturier, 9 Exch. 102, 5 H. L. Cas. 673, reversing 8 Exch. 40. . 23 Hastings v. Lovering, 2 Pick. 214 156 Hatch V. Douglas, 48 Conn. 116 144 V. Oil Co., 100 U. S. 124, 130, 136 82, 98^ Hatstat V. Blakeslee, 41 Conn. 301 130 Haviland v. Johnson, 7 Daly, 297 91 Hawes v. Forster, 1 Moody & R. 368 80 Hawkins v. Chase, 19 Pick. 502, 505 71, 76, 77 V. Davis, 8 Baxt. 506 123 T. Graham, 149 Mass. 284, 21 N. E. 312 154 T. Pemberton, 51 N. Y. 198. 156, 171 Hawley v. Keeler, 53 N. Y. 114 160 HaxaU v. Willis, 15 Grat. 434, 442, 445 88 Hayden v. Demets, 53 N. Y. 426, 431 85, 229, 234 Hays V. Jordan, 85 Ga. 749, 11 S. B. 833 29 V. Moullle, 14 Pa. St 48 216, 217 Hazard v. Day, 14 Allen, 487 142 Head v. Diggon, 3 Man. & R. 97 2T V. Goodwin, 37 Me. 182 24 V. Tattersall, L. R, 7 Exch. 7 93- CASES CITED. 283 Page Headrlck ▼. Brattaln, 63 Ind. 438 25 Heald v. Builders' Ins. Co., Ill Mass. 88 25 Heath v. Stevens, 48 N. H. 251 7 Hecht V. Batcheller, 147 Mass. 335, 17 N. E. 651 30 Hedden v. Roberts, 134 Mass. 40 190 Heilbutt V. Hickson, L. R. 7 O. P. 438, 450, 451, 456 158, 174, 175, 242 Hellings v. Russell, 33 Law T. (N. S.) 380 20 Hemmer v. Cooper, 8 Allen, 334 114 Henderson v. Gibbs, 39 Kan. 679, 684, 18 Pac. 926 123 Hennlston v. Ham, 9 Fost. (N. H.) 501 33 Henshaw v. Robins, 9 Mete. (Mass.) 83, 88 156, 103 Hepburn v. Sewell, 5 Har. & J. 211 31 Herman v. Haffenegger, 54 Cal. 161 122 Herrin v. Libbey, 36 Me. 357 124 Herring v. Hoppock, 15 N. Y. 409 90 V. Skaggs, 62 Ala. 180 248, 249 Hersey v. Benedict, 15 Hun, 282 120 Hervey r. Rhode Island Locomotive Works, 93 U. S. 664 29, 32, 90 Heryford v. Davis, 102 U, S. 235 90 Hessing v. McCloskey, 37 111. 341 126 Hewes v. Jordan, 39 Md. 472, 483, 484 54, 59 Hewison v. Guthrie, 2 Bing. (N. C.) 755 207 Hewson-Herzog Supply Co. v. Minnesota Brick Co., 55 Minn. 530, 57 N. W. 129 236 Heyman v. Neale, 2 Camp. 337 77, 79, 80 Heysham v. Dettre, 89 Pa. St. 506 48 Hey worth v. Hutchinson, L. R. 2 Q. B. 447, 451, 36 Law J. Q. B. 270. .175, 243 Hibblewhite v. McMorine, 5 Mees. & W. 462 26 Hickman v. Haynes, L. R. 10 C. P. 598 237 Hicks V. Stevens, 121 111. 186, 11 N. E. 241 118 Hieskell v. Farmers' & Mechanics' Nat. Bank, 89 Pa. St. 155 107 Higgins V. Delaware, L. & W. R. Co., 60 N. Y. 553, 557 154, 194 V. Moore, 34 N. Y. 417 203 V. Murray, 4 Hun, 565, 73 N. Y. 252 101, 103 V. Senior, 8 Mees. & W. 834 70 HIggons V. Burton, 26 Law J. Exch. 342 22, 123 Hight V. Bacon, 126 Mass. 10 170 V. Ripley, 19 Me. 137 87, 42 HIU V. Blake, 97 N. Y. 216 73 V. Freeman, 3 Cash. 257 91 V. HeUer, 27 Hun, 416 189 V. McDonald, 17 Wis. 97, 100 56, 199 V. North, 34 Vt 604 164 V. Rewee, 11 Mete. (Mass.) 268, 271, 272 109, 111 284 CASES CITED. Page Hill V. Smith, 34 Vt 535 237 V. Spear, 50 N. H. 253 135 Hinchman v. Lincoln, 124 U. S. 38, 8 Sup. Ct 369 66, 61 Hinckley v. Pittsburgh Bessemer Steel Co., 121 U. S. 264, 7 Sup. Ct 875. . 233 Hinde v. Llddell, L. R. 10 Q. B. 265 237 V. TMiitehouse, 7 East, 558. 43, 53, 74, 77 Hinds V. Kellogg (Com. PI. N. Y.) 13 N. Y. Supp. 922 41 Hine V. Roberts, 48 Conn. 267 91 Hirsch v. Richardson, 65 Miss. 227 126 Hirschorn v. Canney, 98 Mass. 149 85, 90 Hirth V. Graham, 50 Ohio St 57, 33 N. E. 90 40 Hitchcock V. Giddings, 4 Price, 135, 140 •*26 Hoadly v. McLaine, 10 Blng. 482, 487 31, 33, 71 Hoare v. Rennle, 5 HurL & N. 19, 29 Law J. Exch. 73 193, 194 Hobart V. Littlefleld, 13 R. I. 341 100, 106 Hobbs V. Carr, 127 Mass. 532 131 V. Massasolt Whip Co., 158 Mass. 194, 33 N. E. 495 56, 200 Hochster v. De la Tour, 2 El. & Bl, 678 159 Hocking v. HamUton, 158 Pa. St. 107, 115, 27 Atl. 836 185 Hodges V. Kowing, 58 Conn. 12, 18 Atl. 979 75 Hodgson V. Le Bret 1 Camp. 233 55 V. Loy, 7 Term R. 442 219 V. Temple, 5 Taunt 181 135 Hoe V. Sanborn, 21 N. Y. 552 171, 172 Hoffman v. Carow, 20 Wend. 21, 22 Wend. 285 17, 18 V. King, 58 Wis. 314, 17 N. W. 136 188, 189 V. Noble, 6 Mete. (Mass.) 68 22, 122 Hoglns V. Plympton, 11 Pick. 97, 99 156, 162 Holblrd V. Anderson, 5 Term R. 235 126 Holbrook v. Burt, 22 Pick. 546 118 T. Connor, 60 Me. 578 113, 114 V. Setchel, 114 Mass. 435 32 Holden Steam Mill v. Westervelt 67 Me. 446 190 Holdom V. Ayer, 110 111. 448 118 HoUand v. Rea, 48 Mich. 218, 224, 12 N. W. 167 229 V. Swain, 94 111. 154 123 HoUoway v. Jacoby, 120 Pa. St. 583, 15 Atl. 487 156, 247 Ilolman v. Johnson, 1 Cowp. 341 146 Holmes v. Blogg, 8 Taunt. 508 7 V. Gregg (N. H.) 28 Atl. 17 197 T. Hoskins, 9 Exch. 753 62 Holroyd v. Marshall, 10 H. L, Cas. 191, 33 Law J. Ch. 193 25 Holt V. Clarencieux, 2 Strange, 937, 938 7 T. O'Brien, 15 Gray, 311 148 CASES CITED. 285 Page Home Ins. Co. y. Heck, 65 HI. Ill 9S Homer v, Perkins, 124 Mass. 431, 433 113, 114 Honck V. MuUer, 7 Q. B. Div. 92 193 Hood V. Bloch, 29 W. Va. 244, 11 S. E. 910 17a Hook V. Monre, 17 Iowa, 195 128 Hooker v. Knab, 26 Wis. 511 66 Hoover v. Maher, 51 Mimi. 269, 53 N. W. 646 102 r. Peters, 18 Mich. 51 173 y. Sidener, 98 Ind. 290 243 Hope V. Hayley, 5 El. & Bl. 830, 25 Law J. Q. B. 155 24 Hopkins v. Tanqueray, 15 C. B. 130, 23 Law J. C. P. 162 162 Hornby v. Lacy, 6 Manle «& S. 166 20a Horncastle v, Farran, 3 Barn. & Aid. 497 207 Home V. Midland Ry. Co., L. R. 7 C. P. 583, 591, L. R. 8 C. P. 131 239 Horr y. Barker, 8 Cal. 603, 11 Cal. 393 95, 96 HorsfaU v. Thomas, 1 Hurl. & C. 90 118 Horton v. Buffinton, 105 Mass. 399 146 V. McCarty, 53 Me. 394 78 Hosack V. Weaver, 1 Yeates, 478 ,. . . 18 Hosmer y. Wilson, 7 Mich. 294, 295 158, 159, 233 Hotchkiss V. Higgins, 52 Conn. 205 93 Hotham y. East India Co., 1 Term R. 645 158 Hough y. Rawson, 17 111. 588 179 Houghtaling v. Ball, 20 Mo. 563 81 House y. Alexander, 105 Ind. 109, 4 N. E. 891 7 Hovey y. Hobson, 53 Me. 451 13 Howard v. Daly, 61 N. Y. 362 159 y. Emerson, 110 Mass. 320 174 y. Harris, 8 Allen, 297 4 y. Hoey, 23 Wend. 350 173 Howe y. Batchelder, 49 N. H. 204 46 y. Hayward, 108 Mass. 54 65 V. Palmer, 3 Barn. & Aid. 321 59 y. Smith, 27 Ch. Div. 89, 101 65 Howell V. Coupland, L. R. 9 Q. B. 462, 1 Q. B. Div. 258 161 y. Stewart, 54 Mo. 400 136 Howe Mach. Co. v. Willie, 85 111. 333 109 Howley v. Whipple, 48 N. H. 487 78 Hoyt v. Casey, 114 Mass. 397 10 Hubbard, Ex parte, 17 Q. B. Div. 698 3 v. Bliss, 12 Allen, 590 91 y. George, 49 111. 275 174 Hubbell V. Flint, 13 Gray, 277, 279 136 v. Meigs, 50 N. Y. 480, 487 ^ ^ ^ .^ 120 286 CASES CITED. P*C* Hudflon T. Weir, 29 Ala. 294 ^^^,,^ 44 Huff V. McCauley, 63 Pa. St 208 « ^ 47 Hughes V. Kelly, 40 Conn. 148 ^ 91 Hulet V. Stratton, 5 Gush, 539 146 Humaston v. Telegraph Co., 20 Wall. 20, 28 83, 154 Humble v. Mitchell, 11 Add. & E. 205 44 Humphreys v. Comline, 8 Blackf. 516 174 Humphreysville Copper Co. v. Vermont Copper Min. Co., 33 Vt. 92 236 Humphries v. Carvalho, 16 East, 45 92 Huun V. Bowne, 2 Caines, 38 212 Hunt V. Hecht, 8 Exch. 814, 22 Law J. Exch. 293 55, 57, 58 V. Massey, 5 Barn. & Adol. 902 7 V. Sackett, 31 Mich. 18 166 V. Wyman, 100 Mass. 198 92 Hunter v. Bosworth, 43 Wis. 583, 586 24, 26 V. State, 55 Ark. 357, 18 S. W. 374 101 V. Talbot, 3 Smedes & M. 754 208 V. Wetsell, 57 N. Y. 375, 84 N. Y. 549 65, 60, 185 Huntington v. Hall, 36 Me. 501 166 Hurd V. Fleming, 34 Vt. 169 90 Hurff V. Hires, 40 N. J. Law, 581 95 Huschle V. Morris, 131 111. 587, 23 N. E. 643 130 Hussey V. Horne-Payne, 4 App. Cas. 311, 315, 320, 323 72 V. Thornton, 4 Mass. 404 ►. 90 Hutcheson v. Blakeman, 8 Mete. (Ky.) 80 27 Hutchings v. Nunes, 1 Moore, P. C. (N. S.) 243 216 Hutchins V. Gilchrist, 23 Vt 82 181 V. Sprague, 4 N. H. 469 128 Hutchinson v. Ford, 9 Bush, 318 25 V. Hunter, 7 Pa. St 140 95 Hutchison v. Bowker, 5 Mees. & W. 535 27 Huthmacher v. Harris' Adm'rs, 38 Pa. St. 491 32 Hutton V. Lippert 8 App. Gas. 309 30 Hyde V. Lathrop, 2 Abb. Dec. 436 .^ 99 V. Wrench, 3 Beav. 334 ^ 27 Hydraulic Engineering Co. v. McHaffle, 4 Q, B. Div. 670 240 Hynds T. Hays, 25 Ind. 31 148 laslgl V. Rosensteln, 65 Hun, 591, 20 N. Y. Supp. 491 196 Ide V. Stanton, 15 Vt 685 37, 71 Ijams V. Hoffman, 1 Md. 423 77 Illinois Land & Loan Co. v. Speyer, 138 III. 137, 27 N. E. 931 139 CASES CITED. 287 Page Ilsley V. Stubbs, 9 Mass. 65 219 Imperial Bank v. London & St. K. Docks Co., 5 Ch. Div. 195 215 Imperial Loan Co. v. Stone (1892) 1 Q, B, 599 13 Indiana Manuf g Co, v. Hayes, 155 Pa. St 160, 26 Atl. 6 31 Ingalls V. Henick, 108 Mass. 351 131, 132 Inglis V. Usherwood, 1 East, 515 221 Ingraham v. Baldwin, 9 N. Y. 45 12 Inhabitants of Westfleld v. Mayo, 122 Mass. 100 103 International Pavement Co. v. Smith, Neggs & Rankin Mach. Co., 17 Mo. App. 264 176 Iron Cliffs Co. v. Buhl, 42 Mich. 86, 3 N. W. 269 188 Irons V. Kentner, 51 Iowa, 88, 50 N. W. 73 3 Irvine v. Stone, 6 Cush. 508 49 Irwin V. Thompson, 27 Kan. 643 '. . . . 162 V. Williar, 110 U. S. 499, 510, 4 Sup. Ct. 160, 166 144 Isherwood v. Whitmore, 10 Mees. & W. 757, 11 Mees. & W. 347 197 Ives Y. Carter, 24 Conn. 392 , , , 114 J Jackson v. AUaway, 6 Man. & G. 942 179 V. Cadwell, 1 Cow. 623 19 T. Collins, 39 Mich. 557, 561 „ 114, 118 T. Covert, 5 Wend. 139 37 V. Lowe, 1 Bing. 9 73 v. Myers, 18 Johns. 425 128 V. Stanfield (Ind. Sup.) 37 N. E. 14 81 V. Tupper, 101 N. Y. 515, 5 N. E. 65 65 James v. Adams, 16 W. Va. 245 159 V. Bockage, 45 Ark. 284 163 V. Griffin, 2 Mees. & W, 623 220, 222 V. Muir, 33 Mich. 223 33, 34, 71 V. Patten, 6 N. Y. 9 , 76 V. Vane, 2 El. & El. 883, 29 Law J. Q. B. 169 201 Jamison v. Simon, 68 Cal. 17, 8 Pac. 502 59 Janney v. Sleeper, 30 Minn. 473, 16 N. W. 365 183 Janvrin v. Maxwell, 23 Wis. 51 62 Jaulerry v. Britten, 5 Scott, 655, 4 Bing. N. C. 242 ^ 20 Jeffrey v. Bigelow, 13 Wend. 518 112 Jendwine v. Slade [1797] 2 Esp. 572 163 Jenkins v. Jarrett, 70 N. C. 255 84 Jenks V. Fulmer, 160 Pa. St. 527, 28 Atl. 841 220 Jenkyns v. Brown, 14 Q. B. 496, 19 Law J. Q. B. 286 3, 107 T. Usborne, 7 Man. & G. 678, 8 Scott, N. R. 505 20, 215 288 CASES CITED. Pace Jenner v. Smith, L. R. 4 C. P. 270 98 Jenness v. Mt Hope Iron Ck)., 53 Me. 20 72 V. Wendell, 51 N. H. 63 BO Jewell V. Knight, 123 U. S. 428, 434, 8 Sup. Ct 193 12G Jewett V. Lincoln, 14 Me. 116 130 V. Warren, 12 Mass. 300 181 J. M. Brunswick & Balke Co. v. Valleau, 50 Iowa, 120 13a Johnson v. Allen, 78 Ala. 387 237 V. Buck, 35 N. J. Law, 338, 342, 343 43, 71, 74, 77, 78 V. Credit Lyonnais Co., 2 C. P. Div. 224, affirmed 3 C. P. Div. 32 20, 21 V. Cuttle, 105 Mass. 447 57 V. Delbridge, 35 Mich. 436 71 V. Dodgson, 2 Mees. & W. 053 76 V. Elwood, 53 N. Y. 431 84 V. Farnum, 56 Ga. 144 210 V. Filkington, 39 Wis. 62 28 V. Hulings, 103 Pa. St. 498. 141 V. Hunt, 11 Wend. 135 « 101 V. Latimer, 71 Ga. 470 176 V. Lines, 6 Watts & S. 80 ...^.... 10, 11 V. Monell, 41 N. Y. 655 114 V. Phoenix Ins. Co., 112 Mass. 49 153 V. Raylton, 7 Q. B. Div. 438 175 V. Trinity Church, 11 Allen, 123 68 V. Whitman Agricultural Co., 20 Mo. App. 101 244 Johnston v. Fessler, 7 Watts, 48 28 Johnstone v. Marks, 19 Q. B. Div. 509 10 V. Milling, 16 Q. B. Div. 460 158, 159 Jonassohn v. Young, 4 Best & S. 296, 32 Law J. Q. B. 385 193 Jones V. Baldwin, 12 Pick. 316 3 V. Bowden, 4 Taunt. 847 169 V. Brewer, 79 Ala. 545 107 V. Bright, 5 Bing. 533 172 V. Clifford, 3 Ch. Div. 779 28 V. Dow, 142 Mass. 130, 7 N. E. 839 69 V. Earl, 37 Cal. 630 225, 226 V. Flint, 10 Adol. & E. 753 48 V. George, 56 Tex. 149, 61 Tex. 345, 349 157, 249 V. Gibbons, 8 Exch. 920 186 V. Just, L. R. 3 Q. B. 197, 203, 37 Law J. Q. B. 89 172, 173, 248 V. Kemp, 49 Mich. 9, 12 N. W. 890 3 T. King, 86 111. 225 128 T. Mechanics' Bank, 29 Md. 287 67 T. Padgett, 24 Q. B. Div. 650 ^ 177 OASES CITED. 289 Page Jones r. Reynolds, 120 N. T. 213, 24 N. B. 279 66 T. Richardson, 10 Mete. (Mass.) 481 - 24 V. Ryde, 5 Taunt. 488 ...« ....« 110 V. U. S., 96 U. S. 24 ^ 155, 160, 161 V. Walte, 5 Blng. N. C. 341 148 Jordan v. Norton, 4 Mees. & W. 155 27 V. Parker, 66 Me. 557 123 Joseph V. Lyons, 15 Q. B. Div. 280, 54 Law J. Q. B. 3 26 Joslin V. Go wee, 52 N. Y. 90 120 JosUng V. Klngsford, 13 0. B. (N. S.) 447, 32 Law J. C. P. 94 156, 171 Joyce V. Swann, 17 G. B. (N. S.) 84, 100, 101 31, 32, 106 Justice T. Lang, 42 N. Y. 493 71, 75 K Kadlsh V. Young, 108 111. 170 159, 232 Kahn v. Klabunde, 50 Wis. 235, 238, 6 N. W. 888 92, 93 V. Walton, 46 Ohio St. 195, 20 N. E. 203 144 Kain V. Old, 2 Bam. & G. 627 162 Kaye v. Brett, 5 Exch. 269 203 Kearon v. Pearson, 7 Hurl. & N. 386, 31 Law J. Exch. 1 160 Kearslake v. Morgan, 5 Term R. 513 66 Keeler v. Goodwin, 111 Mass. 490 96, 211, 212 V. Vandervere, 5 Lans. 313 , ^ 87 Keln V. Tupper, 52 N. Y. 550, 555 31, 88 Kelwert v. Meyer, 62 Ind. 587 57 Keller v. Strasberger, 90 N. Y. 379 234 Kellogg y. Turple, 93 lU. 265 120 V. WItherhead, 6 Thomp. & C. 525 56 Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537 172 Kelsea v. Ramsey & Gore Manuf g Co., 55 N. J. Law, 320, 26 Atl. 907 100 Kemp V. Falk, 7 App. Cas. 573, 581, 585, 586, 588 220, 222-22G V. Watt, 15 Mees. & W. 672 202 Kempson v. Saunders, 4 Blng. 5 109 Kendal v. Marshall, 11 Q. B. Div. 356 222 Kendall v. May, 10 Allen, 59 14 V. Wilson, 41 Vt 567 118 Kennedy v. Duncklee, 1 Gray, 65 ►« 19 V. Richardson, 70 Ind. 524 113 T. Whitwell, 4 Pick. 466 241 Kenner v. Harding, 85 111. 264 114, 163, 164 Kent V. Bornsteln, 12 Allen, 342 122 V. Friedman, 101 N. Y. 616, 3 N. E. 905 248 V. Husklnson, 3 Bos. & P. 233 .^... 55 SALES— 19 290 CASES CITEI). Page Kent Iron & H. Co. ▼. Norbeck, 150 Ta. St. 559, 24 Atl. 737. . . . ►. 83 Kenworthy v. Schofleld, 2 Barn. & C. 945 43, 73, 74 Kerkhof v. Atlas Paper Co., 68 Wis. 674, 32 N. W. 7G6 . . „ 65 Kern v. Thurber, 57 Ga. 172 123 Kerr v. Shrader, 1 Wkly. Notes Cas. 33 50 Ketcbum v. Catlin, 21 Vt. 191 29 Kibble V. Gough, 38 Law T. (N. S.) 204 58 Kidder v. Blake, 45 N. H. 530 ^ 148 Kilmore v. Howlett, 48 N, Y. 569 46 Kimball v. Bangs, 144 Mass. 321, 11 N. E. 113 ^ 114 V. Cunningbam, 4 Mass. 502, 505 120, 121 Kimbell v. Moreland, 55 Ga. 164 110 Kimberly v. Patchln, 19 N. Y. 330 95, 96, 102 King V. Eagle Mills, 10 Allen, 548 115 V. Inhabitants of Cbillesford, 4 Barn. & C. 100 7 V. Jarman, 35 Ark. 190 88 Kingman v. Denison, 84 Mich. 608, 48 N. W. 26 217, 220 V. Holmquist, 36 Kan. 735, 14 Pac. 168 90 King Phillip Mills v. Slater, 12 R. I. 82 194 Kingsbury v, Kirwan, 77 N. Y. 612 « 144 V. Smith, 13 N. H. 109 122 Kingsford v. Merry, 25 Law J. Exch. 166 22 Kingsley v. Holbrook, 45 N. H. 313 48 V. Johnson, 49 Conn. 462 163 V. White, 57 Vt. 565 181 KInloch V. Craig, 3 Term R. 119 215 Kinney v. McDermott, 55 Iowa, 674, 8 N. W. 656 146, 147 Kinsey v. Leggett, 71 N. Y. 387, 395 21, 123 Kintzing v. McElrath, 5 Pa. St. 467 112, 113 Kirby v. Johnson, 22 Mo. 354 56, 63 Kirtland v. Moore, 40 N. J. Eq. 106, 2 Atl. 269 153 Kitchen v. Spear, 30 Vt. 545 220 Kleeman v. Collins, 9 Bush. 460. 467 68 Kline v. L'Amoureux, 2 Paige, 419 10 Klinitz V. Surry, 5 Esp. 267 53, 69 Knight V. Barber, 16 Mees. & W. 66, 16 L. J. Exch. 18 44 V. Mann, 118 Mass. 143, 145, 120 Mass. 219. 54, 60 V. New England Worsted Co., 2 Cush. 271, 287 152 Knights V. Wiffen, L. R. 5 Q. B. 660 22, 212 Knoblauch v. Kronschnabel, 18 Minn. 300 (Gil. 272) 197, 200 Knowlton v. Congress & Empire Spring Co., 57 N. Y. 518 147 Kohl V. Llndley, 39 111. 195 170 Kohn V. Melcher, 43 Fed. 041 136 Kortlanderv. Elston, 2 C. C. A. 657, 52 Fed. 180 91 CASES CITED. 291 Page Kountz T. Klrkpatrlck, 72 Pa. St. 376 236 V. Price, 40 Miss. 341 143 Kraus v. Thompson, 30 Minn. 64, 14 N. W. 266 120 Kribs V. Jones, 44 Md. 396 236 Kriete v. Myer, 61 Md. 558 71 Krohn v. Bantz, 68 Ind. 277 65, 66 Krulder v. Ellison, 47 N. Y. 36 100 Krumbhaar v. Birch, 83 Pa. St. 426 167 Kunkle v. Mitchell, 56 Pa. St. 100 185 Kyle V. Kavanagh, 103 Mass. 356 29 L Ladd V. Dillingham, 34 Me. 316 148 V. King, 1 R. I. 224, 231 73 V. Rogers, 11 Allen, 209 146, 147 Laidlaw v. Organ, 2 Wheat. 178 112, 113 Laing v. McCall, 50 Vt. 657 148 Laird v. Pim, 7 Mees. & W. 474, 478 232 Lamb v. Attenborough, 1 Best. & S. 831 20 V. Crafts, 12 Mete. (Mass.) 356 40 Lambert v. Heath, 15 Mees. & W. 487 110 Lamm v. Port Deposit H. Ass'n, 49 Md. 233 115 Lamprey v. Sargent, 58 N. H. 241 96 Lancaster Co. Nat. Bank v. Moore, 78 Pa. St. 407 13 Lane v. Chadwick, 146 Mass. 68, 15 N. E. 121 101 V. Robinson, 18 B. Mon. 623 115 La Neuville v. Nourse, 3 Camp. 351 4 Lanfear v. Sumner, 17 Mass. 110 130-132 Lang V. Henry, 54 N. H. 57 72 Langridge v. Levy, 2 Mees. & W. 519 117 Langstaff v. Stix, 64 Miss. 171, 1 South. 97 222 Langton v. Hlggins, 4 Hurl. & N. 402, 28 Law J. Exch. 252 24, 101 Larmon v. Jordan, 56 111. 204 28 Larned v. Andrews, 106 Mass. 435 141 La Rue v. Gilkyson, 4 Pa. St. 375 14 Latham v. Sumner, 89 111. 233 91 Laughton v. Harden, 68 Me. 208 126 Lavery v. Pursell, 39 Ch. Div. 508, 57 L. J. Ch. Div. 570 47 Law V. Hodson, 11 East, 300 141 V. Stokes, 32 N. J. Law, 249 203 Lawes V. Purser, 6 El. & Bl. 930, 26 Law J. Q. B. 25 110, 111 Lawson v. Lovejoy, 8 Greenl. (Me.) 405 8 Y^awton V. Blitch, 83 Ga. 663, 10 S. B. 353 144 292 CASES CITED. Pag* Laythoarp r. Bryant, 2 Bin?. N. C. 735, 747 81 Leadbetter v. Etna Ins. Co.. 13 Me. 265 ►.153 Leask v. Scott, 2 Q. B. Div. 370 224 Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B, 140 GS, 73 Leavitt V. Files, 38 Kan. 26, 15 Pac. 891 13 V. Fletcher, 60 N. H. 182 164 Lee V. Bayes, 18 C. B. 599 17 V. Cherry, 85 Tenn. 707, 4 S. W. 835 68 V. Gaskell, 1 Q. B. DIv. 700, 45 Law J. Q. B. 540 48 V. Griffin, 1 Best. & S. 272, 30 Law J. Q. B. 252 38-40, 42 V. Hills, 66 Ind. 474 72 V. Kimball, 45 Me. 172 224 V. Muggerldge, 5 Taunt. 36 15 Legg V. Wlllard, 17 Pick. 140 131 Leggat V. Sands' Ale Brewing Co., 60 111. 158 173, 197 Le Grand v. Eufaula Nat. Bank, 81 Ala. 123, 1 South. 460 115 Leith's Estate, In re, L. R. 1 P. C. 305 207 Lemmon v. Beeman, 45 Ohio St 505, 15 N. E. 476 7 Lenox v. Fuller, 39 Mich. 268 121 Leonard v. Davis, 1 Black, 476, 483 64, 84, 88. 179, 181, 182, 201, 207 Lemed v. Wannemacher, 9 Allen, 412, 416 68, 74 Leroux v. Brown, 12 C. B. 809 81 Lesassier v. The" Southwestern, 2 Woods, 35, Fed. Cas. No. 8,274 224 Lester v. McDowell, 18 Pa. St. 91 *, . . 85 Leven v. Smith, 1 Denio, 571 84 Levy V. Green, 8 El. & Bl. 575, 27 Law J. Q. B. Ill, 1 El. & El. 969, 28 Law J. Q. B. 319 102, 189 Lewis V. Greider, 51 N. Y. 231 228 V. Lyman, 22 Pick. 437 25 Y. Rountree, 78 N. C. 323 156, 171, 242, 247 V. Peake, 7 Taunt. 153... 249 V. Welch, 14 N. H. 294 „ 142 Libby v. Downey, 5 Allen, 299 141 Lickbarrow v. Mason, 2 Term R. 63, 1 H. Bl. 357, 2 H. Bl. 211, 6 East, 20, note, 5 Term R. 683, 1 Smith, Lead. Cas. (Ed. 1887) 737 223 Lightburn v. Cooper, 1 Dana, 273 243 Lillie V. Dunbar, 62 Wis. 198, 22 N. W. 467 46 Lilly white v. Devereux, 15 Mees. & W. 285 64 Lincoln v. Buckmaster, 32 Vt 652 12 V. Gallagher, 79 Me. 189, 8 Atl. 883 185, 197 Llndon v. Eldred, 49 Wis. 305, 5 N. W. 862 228 Llnforth, In re, 4 Sawy. 370, Fed. Cas. No. 8,369 20 Lingham y. Eggleston, 27 Mich. 324, 329 83, 87, 88 Linton v. Porter, 31 111. 107 ^^ 167 CASES CITED* 298 Page Litchfield Y. Hutchinson, 117 Mass. 195 116 Litt T. Cowley, 7 Taunt. 169 *»,.^.,^^^ 225 Littauer r. Goldman, 72 N. Y. 506.. « *.,^^^ 110 Livermore v. Boutelle, 11 Gray, 217. . « ^ 128 Load V. Green, 15 Mees. & W. 216 114 Lobdell V. Hopkins, 5 Cow. 516 183 Lock V. Sellwood, 1 Q. B. 736 19 Locke V. Smith, 41 N. H. 346 11 V. Williamson, 40 Wis. 377 245 Lockhart v. Bonsall, 77 Pa. St. 53 185, 18S, 189 Loeb V. Peters, 63 Ala. 243 216, 217, 224 Loeflfel V. Pohlman, 47 Mo. App. 574 123 Loeschman v. Machin, 2 Starkle, 311 20 Logan V. Le Mesurier, 6 Moore, P. C. 116 87 London & N. W. Ry. Co. v. Bartlett, 7 Hurl. & N. 400, 31 Law J. Exch, 92 220 Long V. Hartwell, 34 N. J. Law, 116, 127 73 V. Hickingbottom, 28 Miss. 773 166 V. Millar, 4 C. P. Dlv. 450 74 V. Woodman, 58 Me. 49 114 Lord V. Goddard, 13 How. 198 115 V. Price, L. R. 9 Exch. 54 227 Lorymer v. Smith, 1 Barn. & C. 1 197, 198 Loser v. Board, 92 Mich. 633, 52 N. W. 956 138 Louisville Asphalt Varnish Co. v. Lorick, 29 S. C- 533, 8 S. E. 8 68, 74 Lovejoy v. Murray, 3 Wall. 1, 16 31 V. Mlchels, 88 Mich. 15, 49 N. W. 901 33, 34 Low V. Andrews, 1 Story, 38, Fed. Cas. No. 8,559 100 V. Pew, 108 Mass. 347 26 Lowber v. Bangs, 2 Wall. 728 151 Lucas V, Dixon, 22 Q. B. Div. 357 69 V. Nichols, 5 Gray, 311 185 Ludwig V. Fuller, 17 Me. 162 131 Lunn V. Thornton, 1 C. B. 379, 14 Law J. C. P. 161 24 Lupin T. Marie, 6 Wend. 77 -.. 210 Lynch v. O'Donnell, 127 Mass. 311 87 y. Wlllford (Minn.) 59 N. W. 311 -- 92 Lyon V. Bertram, 20 How. 149, 154 243, 245 Lyons V. Brlggs, 14 R. L 222 113 Lytle T. State, 17 Ark. 663 139 294 GABE8 CITSD. M Page Maberley r. Sheppard, 10 Blng. 99.. « 55 McAleer v. Horsey, 35 Md. 439 117 McArthur v. Bloom, 2 Duer, 151 15 McBride v. Sllverthome, 11 U. C. Q. B. 545 33 McCabe v. McKInstry, 5 Dill. 509, Fed. Cas. No. 8,G67 3 McCafifrey v. Woodin, 65 N. Y. 459 24, 26 McCarren v. McNulty, 7 Gray, 139 164 McCarthy v. Henderson, 138 Mass. 310 ^ 7 V. Nash, 14 Minn. 127 (Gil. 95) 53 McCarty v. Blevlns, 5 Yerg. 195 25 McClain v. Davis, 77 Ind. 419 - 12 McClintock's Appeal, 71 Pa. St. 365 47 McClung V. Kelley, 21 Iowa, 508, 511 88 McClure v. Briggs, 58 Vt. 82, 2 Atl. 583 154 V. Jefferson, 85 Wis. 208, 54 N. W. 777 197, 248 V. Williams, 5 Sneed, 717 « 229 McClurg V. Kelley, 21 Iowa, 508 173 McComb V. Donald's Adm'r, 82 Va. 903, 5 S. E. 558 90 V. Wright, 4 Johns. Ch. 659 77 McCombs V. McKennan, 2 Watts & S. 216 228 McConnel r. Murphy, L. R. 5 P. C. 203 191 McConnell v. Brillhart, 17 111. 354 69, 76 V, Hughes, 29 Wis. 537 83 V. Kitchens, 20 S. C. 430 141 McCormick v. Basal, 46 Iowa, 235 159 V. Hamilton, 23 Grat 561 232 ▼. Kelly, 28 MimL 135, 138, 9 N. W. 675 164 V. Littler, 85 111. 62 14 y. Vanatta, 43 Iowa, 389 249 McCormick Harvesting Mach. Co. v. Chesrown, 33 Minn. 32, 21 N. W. 846 154, 200 McCown V. Mayer, 65 Miss. 537, 5 South. 98 25 McCray Refrigerator & C. S. Co. v. Woods, 99 Mich. 269, 58 N. W. 320. . 172 McCrea v. Purmort, 16 Wend. 460 75 McCrillis V. Allen, 57 Vt 505 123 McCulloch V. McKee, 16 Pa. St. 289 203 McDermid v. Redpath, 39 Mich. 372 237 Macdonald v. Longbottom, 28 Law J. Q. B. 293, 1 El. & El. 977, 29 Law J. Q. B. 256 72 McDonald Manuf'g Co. v. Thomas, 53 Iowa, 558, 5 N. W. 737 163 McElroy v. Seery, 61 Md. 389 69, 221 McEwan v. Smith, 2 H. L. Cas. 309 20, 211, 212 CASES CITED. 295 Pag* McEwen r. Morey, 60 HI. 32 ^..►. « 33 McFetrldge v. Piper, 40 Iowa, 627 .....222 McGrath v. Cannon (Minn.) 57 N. W. 150 Ill V. Gegner, 77 Md. 831, 26 Atl. 502 236 McGraw v. Fletcher, 35 Mich. 104 17G V. Gilmer, 83 N. C. 162 207 V. Solomon, 83 Mich. 442. 47 N. W. 345 123 McGrew v. City Produce Exchange, 85 Tenn. 572, 4 S. W. 38 144 McHose V. Fulmer, 73 Pa. St. 365 237 Mcintosh V. Brill, 20 U. C. C. P. 426 27 Mclntyre v. Parks, 3 Mete. (Mass.) 207 135 Mack V. Story, 57 Conn. 407, 18 Atl. 707 90 McKanna v. Merry, 61 111. 177 9-11 Mackaness v. Long, 85 Pa. St. 158 89 McKee v. Garcelon, 60 Me. 165 131 Mackellar v. Pillsbury, 48 Minn. 396, 51 N. W. 222 96 McKercher v. Curtis, 35 Mich. 478 23G Mackey V. Swartz, 60 Iowa, 710, 15 N. W. 576 200 McKibbIn v. Martin, 64 Pa. St. 352 129 McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485 203 McKinnell v. Robinson, 3 Mees. & W. 435 . . 135 McKinney v. Andrews, 41 Tex. 363 135 V. Bradlee, 117 Mass. 321 93 McKnight v. Dunlap, 5 N. Y. 537 52 McLane v. Johnson, 43 Vt. 48 - 128 McLaughlin v. Piatti, 27 Cal. 451 95 Maclay v. Harvey, 90 111. 525 27 McLay v. Perry, 44 Law T. (N. S.) 152 191 Maclean y. Dunn, 4 Bing. 722 77, 227 V. NicoU, 7 Jur. (N. S.) 999 71, 72 McMillan v. Larned, 41 Mich. 521, 2 N. W. 662 91 McMinn V. Riehmonds, 6 Yerg. 9 11 McMuUen v. Helberg, 4 L. R. Ir. 94, 6 L. R. Ir. 463 72 V. Riley, 6 Gray, 500 49 McNeal v. Braun, 53 N. J. Law, 617, 23 Atl. 687 87, 100 Macomber v. Parker, 13 Pick. 175, 183 88 McPherson t. Walker, 40 111. 372 159 McQuaid v. Ross, 85 Wis. 492, 55 N. W. 705 171 Maddison v. Alderson, 8 App. Cas. 467, 488 81 Magee v. Billingsley, 3 Ala. 679 175 V. Scott, 9 Cush. 148 147 Magruder v. Gage, 33 Md. 344 100 Mahoney v. McLean, 26 Minn. 415, 4 N. W. 784 200 Maillard v. Duke of Argyle, 6 Man. & Q. 40 202 296 CASES CITED. Paw Malone v. Plato, 22 Cal. 103 63 Mamlock v. Fairbanks, 46 Wis. 415, 1 N. W. 167 ^ 115 Manby v. Scott, 1 Sid. 112 14 Mandlebaum v. Gregovich, 17 Nev. 87, 28 Pac. 121 141 Mann v. Everston, 32 Ind. 355 173 Manning v. Albee, 11 Allen, 520 ..^ 113 Manning's Case, 8 Coke, 94b 19 Mansfield v. Converse, 8 Allen, 182 ^ 3 V. Trigg, 113 Mass. 350, 352 „ 111 Marbury v. Brooks, 7 Wheat. 556, 11 Wheat. 78 126 March v. Wright, 46 111. 487 29 Margetson v. Wright, 7 Blng. 603, 8 Bing. 454 164 Markham v. Jaudon, 41 N. Y. 235, 242 64 Marsden v. Cornell, 62 N, Y. 215 32 Marsh v. Falker, 40 N. Y. 562 110 V. Hyde, 3 Gray, 331 52, 05 T. Keating, 1 Bing. N. C. 198, 2 Clark & F. 250 IT V. McPherson, 105 U. S. 709 236, 247 V. Pier, 4 Rawle, 273 ^ .-« 82 V. Rouse, 44 N. Y. 643 61 V. Webber, 13 Minn. 109 (Gil. 99) 112 Marshall v. Drawhorn, 27 Ga. 275, 279 164 V. Duke, 51 Ind. 62 160 T. Ferguson, 23 Cal. 66 48, 56 V. Green, 1 C. P. DIv. 35, 42 44, 46-48, 64 V. Lynn, 6 Mees. & W. 109 73 V. Perry, 67 Me. 78 244 V. Rutton, 8 Term R. 545 15 Martin v. Adams, 104 Mass. 262 93, 210 V. Clarke, 8 R. I. 389 139 Martindale v. Booth, 3 Barn. & Adol. 498 127 V. Smith, 1 Q. B. 389, 395 83, 155, 208, 226, 234 Marvin v. WalUs, 6 El. & Bl. 726, 25 Law J. Q. B. 369 62 Mary and Susan, The, 1 Wheat. 25 100 Maryland Fertilizing & Manuf g Co. v, Lorentz, 44 Md. 218 152 Mason v. Chappell, 15 Grat 572, 573, 583 115, 163, 172 V. Decker, 72 N, Y. 595 229 V. Smith, 130 N. Y. 474, 29 N. E. 749 200 V. Wilson, 43 Ark. 172 220, 221 T. Wright, 13 Mete. (Mass.) 306 7, 10 Massey v. State, 74 Ind. 368 5 Masson r. Bovet, 1 Denio, 69 121 Materne v. Horwitz, 50 N. Y. Super. Ct. 41, 101 N. Y. 469, 5 N. E. 331..136, 146 Matheny v. Mason, 73 Mo. 677 ^ 167 CASES CITED. 297 Page Matteson y. Holt, 45 Vt. 336 243 Matthews v. Baxter, L. R. 8 Bxch. 182 12, 18 V. Bliss, 22 Pick. 48, 52 113 Matthiessen & W. Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536, 538, 544 12, 13, 60, 63, 66 Mattlce V. Allen, 42 N. Y. 493 66 Maxfleld y. Jones, 76 Me. 135, 137 166 Maxton y. Gheen, 75 Pa. St 166 144 Maxwell y. Brown, 39 Me. 98, 103 52, 61 y. Lee, 34 Minn. 511, 27 N. W. 196 197, 247 May y. Ward, 134 Mass. 127 40, 71 Mayer y. Adrian, 77 N. C. 83 69 y. Child, 47 Cal. 142 45 Maynard v. Maynard, 49 Vt 297 112 y. Tabor, 53 Me. 511 27 Mead y. Parker, 115 Mass. 413 72 Meade y. Smith, 16 Conn, 346 130 Means y. Williamson, 37 Me. 556 62 Mechanics' & Traders' Bank y. Farmers' & Mechanics' Nat. Bank, 60 N. Y. 40 21 Medbury y. Watson, 6 Mete. (Mass.) 249, 259 114 Medina y. Stoughton, 1 Salk. 210, LdL Raym. 593 - 166 Meehan y. Sharp, 151 Mass. 564, 24 N. E. 907 - 44, 59 Meincke y. Falk, 55 Wis. 427, 13 N. W. 545 - 42 Melchoir y. McCarty, 31 Wis. 252 142, 143 Menta y. Newwitter, 122 N. Y. 491, 25 N. E. 1044 69 Merchant Banking Co. of London v. Phoenix Bessemer Steel Co., 5 Ch. Div. 205 212, 213 Merchants' Bank y, Hlbbard, 48 Mich. 118, 11 N. W. 834 211 Merchants' Exch. Bank y. McGraw, 8 C. C. A. 420, 59 Fed. 972 83, 107 Merchants' Nat Bank v. Bangs, 102 Mass. 291, 295 99, 100, 106 Meredith v. Meigh, 2 El. & Bl. 364, 370, 22 Law J. Q. B. 401 56, 57 Merriam y. Cunningham, 11 Gush. 40, 44 10, 11 y. Field, 24 Wis. 640, 39 Wis. 578 162, 173, 176 y. Pine City Lumber Co., 23 Minn. 314 115 y. Wolcott, 3 Allen, 258 110 Merrick y. Wiltse, 37 Minn. 41, 33 N. W. 3 243. 249 Merrick's Estate, 5 Watts & S. 17 32 Merrill y. Meachum, 5 Day, 341 128 y. Nightingale, 39 Wis. 247 -172 Merriman v. Chapman, 32 Conn. 146 , 174 Merritt y. Clason, 12 Johns. 102 74, 75, 79 Merry y. Green, 7 Mees. «& W. 623 82 298 CASES CITED. Pag» Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 434, 444, 9 Q. B. Dlv. 648 155, 193, 194 Messer t. Woodman, 22 N. H. 172 95 Messmore t. New York Shot & Lead Co., 40 N. Y. 422 240 Mews V. Carr, 1 Hurl. & N. 486, 26 Law J. Exch. 3'J 78 Mej-er v. Amidon, 45 N. Y. 169 116 V. Everth, 4 Camp. 22 174 V. Thompson, 16 Or. 194, 18 Pac. 16 59 Meyersteln v. Barber, L. R. 2 C. P. 38, 51, 661, L. R. 4 H. L. 317 130, 224 Michael v. Bacon, 49 Mo. 474 135 Michigan C. R. Co. v. Phillips, 60 111. 190 84 Michigan State Bank v. Gardner, 15 Gray, 362 21 Middlebury College v. Chandler, 16 Vt. 686 9 Middlesex Co. v. Osgood, 4 Gray, 447 183 Mighell V. Dougherty, 86 Iowa, 480, 53 N. W. 402 _ 42 Mihills Manuf g Co. v. Day, 50 Iowa, 250 239 Miles, Ex parte, 15 Q. B. Div. 39, 54 Law J. Q. B. 567 222 V. Gorton, 2 Cromp. & M. 504 206, 213, 216 V. Miller, 12 Bush, 184 236 Milgate v. Kebble, 3 Man. & G. 100 227 Millard v. Webster, 54 Conn. 415, 8 Atl. 470 216, 221 Mill-Dam Foundery v. Hovey, 21 Pick. 417 152 Miller V. Ammon, 145 U. S. 421, 426, 12 Sup. Ct. 884 140 V. Barber, 66 N. Y. 558, 564 121 V. Post, 1 Allen, 434 140, 141 V. Race, 1 Burrows, 452 17 V. Smith, 26 Minn. 248, 2 N. W. 942 7 V. Stevens, 100 Mass. 518 47 V. Tiffany, 1 Wall. 298 168 alllliken v. Warren, 57 Me. 46 208, 212 Mills V. Hunt, 17 Wend. 333, 20 Wend. 431 50 V. Williams, 16 S. C. 593 142 Mllnes V. Gery, 14 Ves. 400 33 Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. 232 ►.«.. 172 Milwaukee & St. P. R. Co. v. Milwaukee & M. R. Co., 20 Wis. 174 139 Miner v. Bradley, 22 Pick. 457, 458 109, 111 Ming V. Woolfolk, 116 U. S. 5'J9, 6 Sup. Ct. 489 118 Minneapolis & St L. Ry. Co. v. Columbus Rolling Mill Co., 119 U. S. 149, 7 Sup. Ct. 168 27 MInock V. Shortrldge, 21 Mich. 304 8 Mirabita v. Imperial Ottoman Bank, 3 Exch. Div. 164, 172 106, 107 Mires v. Solebay, 2 Mod. 243 89 Mississippi & T. R. Go. v. Green, 8 Heisk. 588 161 CASES CITED. 299 Page Mitchell r. Gile, 12 N. H. 390 4 V. Smith, 1 Bin. 110 140 V. Winslow, 2 Story, 630, Fed. Gas. No. 9,673 26 Mixer V. Howarth, 21 Pick. 205 ». .. 40 Moakes v. Nicholson, 19 C. B. (N. S.) 290, 34 Law J. C. P. 273 106 Mockbee v. Gardner, 2 Har. & G. 176 167 Mody V. Gregson, L. R. 4 Exch. 49, 53 156, 176, 177 Mohney v. Evans, 51 Pa. St. 80 10, 11 Mohr V. Boston & A. R. R., 106 Mass. 72 220 V. MIesen, 47 Minn. 228, 49 N. W. 862 145 Moley V. Brine, 120 Mass. 324 8 Mollne-MIlburn Co. v. Franklin, 37 Minn. 137, 33 N. W. 323 117 Moller V. Tuska, 87 N. Y. 166 120 Molton V. Camroux, 2 Exch. 487, 4 Exch. 17, Ewell, Lead. Gas. 614 12-14 Mondel v. Steel, 8 Mees. & W. 858 245 Monk V. Whittenbury, 2 Barn. & Adol. 484 20 Monroe v. Hoff , 5 Denio, 360 202 Monte Allegre, The, 9 Wheat. 616 167 Montefiori v. Montefiori, 1 Wm. Bl. 363 146 Moody V. Blake, 117 Mass. 23 123 y. Brown, 34 Me. 107 103 V. Wright, 13 Mete. (Mass.) 17, 30 24, 26 Moore v. Byrum, 10 S. G. 452 25 V. Gampbell, 10 Exch. 323, 23 Law J. Exch. 310 ^ . . 73 V. Hamilton, 44 N. Y. 661, 666 219 V. Hershey, 90 Pa. St. 196 12 V. Kendall, 2 Pin. 99 146 V. Love, 57 Miss. 765 53 V. McKinlay, 5 Gal. 471 168 T. Mountcastle, 61 Mo. 424 68 Morehouse v. Gomstock, 42 Wis. 626 162, 245 Morey v. Medbury, 10 Hun, 540 84, 85 Morgan v. Gath, 3 Hurl. & G. 748, 34 Law J. Exch. 165 190 Morlson v. Gray, 2 Bing. 260 215 Morley v. Attenborough, 3 Exch. 500, 511 165, 166, 168 Morrill v. Noyes, 56 Me. 458, 466 26 Morris v. Thompson, 85 111. 16 112, 166 Morrison v. Dlngley, 63 Me. 553 95 V. Koch, 32 Wis. 254, 261 113 Morritt, In re, 18 Q. B. DIv. 232 3 Morrow v. Reed, 30 Wis. 81 87, 88 Morse v. Brackett, 98 Mass. 205, 104 Mass. 494 Ill V. Ely, 154 Mass. 458, 28 N. E. 577 7 V. Moore, 83 Me. 473, 479, 22 Atl. 362 ^,^, . .157, 244, 245, 247 SOO CASES CITED. Page Morse v. Ryan, 26 Wis. 356 187 V. Shaw, 124 Mass. 59 114 V. Sherman, 106 Mass. 430 84, 234 Morss V. Stone, 5 Barb. 516 4 Mortimer v. McCallan, 6 Mees. & W. 58 26 Morton v. Dean, 13 Mete. (Mass.) 385 43, 74, 77 V. Lamb, 7 Term R. 125 178, 179 T. Tibbett, 15 Q. B. 428, 19 Law J. Q. B. 882 65, 67,59 Moses V. Mead, 1 Denlo, 878, 5 Denlo, 617 174 V. Rasin, 14 Fed. 772, 774 216, 236 Moss V. Sweet, 16 Q. B. 493, 20 Law J. Q. B. 167 92, 93 Mottram v. Heyer, 6 Denio, 629 226 Mount Hope Iron Co. v. Buffinton, 103 Mass. 62 87 Mowbray v. Cady, 40 Iowa, 604 ^.. 92 Mowry v. Kirk, 19 Ohio St 375 186 Mucklow V. Mangles, 1 Taunt. 318 103 Muller V. Eno, 14 N. Y. 597. 243 V. Pondlr, 55 N. Y. 325 215 Munson v, Washband, 31 Conn. 303 9 Murch V. Wright, 46 111. 487 90 Murchle v. Cornell, 155 Mass. 60, 29 N. E. 207 173 Murphy v. Boese, L. R. 10 Exch. 126 , . . 77 Muskegon Curtain-Roll Co. v. Keystone Manuf'g Co., 135 Pa. St. 132, 19 Atl. 1008 233 Mutual Life Ins. Co. v. Hunt, 14 Hun, 169, 79 N. Y. 541 13 Myer v. Wheeler, 65 Iowa, 390, 21 N. W. 692 194 Myers v. Knabe, 51 Kan, 720, 33 Pae. 602 13 V. Melnrath, 101 Mass. 366, 369 146, 147 T. Smith, 48 Barb. 614.. «......« ^ 27 N Nash V. Brewster, 39 Minn. 530, 41 N. W. 105 96 V. Lull, 102 Mass. 60 110 V. Towne, 5 Wall. 689 70, 235 National Bank v. Dayton, 102 U, S. 59 99 V. Goodyear (Ga.) 16 S. E. 962 29 National Bank of Commerce v. Chicago, B. & N. R. Co., 44 Minn. 224, 46 N. W. 342, 560 90 V. Merchants' Nat. Bank of Memphis, 91 U. S. 92 107 National Car & Locomotive Builder v. Cyclone Steam-Plow Co. (Minn.) 51 N. W. 657 29 Neal V. Williams, 18 Me. 391 22, 128 Neblett v. Macfarland, 92 U. S. 101, 104 122 GASES CITED. 801 Pac* Negley t. Jeffers, 28 Ohio St. 90 ^.,^^^^ 7a Neldefer v. Chastain, 71 Ind. 363 „ . . „ .^ .. ^ 110 Nellls V. Clark, 20 Wend. 24, 4 Hill, 424 « ►. 128 Nelson v. Buncombe, 9 Beav. 211 14 Nesbit V. Burry, 25 Pa. St. 208 88 Nettleton v. Beach, 107 Mass. 499 116 V. Sikes, 8 Mete. (Mass.) 34 4G New V. Swain, 1 Dan, & L. 193 208 Newberry v. Wall, 84 N. Y. 576 79 Newcomb v. Boston & L. R. Co., 115 Mass. 230 106 V. Brackett, 16 Mass. 161 160 V. Earner, 2 Johns. 421, note a 48 Newell V. Radford, L. R. 3 C. P. 52, 37 Law J. C. P. 1 69 V. Randall, 32 Minn. 171, 19 N. W. 972 113 New England Iron Co. v. Gilbert Elevated R. Co., 91 N. Y. 153, 168 234 Newhall v. Central P. R. Co., 51 Cal. 845 224 V. Kingsbury, 131 Mass. 445 90 T. Langdon, 39 Ohio St. 87 95 V. Vargas, 13 Me. 93, 15 Me. 314 215, 219, 225, 226 New Hampshire Mut. Fire Ins. Co. v. Noyes, 32 N. H. 345 8 Newman v. Morris, 4 Har. & McH. 421 37 Newson v. Thornton, 6 East, 17 215 Newton v. Bronson, 13 N. Y. 587 73 New York Tartar Co. v. French, 154 Pa. St. 273, 26 Atl. 425 19G Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252 142 NIchol V. Godts, 10 Exch, 191, 23 Law J. Exch. 314 156 Nichols V. Ashton, 155 Mass. 205, 29 N. E. 519 90 V. Johnson, 10 Conn. 192 69 Nicholson V. Bower, 1 El. & El. 172 55 V. Bradfield Union, L. R. 1 Q. B. 620, 35 Law J. Q. B. 176 189 V. Taylor, 31 Pa. St. 128 88 V. Wilborn, 13 Ga. 467, 469, 475 10, 11 Nickerson v. Darrow, 5 Allen, 419 21 NIell V. Morley, 9 Ves. 478, Ewell, Lead. Cas. 628 13 NIemeyer v. Wright, 75 Va. 239 140 Noakes v. Morey, 30 Ind. 103 65 Noble V. Ward, L. R. 1 Exch. 117, 35 Law J. Exch. 81 73 Noel V. Murray, 13 N. Y. 167 202 Norfolk S. R. Co. v. Barnes, 104 N. C. 25, 10 S. E. 83 101 Norman v. Phillips, 14 Mees. & W. 276, 277 57, 59 Norrington v. Wright, 115 U- S. 188, 203, 204, 6 Sup. Ct. 12 151, 155, 157, 188, 191, 193, 194 Norrls v. Blair, 39 Ind. 90 71 T. Harris, 15 Cal. 226 Ill 802 CASES CITED, North y. Forest, 15 Conn. 400 « ». 44 V, Mendel, 73 Ga. 400 ^ « . . ^ 74 North Pacific L. & M. Co. v. Kerron, 6 Wash. 214, 31 Pac. 595 86 Northrup v. Cook, 39 Mo. 208 56 V. Foot, 14 Wend. 249 142, 146 Northwestern Mut. Fire Ins. Co. v. Blankenshlp, 94 Ind. 535 13 Norton V. Dreyfuss, 106 N. T. 90, 12 N. B. 428 248 V. Gale, 95 111. 533 71 V. Tuttle, 60 111. 130 139 V. Woodrufif, 2 N. Y. 153 3 Norwegian Plow Co. v. Hanthorn, 71 Wis. 529, 37 N. W. 825 68 Nutter V. Wheeler, 2 Low. 346, Fed. Cas. No. 10,384 29 Nutting V. Nutting, 63 N. H. 221 90 Nye V. Iowa City Alcohol Works, 51 Iowa, 129, 50 N. W. 988 245 O O'Brien v. Norrls, 16 Md. 122 216, 217 O'Bryan v. Fitzpatrick, 48 Ark. 487, 3 S. W. 527 142 Odell V. Boston & M. R. R., 109 Mass. 50 88, 100 Odessa Tramways Co. v. Mendel, 8 Ch. Div. 235 148 O'Donell v. Sweeney, 5 Ala. 467 146 O'Donnell v. Leeman, 43 Me. 158 71, 74 Ogg V. Shuter, 1 C. P. Div. 47, reversing L. R. 10 C. P. 159 101, 106, 107 Ogle V. Earl Vane, L, R. 3 Q. B. 272 237 Old Colony R. R. v. Evans, 6 Gray, 25, 31 75 Oliver v. Hunting, 44 Ch. Div. 205 74 Ollivant v. Bayley, 5 Q. B. 288 30, 172 Olmstead v. Niles, 7 N. H. 522 46 Olson V. Sharpless, 53 Minn. 91, 55 N. W. 125 73, 236 Olyphant v. Baker, 5 Denio, 379-383 84, 88 Omaha Coal, Coke & Lime Co. v. Fay, 37 Neb. 68, 55 N. W. 211 172 O'Neil V, Grain, 67 Mo. 250 71 V. Garrett, 6 Iowa, 479 222 V. New York & Silver Peak Min. Co., 3 Nev. 141 42 V. Vermont, 144 U. S. 323, 12 Sup. Ct 693 101 Oppenheim v. Russell, 3 Bos. & P. 42 217 Orcutt V. Nelson, 1 Gray, 536, 541 130, 149 Oriental Bank v. Haskins, 3 Mete. (Mass.) 332 128 Orman v. Hager, 3 N. M. 331, 9 Pac. 363 42 Ormrod v. Huth, 14 Mees. & W. 651 115 Osborn v. Nicholson, 13 Wall. 654 164 Osborne v. Moss, 7 Johns. 161 128 Osgood V. Lewis, 2 Har. & G. 495 150, 163 CASES CITED. 303 Osterhout v. Roberts, 8 Cow. 43 ^.^^^,. 32 Oswego Starch Factory v. Lendrum, 57 Iowa, 573, 10 N. W. 900 115, 123 Ottawa Bottle & FlInt-GIass Co. v. Gunther, 31 Fed. 209 ► 172 Owens V. Lewis, 46 Ind. 48S, 489 46 V. Weedman, 82 111. 409 206, 208 Oxendale v. Wetherell, 9 Barn. & C. 386, 4 Man. & R. 429 31, 190 P Pacific Iron Works r. Long Island R. Co.. 62 N. Y. 272 ^^ 100 Packard v. Dunsmore, 11 Cush. 282 131, 181 V. Richardson, 17 Mass. 122 ►. 70 Paddock v. Strobrldge, 29 VL 471 .^ 112 Paddoa v. Taylor, 44 N. Y. 371 122 Page Y. Carpenter, 10 N. H. 77 96 V. Eduljee, L. R. IP. C. 145 227 V. Morgan, 15 Q. B. DIv. 228 « 58 V. Morse, 128 Mass. 99 « 8 V. Parker, 43 N. H. 363, 368 114 Paine v. Cave, 3 Term R. 148 27 V. Sherwood, 19 Minn. 315 (Gil. 270), 21 Minn. 225 237, 239 Palmer v. Hand, 13 Johns. 434, 435 84, 212 V. Stephens, 1 Denio, 471 75 Pam y. Vilmar, 54 How. Prac. 235 4 Pangborn v. Westlake, 36 Iowa, 546 , 140 Pardee v. Kanady, 100 N. Y. 121, 126, 2 N. E. 885 234 Park V. Darling, 4 Cush. 197 19 Parker v. Baxter, 86 N. Y. 586 89 V. Byrnes, 1 Lowell, 539, Fed. Cas. No. 10,728 115, 208, 211 V. Palmer, 4 Barn. & Aid. 387, 391 174, 199, 200 V. Pettit, 43 N. J. Law, 512 160 V. Russell, 133 Mass. 74 159 T. Schenck, 28 Barb. 38 ,41 V. Staniland, 11 East, 362 ^ ». 45 V. Wallis, 5 El. & Bl. 21 56 Parkinson v. Lee, 2 East, 314 170, 174 Parks V. Hall, 2 Pick. 206, 212 208,213 V. Morris Axe & Tool Co., 54 N. Y. 586 248, 249 Parmlee V. Adolph, 28 Ohio St. 10 ,.115, 116, 124 Parshall v. Eggart, 52 Barb. 367 3 Parson v. Sexton, 4 C. B. 899 245 Parsons v. Loucks, 48 N. Y. 17 41 V. Sutton, 66 N. Y. 92 237, 239 304 CASES CITED. Parsons t. Webb, 8 GreenL (Me.) 38 IT rarton v. Crofts, 16 C. B. (N. S.) 11 80 Pasley v. Freeman, 3 Term R. Bl, 57 118, 168, 166- Tasseuger v. Thorburn, 34 N. Y. 634 24t) Pateshall v. Tranter, 3 Add. & E. 103 244 Pattee v. Greely, 13 Mete. (Mass.) 284 142 Patten v. Thompson, 5 Maule & S. 350 21G Patten's Appeal, 45 Pa. St 151 „ 22& Pattison v. Culton, 33 Ind. 240 224 Pattlson's Appeal, 61 Pa. St. 294 _ 47 Paul V. City of Kenosha, 22 Wis. 257 HO' V. Dod, 2 C. B. 800 234 V. Hadley, 23 Barb. 521 112 V. Reed, 52 N. H. 136 84, 85, 80 Pawleski v. Hargreaves, 47 N. J. Law, 334 42 Peabody v. Maguire, 79 Me. 572, 575, 585, 12 Atl. 630 85, 89 V. Speyers, 56 N. Y. 230 44, 45, 68 Peace River Phosphate Co. v. Grafflin, 58 Fed. 550 194, 239 Pearce v. Brooks, L. R. 1 Exch. 213 135 Pearson v. Dawson, EL, Bl. & El. 448, 27 Law J. Q. B. 248 212 Pease v. Gloahec, L. R. 1 P. C. 219, 220, 229, 3 Moore, P. C. (N. S.) 558 . . 22, 122 Peek V. Gurney, L. R. 6 H. L. 377, 403, 409 113, 116, 117 Peer v. Humphrey, 2 Adol. & E. 495 ^...^...^ 17 Peltier v. Collins, 3 Wend. 459 72, 79 Pence v. Langdon, 99 U. S. 478, 578, 582 120, 124 Penhallow v. Dwlght, 7 Mass. 34 ^.. 48 Penn v. Bornman, 102 111. 523 ^ 140, 146 V. Smith, 98 Ala. 650, 12 South. 818 228 Pennlman v. Hartshorn, 13 Mass. 87 76 Pennington v, Jones, 57 Iowa, 37, 10 N. W. 274 ^ 25 Pennock v. Coe, 23 How. 117 26 Pennsylvania Co. v. Holderman, 69 Ind. 18 195 Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. 671 217, 226 Pennypacker t, Umberger, 22 Pa. St. 492 201 People V. Board of Sup'rs, 27 Cal. 655 115 People's Bank v. Bogart, 81 N. Y. 101 112 Perkins v. Whelan, 116 Mass. 542 167 Perley v. Balch, 23 Pick. 283 120, 244 Perlman v. Sartorius, 162 Pa. St. 320, 29 Atl. 852 184 Perrin v. Wilson, 10 Mo. 451 ^ 10 Perry v. Mt. Hope Iron Co., 16 R. L. 318, 15 Atl. 87 188 Persse, In re, 3 Malloy, 94 ^,,^ 14 CASES CITED. 305 Pag» Peters v. Cooper, 95 Mich. 191, 64 N. W. 694..«..«..^ 232: V. Fleming, 6 Mees. & W. 42, 46 ►. .». H V. Grim, 149 Pa. St. 163, 24 Atl. 192 147 Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291 123 Pettigrew v. Chellis, 41 N. H. 95 115- Pettitt V. Mitchell, 4 Man. & G. 819 197 Phelps V. Comber, 29 Ch. Div. 813 225 V. Hubbard, 51 Vt. 489 179, 183, 228 V. Stillings, 60 N. H. 505 Tl V. Worcester, 11 N. H. 51 9 Phlfer V. Erwin, 100 N. C. 59, 6 S. E. 672 33 Philadelphia Whiting Co. v. Detroit White-Lead Works, 58 Mich. 29, 24 N. W. 881 19» Philadelphia, W. & B. R. Co. v. Woelpper, 64 Pa. St. 36G 26; Philbrook v. Eaton, 134 Mass. 398 241 Phillips V. Bistolli, 2 Barn. & C. 511 30, 59, 61 V. Moor, 71 Me. 78 84 V. Ocmulgee Mills, 55 Ga. 633 56, 69, 96 Phlllpotts V. Evans, 5 Mees. & W. 475 232 Philpot V. Sandwich Manuf g Co., 18 Neb. 54, 24 N. W. 428 & Phippen v. Hyland, 19 U. C. C. P. 416 74J Phipps V. Buckman, 30 Pa. St. 401 IIB Picard v. McCormick, 11 Mich. 69 4 Pickard v. Sears, Adol. & E. 469 22 Pickering v. Bardwell, 21 Wis. 563 228 V. Cease, 79 111. 328 144 V. Ilfracombe Ry. Co., L. R. 3 C. P. 250 14S Pickett V. Bullock, 52 N. H. 354 20T V. Cloud, 1 Bailey, 362 84 Pierce v. Cooley, 56 Mich. 552, 23 N. W. 310 92 V. Corf, L. R. 9 Q. B. 210, 215 74, 78 V. Schenck, 3 Hill, 28 3 V. Wilson, 34 Ala. 596 121 Plerson v. Crooks, 115 N. Y. 539, 22 N. E. 349 197, 24» Pike V. Balch, 38 Me. 302 43 V. King, 16 Iowa, 49 146 Pllgreen v. State, 71 Ala. 368 100, 101 Pinney v. First Division St. P. & P. R. Co., 19 Minn. 251 (Gil. 211) 185' Pitkin V. Noyes, 48 N. H. 294 42: Pitney v. Glen's Falls Ins. Co., 65 N. Y. 6 66 Pitts V. Beckett, 13 Mees. & W. 743 71, 72. Pittsburgh, C. & St. L. Ry. Co. v. Heck, 50 Ind. 303 232. Pitts' Sons Manuf'g Co. v. Poor, 7 111. App. 24 92 Pixley V. Boyuton, 79 111. 351 14& BALES— 20 306 GASES CITED. Pas* Plaisted V. Palmer, 63 Me. 576 143, 146 Piatt V. Brand, 26 Mich. 173 159 Pleasants v. Pendleton, 6 lland. (Va.) 473 95, 96 Plunkett V. PUmkett, 114 Ind. 484, 16 N. E. 612, and 17 N. E. 562 128 Poland V. Brownell, 131 Mass. 138 113 Polhemus v. Heiman, 45 Cal. 573 190, 242, 244, 245 Polhill V. Walter, 3 Barn. & Adol. 114 116 Pollen V. Le Roy, 30 N. Y. 549 228, 229 Poor V. Woodman, 25 Vt. 235 123 Pope V. Allis, 115 U. S. 363, 371, 6 Sup. Ct. 69 157, 242 V. Porter, 102 N. Y. 360, 7 N. E. 304 155, 193, 194 V. Terre Haute Car & Manuf'g Co., 107 N. Y. 61, 13 N. E. 592 185 Poplett V. Stockdale, Ryan & M. 337 134 Porter v. Pool, 62 Ga. 238 162, 248 V. Rose, 12 Johns. 209 179 Posey V. Scales, 55 Ind. 282 179, 186 Potsdamer v. Kruse (Minn.) 58 N. W. 983 Ill Potter V. Taggart, 54 Wis. 395, 400, 11 N. W. 678 121 Potts V. Bell, 8 Term R. 548 136 V. New York & N. E. R. Co., 131 Mass. 455 213, 217 V. Whitehead, 23 N. J. Eq. 512 27 Poulton V. Lattimore, 9 Barn, & C. 259, 265 243-245 Powder Co. v. Burkhardt, 97 U. S. 110 3 Powell V. Bradlee, 9 Gill & J. 220 115 V. McAshan, 28 Mo. 70 48 Power V. Barham, 4 Adol. & E. 473 163, 164 Powers V. Benedict, 88 N. Y. 605 121 V. Bellinger, 54 Wis. 389, 11 N. W. 597 84 Prairie Farmer Co. v. Taylor, 69 111. 440 92 iPratt V. Miller, 109 Mo. 78, 18 S. W. 965 42 V. Parkman, 24 Pick. 42 131 V. Peck, 70 Wis. 620, 36 N. W. 410 103, 200 V. Philbrook, 41 Me. 132 121 Pray, The E. H., 27 Fed. 474 226 Pray v. Burbank, 10 N. H. 377 140, 141 V. Mitchell, 60 Me. 430, 435 44 Prescott V. Locke, 51 N, H. 94 42 Preston v. Crof ut, 1 Conn. 527, note , 128 V. Whitney, 23 Mich. 260 « « 91 Price V. Furman, 27 Vt. 268 7 V. Sanders, 60 Ind. 311 ►. 10 Prichett v. Jones, 4 Rawle, 260 87 Prideaux v. Bunnett, 1 C. B. (N. S.) 613 30 Prime v. Cobb, 63 Me. 200 17 CASES CITED. 807 Page Proctor V. Jones, 2 Car. & P. 532 55 V. Sears, 4 Allen, 95 8 Prosser v. Edmonds, 1 Younge & C. Exch. 499 139 Puckett V. Read, 31 Ark. 131 182 Purner v. Plercy, 40 Md. 212, 223 47, 48 Putnam v. Glldden, 159 Mass. 47, 84 N. B. 81 206, 229 Putney v. Day, 6 N. H. 430 ^ 46 Pyne land, 57. in United States, 59. actual receipt, In general, 60. by agreement, 60, 62. when goods are In possession of seller, 62. when goods are In possession of third person, 63. when goods are In possession of buyer, 64. earnest and part payment, in general, 64. earnest, 65. part payment, 65. note or memorandum, in general, 66. difference between contract In writing and note or memorandum, 67. note or memorandum In the nature of an admission, 68. what note or memorandum must contain, names of parties, 66, 69. price, 70. subject-matter and other terms, 71. parol evidence to show that writing Is not a note or memorandum, 72. parol evidence as to subsequent agreement to modify original con- tract, 72. separate papers, 73. signature of party, 74. agents authorized to sign, 76. who may be agent, 77. auctioneer, 77. broker, 78. effect of noncompliance with the statute, 801 STOCK, whether within statute of frauds, 44. STOPPAGE IN TRANSITU, in general, 213. who may exercise right, 215. against whom right may be exercised, 216L meaning of "transit," 217. delivery on buyer's ship, 218. 346 INDEX. [The figures refer to pages-J STOPPAGE IN TRANSITU— Continued, termination of transit, 220. delivery to buyer, 220. delivery after bankruptcy, 220. delivery to agent, 221. delivery by attomment of carrier, 222. wrongful refusal to deliver, 223. how right may be defeated, 223. how stoppage Is effected, 225. effect of stoppage, 226. duty of carrier when seller stops, 226L SUBSALB, effect of by buyer, 211. SUBSEQUENT APPROPRIATION, see "Property, Transfer of,'' SUIT. sale by, 31. SUNDAY, when day for delivery falls on, 188. SUNDAY SALES, see "Illegality." SUSPENSORY CONDITIONS, 153. T TENDER, actual, need not be shown in action on contract, 170. of payment, 201. THING SOLD, in general, 22, 23. sale of thing which has ceased to exist, 23. sale of thing not yet in existence or acquired, 24. potential existence, 25. wagering contract, 26. sale of chance, 26. effect of mistake as to, 29. destruction of, after contract to sell, but before property has passed, 160. after property has passed, 161. see "Illegality.** TIME. stipulations as to, when of essence, 154. reasonable, for delivery, 182, 185. [The figures refer to pageaj TITLE. implied warranty of, 165. TRANSFER OF PROPERTY, see "Property." TRANSIT, see "Stoppage in Transitu." TRIAL, sale on, 91. V UNASCERTAINED GOODS, when property passes, see "Property, Transfer of,* UNCONDITIONAL SALE. 8a. UNPAID SELLER. rights against goods, 204. USAGE, whether warranty implied from. 108. y VALUATION, agreement to sell ^oodfl at. 33. VOIDABLE TITLE, see "Fraud" and "SaJe." TV) WAGERING CONTRACTS, 28, 143. WAIVER. of performance of condition, 158. of seller's Hen. 205. 207. of right of stoppage In transitu, 2231. WAREHOUSE RECEIPT, transfer of, does not constitute delivery, 181. in some states by statute put on footing of bill of lading, 211, note 84. WARRANTIES, defined. 150. distinguished from condltionfl^ 150. In gMieral, 181. express, 162. how created. 162. known defects. 164. future events, 164. 348 INDEX. [The flguree refer to pages.) WARRANTIES— Continued, Implied warranty of title, 185. none In official sales. 167. ■when action for breach accmes, 16T, Implied warranty of quality, in general, 167. caveat emptor the rule, 168. whether implied from usage, 169. in sale of specific chattel, 170. In sale by description, 171. of fitness for purpose, 171. of merchantableness, 173. In sale of provisions, 173. In sale by sample, 174. that goods are of seller's manufacture, 175. strictly a condition, 175, 242. whether express excludes implied warranty, 1T8L WEIGHING AND MEASURING, when necessary to transfer property, 85, 87. WORK, LABOR, AND MATERIALS, contract for, as distinguished from contract of sale under statxite of frauds, 35, 37. WRITTEN CONTRACT, distiaguished from nota or memorandum, 87. WMBT »< (Uofee, Q§S (P^of. €?ctrfe0 Of). (Uorton. THIRD EDITION: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chapter I. OF NEOOTTABILITU SO FAR AS IT RE- LATES TO BILDS AND NOTES : Cover- ing the origin, puriiose, and indicia of nego- tiability, distinction between negotiability and assignability, and payment by negotia- ble instrument. Chapter H. OP NEGOTIABLE BILLS AND NOTES, AND THEIR FORMAL AND ESSEN- TIAL REQUISITES : Covering definition, form, and essentials, the order, lie promise, specification of parties, capacity of parties, delivery, date, value received, and days of grace. Chapter III. ACCEPTANCE OF BILLS OF EXCHANGE': Covering the various kinds of acceptance, and the rules relating thereto. Chapter IV. INDORSEMENT : Defining and explaining the various kinds of indorsements, and showing their requisites and effect. Chapter V. OF THE NATFRE OP THE LIABILITIES OF THE PARTIES : Covering liability of maker, acceptor, drawer, indorser. rights and liabilities of accommodation and accommo- dated parties, estoppel and waiTanties, and damages for breach. Chapter VI. TRANSFER : Covering definition, validity, and various methods of transfer, and status of overdue paper. Chapter VII. DEFENSES AS AGAINST PURCHASER FOR VALUE WITHOUT NOTICE : Cov- ering the subject generally and fully. Chapter VIIL THE PURCHASER FOR VALUE WITH- OUT NOTICE: Explaining who is, and discussing consideration, good faith, notice, overdue paper, presumption, and burden of proof, etc. Chapter IX. OF PRESENTMENT AND NOTICE OF DIS- HONOR : Covering presentment for accept- ance and for payment, dishonor, protest, no- tice of dishonor, waiver, etc. Chapter X. CHECKS : Covering generally the law relating to checks. APPENDIX: The Negotiable Instruments Law. 1 VOL. 553 PAGES. S3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C649-la (2) (t^ $om6oo^ ^eriee.) ♦ ♦ oCv ♦ ♦ ^an^fiooft of Criminaf ^a% Author of a '< Handbook of the Law of Contracts." SECOND EDITION: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. CHAPTER I. DEFINITION OF CRIME : The nature of crime and ground of punishment. CHAPTER II. CRIMINAL LAW: How the criminal law is pre- scribed; the common law: statutes, and the powers of state and federal legislatures. CHAPTER III. CLASSIFICATION OP CEIMES : As treason, fel- onies, misdemeanors, etc. ; merger of offenses. CHAPTER IV. THE MENTAL ELEMENT IN CRIME: Con- sidering the will, intention, motive, and crim- inal intention or malice. CHAPTER V. PERSONS CAPABLE OF COMMITTING CRIME: Covering also exemption from responsibility, and discussing infancy, insanity, drunkenness, ignorance or mistake of law or of fact, provo- cation, necessity and compulsion, married wo- men and corporations. CHAPTER VI. PARTIES CONCERNED: Covering effect of joining in criminal purpose, principles in first and second degrees, accessories before and after the fact, terms "aider and abettor" and "accomplice. " CHAPTER VII. THE OVERT ACT: Covering also attempts, so- licitation and conspiracy. CHAPTER VIII. OFFENSES AGAINST THE PERSON: Cover- ing homicide, mui-der, and manslaughter, with consideration of the different degrees, acci- dent, self-defense, etc. CHAPTER IX. OFFENSES AGAINST THE PERSON (Contin- ued) : Covering abortion, mayhem, rape, sod- omy, seductioD, assaults, false imprisonment, kidnapping, abduction. CHAPTER X. OFFENSES AGAINST THE HABITATION: Covering arson and burglary. CHAPTER XI. OFFENSES AGAINST PROPERTY: Covering larceny, embezzlement, cheating at common law and by false pretenses, robbery, receiving stolen goods, malicious mischief, forgery, etc. CHAPTER XII. OFFENSES AGAINST THE PUBLIC HEALTH, MORALS, ETC. : Covering nuisances in gen- eral, bigamy, polygamy, adultery, fornication, lewdness, etc. CHAPTER XIIL OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY: Covering barretry, obstruct- ing justice, embracery, prison breach, mispri- sion of felony, compounding crime, perjury, bribery, misconduct in oflflce, etc. CHAPTER XIV. OFFENSES AGAINST THE PUBLIC PEACE Covering dueling, unlawful assembly, riot, affray, forcible entry and detainer, libels on private persons, etc. CHAPTER XV. OFFENSES AGAINST THE GOVERNMENT: Covering treason and misprision of treason. CHAPTER XVI. OFFENSES AGAINST THE LAW OF NA- TIONS: As piracy. <5hapter XVII. JURISDICTION: Covering territorial limits of states and United States, jurisdiction as deter- mined by locality, federal courts and the com- mon law, jurisdiction conferred by congress, persons subject to our laws, eta CHAPTER XVIII. FORMER JEOPARDY: In generaL 1 VOL. 450 PAGES. $3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (3) (t^ jgornfiooft § QS5 TTm. fe. Cforft, 3r., Author of a " Handbook of Criminal Law." CHAPTER I. CONTRACT IN GENERAL: Covering its defi- nition, nature, and requisites, and discussing agreement, obligation, promise, void, voidable, and unenforceable agreements, and the essen- tials of contract, etc. CHAPTER II. OFFER AND ACCEPTANCE: Covering im- plied contracts, necessity for communication and acceptance, character, mode, place, time, and effect of acceptance, revocation, and lapse of offer, etc. CHAPTER III. CLASSIFICATION OF CONTRACTS: Cover- ing contracts of record and contracts under seaV and their characteristics. CHAPTER IV. REQUIREMENT OF WRITING: Covering also statute of frauds, and discussing promise b3' executor, promise to answer for another, agreements in consideration of marriage and in relation to land, and agreements not to Le performed within a year, sufficiency of memo- randum, etc. CHAPTER V. CONSIDERATION: Covering the necessity for consideration, its adequacy, reality, and legal- ity, failure of consideration, etc. CHAPTER VI. CAPACITY OF PARTIES: Covering political and prpfessional status, infants, insane and drunken persons, married women, and corpo- r>.tions. CHAPTER Vn. REALITY OF CONSENT: Covering mistake, misrepresentation, fraud, duress, and undue influence. CHAPTER VIII. LEGALITY OF OBJECT: Covering unlawful agreements in general, agreements in viola- tion of positive law and those contrary to pub- lic policy, effect of illegality, conflict of laws, etc. CHAPTER IX. OPERATION OF CONTRACT: Covering the limits of the contractual relation, assignment of contracts, whether by act of parties or by operation of law, joint and several contracts, etc. CHAPTER X. INTERPRETATION OF CONTRACT: Cover- ing the rules relating to evidence, proof of document, rules of construction, penalties and liquidated damages, etc. CHAPTER XI. DISCHARGE OF CONTRACT: Covering dis- charge by agreement, by performance, by breach, by impossibility of performance, by operation of law, etc., and remedies on breach of contract. CHAPTER XII. AGENCY: Covering the creation of the relation, its effect and determination, the capacity, rights, and liabilities of the parties, etc. CHAPTER XIII. QUASI CONTRACT: Covering obligations cre- ated by law upon which an action ex contractu will lie without proof of contract in fact, in- cluding judgments, obligations imposed by statute, acts of parties, etc. 1 VOL., 932 PAGES, $3,75 DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. (^ iZ^t ^ornfiooil ^^nee.) (§ ^an'bQoo^ of Common ^S^(Xt\> (pfeabin^* (§2 Q?^^)<^^ttt %. ^^ipman. SECOND EDITION. TABLE OF CONTENTS. Chapter I. FORMS OP ACTION : Covering the nature and classification of actions, real, personal, and mixed actions, assumpsit, special and general, debt, covenant, account or account rendered. Chapter II. FORMS OF ACTION (Continued): Covering trespass, trover, case, detinue, replevin, eject- ment, writ of entry, forcible entry and detain- er, etc Chapter III. THE PARTIES TO ACTIONS: Covering actions in form ex contractu and ex delicto, and the consequences of misjoinder or nonjoinder of parties plaintiff or defendant. Chapter IV. THE PROCEEDINGS IN AN ACTION: Cover- ing process, the summons, writ of attachment, appearance, the declaration, demurrer, and va- rious pleas, amendments, etc., the verdict, and proceedings after the verdict, the judgment, and proceedings thereafter to the writ of exe- cution. Chapter V. THE DECLARATION: Statement of cause of action In general; form of declaration; es- sential averments of declaration in special as- sumpsit or on common counts, in debt, cove- nant, account, case, detinue, trover, trespass, replevin, ejectment, and trespass for mesne profits after ejectment. Chapter VI. THE PRODUCTION OF THE ISSUE: Discuss- ing the rules, and covering the demurrer, the pleadings, the traverse, forms of the general issue and of the special traverse, protesta- tions, exceptions, issues in fact and law, etc. Chapter VH. MATERIALITY IN PLEADING: Covering the general rule, variance, limitation of traverse, etc. Chapter VIH. SINGLENESS OR UNITY IN PLEADING: Cov- ering the rules in general, duplicity, immate- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, etc Chapter IX. CERTAINTY IN PLEADING: Covering the venue, time, quantity, quality, and value, names of persons, showing title and author- ity, with subordinate rules, and special re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD- ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings in alternative, positive statements, legal effect, conformance to precedent, commencement and conclusion. Chapter XI. DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplusage, etc Chapter XII. MISCELLANEOUS RULES: Covering con formance to process, alleging damages and production of suit, order of pleading, defense, plea in abatement, dilatory pleaa, etc APPENDIX: Forma. This book embodies such of the rules and principles of Common-Law Pleading as are still recognized and applied in this country. A knowledge of the common-law system is of advantage, if indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. (5) (^0e j^omBooft ^crice.) (g f anbBoog of Coti^titutiomt Saw (gj g. eam;?6cff (gfaca, Author of Black's Law Dictionary, Treatises on Judgments, Tax Titles, etc. TABLE OF CONTENTS. Chapter I. DEFINITIONS AND GENERAL PRINCIPLES: Considering the menning of "Constitutional" and "Unconstitutional; " written and unwrit- ten constitutions, bills of rights, right of revo- lution, political and personal responsibilities, etc. Chapter II. THE UNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc Chapter HI. ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Uonstitu- tiou and of State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OP CONSTITUTIONS: Considering the office and duty of the judiciary in this direction. Chapter V. THE THREE DEPARTMENTS OP GOVERN- MENT: Considering the division, limitations on the departments, political and judicial Questions, etc. Chapter VI. THE FEDERAL EXECUTIVE: Considering the election, qualifications, impeachment, compensation and independence of the Presi- dent, his oath of office, veto power, pardoning and military power, and treaty-making povver ; vacancy in offlcej the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn con- gress, execute the laws, etc. Chapter VIL FEDERAL JURISDICTION: Considering the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc. Chapter VIII. THE POWERS OF CONGRESS: Considering the constitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. INTERSTATB LAW, as determined by the Con- stitution: Considering its general principles, the privileges of citizens, interstate exti-adi- tioD, public acts and judicial proceedings, etc. Chapter X. REPUBLICAN GOVERNMENT GUARANTIED. Chapter XI. EXECUTIVE PO V\ EK IN THE STATES. Chapter XII. JUDICIAL POWERS IN THE STATES: Con- sidering the system of courts, judges, juris- diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES : Con- sidering the organization and government of legislature, limitation and delegation of legis- lative powers, enactment of laws, etc. Chapter XIV. THE POLICE POWER: Considering the police power as vested in congress and iu the states, and its scope and limitations. Chapter XV. THE POWER OF TAXATION: Considering the purposes of taxation, indepeiulcnce of Federal and State governments, limitations on power, taxation and representation, etc Chapter XVI. THE RIGHT OF EMINENT DOMAIN: Defini- tion and nature of the power, constitutional provisions, authority to exercise, public pur- pose, appropriation to new uses, etc Chapter XVII. MUNICIPAL CORPORATIONS: The nature, control, powers, officers and by-laws of mu- nicipal corporations, etc. Chapter XVIII. CIVIL RIGHTS, AND THEIR PROTECTION BY THE CONSTITUTION: Considering rights in general, liberty, due process of law, vested rights, trial by jury, etc. Chapter XIX. POLITICAL AND PUBLIC RIGHTS: Consider- ing citizenship, right of suffrage, freedom of speech, right of assembly and petition, etc Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM- INAL CASES: Considering trial by jury, rights of accused, jeopardy, bail, ex post facto laws, habeas corpus, etc. Chapter XXI. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS: Considering the obligation and the impairment of the contract, power of legislature to contract, remedies on contracts, etc. Chapter XXII. RETROACTIVE LAWS: Considering the validity of retroactive statutes, curative statutes, etc 1 VOL., 740 PAGES, $3.75, DELIVERED. WEST PUBLISHING COMPANY, St. Paul, Minn. C1596 (6) Itd^ ^omfiooS geriee.) TABLE OF CONTENTS. Cliapter I. NATURE AND DEFINITION OF EQUITY. Chapter II. PRINCIPLES DEFINING AND LIMITING JU- RISDICTION : Considering jurisdiction over crimes, adequate legal remedy, complete re- lief, and multiplicity of suits. Chapter HI. THE MAXIMS OF EQUITY: Definition and classLflcation of maxims ; the enabling and re- strictive maxims. Chapter IV. THE DOCTRINES OP EQUITY: Considering estoppel, election, satisfaction, performance, and conversion. Chapter V. THE DOCTRINES OF EQUITY (Continued): Considering conflicting rights of purchasers, assignees, notice, bona fide purchasers, priori- ties, etc. Chapter VI. THE DOCTRINES OF EQUITY (Continued): Considei-ing penalties and forfeitures, liqui- dated damages. Chapter VII. GROUNDS FOR EQUITABLE RELIEF: sidering accident, mistake, fraud, etc. Con- Chapter VIII. PROPERTY IN EQUITY— TRUSTS: Covering definition, history, and classification of trusts, charitable trusts, duties and liabilities of trus- tees, remedies of cestui que trust, etc. Chapter IX. PROPERTY IN EQUITY — MORTGAGES, LIENS, AND ASSIGNMENTS. Chapter X. EQUITABLE REMEDIES: Covering accounting, contribution, exoneration, subrogation, and marshaling. Chapter XI. EQUITABLE REMEDIES (Continued): Cov- ering partition and settlement of boundaries. Chapter XII. EQUITABLE REMEDIES (Continued): Cov- ering specific performance, and considering enforceable contracts, grounds for refusing re- lief, etc. Chapter XIII. EQUITABLE REMEDIES (Continued); Cov- ering injunctions, and considering their juris- dictional principles, classes of cases where remedy may be used, etc. Chapter XIV. REFORMATION, CANCELL A.TION, AND QUIETING TITLE. Chapter XV. ANCILLARY REMEDIES : Covering discovery, bills to perpetuate testimony, interjiieader, receivers, etc. I VOL., 474 PAGES, $375. DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. m t^ ^ornBooft ^criee.) (^ JanbBooft of Cviminai (procedure* ^uf^or of a "^an^Boog of Criminaf fcatw," an^ a l^an^BooS of Contracts." TABLE OF CONTENTS. Chapter I. JURISDICTION: Coveriug courts of criminal ju- risdiction and venue. Chapter II. APPREHENSION OF PERSONS AND PROP- ERTY : Covering arrest in general, warrants, extradition, searches and seizures of properly, and taking property from prisoner. Chapter III. PRELIMINARY EXAMINATION, BAIL. AND COMMITMENT: Covering right to release on bail, habjas corpus, the recognizance, release of sureties, etc. Chapter IV. MODE OF ACCUSATION: Covering the indict- ment and presentment, information, coroner's inquisition, time of prosecutiun, and nolle prosequi, etc. Chapter V. PLEADING — THE ACCUSATION: Covering form of indictment in general, the commence- ment, and the statement of offense and descrip- tion of defendant. Chapter VI. PLEADING — THE ACCUSATION (Continued): Covering allejration of intent, knowledge, etc. ; teqjinical terms; second or third offense, set- ting forth writings; description of property and persons ; ownership. Chapter VII. PLEADING— THE ACCUSATION (Continued): Covering statement of time and place. Chapter VIII. PLEADING— THE ACCUSATION (Continued) J Covering indictments on statutes. Chapter IX. PLEADING— THE ACCUSATION (Continued) : Covering duplicity, joinder of counts and par- ties, election, conclusion of indictment, amend- ment, aider by verdict, etc. Chapter X. PLEADING AND PROOF: Covering varianc and conviction of minor and higher offense. Chapter XI. MOTION TO QUASH: Covering also arraign- ment, demurrer, and pleas of defendant. Chapter XII. TRIAL AND VERDICT: Covering time and place of trial, custody and presence of defendant, bill of particulars, the counsel, judge and jury, arguments and instructions, etc. Chapter XIII. PROCEEDINGS AFTER VERDICT: Covering motion in arrest of judgment, sentence, new trial, writ of error, etc. Chapter XIV. EVIDENCE: Covering facts in issue, motive, res gestae, other crimes, declarations, confes- sions, character, burden of proof, witnesses, etc. Chapter XV* HABEAS CORPUS. rVOL. 658 PACES. $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul. Minn. (8) Z^c J5<^rn6ooft ^eriee. ♦ ♦ ♦ oCv ♦ ♦ ♦ ^ant>6ooft of t^c Satv of ^afee (gg Sr<^nct6 (g. 2:tffanjj, ®. (g., ££. (g. (Jgart^arb). Author of "Tiffany on Death by Wrongful Act." TABLE OF CONTENTS. Chapter I. FORMATION OF THE CONTRACT: Covering the capacity of parties, who may sell, the thing sold, mutual assent, form, and price. Chapter II. FORMATION OF THE CONTRACT (Continued) : Covering the statute of frauds. Chapter III. EFFECT OP THE CONTRACT IN PASSING THE PROPERTY: Covering sales of specific chattels, — unconditional sales, conditional sales, sale on trial or approval, and sale or return. Chapter IV. EFFECT OF THE CONTRACT IN PASSING THE PROPERTY (Continued) : Covering sales of chattels not specific, appropriation of property to the contract, reservation of right of disposal, etc. Chapter V. MISTAKE, FAILURE OF CONSIDERATION, AND FRAUD : Showing the effect of mistake, failure of consideration, and fraud generally, frauds on creditors, the delivery necessary as against creditors and purchasers, etc. Chapter VI. ILLEGALITY: Covering sales prohibited by the common law, by public policy, and by statute; the effect of illegality, and the conflict of laws. Chapter VII. CONDITIONS AND WARRANTIES: Covering conditions and war ranties generally. Chapter VIII. PERFORMANCE: Covering fully delivery, the buyer's right of examination, acceptance, and payment. Chapter IX. RIGHTS OF UNPAID SELLER AGAINST THE GOODS: Covering the seller's lien, stoppage in transitu, and the right of resale. Chapter X. ACTION FOR BREACH OF THE CONTRACT: Covering the various remedies of the seller and of the buyer. \ Volume. 356 Pages. $3.75, Delivered. WEST PUBLISHING CO., St Paul, Minn ( I5<5S Series.) ♦♦(vt** Q0g nrafter ©enton ^mit?. Instructor in the Law Department of the University of Michigan. TABLE OF CONTENTS. Part I-ELEMENTARY JURISPRUDENCE. CHAPTER I. NATURE OF LAW AND THE VARIOUS SYSTEMS: Moral, divine, municipal. International, mari- time and martial law. CHAPTE]p, n. GOVERNMENT AND ITS FUNCTIONS: Covering sovereiprnty, the state, the constitution, and the forms and functions of government generally. CHAPTER m. GOVERNMENT IN THE UNITED STATES: Its general character, sovereignty, distribution of powers, citizenship, etc. CHAPTER IV. THE UNWRITTEN LAW: The Roman, the Canon and the Comjnon law. CHAPTER V. EQUITY: Nature and jurisdiction of equity; max- ims. CHAPTER VI. THE WRITTEN LAW: Relation to unwritten law; statutory law In general. CHAPTER VII. THE AUTHORITIES AND THEIR INTERPRETA- TION: The rank of authorities, rules of inter- pretation, statutory construction, etc. CHAPTER Vni. PERSONS AND PERSONAL RIGHTS: Legal rights, wrongs and remedies, rights in rem and In personam, status, personal security, liberty, property, constitutional guaranties, etc. CHAPTER IX. PROPERTY: Covering, ownership and possession; the Feudal system; corporeal and incorporeal, real and personal, property ; fixtures, etc. CHAPTER X. CLASSIFICATION OF THE LAW: SubstanUve and adjective, public and private law, etc. Part II— THE SUBSTANTIVE LAW. CHAPTER XI. CONSTITUTIONAL AND ADMINISTRATIVE LAW: Written and unwritten constitutions, essentials and construction of constitutions; administra- tive law, etc. CHAPTER XII. CRIMINAL LAW: Covering its general nature, criminal capacity, classification of crimes, pun- ishment, etc. CHAPTER XIII. THE LAW OF DOMESTIC RELATIONS: Cover- ing marriage and its incidents, parent and child, gxiaxdian and ward, master and servant, etc. CHAPTER XrV. CORPOREAL AND INCORPOREAL HEREDITA- MENTS: Covering the subject generally. CHAPTER XV. ESTATES IN REAL PROPERTY: Classification, estates In possession and in expectancy; free- holds and estates less than freehold; estates in severalty, in joint tenancy and in common; ab- solute and conditional, legal and equitable es- tates ; etc. CHAPTER XVI. TITLES TO REAL PROPERTY: Covering title by descent and by purchase, classiflcation and forms of deeds, etc CHAPTER XVn. PERSONAL PROPERTY: Real and personal chat- tels, ownei'sliip of personal property, acquisition of title, etc. CHAPTER XVIH. SUCCESSION AFTER DEATH: Testate and Intes- tate succession, escheat, executors and adminis- trators, etc. CHAPTER XIX. CONTRACTS: Definition, validity and classification of contracts, quasi contracts, etc CHAPTER XX. SPECIAL CONTRACTS: Covering contracts of sale, bailments, negotiable contracts, suretyship, insurance, etc CHAPTER XXI. AGENCY: Covering the subject generally. CHAPTER XXII. COMMERCIAL ASSOCIATIONS: Covering part- nerships, joint stock companies, voluntary asso- ciations, corporations, etc CHAPTER XXni. TORTS: Covering the nature and elements of torts, proximate and remote cause and specific torts. Part III— THE ADJECTIVE LAW. CHAPTER XXIV. REMEDIES: Extralegal and legal, penal and civil, common law and equitable, ordinary and extraor- dinary remedies. CHAPTER XXV. COURTS AND THEIR JURISDICTION: Covering the subject generally. CHAPTER XXVL PROCEDURE: In general; outlines of Common law, equity, code, and criminal procedure. TRIALS: CHAPTER XXVII. Early forms, trial procedure, evidence. 1 VOL. 367 PAGES. $3.75. DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C1112 (14) (C6e f^xn6w>& ^eriee.) (^ ganbBooft of ^Pe^att) of ©ama^e^; Author of "Bailments and Carriers." TABLE OF CONTENTS. CHAPTER I. DEFINTTTONS AND GENERAL PRINCIPLES: Definition, nature and theory of damages; wrong and damage; analysis of legal wrongs; dJLSsification of damages. CHAPTER II. NOMINAL DAMAGES: Definition and general na- ture. CHAPTER III. COMPENSATORY DAMAGES: Definition; proxi- mate and remote consequences; direct and con- sequential losses; avoidable consequences; cer- tainty of damages; profits; entirety of demand; past and future losses; elements of compensa- tion; aggravation and mitigation of damages; reduction of loss; injuries to limited Interests, CHAPTER IV. BONDS, LIQUIDATED DAMAGES AND ALTERNA- TIVE CONTP^CTS: Covering the subject gen- erally. CHAPTER V. INTEREST: Definition; as a debt and as damages; interest on liquidated and unliquidated de- mands; pn overdue paper, — contract and stat- ute rate; compound Interest; etc. CHAPTER VI. VALUE: Definition; how estimated; market value; pretium affectionis; value -peculiar to owner; time and place of assessment; highest interme- diate value; etc. CHAPTER VII. EXEMPLARY DAMAGES: In general; when re- coverable; liability of principal for act of agent; CHAPTER VHI. PLEADING AND PRACTICE: Allegation of dam- age, the ad damnum, form of statement, prov- ince of court and jury, etc CHAPTER IX. BREACH OF CONTRACTS FOR SALE OF GOODS: Damages in action by seller for non-acceptance and non-payment; damages in action by buyer for non-delivery, breach of warranty, and as for conversion. CHAPTER X. DAMAGES IN ACTIONS AGAINST CARRIER: Carriers of goods, — refusal to transport, non- delivery, injury in transit, delay, consequential damages; carriers of passengers, — injuries to passenger exemplary damages, mental suffering, delay, wrongful ejection, etc. CHAPTER XI. DAMAGES m ACTIONS AGAINST TELEGRAPH COMPANIES: Actions by sender and by receiv- er; proximate and certain, remote and specula- tive damages; notice of purpose and importance of messa.ge; cipher messages; avoidable conse- quences; exemplary damages; etc. CHAPTER XII. DAMAGES FOR DEATH BY WRONGFUL ACT: Pecuniary losses; mental suffering:: exemnlary damages; injury to deceased; medical and fu- neral expenses; meaning of pecuniary,^are and support, prospective gilts and inlieritances; in- terest as damages; discretion of jury; nominal damages, etc CHAPTER XIII. WRONGS AFFECTING REAL PROPERTY: Dam- ages for detention of real property; trespass; nuisance; waste; contract to sell real property, — breach by vendor or vendee; breach of cove- nants, etc CHAPTER XIV. BREACH OF MARRIAGE PROMISE: In general, compensatory damages, exemplary damages, etc 1 VOL 476 PAGES. S3.75, DELIVERED, WEST PUBLISHING CO., St. Paul, Minn. CllU (15) IZ^ ^OTnfiocS ^crice.) (^ ganb6ooft of Cpe Satt) of (Ueaf (pvoptvi^* TABLE OF CONTENTS. Chapter I. WHAT IS REAL PROrERTY: Real and personal property, fixtures, equitable conver- BioD, personal interests in laud. Chapter II. TENURE AND SEISIN. Chapter HI. ESTATES AS TO QUANTITY— FEE SIM- PLE: Classification of estates, freehold, fee-simple, creation, right of user and aliena- tion. Chapter IV. ESTATES AS TO QUANTITY (Continued)— ESTATES TAIL: Classes, origin, crea- tion, incidents, duration, tenant in tail aft- er possibility of issue extinct, estates tail in the United States, quasi entail. Chapter V. ESTATES AS TO QUANTITY (Continued)— CONVENTIONAL LIFE ESTATES: Life estates, creation, conventional life es- tates, incidents, estates per autre vie. Chapter VI. ESTATES AS TO QUANTITY (Continued)— LEGAL LIFE ESTATES: Estate during coverture, curtesy, dower, homestead, fed- eral homestead act Chapter VII. ESTATES AS TO QUANTITY (Continued)— LESS THAN FREEHOLD: Estates for years, letting land on shares, tenancies at will, tenancies from year to year, letting of lodgings, tenancies at sufferance, licenses. Chapter VIH. ESTATES AS TO QUALITY ON CONDI- TION—ON LIMITATION: Estates on condition, estates on limitation, base fees. Chapter IX. ESTATES AS TO QUALITY (Continued)— MORTGAGES: Parties, nature, form, rights and liabilities of mortgagor and mort- gagee, assignment of the equity of redemp- tion, assignment of the mortgage, priority of mortgages and other conveyances, regis- tration, discharge of a mortgage. Chapter X. EQUITABLE ESTATES: Statute of Me«, classification of trusts, — express, implied, resulting, constructive, — incidents of equita- ble estates, charitable trusts. Chapter XI. ESTATES AS TO TIME OP ENJOYMENT —FUTURE ESTATES: Reversions, possi- bilities of reverter, remainders, rule in Shel- ley's Case, future uses, springing uses, shifting uses, executory devises, incidents of future estates. Chapter XH. ESTATES AS TO NUMBER OP OWNERS —JOINT ESTATES: Joint tenancies, ten- ancies in common, estates in coparcenary, estates in entirety, estates in partnership, incidents of joint estates, partition. Chapter XIII. INCORPOREAL HEREDITAMENTS: Easements, creation, classification, inci- dents, destruction, rights of way, highways, light and air, lateral and subjacent sup- port, party walls, easements in water, prof- its a prendre, rents, franchises. Chapter XIV. LEGAL CAPACITY TO HQLD AND CON- VEY REALTY: Infants, persons of un- sound mind, married women, aliens, corpo- rations. Chapter XV. RESTRAINTS . ON ALIENATION: Re- straints imposed by law, restraints in favor of creditors, restraints imposed in creation of estate. Chapter XVI. TITLE: Acquisition of title by state and pri- vate persons, grant from state, conveyan- ces, common-law conveyances, conveyances- under statute of uses, modern statutory con- veyances, registered titles, requisites of deeds; covenants for title, seisin, against incumbrances, warranty, further assurance; estoppel, adverse possession, accretion, de- vise, descent, judicial process; conveyance* under licenses, under duress; tax titles, em- inent domain. 1 VOL. 589 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. CI 19 la (i<^> (^ 35<^nb6oo6 of C^e Batj? of (pereonef avti ©omeefic Q^ePafione, TABLE OF PART I. HUSBAND AND WIFE. Chapter I. MARRIAGE: Covering definition and essen- tials; capacity of parties; reality of con- sent; formalities in celebration; annul- ment and avoidance; validating acts; con- flict of laws, etc. Cliapter H. PERSONS OP THE SPOUSES AS AF- FECTED BY COVERTURE: Covering rights inter se; crimes and torts of married women; crimes and torts as between hus- band and wife; torts against married wo- men; actions for alienation of affections; crim. con., etc. Chapter III. RIGHTS IN PROPERTY AS AFFECTED BY COVERTURE: Covering wife's earn- ings; wife's choses in action and in posses- sion; wife's chattels real; administration of wife's estate; equitable and statutory separate estate; community property; cur- tesy; dower; estates by the entirety, etc. Chapter IV. CONTRACTS, CONVEYANCES, ETC., AND QUASI-CONTRACTUAL OBLI- GATIONS: Covering, inter alia, husband's liability for wife's necessaries, antenuptial debts, and funeral expenses; wife as a sole trader; wife as husband's agent; convey- ances, sales, and gifts by the wife, etc. Chapter V. WIFE'S EQUITABLE AND STATUTORY SEPARATE ESTATE: Covering their nature; jus disponendi; power to charge by contract, etc. Chapter VI. ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS: Covering the subject generally, including marriage as a consid- eration; the statute of frauds; validity against creditors and purchasers, etc. Chapter VII. SEPARATION AND DIVORCE: Covering agreements for separation; jurisdiction to grant divorce; grounds for divorce; de- fenses in actions for divorce; legislative di- vorce, etc. PART II. PARENT AND CHILD. Chapter VIII. LEGITIMACY, ILLEGITIMACY, AND ADOPTION: Covering legitimacy of chil- dren; adoption of children; status of illegiti- mate children. CONTENTS. Chapter IX. DUTIES AND LIABILITIES OF PAR- ENTS: Maintenance, protection, and edu- cation of child; allowance out of child's estate; child as parent's agent; parent's lia- bility for crimes and torts of child, etc. Chapter X. RIGHTS OF PARENTS AND OF CHIL- DREN: Right to custody; service and earnings of child; correction of child; emancipation of children; action by parent for injuries to child; gifts, contracts, and conveyances between; advancements; duty to support parent; domicile of child, etc. PART III. GUARDIAN AND WARD. Chapter XI. GUARDIANS DEFINED — SELECTION AND APPOINTMENT: Covering natural guardians; testamentary guardians; statu- tory guardians; guardians by estoppel; guardians of insane persons; guardians ad litem, etc. Chapter XII. RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS: Right to custody and serv- ices of ward; maintenance of ward; change of ward's domicile; management of ward's estate; foreign guardians; inventory and accounts; compensation of guardian; trans- actions between guardian and ward, etc Chapter XIII. TERMINA'TION OF GUARDIANSHIP — ENFORCING GUARDIAN'S LIABILI- TY: Covering the subject generally. PART IV. INFANTS, PERSONS NON COMPOTES MENTIS, AND ALIENS. Chapter XIV. INFANTS: Covering contracts of infants, in- cluding ratification and disaffirmance; lia- bilities for necessaries, etc.; capacity to hold office, to make a will, and as witness- es; liability for torts and crimes; infants fU9 parties to actions, etc. Chapter XV. PERSONS NON COMPOTES MENTIS AND ALIENS: Covering insane and drunken persons, their contracts, their lia- bility for torts and crimes and testament- ary capacity, etc. PART V. MASTER AND SERVANT. Chapter XVI. CREATION AND TERMINATION OP RE- LATION: Remedies for breach of con- tract; rights and duties and liabilities inter se and as to third persons, etc C1243 1 VOLUME. 589 PAGES. $3.75, DELIVERED. WEST PUBLISHING COMPANY, ST. PAUL, MINN. (17) (3n f^ i^mfioofi ^eries.) tbe caw V." . (B)cuu(ot6 atib ^hmimBttdoxe By $imon 6re(nleaf ero$well, Anthor of •« Electricity,** "Patent Cases," eta TABLE OF CONTENTS. Ptrt !.— DEFINITIONS AND DIVISION OF SUBJECT. Chapter I. DBFINITIONS AND DIVISION OF SUBJECT: Ex- ecutors uid Administrators defined; analysis of book. Pari II.— APPOINTMENT AND QUALIFICATIONS. Chapter II. APPOINTMENT IN COURT: Necessity of adminis- tration; necessity of appointment by court; ju- risdiction; conclusiveness of decrees of probate courts, etc • Chapter HI. PLACE AND TIME OF APPOINTMENT AND REQ- UISITES THEREFOR: Place of appointment; property necessary to give Jurisdiction; time limit for application. Chapter IV. WHO MAY CLAIM APPOINTMENT A3 EXECU- TOR: Designation In will; appointment by dele- gation; executor of executor; non-aasignability of office. Chapter V. WHO MAT CLAIM THE RIGHT TO ADMINISTER: Principle which governs the right; order of pre- cedenc«; creditors; preferences among kindred, etc Chapter VI. DISQUALIFICATIONS FOR THE OFFICE OF EX- ECUTOR OR ADMINISTRATOR: Infants, mar- ried women, idiots, lunatics, convicts, corpora- tions; poverty and insolvency; absolute and dis- cretionary Incompetency, etc. Chapter VII. ACCEPTANCE OR RENUNCIATION: Implied renunciation. Express or Chapter VIII. PROCEEDINGS FOR APPOINTMENT OF EXECU- TORS AND ADMINISTRATORS: In general. Chapter IX. SPECIAL KINDS OF ADMINISTRATIONS: Admin- istration cum testamento annexo; de bonis non; during minority; pendente lite; public adminis- trator; executor de son tort, etc Chapter X. FOREIGN AND INTERSTATE ADMINISTRATION: Validity of foreign wills; territorial limit of va- lidity of letters; principal and ancillary adminis- tration; conflict of laws; comity, etc. Chapter XI. JOINT EXECUTORS AND ADMINISTRATORS: Na- ture of estate; rights, powers and llabliUles; rem- «dlee between, etc Chapter XII. ADMINISTRATION BONDS: KeneraJly. I Vol. 696 Pages. $3.75, Net, Delivered. C1395 Corerlns the rabject Part III.— POWERS AND DUTIES. Chapter XIII. INVENTORY— APPRAISEMENT— NOTICE OF AP- POINTMENT: Covering the subject generally. Chapter XIV. ASSETS OF THE ESTATE: What are assets; fix- tures; emblements; animals; ownership at time of dealh, etc Chapter XV. MANAGEMENT OF THE ESTATE: Rights and lia- bilities of executors or administrators; collection and Investment of assets, taxation, etc Chapter XVI. SALES AND CONVEYANCES OF PERSONAL OR REAL ASSETS: Covering sales In general, sales of land to pay debts, power to mortgage, etc. Chapter XVII. PAYMENT OF DEBTS AND ALLOWANCES— IN- SOLVENT ESTATES: Covering priority of debts, widow's allowance, expenses of funeral and last illness, costs of administration; presentation and allowance of claims, Insolvent estates, etc. Chapter XVIII. PAYMENT OF LEGACIES: Legacies subordinate to debts; ademption and abatement of legacies; priority between legacies and contingent, future or unknown debts; payment of legacies. Interest, etc. Chapter XIX. DISTRIBUTION OF INTESTATE ESTATES: Order, time and mode of distribution; rights of husband, widow and next of kin, right of presentation, payment of distributive share, etc Chapter XX. ADMINISTRATION ACCOUNTS: Time and manner of accounting, charges and allowances in account; commissions and compensation, etc. Part IV.— TERMINATION OF OFFICE. Chapter XXI. REVOCATION OF LETTERS— REMOVAL— RESIG- NATION: Covering the subject generally. Pari v.— REMEDIES. Chapter XXII. ACTIONS BY EXECUTORS AND ADMINISTRA- TORS: Power to sue before probate or grant of letters; survival of actions; actions in personal and representative capacity, etc. Chapter XXIIL ACTIONS AGAINST EXECUTORS AND ADMIN- ISTRATORS: Survival of actions; particular lia- bilities; attachment and garnishment; Judgments, executions and other proceedings; order of liabil- ity of assets; suits on bonds, etc. Chapter XXIV. STATUTE OF LIMITATIONS— SET-OFF: General and special statute of limitations, aet-off, etc Chapter XXV. EVIDENCE AND COSTS: Covering the subject generally. me$t Publisbiitd Co., $t. Paul, minn. (18) @ 156ooR of t^t BaD? of ^cixtuv&^ip (§2 ^iffiant (Beorge. TABLE OF CONTENTS. Chapter I. DEFINITION AND ESTABLISHMENT OF RELATION: What constitutes a partuer- ship; tests of intention; sharing profits; pro- moters of corporations; defective corpora- tion; delectus personarum; subpartnerships; holding out, etc. Chapter II. KINDS OF PARTNERSHIPS AND PART- NERS: Classification of partnerships and partners; universal, general, and special part- nerships; limited partnerships; joint-stock companies; mining partnerships; trading and nontrading partnerships, etc. Chapter III. CHARACTERISTIC FEATURES OF PARTNERSHIPS: Legal and mercantile view of a firm; partnership name; partner- ship property; partnership capital; shares in partnerships, etc. Chapter IV. IMPLIED RIGHTS AND LIABILITIES IN- TER SE: Participation in management; rights and powers of majority; duty to ex- ercise care, skill, and good faith; right to compete with firm; compensation for serv- ices; interest on balances; partner's lien; division of profits, etc. Chapter V. ARTICLES OF PARTNERSHIP: Purpose and effect; rules of construction; usual clauses in articles, etc.; covering the subject generally. Chapter VI. RIGHTS AND LIABILITIES AS TO THIRD PERSONS: Express and implied authority of partner to bind firm; particu- lar powers; liability of partners to third persons; Incoming partners; assumption of debts; rights in firm and separate property, etc Chapter VU. ' ACTIONS BETWEEN PARTNERS: Action on partnership claim or liability, at law, in equity, or under the code; actions between firms with a common member; actions on individual obligations; equitable actions in general; accounting and dissolution; spe- cific performance; injunction; receivers, etc. Chapter VIII. ACTIONS BETWEEN PARTNERS AND THIRD Pl^iiSONS: Parties in actions by and against partners; effect of changes in firm; disqualification of one partner to sue; action in firm name, etc. Chapter IX. DISSOLUTION: Causes of dissolution; part- nerships for a definite and indefinite time; causes subject to stipulation; causes not sub- ject to stipulation; causes for which a court will decree a dissolution; consequences of dissolution as to third persons and as to partners. Chapter X. LIMITED PARTNERSHIPS: Covering the subject exhaustively, including, inter alia, definition and establisliment of relation; general and special members; certificate; contribution of general and special partners; name; sign; rights and liabilities; with- drawal, alteration, and interference; insol- vency; termination of relation; change from limited to general liability; actions, etc Chapter XI. JOINT-STOCK COMPANIES: Definition and nature; transfer of shares; powers of mem- bers and officers; rights and liabilities; ac- I tions, etc. I Volume, 6i6 pages. $3.75, net, delivered. West Publishing Co , St. Paul, Minn. C1471 <^) (3« t5e J^ornBooft ^eriee.) (^ j^anbBooK of (Sc|ui(g (pfeabing* Author of " Shipman's Common-Law Pleading.** TABLE OF CONTENTS. Chapter I. EQUITY PLEADING IN GENERAL: Cov- ering nature and scope of pleadings in eq- uity. Chapter II. PARTIES: Giving general rules, and covering classification of parties as necessary, proper but not indispensable, formal, and parties with separable interests; parties complain- ant and respondent; joinder, etc. Chapter III. PROCEEDINGS IN AN EQUITABLE SUIT: Indicating the steps usually taken and the method of procedure, as the bill, appearance, proceedings on default; the modes of defense, by disclaimer, demurrer, plea, or answer; the replication; interlocu- tory proceedings, as amendment, injunc- tions, production of documents, interven- tion; the evidence, hearing, and decree; the correction, reversal, or enforcement of de- crees, etc. Chapter IV. BILLS IN EQUITY: Covering definition and classification, and discussing original bills, and bills not original, with a summary of the general rules covering the bill, etc. Chapt^er V. THE DISCLAIMER: Definition, nature, and use. Chapter VI. DEMURRER: Definition; form of demurrer, and grounds therefor; orders sustaining or overruling demurrer, etc. Chapter VII. THE PLEA: Definition, nature, and office of pleas, grounds for pleas, their form, support- ing answers, etc. Chapter VHI. THE ANSWER: Nature and office, substance and effect, of the answer, and the character- istics thereof. Chapter IX. THE REPLICATION. 644 PAGES. $3.75, NET, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. CI680 (21) (€?e l^ornfiooil ^enc6.) (^ ganbBooft of €^c Saw of (Em^ence* <§1S %oh 3<»s {Blc(Kcft>ts, ^. aXl.. ££. QB., Author of "Common-Law Pleading," etc. TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY: Definitions; origin, place and function of the law of evidence, etc. CHAPTER II. JUDICIAL NOTICE: The doctrine in general; facts which may or must be noticed. CHAPTER III. QUESTIONS OF LAW AND QUESTIONS OF FACT: Definitions; province of court and jury. CHAPTER IV. BURDEN OP PROOF^ Burden of proof never shifts; burden of proceeding may shift; ver- dict, etc. CHAPTER V. PRESUMPTIONS: Presumptions as rules of law; prima facie, conclusive, spurious, and conflicting presumptions. CHAPTER VI. ADMISSIONS: Direct and indirect admissions; admissibility; civil and criminal cases; ef- fect of admission, etc. CHAPTER VII. CONFESSIONS: Defined; voluntary or under influence; may be explained; evidence there- from, etc. CHAPTER VIII. MATTERS EXCLUDED AS UNIMPOR- TANT, OR AS MISLEADING, THOUGH LOGICALLY RELEVANT: Logical and le- gal relevancy, rule excluding; classification of matter; proof of diverse matters consid- ered. CHAPTER IX. CHARACTER: General rule; how proved, etc. when material; CHAPTER X. OPINION EVIDENCE: Matter of opinion dis- tinguished from matter of fact; general rule; exceptions; matters forming subject of ex- pert opinion, etc. CHAPTER XI. HEARSAY: General rule; exceptions; real and appaient; classes of statements admit- ted because of ttie difficulty of other proof. CHAPTER XII, WITNESSES: Rules excluding witnesses; per- sons excluded; privilege distinguished from disqualification; privileged persons. CHAPTER XIII. EXAMINATION OF WITNESSES: Ordinary method; refreshing memory; direct and cross examination; leading questions; im- peachiDg witness, etc. CHAPTER XIV. WRITINGS: Bf st evidence rule; production of documents; authentication of documents; proof of handwriting; evidence affecting the contents of documents, etc. CHAPTER XV. DEMURRERS TO EVIDENCE: Definition; when joinder compelled; final form, etc. 1 vol. 480 pages. $3.75, net, delivered. WEST PUBLISHING CO., 5t. Paul, Minn. C1837 (22) (C5e jl0OTn6oo& ^eriee.) (^ ganl>6ooft of ^Pe Saw of (Uegfi^ence^ TABLE OF CONTENTS. Chapter I. DEFINITION AND ESSENTIAL ELE- MENTS : Considering also proximate cause ; efl5cient, intervening, or co-operating cause, etc. Chapter II. CONTRIBUTORY NEGLIGENCE: Defini- tion and general rule ; degree of care ; as- sumption of risk and legal status of plain- tiff ; plaintiff's negligence ; negligence of third persons ; imputed negligence ; phys- ical condition as an element ; evidence, pleading, and questions of fact. Chapter III. LIABILITY OF MASTER TO SERVANT: Duty of master, as to appliances, selecting servants, rules, etc. ; limitation of master's duty ; ordinary risks, known dangers, fel- low servants ; concurrent and contributory negligence. Chapter IV. LIABILITY OF MASTER TO THIRD PER- SONS : Relationship ; independent con- tractor; willful torts of servants, and inde- pendent torts. Chapter V. COMMON CARRIERS OF PASSENGERS : The relation of passenger and carrier ; ter- mination of relation ; who are passengers ; the contract, ticket, compensation, etc. Chapter VI. CARRIERS OF GOODS : Definition ; liabili- ty for loss or damage ; liability for delay ; contracts limiting liability in special states; limiting time and manner of making claims ; construction of limiting contracts ; actual notice ; special classes of goods, as live stock and baggage ; beginning and termina- tion of liability ; excuses for nondelivery. Chapter VH. OCCUPATION AND USB OF LAND AND WATER: Duties,— general rule; lateral support ; dangerous t<"emises ; landlord and tenant, and condition of rented premises ; water courses ; dams ; obstruction of navi- gable streams, etc. Chapter VIII. DANGEROUS INSTRUMENTALITIES : Railroads ; degree of care exacted ; signals ; care required of persons ; collisions with persons and with animals ; fires ; inten- tional, accidental, and railroad fires ; ani- mals ; communicating disease ; firearms, ex- plosives, poisons, etc. Chapter IX. NEGLIGENCE OF ATTORNEYS, PHYSI- CIANS, AND PUBLIC OFFICERS: Negligence of attorneys ; damage essential to liability ; negligence of physicians ; bur- den of proof, evidence, pleading, etc. ; negli- gence of public and governmental officers, ministerial officers, sheriffs and constables, notaries public, clerks of court, and registers of deeds. Chapter X. DEATH BY WRONGFUL ACT : Right of ac- tion ; instantaneous death, proximate cause of death, beneficiaries ; damages ; pleading and evidence ; limitation of commencement of action. Chapter XI. NEGLIGENCE OF MUNICIPAL CORPO- RATIONS : Public and private corpora- tions ; right of action ; liability for inju- ries ; alteration of grades ; acts of officers or agents ; acts ultra vires ; judicial or leg- islative duties ; conflagrations and destruc- tion by mobs ; public health and sanitation ; quasi municipal corporations. 1 VOL. 634 PAGES. $3.75, DELIVERED. WEST PUBLISHING C0.,5t. Paul, Minn. C2788-1 (23) {€U ^oxn&oo& ^ertC6.) QSj 3amee ^. C The Act of June 26, 1884. 4. Section 941, Rev. St., as Amended, Regulat- ing Bonding of Vessels. 5. Statutes Regulating Evidence in the Federal Courts. 6. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. 1 volume, 503 Pages. $3.75 delivered. WEST PUBLISHING CO., St. Paul. Minn C8663 (25) (^ f anbBooft of t^t Jlatt) of (principaf anb dtlgenf. Author of Death by Wrongful Act, Law of Sales, etc TABLE OF CONTENTS. Part I. IN GENERAL. Chap. I. Introductory — Definitions. II. Creation of the Relation of Principal and Agent — Appointment. III. Same (continued) — Ratification. IV. What Acts Can be Done by Agent — Illegality — Capacity of Parties — Joint Principals and Agents. V. Delegation by Agent — Subagents. VI. Termination of the Relation. VII. Construction of Authority. Part II. BIGHTS AND LIABILITIES BET^VEEN PBINCIPAL AND THIRD PERSON. VIII. Liability of Principal to Third Person — Contract. IX. Same (continued). X. Admissions by Agent — Notice to Agent. XI. Liability of Principal to Third Person — Torts and Crimes. XII. Liability of Third Person to Principal. Part ni. BIGHTS AND LIABILITIES BETWEEN AGENT AND THIRD PER- SON. XIII. Liability of Agent to Third Person (including parties to contracts). XIV. Liability of Third Person to Agent Part IV. RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND AGENT. XV. Duties of Agent to Principal. XVI. Duties of Principal to Agent Appendix. WEST PUBLISHING CO., St Paul, Hinn (26) 4-> ^^e &m of (Biffe. ^ •!•♦> 11 By GEORGE E. GARDNER, Professor in the Boston University Law SchooL ^4 IN THE HORNBOOK SERIES. $3.75 DELIVERED. I? ♦*♦•> %t TABLE OF CONTENTS. 11 Chap. *:**:* I. History of Wills — Introduction. i^ 2. Form of Wills. 'XX 3. Nuncupative, Holographic, Conditional Wills.. %\ 4. Agreements to Make Wills, and Wills Resulting from Agreement. 'H* 5- Who may be a Testator. •j**:* 6. Restraint upon Power of Testamentary Disposition — Who may X% be Beneficiaries — What may be Disposed of by WilL XX 7. Mistake, Fraud, and Undue Influence. !0« 8. Execution of Wills. *4i* 9. Revocation and Republication of Wills, *}f^ 10. Conflict of Laws, 4% II. Probate of Wills. y * !i*X 12. Actions for the Construction of Wills. XX •!-|« 13. Construction of Wills — Controlling Principles, •!♦•!♦ 14. Construction-;-Description of Subject-Matter. 1v« ^5- Construction — Description of Beneficiary. yX 16. Construction — Nature and Duration of Interests. yX ^X 17. Construction — ^Vested and Contingent Interests — Remainders— ♦♦.•!♦ Executory Devises. •!•♦? 18. Construction — Conditions. »♦.♦!♦ ♦{♦•:* 19. Construction — ^Testamentary Trusts and Powers. •♦•*:* 20. Legacies — General — Specific — Demonstrative — Cumulative *:*!♦! — Lapsed and Void — Abatement — Ademption — Advancements. *»*.:♦ 21. Legacies Charged upon Land or Other Property. *<0 22. Payment of the Testator's Debts. ♦t 2-\. Election. 24- Rights of Beneficiaries not Previously Discussed. 04370 (27) iZU J5<^rn6ooft ^erice.) Federal Jurisdiction and Procedure By ROBE.RT M. HUGHES. of the Norfolk Bar; author of "Hughes on Admiralty," and lecturer at the George Washington University Law School. TABLE OF CONTENTS. Introduction — What It Comprehonds. The District Court — Its Criminal Juris- diction and Practice. Same — Continued. The District Court — Criminal Jurisdiction — Miscellaneous Jurisdiction. The District Court — Bankruptcy. 6-7-8. Same — Continued. 9. The District Court — Miscellaneous Juris- diction. 10. The Circuit Court — Original Jurisdiction. 11-12. Same — Continued. 13. The Circuit Court — Jurisdiction by Re- moval. 14-15. Same — Continued. IG. 17. 18. 19. 20. 21. 22. The Circuit Court — Jurisdiction by Re- moval — Original Jurisdiction of the Su- preme Court — Other Minor Courts of Oriffinal Jurisdiction. Procedure in the Ordinary Federal Courts of Original Jurisdiction — Courts of Law. Procedure in the Ordinary Federal Courts of Original Jurisdiction — Courts of Equity. Same — Continued. Appellate Jurisdiction — The Circuit Court of Appeals. Appellate Jurisdiction — The Supreme Court. Procedure on Error and Appeal. The U. S. Supreme Court Rules and the Rules of Practice for the Courts of Equity of the United States are given in an Appendix. 1 volume, 634 pages. $3.75 delivered. West Publishing Co., C5774 St. Paul, Minn (28) ^■^■IHI^MWM^MS^^BtfBMtfi 3n t^e ^oxnioo^ ^zxm* public Corporations By HENRY H. INGERSOLL, LL. D., Dean of the University of Tennessee School of Law. /zf PART I. QUASI CORPORATIONS. Chap. I. Nature, Creation, Classification. II. Quasi Corporations — Liabilities, Ele- ments, Counties, Property, etc. III. Same — Continued. IV. Same — Continued. PART II. MUNICIPAL CORPORATIONS. V. Municipal Corporations. VI. Their Creation — How — By what Bodies — Subject to what Restric- tions, etc. VII. Their Alteration and Dissolution. VIII. The Charter. IX. Legislative Control. X. Proceedings and Ordinances. XI. Officers, Agents, and Employes. XII. Contracts. XIII. Improvements. XIV. Police Powers and Regulations. XV. Streets, Sewers, Parks, and Public Buildings. XVI. Torts. XVII. Debts, Funds, Expenses, and Admin- istration. XVIII. Taxation. XIX. Actions. PART III. QUASI PUBLIC CORPORATIONS. XX. Quasi Public Corporations. XXI. Railroads. XXII. Electric Companies. XXIII. Water and Gas Companies. XXIV. Other Quasi Public Corporations. >e/ 738 Pages. $3.75 delivered. Qlest publishing Co., St. paul, jMinn. (2!»j (3n ik JgornBooil ^cnce.) A Handbook on the Law of INSURANCE, By WILLIAM RE^YNOLDS VANCE, Professor of La'wr in the George Washington University. The principal object of this treatise is to give a consistent statement of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the rules peculiar to the several different kinds of insurance. Special attention has been given to the construction of the standard fire policy. This treatment will help to bring about, we believe, the much desired clarification of this branch of the law. The chapters cover, — Historical and Introductory. Nature and Requisites of Con- tract. Parties. Insurable Interest. Making the Contract. The Consideration. Consent of the Parties ~ Con- cealment. Consent of the Parties — War- ranties. Agents and Their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy-. Marine Insurance. Accident Insurance. Guaranty, Credit^ and Liability Insurance. Appendix. 1 volume, 683 pages. $3.75 delivered. WEST PUBLISHING CO., St. Paul, Minn, C4730a (30) Principles and Precedents The following letter expresses so pithily the present tendencies in the use of law books that we gladly print it in full. S. B. POUND, ROSCOE POUND, ATTORNEYS AT LAW. Rooms 125. 126, 127. Burr Block. Lincoln, Neb., November 6th, 1896. West Publishing Co., St. Paul, Minn. Gentlemen: I regard the plan of your Hornbook Series as a very happy one. The tendency has been very marked for some years to make text books little more than unwieldy digests. Such text books are soon obsolete, and the expense of new editions is large. The rapid development of digest making cannot fail to result in superseding the text-book digest by the digest pure and simple. With your Century Digest when it appears, and the Annuals, there will be no need for the ordinary text book. But for this very reason there will be, and there now is, a greater need for such books as those of the Hornbook Series. For au- thorities and cases in point we must go to the digests; but in order to be sure that we are right before we go ahead, we must have some ideas as to what we are to look for. I have found several of the Hornbooks of great use for this purpose. You are also to be congratulated upon the writers whom you have chosen to do the work. Several who bid fair to take very high rank among legal authors have made their first appearance as contributors to the series. While lawyers have been debating how to reform official reporting, you have made the decisions of all our courts accessible to the pro- fession at comparatively slight expense. While critics are deploring the degeneration of text books, as they deem it, you are again coming to our assistance by providing text books that combine scientific treat- ment with practical usefulness. The profession require the former as well as the latter, but in a busy age the latter is an imperative necessity. Yours very truly, ROSCOE POUND. CI 299 (31) ''The ideal legal text-book of to-day is not so much one that enables the busy lawyer to find authorities — the dio^ests and encyclope- dias do this — as one that refreshes his mmd on the fundamental principles of law that underlie his case * * * The Hornbook Se- ries offers the practitioner a most convenient opportunity to quickly review the main- springs of the law having relation to the subject in his mind at any particular time." — Central Law Joiirnal, **Too much cannot be said in commen- dation of that feature peculiar to the Hornbook Series, to wit, concisely stat- ing the leading principles in black-letter type. It not only furnishes the lawyer with the most convenient method of quick- ly reviewing the general principles of a subject, but it tends to insure careful and accurate statement on the part of the au- thor." — Virginia Law Register, C4S20a LAW LIBRARY UISflVERSn Y OF CALIFORNIA JLOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACIUTY AA 000 830 990 8