THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ILLUSTRATIVE CASES IN SALES BY PHILIP T. VAN ZILE Dean, Detroit College of Law, Deiroit, Mich. ST. PAUL WEST PUBLISHING CO. 1896 T Copyright, 189G. BY WEST PUBLISHING COMPANY. ? f- These cases liave been selected, net as leadiiij; eases, but as ilhis- trative cases, to be used in connection with ni.v lectures before the law classes in the Detroit Colleji;e of Law. It is not pretended that the subject of Sales has been coviM-ed by these cases, but sinijiiv thai some of the jMinripal suiidivisions have been illustrated. PHILIl' T. VAN ZILE, Dean. Detroit College of Law. Detroit. .Midi.. Sciit. inli. ISllC. VAN ZILK SEL.CAS.SALIis. (iiii* 740123 TABLE OF CONTENTS. SALE DEFINED. A sale is the transfer of property in a thing for a price in money, or a consid- eration stated in money terms. THE CONTRACT OF SALE. Page To be valid, the minds of the parties to the sale must meet as to all the requi- sites of a valid sale. There must be mutualitv. — Topliff V. McKendree 3 Deyo T. Vaughn 4 There must be a consideration. — Tuttle T. Campbell. G TIME OF PAYMENT. ^n the absence of stipulation, express or implied, it is prestimed that payment will V)e made upon delivery. — Mclver v. Williams 9 "A contract for the sale of building mate- rials which specifies no time of payment of the purchase price will be construed as contemplating payment on delivery." — Lnmont v. I>a Fevre 10 SALE DISTINGUISHED FROM BAIL- MENT. — Crosby v. Delaware & H. Canal Co.. 12 If the identical thing is to be returned, though in altered form, as logs into lum- ber, wheat into flour, the transaction is a bailment. — Irons V. Kentner 15 But. if identical article is not to be return- ed, it is a sale or exchange, according to the nature of thei consideration. ^Sturm V. Boker 16 Crosby v. Delaware & H. Canal Co.. 25 •Tones v. Kemp 26 INFANTS. Contracts of Sale by Infants not Void, bnt Voidable. An infant may liiud himself for necessa- ries: and an executed contract of pur- chase, if reasonable, or not so unreason- able as to be evidence of fraud or undue advantage, cannot be repudiated by him. —Welch V. Olmstead 27 .Johnson v. Northwestern Mut. Life Ins. Co 28 Transfer against Interest. An infant cannot be bound by a transfer of his property which cannot possibly be for his benefit. — Bloomingdale v. Chittenden 31 False Representation of Full Age. — Pemberton Building & Loan Ass'n V. Adams 32 Capacity to Buy and Sell. Capacity to buy and sell is oo-exleusive witii iap;i persons. — Stannard v. Burns' Adm'r 60 In re Renz 65 Alexander v. Haskins 6r> Every person is presumed sane. Burden of establishing insanity is on party assert- ini; it. ■ — Blackstone v. Standard Life & Ace. Ins. Co 67 MARRIED AVOMEN. Rights to make contracts enlarged by stat- utes, but can contract only in respect to her separate property. — Gillesiiie v. Beecher 77 Artmau v. Ferguson 7S J. I. Case Threshing-Mach. Co. v. Mitchell ." 80 EXISTENCE OF THING SOLD. It is a well-established rule of law that things having no potential existence can- not be the subjects of mortgage and sale. —Low V. Pew 83 Bates V. Smith 85 VAN ZILE SEL. CAS. SALES. (V) TABLE OF CONTENTS. Page AA'here one possossos a thing from which a certain product, in the veiy nature of things, may be expected, such a product has a potential existence, and may be the subject of mortgiige and sale. —Dickey V. Waldo 87 Senter v. Mitchell 91 Hnll V. Hull 94 PRICE PAID. Where property is taken at a fixed money price, the transaction i^ a sale, whether the I trice is paid in money or goods. — See Picard v. McCormick 216 Every transfer of property for an equiva- lent is substantially a sale. Money's worth is a valuable consideration, as much as monev itself. —See Huff v. Hall, 23 N. W. S8, 56 Mich. 450 The vendee is not entitled to the possession of the thins;- sold until the monev is paid to the seller. — Sanborn v. Shipherd 96 Reasonable price, market price, etc. — Konntz v. Kirkpatrick 97 If the contract furnishes a criterion for as- certaining the price, that is all that is re- quired. — :McConnell v. Hughes 101 MISTAKE. When it is evident that, through some mistake, each was assenting to a differ- ent contract or understanding, and for that reason the minds of the parties did not meet, there is no sale. As to Things. ^Wood V. Boynton 102 Huthmacher v. Harris' Adm'rs 104 Sherwood v. Walker 106 As to Parties. — Rodliff v. Dallinger 110 As to Price. — Rupley T. Daggett 112 ^VHEN TITLE PASSES. Intention. No general rule can be laid down that will apply to every case. The courts have generally held that it depends upon the intention of the parties, and should be left to the jury to determine. — Harkness v. Russell & Co 113 Wagar v. Detroit, L. & N. R. Co.. . 121 Noah v. Pierce 123 TiObdell V. Horton 124 Ex parte Crawcour 125 I'^'irst Nat. Bank of Cairo v. Crocker 127 Macomber v. Parker 130 Condition Precedent. The title to personal property does not pass to a purchaser under an agreement re- taining it in the vendor until the pur- chase price is paid, until such payment of the purchase price is made. —.Tenner v. Smith 133 Gill v. De Armant 136 Hovey v. Gow 138 Marvin Safe Co. v. Norton 140 Pae» I.assing v. .Tames 143 Wind v. Her 147 Gibbs V. Benjamin 150 Goods Sold on Approval. Where goods are sold with permission to examine them, or are sold on trial, the title does not pass until one of three things hajtpens: T'irst, when the buyer signifies his ajtitroval; second, when the time limited for the trial of the goods has expired; third, if there is no limit of the time for trial stipulated, upon the ex- piration of a reasonable time. — Pierce v. Cooley 152 Wood Reaping & Mowing Mach. Co. V. Smith 153 Piatt V. Broderick 156 United States Electric Pire-Alarm Co. V. City of Big Rapids 157 Sale of Chattels not Specific. —Commercial Nat. Bank v. Gillette... 160 Ivimberly v. Patchin 161 Sanger v. Waterbury 165 Unascertained Goods. It is a general rule that the title to proper- ty which is the subject of such a contract does not pass until the goods have been ascertained and determined upon. — Miiltby V. Plummer 166- Appropriation by Delivery to Carrier. It is a well-settled principle of law that the delivery of goods to a common car- rier for one who has purchased and who has ordered them is a delivery to the pur- chaser, though it does not amount to an acceptance of them. — Allard v. Greasert 171 Ruhl V. Corner 173 Goods Sent C. O. D. The weight of authority seems to be that the title to the goods does not pass un- til delivery to the buyer. — Lane v. Chadwick 176 Other cases hold that title passes when de- livered to the carrier to be sent C. O. D. — Higgins V. Murray 177 Fleming v. Commonwealth 178 The Seller must Comply xirith the Order or Authority Given Him by the Buyer. -Aultman, Miller & Co. v. Clifford. 182 Goods must be Shipped virithin Time Specified. — Hoover v. Ma her Crane v. Wilson 184 185 Goods must be Delivered to Particular Carrier Specified. -Wheelhouse v. Parr, 186 Quantity of Goods Delivered must Con- form -with the Order. — Comstock V. Sanger 187 Appropriation by the Buyer. — Palmer v. Banfield 190 TABLE or C(JNTEXTS. Chattels Made to Order. Where chattels are manufactured to the order of the buyer, and there is nothinj; further to l>e done, upon acceptance by the purdiaser. or failure within a rea- sonable tiuK' to give notice of the refusal, the chattels may be said to be aitpmpriat- I'd, and the title to have passed. —Pratt V. Perk Page lit:? Dealings xirith Bills of Lading to Se- cure Price. — Dyer v. Great Xorthi-ru Ry. Co 1!>~> Bill of lading deliverable to order, and at- tached to time draft. — National Bank of Commerce of Bos- ton V. Merchants' Xat. Bank of Memphis 19G WHiere bill of lading is made out in favor of vendor, and draft on vendee is sent with bill of lading attached to the bank, title to goods does not pass iiutil the draft is paid. —Baker v. Chicago. :M. & St. V. Kv. Co 201 ^^'here goods are sold for cash, and shipped to consignee, and draft drawn on him for the purchase i^rice. and forwarded with the Ijill of lading attached, title will uot vest in a bona fide purchaser, without payment of the draft. — Freeman v. Kraemer 203 When a banker d'.scounts a draft with bill of lading as collateral security, he ac- quires a special property in the goods as against all until the draft is paid. —Fifth Nat. Bank of Chicago v. Bay- 20.-: AVOIDANCE OF CONTRACT. For Mistake. — See Sherwood v. Walker and other eases 102-112 For Failure of Consideration. — Kimball v. Saguin 20(3 For Fraud. —Morse v. Shaw 208 Litchfield v. Hutchinson 209 For False Representation. — Galloway v. Merchants' Bank 211 Maxted v. Fowler 214 \\'here the purchaser expressly relies on the knowledge of the seller as to quantity or value, the seller is bound to act honorably and deal fairl\ with the purchaser. When confidence is reposed n him, he is bound not to abus.> it. — Picard v. McCormick 216 Peck V. Jenison 218 See. also, Welch v. Olmstead 27 It is immaterial whether a false representa- tion is made innox-ntly or fraudulently if by its means the party to whom it is made is iniured. — Totten V. Burhans 220 Misrepresentation must be of material facts, not of mere opinion. — See Picard v. McCormick 21G Peck V. Jenison 218 Welch T. Olmstead 27 Where goods are bought on credit upon statements of the buyer that he will pay. when in fact he knows he cannot pay. and intends to d<'fraud the seller, the viMKJor may rescind the contract, and bring re- plevin. , —Henry v Vliel Statements must have been relitnl upon by the buyer. — Potter V. Lee Purchaser may rescind the sale and re3 Nash v. Stevens 2.">7 DELIVERY AND CONTINUED POSSES- SION. As against bona fide purchasers and the creditors of the vendor, there should be delivery of the goods to the ven»lee. and continued pos.session by him. This is largely regulated )y statutes and rulings of the courts of different states. —Michigan statute (How. St. Mi?, CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. AssignuH'uts for the beuetit of creditors are >rov('iued generally by statute in the dif- ferent staves. In .Michigan, and generally in the different states, assignments for the benefit of creditors must be general and without preference. As to whether or not a mortgage on all the l)roperty of the debtor given to certain of the creditors should not be construed as a general assignnicnt for all creditors, au- thorities differ. The United States su])renie court holds in the athrmative. See cases cited. — White V. Cotzhausen 2()r) Supreme court of Micliigan holds in the negative. —Warner •. . Littlefield 270 Warren v Dwyer 278 As to mortgage to secure a pre-existing debt. — Ai-nistrong v. Cook 279 'Who are Creditors. General creditors who have not obtained a judgment, or who have no lien, cannot attack a conveyance or other dealings for fraud. — Nugent V. Nugent 280 Trowbridge v. BuUard 282 This rule does not apply where the vendor and vendee of personalty enter into a sale to defeat collection of taxes. —Gray v. Finn 28."j This rule does not apply where defendant conveyed real estate to his bi'other pend- ing suit against him. — Webber v Jackson 286 ILLEGAL SALES. If the thing sold is in itself contrary to good morals, the sale is void: as obscene Ijooks and pictures. Where the thing sold is in itself innocent, but is to be applied to an unlawful pur- pose, the authorities are not entirely har- monious as to whether or not the sale is valid. — Gambs t. Sutherland's Estate 288 Massachusetts seems to hold differently. — Graves v. Johnson 289 Sales Prohibited by Public Policy. Public policy jirohibits: First. Sales of offices. Second. Sales in which the seller is unrea- sonably restrained from carrving on his trade. Third. Sales of lawsuits. As to the second sulxlivision, see — Gibbs V. Consolidated Gas Co. of Bal- timore 291 It is no defense, however, to an action for goods sold and delivered, that jilaintiff is a member of an illegal trust or combina- tion to interfere with the freedom of trade and commerce. — National Distilling Co. v. Cream City Importing Co. '. 297 Contracts of Sale "Which Unreasonably Restrain Trade. Page Every agr(>ement in restraint of trade of one of the pai'ties to a contract is void, as being against public policy, unless founded upon a valuable consideration, and limited as regards time, space, and extent of the trade to what is reasonable under the circumstances of the case. —Richards v. American Desk & Seat- ing Co 300 Futures. Dealers can sell, and agree to deliver in the future, goods which they have not at the time, but expect to buy. Agreements, liowever, for sale for future delivery, are gambling contracts, and not enforceable when the intention is that there shall be no actual sale, but only that at the time fixed for delivery the parties shall settle, and the purchaser pay or receive the dif- ference between the agreed price and the market price at that time. —Gregory v. Wendell 304 Morrissey v. Broomal 307 Where the parties are equally in fault, and both are guilty of a fraud, the law will assist neither, but leave them where it finds them: and so a "payment of mar- gins" cannot he recovered back in case of a decrease in the price of the goods, where both vendor and purchaser con- templated a merely gambling contract. — White V. Barber 313 Dows V. Glaspel 326 W^ARRANTY. Of Conformity to Description. Where there is a contract for the sale of goods by the description, there is an im- plied condition that the goods shall corre- spond with the description. — Morse v. Moore 332 Of Title. Vendor warrants, unless it is clearly shown that he did not intend to assert owner- ship. l>ut only to transfer snch interest as he miuht have in the property. — Croly V. Pollard 338 Of Fitness for PuTpo.?e. — Wisconsin Red Pressed-Brick Co. v. Hood 339 Carleton v. Lombard, Ayers & Co. . . 341 That food is wholesome, and fit for con- sumption as food. —Craft V. Parker, Webb & Co 347 Sale by Sample. That goods are equal to the sample. — Leitch V. Gillette-Herzog Manuf'g Co 348 Bradford v. Manly 350 Express Warranty. No particular form of words is necessary to constitute a warranty. Such expres- sion should be used as will show the in- tention of the party to bind himself to make good the quality nami-d. — Chapman v. Murch 3.")2 Grieb v. Cok« 353 Murphy v. McGra w 355 TABLE OF C8 Norton v. Nehi'aska TiOan »fc Trnsl Co ;i59 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. Vendor's Liien. -Palmer y. Hand 3ii2 Stoppage in Transitu. Vendee must be insolvent before the right of stoppage in transitu can be exercised. -Benedict v. Schaettle ,3(>4 Carrier is lialde in conversion after notice of vendor's intention to exercise his right of stoppage in transitu. —Jones V. Earl 3»;8 Goods are considered in transit so long as they are in posses^iion of the carrier, or so long as the buyer has not. by himself or his agent or bona fide assignee, ob- tained possession of them. —Kingman v. Denison 3(!9 Right of Resale. The seller should generally give notice of sale to the buyer, but this is not always necessary. — Holland v. Rea 371 The obligation rests upon the seller to dis- pose of the goods in the best possible manner. — Wonderly t. Holmes Lumber Co 373 Action for Damages against Buyer. In The case of an executory contract for the sale of goods not specific, the rule is that the measure of damages for a refus- al to accept the goods is the difference between the price agreed upon and the market value on the day appointed for delivery. — Unexcelled Fire-Works Co. v. Polites 377 ■\Vindmuller v. Pope 378 Remedy When Title has Passed. The seller may bring his action for the pur- chase price in case of neglect or refusal to pay. — Moody v. Brown 379 Goddard v. Binncy 380 REMEDIES OF THE BUYER. When the seller illegally refuses to deliver the property, the buyer nia>- bring an ac- tion against him for his nonconijiliance, and the measure of damages is the esti- mated loss directly and naturally result- ing from the breach of the contract. — Hewson-Herzog Supply Co. v. Min- nesota Brick Co 382 Russell V. Horn, Brannen «.t Forsyth Manufg Co 38.5 Special damages may sometimes be collect- ed growing out of the circumstances of the case. — Brownell v. Chapman 388 When by sale the title to property has passed, and the seller refuses to deliver, the buyer may bring an action for con- version. — Philbrook v. Eaton 390 Breach of Warranty. Page If goods are sold with a warranty, and do not come up to the warranty, the buyer may refuse to accept, or acct-pi and sue for damages. —Gould v. Stein .392 Fielder v. Starkin IVM In case of a breach of warranty, the buyer may tender back the i)roperty, and sue- to recover tiie money paid —See Mnriihy v. McGraw .3."> STATUTE OF FRAUDS AS IT RELATES TO GOODS, CHATTELS, AND THINGS IN ACTION. In the follo'wing cases, every agree- ment, contract, and promise shall be void unless such agreement, contract, or promise, or some note or memorandum thereof, be in meriting, and signed by the parties to be charged therewith, or by some person by him thereunto la\rfully authorized, that is to say: (1) Every agreement that, by its terms, is not to be performed in one year from the making thereof. (2) Every special promise to answ^er for the debt, default, or niisdoings of an- other person. (3) Every agreement, promise, or un- dertaking made upon consideration of marriage, except mutual promises to marry. (4) Every special promise made by an executor or administrator to ans-wrer damages out of his ourn estate. (5) Every contract for the sale of goods, Avares, and merchandise for the price of $50 or more shall be void unless the purchaser shalx accept and receive part of the goods sold, giving something in earnest to bind the bargain or in part payment, or unless rome note or mem- orandum of the bargain be made, and signed by the party to be charged there- by, or by some person thereunto by him lawrfully authorized. Sufficiency of Contract or Memorandum. A writing n>lied upon to take the promise out of tlie statute must contain all tiie terms of the contract. Such promise can- not rest i)artly in writing ami partly in parol. — Baumann v. Manistee Salt & Lumber Co 39.-, A complete and binding contract may be created by leiteis and other writings iv- lating to one connected transaction if, without the aid of parol testimony, the parties, subject-matter, and terms of tiie contract may be collected. —Francis v. Barry ... .■■>97 Where a vendee signs an order for gmids .solicited by the vendor's agent. \\\u< ;ilso acknowledgeil in writing tint the goods had been ordered f-rm his principal, there is a sntticient memorandum of the sale to satisfy the statute of frauds. — Austrian & Co. v. Springer 4iiO Agreements not to be Performed in a Year. —Warner v. Texas vS: V. liy. to 4<>4 TABLE OF CONTENTS. Special Promise to Ansxirer for tlie Debt, Default, or Misdoings of Another. —Buck V. Haynes' Estate 406 See, also, Baumaim v. Manistee Salt & Lumber Co 395 Dupuis V. lutorio- Construction & Inipicivenunt Co 408 Original Promise. — ^Mitchell V. Beck 410 Stewart v. Jerome 412 Michijran Slate Co. v. lion Uan.w & H. B. H. Co 41.1 Hobbs V. Brash Electric Lijiht Co... 421 /Agreements for the Sale of Goods, ■Wares, and Merchandise for the Price of Fifty Dollars or More. — Harris Photographic Supply Co. v. Fisher 423 Hatch V. AIcBrien 426 Safford v. :McDonough 428 Memorandum in Writing, Signed by the Party to be Charged. Pase — Butler V. Thomson 42J> Sanbor v. Flagler 431 Labor to be Performed on Goods. Statute does not ajiplv. — Bagby v. Walker 433 Delivery and Acceptance. — Coffin V. Bradbury 43<) Caulkins v. Hellnian 443 Delivery of part of the goods, without re- ceipt and acceptance, insutiicient. — Powder Kiver Live-Stock Co. v. Lamb 14.") Delivery to a common carrier, in the usual course of transportation, is sufficient. — Leggett iK: Meyer Tobacco Co. v. Col- lier 450 Allard v. Greasert 171 Delivery to carrier not specially designated not sufficient. — Hudson Furniture Co. v. Freed Fur- niture & Carpet Co 452 CASES REPORTED. Page Adams v. Beall (8 Atl. 004. 07 Md. r.;i) ... 45 Alexander v. Haskiu.s (2."» N. W. 935, 08 Iowa, 73) GO Allard v. Greasert (Gl X. Y. 1) 171 Armstrong v. Cook (54 N. W. 873, 95 Mich. 257) 279 Artman v. Ferguson (40 N. W. !K)7, 73 Mich. 146) 78 Aullman, Miller & Co. v. Clifford (50 N. W. 593, 55 Minn. 159) 182 Austrian & Co. v. Springer (54 X. W. 50, 04 ilich. 343) 400 Bagby v. Walker (27 Atl. 1033. 78 M<1. 239) 4:i3 Baker v. Chicago. M. & St. P. Ry. Co. (67 X. W. 376) 201 Bates V. Smith (47 X. W. 249. 83 Mich. 347) 85 Baumann v. Manistee Salt & Lumber Co. (53 X. W 1113. 94 Mich. 3a3) 395 Benedict v. Schaettle (12 Ohio St. 515) . . 364 Blackstone v. Standard Life & Ace. Ins. Co. (42 X. W. 156, 74 Mich. 592) 07 Bloomingdale v. Chittenden (42 X. W. 106, 74' Mich. 698) 31 Bradford v. Manly (13 :Mass. 139) 350 Bresnahan y. Xiigent (52 X. W. 735. 92 Mich. 76) 2.53 Brock\\a> v. .Jewell (39 X. E. 470, 52 Ohio, 187) 57 Brownell v. Chapman (51 X. W. 249, 84 Iowa. 504) 388 Buck V. Hayn^s' Estate (42 X. W. 949, 75 Mich. 397) 40G Buck V. Patterson (42 N. W. 949, 75 Mich. 397) 400 Butler V. Thomson (92 U. S. 412) 429 Byrnes v. Volz (54 X. W. 942. 53 Minn. 110) 243 Carleton v. Lombard. Ayers iV- Co. (43 X. E. 422) 341 Case Threshing-Machine Co. v. Mitchell (42 X. W. 151, 74 Mich. 679) SO Caulkins v. Hellman (47 X. Y. 449) 443 Chapman v. Murch (19 John.^. 290) 352 Coffin V. Bradbury (35 Pac. 715) 43(i Commercial Xat. Bank v. Gillette (90 lud. 2(W) 160 Comstock Y. Sanger (16 X. W. 872, 51 -Mich. 497) 187 Cortland Manuf'g Co. v. Piatt (47 X. W. 3.30, 83 Mich. 419) 2;S0 | Graves v. .Johnson (;?0 X. E. 818. 150 Craft V. Parker, Webb & Co. (55 X. W. I Mass. 211) -89 812. 96 Mich. 24.5) 347 j Gray v. Finn (55 X. W. (U5. 90 Mich. t;2) 285 Grano v. Wilson (03 X. W. 50(>) 185 I Gregory v. Lee (30 Atl. 53. 04 Conn. 4n7) 35 VAN ZILE SEL.CAS.SAI.KS. (Xl) Page Crane Co. v. Columbus Const. Co. (20 C. C. A. 2Xi, 73 Fed. 984) Xi4 Crawcour. Ex parte (9 Cli. Div. 419) 125 Croly V. Pollard (39 X. W. 853, 71 Midi. 012) .'Ws Crosby v. Delaware & H. Canal Co. {'Si X. E. 730. 119 X. Y 334) 25 Crosby v. Delaware & H. Canal Co. (3ti X. E. ;i32. 141 X. Y. 589) 12 Deyo V. Vauglin (.)5 X. W. 991.97 Midi. 1) 4 Dickey v. Waldo (50 X. W. 008, 97 Mich. 255) 87 D(nvs V. Glaspel (00 X. W 00, 4 X. D. 251) 320 Dube V. Beaudry (23 X. E. 222. 1.50 Mass. 448i 48 Dupuis V. Interior Construction «& Im- provement Co. (50 X. W. 103, 88 Mich. 103) 408 Durfee v. Abbott (28 X. W. 521, 01 Mich. 471) 41 Dyer v. Great Xorthern Ky. Co. (5;j X. W. 714, 51 Minn. 345) 195 Englebert v. Troxell (58 X. W. 852, 4o Xeb. 195) 51 Fielder v. Starkin (1 H. Bl. 17) 394 Fifth Xat. Bnnk of Chicago v. Bayley (115 Mass. 228) 2()5 First Xat. Bank of Cairo v. Crocker (111 Mass. ir>3) 127 Fleming v. Commonwealth (IS Atl. 022. 130 Pa. St. 138) 178 Francis v. Barry (37 X. W. :\r>:\. 09 Midi. 311) 397 Freeman v. Kraemer (05 X. W. 4.55) 20:? Galloway v. Merchants' Bank of X«'ligh (60 X. W. 5(>9. 42 Xeb. 259) 211 Gambs v. Sutherland's Estate (59 X. \V. (>52. 101 Mich 355) 2SS Gibl)s V. Benjamin (45 Vt. 1*24) 15() Gibbs V. Consolidated Gas Co. of Balti- more (9 Sup. Ct. 553. 130 U. S. :!90).. 291 Gill V. De Armant (51 X. W. 527, JM) Midi. 425) 136 Gillespie v. Beecher (54 X. W. 107. 94 Mich. 374) 77 Goddard v. Binney (115 Mas.s. 450) 3S4) Gould v. Stein (22 X. E. 47, 149 Mass. 570) ;i!»^ CASES KEPOKTED. Page Gregory v. Wendell (39 Mich. 337) 304 Grieb v. Cole (27 N. W. 57'J, GO Mich. ;'.97) 3.j3 Harkiiess v. Russell & Co. (7 Sui). Ct. 51, 118 U. S. G(i3) 113 Tlnrris Photographic Supply Co. v. Fish- er (45 N. W. mi, 81 Mich. 130) 423 Hatch V. McBrien (47 N. W. 214, 83 Mich. 1.")!)) 42<5 Heath v. Steveus (48 N. H. 251) 43 Heury v. Yliet (54 N. W. 122, 36 Neb. 138) 222 Hewson-Herzoii Supply Co. v. Minnesota Brick Co. (.57 N. W. 129, 55 Miuu. 530) 382 Higgins V. Murray (73 N. Y. 2.52) 177 Hobbs V. Brush Electric Light Co. (42 N. AY. 965, 75 Mich. 550) 421 Holland v. Kea (12 N. W. 167. 48 Mich. 218) 371 Hoover v. Maher (53 N. AA'. (i46. 51 Minn. 269) 1^ Hopkins v. Bishop (51 N. W. 902, 91 :\Iich. 328) 263 Hovey v. Gow (45 N. W. 985, 81 Mich. 314) 138 Hudson Furniture Co. v. Freed Furniture & Carpet Co. (36 Pac. 132, 10 Utah, 31) 452 LJull V. Hull (48 Conn. 2.50) 94 Huthmacher v. Harris' Adm'rs (38 Pa. St. 491) 104 Illinois Leather Co. v. Flynn (65 N. W. 519) 240 Irons V. Kentner (50 N. W. 73, 51 Iowa, 88) 15 Jenner v. Smith (L. R. 4 C. P. 270) 133 J. I. Case Threshing-Machine Co. v. Mitchell (42 N. W. 151, 74 Mich. 679) . . SO Johnson v. Northwestern Mut. Life Ins. Co. (59 N. W. 992, 56 Minn. 365) 28 Jones V. Earl (37 Cal. 630) 368 Jones V. Kemp (12 N. W. 890, 49 Mich. 9) 2(3 Kimball v. Saguin (53 N. W. 116, 86 Iowa, 186) 206 Kimberly v. Patch.n (19 N. Y. 330) 161 Kingman v. Denisou (48 N. W. 26, 84 Mi^ch. 608) 369 Kipp y. Lamoreaux (45 N. ^Y. 1002, 81 Mich. 299) 259 Kountz V. Kirkpatrick (72 Pa. St. 376). . 97 Lamont v. La Ferre (55 N. W. 687, 96 Mich. 175) 10 Lane v. Chadwick (15 N. E. 121. 146 Mass. 68) 176 Langdon v. Clayson (42 N. W. 805, 75 Mich. 204) 37 Lassing v. James (40 Pac. 534, 107 Cal. 348) 143 Leggett & Meyer Tobacco Co. v. Collier (56 N. W. 417. 89 Iowa, 144) 450 Leitch V. Gillette-Heizog Manuf'g Co. (67 N. W. 352) 348 Litchfield v. Hutchinson (117 Mass. 195) . . 209 Lobdell V. Hortou (40 N. W. 28, 71 Mich. 6S1) 124 Pa?e Low V. Pew (108 Mass. 347) 8.3 Lukens v. Aiken (34 Atl. .575, 174 Pa. St. 152) 229 McConnell v. Hughes (29 Wis. 537) 101 Mclver v. Wihi .ms ,53 N. W. 847. 83 Wis. 570) 9 Mackellar v. Booth (51 N. W. 222, 48 Minn. 396) 261 Mackellar v. Pillsbury (51 N. W. 222, 48 Minn. 396) 261 :\Iacomber v. Parker (13 Pick. 175) 130 Maltby v. Plummer (40 N. W. 3, 71 Mich. 578) 166 Marvin Safe Co. v. Norton (7 Atl. 418, 48 N. J. Law, 410) . 140 Maxted v. Fowler (53 N. W. 921, 94 Mich. 106) 214 Merguire v. O'Donnell (36 Pac. 1033, 103 Cal. 50) 358 Michigan Slate Co. v. Iron Range & H. B. R. Co. (59 N. W. 64(5. 101 Mich. 14) 415 Mitchell V. Beck (50 N. W. 305, 88 Mich. 342) 410 Moley V. Brine (120 Mass. 324) 47 Moody V. Brown (34 Me. 107) 379 Morrissey v. Broomal (56 N. W. 383, 37 Neb. 766) 307 Morse v. Moore (22 Atl. 362, 83 Me. 473) . . 332 Morse v. Shaw (124 Mass. 59) 208 Murphy v McGraw (41 N. W. 917, 74 Mich. 318) 355 Nash V. Stevens (65 N. W. 825) 257 National Bank of Connuerce of Boston v. Merchants' Nat. Bank of Memphis (91 U. S. 92) 196 National Distilling Co. v. Cream City Im- porting Co. (56 N. W. 864, 86 Wis. 352) . . 297 Nicliols V. Bancroft (41 N. W. 891. 74 Mich. 191) 248 Noah V. Pierce (4S N. W. 277, 85 Mich. 70) 123 Norton v. Nebrasfci Loan & Trust Co. (53 N. W. 481, 35 Neb. 466) 3-59 Norton v. T:*ylor (53 N. W. 481, 35 Neb. -166) 359 Nugent v. Nugent (37 N. W. 706, 70 Mich. 52) 280 Palmer v. Banfield (.56 N. W. 1090, 86 Wis. 441) 190 Palmer v. Hand (13 Johns. 434) 362 Peck V. Jenison (.58 N. W. 312. 99 Mich. 326) 218 Pembertou Building «& Loan Ass'u y. ■ Adams (31 Atl. 280, 53 N, J. Eq. 25S) ... 32 Peters Box & Lumber Co. v. Lesh (20 N. E. 291, 119 Ind. 98) 241 Philbrook v. Eaton (134 Mass. 398) 390 Picard v. McCormick (11 Mich. 68) 216 Piei-ce V. Cooley (23 N. W. 310, 56 Mich. 552) 152 PMtt V. Broderick (38 N. W. 579, 70 Ylich. 577) 156 Potter V. Lee (53 N. AA'. 1047, 94 Mich. 140) 223 CASES REPOUTED. Page Powder River Live-Stock Co. v. Lauib (5G N. W. 1019, 38 Neb. 330) 445 Pratt V. Peck (3G \. W. 410. 70 Wis. 020).. 193 Rcnz. In re (44 N. W. 598. 79 Mich. 21G). . Go Richards v. American Desk & Seating Co. (5S N. VV. 787, 87 Wis. 503) 300 Rindslvopf v. Myers (57 N. W. 9G7, 87 Wis. 80) 245 Robertson, In re (9 Ch. Div. 419) 125 RodliCf V. Dallinger (4 X. E. 805, 141 Mass. 1) 110 Ruhl V. Corner (63 Md. 179) 173 xni Page Tyler v. Ualloi/s Estate (.35 N. \S . '.hij. tjs Mich. 185) 40 Unexcelled Fire Works Co. v. I'olites (IS Atl. 105S, 130 Pa. St. .5.30) .377 United States Electric Fire-Aliinn Co. v. City of Big Rapids (43 N. W. lo:;n. 7S Mich. (57) 157 Wagar v. Detroit, L. & N. R. Co. (44 .\. W. 1113. 79 Mich. G48» rJl Warmn- v. Littletield (.50 N. W. 721. v.t Rupley V. Daggett (74 111. 351) Russell V. Horn, Branneu & Forsyth Manuf'g Co. (59 N. W. 901, 41 Neb. 112 Mich. 329) 27n Warner v. Texas & P. Ry. Co. (4 C. C. A. ()73, 54 Fed. 922) 4 Senter v. Mitchell (16 Fed. 20G) 91 \\"hite r. Barber (8 Sup. Ct. 221, 123 I". S. Sherwood v. Walker (33 X. W. 919, GG 392) 313 Mich. 5G8) .- 106 White v. Cotzhausen (9 Sup. Ct. 309. 12t) Stack V. Cavanaugh (30 Atl. 3.50) 33 Stannard v. Bums' Adm'r (22 Atl. 41J0, 63 Yt. 244) 60 Stewart v. Jerome (38 X. W. 895, 71 Mich. 201) 412 Stuiiii V. Boker (14 Sup. Ct. 99, 150 U. S. 312) 10 Topliff V. McKendree (50 X. W. 109, 88 Mich. 148) . . .* 3 Totten V. Burhans (51 X. W. 1119. 91 Mich. 495) 220 Trainer v. Trumbull (6 X. E. 7G1, 141 Mass. 527) 49 Trowbridge v. Bullard (45 N. W. 1012, 81 Mich. 451) 282 Tuttle V. Campbell (42 N. W. 384, 74 Mich. G52) G U. S. 329) 2a5 Wilson V. Xew United States Cattle-Ranch Co. (20 C. C. A. 244, 73 Fed. 994. 225 Wilson V. Spear (34 Atl. 429) 251 Wind V. Her (Gl X. W. 1001) 147 WindmuUei v. Pope (14 N. E. 4.3(j, 107 X. Y. 674) 37S Wisconsin Red Pressed-Brick Co. v. Ho Wood Reaping & Mowing Mach. Co. v. Smith (15 X. W. 906, 50 Mich. 565) 153 f ILLUSTRATIVE CASES IN SALES. VAN KILE SEL. CAS. SALES. (1)* CONTRACT OF SALE. TOPLIFF et al. v. MlKKXDKEE. (50 X. \V. 109, 88 Mich. 148.) Supremt Court of Michigan. Oct. 30, 1891. Error to circuit court, Wayne county; (Jeorge S. Hcsmer, Judge. Action liy G. Francis Topliff and Charles B. Brooks against Edward J. McKondree for Itreach of contract to furnish plaintiffs 100 shares of Lalvo Superior Iron Mining stock at i^-ll per share. The court directed a verdict in defendant's favor, and plaintiffs bring er- ror. Attirmed. Bowen, Douglas & Whiting, for appellants. Conely, Maybury «S: Lucking, for appellee. GRANT, J. I'laintiffs and defendant were stock-brokers, the former in Boston, the lat- ter in Detroit. November 30, 1885, defendant wrote plaintiffs, in which, among other things, he said: "Lake Superior Iron Mining stock can be bought here at about 40 to 41 per share. If you can do anything at these figiues, 1 can furnish some of the stock, say 100 to 200 shares." Some correspondence in regard to this and other matters, by letters and telegrams, followed, but which have no bearing upon the question at issue. Decem- ber 3d, defendant wrote plaintiffs, stating: "1 can furnish you 100 shares Lake Superior at .?41.00 per share, but with little or no protit to myself. Still. 1 will furnish you with the stock if you order it. Can ship it to you, 1 guess, Avith draft attached." This letter was received the morning of December 5th, and plaintiff's immediately replied as follows: "Your favor of the third is at hand, in which you offer us 100 shares Lake Superior Iron M. Co. at 41. Our customers are slow in buy- ing the stock. We had a favorable otter for 25 shares to-day, but did not dare to sell, as we inferred from your letter that you did not care to break the lot. If you can sell us any part of 100 shrs.. say 25, 50. or 75 shares, at 41, please wire us early Monday a. m.. as our buyer may withdraw his bid. We hope to dis- pose of the whole lot early next week. State length of time at which your offer of stock is good." December 7th, two days after the re- ceipt of the above letter, plaintiff's telegi*aphed defendant as follows: "We take 100 Lake Superior, 41. Forward draft attached." On the same day they wrote defendant, saying: "We wired you this a. m. as follows: 'We take 100 Lake Superior, 41. Forward draft attached.'— which we now confirm. We ex- pect the stock Wednesday or Thursday." Ke- VAN ZILE SET,.CAS.SAT,ES ceiving no reply from defendant, plaintiffs, on December 9th, telegraphed defendant: "No stock, letter, telegram from you. What does it mean? Explain at once by wire." To this telegram defendant replied by letter Decem- ber 11th, saying: "Much to my regret, 1 am unable as yet to furnish that 100 shares of I^ike Superior stock." lie akso stated his rea- .sons for not furnishing it, and further stated that there was no doubt but that he could get it, as it had got to he sold, and expressed the hope that the matter would not put them to too great inconvenience. I do not think this correspondence made a completed contract. The defendant did not bind himself to send the stock to Boston, nor did the plaintiffs bind themselves to accept it and pay for it in Detroit. No binding and completed contract could have been made oth- erwise than by the acceptance on the part of the defendant of the terms of the telegram of December 7th. McDonald v. Bewick, 51 Mich. 79, 16 N. W. 240; Eggleston v. Wagner. 40 Mich. 010, 10 N. W. 37; Bowen v. McCarthy 85 Mich. 20, 48 N^ W. 155. The statement, "I guess I can ship it to you with draft attach- ed," c-aunot be construed into an absolute of- fer to ship it. The manner and place of de- Ijverj- were left open for future negotiation between the parties. Plaintiffs" letter of De- cember 5th, and their own evidence upon the trial, show that they must have so under- stood it. On December 7th they had negotiat- ed a verbal sale of the stock, but refused to complete it until defendant had confirmed their offer by telegram. Getting no reply from defendant by 3 o'clock p. m., they told their customer that they would sell him the stock. The letter of defendant of December 11th was not an acceptance of the plaintiffs' offer contained in their telegram of Deceml)er 7th. That letter stated that he was unable to furnish the stock. The defendant did not then have the stock under his contrel. The owner was in New York, and the stock was in a Detroit bank as security. The owner refus- ed to release it until he ^'eturued. All these facts were communicated by defendant ten to be determined by the plaintiff whether he would take the horse at once, and under it he was bound to decide whether he would com])ly with defendant's demand. The proposition of defendant was tantamount to saying: "I will take the $500 you offer on condition only that you take the horse immediately. If you do not conclude to do so, I do not ac- cept your term.s." It is not time that under such circumstances the minds of the pai'ties had met so that the contract was completed. Neither can it be said that the posting of the letter by plaintiff to Hatch completed it. Until the plaintiff had in turn notitied the defendant that he would take the horse as defendant proposed, it was not com- pleted; and this was not done until Hatch called upon the defendant, a week later. In any view of the case, the contract cannot be said to have been completed until that time. nie defendant himself could have withdrawn the off'er up to that time, and the plaintiff could have refused the offer. De- fendant so construed it at the time Hatch called for the horse, telling Hatch he could do as he had a mind to about taking him away. It is evident from this that he did not then regard the sale as a completed one. It is the rule that, where an offer is by letter, the usual mode of acceptance is by sending a letter announcing a consent to ac- cept. There are other modes of acceptance, which are equally conclusive upon the parties, but in the present case no letter was written to defendant accepting his proposi- tion. ^Ir. Hatch, the agent of plaintiff, was directed to go to defendant, pay the money, and take the hoi"se. He did not go until a week after, and at that time defendant might have said: "Y'ou have come too late. My proposition was an immediate delivery. The plaintiff cannot have the horse. He has not accepted my offer to take it without delay." If this position had been taken by the defendant, and he had refused to deliver the horse, no one would have claimed that plaintiff could have recovered him in au CONTRACT OF SALE. action. To make a completed contnict, the minds of the parties must meet; and, where a proposition is in writing, the acceptance must be absolute, and identical with the terms of the proposal. The authorities cited by defendant's counsel do not meet the case presented by this record. This disposes oi the main question, as we view it, in the case. There are other questions raised by brief of counsel for appellant. We have ex- amined them, and find no error. Judj^ment affirmed. The other justices concurred. e CONTRACT OF SALE. riTTLE V. CAMPBELL et al.i (42 N. W. 384, 74 Mich. 652.) .ujirome Court of Michigan. April 19, 1889. Error to circuit court, Ingham county; Pkck, Judge. Assumpsit by Flora B. Tuttle against .John F. Campbell and Martin Hanlon. Judgment for plaintiff, and defendants appeal. Smith d- York, for appellants, li. A. Montgomerij, for respondent. CHAMPLIN, J. Some time in 1882 William A. Tuttle, who is the plaiuliff's husband, en- gage. Crossman, payable to her order when she should ol)tain a decree for divorce against her husljand. The certificate was then left with Crossman for safe-keeping. Tliis arrange- ment was so entirely satisfactory that the parties, on the same day or the next, laid aside tiieir differences and went to living to- gether again. The bill was not filed, neitiier was the certificate of deposit taken up or can- celed with her consent. Harmony, however, did not long prevail in the Tuttle family. Dissensions broke out anew, and Mr. Tutt e, willioiit iier knowledge, obtained from Mr. Crossman i)ossession of the certificate, and a short time tliereafter she found it in his cash- drawer and took and retained possession of it. It appears that the date of the certificate was March 22, 1884, and when it was ob- tained Mr. Tuttle deposited -S^UO, and gave his note to Crossman, due in six months, for the other 8500. Tliis note was not taken up when he became pObse.->sed of the cerlilicate after the reconciliation, and there is no direct testimony that he then withdrew the $500 cash which he had deposited, although there is a strong inference to that effect from Crossmans testimony. At any rate, in Au- gust Mrs. Tuttle held the .S1,000 certificate, and Crossman held Mr. Tuttle's note for $500. At this time Mr. Tuttle told her that he had got to sell in order to pay Crossman that .81,000, because he had to secure hiin at the time he got the certificate, and that she might come on Crossman if he did not settle, and so he had got to sell out to pay him. He finally told Mrs. Tuttle that if she would indorse the certificate of deposit to him siie 1 Dissenting opinion of Sherwood, C. J., fiiiiittpd. could have a thousand dollars' worth of in- terest in the stock of drugs and medicines, which offer she accepted, and indorsed the certificate, and Tuttle delivered it up to Cross- man on the I'Jth day of August, 1884, and Crossman canceled it and delivered up to Tuttle his note of $500. There was some testimony tending to prove that Tuttle had occupied the store of Mrs. Tuttle over two years without paying any rent to her, and also had collected the rents of tenants occu- pying other portions of the building, for which he owed her, and that this indebted- ness also entered into the consideration for the $1,000 worth of interest in the stock of goods. After this transaction Mr. Tuttle continued to carry on the business until April 25, 1885, when he sold the entire stock of goods and fixtures to defendants for $2,750, $500 of wliich was paid in cash, and the balance in notes. The last one to mature, being for $250, was made conditional upon defendants being able to obtain a lease of the store from Mrs. Tuttle. An inventory madesoon after tliepurchase at the cost price showed the value of the stock to have been a little over .$3,160. The bargain was closed on Saturday night, and the next day Mr. Tuttle left the place and remained absent nearly two years without his whereabouts being known to Mrs. Tuttle. The sale was made without her consent. She iiad heard that the defendant Campbell was endeavor- ing to purchase, and he had inquired of her whether she would rent to him the store in case he should purchase, and she refused, and also, as she testifies, expressly notified him in that interview that she was the own- er of a thousand dollars' interest in the stock of goods. This interview was al>out four months before the purchase by defend- ants. The defendant Ilanlon had been a school-teacher in the village, and had heard that the domestic relations of Tuttle and his wife were not entirely harmonious, lie was invited by Dr. Campbell to join him in mak- ing the purchase, and had been told by him that Mrs. Tuttle refused to rent the store to him, but it was not shown that he had ex- pre.-^s notice of Mrs. Tuttle's $1,000 interest in the stock of goods when he purchased. A bill of sale was executed to them jointly by Tuttle, conveying the whole stock of goods then in the store. They tliereu] on went into possession, and continued the snle of drugs at retail, Mr. Hanlon giving his at- tention to the selling of the goods in the store. About 30 days alter the purchase Mrs. Tuttle went into the store and found Mr. Hanlon there in possession, and stated to him that she had a thousand dollars' in- terest in the stock, and demanded that he turn out to her a thousand dollars' worth of the goods in the stock, or pay her .$1,000 for such interest. He absolutely refused to do either, and claimed that they iiad bought the whole stock and it was tiieirs. No demand was made upon defendant Campbell. This suit was then brought by plaintiff, alleging the CONTRACT OF SALE. conversion of lier interest in tlie poods, bnt waiving the tort, and asking a judgment fur their value in a.ssninj).sit. Tiie trial resulted in a verdict and judgment for the i)l;iintilf for tiie full amount of her claim, with interest from the date of demand. Three objections were taken to the admis- sion of testimony. We do not think the er- rors assigned upon them call for a reversal of the judgment upon any of the grounds stated against the admission of such testi- mony. The main grounds of error relied on may be considered under the following heads: First. Was the transaction between the plaintiff and her husband such a one as created them owners in common of the stock of goods? iSecoiul. If they were such owners in com- mon, would a purchaser from the iiusl)and of the whole stock, without notice of his co- owner's rights, acquire a title to the whole stock? Third. If not, is the purchase by Dr. Camp- bell, with notice of plaintiffs ownership and the refusal to recognize tiie rights of Mrs. Tuttle by the defendant Hanlon, evidence of a conversion of the goods by both defendants, so as to sustain an action ai-'aiust both jointly V Fourth. Where a small portion only of the goods are sold, the balance remaining in pos- session of the co-owners in common, who deny tiie right of another owner in common to any of the goods, can tlie dispossessed owner treat it as a conveision of the whole, and, waiving the tort, maintain an action of assumpsit to recover the value of the goods converted ? 1. The owner of chattels may sell an un- divided siiare or interest in tliein, and the re- lation thus created will be a common owner- ship, which, by analogy to such. relations in real property, isfretjuently designated as ten- ancy in common of the property. In such case no actual delivery is required. The title passes at time of sale, if such is tiie intent of the parties. Jioth or eitiier may have the actual possession of property owned in com- mon, and when one owner has the actual possession, and the other has not, the owner in possession is simply the bailee of his co- owner'sshare. AV'hen an undivided share or interest in personal property is sold, there is no more objection to a designation of the in- terest sold by dollars' worth than there is by designating a part, as one-half, one-lilth, or any other fraction of the whole. In either case the part sold is a fraction of the whole, and extends to every j)art and parcel thereof. In one case the unit is the property; in the other, the unit is the value of the property. But the value represents the property, so that the units are in fact the same. The share conveyed measured by dollars' worth will de- pend, as regards quantity, upon the total Value or worth of the whole property. And, in cases where the property is severable and capable of division in kind without sale, such share may be severed or separated from the rest by taking so many dollars' worth, with- out regard to the quantity that is left, whether it be much or little, for the balance of the unit will be left after taking out the dollars' worth severed. Of course, a division is more readily made when the unit is the thing and the share is designated by a frac- tion of the (juantity; but if the owners can- not agree upon the division, then the remedy is a sale, as in other cases. Dollars' worth is often used to measure and designate the share or ownership in property. More parliculai ly is this the case in partnership transactions. No difiiculty has been experienced in divid- ing up the property from the use of such standard as a measurement of interest. A sale of an interest in personal property must be supported by a sutticient consideration. In this case there was evidence of a j)resent consideration passing from Mrs. Tuttle to her husband, which, if believed by the jury, was suthcient to su{»i)ort tlie contract. We conclude that the transaction between Mr. and Mrs. Tuttle was such as created them owners in common of the stock of goods. 2. This being so, he could not without her consent convey away her title to the goods to the defendant purcliasers. So far as he re- tailed goods out of the store to customers, her consent would be implied by the course of dealing tacitly i)ermitted by her, without ob- jection. But a sale of the entire stock, being out of the ordinary course of business, would require her consent, in order to bind her or carry hei interest to the purchaser, she te.s- tified that he had exjiressly agreed that lie would not sell out the entire stock without her knowledge and consent, and that this sale was made in violation of tliat agreement. Owners in common of property have a rigiit to dispose of their own undivided share, but such owner cannot sell the whole property, nor any portion thereof excej^t his own; and if he undertakes to dispose of any larger in- terest his co-owners are not bound tliereby. Russell V. Allen, lo X. Y. 17;> 178, per I)i:an, J.; White V. Brooks, 4o N. II. 402; Welch V. Sackett, 12 Wis. 248; Frans v. Young, 24 Iowa, 375. The principle is w ell settled that a seller of personal pmperty can convey no greater title than he has, and it makes no difference that the purch.iser has no notice and is ignorant of the existence of other par- ties in interest. Couse v. Tre;;ent, 11 Mich. 65; Dunlap v. Gleason. 16 Mich. 158; Trudo V. Anderson, lU Mich.oo7; Parish v. Morey, 40 Midi. 417; I'ease v. Smith, 61 N. Y. 477: Beaice v. Bovvker. 115 Mass. 129. Excep- tions are found where, through the conduct of the party or by his laches, he is estopped from asserting title as against the innocent purchaser; but this casedoes not come within the exception. The fact that llaiilon had no notice of plaintilf's interest in the goods be- fore he purchased from Mr. Tuttle is of no importance, and the rule laid down by the court, requiring that they should tindas mat- ter of fact that he had notice of her interest in order to entitle her to recover, was more CONTRACT OF SALE. favorable to defendants than tliey were en- titled to, and the question raised l)y defend- ants' counsel, that there was no testimony to supjiort such finding, is of no conseciuence. By their purchase tlie defendants acquired title to tliat portion of the stock which their vendor had not sold to Mrs. Tattle, and to that only, and they stood in the same relation to Mrs. Tuttle, respecting the ownership of the goods, as their vendor stood before their j)urcliase, and were owners in common with lier of the entire stock. 3. Ordinarily, when an owner in common sells the goods, the other owner in common may treat this act as a conversion, and bring an action of trover against his co-owner, to re- cover the value of his share; but he is not oldiged to do tl)is. He may retain liis title in the goods in the hands of the purciiaser, and if he converts them he is likewise liable therefor to his co-owner. What constitutes a conversion, short of a sale, is not delinitely settled. A total destruction of tiie chattel, or a conversion of the whole to his own use, or something equivalent, such as a total denial of liis co-owner's interest in tlie property, coupled with a total exclusion from posse.s- sion, will render the owner in possession lia- ble to his co-owner. Owing to the right which an owner in common has to the pos- session of property so owned, if the property is in its nature indivisible, mere refusal to yield possession of the property or admit to a joint possession, without denying the inter- est or ownership of his co-owner, will not constitute a conversion. I have no doubt that the claim set up of such exclusive own- ership by Han Ion vvhen demand was made upon him and his denial of, and his refusal to recognize, the rights of plaintiff, constituted a conversion of the plaintiff's interest in the property, so far as he was concerned. No de- mand was made of defendant Campbell, and none was necessary, if tlie testimony of Mrs. Tuttle is to ba believed, and under the in- structions of the court the jury have given credence to it. The law is laid down in ("ooley. Torts, at page 528, (*451,) that: "One who buys property must, at his peril, ascer- tain the ownership; and, if he buys of one having no authority to sell, his taking pos- session in denial of the owner's right is a conversion."' Dr. Campbell purchased know- ing Mrs. Tattle's right to the property, and in contravention of it purchased from Tuttle the whole property, without recognizing, but ignoring, her rights or title to any of it and took [lossession thereof under his "bill of sale conveying the whole property with warranty. This was a conversion of her share in the property by him, and a demand before bring- ing suit w'as unnecessary. The third ques- tion must be answered in the aflirmative. 4. The general rule is that before a party can waivea tort for the conversion of personal property and bring n.ssumpsit the property in the liands of the tort-feasor must have been sold and converted into money, upon the the- ory that the money has been received for the plaintiff's use. There is, however, another class of cases, where the property has been converted l)ut not sold, where the tort may be waived and assumpsit brought for the value of the goods converted. This class belongs to those relations where a contract may exist and at the same time a duty is superimposed or arises out of the circumstances surround- ing or attending the transaction, the viola- tion of which duty would constitute a tort. In such cases the tort may be waived and as- sumpsit be maintained, for the reason that the relation of the parties out of which the duty violated grew, had its inception in con- tract. These relations are usually those of trust and confidence, such as those of agent and principal, attorney and client, or bailee and bailor. When an owner in common of personalty has the exclusive possession of the property he is a bailee of his co-owner's share. In such case there is a contract of bailment implied between the parties, the law implying a delivery from the nature of the case and the peculiar rights which one owner in common lias to such property when reduced to his pos- session. He takes it and holds it upon the trust and confidence that he will care for it and use it, if he us;>s it, in an ordinarily careful manner, and will not sell or convert his co- owner's share to his own use. If he violates this trust and confidence by converting the property to his own use, liis co-owner may bring trover for the conversion, or, waiving the tort, may sue in assumpsit to recover its value. This has been the settled law in this state for many years, and was explicitly de- clared in Fiqnet v. Allison, 12 Mich. 328, which case is decisive of this. See, also, Coe V. Wager, 42 Mich. 49, 3 X. AV. Rep. 248; McLaughlin v. Sallev, 46 Mich. 219, 9 X. W. Rep. 25t); Evans v. Miller, 58 Miss. 120. The facts of this case do not bring it within the principle above stated, and the action of as- siunpsit cannot be maintained. The judgment must be reversed and a new trial granted. MORSE and LOXG, JJ., concur. CAMPBELL, J., concurs in tiie result. SHERWOOD, C. J., dissents. TIME OF PAYMENT. McIVER V. WILLIAMS. (53 N. W. 847, 83 Wis. 570.) Supreme Court of Wisounsin. Deo. G, 1S92. Appeal from circuit court, .Milwaukee coun- ty; D. H. Jobu.son, .Tudjie. Action originally brouplit l)y Anton Tliiele iigainst William M. Williams for the [)osses- .«!iou of personal property. On the deatli of Thiele, .Tames Mclver, as his administrator, was substituted as plaintiff. From a juil^- ment entered on the verdict of a jury directed by the court in favor of plaintiff, defendant ^appeals. Reversed. The other facts fully appi'ar in tlie following statement by WINSLOW, J.: Replevin for a span of horses, harnesses, and a wagon. The property' was originally owned by appellant, Williams. One Thiele, plain- tiff's intestate, in his lifetime, negotiated with Williams for the purchase of the property, and obtained possession of the same by virtue of such negotiations. It was claimed by plaintiff on the trial that Thiele in fact purchased the outfit for the agreed price of $400, and that he was to have a few days' time to pay the pur- chase price. On the other hand, it was claim- ed by Williams that the price was agreed on in case of purchase, but that possession of the pro])ertj- was given by Williams to Thiele for the purpose of trial only for two days, which time Williams subsequently extended foi- au- otiicr day. Thiele in fact kept the horses five days, paid no part of the purchase price, and ^^'illiams on the fifth day retook the property from the possession of Thiele's son, who was driving the team. Thiele brought replevin, and, upon his death before trial. Melver, his administrator, w^as substituted as the party plaintiff. The court directed a verdict lor plaintiff, upon which judgment followed, and ^lefendant appealed. J. M. Clarke, for apix-llant. J. A. Eggeu, for respondent. WIXSLOW, .T., (after sfating the facts.) In order to justify tlie direction of a verdict for plaintiff, tlie court must have concluded that the uncontradicted evidence showed that there had been a sale of the horses and wagon u|)on credit, which had biH-ome ab.solute at the time of the recaption of the i)ropi'rtj- by defend.mt. In this, we think, he was mistaken. The de- fendant gave his version of the transaction at length, and we think that a jury would iMi en- tirely justilied in (inding then'from that no sale upon credit was in fact made, but that defendant simiily allowed the intestate to take the horses a few days to try them, and agre<'d that, in case they were satisfactory after suc-h trial, Thiele might purchase tlie entire proper- ty for .$400 in cash. If this was in fact the agreement, the defendant was entitled to re- take the property, as he did. becau.se payment would be a conditi(vi precedent, or at least c'»a- current. and the right of property would not pass until payment was made or waived, even though a delivery of the property, upon trial only, had been made. The defendant was enti- tled to have this question submitted to the jury. It appears that Thiele was garnished by seviT- al peivsons, as a debtor of Williams, on the day before Williams took possession of the horses, but that Williams was not sensed with process until several days afterwards. There is noth- ing in the record to show whether the gar- nishee actions referred in imy way to an in- debtedness supposed to arise from a purchase of the hoi'ses. or in fact whether the actions ever went to judgment. We cannot consider what the effect might be if in fact they did :io to judgment against Thiele. Judgment reversed, and cause remanded for a new trial. 10 TLM1-: or PAYMENT. LAMONT V. LA FEXKE ft al. (55 N. W. ()87. 9() Mich. 175.) Supreme Court of Michigan. June 23, 1893. Appeal from circuit court. Bay county, in chancery; Georse P. Cobb, Judge. Bill by Matthew Laniont against Frank La Fevre and wife and Michael Daily to en- force a mechanic's lien. Decree for com- plainant. Defendants appeal. Affirmed. McDonell & Hall, for appellants. Hatch k Coolcy, for app(>llee. HOOKER, C. J. Complainant, a material man, filed the bill in this cause against Frank La Fevre and Almina La Fevre. husband and Avife, and Michael Daily, to enforce a mechanic's lien for material furnished for an hotel erected upon premises owned by Frank La Fevre. A contract to furnish material, erect and complete said hotel, was let by La Fevre to a firm of bvnlders named Willis & Grant, who in turn sublet a portion to one Thompson. Thompson failed to perform, and negotiations were had whereby com- plainant furnished material which Thompson should have furnished. The principal dis- piite, so far as the facts are concerned, is over the question of defendant Frank La Fevre's liability to complainant for this ma- terial, the complainant asserting that it was furnished upon the request of La Fevre, ac- companied by a promise to pay for the same the amount of complainant's bid. The de- fendants deny that La Fevre promised to pay for the material, and allege further that, if he did, the promise, being oral, would come within the statute of frauds as a prom- ise to pay the debt of Willis & Grant, who were under contract obligations with Frank La Fevre to furnish the material. Upon the question of fact it is sufficient to say that we agree with the circuit judge that the com- plainant established the contract alleged, and that it was an original promise, and valid. It was not within the statute, for complain- ant did not sell to Willis & Grant, nor did they purchase the material from him. A number of legal questions arise. It is contended that there was no meeting of minds, because no time appears to have been specified when the amount agreed upon for the material should be paid, but the rule of construction in such cases is that payment upon delivery is contemplated. The state- ment filed with the register of deeds was to the elfect that the materials were furnished "in pursuance of a certain contract with Frank La Fevre." and that there was $*2'20 due, and a copy of this statemtnt, with notice of filing, was served on Frank La Fevre only. The bill alleges two contracts,— one made on or about July 20, ISUO, for .$400; and another, "that complainant should fur- nish for the building such materials as La Fevre might order from time to time, for which he (La Fevre) would pay, under which arrangement couiplainant furnished materi- als to the amount of $20." This sum of $20 was rejected by the circuit judge, and, as complainant did not appeal, cannot be al- lowed here. It is mentioned because the defendants assert that it is t'le o • -asion of a variance between the statement, which men- tions one contract, and the bill and proofs, which mention two; and it is contended further that the statement is excessive by this amount, and that the lien is therefore lost. It appears that the only reason for denying complainant any portion of his claim was the fact that in his statement of lien he did not say two certain contracts instead of one. By a mere technicality he is deprived of his security for $20, although an honest claim. The case differs from those cited by counsel for defendants where persons wrong- fully clouding debtors' titles with excessive liens are denied the benefit of the statute. The case of Gibbs v. Hanchette, (Mich.) 51 N. W. Rep. 691, carefully distinguishes be- tween such cases and those where, throU'.,'h an honest mistake, too much has been claimed in the statement of lien, or by reason of a failure of proof the claimant was denied the entire amount claimed. We think this case is of the latter description. Under his plead- ing the court below declined to consider the $20 item, and for reasons given we cannot allow him the amount here, if we shoulti find the statement filed would permit it, about which we find it unnecessary to express an opinion. A point is made over the matter of notice, defendant Almina La Fevre not having been served with notice. The object of si notice is to prevent the owner from paying the principal contractor, (Laws 1885, p. 297, § 5,) and in this case, as the contract was made with the owner, there was no necessity for a notice. Tlie validity of a lien does not de- pend upon the notice. Kirkwood v. Hoxie, (Mich.) 54 N. W. Rep. 721. The building for which this material was furnished was an hotel, with a wing; the latter, used for a barber shop, being entirely on the west half of lot 11, while the former was on the west half of lot 12, of block 19, in Bay City. The proof shows that the timber was used in both, which were being erected together, and it is not an unreasonable assumption that both were contemplated when the contract was made. We think they should be treated as one parcel, as defendant evidently treated them, and that the lien attached to both. The remaining qiiestion pertains to the homestead rights of Mrs. La Fevre. The defendants piu-chased the premises for a homestead before contracting, and moved up- on them before the statement of lien was filed, with the design of making it their home. They thereby made it a homestead, and the fact that the building erected and in which they reside is an hotel made no dif- ference. Mills V. Hobbs, 76 Mich. 122;^ King V. Welborn, 83 Mich. 199, 47 N. W- 1 42 N. AV. 1084. TIME OF PAYMENT. 11 Rt'p. lOG. To the n mount of $1,500 it was exempt from this lien. Beyond that sum the hen attaches, and, as the premises can- not be divided, a sale attords the only means of reaching the excess. To hold thatit could not be reached because indivisible woidd be to do violence to the plain intent of the statute, wliieh, wliile it aims to afford every one a shelter, was not designed to enable him to defeat creditors by so con-structing valuable property as to make it difficult to divide it. Tlie decree of the circuit court will be affirmed, with costs. The other jus- tices concurred. 12 SALJJ DISTINGUISHED FROM BAILMENT. CROSBY et al. v. DELAWARE & H. CANAL CO. (36 N. E. 332, 141 N. Y. 589.) Court of Appeals of New York. Feb. 27, 1894. Appeal from supreme court, gouornl term, third department. Action bj' Abel A. Crosby and others a.uainst the president, etc., of the Delaware iVc Hudson Canal Company for conversion of lumber. From a judg:ment of the general term (21 N. Y. Supp. 83) affirming a judg- ment for plaintiffs entered on a verdict, de- fendant appeals. Affirmed. For former reports, see 5 N. Y. Supp. 949, mem.; 8 N. Y. Supp. 936, mem.; 13 N. Y. Supp. 3t¥;; 21 N. Y. Supp. 83; 23 N. E. 736; 2S N. E. 363. F. L. Westbrook, for appellant. S. L. Stebbins. for respondents. GRAY. J. This action which, for the third time, is brought to our attention, was instituted to recover the value of a quanti- ty of lumber wrongfully talven and convert- ■ed, as the plaintiffs allege, by the defendant. It had been transferred to plaintiffs by the firm of G. & E. Harnden in payment of an indebtedness. The Plarndeus were engaged in the business of boat building upon the Delaware & Hudson Canal, and in Novem- ber, 1882. had contracted with the defendant to build two canal boats, dmung the coming winter, for delivery in the spring. In pur- suance of an order from them, the defend- ant, subsequently to the making of the con- tract, delivered at their yard lumber of the quality and quantity requested. The con- tract between the parties as to the building of the boats contained no obligation as to the ordering or the supplying of any lum- ber. When the lumber was sent, the de- fendant forwarded to the Harndens one of their printed bills, or a memorandum with blank spaces to be filled in by writing, head- ed: "Rondout, N. Y., Nov. 24, 1882. Messrs. G. & E. Harnden to the Delaware and Hud- son Canal Co.. Dr.," — and thereinafter speci- fying the number of feet, the kinds, sizes, and prices of the lumber, and the sum of the indebtedness. In December following, the Harndens failed, and applied their va- rious properties towards the discharge of the claims of creditors; transferring, as it has been said, this lumber to the plaintiffs by means of a bill of sale. The defendant, claiming to have always re- tained its ownersliip of tlie lumber, intro- duced evidence for the purpose of showing that the lumber had been furnished to the Harndens only to be used in the boats con- tracted for; payment to be made for it by deduction of its value from the price of the boats upon their completion in the spring It was shown that it was the custom for the defendant to furnish its own lumber to boat builders generally; but solely for the purpose of being used in the construction of boats it had contracted for, and with the un- derstanding that its cost was to be taken out when the boats were paid for. The evi- dence tended to show that this custom was known to the Harndens, and that, while in former years they had made cash payments for lumber obtained of the defendant, for some few years prior to this transaction, in November, 1882. they had maintained simi- lar contractual relations with defendant in the building of boats, ordering lumber of the defendant for the purpose of being put into boats, and having its cost deducted from the contract price of the boats. The defendant has contended that the ti'ansaction between it and the Harndens in the furnishing of this lumber constituted a bailment, only, of the lumber, and not a sale, and that its title to it was never to be severed until the lum- ber was actually used in the construction of the boats. Upon the first trial the trial judge followed that view, and nonsuited the plaintiffs. When from that trial it came here, we held that, upon the evidence, wheth- er it was a bailment or a sale of the lumber was a question for the jury to determine. We thought that the bill or memorandum sent with the lumber was some evidence that the transaction was understood as a sale, and that the custom of the defendant in supplying its lumber was not necessarily inconsistent with a sale. 119 N. Y. 334, 23 N. E. 736. Upon a subsequent trial the plaintiffs recovered a verdict, and wlien the case came here again, upon the defendant's appeal, the judgment was reversed, and a new trial ordered, because of error in the exclusion of evidence offered by the defend- ant in the testimony of the agent who sent the bill of sale or memorandum, however it may be termed, to explain the object or pur- pose in sending that paper. 128 N. Y. 6.j1, 28 N. E. 363. The agent was the company's paymaster, whose duty it was to send out such bills or statements, and w^e held that his testimony to explain the m'eaning of the bill being sent to the Harndens was not ob- jectionable as an attempt to vary any con- tract between the parties. It had been made use of by the plaintiffs as evidence of an admission by the defendant of there hav- ing been a sale of the lumber; and being, by reason of its informal character, consist- ent with either that view-, or with the view that it was merely a statement advising the Harndens of what had been delivered under their order, and of what they would have to account for, it was proper that the de- fendant should have whatever benefit might result from an explanation by its agent of his object in sending it. Had the evidence, aside from this bill, established that there had been a sale, then the explanation of the purpose in sending the bill might have been improper. Such an instrument is iisually deemed to be within an exception to the general rule of evidence, and, for its inform- SALE DISTINGUISHED FROM BAILMENT. Vi al and incomplete character, to be open to evidence in explanation and to throw li^'ht upon the contract between the parties. See I'hil. Ev. (Cow. & H. and Edw. Notes,) G72; Harris v. Johnston, 3 Cranch, 311. Upon the last trial, the evidence of the company's ajient in explanation of the purpose of send- iut,' the bill in question was admitted, and was to the effect that it was sent upon this occasion to the Harndens as it had been sent to them upon previous dealings, and, in accordance with the company's universal custom, to other parties, "as a memorandum of the lumber that they had. and as a memo- randum of the amount that had to be de- ducted from the contract price of the boat when the company settled for it," and that it was not sent for any other purpose. With that explanation of the company's agent, in conniNition with some testimony by other boat builders that the company furnished lumber to all of tbem upon the same terms, and for the sole purpose described by the company's agent, the defendant's counsel in- sists that the case was so complete for the defendant as to have made it the duty of the trial judge to decide the question, as one of law, in favor of the defendant, and to have nonsuited the plaintiffs. That the evidence preponderates in favor of the de- fendant's contention as to what the transac- tion amounted to cannot be doubted, and, as we have said upon the previous occasions when the case was under review, we again say that the equities militate, and the evi- dence tends, strongly against the claim of the plaintiffs. It is ditficult to understand how the jury could have come to the conclu- sion which they did upon any fair and con- scientious consideration of the proofs: but we cannot say that the case had been whol- ly removed from their province, and, if not, then we cannot interfere with their decision of the issue. It does not follow that, with the evidence of the company's agent in the case, however strongly supporting the com- pany's position, the plaintiffs were foreclosed from insisting upon the inconclusiveness of the evidence relied upon by the defendant, or ui)on certain opposing inferences being possible from the proofs, and that it was the province of the jm-y to consider and decide. Nor was anything else to be inferred from our previous opinion than that the evidence of the company's agent was admissible in its behalf upon the issues, in view of the use made of this bill by the plaintiffs, and to explain the object in sending it. However convincing the evidence, to the ordinary mind, that the defendant was right in its contention, it cannot be said that the facts depended upon were incapable of another aspect, or that, from the circumstances out of which they grew, and which bore upon the re- lations of these parties, it was impossible to infer that this transaction was not a sale of the lumber. It is the undoubted rule that in such actions the plaintiff must establish his title to, and riglit to the pusst-ssiun of, tho property alleged to have been wrongfully converted; and this was undertaken in this ca.se. The Harndens were in possession of the lumber, and apjiarently, from the bill rendered, were indebted fur it as upon a sale to them, and they had transferred it to plaintiffs by a bill of sale. It appeired th.it the Harndens had previously bought lumber of the defendant for cash, and tl;at. after au interview between a member of that firm and an officer of the company, the course of dealing was changed, and credit was given to them for lumber ordered and delivered. With lumber so obtained, bo.jts of otiier par- ties were repaired, and there was no proof that any restrictions were imposed upon its use. Nor did it appear that anything was said or written as to the title to this lumber being only conditional in the Harndens. Though its cost was to be received by tl)< defendant only when the boats were built, and then by way of deduction from the sum contracted to be paid for the boats, that was not necessarily conclusive upon the question of the ownership meanwhile, for the title t<- an article may pass upon a credit sale, if such be the intention of the parties. Anoth- er circumstance was that the company was not bound to accept and to pay for the boat^ until after inspection and approval; thus in troducing another element of possible doubi into the question of title. All these circum- stances, and some others of more or less im- portance, were open to the consideration of the jiu-y, in connection with fhe form of the bill for the lumber sent by the comi)any*s agent; and. as it has been already intimated, however strong may seem the inference to oitr minds that there was only a conditional sale or a bailment of the lumber, a different inference was permissible; so that, under the well-settled rule, the jury became the proper judges between the litigants, and their decision closes the dispute, in the ab- sence of any en'ors committed in the coiu'se of trial which woidd authorize us to order a new trial. The defendant's counsel requested the trial judge to charge "tihat if the jm-y find that the evidence given by Larter that the bill sent to the Harndens November 1*4. INSI'. was sent only as a memorandum of the quan- tity and of the quality of the lumber, and its value, is true, the bill is not an admission that the lumber was sold to the Harndens." —to which request be replied: "I decline to charge in those words, and will leave it as a question of fact, under all the evidence, for the jm"y to determine whether or not the lumber was sold." We think there was no error in this. Larter was the company's paymaster, and had testified that the bill had been sent as previous ones had been sent, namely, as a memorandum to show the amount to be deducted from the contract price of the boats when constructed. The eft'ect of that evidence upon the bill was for 14 SALK DISTINGUISHED FROM BAILMENT. the jury to decide. It was not legal error for the court to refuse to say what would become of certain evidence if certain other evidence was believed; nor was the coiu-t bound to put the proposition to the jury, if we assume its truth, as it was formulated by the counsel. Conley v. Meeker, S5 N. Y. 618. Therefore, when, in his reply to the request, the trial judge simply relegated the whole mat- ter to the jury, to be decided upon the evidence before them, he committed no error. In his charge he rem/.rked that "the intention with which a thing is done does not always con- trol the legal effect of the thing done." That is very true, and did not prejudice the de- fendant's case. That object which one may propose to himself in entering upon some transaction often fails of its accomplishment by the operation and intervention of rules of law. The judge sufficiently explained the bearing of the remark. When subsequently, upon the request of the defendant's counsel, be instructed the jury that the minds of con- tracting parties must meet to make a valid contract, that the question was one for the jury as to what the contract was, and that "if, from the circumstances, you are satisfied that it was the intention of both parties at that ti»ie that the title should pass,— that then- minds met upon that,— tben you may treat It as a sale; if, from the circumstances, you do not believe that the parties' minds met, you may treat it as no sale,"— he made it clear enough what part intention played in the transaction of the parties, and there should have been no confusion in their minds about it. The trial judge refused to charge "that the intent of Larter as to the sending of the bill, * * ♦ if Larter is believed by the jm-y, (""oes determine the legal effect of the sending of the bill." This was not error. As it has been said, Larter was following the usage in previous transactions, and though his own intention in sending the bill in that form may, nevertheless, have been to treat the matter as a bailment, and the bill as a mere memorandum, that could not control the real arrangement, if it was other- wise; and what that was the facts and cir- cumstances, taken all together, must be con- sidered and weighed, for the absence of any definite agreement upon the subject in words or in writings. We have scrupulously con- sidered these and other rulings upon re- quests to charge, and upon the admission and exclusion of evidence, and we are not able to say that there exists any error which would justify us in permitting the defendant to submit its case to the chances of another trial. The judgment should be affirmed, with costs. All concur. Judgment affirmed. SALE DISTINGUISHED FROM BAILMENT. 15 IRONS V. KENTNER. (50 N. W. 73, 51 Iowa. 88.) Supreme Court of Iowa. April 2(J, 1879. .\ppeal from circuit court, Tama county. Action against C. H. Koutner to recover the value of wheat depositetl by plaintiff and one Armstrong, who subsequently as- signed his interest to plaintiff, in defendant's elevator, and there destroyed bj' lire with- out defendant's fault. The receipt given Armstrong and plaintiff when the wheat was delivered was as follows: "Bought of T. K. Armstrong, for C. H. Kentner, to be delivered at his elevator, according to sam- ple, wheat No. 3, at owner's risk as to fire." A memorandum of the quantity of wheat was on the back of the receipt. It was ad- mitted at the trial that it was the custom to mix wheat when delivered at the elevator, and return owner's wheat of like quality, and to charge storage when the wheat re- mained in the elevator more than a month. .Tudgment for plaintiff. Defendant appeals. Reversed. A. W. Guernsey and O. H. Mills, for appel- lant. W. H. Stivers, for appellee. KUTHK.OCK, J. The question we are re- quired to determine is whether the transac- tion between the contesting parties consti- tuted a sale of the wheat or a mere bailment. The evidence shows that the wheat in ques- tion was not deposited in a common bin with other wheat, but that it was placed in a separate bin, where it remained unmixed with other grain until it was destroyed by fire. It further appears that no demand was made for the wheat by the plaintiff" or Arm- strong previous to the fire, but that the de- fendant, by his agent, offered the plaintiff 95 cents per bushel on the Saturday before the fire. In Johnston v. Browne, 37 Iowa, 20(J, the ticket or memorandum given by Browne on receiving the grain in the ele- vator was in these words: "Bought of H. T. Pickett, for W. P. Browne, to be deliver- ed at Browne's elevator, if all like sample of wheat, at $ . in store, buy- er, bushels, lbs." It was shown in that case, by extrinsic evidence, that the understanding of the parties was that Browne, the proprietor of the elevator, was to ship and sell the grain on his own ac- <-ouut, and, when the depositor desired to sell, Browne was to pay the highest price for the grain, or return a like quantity and quality. That transaction was held to be a sale, and not a mere storage or bailment of the grain. In Nelson v. Brown, 44 Iowa, 455, the ticket or memorandum delivered to the depositor of the grain was in these wol-ds: "Received of C. C. Co well, for Thompson, in store, for account and risk of C. C. Cowell, one hundred and eighty-three bushels No. 3 wheat. Loss by fire, heating, and the elements at the owner's risk. Wheat of equal test and value, but not the identical wheat, may be returned." It was held In that case that so hmg as the wheat remain- ed in the elevator, though thrown in a com- mon bin with wheat of like (luality, the transacHou was a mere bailment. It is there said: "But the warehouseman is not under obligation to retain the wheat of the de- positor in his warehouse. He may, without breach of contract, and without being guilty of conversion, ship the wheat away on his own account. "When he avails himself of this privilege, the character of the transac- tion and the relation of the parties change." In the case at bar the ticket or memoran- dum expresses no completed contract upon its face. In this respect it is unlike the contract in Marks v. Elevator Co., 43 Iowa. 146, where it was held the contract could not be explained by parol evidence, because it was complete in its terms. In this case no action can be maintained upon the in- strument without the aid of extrinsic evi- dence. Parol evidence is necessary to fix ihe price agreed to be paid if it should be held to be a contract of sale, and, whether a sale or mere l)ailmeut. parol evidence is necessary to explain the figures indorsed on the instrument. It was admitted the grain was delivered in pursuance of the alleged custom or usage, and it was shown that it was in the elevator in a separate bin when it was burned, and that tlie defendant of- fered to purchase it on the Saturday before the fire. These facts, when taken in con- nection with the ticket, show clearly that the transaction was not a sale, but a bail- ment. It is true that the word "bought" in the ticket, unexplained, would import a sale, but, when taken in connection with the ex- pression "at owner's risk of fire," and in the light of the parol evidence, it clearly ap- pears that a sale was not contemplated by the parties. "At owner's risk of fire" evi- dently means that, so long as the wheat should remain in the elevator, the jilaintiff should bear that risk. If it was a sale. It is not at all probable that any such words would have been used. In such case, the warehouseman would have assumed the risk witliout any stipulation to that effect. We think the case is clearly within the rule of Nelson v. Brown, supra, and that, as the identical wheat remained in the ele- vator, and was consume«l with it, the de- fendant is not liable. Reversed. 16 SALE DISTINGUISHED FROM BAILMENT. STURM V. BOKER et al. (14 Sup. Ct. 99, 150 U. S. 312.) Supreme Court of the United States. Nov. 20, ISO;?. Appeal from the circuit court of ttie United States for tlie district of Indiana. Reversed. Solomon Clayijool and Johu M. Butler, for appellant. Albert Balder, Wm. D. Guthrie, and C. A. Seward, for appellees. .Mr. Justice JACKSON delivered the opinion of Iho court. 'I'liis suit, as originally instituted, was an action at law l)y the appellant, in the supe- rior court of Marion county, lud., against the defendants, to recover the sum of $238,U(J0, with interest thereon, for which sum, the plaintiff alleged, they were indebted to him. The defendants, being citizens of New York, removed the cause to the circuit court of the United States; and, as the claim involved va- rious matters of account, rmuiiug through a period of several years, the court, on motion of the defendants, transferred the cause to the equity docket, and required the plain- tiff to reform his pleadings. In compliance with tliis order, the plaintiff tiled his bill of complaint, setting forth various transactions involving matters of account between him- self and the defendants, commencing in Sep- tember, 1867, and continuing down to Sep- tember, 1876. The answer of the defendants admitted many of the facts charged, and eillier denied others, or set up new matter in avoidance diereof. The several items of account presented by the pleadings jieed not be specially men- tioned, or separately considered, nor is it deemed necessary, in the view we entertain of the case, to review the immense volume of testimony taken in the course of the liti- gation, — covering about 4,000 printed pages, — involving irreconcilable conflicts, and includ- ing much that is wholly irrelevant. The ma- terial facts are clearly established by the written agi'eement of tlie parties, and by the admissions made in the pleadings; and the controlling question of law' arising thereon, and upon which the correctness of the decree dismissing the bill must be detennined, is whether the court below placed the proper construction upon the original contract en- tered into between the parties, under which the defendants consigned certain arms and numitions of war to the complainant, to be by him shipped to, and sold in, Mexico. That c-ontract, after some previous verbal negotia- ti(ms, was (embraced in the following corre- spondence: "Office of Hermann Boker Co., No. 50 Cliff Street. "New York, September 18th, 1867. '•General H. Stm-m, present. "Dear Sir: Inclosed please liud our bill of fetmdry arms, etc., amounting to $39,887.60, for whicii amount please give us credit on consignment account. "As mutually agreed, we consign these arms to your care, to be shipped to Mexico^ and to be sold there by you to the best ad- vantage. Should these arms not be dlsi.osed of at tlie Avhole amount charged, we have ta bear the loss. Should there bo any profit realized over the above amount of bill, such protit shall be equally divided between your- self and us. "Also, it is understood that all these goods are sliipi>ed by you free of any expenses to us, and that, in c;ise all or any of them should not be sold, Uiey shall be reiurued to us free of all charges. "As you have insured these goods, as well as other merchandise, we should be pleased to have the aiiiouut of $40,000 transferred to us. Please ackuowletlge the receipt of this, expressing your acquiescence in above, and oblige, '"Yours, truly, Hermann Boker & Co." Accompanying this letter was an invoice, in form as follows: "No deduction allowed for errors or dam- ages unless claiiu is made within five days after the goods are received. "Herman Funke. Folio . "F. A. Boker. "50 Cliff Street. New York, "F. Schumacher. Sept. 18th, 1867. "Mr. H. Sturm in joint acc"t with Hermann Boker & Co.: "Payable in gold. "Terms, net cash. "Forwarded for your account and risk, per 1 12-DOunder battery, brass, ccmplete $ 9,000 1 3-i'ifled battery, iron, com- pleto 8,000 $17,000 73 cases of 20 ea. | 1,470 Spring- > field R. mus- 1 " 10 « ) kets, 8.00... $11,760 74 cases, 3.50 259 13,019 1,000 r'tis fixed ammunition. 12 p., 2.00 $ 2,000 504 r'ds fixed ammunition, 24 pd., 2.00 1,008 209 boxes : lOD.OOO Enfleld cartridges, 12.00 1,203 100 boxes : 200,000 Maynards, 20.50 4,100 8,308 200 boxes : 670 pare, shell, 3 Hotchkiss, 1.25 $ 837 50 680 time fuse, 3 Hotchkiss, 1.25 S.'iO 00 270 case shot, 3 " 1.55 428 .50 ISO canister, 3 " 1.00 180 00 153 boxes, painted, 1.50 229 50 27 " not painted. 130 35 10 2,560 60 $3'J.887 60" To which complainant replied: "New York, Sept. 20th, 1867. "Messrs. Hermann Boker & Co. "Gents: I have the honor to acknowledge the receipt of your letter of the 18th inst., in SALE DISTINGUISHED FKo.M I'.A 1 L.MKNT. 17 which you inclose bill of sundry arms, amounting to $3'J,887.60, consijiucd to me upon certain conditions contained in said letter. "In reply, I have to say that I accept the terms of said conditions of consi.iininont, and, as soon as I obtain the policies of insurance upon said goods, will transfer them to you. "Very respectfully, your ob't servant, "H. Sturm." There was another consignment, the terms of which are contained in the letters of Oc- tober 24. 1807, as foUows: "New York, October 24th, 1867. "General H. Sturm, present. "Dear Sir: Inclosed we b g to hand you our bill for muskets, amounting to $10,175, for which please give us credit on consign- ment account. "As mutually agreed we consi.gn these arms to your care, to be shipped to Mexico, and to be sold there by you to the best advan- tage. "Should these arms not be disposed of at the amount charged we have to stand the loss. Should there be any profit realized over the above amount, such profit shall be equal- ly divided between yourself and us. "It is also understood that these goods shall be shipped by you free of any expenses to us, and that, in case they should not find a ready sale, they shall be returned to us free of all charges. "Please attend to the insiu-ance of this lot, and have the amount transferre2,200 of complainant's individual goods, and covered by 12 policies of insurance, amounting to .$103,000, was wrev-ked ou her voyage, without fault or negligence on the part of complainant, and her cargo was totally lost. The complainant had reached Havana, on his way to ^Mexico, when he learned of the loss of the Keese and her cargo, and promptly notified the defendants, by telegram, of the fact. The defendants thereupon called fo^ and received frosn the complainant's agent ii-. New York city the invoice which accom- panied the consignment of September 18, 1867, for the purpose of preparing and mak- ing proof of the loss. The insurance com- panies refused to pay the policies, on various grounds, which need not be noticed here. The complainant returned to New York in March. 1808, and, leai-ning that the insur- ance companies contested their liability for the loss, arranged with the defendants 'to institute suits against the companies to re- cover on the policies held by them, respec- tively. The def'Midants employed Mr. D:i Costa to sue upon the policies held by them, while the complainant employed Mr. Parsons to sue upon his. and the lawyers were to co-operate and a.ssist each other in the pros- ecution of all the suits. About the time this arrangement was made, the complainant opened a bank account with the defendants, and thereafter made deposits with and drew checks and drafts upon them, as his bankers, down to the latter part of 187.5. The litigation against the insurance com- panies continued until September 13, 1876, when the last collection upon the policies was made. During the progress of the liti- gation, the complainant tiu'ned over, or as- signed, to the defendants such judgments as he had obtained, and such policies standing in his name as had not been reduced to judgment, as alleged, for the purpose of convenience in collection and settlement, and with the view of having the amounts col- lected thereon placed to his credit. The fimds collected upon all the policies, amount- ing to about $109,000. went into the hands of the defendants. The complainant claims that his interest and that of defendants in the amounts recovei'ed is in the ratio of $152,200 to $29,327,— that being their rela- tive pi-oportion in the total amount of in- sm'ance, — and that the defendants ought to account to him according to that proportion, and pay their just share of the expenses in- cident to the collection thereof, as well as compensate him for his services in connection with the suits. These, and other smaller items of account, constitute the matters in controversy. While admitting the general facts in re- spect to the transaction, the defendants .set up in their answer that by the terms of the contract the <'omplainant became the in surer of the goods, and was boxmd thereby to either sell them in Mexico, and accoimt for the proceeds, or to return them to New York free of all exi>en.se to the defendants, and that, recognizing such liability, the com- SALE DISTIXGriSriED FRO.M BAILMENT. 19 plain.ant insured all the goods, making no distinction in tlio manner of such insm-unce between his indiviihial goods and the con- signed goods, and that the policies trans- ferred to the defendants by the complainant were transferred as collateral se;in'it.v for the performance of the contract, which was upon a gold valuation, and that no part of the policies was held in trust for the com- phiinant. On this theory, the defendants kept their account of the transaction in the name of the "Mexican Arms Account," in which the goods consigned were charged at the price of f.SD.SST.GO, and to this was added the pre- mium upon gold at 45 per cent., amounting to .$1T,!»4!>.42; and, on the aggregate of thesu two sums, interest was computed from Sep- tember, 1807, to May 1, 18S2, amounting to $r)8,S01.28. This account was also charged with the expenses connected with the suits on the policies turned over to them, amount- ing, with interest, to $16,710.72. Thevse ex- p(>nses consisted of attorneys' fees and sun- dry oiitlays for witnesses in connection with the suits. These various items were not charged or entered as debits against Sturra until 187G, when they were transferred from the ?dexican arms account to his account. The defendants' coustiTiction of the con- tract, and method of keeping the account, was not communicated to the complainant until some time in 1876, when he promptly denied its correetness. The court below adopted the defendants' inteipretation of the contract, holding that the consigned goods were at the risk of complainant; that he was responsible for their loss, although aris- ing from inevitable accident, t)ecause he had undertaken to I'eturn them if not sold; and that, being so responsible, the defendants had a right to charge him with the value thei-eof, and treat the policies turned over to them as collateral security for this lia- bility, and were, furthermore, entitletl to charge him with the expenses of collecting such policies, so that the complainant was entitled to credit only for the net amounts collected thereon. For .this, and the further reason, as the court assumed, that the com- plainant had given testimony in the insur- ance cases, and made admissions under oath, which were inconsistent with his present claim, and which should repel him from a court of equity, his bill was dismissed. If, by the terms of the contract, as em- bodied in the lettere of September IS and October 24. 1867, the title to the goods vest- ed in the complainant, or they were to be at his risk dui-ing their transit to ^Mexico, then it is conceded that upon an adjustment of the accoimts between the parties on that ba- sis, with the allowance to the defendants of a premium of 45 per cent, for gold, tliere is little or nothing due to the complainant, and no substantial error in the decree dismissing his bill. On the other hand, if the title to the goods delivered did not vest in the com- plainant under the terms of the consign- ment, or he was not responsible for the loss of the sjime by inevital)le accident, then the court below was in error in dismi.ssing his bill, and denying the account sought. It is too clear for disciLssion, or tlie citation of authorities, that the contract was not a sale of the goods by the defendants to Sturm. Tlie terms and conditions under which the goods were delivered to him import only a consignment. The words "consign" and "consigned," employed in the letters, were iLsed in their commercial sense, which meant that tiie i)rop('rty was committed or iutiiist- ed to Sturm for care or sale, and did not, by any expre.ss or fair implication, mean the sale by the one, or purchase by the other. The words, "Mr. H. Sturm in joint account with Hermann Boker & Co.," or "I'xmght of Hermann Boker & Co., in joint ac((;unt," in the billhead, cannot be allowed to control the express written terms contained in the con- tract, as set forth in the lettei-s. A printed billhead can have little or no influence in changing the clear and explicit language of the lettei*s, and it in no waj' controls, modi- fies, or altei-s the terms of the contract. The purpose and object of the bill were to give a description and valuation of the arti- cles to which the contract, as embraced in the letters, had reference; their description being important, if the articles had to be re timied. and their price or valuation neces saiy, if they were sold, and profits weiv made for division. The contract being chnir- ly expressed in writing, the printed billhead of the invoice can, upon no well-s<'ttler them the policies which they wisluxl appro- priated to secure their interest. The act of taking out the insurance, in the manner in which it Avas done, was their act. as much as it was the act of Sturm; and the insur- ance having been thus effected in no way tends to establish the contention that it war^ a recognition of Sturm's liability for the los.s of the goods. It is not material to determine whether the complainant ever indorsed and transfen-ed these four policies to the defendants, or. if so. whether it was dcme at tlie time of their de- livery, or subseciuently, for no such assign- 22 SALE DISTINGUISHED FROM BAILMENT. mont or transfer thereof was necessary to have I'liabh'd the defendauts to recover on the policies for the loss of cargo, to the extent of their interest in the same; it being well set- tled that under a policy running to Sturm, "for account of whom it might concern," the defendants could show and recover their interest, in the event of loss. It was so ruled by this court in Hooper v. Robinson, 98 U. S. r)28, where it was said "that a policy up- on a cargo in the name of A., 'on account of whom it may concern,' or with other e(iuiva- lent terms, will inure to the interests of the party for whom it was intended by A., pro- vided he, at the time of effecting the insur- ance, had tlie requisite authority from such party, or the latter subsequently adopted it." In the present ease, Sturm had the requi- site authority of the defendants to make the insurance on the consigned goods, as was tes- tified to by the insurance broker, and as shown in their letter of September 18, 1867, in which thej' say: "As you have insured these goods, as weU as other merchandise, we should be pleased to have the amount of $40,000 transferred to us." It is clear that the insurance, to the extent of $40,000, was intended to cover the interests of the defend- ants in the consignment of September 18, 1807; and, in tlie absence of any delivery or tran.sfer of policies representing that in- terest, this could have been shown by them, so a.s to entitle them to the benefits of such insurance. It is next urged — and the court below seems to have taken the same view of the matter- that the complainant is estopped from deny- ing his responsibility for the loss of the goods because of alleged statements made by him as a witness in the suits upon the insur- ance poUcies. It is claimed that in those suits he testified under oath that he wa.s the owner of the goods, and thereby precluded himself from asserting anything to the con- trary in this case, under the wise and salu- taiy doctrine which binds a party to his ju- dicial declarations, and forbids him from subsequently contradicting his statements thus made. We do not controvert the sound- ness of this general rule, as laid down in the cases cited by the defendants. Dent v. Ferguson, 132 U. S. 50, 10 Sup. Ct. Rep. 1-3; Creath's Adm'r v. Sims, 5 How. 192; Wheel- er v. Sage, 1 Wall. 518; Seltz v. Unnn, C. Wall. .327; Kitchen v. Rayl)urn, 19 Wall. 2.54; Bartle v. Coleman, 4 Pet. 184; Sample V. Barnes, 14 How. 70; Hannauer v. Wood- ruff, 15 Wall. 4:59; Higgins v. McCrea, 116 U. S. 671. 6 Sup. Ct. Rep. 557; Cragin v. Powell, 128 U. S. 091, 9 Sup. Ct. R-p. 203; Prince Manuf'g Co. v. Prince's Metallic Paint Co.. 135 N. Y. 24, 31 N. E. Rep. 990; Ste- phens V. Robinson, 2 Cromp. & J. 209; Har- mer v. Westmacott, 6 Sim. 284; De Metton V. De Me'lo, 12 East, 234; Post v. Marsh, 10 Ch. Div. 395; In re Great Berlin Steamboat Co., 26 Ch. Div. 616. But the question here is whether the statements made by the com- plainant in the insurance suits bring him within the operation of this w'holesome rule. We think not, for it would be pi-essing his language to.) far to hold that he made any positive' statement to the effect that he was tlie absolute owner of the goods, or that he admitted as a matter of fact, rather than of opinion, that he was responsible for their loss. What he did state, when his testimony is read as a whole, was that he was the own- er on consignment, for when the direct ques- tion Avas put to him, "What do you mean by being the owner for the time being?" his reply was: "That they were delivered to me by Hermann Boker & Co. under that agree- ment, and I was responsible for those goods until they were returned, or until I deliv- ered the money to them. This is what I mean." And, in reply to another question, he stated that "the terms on which I was the owner were expressed in the papers I fui'- nislied," referring to the letters of September 18 and October 24, 1867. And to the further question whether he unilerstood that those contracts made the goods his property, hi& answer was, "I understood so at the time, certainly, and I believe so yet." This language did not mislead or induce either the defendants or the insiu'ance com- panies to alter or change their position in any respect whatever, nor influence their conduct in any way. Both the defendants and the iiusm'ance companies had the written con- tracts before them, and were presumed, as a matter of law, to know their legal effect and operation. What the complainant said in his testimony was a statement of opinion upon a question of law, where the facts were equally well known to both parties. Such statements of opinion do not operate as an estoppel. If he had said, in express terms, that by that conti'act he was responsilde for the loss, it would have been, under the cir- cumstances, only the expression of an opinion as to the law of the contract, and not a dec- laration or admission of a fact, such as would estop him from subsequently taking a differ- ent position as to the true interpretation of the written instrument. In Brant v. Iron Co., 93 U. S. 326, it was sad: "Where the condition of the title is known to both p:u"ties, or both have the same means of ascertaining the truth, there can be no equitable estoppel." So in Brewster v. Striker, 2 N. Y. 19, and Norton v. Coons, 6 N. Y. 33, and approved in Chatfield v. Simonson, 92 N. Y. 218, where it was ruled "that the assertion of a legal con- clusion, where the facts were all stated, did not operate as an estoppel iipon the party making such assertion." In Bigelow, Estop. (5th Ed.) § 2, p. 573. it is properly said: "The rule we apprehend to be this: That where the statement or con- duct is not resolvable into a statement of fact, as distinguished from a statement of SALE DISTINGUISHED FROM HAIL.MK.NT 23 opinion or of law, and does not amount to a contract, tlio party making it is not bound, unless he was j?uilty of dear moral fraud, or unless he stotxl in a relation of conlidence towards him to whom it Avas made. If the stat(»ment, not being contracted to be true, is und(;rsto(Kl to be opinion, or a conclusion of law, from a comparison of facts, proposi- tions, or the like, and a fortiori if it is the declaration of a supposed rule of law, the l)arties may, with the (lualilic'ation stated in the last sentence, allege its incorrectness." And again, (section 2, p. 571:) "A representa- tion in pais, in writing, when not a part of a deed, or made the subject of a contract, though on oath, is no more efficacious, so far UiS the question of estoppel is concerned, than a verbal statement." These authorities lay down the correct rule to be applied in the present case, and, tested by the principle they announce, the com- plainant is not estopped from claiming his rights under a proper construction of the con- tract, notwithstanding what he said in the insiu-ance cases. The grounds of estoppel against the com- plainant are not nearly so strong as tliey are against the defendants. It is clearly shown that Funke, a member of defendants' firm, in March, 187G, on the trial of the suit against the New York Mutual Insm'ance Company upon one of the policies in question, distinct- ly swore that the complainant was indebted to them only to the extent of $32,000, and that they had no security whatever for the payment of that indebtedness. In his testi- mony in the present case, he fails to explain that sworn statement. That sworn staten.ent is inconsistent with the claim now made,— that the complainant was at that time in- debted to the defendants to the amoimt of over $140,000,— and it is furthermore incon- sistent with the position now taken,— that they held all tiie insurance policies, amount- ing to $1G;>,000. as collateral security for complainant's indebtedness. These sworn statements of Funke related to facts which were as well, if not better, known to the witness at that time than in 1SS2, and subse- quently, when he testitied in this case. TTiose statements are unexplained, and if they do not operate as an estoppel upon the defendants from now claiming a larger in- debtedness than was then stated, and from claiming that all the policies were turned over to them as collateral security, they cer- tainly cast suspicion and discrt'dit upon their testimony in the present case. The question of estoppel need not be fiu-ther discussed. Upon the written contract, and all the rel- evant and competent evidence connected therewith, we are of opinion that the con- struction which the lower com't placed upon the contract was incoiTect; that the com- plainant was not an insurer of the goods; that he was not responsible for their lo.ss; that the policy of $1.5.000 on the cargo of the Blonde, turned over to the defendants, was intended to cover tlieir interest in that con- signment, amounting to $10,."itjO, and that the four policies on flie Kcese's cargo, delivered to them, were to jjrotect tlieir inie.-est in the consigned goods eai-riisl by that vessel, to the extent of $2!»,;527; that they held these poli- cies to pay tliat amount in case of loss, and that the surplus, if any, was to Ix- held in trust for the complainant. But if there wen- any doubt on this question Exhibits H and F, which were produced by the comi)laiiiant during the progre.ss of the suit, i)lac<' the matter beyond all dispute. Said exhibits are a.s follows: "Exhibit H. "New York, October 11th, 1807. "Memorandum. "We have received from John.son & Ilig- gins $103,000 policies on the schooner Keese, and $30,000 on the brig Blonde, as per state- ment attached. We directed them to insure our goods for $40, WO, which covers our bill of Septend)er 18th, and premium, but no profit. To enable us to sel(H.-t our policies, Genei-al Sturm has indorsed in blank five policies, amounting to $70,000, as follows: On Keese, the Orient Mutual, $1.".000, and New York Miitual. .S12..'ion; Sun JNIutual, $12,.j00, and Mercantile .Mutual. $lo,0(X). On Blonde, the United States Lloyds policy for $l.j,000, which we have taken as ours. Leaving a balance for us to select on Keese of $2.">,()i><), of which we have so far selected only the Orient, and, as we cannot divide the policies to suit us, we hereby agi'ee this day to j keej) all the fom- policies on the Keese g for the joint acc(mnt of om'selves and -^ General H. Sturm, and. in case of any § j accident or loss, we will collect the amount of the policies from the com- panies, and pay over to General Sturm his share, viz. 30-.J.') of the whole amoimt collected; and Ave also agree to paj' the premium notes for our share of the policies, and to stand all loss, if any should happen to our goods. General Sturm is to bear the shipping expenses, only, and in no event shall he be held responsible for any accident or damage, or any act of the Mexie.in government; but in case he cannot sell the arms at the price agreed upon, and has to return them, he shall insure I them for our account. "The foregoing is hereby fully approved and agreed to. Hermann Boker & Co." "Exhibit F. "Memoranduin. We have insured our goods on tlie Keese and Blonde for a maxi- mum of $40,000, which includes the pre- mium, which we have to pay. In case of accident, we select ovu- policies, and we stand all loss, and Gl. Stm-m pftTS sMnpt"" SALE DISTIXcniSlIEl) FKOM BAIL^EENT. expousi'S. only. We hold iu trust for (Ji'iil. Sturii] .$;i(),(KK) policies on the Keose, and also a package of ^Mexican bonds left over from the $10r),000 delivered to us Septbr. 2()tli. We also now direct Gl. Sturm to dispose of the batteries at any price. '•Steamer Wilniinjrton, October 2."), '07. "Hermann Bolcer «& Co." Tliese exhibits were vigorously attacked by the defendants, w'ho at first claimed that botli the body and signatiu'es of the docu- ments were forgeries. Tliey afterwards ad- mitted that the signatures were genuine, but insisted that the writing above them was lV)rged. A great deal of proof was taken to establish this contention, but it fails, in om- opinion, to show that these documents were forgeries. The signatures being gen- uine, the burden of proof was clearly upon the defendants to estabhsh that the written part above the signatures was forged. The d(>lay in the pi'oduction of these documents is fairly accounted for by the complainant, and they are in harmony with what, we tliink, was the true nature and character of the contract and agreement of the parties. Some reliance is i)laced upon what is called a statement of his accoimt made to Sturm in Indianapolis in May, IST.j. by Boker-, »me of defendants' firm. This account was clear- ly a partial one. It was made up by Rabing, the bookkeeper of defendants, — not from their books, but from memoranda furnished him by Boker,— but from what source he ob- tained it does not appear. The correctness of the account— shown by loose slips of pa- per and imperfect memoranda— was dis- puted by Sturm, and it is now conceded by defendants that it was not a full and ac- curate statement. Sturm claimed that they had not given him credit for money collected on his insurance policies, and that when they were all included the defendants would be indebted to him. The circumstances at- tending the presentation of this account, made at a time when Sturm was contem- plating going into bankruptcy, tends strongly to show that the defendants were endeavor- ing to induce him to admit a much larger indebtedness to them than really existed. in order to give them an advantage in the event of bankruptcy. But, however that may l)e, there was no stated account ac- cei)ti'd or acquiesced iu by Sturm, such as would either conclude or require him to stu-- charge and falsify the same. We have not deenunl it necessaiy to de- termine whether the September invoice had on it the printed words "Payable in Gold" when it was delivered. Those words form no part of the contract, as en)bodied in the letter of September IS, ISi'.T, and complain- ant's acceptance therc^of. They do not im- pose upon the complainant the liability to account for the value of the goods, in gold, in the event of loss by inevitable accident; and not being resi)onsible for the goods, nor liable for the loss thereof, neither he, nor the jjroceeds of his insurance policies, can prop- erly be sul)jected tO' the burden of making good either the defendants' loss, or paying such losses in gold. The insurance, as de- fendants admit, was not on a gold basis, but only for the invoice price of the goods in cmTency. The complainant was not an insurer, nor in any way liable for even the currency value of the consigned goods, and it would be a perversion of the contract, and inequitable, to require either him or his pol- icies to compensate the defendants for their loss in gold. We think the complainant has failed to make out a claim to compensation for his services in attending to the suits against the insm-ance companies. In our opinion the complainant is entitled to the account he seeks by his bill, in which he should be credited with the amounts re- ceived by the defendants on the insurance policies in the proportion of $1."'/2,2GG to $29,- 327, that being their relative interest in the cargo of the Keese; that the expenses of the litigation, including counsel fees, shoiild be divided between the parties on the same basis; that the complainant is entitled to one-half of the sum of .$l,4ij3.84. paid by way of general average on the goods shippfMl on the Blonde; to the further sura of $072.08, for r(>pairing the goods w^hich reached Mex- ico in a damaged condition; and for what- ever defendants realized on complainant's life insurance policies, and on. the notes aris- ing from the sale of the Indianapolis lots, if the amount so realized did not have to be repaid in taking up the notes; and with such other amounts as he may have placed in the hands of the defendants, either in the bank account or in the transaction connected with the insurance policies; and the defend- ants will be credited with all the amoimts paid to and for the account of complainant not covered by the foregoing rulings. The account will be stated up to the filing of the bill, and any balance shown in favor of either side will bear interest from that date. The decree is reversed, and the cause is remanded to the court below, to be proceed- ed with in conformity with this opinion. So ordered. SALE DISTINGUISHED FROM BAILMENT. 26 <"IJOSBY et al. v. DELAWAItE & II. CANAL CO. (23 N. E. 736, 119 N. Y. ;«4.t Totirt of Appeals of New York. Eeh. 2."». ISOO. Appeal from supreme court, general term, third department. .\ftion ))y Abel A. Crosby and others !i;iainst tlie prewident, manaj^'er. and coui- l^any of the Delaware & llud.sc>n Canal Company, for conversion of lumber. The lumber had been ordered from defendant by the firm of <;. & E. Harnden. who had a rontrart to build boats for defendant, and this firm thereafter executed a bill of sale of the lumber to plaintiffs in consider- ation of an indebtedne.ss to them. Delend- ant afterwards took the lumber. A juaj?- ment for plaintiffs was reversed by the general term, and a new trial ordered, (40 Hun, G37, mem.,) and on the new trial the complaint was dismissed. The judgment of dismissal was affirmed at general term, anosed be lial)le for the value of the lumber as ujion a purchase and sale, and possibly the defendant might enft>rce a lien on the boats to the extent of such value, in view of the circumstances. There was no ob- jection in law to an arrangement between the defenrlant and the Harndens that, un- til the lumber was actually used for the purpose intended, the title should remain in the defendant. The point is whether the evidence conclusively establishes this to have been the arrangement, or could the jur3- have been permitted, if the case had been submitted to them, to find that the t ransaction at the outset was a sale to the Harndens. The contract for the boats was made November 8, 1882, by the accept- ance by the Harndens of a written prop osition of the defendant that if they would build two boats during the folhjw- ing winter, for delivery in the spring, "the company will lake them at twelve hun- dred dollars, ($l,20(j,) subject to insp(*tion and approval by the company inspwtor. " The lumber in question was (ordered by the Harndens of the defendant's agent, No- vember 21, l^*x2, and was delivered on or about the 24th. The conti-act for building the boats did not reijuire the defendant to furnish any of the lumber, nor did it re- quire the Harndens to procure any from the defendant. The order for the lumber specified kinds and quantities, but no prices. The defendant's agent, on for- warding the lumber, sent a bill fcjr the lumber, commencing. " Messrs. O. & E. Harnden, to the Delaware & Hudsd in mercantile busi- ness, with a capital of .$5,000. should, from time to time, buy and pay for .$100,000 worth of goods, in the aggi'egate, which he had sold, and got his pay. According to this doctrine, he coidd recover back the $100,(JO0 which he had paid to the various parties from whom he hiid bought the goods. Not only would such a rule work great injustice to others, but it would be positively injurious to the infant himself. The policy of the law is to shield or protect the infant, and not to debar him from the privilege of contracting. But, if the rule suggested is to obtain, there is no foot- ing on which an adult can deal with him, ex- cept for necessaries. Nobody could or would do any business with him. He could not get his life insm-ed. He could not insure his property against fire. He could not hire servants to till his farm. He could not im- prove or keep up his land or buildings. In short, however advantageous other contracts might be to him, or however much capital he might have, he could do absolutely nothing, except to buy necessaries, because nobody would dare to contract wi«th him for any- thing else. It cannot be that this is the law. Certainly, it ought not to be. The following propositions are well settled, everywhere, as to the resciudable contracts of an infant, and in that category we include all contracts except for necessaries: First. That, in so far as a contract is executory on pait of an infant, he may always interiwse his infancy as a defense to an action for its enforcement. He can always use his infancy as a sliield. Second. If the contract has been wholly or partly performed on his part, but is wholly executory on part of the other party, the minor therefore having received no benefits from it, he may recover back what he has paid or parted with. Third. Where the contract has been wholly or partly performed on both sides, the infant may al- ways rescind, and recover back what he has paid, upon restoring what he has received. Fourth. A minor, on arriving at full age, may avoid a conveyance of his real estate without being required to place the gi-antee in statu quo. although a different rule has sometimes been adopted by courts of equity when the former infant has applied to them for aid in avoiding his deeds. Whether this distinction between conveyances of real prop- erty and personal contracts is founded on a INFANT?!. 29 technical rule, or upon considerations of ixjli- cy gi-owinj? out of the difference between real and personal property, it is not necessary here to consider. Filth. Wliere the contract has been wholly or partly performed on both sides, the infant, if he sues to recover back what he has paid, must always restore what he has received, in so far as he still retains it in specie. Sixth. The courts will always l^Tant an infant relief where the other party has been suilty of fraud or undue influence. As to what would constitute a sutticieut fe'round for relief under this licad, and what relief the courts would grant in such cases, we will refer to hereafter. But suppose that the contract is free from all e >ments of fraud, unfairness, or over- reach .ig, and the infant has enjoyed the benelits of it, but has spent or disposed of what he has received, or the benetits received are, as in this case, of such a nature that they cannot be restored. Can he recover back what he has paid? It is well settled in England that he cannot. This was held in the leading case of Holmes v. Blogg, 8 Taunt. .jOS, approved as late as ISOU in \vd- eutini v. Caiiali, 24 Q. B. Div. 106. Some obiter remarks of the chief justice in Holmes v. Blogg, to the effect that an infant could never recover back money voluntarily paid, were too broad, and have often been disap- proved, — a fact which has sometimes led to the erroneous imprt^ssion that the case itself has been overruled. Corke v. Overton, 10 Bing. 252 (decided by the same court), held that the infant might recover back what he had voluntarily paid, but on the ground that the c-ontract in that case remained wholly ex- ecutory on part of the other party, and hence the infant had never enjoyed its benefits. In Chitty on Contracts (volume 1, p. 222), the law is stated in accordance with the decision in Holmes v. Blogg. Leake,— a most accu- rate writer, — in his work on Contracts (page .■>53), sums up the law to the same effect. In this country. Chancellor Kent (2 Kent, Comm. 240), and Reeves in his work on Do- mestic Relations (chapters 2 and 3, tit. "Par- ent and Child"), state the law in exact ac- cordance with what we may term the "Eng- lisli rule." Parsons, in his work on Contracts (volume 1, p. 322). undoubtedly states the law too broadly, in omitting the qualification, "and enjoj-s the benefit of it." At least a re- spectable minority of the American decisions are in full accord with what we have termed the "English rule." See. among others. Riley V. Mallory, SJ Conn. 20G; Adams v. Beall, 07 Md. 53, 8 Atl. 004; Breed v. Judd, 1 Gray. 455. But many — perhaps a majority— of the American decisions, apparently thinking that the English rule does not sutliciently protect the infant, have modified it; and some of them seem to have wholly repudiated it, and to hold that although the contract was in all respects fair and reasonable, and the infant had enjoyed the benefits of it, yet if the in- fant had spent or parted with what he had received, or if tlie benefits of it were of such a nature that they could not be restored, .still he miglit recover back what he had paid. The pnjblem with the courts seems to have been, on the one hand, to protect the infant from the improvidence incident to his youth and inexperience, and how, on the other hand, to compel him to conform to the principles of tx>mmon honesty. The result is that the American authorities— at least the later ones — have fallen into such a condition of conflict and confusion that it is difficult to draw from them any definite or uniform rule. The dis- satisfaction with what we have termed the "English rule" seems to be generally based upon the idea that the courts would not grant an infant relief, on the ground of fraud or undue influence, except where they would grant it to an adult on the same grounds, and then only on the same conditions. Many of the cases, we admit, would seem to sup- port this idea. If such were the law, it is obvious that there would be many cases where it would furnish no adequate protec- tion to the infant. Cases may be readily imagined where an infant may have paid for an article several times more than it was worth, or where the contract was of an im- provident character, calculated to result in the squandering of his estate, and that fact was known to the other party; and yet if he was an adult the court would grant him no relief, but leave him to stand the con.se- quences of his own foolish bargain. But to measure the right of an infant in such casus by the same rule that would be applied in the case of an adult would be to fail to give due weight to the disparity between the adult and the infant, or to apply the proper stand- ard of fair dealing due from the former to the latter. Even as between adults, when a transaction is assailed on the ground of fraud, undue influence, etc., their disparity in intelligence and experience, or in anj- other respect which gives one an asc-endency over the other, or tends to prevent the latter from exercising an intelligent and unbiased judg- ment, is always a most vital consideration with the courts. Where a contract is im- provident and unfair, courts of equity have frequently inferred fraud from the mere dis- parity of the parties. If this is true as to adults, the rule ought certainly to be applied with still greater liberality in favor of in- fants, whom the law deems so incomjietcnt to care for them.selves that it holds them incapable of binding themselves by contract, except for necessaries. In view of this dis- parity of the parties, thus recognized by law, eveiy one who assumes to contract with an infant should be held to the utmost good faith and fair dealing. We further think that this disparity is such as to raise a presuiniition against the fairness of the contract, and to cast upon the other party the burden of prov- ing that it was a fair and reasonable one, and free from any fraud, undue influence, or overreaching. A similar principle applies to 30 INFANTS. all the relations, where, from disparity of years, intellect, or knowledge, one of the par- ties to the contract has an ascendency which prevents the other from exercising an un- biased judgment,— as, for example, parent and child, husband and wife, guardian and ward. It is true that the mere fact that a person is dealing with an infant creates no "fiduciary relation" between them, in the proper sense of the term, such as exists be- tween guardian and ward; but we think that he who deals with an infant should be held to substantially the same standard of fair dealing, and be charged with the burden of proving that the contract was in all respects fair and reasonable, and not tainted with any fraud, undue influence, or overreaching on his part. Of course, in this as in all other cases, the degree of disparity between the parties, in age and mental capacity, would be an important consideration. Moreovei*, If the contract was not in all respects fair and reasonable, the extent to which the in- fant should recover would depend on the nature and extent of the element of unfair- ness which characterized the transaction. If the party dealing with the infant was guilty of actual fraud or bad faith, we think the infant should be allowed to recover back all he had paid, without making restitu- tion, except, of course, to the extent to which he still retained in specie what he had received. Such a case would be a con- tract essentially improvident, calculated to facilitate the squandering the infant's estate, and which the other party knew or ought to have known to be such, for to make such a contract at all with an infant would be fraud. But if the contract was free from any fraud or bad faith, and otherwise reasonable, ex- cept that the price paid by the infant was in excess of the value of what he received, his recovery should be limited to the difference between what he paid and what he received. Such cases as Medbury v. Watrous, 7 Hill, 110; Sparman v. Keim, S3 N. Y. 24.5; and Heath v. Stevens, 48 N. H. 251,— really pro- ceed upon this principle, although they may not distinctlj' announce it. The objections to this rule are, in our opinion, largely imag- inary, for we are confident that in practice it can and will be applied by courts and juries so as to Avork out substantial justice. Our conclusion is that where the personal contract of an infant, beneficial to himself. has been wholly or partly executed on both sides, but the infant has disposed of what he has received, or the benefits recovered by him are such that they cannot be restored, ho cannot recover back what he has paid, if the contract was a fair and reasonable one. and free from any fraud or bad faith on part of the other pai'ty, but that the burden is on Ilu> other part.v to prov(» that such was the character of the contract; that, if the con- tract involved the element of actual fraud or bad faith, the infant may recover all he paid or parted with, but if the contract involved no such elemc^nts, and was otherwise reason- able and fair, except that what the infant l)aid was in excess of the value of what he received, his recovery should be limited to such excess. It seems to us that this will sutliciently protect the infant, and at the same time do justice to the other party. Of course, in speaking of contracts beneficial to the infant, Ave refer to those that are deemed such in contemplation of laAV. A])plying these rules to the case in hand, we add that life insurance in a soh'ent com- pany, at the ordinary and usual rates, for an amount reasonably commensurate Avith the infant's estate, or his financial ability to car- ry it, is a provident, fair, and reasonable con- tract, and one Avhich it is entirely proper for an insiu-ance company to make with him, as- suming that it practices no fraud or other unlaAA'ful means to secure it; and if such should appear to be the character of this con- tract the plaintiff could not recover the" pre- miums which he has paid in, so far as they Avere intended to cover the current annual risk assumed by the company under its pol- icy. But it appears from the face of the pol- icy that these premiums covered something more than this. The policy provides that after payment of three or more annual pre- miums the insured Avill be entitled to a paid- up, nonparticipating policy for as many tA\-entieths of the original sum insured (.$1,- 000) as there have been annual premiums so paid. The complaint alleges the payment of four annual premiums. Hence, the plaintiff was entitled, upon surrender of the original policy, to a paid-up, nonparticipating policy for $200; and it therefore seems to us that, having elected to rescind, he Avas entitled to recover back, in any event, the present cash "surrender" value of such a policy. For this reason, as Avell as that the burden was on the defendant to prove the fair and honest character of the contract, the demurrer to the complaint Avas properly overruled. The result arrived at in the former opinion Avas therefore correct, and is adhered to, although on somcAvhat different grounds. Order af- firmed. BUCK, J., absent, sick, took no part. GILFILLAN, C. J., dissents. INFANTS. 31 BLOOMINGDALE v. CIIirTENDEN. (42 N. W. l()."). Bill by the Pemberton BnihliiiR & Loan Associiitlon ajjaiiKst George L. Adams. De- cree for complainant. Joseph H. Gaskill, for complainant. John W. Wharton, for dolVndaut. BIRD, V. C. The principal question in this case is whether the defendant, George L. Adams, represented hims'elf to be of age, and on such representations secured the loan of the moneys named in the mortgage. The evidence sho\vs that when the parties were neg.)tiating the person making the loan ask- ed Adams if he was of age, to which Adams replied that he was. That such inquiry was made is not only established by the testi- mony of the person who made it, but by a bystander, who distinctly heard the inquiiy, but did not hear the answer thereto, although he swears that something was said by way of replj-. Adams says he made no represen- tations concerning his age. I have no doubt but the inquiry was made, and that the an- swer was purposely false. It is equally '-loar that the statement that he was of age was relied upon; and that the loan would not have been made if the answer had been ac- cording to the fact. The law will not, under such circumstances, allow a frauddoer to protect himself imder the plea of infancy. Jones, Mortg. § (i31; Herm. Estop, p. 1232, §S 1100, 1118; Id. p. ]2.->3. § 119; Parker v. Hayes, 39 N. J. Eq. 478, 479; Id., 41 N. J. E(i. 631, G33. 7 Atl. 511; 2 Pom. Eq. Jur. §§ 780, 945. In the next place, Adams, after coming of age, retained the possession of this property, and claimed and enjoyed all the benefits of a conveyance thereof, and now raises this defense of infancy without offering to return the consideration money. L-nder these circumstances, his liability con- tinues, even though there had been no fraud. Jones, Mortg. §§ 104, 105; Herm. Estop, p. 1257, § 1121; 3 Wait, Act. & Def. 44.3, and many cases there cited; 1 Story, Eq. Jur. § 385. The complainant is entitled to a de- cree, with costs. I will so advise. 1. NT A. NTS. 33 STACK V. CAVA.\Ar(H ct al. (30 Atl. :;.-)(•.) Supremo Court of New Hauipshin'. Ilillslior- ough. March 11, l,s;)-_'. Assumpsit by Timothy Stack ajiainst Cav- auaiif^li Bros, to recover money i)ai(l in tlie I)urchase of a horse. Juilfjment for phiiiitiff. At an auction sale of hors«*s by tlie defend- ants October 11'. ISSt!. the plaintiff bid off a Lor.se at the price of $112.51), Avhich was de- livered to him on payment of .$2r». and upon the uuderstandins tliat the balance of the price was to be secured by note and a niort- yajie upon the horse. The plaintiff took the horse away, and, upon harnessiufj him to a wagon, found that he wtus unable to drive him. The plaintiff took the horse back to the defendants' stable that niiiht, told tliem the horse woidd not go, and ask(>d them to refund the $2r>. The defendants declined to pay back the money, but offered to exchange horses witli tlie plaintiff; and another horse, which they bought in the west, had had but a few days, and had driven two or three times, was harnessed, and the plaintiff rode after him, but concluded not to take him. The plaintiff left the horse at the defend- ants' stable, and requested them to do the best they could with him. Upon harnessing the horse the next morning, he was foiuid to be toutrax-y and unmanageable, and some time afterwards he was sent to Boston and sold, and the c)efendauts received $7U for him. after de property. Heath v. Stevens. 48 N. H. 2."'>1. If he does not restore the gomls. and has not i)aid for theui, he is liable in a suit by the vendor for so much of the price as is c(|ual to the benefit derived from the purchas •. Hall v. Butterfi<-ld. .">!) N. H. :;.')4; B.irtlett V. Bailey. Id. 40.S. In this case th • plaintiff' returned the horse to the defend- ants, red-.ccd in value by th(> i)l;iintift"s in- exiK'rience and want of skill in driving. Though r( tuned on the same day. and with- in a few hoius, of the purchase, it was not the same hoi-se in character and value. But the acts of the plaintiff in dealing with the horse were th;' result of ignorance and want of skill in the management of horses, rather than of willful abuse. Being an infant un- der full age. the same conduct towards a horse bailed to him for hire would have given the owner no ground for n-covery. Eaton V. Hill. .lO N. H. 2;r>. It is only for positively tortious acts willfully committed that an infant is liable in an action of tres- pass or case. If the management and driv- ing of the horse by the plaintiff in this case were not of such a character as to give the defendants a right of action had the plaintiff hired the horse, they cannot make the fact of injury from the same treatment by him as owner of the horse a ground for recorp- ment of damages. To give them this right the claim mu.st rest upon a basis which would enable them to recover for an injury to their own property, and this they cannot do in a case of this kind against an in- fant. The plaintiff's incapacity of infancy vas known to the defi'iidants before the suit vas brought, and his treatment of the horse vas not malicious nor willful abu.se. Tjion he facts stated the defendants have no de- ■nse. .Tudgment for the plaintiff. CLARK, .L, did not sit. Tlie otlirrs con- •urred. On Rehearing. SMITH. .1. The former di'cision in thi.s case, it is claimed, was based uiion the erro- neous a.ssumption of fact that the plaintiff had rescinded the contract, when in fact he only proposed to rescind, ami. instead of re- scinding, ratified the contract by leaving the horst^ with the defendants to be sold. It is further claimed that when repayment of the purcha.se money was requested, rescission had become impossible, because, the horse liaving biH'n sold on the plaintiff's account, the property could not be returned in specie. Whether what took place when the {ilaintiff returned the horse was a rescission, a propo- sition for a rescission, or a ratitication of the contract of purchas<>. it is not nect-ssary to consider. The plaintiff's right of rescission remained during his minority, and was not defeated by the defendants' refusal to refund the purclia.se money, nor by his retiuest to them to do the best they could with the prop- erty. The contract and subswiuent alleged 34 INFANTS. ratification were voidable at his election, and wore repudiated when he brought this suit. The bringing of the suit was an elec- tion to ri^sfiud. Eaton v. Hill. .">0 N. H. 2H5. 241 Hie fact that the horse had been injured bv the i»laintiff's unskillful driving did not. as shown in tlu' former ()i)inion. di>- prive the plaintiff of his right to return it. Ho derived no benefit from the contract. It was not necessary to renew his offer to re- turn the property. It went into the defend- ants' possession when the plaintiff first at- tempted to rescind, and was sold by them. The money received by them from the sale stood in place of the horse. The presump- tion is that they acted in good faith in the sale, and got the most they could for the property. If they did not, they are in no position to complain. If the plaintiff's mother was acting iu his behalf when she re- quested the return of the purchase money,^ what was then done was etiuivalent to a rescission, and the result is the same. The defendants are not. as contended, entitl d to Judgment upon the ground that they had no reason to su])pose the plaintiff was an infant. He did not affirm himself to be of full age. and there is nothing in Ihe case that shows thai at the time he made the purchase he intended to elude the contract. The case fin this resprct differs from Fitts v. Hall. 9 N. H. 441 (see page 440). .Tudgment for the plaintiff. CLARK, J., did not sit. curred. The others con- INFANTS. •s: GKE(JORY V. LEE. (30 Atl. .-.3, 04 Conn. 407.) Snprome Coiir*^ of Error.s of CoinuH-ticut. .Tvino i 20. l.S!)4. Appeal from court of oomnion pleas, Now Haven coutity; Stiulley. .Tudjie. Action by :Mary E. Gret,'ory against Frank Lee for rent of a leased room. Judgment for defendant, and plaintiff appeals. Aflirmed. Talcott H. Russell, for appellant. Edward G. Buekland and Harry G. Day, for appellee. TORRANCE, .1. The complaint in this case alleges that on the 1st of .lune. IS'Ji', the defendant, being a student in Yale College, entered into a contract witli the plaintiff, by which he leased a room for the ensuing col- lege year of 40 weeks, at an agreed rate of $10 per week, i)ayable weekly, and immedi- ately entered into possession of said room, and has neglectc^d and refused to pay the rent of said room for the 10 weeks ending February 7, 1893. The answer, in substance, is as follows: On or about Sv'ptember 15, 18'J2. the defendant agreed to lease a room in the house of the plaintiff for the ensuing college year of 40 weeks, at the agi'eed rate of $10 per week, payable weekly; that he then entered into possession of said room, and occupied it till December 20, 1802; that on said day he gave up possession of said room, and ceased to occupy the same, and then paid to the plaintiff all he owed her for such occupation and possession up to that time; that immediately thereafter he en- gaged at a reasonable price another suitable room elsewhere, and continued to possess and occupy the same till the end of said college year; that during all of said period he was a minor, and a student in said college; and tliat on December 20, 1802. he refused to ful- fill said agi'eement with the plaintiff to oc- cupy or pay for said room for the remainder of said 40 weeks, and has always refused to pay for the time during which he did not pos- sess or occupy said room. The reply to the answer was as follows: "raragi-aph 1. Plain- tiff admits all the allegations of said defense. Par. 2. Defendant, at the time of making said contract, was between nineteen and twenty years of age. Par. 3. Defendant and his parent.s are residents of the island of Trinidad. His father makes him an annual allowance, out of which he is expected to defray all his college e.xpenses. including room and board, transacting the business incidental thereto in his own name, and not on account of his father. Par. 4. It is the general custom among stiidents and lodging- house keepers to rent rooms for the college year of forty weeks, and students also usu- ally contract for and pay tuition by the year. Defendant, at the time of renting said rooms, had contracted for his tuition during the col- lege year. Par. .j. The rent charged for tlie room was fair and reasonable, and was suit- alile to his necessities as a student and to his condition in life. It was also necessary for him to have a room as a place of lodging and study during his college year. Par. (». Defendant could not have obtained a room (•qually suitable for his purpose, nor on such advantageous term.s, if he had not contracti-d for the year, «'xcept by going to a hotel, and paying tlie usual cliarges made l>y hotels for such periinl as he wished to slay. The cost of this would havi- been considerably greater. Par. 7. Owing to the custom above noted, plaintiff cannot rent her room for tlie balance of the year, and will be subjected to great lo.ss, unless defendant is compelled to j)ay rent for the balance of said period." Ther.- was also tiled in the case a .second defi'Use and a reply to the same, which, in view of the conclusion reaclunl upon the lirst defense and the rei)ly tliereto. need not be consid- ered. To the reiily above set out the defend- ant demurred specially, the court below sus- tained the demurrer, and judgment was ren- dered for the defendant. Tlu- sole reason of api)eal is the clainied error of the court in sustaining the dennn-rer. Upon this ai)peal the facts stated in the an- swer, and also in the reply so far as the same are well ])leaded. must be taken to be true. It thus appears that the defendant, a minor, agreed to hire the plaintiff's room for -V) weeks at .$10 per week, and that he euteivd into ixxss«'ssion and occui)iiHl it a part of said period; that he gave up and quit posses- sion of the room, and refused to fultill said agi-eement, on the 20th of December, 1802. paying in full for all the time he had occu- pied it; that he has never occupied it since, but has been paying for and occupying a suitable room elsewhere. Under the facts stated, it must be coneere an infant aj?i-ees to pay a stipulated price for sucli necessaries, the partj- furnishing them recovers not necessari- ly that price, but only the fair and rea.sonable value of the nectsssaries. P^arle v. Reed, 10 Mete. (Mass.) 387; Hanies v. Barnes, 50 Conn. r>72; Trainer v. Trumbull, 141 Mass. 527, G N. E. 7G1; Keen. Quasi-Cont. p. 20. This be- in.u so, no binding obligation to pay for nec- essaries can arise imtil they have been sup- plied to the infant: and he cannot make a binding executory agreement to purchase nec- essaries. For the purposes of this case, per- haps, we may regard the transaction which took place between these parties in Septem- bei% l.S'.i2, either as an agreement on tlie I)art of the plaintiff to supply the defendant with necessary lodging for the college year, and on the part of the defendant as an exec- utory agi-eeiueut to pay an agreed price for the same from Aveek to week; or we may regard it as what, on the whole, it appears the parties intended it to be, a parol lease, under which possession was taken, and an executory agreement on the part of the de- fendant to pay rent. If we regard it in the former light, then the defense of infancy is a good defense; for in that case the suit is upon an executory contract to pay for nec- essaries which the defendant refused to take, and never has had. and which, thei'efore, he may avoid. If we regard the transaction as a lease under which possession was taken. execute{l on the part of the plaintiff, with a promise or agreement on tlie part of tli<' defendant to pay rent weekly, we think in- fancy is equally a defense. Asa general rule, with but few exceptions, an infant may avoid his contracts of every kind, whether bene- ficial to him or not, and wliether executed or executory. Kiley v, Mallory, 33 Comi. 201. The alleged agreement in this case does not come within any of the recognized exception^ to this general nile. "An infant lessee may also avoid a lease, although it is always avail- able for the purpose of vesting the estate in him so long as he thinks proi^er to hold it. * * * As to his liability for rent, or the jterformance of the stiimlations contained in the lease, he is in the same situation, with re- spect thereto, as in case of an.v other contract; for he may disaffirm it when he comes of age, or at any time previous thereto, and thus avoid his obligation." Tayl. Landl. & Ten. § 9G. In this case the defendant gave up the room and repudiated the agreement, so far as it was in his power to do .so, in the most posi- tive and imeciuivocal manner. The plea .if infancy, then, under tue circumstances, must prevail, imless the matters set up in the re- plj' make the facts set up in the answer una- vailable in this case. Upon this point, wi*:h- out dwelling in detail upon the matters set up in the differeut paragi'aphs of the reply, we deem it sufficient to say that neither singly nor combined do the matters so set up consti- tute a sufficient reply to the answer. There is DO error. The other judges concuri'ed. INFANTS. 37 I.ANCJDON V. CI.AVSON ot al. {4-J N. W. SO.-), 75 Mi.li. l;(»4.) Snpnano Court of Michigan. .Iiinc 14, IHSl). Apppal from circuit court, Montcalm coun- ty; Smith, Judge. Lemuel Clute, for complainant. \V C. Be<:l;with and Daois & Niclioln, for defend- ant I'aluier. CII AMI'LIX, .T. Complainant filed liis bill January 4, 1887, to foreclose a niuit<^age. As originally tih-d it contained only the usual statements of liills of that kind. It alleged that xMay Clayson and Charles D. Clayson made their two promissory notes payable to conijilainant, dated March 28, 1882, --one for ."*4Uii due three years from date, and (heotiier for .•?50l) due six yiars from date, with inter- est payable annually at 7 per cent. The mortji:age was of even date, and was exe- cut'd by May Clayson, and covered -40 acres of land in Montcalm county. Luce and Palmer were made [)arties as siibsef]nent purchasers or incumbrancers. Palmer was the only defendant who answered. He set up that May Clayson was an infant under 21 years of age at the time she executed the mortgage, and that it was given to secure the debt of her husband, Charl s I). Clayson. He alleged that he piucluised the premise's on or about August 80, ]8^'4, from May Clay- son, paying therefor a valuable lonsideration, and oitaining a quitclaim deed, and after- wards, about the 22d day of Oclolier, 1884, after said May Clayson became of aire, and for a valuable consideration to the sai 1 May Clayson in hand paid, she made, ext cuted, and delivered to him a v.arranty deed, and also revoked all former deeds and mortgages by her made befnre she became 21 years of age by inserting therein the following: "It being the intention of the tirst party to con- vey to the second party all the title I had to the premises at the time I became twenty- one years of age, and to ex[iressly revoke all former deeds and mortgages l)y me made be- fore I became twenty-one years of age." That the mortgage to complainant is void, and constitutes a cloud upon his title, which he asks to have removed, and he prays for reliff and the beiielit of a cross-bill. The complaiuant then amended his bill of com- plaint, stating therein that May Clayson purchased the land from John il. AVakely February 11, 1881, and took from hira a warranty deed in which the conveyance to her was made sul)ject to two mortgages, — one for .<]00, given by James l^ich and wife to Thomas Fuller, guardian of May Fuller, and the other for .5500, given by John Q. Wakely and wife to James Rich,- which mortgages were to be paid by ]\Iay Clayson as part of the consideration for the land on her purchase from Wakely, and that she ob- tained the loan of the money from complain- ant for which said notes and mortgage were given to pay the above-mentioned mortga- ges, that she stated when she purchased of Wakely, tliat such indcble mess was iipr own, and that Charles 1). Clayson merely signed the notes as surety; that she repre- sented hcrsi'lf to be 21 years old, and that ctunplainant woidd not have loaned the money to lier had he supposed that she w;is an in- fant. He fartht-r stated that afterwards, and on the L.^th of Pebruary, 18s:5, May Clayson sold and conveyed said land to John Q. Wakfly by warranty (b ed, which C(Uitained this clause: "The above is subject to a cer- tain mortgage given to Langdon .March 28, 1882, for .S'.lOO;" and on September 2, 1884, said John (^ Wakely executed a deed of the land to V. li. Luce, and aftirwards, on July 22 and October 22, lb84, said May Clayson executed the deeds above referred to. The bill charges Luce and Palmer w.tli combii.iug and confederating Willi May Clayson tocheat couip'ainant: chargfs on belief that she was of full age wilt II she execute i the deed to Wakely, and therein ratihed the nmrti^aire; states that May Chnson and Charles D. Clay- son have removtd to and are risidents of Dakota, and are jiecuniarily irrespons ble; that the facts and ciicu instances of the trans- action entitle him, if she was a minor, to be subrogated to the rights of the mortgagees named in the deed to her from Wakely, and which she piocuied to be d.scharged witli the money obtained from him. The bill of complaint was taken as con- fessed against all of the defendants except l^ilmer. who answered the amended ttlll, in which he sets up substantially the same de- fense as in the answer to tlie original bill, and denies all confederacy and connivance to cheat and defraud complainant; claims that he is the owner in fee: and claims, further, the benefit of a cross-bill, and that his title may be quieted. Proofs have been taken from which it appears that May Clayson. whose maiden name was ^lay Fuller, was born May 1.5, 18(32. Tl.at she was married to Chailes 1). Clayson prior to Feliruary 11, 1881. On February 11, 18sl, John (I Wakely conveyed to May Clayson by warranty deed the land in question, in which deed is con- tained the following: "Said second party tak- ing said premises subject to two certain mt)rt- gages, — oneof .S;}00. given by .James liich and wife to Thomas F. Fuller, giianlian of May Fuller, minor, etc., the other, ."?500. given by John (I. Wakt ly ami wife to .lames Kich, to- gether with accrued interest on the sanit>; the amount of said mortgages being deducted from the purchase price of said premises on this puicliase." The mortgage to Fuller, gnarilian, bears date June 80, 1879, and is given to secure the itayinent of .^oOO on the ;id day of April, 1888. with interest at 7 per cent., payable annually. The mortgage to James M. Rich, given by Wakely, bears date the 1st day of October, 1880, and is given to secure the payment of ."i?500 on the 1st day of April, 1884, with interest at the rate of 10 per cent., payable semi-annually on the 1st days of October and April. No question is 38 INFANTS. made ;is to the validity of these mortgages. The next conveyance in the order of time is tlie mortgage to complHinant dated Marcli 28, 1882, executed by May Clayson to secure the payment of tiie notes set forth in the l)ill of comphiint. On the same day, i. e., Marcli 28, 1882, Kiith l\Opp, the assignee of the moitgage executed by James M. Rich to Tiiomas F. Fuller, guardian, dated June 13, 1879, executed a full satisfaction and dis- charge tiiereof, and also, on the sam • day, James M. Kich executed a full satisfaction and discharge of the mortgage given by Wakely to him on October 1, 1880. The mortgage to complainant and the two dis- cliarges above mentioned were each recorded in the register's office on the 29th of March, 1882, at 13 o'clock p. M. On the 28th da.', of February, 1883, May Chiyson executed a statutory vvarr.nity deed of the land to John Q. Wakely, which contains this sentence: "The above is subject to a certain mortgage given to Langdon March 28, 1882, for nine liundred dollars." This deed was placed on record February 12, 1884. On the 22d day of Jidy, 1884, May Clayson exeL-uted a quit- claim deed of the premises to Don E. Palmer. Tliis was acknowledged before a notary pub- lic in Montcalm county, and was placed on record the 30th dav of August, 1884. On the 2d day of Septenilier, 1884, John Q. Wakely and liis wife executed a quitclaim deed to V. i5. Fuce, which was placed on record Se[i- tember 3, 1884. The next deed is dated Oc- tober 22, 1884. It is a warranty deed from May Clayson to Don E. Palmer, and contains the clause following: "This deed is executed and delivered 1)V first party for the purpose of supplementing and ailding to a quitclaim deed, previously given by first parly to sec- ond party heiein, and conveying the above premises, and adding thereto covenants of title; it being the intention of the (irst party to convey to second party all the title 1 had to the premises at the lime I became twenty- one years of age, and to expressly revoke all former deeds and mortgages made by me be- fore I became twenty -one years of age." This deed was not acknowledged until the 4th day of November, 1884, before a notary public of JJrown county, teriitory of Dakota, and was [daced of re(H)rd on the 14th of No- vember, 1884. The only proof introduced on the part of the defendant was his title det'ds from May Clayson, and testimony t'Mid- ing til prove her age, and that about !n;30 of the 8900 loaned was used in jiaying either a store account or note of Charles D. Clayson. The second deed executed by May Clayson to defendant Palmer conveyed no title or inter- est in the land whatever, and there was noth- ing to which the covenants of warranty could attacii. As independent covenants for title they were woithless, for the reason that the defendant was a married woman, and the coverumts had no connection with any sep- arate property owned by her. The com- plainant showed that the loan was obtained by May Clayson to take up and discharge the two mortgages that were valid liens upon her property, and that it was used for that purpose, with the exception of a few dollars. Thearrangement made was beneficial to May Clayson. The time for payment was extend- ed, and the interest on i^b()0 reduced from 10 to 7 per cent. The money was loaned Ijy the complainant in good faith, and upon the sun- position that May Clayson was of full age. Mr. Rogers, the agent of com[)lainaiit, who made the loin, testihes that to appearance May Clayson was at tiiat time 25 years uld, and he got the impression fmni what was said and done that she was then of full age. When the defendant obtained his quitclaim deed from May Clayson he had record notice of complainant's mortgage, and that it ap- p -.ired to be the tirstlieu upon the land. lie had rei-ord notice that th<' legal title had been conveyed from May Claysou to Wakely by warranty deed exirut the proof is satisfactory that she is m staken. The money was not ob- tained to pay her husband's indebtedness, but to pay off incumbrances on her j)roperly. That siie represented that to be the puri)ose when she obtained the loan, and that all but a very small fraction was then and there ap- plied to that pur[)ose. More unsatisfactory is the testimony of E. Barrett and Mr. Hock- afellow. Barrett is askC'l if he knows any- thing about what was done with the money that was borrowed of J^ir. Rogers, the wit- ness spoken of, and he replies: "Well, I think it went to Mr. Rockafellow,— what she owed him. I suppose it was a family debt. I don't know whether hi-r contracts or his con- tracts, — store bills. He kept a store there at that time." Mr. Rockafellow is asked if he recollected the transaction of the giving the moitgage to Langdon, and if he knows any- tiiing about what was done with the balance of this money spoken of. He testified that part of it was j)aid to him, — that he ditl not remember the amount, — for a note he held against Charles Clayson. He could not say positively. He had quite a good deal to do with Clavson, and he thought the note was foi' a INFANTS. 39 lioise, and tliought it was somewhere in tiie neighlioiiiood of $25 to $30. Tliat he knows where he got the money because he (llocUa- I'ellow) tried to make a loan for tlicni to an- other party before that one. Tiiey wanted to get the money partly to pay off the mort- gages and partly to pay him. They owed him a store account besides the note. Kog- ers testified that they computed the amount due upon the mortgage indebtedness, and it came to nearly $'J00, and they said they would take .$900. There was a small bal- ance over, probably one or two dollars. Wiiatever it was, was paid to May Clayson, and he does not know wliat was done with it. 1 do not tliink that this small balance, whether !$1 or .$80, that was paid to Mrs. Clayson alter paying the mortgages, has any- thing to do with the validity of the mortgage in (jnestion. It is evident that the object and purpose of making the loan of Mr. Lani^don was to pay off and discliarge the existing incum- brances upon May Clayson's land, and to substitute the lien of the I/mgdon mortgage for those, and ol)tain a longer time for pay- ment at a lower rate of interest. Upon wliat principle of equity or justice can the validity of this mortgage be attacked and set aside as invalid? The infant was by her own oath then nearly 20 years of age. More than a year previously she had purchased this land, and taken the title in lier own name, subject to the incumbrances which she assumed and agreed to pay as part of the purchase price. She lias never refiudiated this transaction, but has ratified and attirmed it after her ma- jority by dealing with the title she thus ac- quired as owner. She could not ratify the purchase without ratifying the agreement to pay the existing liens as part of the purchase money, nor without ratifying the manner in which she dealt with those liens. She vol- untarily sought complainant, and borrowed the u)oney from him to pay off these incum- brances by placing another upon the prem- ises. By this she only shifted her obligation to pay Itopp and liich to pay the same pur- chase price to complainant. She is not harmed by this transaction, but is benelited. While tliere is no absolute time in which an infant must act after he has arrived at the age of 21 to prevent the presumption of ratilication arising from lapse of time, ami while courts will not be curious to inquire whether the act was benelicia! or not. or oth- erwise, or stringent in applying the rule that he must act in a reasonable time when it is proper to protect his rights, yet when he has a right to repudiate a transaction in which he has not been defrauded or over- reached, and where he has received and re- tained the benelit of the transaction, he must act with reasonable promptness, or he will be deemed to have ratified the act by ac- quiescence. Under the facts of this case, iiulependent- ly of other considerations under which this mortgage must be treated and held as a valid secuiity, a right-minded person never wouhl have attempted to repudiate the mortgage executed for the purpose and under the cir- cumstances of this case, and, after the lapse of more than one year after she reached ma- jority, she will, in aid of justice and equity, and to prevent fraud, be deemed to have in- tended to ratify the trai\saction by her si- lence and ac(|uiescence. It would be a re- proach upon the administration of justice if a scheme so inequitable and unconscionable as tiiis appears to be from the record should succeed. Courts of equity will always view with special favoi', and guard with jealous care, tlie rights of infants, but they will not lend their aid to intants, or those wlu) en- trench themselves behind them, to perpetrate wrong upon innocent parties, or aid in de- priving such parties of their just lights. The decree of the circuit court is honest, and should be attirmed. SHERWOOD, C. J., CAMPBELL and MORSE, JJ., concurred. LONG, J., did not sit. 40 INFANTS. TYLIOR V. GALLOP'S ESTATE. (35 N. W. 902. G8 Mich. 185.) Supremo Court of Michigan. Jan. 12, 1888. Error to circuit court, Chuv county; Henry Hart, ,lu(l;j;e. Action by Jt. Smith Tyler again.st Joliu Flcniin.i;-, administrator of the estate of Franlvlin (hiHop, upon a note executed by the deceased during; liis lifetime. There was a verdict and Judgment for phiintift, and de- fendant l)rinj;s error. Reversed. C. W. I'erry, for appellnnt. Browne iK: Cum- mins, for appellee. MORSE, J. The plaintifl' presented a claim against the estate of Franklin Gallop, deceas- ed, based upon a promissory note for $110, dated August 22, 1882, payable in one year from date, with interest at 10 per cent. The note was signed by William Gallop and Frank Gallop, (the deceased,) as makers. The I'laim was disallowed by the commissioners. Plaintilf appealed to the circuit court for the county of Clare. Upon the trial in that court, testimony was given on behalf of the defend- ant tending to show that the note in question was given in place of another note made by Daniel Gallop, and also signed by William (iallop, to plaintiff; and that said Daniel Gallup had offered to pay the tirst or original note given by him to plaintiff, and had al- ways been ready and willing to pa.v the same at any time, but said plaintiff' had never of- fered to deliver said original note up to Dan- iel; and that said note was past due when the note in suit was executed. And fiu'ther evidence was given on the part of defendant tending to show that at the time this note was made, Franklin (xailop was a minor, and had never been emancipated by his father, the said Daniel Gallop, and that the contract con- tained in said note had never been ratitied b.v Frank after attaining his majority; that Dau- itl had no knowledge of the note in suit being given to take up the original note. In re- liuttal. the plaintiff' introduced testimony tending to show that, when the note niaile by Frank and William was received by him, the original note was delivered over to them, and that it was not in his possession at the tiuie of the tiial, and never had been since the note in suit was executed and delivered to him. Also evidence tending to prove that, at the time the note in question here was given, the deceased, Franklin Gallop, had been eman- cipated, and was doing business in his own name for his own benefit, with the consent and ai)]iroval of his father, and that Daniel authorized Frank to take up the original note, and, at the time, Frank and William were in partnership, and the said note was given iu the course of their partnership transaction. The circuit .judge instructed the .iury, in sub- stance and effect, that tlie deceased failing to givi' notice to the plaintiff' during his life- time, after he became of age, (he haA ing lived .some two years after he became twenty-one years of age,) that he could not and would not 1)<> boinid by his signature to said note, his le- gal representatives after his death could not take advantage of his silence without ottering some proof, at least, that the deceased did not intend to be bound by his contiact: and directed a verdict for the plaintiff' for the face of the note and interest. The judgment entry in the circuit court is not correct, or applicable to proceedings of this kind. No error is assigned upon it, but a commou-laAV judgment cannot run against the administrator, or against the property in his hands as such, as it does in this case. The entry should be an allowance or disallowance of the claim, which allowance or disallow- ance is to be certified to the probate court. See La Roe v. Freeland, 8 Mich. 031-534. The only errors assigned in the record are to the charge of the court. We think the case should have been submitted to the jury. If the deceased was a minor at the time of the execution of this note, the burden of proof was upon the plaintiff' to show that he had ratilied it after he attained his majority. It seems from the record that there was evi- dence tending to prove that deceased had not ratified the contract. The circuit judge was not authorized iu law to presume a ratitica- tion because of the mere silence of the de- ceased for two years. There must have been an express promise after he became of age, or such acts as would have been eciuivalent to a new contract. Goodsell v. Myers. 3 Wend. 470; Wilcox v. Roath, 12 Conn. 5,50; Tucker v. Moreland, 10 I'et. .58; Ford v. I'hil- lips. 1 I'ick. 202; Fetrow v. Wiseman. 40 ind. 148; Tyler, Inf. (2d Ed.) 84-92; Miuock v. Shortridge. 21 Mich. 304; I'rout v. Wiley, 28 Mich. 1(J4. The record iu this case is blind and uncer- tain. It appears that there was evidence tending to show that the original note was de- livered over to William Gallop and the de- ceased, but which one of them took and kept possession of it we are not informed; nor does it appear whether the relation of the de- ceased to the note sued upon was that of maker or surety for William. We do not pro- pose, therefore, to discuss what might be the law applicable to facts which may not be facts in the case. The (luestion whether or not the deceased was emancipated by his father at the time he signed this note had no relevancy to the is- sue. It could not affect his liability upon this note. The judgment of the coiu't lielow is reverse«l. and a new trial granted, with costs of this court to defendant. CHA.MI'LIN and SHERWOOD. .T.T., concur- red. CAMl'KELL, C. .1.. did not sit. INFANTS. 41 DURFEE V. ABBOTT ot al. (28 N. W. 521, Gl Mich. 471.) Supiome Court of Michigan. Juno 10, 188G. EiTor to circuit court, Wayne county. Alex. D. P^'owler, for niipclhiiits. Frascr & (latcs. for appellee. CHAMPLIN, J. This suit is hroufiht upon a residuary legatee's 1)on(l to recover a le.tiacy given by Ihe last will "and testament of .Toliii T. McKeown, deceased, to Kate I^antz. The case was before this court at the April term, 188.'?, and is reported in ">() Mich. 479, ir> N. W. 5.j!). Sophia Lautz, who was one of the legatees for whose use the suit was then prose- cuted, has since dropped out of the case as a part.v ln<"erestfd. Under the facts as they ap- peared in the record iM^fore the court, she had no I'iglit to recover. it appeared, as it now ai)pcars, that on Oc- tober 20. 1.S77. the executor gave to these lega- tees his individual notes for the legacies, pay- able to them two .years from that date, with interest. The legacies were payable when the uotes were given, and they signed and gave to the executor receipts, stating that tluw had re- ceived from the executor of the estate of John T. McKeown. deceased, .$250, being the legacy bequeathed to them, respectivel.y. It was held that, by this extension of the time of payment without the sureties' assent, they were dis- charged fi-om liability. But it also appeared- that Kate Lantz was not 21 years of age at the time the note to her was given, and there- fore she stood in a different position; that she had no power to extend the time for payment, and she did not become of age until after the note giveu her became due. and unless she did some act, after she came of age, extend- ing the time, or in some other way changing McKeowu's liability, she is not barred of her action; and, iuasnuich as the note in her hands was past due when she came of age, the time was not extended by her retaining the note. and that it should not be held as payment until so treated in fact. It will readily be seen that tlie contest upon the retrial centered upon the question of the age of Kate Lantz. On the part of the plain- tiff, Kate Lantz testitied that she was born November 5, 1S58. and that her full name is Catherine Sophia Barbara Lantz: tluit her father's name is Jacob Lantz. and lier mother's Barbara Lantz; and that lier [)ai'ents lived on Clinton street, in Detroit, when she was born. Sophia Smith, a sister, testitied that Kate was born in IS.'S. Caroline M. Lantz. another sis- ter, testitied that Kate was born in 1858, aud that her birthday was November 5th. She stated, that she had seen the entry in the fami- ly record made in the family Bible, aud had last seen it seven or eight .years ago; that the entry read, "Sophia Catherine Barl)ara Lantz, born 18.58;" that the record of her own birth was entered there, and read, "Caroline Matilda Lantz, born in 18.5(5;" aud that the entry of the birth of Sophia read, "Sopliia Catlieiine Lautz. 1.S4!)." .Mrs. H:irliara I>antz, the mother, was sworn for plaintiff', and testi- fied tliat her age was ^5, and was not alile to renieml)er the age of her daughters except the eldest; that tliey had a family record in the Bible, l)ut lier liusl)and took it away wi:]i him, and she had not seen it since. She states that slie was married in 1S4!», and four of her ciiildnni were liaptiseil on Clinton street, by the itastor of the (Jerman Lutheran Church on Monroe avenue; lliat Kate was baptised by the name of Catlieiine So[)hia Barbara I^nitz. She first stated that the miuister's name was Herman wlio ba|)tised all four of the children, but afterwards recalled the fact that one was baptised liy a minister by the name of Mill>'r. of the Monroe Avenue Church; that she was present when Kate was liaptised, as was also Peter Lantz, his wife, Sophia Lantz, and Cath- erine Schelard. Tlie defendants, on their part, produced Charles Haas, tiie pastor of the - of the person baptised as Cathi>rine Sophia Barbara Lautz with the legatee known as Kate L;tutz, and it was necessaiy for the .liny to l)e convinced of tliat fact. It was therefore error for the court to refuse to sub- mit to the .iur.v the special (luestion. as fol- lows: "Is the 'Catherine Soiihia Barbara Ijantz' named in the records of baptism pro- duced by Rev. Charles Haas, as having been 'born November 18. 18.5(), and baptised on March 15, 1857,' the same person who prose- cutes this suit as plaintiff', aud who swears 42 INFANTS. that her fiill name is Catherine Sophia Barbara I^antz?" Draycot v. Draycott, 12 Vin. Abr. -89; Rlrt v. Barlow, 1 Doug. 170. Error is assigned upon tlie refusal of rho ■court to charge the .juiy that, if they believed that the record of l)aptisni is true, their verdict must be for the defendant. The court charged that the record was not conc^lusive evidence of tlie facts appearing in it. but it was evidence to go to the jur.v under all the circumstances, .and it was for them to give to it what weiglit they saw fit; and, after considering all tlie facts, if the.v believed the record of tlie minis- ter was true, it would sliow the girl was of age, and therefore the plaintiff could not re- cover. We do not tliiuk the defendants can •conii)laiu of this instniction. The record of the baptism, when admissible in evidence, is evi- dence of the date of baptism, but not of birth, iiltliough stated therein, (Wihen v. Law, 3 Staikie. (io; Duins v. Donovan, o Hagg. Kce. 501; Burghart v. Angerstein, (i Car. & P. USJO; Rex V. Clapham. i Car. & V. 20; Rex v. North Petherton, 5 Barn. & C. ".OS:) and the date of baptism was equally as important to defend- .ants as that of the birth; for, if she was the person baptised on the fifteenth of Marcli, 1S.")7. she would be 21 years of age before the note matured in October, 1870. Defendant's counsel also requested the court to charge the juiy that if they found from the evidence that Kate I^ntz gave John ilc- Keown, executor of the estate of John T. Mc- Keown, a receipt dated Octolier 20. 1877, for lier legac.v, and at or about the same time re- ceived his individual note for said legac.v paya- ble October 20, 1879, and kept said note two years after she became of age, this was such .an extension of time, without the consent of the sureties on McKeown's liond, as would discharge them from all liability; and their verdict must be for the defendants Abbott and Fowler. And he further requested the court to charge that when a minor holds a note a long time after she becomes of age, aad does not disaffirm the contract, she being the acti^-e party, she is considered in law as ratifying the contract, and also that, if the juiy should find that Kate Lantz became of age before the note became due, (October 20, 1879.) they must find for the defendants Abbott and Fow- ler; and in that case it did not matter when the note was given. Tliese requests do not state the correct prin- ciples of law to be applied to the facts of this case. Under any view of the testimony. Kate Lantz was not of full age wlien the note was made, and the receipt given. She was then incapalile of giving sucli binding assent to an extension of time as would discliarge the sureties, or of receiving the individual note of the executor in absolute payment of the legacy. The question, tiierefore, is, did she, after she became of age, ratify the arrange- ment by which the note was given? If she did, the ratification would relate l)ack to the time of the transaction, and .so affect the un- dertaking of the sureties as to discharge them from liability. Ratification always resolves itself into a question of intention. The ques- tion, therefore, for tlie juiy to determine was whether the facts were such as to .justify an inference, properly to be drawn fiom them, of an intent on the part of Kate Lantz to rat- ify tlie reception of the note as payment of her lega(y. Where no express ratification is shown, and no act done in reliance upon or in affirm- ance of the contract entered into by an infant, mere delay in proceeding to enforce her claim against the sureties cannot be construed into a ratification where there are no elements of es- toppel tliat intervene; especiall.y where the in- fant has not received any new consideration nor retains any consideration arising out of the original transaction. In this case McKeown's note ;lid not give her any greater right of ac- tion against him than she had before. She was relin(iuisliing a .security which she had under the bond against the sureties, and re- ceiving in Its stead a negotiable note in which the day of ])ayment was deferred. This, per- haps, would liave been a sufficient considera- tion Ixnween parties capable of contracting; and, had she been of age, it certainly would have been sufficient to discharge the sureties in the l)ond, if made without their assent or approval. There is some testimony from which the knowledge, if not the assent, of at least one of the sureties might be inferred. It was proven that l)oth the receipt and note were in the handwriting of one of the sure- ties, but, as this point was not made promi- nent, and was not relied upon, it need not be discussed now. So far as the contract which was made be- tween :McKeown, the executor, and Kate Lantz affected the residuary legatee's bond, it was an executed contract, and it has been held that, in order to confirm an executed con- tract of an infant, all that appears to be neces- sary is to show any distinct acknowledgment or act indicating an intention to be bound liy the contract; and if the infant continues, after coming of full age, to occupy a position which is only explicable upon the supposition that he intends to stand b.v his contract, it will be con- sidered as a ratification of an executed con- tract. 1 Story, Cont. (4th I-:d.) §§ 09. 72; Ty- ler, Inf. & Cov. §§ 40, 41; Norris v. Vance. 3 Rich. Law, 1G8. But, whether the contract be executed or executory, the question as to what acts will or will not amount to a con- firmation is one of intention, and is one prop- er to be submitted to and determined by a juty under proper instructions from the court. The judgment must be reversed, and a new- trial granted. CAMPBELL, C. J., and SHERWOOD. J., concurred. INFANTS. 4:j HEATH V. STE\ I:NS. (48 N. H. 2ol.) Supreme Court of New Hampshire. Grafton. Jau., 18(i*J. lu this case the parties agi'ee iipou the fol- lowing statement of facts, reservinj; to each the right to go to the jury upon anything agreerl to in this statement: About the 1st of April, A. D. isir,. the plaintiff. Daniel C. Heath, went from his home in Daubuiy. in this coimtj-. to White River .function, for the purpose of enlisting, in com- pany with several others, and was reje<-teefore he back the money he paid in execution of the contiact. On the first of these points the dec-isious have not l^een unanimous. In Holman v. Blo.gg. S Taunt. ."'•O -, it was held tluit. if an infant pays luonev with liis own hands without a valuable consideration, he cannot get it back again; and where an infant paid money to A. as a premium for a lease, and enjoyed the same for a short pericjd during his infancy, but avoided it after lie became of age. it was decided in the s;ime vnse that he could not re N. H. 348. it was held, on the authority of Holman V. Blogg and McCoy v. HotTnian, that when an infant rescinds his contract on the ground of his infancy, he is not entilled to recover any compensjitiou for lalK)r he may iKive i)erfonned under it. Wei'ks V. Leighton was directly overruli-il in Lufkin V. Mayall. 'Jo N. H. 8:3; and the later c-ase of Locke v. Smith. 41 N. H. 34ij. is al.so to the point that an infant may recover for what he lias done or paid under an executed contract, provided he restore, or account for. what he has received under the contract. Mc- Coy V. Hoffman has been overruled in New York (Milliard v. Hewlett. 10 Wend. 301 ; Med- btuy V. Watrous. 7 Hill. 110); and Holman v. Blogg was questioned and evaded, if not di- rec-tly overruled in Corpe v. Overton, in Biug. 2.32. The authorities are numerous in other jurisdictions that an infant, upon rescinding an executed contract, may recover for what he has done or paid under it. provided he restore, or account for. what he has received mider the contract. Moses v. Steven.s. 2 Pick. 332 ; \'ent V. Osgood. 10 Pick. .■i72; .ludkins v. Walker, 17 Me. :!.S: Thomas v. Dyke. 11 \t. 272; Taft V. Pike. 14 Vt. 50."); Hill v. Anderson, o Smedes & M. 21(j; Tipton. 3 .Tones. Law. 5.">2. And the (piestions must be considered as set- tled in this state by the recent cases of Lufkin V. Mayall :uid Locke v Smith. It is now extremely well settled that, if an infant would re.-^cind his voidable contract, and recover bac-k what he has paid under it. or compensation for what he has done under it. he nuist fii-st restore the thing that he has re- eeiveil under the contract, if it remain in si^ecie. and within his control; or. if not. must account for the value of it. But if what he has received has been consunu^l. or for any other cause cannot be returned in spcnie. he may recover for what he i)aid or did under the contract by deducting what he received, or the value of it, from the amount that he paid, or from the value of the services which he rendered. Thus in Loc-ke v. Smith. 41 N. H. 340, the infant agreed to work for his iKrnrd, and it was held tluit he might avoid the con- tract, and recover for his work what it was worth, though he could not restore what he had received; but that he must allow by way of deduction whatever his board was worth. "The inf.-uit cannot." say the court, "reim- 41 INFANTS. (liatf tilt' coiiinur so .is Id n'(\)ver f'oi- his la- bor, aud allow nothinii for his board." When* the contract of the infant was executed befoi'e he became of ajre. and the natiu'e of the case Is .such that he cannot restore in specie what he received under the contract, this does not • previ'nt him from recoverinj; wliat ho paid, or for wliat he did, by allowini; for the amount and value of what he received. What. then, did the plaintiff receive from the defendant under this contract".' Certainly not the bounty money paid to the plaintiff wlien he enlisted, for that never belonjied to the de- fendant. He never had it, nor any ri.uht to it; and of com'se cannot ask tliat it should be restored to him. The consideration of the con- tract moviiiic from the ,l(»fendant was the in- formation he jjav(! resi^H-ting the bounties paid in New York, his payment of the plaintiff's fare to New York, ana his uudertakins' to pay his fare back if he was not accepted as a recruit. The defendant jiaid the plaintitT's fare to New Y'ork. agreed to pay his fare back if he was not accepted, and took the risk of losing botli^ if he was not accepted. He also pive liim the information which led to his enlistment and the receipt of the bomity money. The money paid for fare to New Y'ork the plaintiff could repay; but the other parts of the con- sideration of the contract cannot be restore of Breed v. .ludd. 1 Gray. 4.")7, in- volves the saihc doctrine, and is in the ma- terial facts sul)stiintially like the present. There tlie defendants had advanced money for tlie plaintiff's outlit to ( "alifni nia, and in con- sideration of this tlie plaintiff promised them one-third iiart of liis earnings while there, wliicli he paid to tlu' defendants accordingly b(»- fore he was of age; and the acti( n was broaght to re<'over back the money. The money re- ceived liy the i)laintiff for his outfit was not repaid befcn'e the suit was brought, nor was this held to be necessary; but the coml left it to the juiy to find whether, under all the circumstances, and looking to the risks incur- red by the defendants, the contract was rea- sonable; if so. ili;it iKitliiug could l^e recovered back. We think the two ea«es of Baker v. Lovett and Breed v. .ludd are authorities in point, and furnish the rule which must govern this ca.se. It is not necessary that the money paid for the plaintiff's fare should lie repaid before this suit can be maintained but it must be allowed towards tlie claim of the iilaintiff; and as to the whole question of what shall be allowed to the defendant it must lie left to a Jury to say what is a reasonable sum for the defend- ant to have on account of what he did and of the ri.sks he took in this contract with the plaintiff", and alloAV the defendant such reason- able sum as under all the circumstances they think he ought in justice to have. The case must be discharged, and the action stand for trial, as facts are not stated which will authorize the court to render a judgment. INl'ANTS. 45 ADAMS V. BEALL. (8 Atl. GOl. (>7 -Md. .",;;.) Court of Appeals of Maryland. March l(j, 1887. Appeal from the Baltiiiiore t-ity court. Albert Ritchie, for appellant. \Villiaiu Col- ton, for appellee. KOHIXSUX, J. The appellee, wliile a mi- nor, paid to the appellant Jf^.'.iCKJ, as a con- sideration for l)eiug admitted as a partner in the appellant's business. The partuei-- ship coutinned for more than a year, and lindius it unprotitable, the appellee, withont formally dissolving the partnersliip. witli- drew from the business. The question in the ca.se is whether the appellee is entitled to recover of the appellant the money tliiis ]iaid. His right to disaffirm the partnership contract, and to avoid all liabilities tinder it, including the partnership debts, is not de- nied. Being an infant when the contract was made, this is a privilege to which for his protection he is entitled. But when lie seeks to recover money paid for a consideration which he has enjoyed or has had the benefit of, this presents quite another question. The !52.tMi(t was paid to tlie appellant in con- sideration of being admitted as a partner in his business. He was admitted as a part- ner, and continued to be a member of the iivm for at least a year. The business was not, it is true, a successful one, but this, la The absence of fraudulent representations on ^lie part of the appellant, cannot affect the -luestion. We are dealing with a contract between an infant and adult, executed on both sides, and upon the faith of which money was paid by tlie infant for a consid- eration which he has enjoyed. Tlie privilege of infancy, says Lord Mansfield in Zuucli v. I'arsous, o Burrows, 18<)4, was intended as ;i shield or protection to the infant, and not to be used as the instrument of fraud and injustice to others; and to hold that an iii- laut has the right, not only to withdraw from a partnership at his own pleasure, and to suljject the adult partner to the payment of all the partnership debts, but has the right also to recover money iiaid by him as a consideration for being admitted into the partnership, would be. it seems to us. to ex- tend the privilege beyond any just principles uiion which it is founded. So long ago as Brawner v. Franklin. 4 Gill, 4(Ki. it was held that, where an infant ad- vances money upon a contract, he cannot (iisattirm the contract and recover tlie money advanced, if he has enjoyed the considera- tion for wliich the money was paid. Holmes V. Blogg. 8 Taunt. .308. is to the same effect. There the infant paid a sum of money as his share of the consideration for a lease of premises in which he and his partner carried on the business of shoe-making. Tliey occu- pied tlie premises from March till .Tune, when the infant dissolved the partnership, and brought an action to recover back the money he had paid tin' lessor for his lease, (jibbs, C. J., said: "He may. it is true, avoid the lease; he may escape the burden of the rent, and avoid tlie covenant; but that is all *■ he can do. He cannot, by putting an end to the lease, re<-over back any consideration which he has paid for it. The law does not enable him to do that." It is a mistake to supi)o.se that the prin- ciple on which this case was decided was ei- ther overruled, or even questioned, in Corpe V. Overton, lu Bing. L'.lL'. In the latter case, the plaintiff, while an infant, signed an agreement to enter into partnership with the defendant, and to pay him £1,(mk» for a sliare in the business; and to execute, on the first day of .January, a partnership deed, with the usual covenant. He also paid £10U as a de- posit for the fulfillment of his part of the contract. The plaintiff afterwards disattirm- ed the partnership contract, and never did in fact become a partner. The suit was brought to recover of tlie defendant the £1(X) paid by the infant as a deposit. Tindal. C. J., said: "The case was distinguishable from Holmes v. Blogg. In that case the plaintiff and partner occupied the premises from :March till .Tune, and the money was paid for something available, that is. for three months enjoyment of the premises. In the present case, the plaintiff paid to Overton flCK), for which he has not received the slightest consideration. The money was paid either with a view to a present or a future partnership. I understand it as hav- ing been paid with a view to a future part- nership. Now, the partnership was not to be entered into till .January. 18oo. and in the meanwhile the infant has derived no advan- tage whatever from the contract." Bjsan- quet, J.: "We are far from impeaching Holmes v. Blogg. as applicable to the facts of that case. Here the infant has derived no benefit whatever from the contract, the con- sideration of which has wholl.v failed. The £l Knijiht Bruce said: "In my opinion, a case of fraud has not beeni'stablished. That beinj? so. the matter re- mainsone of acoutract fairly made, or as fair- ly made as a contract with an infant could be made, a contract upon which the infant act- ed durinj; his minority, and which durinj,' his minority has been in part performed on «'ach side. In such a state of things, I con- ceive that, if the bankrupts had continued solvent, and an action had been brought against them by the minor, either before or after majority, for the purpose of recovering the money in question, there must have been either a nonsuit or a verdict against him." Lord Justice Turner said: "It is clear, an in- fant cannot be absolutely bound by a con- tract entered into during his minority. He must have the right upon his attaining his majority to elect whether h« will adopt the contract or not. It is, however, a different question, whether, if an infant pays money on the footing of a contract, he can after- wards recover it back. If an infant buys an article which is not a necessary, he can- not be compelled to pay for it; but, if he does pay for it during his minority, he can- not on attaining his majority recover the money back." We have quoted at length from the pre- ceding cases, because the question at issue is an important one, and comes before us for the tirst time for decision. And while fully ' recognizing the privilege which th(( law ac- cords to minors in regard to contracts made during their minority, yet, in a case like the present, where money is paid by a minor in consideration of being admitted as a part- ner in the business of the appellant, and he does become .and renuiin a partner for a giv- en time, he ought not to be allowed to recov- er back the money tluis paid unless he was induced to enter into the partnership by the fraudulent representations of the appellant. Whether an infant can avoid a contract and sue thereon during his minority, or must wait until he arrives at age. is a question about which the decisions are conflicting. To hold that he cannot disaffirm a voidal)le contract until he attains his majority would in many cases work the greatest injustice to an infant. And where the contract is of a personal nature, or relating to i)ersonal prop- erty, we see no good reason why such a con- tract may not be avoided, either before or after his majority. Stafford v. Koof, 9 Coav. (ilid; Sliipman v. Horton. 17 Conn. 481; Wil- lis V. Twambly, 13 Mass. 204. The court having erred in gi'anting tln- plaintiff's first and second prayers, the judg- ment must be reversed. Judgment reversed,, and new trial awarded. INFANTS. 47 MOLEY ft al. v. BRINE. (120 Mass. 324.) Suprome Judicial Court of Miissacliusotts. Huftollv. May (i, 187(1. Bill ill equity to closo up a partiicrship. .\t a former lieariiij,', before Wells. J., the jplaiutills relied on an agreement si;riie(l by the three partners, of which the followinji is a copy: "Ajireenient made this third day of August, A. D. ISTl. between J. li. Brine, P. .T. Moley, and E. V. .Tackson. The partner- ship heretofore existing nnder the lirm of Brine Bros. &• Co. is hereby dissolved. E. I". .lackson is alone authorized to sign the name of the firm in li(piidation, make collec- tions, pay bills, receive money, and draw checks, until the old bnsiness is settled as hereafter arranged. The other partners shall assist in closing np the business, except as .iforesaid. From coUectious and assets, E. I'". .Tackson is to receive the sum advanced b.v him, $4,874, without interest. The bal- ance of assets and property, after paying debts, to be divided between Messrs. Brine and Moley. according to their interest in the l)usiness; that is to say, .$1.8()(), without in- terest, to Moley, and the balance to Brine. Brine takes the store and business. Brine and Moley assume the risk of all accounts and contracts iip to August 1, 1871. All mon- ey drawn from the business after August 1, 1871, by P. J. Moley and E. F. .Tackson is to be deducted from the above portion." Un- der that agreement .Tackson had begun to licpiidate the affairs of the firm prior to the filing of this bill. It Avas then ordered: (1) That that agree- ment "be set aside and annulled as an agree- ment, the said Brine being a minor at that date, and having elected to avoid the same on that ground; and that said writing be taken to have no further or other effect than as evi- dence upon the question of the actiial trans- actions and relations between the parties." (2) "That the case be referred to a master to hear the parties, and report to the court his tuidings as to the actual relations between the i)arties and their respective rights in and to the funds and assets that are now in or that may come into the hands of the re- ceiver; and also to state the accounts be- tween them." The master's i-eport stated the following facts: The partnership was formed about July 1st, and was dissolved by mutual con- sent on August 4, 1871. At the formation of the partnership. Jackson contributed to the common stock !f4.!^'''4. Moley $1.8(Ht. and Brine $8,82. and it was agreed that each should receive one-third of the profits. During the conlinuance of the partnership Jackson drew out .$:i4, Moley -i^lW, and Brine .^(m:'..!."). There were no profits of the partnership, and the assets were not sufticieiit to pay back in full the original contributions. At the final hearing before Colt, J., the jdaintiffs contended that, no agreement be- ing shown as to th<' division of the commnn stock ui)on a dissolution of the Dartnershii). each partner was entith-d to the amomil of his contribution and interest, and that the deficiency in assets sliould be borne tiy tlie partners ecpially. The defendant contended: (1) That the as- sets should be etjually : Holmes v. Blogg. 2 Moore, .j.")2, 8 Taunt. r»08: Ex parte Taylor. 8 I)e Gex. M. <.V: G. 2.")t; Aldrich v. Abrahams, Hill & D. 423, 42."»; Medbury v. Watrous, 7 Hill, 110, 112, 113; Heath v. Stevens, 48 N. H. 251. Decree for the plaintiffs accordingly. is INFAXTS DLBE V. HKAIDUY. {2:\ N. K. I'L'l', ir.(» M:iss. 44S.> Supreiue .liuliiial Court nf Massacbusotts. Essex. Jan. 2. 18!)0. Report from superior court. Essex coun- ty ; .Tou.x L.VTHKoi'. .luduo. Action l).v Joseph Ih^ln'. ficr j>r<><-lifin mni, to recoverfroin 'i'lu'oj)hile lU'amlry for serv- ices rendered. Tlie case was heard by the court witiiout a jury. Tlie court found ft)r the (left>ndant, and repi>rfed tlie cause to tlie full bench. C.St^wnll, for plainliff. ,/. .1/. ILiyinoml, for defendant. FIELD. J. The plaintiff, a minor, witli the assent of liis mother, aiireed with the aid him four dollars a week for the whole time he worked, and applied the remainder 7 Mass. ."^Ds. .">14 ; Bartlett v. Drake, loo Ma.ss. 174; Walsh v. Young, llo Mass. :5iH): (iaffnev v. Hayden. Id. 137 ; r>radford v. French. Id. :'.r..") ; ilaker v. .stone. 18tj Mass. 40."i: McCarthy v. Henderson, los Mass. olO. Gaffney v. llayden. ubi supra, shows that, if the amount of the wages aii-ecl upon had not been as much as the l)laiiitiffs sei V ces were worth, the fact that the plaintiff had received his pay while a minor would not luev cut him from avoid- ing the contract, and suing on a ()nnntntn meruit. In the opinion, the cases of Stone V. Dennison, l;') Pick. 1. and Breed v. Judd, 1 (Jray. 45.'). which the jircsiMit defendant cites, are considered and distinguished. It is sugg(>sted that the plaintiff's agree- ment that tlu> defenilant should ajtply a part of the wag'-s to the extinguishment of the father's indebtedness makes the act- ual ai>plication of the wages by the de- fendant eipiivalent to a payment, in pursu- ance of this a.greement. and Ijefore it was revoked, of money by the ])l,'untiff to the defendant for the purpose of extinuuishing this debt. It is argued that if a miiioi- vol- untarily jiays money under a contract he cannot receiver the money he has paid, when he has received any i)eneHt from the contract, or any part of the consideration, except by rescinding the contract; and that a contract cannot be rescinded unless the other party is put in st.itu iinn; and tliat.in the present case, it doesnot appear that the defendant can be i)ut in st;itij nun, because he may have lost his remedy against the estateof thefather. SeeShurt- leff V. Millard, 12 R. I. 272; Robinson v. Weeks, .")(> Me. 1(12; Sparman v. Keim. So N. Y. 24.">: Adams v. Heal. (i7 Md. oi, !S Atl. Rep. (U)l; Ex i)arte Taylor. S De (lex. M. & (t. 2.'>4. It does not ai)pear that the plain- tiff did or could receive any benefit, direct- ly or indirectly, from paying his father's debts. It appears that the father died seised of real estate " which he devised to his widow," and which the widow con- veyed to his eldest son, the brother of the plaintiff; but it doesnot apjiear that ti?" plaintiff wasentitled to receive any proper- ty from tile estate of his father, and there- fore it do(>s not ai)pear that the ])laintiff had any interest in preventing the defend- ant from collecting- the debt out of the es- tate of the father. The action is iK»t tore- cover money paid. The contract, so far as it related to the jiayment of the father's debt, would, in ancient times, have been held absolutely void, if made by an infant. We think that the principle contended for. whether it is consistent or not with our decisions, is nt)t applicable to this case. It is necessary for the protection of an infant that he should not lie bound by a contract to pay out of his earnings the debt of another I>erson. and the defendant had no right to rely njion such a contract, and forego any remedies he might have had against the estateof the father. The defendant can- not be said to have acted as agent of the plaintiff in paying the wages to himself, within the principle declared in Welch v. Welch, 111:'. Mass. r)(;2. because he still re- tains the benefit. It isnoi contended that the mother was entitled to the wages of the plaintiff. By the terms of the report thei-e must be a new trial. So ordered. IXFAN'J!- 49 TKAIXKU V. 'riMMP.II.L. ((i \ !•:. Tin. 141 .Mass. .VJ7,i Sni)i'('iii(' .Iiiilicial Court of Miissacliiisolts. Suffolk. May 7. ISSf,. This was an action of contract for articles furnished to tlic defendant, a niiiu)r, by the philntiff. Ilearini? in tlie superior court, be- fore Brifihani, C J., witliout a .iury, who found tlie folio wini? facts: Defendant was a minor, wlio was born in January, ISns. and was tlie only child of George B. Trunibnll, who died at the soldiers' home in Toj^Jis, ^Nlaine, No- vcMuber 1, 1S83. where he had ivsided from 187() and previously. Defendant's mother, Avho was the wife of said Georj^e H. Trunibnll, was, on October "25, 187o, committed to the house oi industry on Deer Island. Boston, and defendant was, on the same day, sent to the almsliouse on said Deer Island as a pauper, and there remained until he was removed to the Marcella-street home for paupers and neg- lected boys and girls, in April. 1877. On No- vember 17, 1877, the plaintiff removed defend- ant from said Marcella-street home to her home, he then being a pauper, and in a dis- eased and sickly condition, and there kept him to the time of bringing this action, and dur- ing all this period maintained defendant, pro- viding him with food, chjthing, lodging, medical attendance, and nursing when sick, and the means of education, at a cost to plaintiff, Avhich, in addition to the reasonable value of her services in making such provision,— which the coiart ruled, as a matter of law, was a provision for necessaries to defendant, — was not less than the sum stated in the account annexed to the declaration. I'laintiff. on a visit to Togus, and to the soldiers' home, in 187(5. became acquainted with said George B. Trumbull, who exhibited much distress on account of defendant being an inmate of an asylum for paupers, and his reported sickly condition; stating to her that he, George B. Trumbull, had certain property bequeathed to him by one Susan Bryant, whose adopted son he was, which gave him oily a small income, but that at his death the defendant would be worth .1;1U,(XMJ, riaintiff. at said George B. Trumlndl's request having informed herself of the provisions of the will of Susan Bryant, and of the terms of a lease to one Cutler, made by George B. Trumbull, of the property re- ceived from said Susan Bryant, and of the value and income of the estate to which it related, undertook and continued the mainte- nance of defendant as aforesaid, not in any respect relying upon the credit of said George B. Trumbull, but relying solely upon the cred- it of defendant's estate One Teele, since No- vember, 188.'}, as guardian of the defendant, has had possession and control of real es- tate in Boston of the value of about $8,(X)U, which constitutes all of defendant's property. At the close of plaintiff's case defendant of- fered no evidence, but reqn?sted the court to rule, as matter ot law that upon all the facts in evidence on the part of the plaiutifl: this VAN zilp: sel.cas. sales — 4 action c(jui(i; Davis v. Caldwell, 12 Cush. 512; Barnes v. Toye, 13 Q. B. Div. 410. So, on the other hand, the mere fact that an infant, as in this case, had a father, mother, and guardian, no one of whom did anything towards his care or sup- port, does not prevent his I)eing iKiund to pay for tliat which w-as actually necessary for him when furnished The question whether or not the infant made an express promise to pay is not important. He is held on a promise im- plied liy law, and not. strictly speaking, on his actual promise. The law implies the promise to pay from the necessity of his situation; just as in the case of a lunatic. 1 Chit. Cont. i:»7: Hyman v. Cain, 3 .Jones (N. C.) ill; Uichard- son v. Strong, 13 Ired. lOG; Gay v. Ballou, 4 Wend. 4(>8; Epper.son v. Nugent, 7)7 Miss. 4.5^7. In other words, he is liable to pay only Avhat the necessaries were reasonably worth, and not what he may improvidentlj' have agreed to pay for them. If he has made an express promise to pay, or has given a note in payment, for necessaries, the real value will be inquired irto, and he will be held only for that amount. Earle v. Reed, 10 Mete. 387; Locke V. Smith, 41 N. II. .'540; Mete. Cont. 73, 73. But it is contended that the board, clothing, etc., furnished to the defendant were not nec- essaries, because he. "being a pauper, and an inmate of an almshouse, was supplied with necessaries, suitable to his estate and condi- tion, and, under the circumstances, it would have been the duty of the guardian to place him in the almshou.H'." It is true that a guardian is not obliged to provide for the sup- port of his ward when he has no property of the ward available for that puipose; and. if be has no other resource, no doubt he may, under such circumstances, place the ward iu an almshouse. The authorities cited for the defendant go no further than this. Spring v. Woodworth, 2 Allen, 20(3. But this by no 50 INFANTS. iiicans implies that a buy with cxpcctatiou of a rortunt' of ."flU.ooo slumld be bioujilit up iu Jill almshouse if any suitable person will take him, aud briuj? him >ip properly, ou the credit of his expectations. Ou the other hand, it seems to us highly proper for a parent or jiuardiau. under such circumstances, to do ■what the father did iu this case; leaving- it for the boy's guardian to see to it that an un- ivasonable price is not paid. I.ooking to the advantage of his subsiMjuent life, as well as to his welfare for the time being, his transfer from an almshouse to a suitable person, by -whom he would be cared for aud educated, would certainly be judicious; and the sup- port and education furnished to an infant of I such expectations, whose means were not pres- j ently available, fall clearly within the class of I necessaries. In Mete. Cont. 70, the authority of Lord Manstield is cited to the point that a sum advanced for taking an infant out of jail is for necessaries. Earl of Buckinghamshire v. I Drury, 2 Eden, 72. See. also, Clarke v. I^eslie,, ] .1 Esp. 28. < Jiving credit to the infant's ex- I pectation ot jirojierty is the same as giving credit to him. ! There was no error in refusing to rule, as I matti'r of law, that upon all the facts in evi- dence the action could not be maintained. The tindiugs of all matters of fact, of course, are not open to revision. Exceptions over- ruled. INFANTS. 51 EN(;LEBEHT v. TKOXELL et al. (58 N. AV. 852. 40 Neb. 195.) Suprciiu- Court of Nclirjiska. April 17, 1X04. Appeal from district court, Douj;las coun- ty; Ilcrhort J. Davis, Jiulfic Action by Francis L. Enjilebort aj^ainst Bonjaniin Troxell and others to rec(rver i)os- session of land. Judgment for plaintiff, and defendants bring error. Atlirnied. Geo. E. Pritcliett and Switzler it Mcin- tosh, for apjiellants. St. John & Stevenson and Chas. Olfutt, for appellee. RAdAN, C. On April 1, 1874. Mrs. Fran- cos H. lOnglebert was the owner of lot 3 in Gise's addition to the city of Omaha. At that time she and her luisband, J. Lee Enjjle- bert, executed a mortgage on said lot to Max Meyer »fe Bro., to secin-e a note of $.'578.48, due .Ttily 1, 1874. Soon after that time, Mrs. lOuglebert and her hiisl)and removed to Des Moines, Iowa, in which city Mrs. Engle- bert died on the 29th of December, 1875. She die life estate, only, of Mr. Englebert sold to satisfy the amount found due on the mortgage. This life estate was sold under ji decree, the property purchased by one of the plaintiffs in the foreclosure suit, and the sale confirmed. A deed was ordered, but never made, to the purchaser. On the Gth day of January, 188<). on the joint applica- tion of Mr. Englebert and his minor son. Mr. Pritchett was appointed guardian of the minor son by the county court of Douglas county, accepted the trust, and qualified therefor by taking the oath, and giving bond, as required by statute. On .luue 1. 188(;. in pursuance of an agreement between ^Ir. Pritchett and Mr. Englebert. his son (then be- ing about IS years of age), in con.sideration of ^■240 in cash then paid by Pritchett to Engle- bert. conveyed to Pritchett the remaining im- divided one-half of the lot. On the 22d day of December. IS.SS. .1. Lee Englebert died. ( »n the 11th of October, 1889, Francis Leon Engle- bert became of age. and one month and three- days thereafter, to wit. on the 14th day of November. 1889, brouglit this suit in eipiiiy in the district covu't of Douglas county, against the said George E. Pritcliett and others wlio were claiming to be owners of some ])art of said lot under conveyances from Pritchett. to cancel and set aside the deeds hereinltefort- mentioned, made by himself and fath(>r to- I'ritchett; alleging that at the time he exe- cuted said deeds he was seised in fee simi)Ie- of the propert.v, and was a minor. The dis- trict court rendi>red a cU'crt-e canceling and setting aside said deeds, and awarding the plaintiff a writ of possession for said real estate. The case is before us on appeal. The reported decisions, «'specially the older ones, abound with grave, learned and lengthy discussions of the (inestion as to whether the contracts of an infant are void or voidable: and there an* respectable atithorities which hold that certain contracts of an infant, made under certain circumstances, are abso- lutel.v void; but we think that the better rule, and the one supported by the weight of authority, is that all contracts of an infant, except those for necessaries, are voidable b\- INFANTS. Tho infant, at his ck-ctiou, within a riMSona- l)lo tinu' after he becomes of aj^e. In Timi- son V. Clianiblin, SS 111. 378, the rule is thus stated: "Deeds made by a minor are not void, but only voidable. Their validity does not depend on a ratification after a minor attains his ase; but, to avoid tluMu. he must, by some act, clear and unmistalcable in its clnracter, disaffirm their validity." See, also, lioimer v. Land Co., 75 111. olo; Hyer v. Hyatt. 3 Cranih C. C. 270, Fed. Cas. No. <;.;)'.17; Kendall v. Lawrence, 22 Tick. 540; Dixson V. Merritt. 21 Minn. ITHj; Manufac- turinj: Co. v. Lamb, 81 Mo. 221; Irvine v. Irvin(>. 9 Wall. 617; Pom. Eq. Jur. (2d Ed.) § 1)45. Such is also the doctrine of this court as stated in Philpot v. Manufacturing Co.. 18 Neb. 54, 24 N. AV. 428, where it is said: "Contracts of an infant, other than for necessaries, are voidable only; and, iipon comini;- of a.ire, he may affirm or avoid them, in his discretion." The deeds made by the appellee in this case to Pritchett were voida- ble, and not void. The appellee, within le.=:s than two months after his becoming of age. instituted this suit for the purpose of cancel- ing the deeds made to Pritchett. This was, on the part of the appellee, an unequivocal and sufficient disaffirmance, on his part, of the contracts made. Tunison v. Chamblin, supra; Sims v. Everhardt, 102 U. S. 300. Was the disaffirmance of these deeds by appellee made within a reasonable time? As to what is a reasonable time for an infant, after becoming of age. to disaffirm contracts made during his minority, is a mixed ques- tion of law a.nd fact, to be determined from the circumstances in each particular case. In Ward v. Laverty, 19 Neb. 429. 27 N. W. 393, this court said: "A minor who has con- A eyed his real estate miist disaliirm the deed within a reasonable time after becoming of age. or be barred of that right." In that case the disaffirmance was not made until more than three years after the minor be- came of age, and the court held that the dis- affirmance, luider the facts in the case, was not made within a reasonable time. In O'Brien v. Gaslin, 20 Neb. 347. :iO N. W. 274, this court, adhering to the I'ule announced in Ward v. Laverty, held that a disaffirmance made by a party 14 years after he became of age was not made within a reasonable time. In Johnson v. Storie, 32 Neb. 610, 49 N. W. 371. an infant Avho had signed a note as surety disaffii-med the same a year- and a half after he became of age; and it was held that the disaffirmance was made within a reastmable time. There are some eminent authorities which hold that an infant may disaffirm a deed, which he has made to his real estate during his minority, at any time, after he becomes of age, before he would be barred by the statute of limitations from bringing an action in ejectment for the real estate. But this is not the doctrine of this coiu't. It is now firmly settU'd here that an infant, in order to avoid a contract made during his minority, nuist disaffirm the snme within a reasonable time after his minority ends. There can be no doubt, in view of the au- thorities quoted above, but that the appellee disaffirmed, within a reasonable time .-ifter lie became of age, the deeds made to Pritch- ett. It is insisted by the appellants that the first deed made by appellee to Pritchett was voidable only, and that the services per- formed by I'ritchett in the foreclosure suit of Max >Meyer & Bro. for the appellee were necessaries, and that, therefore, the appellee cannot avoid said first deed. Were the seiT- ices performed by Pritchett for the appellee in the foreclosure suit "necessaries," within the meaning of that term? What are neces- saries for an infant cannot be defined by any general rule applicable to all cases. It is a mixed question of law. and fact, to be determined in each case from the particular facts, circumstances, and surroundings in that case. In Shelton v. Pendelton, 18 Conn. 417. a wife, without her husband's consent, employed an attorney to prosecute a suit for divorce in her favor, against her husband, for a legal and sufficient cause. The attor- ney performed the services, and the decree of divorce was granted. The attorney then sued both the husband and wife for his fees. The court held that the services rendered were not necessaries, and that the husband was not liable therefor. The coiu't said: "By the law the defendant is liable only for the necessaries which the plaintiff has pro- vided for his wife. The common law de- fines 'necessaries' to consist only of neces- sary food, clothing, drink, washing, medi- cine, instruction, and a competent place of residence." In Munson v. Washband, 31 Conn. 303, a female infant was seduced un- der a promise of marriage. Her seducer refiised to marry her, and she was left in a state of destitution. At her request an at- torney brought suit against the seducer for a breach of promise of marriage. The suit was settled by the intermarriage of the plaintiff and defendant. The attorney then sued both the husband and the wife for his services. The court held that the services rendered by the attorney, under the circum- stances, were "necessaries," within the meaning of that term. The com-t said: "Can the plaintiff's charges for prosecuting that action be considered as necessaries, mi- der the circumstances? The rule usually stated in the text-books confines the term 'necessaries.' for which a minor may bind himself, to suitable food and clothing, shel- ter, washing, medicine, medical attendance, and education; but this depends entirely up- on what the coiu-t or .im\v may think, in each case, suitable and proper in reference to the infant's condition and station in life. * * * The personal security of the wife is legally a necessary, and the expense of seciu'ing it is a proper charge against the husl)and. If we look at the suit which the infant com- INFANTS. 53 mcncpcl as lior ouly iiiodo. undor hor peculiar circumstances, of procuring tlic means of liv- ing, it comes witliin tlie iHJnciple allowing ber to contract for n(>cessr.ries. This was not a case of merely prosecuting an infant's right to property, or for recovery of an ordi- nary debt. In such cases there is. or ought to be, a guardian to protect the interests of the infant. There was none here, and it does not appear that ther(> were any means practicable of procuring one to be appointed. It appears to us. therefore, that while the coiu't recognized the rule that the ordinary fee of an attorney for the prosectiting of an infant's right to property could not generally be .said to be a necessary, yet it correctly in- formed them that the services rendered were requisite for the personal protection and sup- port of the infant, and might be lawfully soutracted for by her. and that she would be liable to pay for the same." In Wallis V. Bard well, 120 Mass. 300, it was held "that a ward is not liable for repairs put upon his dwelling house by a person employed by the guardian to make them, even after the death of the guardian, and evidcnice that repairs were necessary is immaterial." In Tupper V. CaldAvell. 12 Mete. (Mass.) .j.j9, it was held: "An infant is not liable for the expense of repairing his dwelling house, on a contract made by him therefor, although such repairs were necessary for the preven- tion of immediate and serious injury to the house." The court said: "An infant may make a valid contract for necessaries, and the matter of doubt in the present case is what expenditures are embraced in the term 'necessaries.' It has sometimes been con- tended that it was enough to charge the party, though a minor, that the contract was one plainly beneficial to him, in a pecuniary point of view. That proposition is by no means trtie, if, by it, it be intended to sanc- tion an iu(iuiry, in each partictilar case, as to wh(>ther the expenditm-es or articles con- tracted for were beneficial to the pecuniary interest of the minor. The expenditures are to be limited to cases where, from their very natiu-e, expiuiditures for such purposes would be beneficial, or. in other words, they nmst belong to a class of expenditures which are. in law, termed 'beneficial to the infant.' What subjects of expenditures are included in this class is a matter of law. to be decided by the court. The further in(iuiry may often arise, whether expenditures, though em- braced in this class, were necessary and proper in the particular case, and this may present a question of fact. It is therefore a preliminary question to be settled, whether the alleged liability arises from expenditiu-es for what the law deems necessaries; and. unless that be shown, it is not competent to introduce evidence to show that, in a pec-un- iary point of view, the expendifiu-e was beneficial to the minor." See, also. Price V. Sanders. 00 Ind. 810; Mathers v. Dob- schuetz, 72 111. 43S; Bloomer v. Nolan, 30 Neb. ,")1. .-.3 N. W. 10.30. In Turner v. (^a:th- er. S3 N. C. 3.")7, it was held that money fur- nished an infant to enable him to acquire a professional education was not a necessary. In Decell V. Lewenthal. 57 Miss. .331. it was ludd that money furnished an infant to en- able him to carry on a plantation was not a necessary. In Barker v. Hibbard. .">4 N. II. r»:;i>. it was held that the services reiMh-r- ed by an attorney in defending an infant in a bastardy proceeding were n(>cessaries. In Auding V. Levy. .17 Miss. 5.j. it was held that where an infant had no guardian, and the services rendered by an attorney were bene- ficial to the infant's estate, he was liable for such services. In Connolly v. Hull. 3 Mc- Cord. G, and in Kline v. L'Amoreux, 2 Paige, 410, it was held that if an infant was living with his i)arents or guardian, and proiterly maintained by them, his contract, even for necessaries, was not binding. In the case at bar, when the appellee made the first deed to Pritchett. in consideration that he would defend the Max Meyer & Bro. mort- gage foreclosm-e suit, he wac living with his father,— his natural guardian; so that, if we held that the services rendered by Pritchett in the foreclosure suit were necessaries, still the appellee wotild not be bound to pay for the services, if this was a suit by Pritchett on the contract made for that piirpose. In the light of the authorities quoted above up- on this subject, we are clearly of the opinion that the services rendered by ^Ir. Pritchett in the foreclosure suit cannot be considered necessaries, inider the facts of this case. Another contention of the appellants is that the appellee has not restored the con- sideration he received from Pritchett for the execution of the tAvo deeds which he seeks to cancel bj' this suit, and that, therefore, he cannot maintain this action. There are many authorities which hold that it is not necessary— to enable an infant, on coming of age, to disaffirm a contract made during his minority — to restore or return, or offer to re- store or return, as a condition precedent to his right to disaffirm such contract, the cmi- sideration which he received therefor; but the rule of this coinl is otherwise. In Phil- pot V. Manufacturing Co.. 18 Neb. 54, 24 N. W. 428, the rule is tluis stated: "If an in- fant purchase personal proiterty, and give his note therefor, he cannot upon arriving at the age of twenty-one years, retain the prop- erty, and jdead infancy as a defense to the note." This is a somewhat loose statemnt of the rule. The rule is c(mcisely and cor- rectly stated by Post. J., in Bloomer v. No- lan. 30 Neb. 51, 53 N. W. 1030. in this lan- gtiage: "One who seeks to disaffirm a con- tract on the ground that he was an infant at the time of its execution is reciuired to re- tiu-n so mucli of the consideration received by him as remains in his possession at the time of such election, but is not reiiuired to return an equivalent for such part thereof as may have been disposed of by him during ^i INFANTS. his miuority." That is to say, the infant, on coming of age, and electing to disaffirm a contract made by him during his minority, must restore or return so much of the con- sideration received by liim in consiiU'ration of exeeuting the contract as he then has, in specie, in liis possession. The language of the authorities is that he must return or re- store whateA'er of the consideration he then has, not that he is to pay to tlie party with wlu)m he made the contract an equivalent for that which he received from said party. In Kc>ynolds v. McCurry, 100 111. S.jtJ. the rule is thus stated: '"It is a general rule that where the consideration of a conveyance by :ui infant has been expended, so that he is not in a condition to restore it, he may nev- ♦'rtliele.ss avoid the conveyance. It is only wlien he still has the consideration that he will be compelled to return it." See. also, Miller v. Smith. 2(i Minn. 24S, 2 N. W. 942. In ("handler v. Simmons, 07 Mass. i^OS, the rule is stated in this language: "If money paid to a minor as a consideration for his conveyance of real estate has been wasted or spent by him during his minority, pay- ment or tender of the amovmt is not neces- sary, to enable him to avoid the convey- ance." The Iowa Code provides that a minor is bound by his contract, imless he dis- utHrms it, and restores to the other party all money or property received by him by vir- tue of his contract, and remaining within his control. Construing this section of the Code, the supreme court of Iowa, in Hawes v. Railroad Co., 64 Iowa, 31.5, 20 N. W. 717, held that, where a minor had disaffirmed a contract, he was only required to return the Identical money or property received by him for the execution of such contract remaining in his possession at the time of his disaffirm- ance thereof. The court said: "It is not shown or pretended that he had remaining under his control, at any time after attaining his majority, the money or property received by him by virtue of the contract, and it is only such money or property as may thus remain that he is bound to restore." So far as the consideration for the first •deed made by the appellee to Pritchett is concerned, the only consideration which it is ■claimed appellee receivwi for such deed was the services rendered by Mr. Pritchett in de- feuding the Max Meyer & Bro. foreclosure suit. There are several things to be said of those services. In the first place, but for the voluntary intervention of Mr. Pritchett in that suit, we are led to believe, from the record before us, that Max Meyer & Bro. would have proceeded to decree of ft)reclo- sm'e against the father and mother of ap- I)ellee only, notwithstanding that the appel- lee's mother was dead at the time the fore- closure suit was brought, and the title to the real estate had vested in the appellee. Such a decree would not have been binding upon the appellee, and would not have deprived iiim of the right, at least, to redeem his property from such decree, if such decree would have in any manner interfered with appellee's title. Again, at the time Mr. Pritchett rendered these services, he was an officer of the com't in which the foreclosure suit was pending, and had been by the com-t appointed guardian ad litem for the appellee. He had accepted this appointment, and was acting for the appellee. Section 14, c. 7, Comp. St. 1893, then and now in force, i)ro- rides: "It shall be the duty of every attor- ney to act as the guardian of any inftint de- fendant in any suit pending against him when appointed for that purpose by order of the court; he shall prepare himself to make the proper defense to guard the rights of said defendant and shall be entitled to such compensation as the com*t shall deem rea- sonable." In view of this statute, and in view of the circumstances under which Mr. Pritchett rendered the services for the ap- pellee in the foreclosure suit, we are con- strained to say that, if such services had been necessaries, nevertheless the appellee's contract, by which he paid Pritchett one- half tlie real estate in litigation in consider- ation of the services, Avould hav^ still been voidable, at the suit of the appellee. It was the duty of Pritchett to render the services he did. This was a duty imposed upon hira by law, and resulting from his profession. P"'or performing the duties of a guardian ad litem, an attorney nuist look, and look only, for the amount of his compensation, to the court; and the compensation allowed the guardian should be taxed as costs in the pro- ceeding, and as such collected. Perhaps it might be filed as a claim against the minor estate, but no other, different, or greater amount can be collected than that allowed by the court. Whatever may be said of the services rendered by Mr. Pritchett in the foreclosure suit for the appellee, such serv- ices, of course, cannot be returned in kind. The consideration for the second deed was $240 in money paid by Pritchett to appellee's father. It is not claimed or pretended that this money, or any part of it, ever came into the possession of the appellee. It appears that the appellee's father bought a piano with this money, and gave it to appellee, and that he still has it. But the appellee was under no legal obligations to offer or tender or surrender this piano to Pritchett, as a condition precedent to his right to dis- affirm the deed. Nor was the appellee un- der any legal obligation, as a condition pre- cedent to his right to disaffirm the deed, to repay Pritchett the money which he had paid appellee's father in consideration of the exe- cution of the deed. At the time appellee disaffirmed these deeds and brought this suit, there was in his possession no part of the consideration parted with by Pritchett at the time appellee executed the deeds. The final contention of the appellants is that, the appellee having executed the deeds, he is, in equity, estopped from disatfirming INFANTS. 55 tlicm. as asainst inuucciit imrchasors. This is a remarkable argument, iu view of the reeoi'd in this case. Not one of the appel- lants is an innocent i)ur(ha.ser of any part of this propertj-, in any sense whatsoever. There is in all this record not one word of ovidence that the appclltv, by any act or omi.ssion of his, either before or after his coming of age, induced either of the apjx'l JniiN to pnrchas<' any of the property in this suit. Certainly the appellants, as purchas- ers of this property, were bound by such no- tice as the public records of Douglas county afforded of the fact of the infancy of the ap- pellee. Had appellants, intending to Diu*- chase this property, exercised ordinary care, and looked into the records of Douglas coun- ty as to the title of this property, they would have found the title to the same in ippellee's mother in 1874. They would have found the record of the foreclosiu-e suit of Max Meyer & Bro. They would have foimd that the decree in that case found that the title of this property had passed to appellee; that he was at that time an infant. They would have found the first deed from appel- lee to Pritchett. antedating the decree iu the foreclosure suit. They would have found of record in the otfiee of the probate com-t of Douglas county the very day and hour of appellee's birth; the finding by that court that appellee was a minor in ISSS, giving his age; the appointment by that court on tli.-it date of Pritehett, as his guardian. Certain- ly, these records were sufficient to have pro- tected the appellants, had they looked for them. If they did not examine the records, and chose to rely upon the ability of their grantors to make good the title for them, they have no one of whom to complain. Certainly, they are in no position to invoke the aid of this court in this case to protect them as innocent purcha.sers; and, besides, there is no such thing as an innocent pm-- chaser of a minor's property. The dcnree of the district court is attirmed. Atiirmed. 00 INFANTS. WOOD V. LOSEY. (15 N. W. or>7, 50 Mich. 475.) Supreme Court of Michigan. April 25, 1883. Error to circuit court, Jackson county. A. B. Haynes, for appellant. Hammoml, Barkworth & Smith, for appellee. CA.MPBELL, J. Defendant was sued for the price of a horse sold liiui by Turnery Wood, a brother of plaintiff, who claimed as assignee. Tlie suit was brought before a justice while the defendant was an infant, and tliis appears of record. He was still an infant when the judgment rendered against him by the justice was appealed. Judgment was rendered against him, also, in the circuit court for Ingham coun- ty. It appeared that defendant had been gar- nished by a creditor of Emery Wood, and had paid the money over. But in the present suit this was not, so far as appears, established to have been before some notice of the assign- ment. Defendant was also prevented, by the ruling of the court, from showing fraud in the assignment. If the case could stand unreversed upon the other matters, we should v.ish to con- sider whether a garnishee who has disclosed and paid over money to creditors would not be entitled, when sued en the same debt, to show that the assignment was not valid as against the creditors who garnished him, and who had. if it was fraudulent, a right to com- plain themselves of the assignment. While we do not lind ourselves called on to pass upon this allegation of error, we do not wish to have it understood that it is regarded as un- founded. We leave it for future consideration. We think the jury was clearly misled by the course taken below on the subject of infants' conti'acts. W^hile the court in the charge did undoubtedly charge that the plaintiff must show the horse to have been a necessity to the defendant, the force of this was destroyed by the other charges and refusals to charge. The plaintiff— altliough the defendant appeared only as an infant and his infancy was admit- ted—made no attempt to do any more than prove the sale of tlie horse as if made to a person of full age. When he rested he had made out no cause of action. If he recovered at all it could only be because the defendant (who was very unnecessarily called on by who- ever represented his interests to show by way of defense wliat the law presumed in his fa- vor) made out a clear case of necessity. The fact that the defendant assumeu the buiden did not in any way exonerate plaintiff from making out a full case of actual necessity. The burden did not cease to be the plaintiff's burden. Defendant showed that he was car- rying on his mother-in-law's farm for a third of the produce, and that she was to furnish all the teams, tools, and implements. He had no other business. This showed quite clearly that the horse was not necessary for defendant, and the court should not have refused to so charge. By re- fusing this chai'ge, and by giving the jury to understand, as we think they could not fail to understand, that it was the necessity for the farming business, and not the necessity for the defendant's part in it, that would make him liable, they were led to a verdict which has no testimony to sustain it. We have had some doubt whether we could properly grant a new trial u])ou the reversal. The defendant was not brought into the case so as to be im- pleaded in the way the statute points out. The guardian does not, on the original record, appear to have been properly appointed, and he, and net the defendant, had charge of the original defense and appeal. We are strong- ly inclined to regard the whole proceedings as too defective to bear investigation. Defend- ant did not assign error on this point, but it is open on the record, where the issues indicate error, and may stand in the way of any future judgment for plaintiff. As the assignments of error now stand, we shall reverse the judg- ment, with costs of both courts up to this time, and allow a new trial, if the plaintiff sees fit to incur the risk. The other justices concurred. HABITUAL DltUXKAllUS. 57 BKOCKWAY V. JEWELL. (39 X. E. 470. .52 Ohio, 1S7 ) Supreme Court of Ohio. Dec. 18. 1R04. Error to circuit court, Trumbull county. Action by one Jowell, i^;uardian, ai^ainst James W. Brockway. There \va.s a judg- ment of the circuit court reversing a judg- ment of the common pleas for defendant, and he brings eri-or. Judgment of the circuit court reversed, and that of the common plea.s af- firmed. The action below was commenced before a justice of the peace by defendant in error against plaintiff in error, in replevin, to re- cover a single harness, with gilt trimmings. On appeal to the court of common pleas the plaintiff below filed his petition, the defend- ant below filed his answer, but there was no reply. A trial before a jury i-esulted in a verdict for defendant below, finding him to be the owner of the harness, and assessing his damages at $30. A motion for a new trial was filed by the plaintiff below, the seventh ground of whicu is founded upon a supposed error in the charge of the court, appearing in the opinion later on. The motion for a new trial was overruled, and judgment ren- dered on the verdict, to which plaintiff be- low excepted, and filed his petition in eiTor in the circuit court of TnimbuU county, which court, on hearing the case, reversed the judgment on the sole ground that the court of common pleas erred in giving the charge as set out in the seventh ground of the motion for a new trial. Thereupon de- fendant below (plaintiff in error here) filed his petition in error in this court to reverse the judgment of reversal of the circuit court. C. S. Darrow and E. B. Leonard, for plain- tiff in error. George H. Tuttle, for defend- ant in error. BURKET. J. (after stating the fact.-^). The facts and circumstances out of which this action grew, as shown by the record, are as follows: On and before March 1, ISS.j, Grove B. Clark and the defendant below, Jami's W. Brockway, were close friends, and fre- quently went about the countiy together. Mr. Clark had inherited quite a fortune, and fell into the habit of drinking to excess, and had spent some ^lO.CMjO of cash, and often borrowed of his friends. Matters grew so bad that on the 2d day of March, 1885. ap- plication was made to the probate court of Trumbull county for the ap])ointment of a guardian for Mr. Clark, on the ground that he was an inebriate. Notice of this applica- tion was served on Mr. Clark on the 4th or 5th day of March, and Mr. Broc-kway had no- tice of the application on the same day. The application was set for hearing on March 9th. and was continued, and the appointment of the guardian was finally made on March 23, 1885. About the last of FebruaiT, 1885, Mr. Clark took sick at the Sawdy Hotel, at Kinsman, in Trumhn'l county, and was in a condition to recpiire the services of a nurse to wash and cleanse him and his clothes and bed, and ho employed the defendant below to nurse him during his sickness, and in pay- ment for his services agreed to supplj' him with a harness. Defendant accepted the em- ployment on the terms named, and at once went to the harness shop, and looked over the stock on hand, and, among others, the har- ness in question, but made no selection at that time. Defendant nursed Mr. Clark for about two weeks from and after the last daj' of February or 1st day of March, under and in pursuance of this contract between them. On the loth day of March, Mr. Clark gave defendant below an order on the harness maker for the harness, which was presented the same day, and not honored. Thereupon Mr. Clark and defendant on the same day went to the harness shop together, and Mr. Clark requested the harness maker to lot de- fendant have the harness, which was agreed to. Afterwards, on the same day, the har- ness maker delivered the harness to defend- ant, in the absence of Mr. Clark, and after- wards, on tJie sr.me day. in the absence of de- fendant, received from Mr. Clark his note for $30 for the harness. Defendant retained the harness until about May 1, 1885, when it was taken from him in this action of re- plevin. The petition in the common pleas avers that defendant, at the commencement of this ac- tion, and for 10 days before that time, wrong- fully detained from plaintiff the following goods and chattels of the plaintiff, as guard- ian, to wit, one single harness, with gilt trimmings. It will be noticed that this pe- tition does not claim that the defendant de- tained the property for a longer period than 10 days before the suit was commenced, and does not aver that plaintiff, as such guardian, was owner of the harness for a longer pe- riod than the 10 days during which the prop- erty was so detained. The answer admits that the case came into court by appeal, and denies each and every other allegation there- in contained. The answer further avers that at the time of the commencement of the action the defendant was lawfully in posses- sion of the harness; that he was the owner thereof, and that it was delivered and given to him in good faith, as a consideration for necessaries furnished to Gi'ove E. Clark, who was then owner of the same; and that said necessaries so furnished consisted of care and nursing of .said Clark while ho was in a fit of sickness. The ownership and rightful possession of the harness at the time of the commencement of the suit, and for 10 days previous thereto, is clearly put in issue by both the general denial and the further aver- ment that defendant was the owner and had lawful posse&>;ion thereof, and this is as far as any issue is made up by the pleadings. The defendant goes further in his answer, and shows how he became owner, and avers ■bH II A B I T U A L BRU N K A R DS . that .Ml". Clark was owner of tlio harness at the time it was delivered to defendant as a consideration for necessaries furnished to him. No reply appears in the record, so that the manner of acfpiirin;;- ownership is not denied; and it stands admitted that the harness was delivered and given to defend- ant in pood faith, as a consideration for care, nin-sinji. and neceissaries furnished to Mr. Clark while he was in a fit of sickness. The time of the sickness and of the delivery of the harness does not appear in the pleadings, hut the testimony shows that it was the last day of February or forepart of March, as above stated. There is no inconsistency in the pleadings, and the latter part of the answer does not modify or contradict the general denial. While the answer avers that at some time Mr. Clark was owner of the harness, and that he delivered it to defendant below, it was claimed upon the trial, as one defense, that the title to the harness was never in Mr. Clark, but passed directly from the har- ness maker to the defendant; and evidence was introduced, without objection, and the trial proceeded upon that theory, notwith- standing the state of the pleadings. If the charge of the court excepted to had reference to this phase of the case, as so made by the -evidence, it was clearly right, because, if defendant below did not derive title to the harness from Grove E. Clark, but from the harness maker, his title was unimpeach- able. That the court had the right to submit the case to the jui-y upon the evidence in- troduced, notwithstanding tlie state of the pleadings, is shown by the case of Mehurin V. Stone, 37 Ohio St. 49-.58. As anotlier phase of the case, the defendant belovi claimed that the contract of hiring and promise to pay for the services rendered by delivei-j- of the har- nes.s completed the sale, if sale« there was, as of the date of the hiring, even though the harness was handed over by the harness maker some days later. As still another phase of the case, the defendant below re- garded the delivery of the harness as a pay- ment foi' services rendered under a contract made before application was made for the appointment of a guardian for Mr. Clark. Opposed to these three phases of defense, the plaintiff below regarded the transaction as a sale of the harness by Mr. Clark to de- fendant below, after notice of the application for the appointment of a guardian, and there- fore void under the statute. Upon the plia.se of a sale of the property as claimed by the parties the coiu-t charged the .iury as follows: "The court say« to you, as matter of law, that to constitute a valid sale of tliis harness by Clark to Brockway it must have been before Brockway had no- tice of the application for the appointment of a guardian for Clark, and any sale after notice upon Brockway would confer no title upon the defendant." To this charge there was no exception. Upon the phase of the case that the delivery of tlie harness was in payment of the .services rendered under the contract of hiring, the court charged the jury as follows: "You are further instructed that if you find from the evidence that Grove E. Clark and the defendant entered into an agreement, prior to the time of the filing of this application for guardian, or before he had notice of the same, that in considera- tion of services rendered by the defendant said Grove E. Clark would purchase a har- ness for the defendant, and that pursuant to such an agreement the services were ren- dered as agreed, and that said harness was selected by the defendant, and delivered to him by .lames Clark (the harness maker), upon the order, either verbal or written, of said Grove E. Clark, and that the harness remained in the possession of the defendant until taken on the writ of rejdevin In this case, then you should find for the defendant, and assess him such damages as is shown to you that this proi)erty was worth at the time it was taken." There was an exception to this part of the charge, which resulted in the reversal of the judgment of the court of common pleas. A transfer of property for cash is a sale by one and a purchase by the other. It is not a sale by both, nor a pur- chase by both. A party who hires a hand may pay him in cash or personal property, and the receipt of the property instead of cash is not a purchase by the hand, but a payment to him. Whether a delivery of the harness to defendant below was a sale or payment depends upon tlie circumstances. If Mr. Clark was in a fit of sickness, and re- quired a nm-se to take care of him, and ap- plied to defendant, and said to him, '"If you will nurse and take care of me, I will give you a harness as compensation," and defend- ant having accepted and rendered the sen'- ice, and received the harness, the delivery of the harness was clearly a payment. On the other hand, if the defendant below desired to procure a harness, and applied to Mr. Clark therefor, and proposed that if Mr. Clark would deliver to him a harness he •would work for him to the value of the same, or nurse and take care of him in payment therefor, and in that way obtained the har- ness, such transaction was a sale on the part of Clark, and a payment on the part of de- fendant. There was evidence strongly tend- ing to show that Mr. Clark was seeking a nui-se. that he stood in sore need of one. and agreed to make payment by the deliveiy of a harness, and that defendant below ac- cepted the offer, rendered the service, and re- ceived the harness as payment therefor. Such a transaction is not prohibited by sec- tion Ci.318, Kev. St.. which is as follows: "At least five, and not more than ten, days prior to the time when the application for the ap- pointment of the guardian authorized by the foregoing section shall be made, a notice, in writing, setting forth the time and place of the hearing of the application, shall be HABITUAL DKL'.\KAi;i)> -«orvea upon the person for whom such ap- pointment shall be sought; and from the time of the service of sucli notice until the hearing, or the day thereof, as to all jtersons havins notice of such proceediufr. no sale, pi't, conveyance, or incumbrance, of the prop- erty of such intemperate person or habitual (5) " 8. Cash 40 00 (6) Aug. 15. " 10 00 (7) Oct. 1. " 30 00 (8) " " One day 2 00 (9) " " Hotel, car fare ' 1 40 That the plaiutift"s testate. ^lichael Burns, was adjudged to be an insane person, Feb- ruary 7, 1888, and a guardian appointed over him February 11, 1888, by the probate court for the district in which he then re- sided, and that the guardian duly accepted the appointment. That at the time items Nos. 1, 2, 3, 4. and 5 were contracted the plaintiff" had no knowledge that Burns had been adjudged insane and a guardian ap- pointed, but he had such knowledge when items Nos. 6 to 9, inclusive, accrued. That during the time covered bj' the account Burns was a feeble, insane old man, living in his own house, cared for by Bridget Man- ghan. That both Burns and Bridget weri' not on friendly terms with the guardian, and when the latter applied to Bridget to- learn if anything was needed for Burns he was told that Burns was not in Avant, and did not at the time know of the loans by the claimant to Burns until the latter's deatli. That, had Bridget made known to the guard- ian the wants or needs of Burns, they would INSANE PKRSijNS. CI liave Won sui»pru'(l by tlio guardian. That the services were rendered and cash paid as charjred in the account. That "the money specified in itenis Nos. 5. (J, and 7 was used by Bridj^et Maughan in the support of, and necessaries for, the testate." That Burns died July 14, 1889. That after the first nine items had accrued the claimant presented his account to the guardian, and he prom- ised to pay the items of a date prior to the appointment of the guardian, but told the plaintiff he would not pay the items charged during the guardianship. As the plaintiff did not except to the dis- allowance of items Nos. 10 to 14, inclusive, of his account by the court below, it is un- necessary to consider them. No facts, ex- cept as above stated, were found bearing upon the question whether Burns was in need of necessaries, or in regard to whether the items of plaiutift"s accoiuit were in fact necessaries for Burns at the time they ac- crued. An insane person, whether under guard- ianship or not, may be bound by his con- tract for necessaries, if made in good faith by the other party, and under circumstances which justify the contract. 1 Pars. Cont. 387; Chit. Cont. (10th Am. Ed., by Perkins) 1.10; Seaver v. Phelps, 11 Pick. 304; McCril- lis v. Bartlett. 8 N. H. .560; Sawyer v. Luf- kin, oG Me. 308. The liability of an insane person and of an infant for necessaries stand on the same footing, and are govern- ed by the same rules of law. Mete. Cont. 79; Thompson v. Leach. 3 Mod. 310; 2 Greenl. Ev. § 300; Seaver v. Phelps, supra; Lincoln V. Buckmaster, 32 Vt. 6.52. which cites with approval Seaver v. Phelps, supra; Sawyer V. Lufkin. supra. The law allowing infants and lunatics to bind themselves by their contracts for necessaries is solely for their benefit, and intended as a shield, not as a sword, to their hurt. It is well settled that it is a question of law whether the articles furnished to an infant are of the name and qualitj' coming within the term "necessa- ries."' and a question for the jury to deter- mine to what extent the articles of that de- nomination were necessary to the particular case. In Thrall v. Wright 38 Vt. 494, which was an action to recover for alleged neces- saries furnished defendant, a minor, it was held that, although the articles sued for are in the class denominated "necessaries," yet the burden of proof rests on the plaintiff to show affirmatively that they were in fact necessary for the infant when furnished. Reeve, Dom. Rel. *227. *228; Bainbridge r. Pickering. 2 W. Bl. 132.-.; Ewell. Lead. Cas. 62, 63. In .Johnson v. Lines. 6 Watts & S. 80, Avhicli was an action ro rec-over for al- leged necessaries furnished defendant, a minor, and under guardianship, the court «ay: "The rule of law is that no one may deal with a minor. The exception to it is 'hat a stranger may supply him with nec- essaries proper for him. in default of supply liy any one else; but his interference with what is properly the guardian's business nuist rest on an actual necessity, of which he mu.st judge, in a measure at his peril." Kline v. L'Anidureux, 2 Paige, 419; Pearl V. McDowell, 3 J. J. Marsh. 6.".8. Reason and a sound public policy re~>o; Tyler. Inf. p. 114, § 70; Chit. Cont. (10th Am. Ed., by Perkins) 163; 2 Kent, Comm. *2.3.o; Ellis v. Ellis, ,5 Mod. 368; Darby v. Boucher, 1 Salk. 279; Earle v. Peale, Id. 387; Swift v. Bennett. 10 ("ush. 430; Bradley v. Pratt, 23 \t. 386. This would seem to dispose of any claim of the plaintiff to recover on this theory for the money that was expended by Bridget. Is the plaintiff entitled on any ground to recover for all or any part of his account? The case shows that the probate court had jurisdiction of the person and property of Bums at the time it adjudged him to be an in- sane person, and that this adjudication was made on due notice and hearing. The first three items of plaintiff's account, amounting to .S-j.-jO. accrued prior to the adjudication and the appointment of the guardian. As they ac- crued l)efore the adjudication of insanitv, it was incumbent on the defendant to show that the mental condition of Burns at the time these items accrued was such as to render him incapable of contracting. This he has not done. Indeed, the defendant's counsel practically admit i)laintiff's right to recover for these iiems. .lackson v. King, 4 Cow. 207. l."> -Vm. Dec. ;!.")4, and note. The plaintiff cannot recover for the remain- ing items, as they all accrued subsecpient to the adjudication of insanity and the ap- pointment of guardian, it not appearing tliat they were necessaries. After inquisition and adjudication of insanity, and the appointment of a guardian to an insane person, all his con- tracts, except for necessaries, are void, while such adjudication and appointment remain in force. Beverley's Case, 4 Coke, 126b, 127a; 5 Bac. Abr. (Bouvier's Ed.) 28; 15 Am. Dec. 368. note to .lackson v. King; Ewell, Lead. Ca.s. .j88; Wait v. Maxwell, 5 Pick. 217; Leoa ard V. Leonard, 14 Pick. 280; Lynch v. Dodge, 1.30 Mass. 4."8; Pearl v. McDowell, 3 .J. J. Marsh. 6."i8; L'Amoiu'eux v. Crosby, 2 Paige, 422, 22 Am. Dec. 6.").''i, and note; 1 Greenl. Ev. (12th Ed.) § n.jO. The soundness of this propo- sition is especially apparent when applied to adjudications under the probate system e.s- tabllshed by statute in this and many other of our states. It should be kept in mind that an inquisition of lunacy in England, and in those states which retain the English system of proceeding in such a case, is very different from the proceedings under the system of pro- bate courts in this and other states. By Rev. Laws. §§ 2436, 2437, provision is made- for the appointment of guardians by the pro- bate court to insane persons and spendthrifts. The words "insane person" include everv idiot, non compos, lunatic, and distracted per- son; and the word "spendthrift" includes ev- ery person who is liable to be put under guaid- ianship on account of excessive drinking, gaming, idleness, or debauchery. Id. SS 7. 243.5. A spendthrift may be put under guard- ianship whenever he so spends, wastes, or lessens his estate as to expose himself or hi.** familj^ to want or suffering, or the town to charge for supporting himself and his family. Id. § 2437. By statute, guardians of these several classes of unfortunate persons, and of minors, have practically the same rights, and are subject to the same liabilities and duties. There can be no question but what the pur- pose of the statutes providing for the appoint- ment of a guardian over any person falling within the classis named is "to secure propel- care of his person and of his property, and, as to his property, to secure it from being wast- ed through lack of care or squandered by im- provideut contracts." Kol)insou's Ex'r v. Rob- inson, 39 Vt. 270. To render this benetlcent design of the law effectual, it would seem that there can be no doubt but what the leg- islature intended all contracts, except for necessaries, to be void, when made by any person falling witliin either of the classes- named, after he has been adjudged an insaiu^ INSANE PERSONS. 6H jicrsou or to be a spoudllnift, and a j^uard- iaii appointed over him by the probate court, while such appointment remains in force. This intent Is clearly shown by the very full lirovision for the ternunatiou (if such j^uard- ianship at the instance of the .uuardian or the ward, provided for by Kev. Laws, $§ '2r,i\2- L'.jIO, inclusive. If this was not the purpose of our statute on this sid)ject, for what pur- pose was it enacted? Motley v. Head. 43 Vt. (133. is cited in the opiuiou of the majority of ihe court as holdinij; that au adjudit-atiou of insanity relied upon iu defense, to be avail- able, must be accompanied with evidence showinj; that the insanity is of that character which dis(iualities the defendant from making a valid contract, and it does in effect .so hold. This case seems to be anomalous. There is a line of cases in England and in America, iu states following the English procedure in making in!)S, 7J> -Mich. liI(J.) Snprcinc Coui-t of Mi(lii;;aii. .I;iii. 17. IS'.K). Appeal from circuit court, Wnyue coun- ty ; CoR.MCMCs J. Rkili.y, .)u(lj;e. Jus. J. SjH'cd, for appellant. John (i. Hawley, for appellee. (iHAN'r,.!. This iHanai)i)eal from tiie al- lowance to Jacob C. Mann, guardian of Em- ma Kenz, an incompetent, of the sum of .f4S.").41 forthecareand maintenance of said incompetent attheasylum foi- tlieinsan(!at Kalamazoo. The stipulated fact.sarethe.se, viz. : Emma l\cnz wa.s the wife of Henry Ilenz. and had been for .some time prior to iNTf). In March, 1N7"). she became insane, and her friends deemed it advisable to remove her to the asylum. She had no guardian at that time, noruntil May, 1877. Her husband and John Baumeister on March 4, 1875, made a contract with said a.syhim to pay certain exti-a charges and expenses while at the asylum. Her husband was unable to pay such expenses. Mrs. Baumeister, the mother of Emma by a formerhusband, asked her husband, Mr. Baumeister, to ad- vance the money necessary to send and keep Emma in the asylum, saying to him that she had made a will bequeathing Em- ma ,|>1,()00, and that he could be reimbursed out of that legacy. Ba,umeister expecting to be reimbursed, paid the above amount for removing and keeping her at the asy- lum. Mrs. Baumeister died May 24, 1876, leaving a will containing the betiuest, and making her husband executor. After the leg- acy became payable, Jacob Mann Avas ap- pointed guardian, and tiled his account as such guardian in the probate coui't, charg- ing himself with .$1,000, the amount of the legacy, and crediting himself with the above amount, which Baumeister had ex- pended for thecareof Emmaattheasylum. The circuit court held that this amount was properly chargeable by Baumeister against the legacy, and that it was proper and lawful for said Mann, as guardian, to allow the same. That the removal of Mi-s. Renz to the asylum was dictated alike by necessity and humanity; that Baumeister and Mann, the guardian, acted in good faith ; that the ex- penditure of the money was judicious, and for her benefit, — are not questioned. But it is contended on the part of the appel- lants that the claim of Baumeister is ille- VAN ZILE SEL.CAS..S.\LES— 5 gal, Ix'cnuse the husband was primaiil\ lia- ble, and Mrs. Kejiz, being insane, couhl neither contract nor a.ssent to this tran.s- action, and did not. I'.nt lier husband was unable to pay. and slie had oid\- an ex- pectancy fi-om her mother. If aiijjellant's liositi(jn be c(jrrect, then an insane ma iTied woman, wiiose iiusband is unalde to i»ro- vide for her pro])er medical treatnx'iit for her malady, though possessed of an estate //J />/v/'.s7>//f/ or exi)ectancy, must eithei- iie- come a i>ul)lic chai'ge, or be left without assistance. In f'arstens v. Hanselman,r>l Mich. 4;{(),2S N. W. Itep. 1.7.), the court says: "where a husband utterly deserts his wife, it would be a cruel rule for her if she can- not, in his absence at least, or in his jjres- ence, if he does not himself provide for her. make a binding agreement for any neces- sary, wliether articles to l)e jturchasecl or professional help, without becoming a pub- lic cliarge." Still more cruel would be a rule that the fi-iends of an insane married woman cannot advance money to procure for her medical attendance and care when the husband is utterly unable to do so, and in so doing bind her estate. Infants and insane i)ersons are liable for necessaries furnished theni, and the statute of this state expressly makes the estates of insane persons liablefor their maintenance at the asylum. Act No. l:3.j, § '.\1, Laws 188.1. Alexander v. Miller, 10 Pa. St. 211t. cited by appellant, is not in point. In that case the wife of an insane man attempted to sell his property, not to provide medical care or necessaries, but to prevent the levy of an execution on his property. Of cour.se shehad noauthority to do this. Thetpies- tion presented here did not arise in that case. The husband of Mrs. Kenz being un- able to provide for her removal to the asy- lum, an act of the highest necessitv., it would have been competent to use her own property for that purpose, if she had been l^ossessed of any. Baumeister advanced the money, not as a gift, but expecting eventually to be reimbursed. A guardian was subsequently ai)p()inted, and received a thousand dollars, the i)roperty of .Mrs. Kenz. If a guardian had been appointed l)efore she was sent to tlie asylum, and he had sent her there, and i)aid for it. would it be contended that he hail no right to be reimbursed out of her estate? I'nder the circumstances, we hold that the claim was an equitable one, and was proi)erly al- lowed by the probatecourt. Thejudgment must be affirmed, with costs. Theothei'jus- tices concurred. 06 INSANE PERSONS. ALEXANDER v. IIASKINS et al. (27, N. W. 9ar>. 68 Iowa, 73.) Suiin-nie Court of Iowa. Dec. 17, 18S.J. Apijcal from district cuiul. Harrison coun- t.v. Action to set aside a conveyance of real es- tate made by the plaintiff, on the ground tliat he was insane. The relief asked was denied, and the plaintitf appeals. .1. II. Smitli and A. W. Clyde, for appellant. II. II. Koadifer and S. II. Cochran, for appel- lees. SEI:\"1:KS. .J. The general rule is thai an insane person is not bound bj- (;ontracts (\'an I'atton V. Reals, 4(j Iowa, (52), and it has been held tliat it is immaterial wliether the de- fendant had knowledfie of such insanity when the contract was entered into (Seaver V. rhelps. 11 Pick. ;;5()4). While the foresoiuji' may be rej^arded as the general rule where ;in application is made to set aside the con- tract by some one acting for the insane per- son, thei'e are exceptions thereto when the <()ntract has been executed; and in this state the ml" is that an insane person is bound by such contract "where it is made in the ordi- nary coiuse of business, is fair and reason- al>le. and the mental condition was not known to the other party, and the parties Iowa. oHo; Ashcraft v. De Ar- mond, 44 Iowa, 234; Abbott v. Creal. .jG Iowa. 17t). 9 N. W. 11.""). We have carefully examined the evidence, and unite in the conclusion that the plaintiff AA as insane at the time the contract and con- veyance in (piestion were made. But counsel for the appellees insist that the conveyance cannot be set aside because it was made in the xisual course of bvisiness, and is in all re- spects fair and reasonable, and therefore the case is brought within the rule established in the foregoing cases. From a careful con- sideration of the evidence, we reach the con- elusion that in this counsel are mistaken. It is averred in the petition that the defend- ants had knowledge of the mental condition of the plaintiff at the time the contract and convey.-ince were made, and we are satislied that this has been established by the evi- dence. We deem it unnecessary, and such Is not our custom, to set out the evidence and state our reasons at length. There is therefore a material distinction between the cases above cited and this. Our attention has not been called to any case which holds that a contract made with an Insane person, witli knowledge of the insani- ty, has been sustained, and we think none such can be found. Besides this, we are not satisfied tl'.at the contract and conveyance in question is fair and reasonable. The evi- dence shows that the laud was worth, at the time the conveyance was made, from ."t^tJbO to .$800. We will assume that it was worth at least .$(;00. The defendant paid the plain- tiff ])ossibly .^j^O."). and there is evidence tend- ing to show that the defendant claimed the plaintiff was indebted to him on an account, including the .$!».") above stated, in the amount of al)0ut .$200, but the correctness of this ac- count has not been established. It therefore must be disregarded. There was a mortgage on the land executed by the plaintiff for .$300, and it will be conceded that, as between these i)arties, the defendant agreed to pay it. but the plaintiff was not released from per- sonal liability the..'eoii. Thei'e is no evidence tending to show that this moi'tgage has been paid. If it be conceded that the indebted- ness due by the plaintiff to the defendant was regarded as satisfied by the conveyance, and that its correctness has been established by the evidence, it only amounts to .$214.90, or about one-third of the value of the real estate. The defendants have had possession of the land, and have received the rents and profits thereof, for four years; and the evi- dence shows that the rental value thereof has been at least $G0 per year, or say $2.")0 for the Avhole period. It therefore clearly appears that the defendants have received, in rents and profits, more than the.v paid the plaintiff for the lands. We are of opinion that the court erred in refusing to set aside the conveyance, and there will be a decree entered in this court, if counsel so desire. IJeversed. INSANK I'KKHONS. 67 BLACKSTONE v. STANDARD LIFE & ACC. INS. CO.i (42 N. W. 150, 74 Mich. 592.) Snprome Court of Michigan. April 24. ISSO. Error to circuit court, Lenawee county; Lane, Judge. Action by Emma W. Bhickstone against the Standard Life & Accident Insurance Company. Judgment was given for [)lain- tiff, and defendant brings error. James 7\ Keena,[ C. E. Weaver and At- kinson, Carpenter & Brooke, of counsel,) for appellant. Westerinan ct Westernian, ■{ISet/i 7/. Bean and Leoi T. Griffin, of coun- sel,) for respondent. LONG, J. Plaintiff brought her action upon a policy of insurance, the material parts relating to this case reading as follows: "In consideration of the representations made in tlie application for this insurance and tlie sum of twenty-five dollars, tliis com- pany hereby insures Daniel L. Blackstone, Esq., residing at Adrian, countyof Lenawee, -and state of .Michigan, hereinafter styled the insured, by occupation, profession, or em- ployment a traveling salesman, in the prin- cipal sum of five thousand dollai's for the term of twelve months, commencing at 12 •o'clock noon on the 27th day of February, 181S*', the said sum to be paid to ALs. Etnma W. Ijlackstone, his wife, if surviving, within thirty days after tiie receipt of satisfactory proots that the said insured shall have sus- tained during the < ontiuuance of tiiis policy bodily injuries, effei'ted through external, Tiolent, and accidental means, within the in- tent and meaning of this contract and the conditions hereto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof: * * * provided, always, that this policy is issued and accepted subject to all tiie pro- visions and conditions herein contained and referred to. The statements and declarations of the insured, in his application for this in- surance, together with the company's classi- fication of iiazard, is referred to and made a part of tliis contract; and if this policy, or an}' renewal tiieieof, has been made or sliall be obtained through misrepr^'sentations, fraud, or concealment, or if any attempt shall l)e ma'Ctly in consequence of bodily infirmities or dis- ease, or by poison in any manner or form, or by any surgical operation or medical or me- chanical treatment; nor to any case except 1 Opinion of Campbell, J., omitted. where the injury is tiie proximate and sole ca.ise of the disability or (h-ath. And no claim sliall be made under this policy v\ lien the tk'atli or injury has been caused by duel- ing, lighting, wrestling, unnecessary lifting, or by overexertion, or by suicide, or by sun- stroke, freezing, or iutentioiial injuri"S in- dicted by or though the connivance of the insured, or when the death or injury may liave happened in ronsH(|U('nce of war. * * * And this insurance shall not be iudd to ex- tend to disappearances, nor to any cause of death or disability, unless the claimant under this [)olicy shall establish by direct and posi- tive proof tiiat the said death or disability was caused by external, violent, and acci- dental means." This policy was made subject to certain conditions, the second of which is: "The in- sured is required to use due diligence for per- sonal safety and protection. In the event of any accidental injury for which claim may be made under this polic}', immediate notice shall be given in writing, addressed to the company at Detroit, JNIichigan, stating the full name, occupation, and address of the in- sured, with full particulars of the accident and injury; and failure to give such imme- diate notice shall invalidate all claims inuler this policy, and unless diiect and atlirmative proof of the death of the insured shall be fur- nished to the ■■omi)any within ninety days from the happening of such fatal accident, or within six months in the case of non-Ialal injury, then all claims accruing under this policy shall be waived, and forfeited to the company." The policy was issued upon ji written application signed by tlie insured. The twellth, thirteenth, and fourteentli clauses of the application are as follows: "(12) My habits of life are correct and temperate, and I understnnd the policy will not cover any acciilent or injury resulting from the use of intoxicating drinks, or in consequence of having been under the inllu- ence thereof, or a breach of the law, or to any injury which may result from disease or prior injury. 1 am aware and agree that the benefits from the company wiil not extend to hernia, orchites, overexertion, or strains, nor to any bodily injury which has not been effected tiirough external and accidental vio- lence, or of which there shall be no ext rnal and visible signs, or by poison in any form or manner, or by any surgical o;eration or medieal or mechanical treatment, nor to any cause except where the accidental injury sliall be the proximate and sole cause of the disa- bility or deatii. (13) I am not suffering from any accident or wounds that would re- tard recovery, or be aggravated by personal injury. I am not subject to fits, or to any disorders of the brain or nervous system, or any physical infirmity which would render me liable to accident. (14) 1 iiereby agree that tiie application and declaration shall be the basis of the contract; that the jiolicy will be accepted subject to all the conditions and provisions contained therein; that any con- G8 INSANE PERSONS. ccalment of material facts, or misstatenieiits made by me, shall work a forfeiture of all claims tiiat may accrue under this policy." The declaration liled in the case, after stat- ing the issuing and the conditions of the pol- icy, avers "tiiat on the 28lh day of October, a'. D. 188G, her said husband died from bod- ily injuries, effected througii external, vio- lent, and accidental means, within the intent and uieaniniT of said pol.cy contract, and the conditions therein set forth; and that said injuries alone occasioned hisdeath, and with- in ninety chiys from the happening of said in- juries." The defendant pleaded tlie general issue, and gave notice that tiie policy declared upon was obt;nned by the insured upon an application, — the material portions of which have been heretofore set out, — and under an agreement that said application should be tl)e basis of the contract. That, at tiie time wiien said application was made, the iiisureei was subject to disorders of the brain and nervous system, and to physical inlirmities which rendered him liable to accident; and the fact that he was so subject was concealed by him from the defendant. That the in- sured died from injuries resulting from dis- ease. That the insured, before the time he made 3aid application, had been for a long period insane, and at tlie time of making said ai'plication concealed that fact from the defendant. On the trial in the court lielovv the plaintiff had verdict and judgment for the amount of the policy and interest. De- fendant brings error. It appeare.i upon the trial in the court be- low tliat the insured, Daniel L. JJlackstone, was a traveling salesman, and was empk)yed in tliat capacity during the sj^ring and sum- mer of 188G by tlie Acme Hay Harvester Company, of Peoria, 111. About September 1, 1886, he was thrown out of employment, and returned to his home in Adrian, and re- mained there until October 18th, when by correspondfnce he secured a situation with Mast, Buford & Burwell JManufacturing Company, of St. Paul, Minn. He left his home in Adrian October 18th, for the pur- pose of tilling this engagement, and arrived in iSt. Paul on the 19th, and remaineil there until the 27ti) of that mouth, when he put an end to his life by cutting his throat with a razor. It is claimed by plaintiff that during the last two or three weeks of l)is remaining at home he showed evidence of mental de- rangement, and that during his stay in St. Paul, from October 19th to the 27th, there was evidence of insanity. The plaintiff's claim of recovery on the policy rests upon two ])ropos.tions, each of which is denied by tlie defendant : (1) That iJlackstone wms in- saJie at the time lie took his life: (2) tliat an insane self-killing is an accident within the meaning of tliis policy. Was iilackslone in- sane at the lime he took his life? At the close of the testimony the counsel submitted five special questions to the jury for their finding, as follows: (1) Did Mr. Blackstone kill himself? (2) Did he know at the tiiiiO that he was committing an act whicli must result in death? (3) Was he conscious of what he was doing? (4) Did he intend to cut his throat, and thereby kill himself? (5) At the time Daniel L. Blackstone cut his throat, was he insane? The jury answered these questions, the first and fiftii in tiie affirm- ative, and the second, third, and fourth in the negative. We, have, therefore, presented to us by tlie record of the fifth finding of the jury that the insured was insane at the time he cut his throat, and tiie only inquiry for us upon this part of the case is. Was there any evidence to support this tinding? It was said by tliis court in Conely v. Mc- Donald, 40 Mich. 158: "We are bound in all cases to assume that the jury have done no legal wrong when acting within their prov- ince. * * * The credibility of witnesses, the strength of their testimony, its tendency, and the proper weigiit to be given it, are mat- ters pculiarly within their province. * * * To take from them this riylit is but usurping a 1)0 wer not given." This doctrine has al- ways been adhered to in this stale, and has been stated and restated in so many cases in this court that no reference to them is neces- sary. The testimony relating to the insanity of Mr. Blackstone is somewhat voluminous, and we shall quote only portions of it. Mr. Wallace Westerman was called as a witness by the plaintiff, and testilied sub- stantially that lie had known Mr. Blackstone between 12 and 13 years; that he was a man of more than ordinary intelligence, — a man well read, courteous, and of more than ordinarily pleasant and genial disposition. His business for lU years prior to liis death was that of a traveling salesman engaged with different houses. For four or five years he was witli Comstock Bros., of Adrian; then for Pair- banks, Morse ing talked to. He acted as if he wasn't lis- tening, and had that indifferent way." Wit- uess then says: "I am satisfied from his pe- 70 INSANE TERSONS. culi:ir actions that I saw, and his subsequent j actions, tliiit he wasn't in his liglit mind; , and outside of tiie fact that he coniiuitted suicide 1 wouhl say 1 would consider liim un- balanced in his mind." Mr. J. M. Bigford testified tiiat he was a salesman for Mast, lUiford & lUuwell at St. i Paul; tiiat he met Mr. IJIackstone lirst in Octolier, at their cilice. It was Ids duty to post him on prices of goods of which he was to make sales. He spent a part of each day ■witli him. One day, while showing him anew model plow, it was almost impossible to get him interested in it. He asked no questions, and did not give the least indiration that lie understood it. He seemed to be in a deep study, and liis mind wandering off from the subject being talked al'out. He asked to be excused; said he wanted to go up-stairs; did not go, but went into the otlice, and took off Ills overcoat, and paid no more attention to the business. "I remarked." said the wit- ness, "to .Mr. Warner tliat 1 didn't think he was right. 1 was of the opinion tliat he was not in his right mind. What I told him seemeil to make no impression on his mind. I would go over tlie same ground au'ain, and still he appeared as ignorant as he did before. I believed him to be a man of unsound mind." Mr. H. A. Estes was clerk of the Windsor Hotel, and noticed that the deceasptrilid not take liis meals regularly, appealed to be de- spondent, made no acquaintances about the house. He complained of not feeling well. Dr. .James A. Quinn testified that he was a ])hysician at St. Paul, and saw the deceased aft'^r his death; made an examination; and says that the wouml in the throat was the cause of death, and was one which could have been made by the deceased with his own hand. This is substantially all the testimony bear- ing on the question of the insanity of the in- sured, exce[)t some circumstances related by Mr. Wallace Westerman and Waiter Wes- terman relative to some peculiarities in the conduct and beaiingof tlie insured just prior to his going to St. Paul. Mr. Blackstone wrote home to his wife from St. Paul on the 19th, and again on the 20tli and 2:3d, and in his last letter acknowledge! receipt of letters from home. These letters are con- cise, speaking of his business arrangemi-nts, and making inquiry about the iioaltii of tlie family. In the letter of the 20th he speaks of the pain in his head and stomach, and says he thinks it was the jar of the cars, and hi'pes it will not affect him so badly when hf comes to travel a}:;ain. In this letter he also speaks of seeing in the papers an ac- count of a number of persons in Adrian be- ing poisoned by drinking cider in which ar- senic was put, and inquired of his wife who tliey were. In the letter of the 2od he says: "I -am tired out. I am very sorry to pain you by writing this, but you asked me to tell you how I feel. It seems to me if I could liave some work out of doors, like riding. and sometiiing to employ my mmd, I might gain. I shall do the very best in that direc- tion. Pray for me, and clo not blame me for what may seem inconsistent to you." We think there was some evidence to go to the jury upon the cpiestion of insanity. It is not of great weight, but that is not a ques- tion which we are at liberty to discuss; and while we might have found differently from the jury if we were to consider it as a ques- tion of fact for our determination, yet, there being some evidence of the fact, and the jury having determined it under what we think a fair submission of it by the court to them, we are not called upon to disturb it. The insured was a man 55 years of age, of genial and pleasant disposition, full of lile and vigor up to witiiin a few weeks of his death; a man of good education, and good mind; talkative, and apparently happy. His domestic relations were pleasant, and, so far as this lecord discloses, no great amount of care was placed upon him in their snp[)ort and maintenance. One of the daughters was married to a man apparently prosperous in business, and the insured had no debts of any amount, and no creditors pressing him for payment. Up to within a month or six weeks of his going to St. Paul he had been constantly employed at good wages, and no one dependent upon him was suffering dur- ing that time from his enforced idleness. He became moody, restless, and nervous before leaving home. He could not sleep nii^hts, walked the floor, and was found at times pac- ing the back yard. His condition became noticeable to his wife and the family. He was abstracted, and at times failed to re- spond to the salutations of his acquaintances. His mind seemed to be troubled; complained of pain in the head, and looked haggard and sick. On his arrival at St. Paul, where he was among strangers, his ap])earance caused remarks. Me could not get to the business he went to take charge of, — could not keep his mind ui)on it; was nervous and restless, wanleriDg from place to place, and change- ful in Ids conduct; nervous, and keeping alot)f from ((tlier men by whom he was sur- rounded; coniplainedof pain in his head and stomach; writing home to his wife to piay for him, and not to blame him if he dd any- thing inconsistent; and finally, on the 27tli of the month, is found with liis throat cut from ear to ear by a razor, — the act being committed by his own hand. Every person is presumed sane, and the burden is upon the plaintiff in the case to show the insure 1 insane at the time of tlie taking of his life. The jury must de- termine this questiiin from the acts and conduct Oi the de eased, and this can only be gathered from witnesses who are cogni/ant of the facts. The learned counsel for the de- fendant, however, argues that, even if there was evidence to go to the jury on the ques- tion of insanity, and thou^di the jury iiave found that tlie insured came to his death while insane, yet, it appearing that he came to his death by his own hand, it is not a bod- INSANE TERSONS. 71 ily injury, effected thio ijrli external, violent, and acL-idental means, witliin the meaning of tiie policy. Practically, all the cases agree in holding in tiie language of the siipreMie court of Massachusetts in Cooper v. Insurance Co., 102 Mass. 227, that there is no substantial dif- ference of signilication between the piirases, "sliall die by his own hand," "shall commit suicide," and "shall die by suicide." Tiie rule of construction, though not always rec- oijnized by the cases, is that this condition, b^ing in the nature of a penalty or forfeiture, must be strictly ccmstrued. In Insurance Co. V. Mooie, 34 Mich. 41, Mr. JusticeCAMP- I4KLL, speaking for the court, said: "Tlie condition which makes the policy void in case of sucli a death is in the nature of a p nalty or forfeiture. * * * The forftiture in tliis case was to arise if the insured died by his own hand. .Some stress is laid on the term 'suicide,' as if it means a wrongful act, or self-murder. It has no such restricted meaning. It means self-killing, just as ' homicide " means killing any one else. IJut there may be excusable homicide as well as felonious; andsuicide was only cognizable at law wiien the person was/e/o de ne, or guilty of a felonious act. If nun compos me)itis, tlie actor in homicide or suicide commits no criu'ie. In one sense the man dies by his own liands who kills hiuiself, whether sound or frenzied. But the condition in this policy cannot be construed to caise a forfeiture for acts involving no evil will." Upon tiie question of voluntary suicide, in- tentionally committed by a sane man in tiie possession of his facultes, knowing how to adopt means to ends, and conscious of the im- morality of the act, there is no ditiereiice of opinion; and all auti'.orities agree that self- destruction is within the exempt. on; and all authorities likewise agree that an acci- dental death. — as by taking poison by mis- take, or shooting one's self with a pistol, sup- posing it not to be loaded, or falling from a building, or death happening in any way by tiie unintended act of the party dying, — is not within the exemption. But whether sui- cide by an insane man is also within the ex- emption has bt-en tiie question in dispute, and upon this two prominent and diffi^rent doctrines have been maintained. On tiie one liand it is maintained that if the act lie vol- untarih' done in pursuance of an intelligent Ijurpose, and intentionally and intelligently cariieil out by the proper ado|)lion of uieans to ends, it is suicide on liie part of the in- sured, or death by his own hands, although insanity exists to such an extent th;it he may not be able to api)reciate the moral (juallties of the act. On the other hand it is main- tained that, however intelligently the act may be done, if at the time the will be over- powered by an uncontrollable impulse, or the l)arty be unable to appreciate the moral char- acter of the avt, it is not witliin the m aning of the provision. May, Ins. § 307. The rule in Enyiand was laid down lu 1843, in Bor- radaile v. Hunter, b Man. & (i. (539, and lias since been adhered to. In tliis case the words of the condition were that the policy should be void if the assured shoiihl "die by iiis own hand." He threw himself from \'auxhall bridge into tJie Tiiames, and was drowned. The jury found that he voluntarily tlirew liimself into the river, knowing at the tini" that lie should thereby destroy Ids life, and intending thereby to do so; but at the time of committing the act he was not capable t)f judging between rlglit and wrong. It was held that the policy was void, the rule being laid down, in effect, that the moral comlition of the mind was immaterial; and if, when the act was done, the insured knew that life would be thereby destroyed, and inteniled it to be so, the policy is violated uniier the clicy in that case contained a condition, if the assured shall within three years from the date ot this pol- icy die by his own hand, sane or insane, this policy shall become and be null and void. AVithin the three years from the date of th policy the insureil died from the effects of ; pistol-sliot wound inllicted upon himsell. The court followed the opinion of Mr. Jus- tice Davis in Uigelow v. Insurance Co., 98 U. S. 284, holding that no recovery couhl be had upon the policy, by reason of the limita- tion contained in the proviso, "sane or in- sane." After quoting from the opinion of Mr. Justice Da\is, it was said : " If a person does an act in a state of uncoiis iousness, or involuntarily, whether he be sane or insane, such act is nothing nu^re nor less than acci- dental, and would not operate to forfeit the policy. The record in this case does not dis- close such a state of facts. There was no evidence that the act was involuntary, or that Mower was unconscit)us when he in- flicted upon himself the fatal wound. The policy covers all conscio.us at-ts of the insured by which death by his own hand is compassed, whether he was at the time sane or insane. If the act was done for the purpose of self- destruction, it matters not that tlie insured liad no conceplion of the wrong involved in its commits. on." Counsel for the defeiidint now insists that if the insured was insane his insanity caused his death, and that insanity is a disease, and that theqiieslion rema.n.n.', and upon wjiich the court must pass, is, is tliede;dh caused by the disease "insanity" an accidental death? The policy provides "that the insurance shall not extend to any boilily injury of which there shall be no external or visible sign, nor to any bodily injury happening ilircctly or indi- rectly in conse(iuence of bodily intirmities or disease, nor tt» any one except when the in- jury is the proximate and soleiause of the disability or death." Is insanity a disease? The learned Dr. Ibickham, in his woik on In- sanity in its Meilico-Legal Helations, pnli- lisheil in 1S8;?, at section 215, says: "We think sutlicient evidence has already been educed to show that insanity is a physical, and not a mental, disease. And yet the proof par ex'-'dlenre remains to be olTered. We have taken ciuisiderable tnuible to ac(|uaiiit ourselves with the facts, and we beiieve that there is no ahenist in the United States who believes that insanity is a disease of the mind." And the learned doctt)r oilers the following as a delinition of insanity "A diseased or ciisordereil condition or malfor- mation of the physical organs, tlirouiih which the mind receives impn ssions, or manifests its ojieiations, by which the will and judg- ment are impaired, and the conduct ren- dered irrational." And lie says: "As a cor- ollary we otter: Insanity being the result of physical disease, it is a matter ot fact to be determined l)y medical experts, and not a matter of law to be deciiled by legal decisions and maxims." Agreeing, as wedo. willi liie learned doctor, tiiat insanity is a physical disease, and a (luestion of fact for determina- tion in thecas'.', let us see what has been de- termined liy the jury, before considering the Iirojiosition made liy the counsel for the de- fendant. The jury found — First, that the insured killed himself; sccaiK/, that he did not know at the time that he was committing an act which must result in death; tliinl, that he was not consciv)Us of what he was doing; fourth, that he did not intend to cut his throat, and therel)y kill himself; ami, Ji/tfi, that at the time he did cut his throat he was insane. Admitling that there was some evi- dence to go to the jury upon those (piestious, and that those ([Ueslions have been properly submitted to them by the court upon tiie trial, then we are asketl lo say that insanity being a disease, that disease was the proxi- mate cause of the death of the insured, and that he did not come to his death by an ex- ternal accidental injury, within the meaning of the terms of the policy. In Insurance Co. v. Cranilal, 120 f. S. 527, 7 Sup. Ct. Hep. (385, a policy similar in form and conditions INSANE PKUSONS. was issued, based iinoii an application in siibslance tiie same as the one in issue here. Mr. Justice GitAV, delivering the opinion of tlie court in that case, said: "The single question to be decided, therefore, is whethtT H policy of insurance against • bodily injuries cftVctetl througi) external, accidental, and violent n)eaiis,' and occasioning death, or cou)[)lete disability to do business, and pro- viding tliat ' this insurance shall not ex- tend to death or disability which may have been caused wholly or in part by bodily in- lirniities or disease, or by suicide or self-in- llicted injuries,' covers a death by hanging one's self while insane. The decisions upon the effect of a policy of life insurance which provides that it shall be void if the assured 'shall die by suicide,' or 'shall die by his own hand,' go far towards detei'mining this question. This court, on full consideiation of the conflicting authorities upon that sub- ject, has re[)eatedly and uniformly held that such a i^rovisjon, not containing the words 'sane or insane,' does not include a self- killing by an insane person, whetlier his un- soundness of mind is such as to pre\ent him from understanding the physical nature and consequences of his act or only such as to prevent him, wiiile foreseeing and premedi- tating its physical consequences, from under- standing its moral nature and aspect;" citing Insurance Co. v. Terry, 15 Wall. 580, and other cases in that court since that time. "In this state of the law there can be no doubt," sa}s .Justice Gray, "that the assured did not die 'by suicide,' within the meaning of this policy; and the same reasons are con- clusive against holding that he died by ' self- inllicted injuries.' If 'self-killing,' 'suicide,' 'dying by his own hand,' cannot be pred- icated of an insane person, no more can ' self- indicted injuries,' for in either case it is not liis act. Nor does the case come within the clause which provides that the insurance shall not extend to ' death or disability which may liave been caused wholly or in part by bodily infirmities or disease.' If insanity could be considered as coming within this clause it would be doubtful, to say tiie least, whether under the rule of the law of insur- ance which attributes an injury or loss to its proximate cause only, and in view of the de- cisions in similar cases, the insanity of the assured, or anything but the act of hanging himself, could be hel 1 to be the cause of his death. * * * The death of the assured not having been the effect of any cause specilied in the proviso of the policy, and not coming within any warranty in the applica- tion, the question recurs whether it is with- in the general words of the leading sentence of the policy by which he is declared to be insured 'against bodily injuries effected thiougii external, aciidental, and violent means.' Tliis sentence does not, like the proviso, speak of what the injury is ' caused by,' but it looks only to the ' means ' by which it is el'lected. No one doubis that hanging is a violent means of death, as it affects the body from without. It is ex- ternal, just as suffocation by drowning was held to be in the cases of Trew, Iteynolds, and Winspear,! above cited. And according to the decisions as to suicide uu ler policies of life insurance before referred to, it cannot when done by an insane person be held to be other than accidental." Counsel for defendant, considering this case of Insurance Co. v. Crandal, says, "that while the court held that insane self- destruction was an accidental death, and seemed to be of the opinion that insanity was a disease, there was no discussion by the court of the question whether insanity, be- ing a disease, would not preclude insane self- destruction being an accidental death; that the courtavoided tlie discussion of this ques- tion by suggesting tiuit though they did not decide that, in accordance with the autliori- ties already discussed, insanity was not the proximate cause of the death, and decided that the policy did not exempt the insurer from liability for a death of tiiat character; that this was an evasion of tlie question squarely presented to the court for tiieir con- sideration; that, regardless of the exceptions in the policy, the company was clearly not liable, unless the deatli was accidental; and in deciding the case the court was bound to say either that death was not caused by the disease insanity, or that deatii so caused is accidental deatli." We think that tha court in that case held tliat, while insanity was a disease, yet the insured, having come to his death liy hanging, though by his own liaiids, met with an accidental death within the terms of the policy. Counsel for defendant asks, what does "external" mean':' Can it be given any con- struction that will make it api)ly to violence dnne by the insured himself? Does it refer merely to the instrument of death? and says: "I submit that external violence is that com- ing from sources outside of the insured. Blackstone's death came about through in- ternal means; that it was caused by his own hand, in a literal, if not in a legal, sense; that his hand moved in obedience to his will, however darkened his will may be; that it was not Voluntary; that he was not trying to do something else; therefore the injury was not external or accidental." We do not agree with counsel in this proposition. We think the insured c.ime to liis death by vio- lent, external, accidental injuries, within the meaning of this policy. AVithout going over the reasons brought to bear upon the ques- tions, it is evident that the words "died by suicide," "death by his own hands," and other words of similar imjiort, are held to be made ap|>lieable only to tJiat class of cases where the insured comes to his death by his own voluntary act. This question has been settled by tlie jury; that the diseased was iTrew v. Assurance Co., .5 Hurl. & N. 211; Rey- nolds V. Insurance Co., 22 Law T. (N. S.) 82i); Wiuspear v. Insurance Co., 42 Law T. (N. S.) 'JOO, affirmed Q. B. Div. 42. INSANE PERSONS. insane; that he took his own life; that lie did not iiilend in cutting his throat to kill himself; and that he was not conscious that liis death would be occasioned thereby. Let us suppose, as an illustration, that A. and ]J. take a policy of like terms and contlitions as tlie one in suit, based upon similar appli- cations, with all the conditions and jjrovis- ions contained in the present case, and dur- ing the life-time of each of those policies A. becomes insane, anJ, while so insane, with a pistol slioots and kills B., and in the same nioment turns the pistol and kills himself. No one would question but that by tlie terms and conditions of B.'s policy he hid met with an accidental, external, and violent death, and the company would be held liable; that the case came within the [)rovisions of the policy. Yet counsel for the defendant contends that, conceding that B. cami' to his deatii by accidental, external, and violent injuries, because intlicted by tlie hand of an- other, yet A., although insane, and wholly unconscious of the act of killing, not by force of his own will, but because he was bereft of reason, kills himself, it is not an external injury and accidental death, within the mean- ing of the policy. We flunk in a case of that kind A.'s death was as much an exter- nal, violent, accidental death as was the death of B. A. is no more responsilile for the act than was B. It was involuntary; it was not the act of his own will; it was not his death by his own hand, in legal contem- plation, but he came to his death at the hand of a madman, though that madman was him- self. We think that the tlefendant, under the finding of the jury in this case, cannot now be heard to say that this was not an ac- cidental death, and an external injury, com- ing within the terms of the policy. We tind cases in which it is held under like policies, where one becoming insane and falling down upon a railroad track is thereby killed by the passing of a train, that such cases come within the provisions of the policy, and the company would b.^ liable. It is also held, where one, being insane, and through his insanity has placed himself in a dangerous positit)n, where he would not have been found had he been in his right mind, and has met with an accidental death by rea- son of his insanity, that the compi.ny is lia- ble, and recovery can be had. That where one in a fit of insanity involuntarily falls off a bridge and is killed, or falls into a stream and is drowned, — this being involuntary, — ■ the company is liable. Yet counsel say that this class of cases are external injuries, in- juries producing death of the insuied from outside causes, ;uid for that reason the com- pany may be held liable. We think where one is so far beside himself, his intellect so daikened and obscured, that he may be neither morally nor legally responsible for his own acts and conduct, and in such condi- tion [jroduces his own death, it cannot be any more said to be his act than though the act had been comm.tted bv another, or the in- sured had placed himself upon some danger- ous height and fallen involuntarily, and had been dashed to pieces. Some other questions are raised by the rec- ord, but we do not deem them of siUficicnt importance to discuss them here. We think the case was fairly suiunitted to the jury by the court, and fa.rly tried. Tlie couit, upon this question of insanity of the deceased, in- structed the jury: "Jiut, as 1 have before stated, the mere fact that a man kills him- self does not of itself eslablisii insanity. A man may do that by reason, as 1 stated, of lack of courage to undertake the work which his life seems to furnish for him; may get discouraged, and feel he would rather take his chances in the life to come than here. And if in that spirit he determined to take his own life, that would not be the taking of his life under the condition of mind which the law would say was in insanity. If you believe Air. Blackstone took his life under such conditions, then the plaintilT cannot re- cover; otherwise, if you believe, as I have chargeil you, that he had no power to do it, and had not capacity of mind to do it, then the plaintiff would be entitled to recover, be- cansi\ as I have instructed you, death under such circumstances would be acf.-idental." Some question is raised now by the defend- ant that there was proof of the insanity of the deceased some 20 years before the time of the taking out of the present policy. Some evidence was given of this upon the trial. Defendant's counsel insists tiiat this was a concealment of a fact from the insuran -e comjjany at the time of the application in the present case. This objection was overruled by the court below, and we think very prop- erly, under the testimony of the defendant's own agent, Mr. H. E. Rich, who took the application in the present case. He testi- fied that he remembered taking the applica- tion; that he wrote the body of it. He says he had a previous talk with Air. Blackstone coming across on the .Jackson bianch fr«>m Tecumseh to Adrian, '"and we renewed our talk in regard to accident insurance, and he thought lie could not alVord to lake so much. 1 told him he could make it in two payments, — pay part in Ihii ty days, and the bal.mce in sixty days, for .S5,\»0i),' and .•5;25 weekly in- demiiity.' He thought he would be able to make tJie payment in that way, and said he would talk vvith his wife in regard to it, and see whether she thought he liad better do st). He never had carried any, he said, but he would come in and see me before he lei t town. He came in afterwanls, and said he had con- cluded to take a policy. I took out the a|)- jilicatiou and filled it out. He said he would take the amount we talked of, and I asked him his full name and who the beneficiary would be, and he told me. I asked him if he had any other accident insurance, and he said, ' No;' and 1 drew a line Ihrough it, and turned to him, — he sat opposite my desk, — and told him to sign on the line,— sign his name in full, same as I had written it in the 76 INSANE PERSONS. heading. He did so, and 1 took the applica- tion and put it in my drawer." On cross- examination the witness said: "I didn't no- tice any difference in him than in any otiier man tiiat I liad ever solicited. He was as well informeti as ordinary men 1 talk with on the same subject. The question was the amount in cast> of death and the amount of indemnity; that is all that was talked over. 1 should say he was an ordinarily informed man. Not more tlian ordinarily well in- formed, as yon meet them in solicilinj/ in- surance." No evidence was given or tend- ing to i)rove that Blackstone was not sane at the time of the taking of this jiolicy, or that he had had any trouble mentally for a period of 2lJ years. The court, in its direction to the jury, excluded this whole question, and told the jury that it was claimed on the part of the plaintiff, who introduced the testi- mony, tliat it tended to establish the fact of Lis insanity at the time of committing the act; tliat it was claimed on the part of the defendant that it tended to establish tliat he was subject to mental disease, and that thorefore, by the terms of the application, it was a false rejjresentation, — that Hlackstone made a false re{)resentation in making the application, as regards that fact. J3ut the court said: "Genllemen, for neither of these purposes, nor for any otlier purpose, nor for any other purpose whatever in the case, shall you consider this testimony." And we think the court very properly excluded this from the consideration of the jury. We need not diseuss tiie other questions raised. The judg- nitnt of the court below must be affirmed, with costs. 8HKIIWOOD, C. J., and MORSE and CIIAMPLIN, JJ., concurred. CAMPBELL, J., concurred in the result. MARRIED WOMEN. 77 GILLESPIE pt ill. V. BEECIIER. (54 N. W. 1()7. 04 Mi.h. .-574.) SuprpiiK- Court of MichiKJiii. Doc. 23. 1S92. Error to circuit court, Wayne county; 'loorge S. Ilosnier, Judgo. Action by .Tolianna (4illespie and another against Luther Beeclier for unlawfully dis- j)ossessing plaintiffs of promises leased to Ihoni by defendant. A verdict was directed in defendant's favor on the opening state- ment of plaintiffs' counsel, and i)laintiffs bring error. Reversed. James H. Poiuid, for appellants. Henry M. Cheever, for appellee, cited the following cases on the proposition that tlie l)lainliff .Tolianna Gillespie, a mari-ied woman, had no power to enter into the lease: Ed- wards V. McEnhill, .51 Mich. 1G6, 16 N. W. Rep. 322; Tillman v. Shackletou, 15 Mich. 447; Campbell v. Wliito. 22 ISIich. ITS; De Vries v. Conklin. Id. 255; Powers v. Russell, 26 Mich. 179; Emery v. Lord, Id. 431; West v. Lara way, 28 ]Mich. 464; Ross v. Walker, 31 Jilich. 120; Gillam v. Boynton, 36 Mich. 236; .Teune v. Marble, 37 ISIich. 319; Kitcheli v. Mudgett, Id. 81; Carley v. Fox, 38 Mich. 387; Johnson v. Sutherland, 39 Mich. 579; Russel v. Savings Bank, Id. 671; Gantz v. Toles, 40 Mich. 725; Insurance Co. v. McClellan, 43 Mich. 564. 6 X. W. Rep. 88; Buhler v. Jennings, 49 Mich. 538, 14 N. W. Rep. 488. DURAND, J. The ded;! ration iu tliis c.ise charges that the plaintiffs, on August 3:), 1SS8, were in possession of a house and prem- ises which they were using as a dwelling house and as an hotel and boarding house, and that, being so in possession, the defend- ant imlaw fully and forcibly entered and took possession thereof, and thereafter maintained his possession as against them, thus putting them in fear, depriving tliem of tlieir iiome, and destroying their business as hotel or boarding house keepers. The defendant by his plea denied liability. The case came on to be tried, and in opening the case to the Jury plaintiffs' coimsel stated substantially that liL' intended to show that plaintiffs were husl)and and wife: that they were possessed of some property, and that in Fei)rnai\v, 1S88, they entered into a joint lease, in which tliey were the tenants, and tlie defendant was the lessor, of the Globe or Dollar Hotel, on the coriior of Jefferson aveiuie and Brush street, in Detroit, and wliich are the prcraLses which it is claimed the defendant imlawftilly took possession of; that the lessor insisted that the plaintiff Joh.anna Gilli^spie should join in the lease with her husband, and would not )nake the lease if she did not join, and that upon his insistence she did so; tliat the lease was then made to them jointly; that they entered into possession of the premis,'s, and while in peaceable i)osse,ssion thereof were unlawfully dispossessed i)y defendant; and that they sufteri'd considerable damage in consequence. After this statement the cir- cuit judge said: "I think, with reference 1o this matter that you m.iy con.sider, that I will direct a verdict on the ground that it was incompetent for the husl»and and wife lo join in the lease for the purpose of carrying on a pai'tnersliip hi the k-'ejiing of a boarding house or hotel. 1 will enter a or joint owner, is attacked. To give sanction to such a doc- trine would place marrit'd women at a se- rious disadvantage, and one which the law does not inflict ui)on her. For the reasons stated the judgment must be reversed, and a new trial granted. The other justices con- curred. J8 MARRIED WOMEN. ARTMAN et iil. v. FERGUSON et al. (40 N. W. !.07. To Mich. 14C.) Siiiii-ome Court ot MicluKiin. Nov. 28, 1888. I]rior to circuit court, Jack.son coiuity; Lane, Judge. Thomas A. Wilsou, for ayi)elkiuls. Richard Price and Austin Blair, for appellees. LONG, J. This action is brought in the cir- cuit court for the county of Jackson, on the common counts in assumpsit, to recover for goods sold and delivered to the defendants, do- ing business at Jackson as I'eter Ferguson & Ck). The defendants are husband and wife, and the plaintiff sought to show that, after their marriage, they formed a copartnership, and carried on the retail carpet business in the city of Jackson under the firm name of Peter Ferguson & Co., and that during such time the goods involved in this suit were sold to them; that Margaret W. Ferguson was, at the time of the formation of such copartnership, possessed of property in her own right, of the value of |;20.W0, and furnished the entire capital for the busine.ss, and provided a place to carry on such birsiness; that Peter Ferguson had no means, and was to and did manage the business; that the copartnership continued un- til after the last item of goods mentioned in the bill of particulars was sold. This evi- dence was objected to by defendants' counsel, on the ground that it was not competent for husband and wife to enter into a copartner- ship with each other. The circuit court sus- tained the objection, and directed a verdict for defendants. Plaintiffs bring the case to this court by writ of error. The only question arising is whether the husband and wife can enter into a contract of partnership between themselves, and thus ren- der themselves jointly liable for the contracts of the firm thus established. At the common law married women were incapable of form- ing a partner-'-hip, since they were disaliled, generally, to contract or to engage in trade; and the husband and wife were wholly in- capacitated to contract with each other. Whatever rights or powers the husband and wife have to contract with each other, or that the wife may have to enter into a copartner- ship to carry on trade or business, must be conferred by our constitution and statutes. Thei-e was never any impediment to the ac- quisition of property through purchase by a mairied woman. The difficulty was that at Che common law the ownership passed imme- diately to the husband by virtue of the mar- riage relation. Our statute has not removed all the common-law disabilities of married women. It has not conferred upon her the power of a ferae sole, except in certain direc- tions. It has only provided that her real and personal estate acfpured before marriage, and all property, real and personal, to which she may afterwards become entitled in any man- ner, shall be and remain her estate, and shah not be liable for the debts, ol)ligations. and engagements of her husband, and may be con- tracted, sold, transferred, mortgaged, convey- ed, devised, and bequeathed by her as if she were uiuuarried; and she may sue and be sued in relation to her sole property as if she were unmarried. How. St. §§ 0295-0297. In all ether respects she is a feme covei't, and subject to all the restraints and disabilities consequent upon that relation. A partnership is a contract of two or more competent per- sons to place their monej', effects, labor, and skill, or some one or all of them, in lawful com.merce or business, and to divide the profit and bear the loss in certain proportions. That a married woman may, when she has separate estiite, be a copartner with a person other than her husband, is held in many states under the married woman's statutes. But where the statute gives her no power, or only a lim- ited power, to become a partner, the rule of the common law provides that she cannot enter a firm. It has been held by a great preponder- ance of authorities, even under the broadest statutes, that a married woman has no capac- ity to contract a partnership with her hus- band, or, in other words, to become a mem- ber of a firm in which her husband is a part- ner, even in those states in which she may embark in another partnership; and though she holds herself out as such partner, and her means give credit to the firm, she is held not liable for the debts, as she cannot, by acts or declarations, remove her own disabilities. Lord V. Parker, 3 Allen, 127; Bowker v. Brad- ford, 140 Mass. 521, 5 N. E. 480; Haas v. Shaw, 91 Ind. 384; Payne v. Thompson, 44 Ohio St. 192, 5 N. E. 0-54; Kaufman v. Schoef- fel. 37 Hun, 140; Cox v. Miller, .54 Tex. 16; Mayer v. Soyster, 30 Md. 402. In this state a married woman was subject to the com- mon-law disabilities of coverture until the pas- sage of the married woman's act of 1855. How. St. §§ 6295-G299. This act does not touch a wife's interest in her husband's prop- erty, and these remain under the restrictions of the common law, unless they are removed by some other statute. The wife's common- law disabilities are only partially removed by the act, and one who relies on a wife's con- tract must show the facts in order that it may appear whether she had capacity to make it. Edwards v. McEnhill, 51 Mich. 161, 16 N. W. 322. LTnder oiu' statutes a wife has no power to contract except in regard to her sep- arate property. The constitution and statutes are clear against her right to make a mere personsil obligation unconnected with property, and not charging it. so that she cannot be- come personally bound jointly with her hus- band, nor as a surety, by mere personal prom- ise. De Tries v. Conklin, 22 Mich. 2.55; West V. Lain way, 28 Mich. 404; Emery v. Lord, 26 Mich. 431. In Jenne v. Marble, 37 Mich. 326, Mr. .Justice Campbell, speaking with reference to a lease, said: "The language of tne stat- ute is no broader than the equital)le rules con- cerning separate property laid down m the same woi'ds in most of the old decisions. The -MAKKIKI) WU.MKN. 79 Klisabilities of testinn)iiy arc iMiiiie'.y iiicuusi.-t- <'Ut with the idea tliat husluiiul and wife may deal with each other as tliird peisuiis can. Tliis i.s impossible, if they cannot testify con- cerninjj tliese contracts; and when tlie law rcco;,'nizes. as it always has done, llie peculiar power of substantial coercion p-jsscssed by hus- bands over wives, it would ut)t be prt)per to in- fer anj- lej^al intent to remove i)rotection .ii.i^ainst such intluence frt)ni any vajjue provi- sions which no one suppi'ses were ever actual- ly desi;:ued to reach such a result, and which can only be made to do it by an extended con- struction. Any one can readily see the mis- chiefs of allowing persons thus i-elaled to put thcm.-elves habitually in business autayonlsm, and leuisliitiou which can be construed as per- mit tins it is so radically oppostnl to the sys- tem which is found embodied in our statutes jrenerally that it should be plain enough to iidmit of no other meaning." It is the purpose of these statutes to secure to a married woman the right to acquire and hoia property sepa- lale frcm her husband, and free from his in- fluence and control, and if she might enter into a business partnersliijj with her husband it wouhl subject her jiiuperty to his ( ill. (42 N. W. 151, 74 Mich. (JTU.) Siiprcinp Court of Michigan. April 24, 1S89. Appeal from circuit court, Huron county, in cliancery; Watson 13EACir, Judge. Geurye P. Voorheis, for appellant. El- bridf/e F. Bacon, for appellees. ].ONG, ,T. On April 2, 1883, George W. Mitclit'll and wife, Sarah .lane Mitchell, two of tiie ahove defendants, made and executed an indenture of mortgage to Geoige W. .Tenks, administrator, etc., coveiing the E. h of the X. E. ^ of section 22, township 1(J X..of range 15 E., Huron county, Mich. This mortgage was recorded in the ollici- oT iIh> register of deeds of Huron county, on April 5, 1883, and was thereafter duly assigned in writing by said .Tenks to Margarett L. David- son, the other defendant. The mortgage was given for the sum of !i?182.28, and was to come due on or before April 2, lfc88, with interest payal)le annually. For non-payment of interest when due thf^ mortgagee had the option in the said mortgatre to declare the whole amount of principal and interest due, and the right to foreclose the same under the j)()wer of sale contained in the mortgage. Tiie interest remaining unpaid on November 10, I8s7, the assignee of the mortgage, Mrs. Davidson, declared the whole amount and interest due, and commenced a stalutory foieclosure, by the publication of tiie usual notice, claiming there was due on the mort- gage and note for princijial and interest the sura of .S2.54.78. On the same day tliis mort- g;ige was given, (ieorge \V. Mitchell con- veyed to his wife, Sarah .Jane Mitchell, the north 45 acres of the premises covered by this mort'.'age, by deed of warranty contain- ing the usual covenants of seisin, and that the premises were free fioin all incumbran- ces. The north 45 acres included the home- stead of (ieoige W. Mitchell and wife; the dweliiug-house and a[)piirtenances where tliey resided being situate thereon. On .September 16, 1886, George W. Mitchell, being indebted to the J. I. Case Threshing- Marliitie Company, complainant, in the sum of ."?70(), gave his promissory notes for that amount to it; and to secure the payment of said notes he, with his wife, Sarah .Jane Mitchell, made and executed a mortgage for said amount on the same ilate to said com- plainant, covering the south 35 acres of the premises described in the mortgage to George W. Jenks. This amount was due under said mortgage in installments: .S150, October, 1887: !?200. December 1, 1887; .$150. Octo- ber, 1888; .S210. December 1, 1888. Default having been made in the payment of the first two installments of this mortgage, on February 4, 1858, complainant filed its bill in the circuit court, in chancery, of Huron county, to foreclose said mortgage, and to restrain the sale of the premises under the forech.-siire by Margarett L. Davidson of her mortgage, which was to take place under such notice on February 7, 1888. Upon fil- ing this bill, an injunction was allowed by the circuit judge restraining tlie sale under the Davidson mortgage. The complainant in its bill prays that Margarett L. Davidson be compelled under such foreclosure to sell the north 45 acres of the premises first, be- fore resorting to or selling the south 35 acres of the premises covered by its mortgage. The defendants all appeared and answered. The defendant Sarah -Jane Mitchell in her answer alleged her homestead interest in the north 45 acres, and her purchase from her husband, and ])rayed that the south 35 acres be first sold under the Davidson mortgage, before sale should be made of the 45 acres so owned by lier. Defendant Davidson also an- swered, and prayed foreclosure of her mort- gage upon the whole tract covered thereby, and for her costs in the proceedings. On tiie hearing in the circuit, tlie court de- creed that the south 35 acres be first sold un- der the Davidson mortgage, and that if a suHicient sum should be realized at such sale, that the north 45 acres should be releasea from the lien of that mortgage. The court found due on the complainant's mortgage the sum of .•?317.80, and decreed that George "W. Mitchell pay the same, with interest and costs, on or before February 17, Iciyy, and that in default thereof a sale be made of the 35 acres so covered by said mortgage. The court also found i\ue on the Davidson mort- gage the sum of .$271.46, and ordered pay- ment thereof by George \V. Mitchell and Sarah .lane Mitchell, with interest and costs, on or before February 17, 1889; and in de- fault that defendant Davidson first proceed to a sale of the south 35 acres of said prem- ises; and that, if that was insutlicient to pay the amount due, then a sale of the north 45 aeres to be made. The court ordered, furtiier, tliat complainant pay to ^largarett L. David- son the sum of .$42.30, the amount of costs and expenses incurred by her in her foreclos- ure proceedings by adveilisement. The court also decreed that complainant pay the sum of .$25 as costs to defendant Sarah .Jane Mitchell. From lliis decree complainant ap- peals. The deed was made and delivered to Sarah Jane Mitchell by her husband, and by her placed upon record, prior to the time of the execution and delivery of the complainant's mortgage. At the time of the taking of his mortgage the complainant not only liad no- tice by the record that the whole 80 acres was incumljered by the Davidson mortgage, but also that the title to the north 45 acres had been transferred by George W. Mitchell to his wife, Sarah Jane Mitchell, and that the leg^al title to that parcel was vested in her at the time of the giving of the mortgage to complainant. Where a part of the mortgaged premises has been aliened by the mortgagor MARRIED WOMEN. 81 subspquent to the moitgage, tlie rulo in equity, on a foreclosure and sale, is to re- quire that p:irt of tiie premises in wliich the mortgagor has not parted with his e(]uity of redemption to be lirst sold, and then, if nec- essary, tiiat which has been aliened, and, where the latter is in possession of different vendees, in the inverse order of alienation. This rule rests upon tlie ground, chiedy, that where one who is bound to pay a moitgage confers upon others rights in any portion of tlie property, retaining other portions him- self, it is unjust that tiieyshoulii be deprived of tiieir rigiits, so long as he has property covered by the mortgage out of which the debt can be made. In other words, his debt should be jiaid out of his own estate, instead of being charged in the estate of his grantees. Mason v. Tavne, ^Valk. Ch. 4G0; Cooper v. Bigly, 13 Mich. 463. The deed from Mitchell to his wife con- tair.s the usual covenants of warranty, and it is evident therefrom that it was the inten- tion of the grantor in his deed to charge the part remaining in him first to the payment of this mortgage. These covenants of war- ranty became important in determining the intent of the mortgagor not to charge the mortgage on the pro[)erty sold. If the bill had been filed to foreclose the Davidson mortgage, and the rights of complainant liad not intervened, no one would deny tiie right of the defendant Sarah J. Mitchell, the gran- tee in the deed, to have thef 35 acres remain- ing in her grantor first sold to satisfy the mortgage, before the portion purcliased by her should be made liable to its payment un- der the rule above stated. It is insisted, however, by counsel fur complainant, that the defendant Sarah J. Mitche.l, having signed tiie Davidson mortgage, and taken a deed from her husband of the 45 acres, it was charged with its proportionate share of the lien, the same as if she had purchased the whole 80. This fact could not affect her right to have the south 35 acres remaining in her husband first sold. The moitgage was given to secure the juiyment of the debt of the husband, and she in its execution only barred her dower. She was not personally liable for the debt, and could not be held lia- ble upon any covenant contained in the mort- gage. Sucii a covenant would be a mere nullity, so far as her rights were concerned. The statute does not empower her to make contracts generally, but only in respect tohnr own proiierty. Kitchell v. Mudgett, 37 Mich. b2. Counsel for complainant further contends that, Sarah J. Mitchell having signed both mortgages, her equities in and to any portion of the 80 acies are not greater than the equities of the mortgagees; and that, having signed and executed both mortgages volun- tarily, she is estopped from assuming any position that will tend to depreciate or de- stroy the rights and equities created by such mortgages. What rights and equities has VAN Z1I>E SEI/. CAS. SALES — 6 the complainant, as against Sarah J. Mitchell, in the north 45 acres of this land? Its mortgage does not cover this parcel. Wiien it took the mortgage the Davidson mortgage was a lien uj)on that ]»arcel as well as u[)on the south 35 acres, and at that time Die title to this 45 acres was in Mrs. Mitchell under a conveyance from the mortgagor in the David- son mortgage. At this time Mrs. Mitchell had the right to have this 35 acres first sold to ))ay for the Davidson mortgage. How can it be said tiiat by tiie giving of the mort^'age to complainant upon the 35 acres Mrs. Mitch- ell lost her right to have it first sold to satisfy the Davidson mortgage? This is not so, though she joined witli her husband in its execution. This was also given to secure the payment of the debt of the husband, and no equities could arise in favor of complain- ant against her to compel the sale of her land first to pay and discharge the Davidson mortg^ige. In Kitchell v. Mudyett, supra, a bill was filed to foreclose a mortgage signed by the defendant as wife of the mortgagor, on land belonging to the husband; the de- fendant having a prior mortgage on the same pi"y the tirm of Allred Low &: Co. of a lot of flitchfd halibut from the as- .signees in baakiuptcy of the tirm of .John Low & Son, all of Gloucester. Writ dated Argust 24, l.Si;9. The parties stated the fol- 1( wing case for the judgment of the court: On April 17, ISOU, as the schooner Florence Reed, owned bj- .John Low & Son, was about to sail from Gloucester on a fishing voyage, that firm received $1,.jOO from the plaintiffs. and signed and gave the plaintiffs the follow- ing writing: "We, .Tohn Low & Son, hereby sell, assign, and set over unto Alfred Low & Company all the halibut that may be caught by the master and crew of the schooner Florence Heed on the voyage upon which she is about to proceed from the port of Gloucester to the Grand Banks, at the rate of tive cents and a quarter per pound for flitched halibut, to be delivered to said Alfred Low & Company as soon as said schooner arrives at said port of Gloucester, at their wharf. And we. the said John Low & Son, hereby acknowledge the receipt of $1..50<> in part payment fof the halibut that may be caught by the master and crew of said schooner on said voyage." In July, 18G9, proceedings in bankruptcy were begun against John Low & Sou in tlie district court of the United States for this district, in which they were adjudged bank- rupts on August 6th, and on August 2Uth these defendants were appointed the as- signees in bankruptcy, and the deed of as- signment was executed to them. On Satur- day, August 14th, the Florence Reed arrived at the port of Gloucester on her home voy- age, and was hauled to the plaintiff's' wharf; and on the morning of Monday, August 16, the United States marshal took pos.session of the vessel and cargo \mder a warrant issued to him on August Gtli in the pi-oceedings in bankruptcy, and transferred his possession to the defendants upon their appointment. The catch of the schooner consisted of about 40,000 potmds of halibut, and of some codfisli. Tlie plaintiffs demanded the halibut of the defendants, and offered at the same time fo pay the price of it at the rate of five and a quarter cents per pound, less the .^1..">(X) al- rt^-ady paid. The defendants refused the de-, mand; and the plaintiffs then replevied such a quantity of the haliljut as represented the amount of .?1,.">00 at that rate per pound, and offered to receive the rest of the halibut and pay for it at the same rate, but the defend- ants refused to acknowledge any right what- ever of the plaintiffs in or to the fish. If on these facts the plaintiffs were enti- tled to recover, they were to have judgiuent for nominal damages; but, if otherwise, the defendants were to have judgment for a re- turn, with damages equal to interest at the annual rate of si.x per cent, on the appraised value of the fish replevied. C. P. Thompson, for plaintiffs. W. C. Eu- dicott, for defendants. MORTON, J. By the decree adjudging John liOW & Son bankrui)ts. all their jiropcr- ty, except such as is exenqited by the bank- rupt law, was brought within the custody of the law, and by the subsequent assignment passed to their assignees. Williams v. Mer- ritt, 103 Mass. 184. The firm could not. by a subsequent sale and delivery, transfer any of such property to the plaintiff's. The .schooner which con*ained the halibut in suit arrived in Gloucester August 14, 1861), which was after the decree of bankruptcy. If there had been then a sale and delivery to the plaintiffs of the property replevied, it would have been invalid. The plaintiffs therefore show no title to the halil)ut replevied, unless the eft'ect of the contract of April 17, 18(50. was to vest in them the property in the hali- but before the bankruptcy. It seems to us clear, as claimed by both parties, that this was a contract of sale, and not a mere exec- utory agreement to sell at some future day. The plaintiffs cannot maintain their suit up- on any other construction, because, if it is an executory agreement to sell, the property in the halibut remained in the bankrupts, and, there being no delivery before the bankrupt- cy, passed to the assignees. The question in the case therefore is whether a sale of hali- but afterwards to be caught is valid, so as to pass to the purchaser the property in tlieni when caught. It is an elementaiy principle of the law of sales that a man cannot grant personal propert.v in which he has no interest or title. To be able to sell property, he must have a vested right in it at the time of the sale. Thus it has been held that a mortgage of gcods which the mortgagor does not own at the^time the mortgage is made, though he afterwards acquires them, is void. Jones v. Richardson, 10 Mete. (Mass.) 481. The same principle is applicable to all sales of personal proi)erty. Rice v. Stone, 1 Allen, ijGCt. and cases cited; Head v. Goodwin. 'M Me. 181. It is equally w^ell settled that it is sutticient if the seller has a potential interest in the thing .sold. But a mere possibilit.v or ex- pectancy of acquiring property, not coupled with any interest, does not constitute a po- tential interest in it, within the meaning of this rule. The seller must have a i)resent in- terest in the property of which the thing sold is the product, growth, or increase. Having such interest, the right to the thing sold, when it shall come into existence, is a pres- ent vested right, and the sale of it is valid. Thus a man may sell the wool to grow upon his own sheep, but not upon the she^'p of an- other; or the crops to gi'ow upon his own land, but not upon land in which he has no «4 EXISTENCE OF THING SOLD. iracr^st. 2 Kent, roniin. (Kith Ed.) 4(JS (041) Udlc a; Joiu's V. Uicliardsou, 10 Mete. (Mass.) 4Sl; Bellows v. AN'i'lIs. [Hj Vt. ilDO; Van Hooy.er V. Cory. o4 Barb i); CrautlKiiii v. Hawk-y, Hob. i:v_>. Tilt' same principU's have been applied by this court to the assij;iiinent of future waj^es or farniufjs. in Mulhall v. Quinn. 1 (Jray, 10."), an assijiunieut of future wajrcs. there bein;,' no contract of service, was held in- valid. In Hartley v. Tapley, 2 Gray. "»(;.">. it was held that, if a i>erson is under a eon- tract of service, he may assign his future earuiuiix j^rowinjj out of such contract. The distindion between the cases is that in the former the future earnings are a mere pos- sibility, coupled with no interest, while in the latter the possibility of future earnings is coupled with an interest, and the right to them, though contingent, and liable to be de- feated, is a vested right. In the case at bar, the sellers, at the time of the sale, had no interest in the thing sold. There was a possibility that they might catch halibut; but it was a mere possibility and expectancy, coupled with no interest. We are of opinion that they had no actual or potential jiossession of or interest in the lish, and that the sale to the plaintiffs was void. The plaintiffs rely upon (Jarduer v. Hoeg. IS Pick. IGS, and Tripp v. Brownell, 12 Cusii. M7(). In both of these cases it was held that the lay or share in the profits, which a sea- man in a whaling voyage agreed to receive in lieu of wages, w^as assignable. The as- signment in each case was, not of any part of the oil to be made, but of the debt which, under the shipping articles, would become due to the seaman from the owners at the end of the voyage. The court treated them as cases of assignments of choses in action. The question upon which the case at bar turns did not arise, and w'as not considered. -Judgmeut for the defendants. EXISTENCE OF THING SOLD. 85 BATES V. SMITH. (47 N. W. 1^49, 83 Mich. :!47.) Supreme Court of Michigan. Nov. '21, l.SOO. Error to circuit court, Sajjiuaw coiuiiy; C. H. Gajje, Judge. Brooks & Conway, for appcii.-iiu. Trask H. L. Cas. 673; Eranklin v. Long. 7 (Jill ^: .!. 407. A mere possibility or contingency, not fottuded upon a right, or coupled with an interest, cannot be the subject of a present sale, though it may be of an executory agree- ment to sell. Purcell v. Mather. ;>"> Ala. .">70; Ia)\v v. I'ew, 108 Mass. 347. Though the subject-matter of the agreement has neither an actual nor potential existence, such an agreement is usually denominated an execu- tory contract, and for its violation the rem- edy of the party injured is by au action to re- cover the damages. Hutchinson v. Eord. 9' Bush, 318; Pierce v. Emery, 32 N. H. 4S4. Again, it may be said that, where one of tv,o innocent parties must suffer by the fraud of another, he shall bear the loss who by his conduct has enabled such third party to perpetrate the fraud. If the con- tract was made as claimed by the plaintilf. and there does not seem to be much con- troversy on this point, yet the plaintiff had it in his power to protect himself, under the provisions of Act No. 2S(>. Tub. Acts. 18S7. This act provides that the owner or keeper of a stallion shall, after demand upon the owner of the mare for the price agreed upon S6 EXISTENCE OF THING SOLD. ft>r .siTvicc. liMvc ;i lieu iipini tho >iet of such stallion for tlu" period of six inoiitlis iiftor the birth of the foal, for the payment of the services of such stallion. In order, how- ever, to perfet't such lien, he must file willi the townshi]) clerk in the town where such dam is owned tlie afrreement or a true copy of such a^'reenient entered into by the owner of I he dam for sncli services, together witli the description of such dam as to ajre, color, or other marks as the person filing sucli agreement is able to give. This filing is to oi)erate, under the provisions of this act, as a chattel mortgage, and may be enforced in the same way. No such steps were taken. The mare remained in the possession of tJie owner, Mr. Fraser, from the time she was bn d until in February following, when the defendant purchased her without any notice, so far as this record discloses, of the agree- nu'Ul made between plaintiff and Fraser. It is shown that defendant was advised at the time he purchased that tlie mare had been bred to American Boy, but no notice was given him that plaintiff had any claim on the foal, and there was nothing upon the record in tlie town-clerk's office to give liim any notice that plaintiff claimed a lien upon or had any interest in the foal. It cannot be said that the mere fact of notice of tlie breeding of the mare to American Boy was sufficient to put him upon inquiry as to any rights the owner of the stallion might have. The defendant must be regarded as a boua fide purchaser and owner of the mare; and, the title and ownership of the foal following the dam, he was the rightful owner of the foal. We see no error in tlie case, and ilie judgment must be affirmed, with costs. The other justices concurred. EXISTENCE OF THING SOLD. 87 DICKEY et al. v. WALDO. (5G N. W. GOS, 97 Mifh. 255.) Supreme Court of Michigan. Oct. 27, 1893. Error to circuit court, Alloxan county; George M. Buck, .Juilso. Action by John W. Dickoy and Addison Lurvey ajjainst George W. Wahlo for the conversion of peaches grown on defendant's land, and of which phiintiffs chiimed to be the owners under a contract with defendant's grantor. There was a judgment for phiin- tiffs, and defendant brings error. Athrnied. The contract and findings referred to in the opinion are as foUows: Contract: "Articles of agreement, made this 21st day of Februaiy, A. D. 1885, be- tween John Schultz, of the township of Saugatuok, Allegan county. Michigan, of the first part, and John W. Dick':»y and Addison Lurvey. of Douglas, county and state afore- said, of the second part, witnesseth as fol- lows: The said party of the first part is the owner of the west half of the east half of the southwest quarter of section twenty- five, township of Saugatuck. aforesaid, and desiring to set out to peach trees a piece iust east of his house, and running back to bis east line, and far enough south as the piece is suitable for peach trees, but not to exceed 1,.500 trees, said first party agi-ees to set out the trees, and care for and culti- vate the same, in a good and workmanlike nuinner, for the period of ten yeai"s from the date hereof, and to allow said Dickey and Lurvey, parties of the second part, to have and take one-half of the crop of peaches for any two years they may select during the aforesaid term of ten years. Said Seliultz agrees that, if it shall come to his knowledire that any of the said trees are affected with the yellows, that he will inunediately dig up and bum the same, root and bmnch. Said Dickey and Lurvey, parties of the second part, hereby agree, in consideration of the agreements hereinbefore stated, to be per- formed upon the part of the said Schultz, to fnrnish what trees may be needed to set the aforesaid piece of land, not to exceed 1,500 trees, and take as pay therefor one half of the crop of peaches for any two years they may select. It is mutually agi-eed that said Dickey and Liu-vey shall make their selec-tion of the year when they will take the half of the crop on or before Sep- tember 15th of that year. Each party hereto are to pick and care for their own share of the fruit and are to each take as near half of the crop as may be: but at the close of the season each shall show up their total shipments for the season, and. if it be foimd one party has taken more than the other, the net pi'oceeds of such sui-plus shall be .equally divided between the parties hereto. Said Schultz agrees to draw that half of the fruit belonging to said Dickey and Lurvey to the boat landing in Douglas, or railroad depot at Fennville, as they may direct. This agreement to be binding upon the legal rep- resentatives of the parties hereto. Said .sec- ond party agrees to furnish a man to help set out the trees. Witness our hands and seals. John W. Dickey. [L. S.] John Schultz. [L. S.] A. Lurvey. [L. S.] In presence of May Belle Spencer, Dyer C. Putnam. "Stite of Michigan, County of Allegan, ss.: On this third day of March, A. D. 18S5, be- fore me, a notary public in and for said county, personally came John W. Dickey, Addison Lurvey, and John Schultz, to me known to be the persons whose names are subscribed to the written instniment here- on, and each acknowledged that they exe- cutetl the same for the purpose therein men- tioned. Dyer C. Putnam, Notary Public." '•Counsel for the respective parties above named having requested the court to make and tile in said cause a finding of the facts, and conclusions of law therefrom, the court, in compliance v\ith such request, finds the facts in said cause, as provetl on the trial thereof, to be as follows: (1) That on the 21st day of February, A. D. 1885, John Schultz was the owner and in possession of the west half of the east half of the south- west quarter of section twenty-five, in the township of Saugatuck, in said Allegan coun- ty, and state aforesaid. (2) That on said day above named the said John Schultz en- tered into a contract in writing with the said plaintiffs, which contract bore date the day and year aforesaid, and w:is introduceil in evidence on the trial of said cause. (3) That, at the time said contract was enteretl into, said parcel of land described in said contract was the homestead of said John Schultz and Deliorah Schultz, his wife. ,4) Ihat the plaintiffs, in the spring of 1885, fur- nished the peach trees required in and by the terms of said contract, and set them on the land described in said contract, and in all things performed the agi-eements by them to be performed, according to the terms of said contract. (5) That on or abouf the 2.'>d day of April, A. D. 1887, the said John Schultz and wife convej'ed the premises de- scribed in said contract to ttie defendant by warranty deed, with covenants of title, and against inciunbrances. (G) That, before and at the time of the execution and delivery of, said deed bj- said John Schultz and wife to said defendant, he, the said defendant, had actu.d notice and knowleilge of the existence and terms of said contract between said Schultz and said plaintiffs, and that, before and at the time of the execution and deliv- ery of said dee of the conversion of the same by said defendant to his own use, and that the value of one-half of the peaches, at the time when they were so converted by said defendant to his own use, was the sum of $770.53. (9) That the value of one-half of the peaches converted to his own use by said defendant before August 22, 1S91, was the sum of .$1G0, as near as the same can be now determined. From the foregoing facts, I tind the follow- ing conclusions of law: (1) The plaintiffs are entitled to maintain this action, and the con- tract ott'ered in evidence between said Schultz and .said plaintiffs was admissible in evidence. (2) Said contract did not convey to the plaintiffs any interest in the land de- scnhed in said contract, except the right to said plaintiffs to take therefrom one-half of the crop of p(>aches for any two years they might select during the period of ten years from the date of said contract. (3) The homestead right of .Tohn Schultz and wife was in no way affected by said contract, and the question of the homestead right of said Scliultz and wife cannot be raised by said defendant in this action. (4) Whether said contract was entitled to record or not, or whether such record would be construc- tive notice to defendant or not, is immate- rial, inasnuich as defendant had actual no- tice of such contract before he purchased said land. (5) The contract relation between Schultz and plaintiffs was not technically a sale of the peaches thereafter to be grown on said trees by said Schultz to plaintiffs, but was more in the nature of a sale of the trees ))y plaintiffs to Schultz; plaintiffs re- [Jerving, in writing, one-half of the products of said ti"ees for any two years they might select during the period of ten years. (0) The defendant, having notice of said contract before his purchase of said land, and hav- ing agreed, for a valuable consideration, to recognize the rights of plaintiffs inider said contract, cannot now claim that said con- tract was void, or that it was not binding upon him. (7) The defenaant and plaintiffs were the owners in common of the crop of peaches grown on said ti*ees during the sea- sou of 1891, and the defendant having re- fused to allow plauitiffs to pick their share of said crop, and denied that plaintiffs had any right to any part of said crop, plaintiffs were entitled to their action of trover with- out and before any accounting as to the amount of said crop, or the share of each of the others therein. (8) I'laintiffs are en- titled to recover in this action, and a judg- ment should be rendered in their favor, and against said defendant, for the said sum of .$770.53, with interest on the same from Oc- tober 15, 1891,— $23.12,— making a total of $793.05. with costs of suit to be taxed. Geo. M. Buck, Circuit .Tudge. April 15th, 1892." W. B. Williams i*i Son, (Hanibal Hart, of counsel,) for appellant. Padgham & Butler, for api)ellees. GRANT, J. The contract and the finding of facts in this case are foiind in the margin. This contract and the judgment should be sustained, unless there are some inexorable rules of law which stand in the way. Two rules are invoked to defeat the plaintiff's' action: (1) That the Land upon which the peach trees were planted is a homestead; that Schidtz's wife did not sign the contract; that it interferes with the homestead right, and the contract is therefore void. (2) That the crop which the plaintiff's agreed to take in payment for the trees was not in esse at the time, and therefore not the subject of sale. 1. We think there is no force in the first proposition. Schultz's land consisted of 40 acres. The trees were planted upon only a portion of it. The occupation and pos- session of the buildings and land were not interfered with. During the growth of the trees, the land could be cultivated, and crops raised. If the trees proved valueless, neither Schultz nor his wife had suffered. If they proved valuable, which was the fact, then the homcvstead itself was increased in value. Under these circumstances, we see no reason in holding that either Schultz or his wife had parted with any homestead right, or that their possession was in any manner interrupted. 2. Such conti'acts are reasonable, and bene- ficial to both the vendor and the vendee. They are especially beneficial to the vendee. He avoids all expense except his labor, runs no risk, and, if in indigent circumstances, he may obtain gains which would otherwise be beyond his reach. Such contracts are of common occun-euce, and, if the rigid rules of law are against their validity, there is a necessity of legislative action to render them valid. The rule of law is well established that things having no potential existence cannot be the subject of mortgage and sale. EXISTENCE OF THING SOLD. 89- There are, however, exceptions to this rule, as where a merchant niortf^a^es his stock of goods, and all fxitin-e a(hlitions tliereto. It is unnecessary to cite autliorities to this l)n)i»()Sition. Tlie ditllculty seems to arise in de- Krniiniug what comes within the detinitiou of the term "potential existence." The detini- tion of the word "potential" is: "Havin;,' la- tent power; endowed with energy ade(iuate to a result; efficacious; existing in possibil- ity, not in actuality." Sir AV. Hamilton said: "Potential existence means merely that the thing may be at some time; actual existence, that it now is." In the legal sense, things are said to have a potential existence when they are the natm-al product or expected in- crease of something alr«>ady ])elonging to the vendor. When one posscs.^os a thing from Avliich a certain product, in the very nature of tilings, may be expected, such prod- uct, Ave think, has a potential existence. The following rule appears to be Avell es- tablished both by reason and authoi-ity, viz.: That, while one owns property from which such product naturally arises, such product may be the subject of sale and mort- gage. The authorities which thus hold also recognize the other rule above stated. Tlie authorities are by no means imiform, but we think the conflict in them has arisen from a failure to make a proper distinction. In Granth.-m v. Hawley, Hob. 132, it was held that a grant of that wliich the gi-antor has potentially, though not actually, is good, as a gi-ant by the lessee of all the corn that shall be growing on the land at the end of the tei-m. It was there said: "Though the lessor had it [the corn] not actually in him, nor certain, yet he had it potentially, for the land is the mother and root of all fruits. Therefore, he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant. A person may grant all the tithe wool that he shall have in such a year, yet perhaps he shall have none; but a man cannotf grant all the wool that shall gi-ow upon his sheep that he shall buy hereafter, for there he hath it neither actually nor potentially." Powell, in his Treatise on Con- tracts, says: "Although it be uncertain whether the thing gi-anted will ever exist, and it consequently cannot be actually in the gi'antor, or cert^iin, yet it is in him potential- l.v, as being a thing accessory to sometliing Avhich he actually has in him, for such po- tential property may be the subject of a con- tract executed, as a grant, or the like. * * * So a tenant for life may sell the profits of his lands for three or four years to come, and yet the profits are not then in esse." It is held that a lease of land, reserv- ing rent, and which provides that all the crops raised on the land diiring the term are to be the property of the lessor until the rent is paid, is' valid, and will entitle the lessor to hold such crops against the credit- ors of the lessee. Smith v. Atkins, 18 Vt. 461. .Tustice Redfield. in delivering the opin- ion, said: "It is, without doubt, true that the sale of a thing not in existence is, upon general principles, inoperative, being merely executory; that is, it confers no title in the thing liargained. But when the thing ihcn-- after to be produced is the produce of land, or other thing, the owner of the principal thing may retain the general property of the thing pro(luc(>d, unless there l)e fraud in the contract, and it be entered into mere- ly to defeat creditors." In Jones v. Wel)- ster, 48 Ala. 112, it is said: "If the mort- gagors had undertaken to convey the future crops they might make, AA'ithout possessing any land ui)on which to make them, and especially without the contemplation of the imuKHliate aciitor V. Mitchell, 16 Fed. liep- -00. In K(>l>l>ins V. McKnijjht, 5 N. J. Eq (i4'J, the contract was in all essential features identi- cal with the one hero involved, and it was sustained by the court. In the present case the trees were in existence at the time of the contract, were transferred to and became the propoi'ty of Schultz, the vendee, subject to a share of the crops for the years speci- liivl; the contract wa.s executed b.v the plain- tiffs, and operated to the great b(>nefit of Schultz and his gi"xntee, the defendant. This contract is one that the law ou^ht to delight in sustaining. If it cannot be sustained, then no executed contract can be, where a party furnishes seed, and puts in the crop upon shares. The same reason that would defeat the right to recovery for the crop of poaches in this case would defeat the right to recover a crop of corn, wheat, or other grain, or strawberries and other fruits of like cliaracter. The defendant purchased with notice, and the purchase price was re- duced on account of the plaintiffs' rijhts in the crop. We think that luider the authori- ties above cited, as well as in reason and justice, plaintiffs and Schultz became ten- ants in common of the peaches for the years which they should select, and that defend- ant, having purchased with notice, stood in the same relation to plaintiffs that did his grantor. Defendant's counsel cite Bates v. Smith, 83 Mich. 347, 47 N. W. Rep. 249, and insist that it controls this case in their favor. The language of that case is broad, and, if strictly followed, would seem to iu- clude the present one; but we think the authorities above cited make a clear distinc- tion between the natural products of the soil, wool from sheep, milk from cows, and the like, from the case that was then under consideration, and we are disposed to fol- low them. The language of that case must be construed in connection with its facts. .Judgment affirmed. The other justices con- cmTed. EXISTENCE OF THING SOLD. 'Jl SENTER et al. v. MITCHELL. (16 Fed. 203.) Circuit Court, E. D. Arliansas. April TtTui, 1883. Smoote & McRae and U. M. & G. B. Rose, for plaintiffs. W. G. Whipple, for defend- ant. CALDWELL, J. On the loth day of No- vember, 18S1, the defendant, Austin Mitt-hell, was indebted to Milner & Collins in the sum of .$1,T(')7.(j!>, evidenced by a negotiable prom- issory note of that date, and, to secure pay- ment of the same executed a mortgage on that day on certain real estate and "30 bales of go< d lint cotton, the first picking of our crop of 1882. to aveiage 4."iO pounds each, to be de- livered in Prescott, Nevada county. Arkansas, on or before the 1st day of November. 1882." On the 19th of December, 1881, Milner & Collins indorsed the note, and transferred the mortgage to the plaintiffs. The defendant did not deliver the cotton at the time and place appointed in the mortgage, and asked and ob- tained an extensio-i of time for that purpose. He failed a second and third time to deliver the cotton as he had promised and agreed to do. Each time he gave some plausible ex- cuse for his default, and continued thus to be- guile the plaintiffs until he had gathered, baled, and sold his whole cotton crop. Dur- ing this time he also sold all his other property of any value liable to seizure for debt, except the real estate embraced in the mortgage. After selling the cotton covered by the plain- tiffs' mortgage, he admitted he had the pro- ceeds, amounting to $800, but declined to pay the same, or any part of it, to the plaintiffs unless they would release the mortgage on the real estate. No part of the plaintiffs' debt has been paid, the real estate mentioned in the mortgage is worth less than half the plaintiffs" debt, and the defendant is now insolvent. The plaintiffs sued out an attachment, which the defendant traversed. The defendant's conduct is attempted to be justiticd on two grounds: (1) That the mort- gage on the cotton was void for uncertainty in the description; and (2) that the note and mortgage wev^ procured from him by fraud, and are without consideration. I'nder the act of February 11, 1875, a mort- gage on crops to be grown is valid, and the lien attaches when the -crop is produc(>d. If it be conceded that the description of the cot- ton in the mortgage is too uncertain to bind third parties, it wac undoubtedly good be- tween the mortgagor and mortgagee. Mc- Clure V. McDearm- n, 26 Ark. 66; Person v. Wright, 35 Ark. 169. But the description would seem to be sufficient for all purposes. "That hath certainty enougli which may be made certain." The description is "30 bales of good lint cotton, the first picking of our crop of 1882, to average 450 pounds each." There is no diltitulty here in identifying the particular bales covered by the mortgage; they are the first 30 picked and baled of the mortgagor's crop of 1882. Tliese bales were capal»le of identitication by the fact that they were the first baled of the crop of that 3'ear; and the lien of the mortgage fastened upon them as so(ui as the process of baling was completed. Rol)inson v. Maudlin. 11 Ala. 977; Stearns v. Gafford. of, Ala. 544. In the last case cited the court .say. "In the case of Hobin.son v. Maudlin, 11 Ala. 977, the grantor, who was a planter, was in- debted to his conuuission merchants, and, to secure them, conveyed to a trustee by trust deed '50,000 pounds of the first picking of the crop of 1842. then growing on his plaiuation, to be neatly ginned and packed in bales, ready for market; an(' upon the failure of the plant- er to pay the note at maturity, the trustee was authorized to take said 5. Minison, contra. LOOM IS, J. The controversy in this case has reference to the owner.shiit of six colts, tlie projjjeny of two brood mares, which the plaintiff, some ten years prior to this suit, pm'- chased iu Boston of the liev. William II. II. Murray. The contract of sak' provided that the plaintiff mijiht take the mares to Murray's farm, in this state, of which she was and had been for several years the superintendent, and there keep them as breeding mares; and all the colts thereafter foaled from them, though sired by Murray's stallions, were to be the ex- clusive property of the plaintiff. No attempt has been made by Murray's creditors or his trustee to deprive the plaintiff of the mares so purchased, and they are now in her undisturb- ed possession; but the colts, while on Murray's farm, on the 1st of August, 1879, were at- tached by one of his creditors, who su1)se- (piently released the property to the defend- ant as trustee iu insolvency, who had the prop- erty iu his possession at the time the plaintiff lirought her writ of replevin. Tlie sole ground upon which the defendant claims to hold these colts is that there was such a retention of pos- session by Murray after the sale as to render the tiansaction constructivelj' fraudulent as against creditors. The court below overruled this claim, and in so doing we think committed no error. The doc-trine as to retention of possession after a sale has no application to the facts of this case. A vendor cannot retain after a sale what does not then exist, nor that which is already in the possession of the vendee. This proposition wotild seem to be self-sustaining. If, however, it needs confirmation, the authori- ties in this state and elsewhere abundantly supply it. Lucas v. Birdsey, 41 Conn. 3.37; Capron v. Porter. 43 Conn. 389; Spiing v. Chipman, G Vt. (562. In Bellows v. AY ells, 30 Vt. .yj9, it was held that a lessee might con- vey to his lessor all the crops which might be grown on the leased land during the term, and no delivery of the crops after they were han-ested was necessary even as against at- taching creditors, and that tlie doctrine as to retention of ixjssession after the sale did not api)ly to property which at the time of the sale was not subject to attachment and had no real existence as property at all. The case at bar is within the principle of the above authorities, for it is very clear that the title to the property in (piestiou when it first came into existence was in the plaintiff. In reaching this conclusion it is not necessary to hold that the mares became the absolute property of the plaintiff imder Mas-sachusetts law Avithout a more substantial and visible change of possession, or that imder our law. the title to the mares being in the plaintiff clearly as between the parties, the rule import- ed from the civil law, partus sequitur ven- tnnn, applies. We waive the consideration of these (piestions. It will sutlice that, by the express terms of the contract, the plaintiff was to have as her own all the colts that might be bora from these mares. That the law will sanction such a contract is very clear. It is true, as remarked in Perkins, Conv. tit. "(Jrant," § 05, that "it is a common learning in the law that a man cannot grant or charge that which he has not"; yet it is equally well settled that a future possibility arising out of, or dependent upon, some present right, prop- erty or interest, may be the subject of a valid present sale. The distinction is illustrated in Hobart, 132. as follows: "The grant of all the tithe wool of a certain year is good in its creation, though it may happen that there be no tithe avooI in that year; but the grant of the wool which shall grow upon such sheep as the grantor may afterwards purchase, is void." It is well settled that a valid sale may be made of the wine a vineyard is expected to produce, the grain that a tield is expected to grow, the milk that a cow may yield, or the future young born of an animal. 1 Pars. Cont. (.jth Ed.) p. 023, note k, and cases there cited; Hill. Sales, § 38; Story, Sales, § ISO. In Fon- Aille V. Casey, 1 Murph. (N. C.) 389, it was held that an agreement for a valuable consid- ei'ation to deliver to the plaintiff the first fe- male colt which a certain mare owned by the defendant might produce, vests a property in the colt in the plaintiff, upon the principle that there may be a valid sale where the titje is not actually in the grantor, if it is in him potentially, as being a thing accessory to some- thing which he actually has. And in ^NlcCarty V. Blevius, 5 Yerg. 19.j, it was held that where A. agrees with B. that the foal of A.'s mare shall belong to C, a good title vests in the latter when parturition from the mother takes place, though A. Immediately after the colt was born sold and delivered it to D. Before resting the discussion as to the plain- tiff's title, we ought perhaps briefly to allude to a claim made by the defendant, both in the court belcjw and in this court, to the ef- fect that if the plaintiff's title be conceded slie is estopped from asserting her claim. This doctrine of estoppel, as all triei's nmst have observed, is often strangely misapplied. And it is surely so iu this instance. The case fails to show any act or omission on the part of the plaintiff inconsistent with the claims she now makes, or that the creditors of Murray or the defendant as representing them were ever mis- led to their injury by any act or negligence on her part. On the contrary the estoppel is as- serted iu the face of the explicit finding, that "as soon as the plaintiff became aware of the attachment of her horses she forbade the of- ficer taking the same, and demanded their im- mediate I'eturn to hej-." The only fact which is suggested as furnishing the basis for the EXISTENCE OF THINd SOLD. 95 alleged estoppel is that from the 1st of Au- gust, IST'J, to the I2th of Jauuai-j- next follow- iug, "no attempt was made by the plaiutift" to maintain her title by suit, although she was living during the time at Guilford, where said colts were." But who ever heard of an estop- pel in an action at law predicated solely on neglect to bring a: suit for the period of five mouihsV To recognize such a thing for anj' period short of the statute of limitations Avould practically modify the statute and create a new limitation. Furthermore, in what respect have the defendant and those he represents been misled to their injury by this fact? The plaintiff never induced the taking or with- holding of her property. And can a tort feas- or or the wrongful possessor of another's prop- erty object to the delay in suing him for his wrong, and claim, as in this case, an estoppel on the ground that his wrongful ix)ssession proved a very expensive one to him, amount- ing even to more than the value of the prop- erty? He might have stopped the expense at any time by simply giving to the plaintiff what belonged to her. The single (luestion of evidence which the record presents we do not deem it necessary particularly to discuss. It will suffice to re- mark that if the defendant's testimony was ad- missible to show that Munay, after the sale to the plaintiff' (and, so far as ai)pears. in her absence), claimed to own the mares and colts, it was a complete and satisfactory reply for the plaintiff in rebuttal to show that Murray's own entries (presumably a part of the res ges- ivo) in the appropriate books kept by him, showed the fact to be otherwise, and in ac- cordance with the plaintiff's chiims. At any rate it is very clear that no injustice was done by this ruling to furnish any ground for a new trial. There was no error in the judg- ment complained of, and a new trial is not advised. In this opinion the other judges con- curred. 96 PRICE I'AID. SAXBOUX V. SHIPHERD. (()0 N. W. 1089, 59 Minn. 144.) Supremo Court of Minnesota. Nov. 16, 1894. Appeal from niuuicipal court of Minneapo- lis; Audrew Holt, Judse. Actiou by Colby E. Sanborn aj?ainst Ed- ward L. Sliii)hord to recover po.ssessiou of certain personal property. From a judg- ment for plaintiff, defendant appeals. Re- versed. W. H. Adams, for api)enant. George S. Grimes, for respondent. Mitchell, J. This was an action to recover the possession of certain personal property allej^ed to have been wrongfully detained by defendant. The undisputed ev- idence is that the parties entered into a con- tract for the sale of the property by defend- ant to plaintiff for ^200, of which the plain- tiff paid ^2.50 at the date of the contract, and was to pay the balance of ^197.50 on the evening of the same day; that upon the return of plaintiff he demanded the deliv- ery of the property without paying the $197.- 50, on the ground that in the meantime he had been garnished. The defendant offered to deliver the property on payment of the $197.50, but refused to do so without it; hence this action. The $197. .50 never has been paid or tendered. Nothing was said in the contract of sale as to its being on cred- it, and there v/as nothing from which a credit could be implied. There may, per- haps, be some conflict of evidence as to whether defendant was himself the owner or merely the agent of the owner of the proper- ty, having charge of it with autliurity to sell; but which he was is wholly immaterial in this case. How, on this state of facts, it could be found that plaintiff was entitled to the possession of the property we are whol- ly at a loss to conceive. There being no agreement of the parties to the contr-iry, the law presumes the sale to have been for cash; and, upon a sale for cash, payment of the purchase money and the delivery of the property are concurrent and mutually de- pendent acts. Neither party is bound to perform without contemporaneous perform- ance by the other. The payment of the pur- chase money was a condition precedent to plaintiff's right of possession. The fact that some third party had attempted to garnish the purchase money in the hands of the plaintiff could not alter the contract of the parties. We do not mean to be imderstood as intimating that, in the case of an execu- tory contract for the sale of personal prop- erty, replevin will lie where the purchase money has been tendered, but refused. But in this case there was not even a tender. Judgment reversed and new trial ordered. GILFILLAN. C. J., absent on account of sickness; took no part. PRICE PAID. 07 KOUXTZ V. KIIiKPATKICK ft al. (72 Pii. St. 37(5.) 8ui)n'mo Court of Pcnii.sylvaniii. Jan. G, 1873. Assumpsit by Josepli Kiikpatric-k aud Jaiiit's Lyous, tradin;; as Kiikpatrick lic Lyous, to the use of Frederick Fislier and otiiers, trading as Fisher Bros., agaiust William J. Kountz, i'uv failure to deliver a cei-tain Quantity of crude petroleuui, wheu called upou to do so December 31, istji), in compliance with his con tract previously made. Judgment for plain- tiffs, aud defeudant brings error. Ue versed. Before THOMPSON, C. J., and HEAD, AG- NEW, SHAHS WOOD, and WILLIAMS, J. S. H. Geyer and G. Shiras, Jr., for plaintiff in error. M. W. Acheson. for defendants in error. AGXEW. J. The second, third, tifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth, tifteeuth and sixteenth errors are not well assigued. for all the answers of the court to the points were omitted. When a court simply refuses a point, the error is well assigued by recitiug the point, aud stating that it was refused. But wheu the judge an- swers specially, in order to introduce a quali- ticatiou he deems necessary to make his in- structiou correct, the answer must be recited as well as the point. We shall not decline considering, however, all the important ques- tions; and in order to discuss them, we may state succinctly the nature of the case. On the 7th of June, l8{i'J, Kountz sold to Kirk- patrick & Lyons, two thousand barrels of crude petroleum, to be delivered at his option, at any time from the date, until the 3 1st of De- cen)bei, ISGU. for cash on delivery, at thirteen aud a half cents a gallon. On the 24th of June, 1869, Kirkpatrick & Lyons assigned this contract to Fisher &. Brothers. Kountz failed to deliver the oil. He defeuds on the ground that Kirkpatrick & Lyons, aud others holding like contracts for delivery of oil, en- tered into a combination to raise the price, by buying up large quantities of oil, aud holding it till the expiration of the year 18(i9, and thus to compel the sellers of oil on option con- tracts, to pay a heavy (liff.?rence for non deliv- ery. Fisher & Brothers, the assignees of Kountz's contract, were not in the combina- tion, and the principal questions are whether they are affected by the acts of Kirkpatrick & liyons, subseijuent to the assignment; wheth- er notice of the assigumeut to Kountz was neces.sary to protect them, and what is the true measure of damages. The com-t below held that Fisher & Brothers, as assignees of the contract, were not affected by the acts of Kirkpatrick & Lyons, as members of the com- bination in the following October and sub.se- (pieutly, and that notice iu this case was not essential to the protection of Kountz. The common-law rule as to the a.ssiguabil- ity of choses iu action no louger prevails, but in equity the assignee is looked upon as the true owner of the chose. He may set off the VAN ZILE SEL. CAS. SALES — 7 demand as his own: Morgan v. Bank, 8 Serg. & R. 73; Hani.sey's Appeal, 2 Watts, 228. The assignee takes the chose subject to the existing ecpiities between the original parties before assignment, aud also to payment and other defences to the iu.strument its«'lf, after the assignment and before notice of it; but he cannot be affected by collateral transactions, secret tnists, or acts unconnected with the sul)ject of the contract: Davis v. Barr. !) Serg. & H. 137; Beckley v. Eckert, 3 Pa. St. 292; Mott V. Clark, 9 Pa. St. 399; Taylor v. (iitt, 10 Pa. St. 428; Bank v. Balliet, 8 Watts & S. 318; Corser v. Craig, 1 Wash. C. C. 424, Fed. Cas. No. 3.2.">."); 1 Pais. Cont. 193, IIMJ; 2 Story, Cont. S ;{9(i. note. The act of Kirkpatrick & Lyons, conqilained of as members of an unlawful cou)bination to raise the price of oil, was long sub.-equeut to their assignment of Kountz's c<;nlract, aud was a mere tort. The contract was affected only by its results as an independent act. It does not seem just, therefore, to visit this ef- fect upon Fisher & Brothei-s, the antecedent assignees. The act is wholly collateral to the ownership of the chose itself, and there is nothiug to link it to the chose, so as to liind the assignors and assignees together. After the assignment, there b»>ing no guaranty, the assignors had no interest in the performance of this particular contract, and no motive, therefore, arising out of it to raise the piice on Kouutz. The acta of Kirkiiatrick & Ly- ons seem, therefore, to have no greater or other bearing ou this contract than the acts of any other members of the combination, who were strangers to the contract. In regard to notice of the assignment to Kountz. it is argued, that having had no notice of it. if he knew of the conspiracy to raise the price of oil. and thus to affect his contract, and that Kirkpatrick & Lyons were parties to it. he might have relied on mat fact as a de- fence, and refu.sed to deliver the oil. and claim- ed on the trial a verdict for merely nominal damages for his breach of his contract. Pos- sibly in such a special case, want of notice might have constituted an etjuity. but the an- swer to this case is, that no such point w:is made iu the court below, and there does not seem to be any evidence that Kountz knew of the conspiracy, and Kirkpatrick & Lyons's privity, and relying on these facts, desistt^d from purchasing oil to fullil his contract with them. As the case stood before the court be- low, wt discover no error in the answers of the learned judge on this part of it. The n(»xt «^uestion is upon the proper meas- ure of damages. In the sale of chattels, the general rule is, that the measure is the differ- ence between the contract price and the mar- ket value of the article at the time and place of delivery under the contract. It is unneces- sary to cite authority for this well established rule, but as this case raises a novel and ex- traordinary question between the true market value of the article, and a stimulated market price, created by artificial and fraudulent prac- 98 PRICE PAID. tices. It is necessary to fix the tnio nieaning ( f the rule itself, before we eau approach the real (luestiou. Ordinarily, when an article of .sale is in tlie market, and has a market value, there is no difference between its value and the market price, and the law adopts the lat- ter as the proijer evidence of the value. This is not, however, because value and price are really convertible terms, but only because they are ordinarily so in a fair market. The pri- mary meaning; of "value" is worth, and this worth is made up of the useful or estimable (lualities of the thing: See Webster's and Worcester's Dictionaries. "Price," on the other hand, is the sum in money or other ecpiivalent set upon an article by a seller, which he demands for it: Id. Value and price are, therefore, not synouymes, or the nece-s^sary equivaU'nts of each otlier, though conunouly, market value and market price are legal equivalents. When we examine the au- thorities, we find also that the most accurate ^\•riters use tlie phrase market value, not inar- ket i)rice. Mr. Sedgwick, in his standard work on the ^Measure of Damages (-tth Ed. p. 200) says: "Where contracts for the value of chat- tels are broken by the vendors failing to de- liver property according to the terms of the baigain. it seem.s to be well settled, as a gen- eral rule, both in England and the United States, that the measure of damages is the dif- ference between the contract price and the market value of the article at the time it should be delivered upon the ground; that this is the plaintiff's real loss, and that with this sum, he can go into the market and supply himself with the same article from another vendor." Judge Rogers uses the same term in Smethurst v. Wcolston, 5 Watts & S. lO'J: "The value of the article at or about the time it is to be delivered, is the measure of dam- ages in a suit by the vendee against the ven- dor for a breach of the contract." So said C. J. Tilghman. in Girard v. Taggart. 5 Serg. & R. 32. Judge Sergeant, also, in O'Conner v. Forster, 10 Watts, 422, and in Mott v. Dan- forth, 6 Watts, 308. But as even accurate writers do net always use words in a precise sense, it would be unsatisfactory to rely on the common use of a word only, in making a nice distinction between terms. It is tliere- fore proper to inquire into the true legal idea of tlamages in order to determine the proper definition of the term value. Except in those cases where oppression, fraud, malice or neg- ligence enter into the question, "the declared object (says Mr. Sedgwick, in his work on Damages) is to give compensation to the party injured for the actual loss sustained." (-1th Ed.) pages 2S, 20; also, pages 36, 37. Among the many authorities he gives, he quotes the language of C. J. Shippen, in Bussy v. Donald- son. 4 Da 11. 20G. "As to the assessment of damages (said he), it is a rational and legal principle, that the compensation should be equivalent to the injury." "The rule," said C J. Gibson, "is to give actual compensation, by graduating the amount of the damages ex- actly to the extent of the loss." "The meas- ure is tlie actual, not the speculative loss:"' For.syth v. Palmer, 14 Pa. St. 97. Thus, com- pensation being the true purpose of the law, it is obvious that the means employed, in other words, the evidence to ascertain compensation, must be such as tiiily reaches this end. It is equally obvious, when we consider its true nature, that as evidence, the market price of an article is only a means of arriving at compensation; it is not itself the value of the article, but is the evidence of value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption. It stands as a criterion of value, because it is a common test of the ability to purchase the thing. But to assert that the price asked in the market for an article is the true and only test of value, is to abandon the proper object of damages, viz., compensation, in all those cases where the market evidently does not af- ford the true measure of value. This thought is well expressed by Lewis, C. J., in Bank v. Reese, 20 Pa. St. 140. "The paramount rale in assessing damages (he says), is that every person unjustly deprived of his rights, should at least be fully compensated for the injury he sustained. Where articles have a determinate value and an unlimited production, the gen- eral rule is to give their value at the time the owner was deprived of them, with interest to the time of verdict. This rule has been adopt- ed because of its convenience, and because it in general answers the object of the law,, which is to compensate for the injury. In relation to such articles, the supply usually keeps pace with the demand, and the fluctua- tions in the value are so inconsiderable as to justify the courts in disregarding them for the sake of convenience and uniforniity. In these cases, the reason whj' the value at the time of conversion, with interest, generally reaches the justice of the case, is that when the owner is deprived of the articles, he may purchase others at that price. But it is mani- fest that this would not remunerate him where the article could not be obtained elsewhere, or where from restrictions on its production, or other cauvses, its price is necessarily subject to considerable fluctuation." This shows that the market price is not an invariable standard, and that the converse of the case then before Judge Lewis is equally true — that Is to say — when the market price is unnaturally inflated by unlawful and fraudulent practices, it can- not be the true means of ascertaining what is just compensation. It is as unjust to the seller to give the purchaser more tlian just compensation, as it is to the purchaser to give him less. Right upon this point, we have the language of this court in the case of a refusal by a purchaser to accept: Andrews v. Hoo- ver, 8 Watts. 240. It is said: "The juiy is bound by a measure of damages where there is one, but not always by a particular means for its ascertainment. Now the measure in a case like the present, is the difference between the price contracted to be paid and the value PRICE PAID. 99 cf the thins when it ought to have been ac- cepted; and though a resale is a couveuieut and often satisfactory means, it does not fol- low that it is, nor was it said in Girard v. Taggart, to be the only one. On the con- trary, the propriety of the direction there that the jury were not bound by it, if they could find another more in accordance with the jus- tice of the case, seems to have been admitted; the very thing complained of here." Judge Strong took the same view in Trout v. Ken- nedy. 47 Pa. St. 393. That was the rase of a trespasser, and the jury had been told that the plaintiff was entitled to the just and full value of the propeny. and if at the time of the trespass the market was depressed, too much importance was not to be given to that fact. 'Tf (says Judge Strong) at any particu- lar time, there be no market demand for an article, it is not of course on that account of no value. What a thing will bring in the market at a given time, is perhaps the meas- ure of its value then; but it is not the only one."" These cases plainly teach that value and market price are not always convertible terms; and certainly there can be no differ- ence in justice or law, in an unnatural de- pression and an unnatural exaltation in the market price — neither is the true and only measure of value. These general principles in the doctrine of damages and authorities, prove that an in- flated speculative market price, not the result of natural causes, but of artificial means to stimulate prices by unlawful combinations for the purposes of gain, cannot be a legiti- mate means of estimating just compensation. It gives to the purchaser more than he ought to have, and compels the seller to pay more than he ought to give, and it is therefore not a just criterion. There is a case in our own state, bearing strongly on this point: Blyden- burgh V. "Welsh. Baldw. 331. Fed. Cas. No. 1.583. Judge Baldwin had charged the jury in these words: "If you are satisfied from the evidence, that there was on that day a tixetl price in the market, you must be governed by it; if the evidence is doubtful as to the price, and witnesses vary in their statements, you must adopt that which you think best accords with the proof in the case."' In granting a new trial. Judge Hopkinson said: 'Tt is the price — the market price — of the article that is to furuish the measure of damages. Now what is the price of a thing, particularly the market price V We consider it to l>e the value, the rate at which the thing is sold. To make a market, there must be buying and selling, purchase and sale. If the owner of au article holds it at a price which nobody will give for it, can that be said to be its market value"/ Men sometimes put fantastical prices upon their property. For reasons personal and pe- culiar, they may rate it unich above what any one would give for it. Is that the value"/ Further, the holders of an article, flour, for instance, under a false rumor, which, if true, would augment its value, may suspend their sales or put a price upon it. not according to its value in the actual state of the market, but accoi-ding to what in their opinion will be its market price or value, provided the rumor shall prove to be true. In such a case, it is clear, that the asking price is not the worth of the thing on the given day, but what it is supposed it will be worth at a future day. if the contingency shall happen which is to give it this additidual value. To take such a price as the rule of damages, is to make the defend- ant pay what in truth never was the value of the article, and to give to the plaintiff a profit by a breach of the contract, which he never would have made by its performance." The case of suspended sales uik»u a rumor tending to enhance the price, put Ity Judge Hopkinson. bears no comparison to the case alleged here, where a cumbinatiou is inten- tionally formed to buy up oil. hold it till the year is out, and thus force the market ju-ice up purposely to afff^ct existing contracts, and c-ompel the sellers to pay heavy damages for nonfulfillment of their bargains. In the same case. Judge Hopkinson further said: "We did not intend that they (the juryi should go out of the limits of the market price, nor to take as that price whatever the holders of the coffee might choose to ask for it; substituting a fictitious, unreal value, which nobody would give, for that at which the article might l>e bought or sold."' "in determining."" says au eminent writer on contracts, "what is the market value of proi>erty at any particular time, the jury may sometimes take a wide range; for this is not always ascertainable by precise facts, but must sometimes rest on opinion; and it would seem that neither party ought to gain or lose by a mere fancy price, or an inflated and accidental value, suddenly put in force by some speculative movement, and as suddenly passing away. The (luestinu of damages by a market value is peculiarly one for a jury." 2 Pars. Cont. (Ed. lS57i p. 4S2. In Smith v. Ciritfith. 3 Hill, 337. 33S. C. J. Nelson said: "I admit that a mere speiula- tive price of the article, got up by the con- trivance of a few interested dealers, is not the true test. The law. in regulating the measure of damages. contemi)lafes a range of the entire market, and the average of prices, as thus foimd. running through a reasonable periwl of time. Neither a sudden and tran- sient inflation, nor a depri'ssion of prices, should control the question. These are often accidental, promoted by interested and ille- gitimate combinations, for temporary, special and selfish objects, independent of the oli- jects of lawful commerce; a forced and vio- lent perversion of the laws of trade, not with- in the contemplation of the regular dealer, aud not dest-rving to be regarded as a proper basis upon which to determine the value, when the fact becomes material in the ad- ministration of justice."' I may close these sayings of eminent jurists with the language of Chief Justice Gibson, upon stock-jobbing contracts (Wilson v. Davis, 5 Watts & S. 100 PRICE PAID. r»23). "To have stipulatod," says he, "for a rijrht to recruit on separate atcnmit, wouhl have j;iven to the asreeinent an appearance of trick, lilve those of stock-jobbins contracts, to (U'liver a jriven number of shares at a certain day, in wliicli tlie selhM-'s performance has been forestalh'd by what is called cornering'; in other words, bnyiny up all the floating shares in tlie market. These contracts, like •other stock-Jobbing transactions, in which par- ties deal upon honor, are seldom subjectetl to the test of judicial experiment, but they would necessarily be declared fraudulent." ■Wiiiiout adding more. 1 think it isconclusive- ly shown that what is called the market price, or the quotations of the articles for a given day. is not always the only evidence of actual value, but that the true value may be drawn from other sources, when it is shown that the price for the particular day had been unnat- urally inflated. It remains only to ascertain whether the defendant gave such evidence as to recjuire the court to submit to the jury to ascertain and determine the fair market value of crude oil per gallon, on the olst of Decem- ber. 18(19. as demanded by the defendant in his tifteenth point. There was evidence from which the jury might have adduced the fol- lowing facts, viz.: That in the month of Oc- tober 18()9. a number of persons of large capital, and among them Kirkpa trick & Lyons, combined together to purchase crude oil, and hold it until The close of the year 1S09; that these persons were the holders, as purchasers, of a large number of sellers' op- tion contracts, similar to the one in suit, that they bought oil largely, and determined to hold it from the market until the year 1870 before selling; that oil. in consequence of this combination, ran up in price, in the face of an increased supply, until the 31st day of December 18()9. reaching the price of seven- teen to eighteen cents ijer gallon, and then suddtnly dropped as soon as the year closed. Major I'-rew. one of the number, says: "It was our purpose to take the oil. pay for it, and keep it until January 1st 1870. otherwise we would have been heading the market on ourselves." ifr. Long says that on the 3d of January 1870 he sold oil to Fisher & Brothers (the i)lnintifts) at thirteen cents a gallon, and ■could lind no other jiurchaser at that price. Several witnesses, dealers in oil, testify that they knew of no natural cause to create such a rise in price, oi- to make the difference iu price from December to .lanuary. It was tes- titied, on the contrary, that the winter produc- tion of oil was greater in December 1809 than in former years by several thousand barrels per day, a fact tending to reduce the price, wheu not sustained by other means. Mr. Benn says he knew no cause for the sudden fall in price on the 1st .lanuary 1870. except that the so-called combination ceased to buy at the last of December 18(i9. It was, therefore, a fair question for the jin\v to determine whether the price which was demanded for oil on the last day of De- cember 1809 was not a fictitious, unnatural, inflated and temporary price, the result of a combination to "bull the market," as it is termed, and to compel sellers to pay a false and swollen price in order to fulfil their con- tracts. If so, then such price was not a fair test of the value of the oil, and the jury would be at liberty to determine, from the prices before and after the day, and from oth- er sources of infonnation, the acttial market value of the oil on the 31st of December 1809. Any other cause would be unjust and in- jurious to fair dealers, and would enable gamblers in the article to avail themselves of their own wrong, and to wrest from honest dealers the fruits of their business. It can- not be possible that a "corner," such as took place a few weeks since in the market for the stock of a western railroad company, where shares, worth in the ordinary market about sixty dollars each, were by the secret opera- tions of tAvo or three large capitalists, forced up in a few days to a price over two hundred dollars a share, can be a lawful measure of damages. Men are not to be stripped of their estates by such cruel and wrongful prac- tices; an83, the plaiutiff was the own- er of and in the possession of a small stone of the nature and value of which she was ignoiaut; that on that day she sold it to one of the defendants for the sum of one dollar. Afterwards it was ascertained that the stone was a rough diamond, and of the value of about .$700. After learning this fact the plaintiff tendered the defendants the one dol- lar, aud ten cents as interest, aud demanded a return of the stone to her. The defend- ants refused to deliver it, and therefore she commenced this action. The plaintiff testified to the circumstauces attending the sale of the stone to Mr. Samuel B. Boyntou, as follows: '"The lirst time Boynton saw that stone he was talking about buying the topaz, or whatever it is, in Sep- tember or October. I went into his store to get a little pin mended, and I had it in a small box.— the pin.— a small ear-ring; * * * tliis stone, and a broken sleeve-buttou were in the box. Mr. Boynton turned to give me a check for my pin. I thought I would ask him what the stone was, and I took it out of the l)ox and asked him to please tell me what that was. He took it in his hand and seemed some time looking at it. I told him I had been told it was a topaz, and he said it might be. He says, "I would buy this; wouhl you sell it?' I told him I did not know but what I would. What would it be AvorthV And he said he did not know; he would give me a dollar and keep it as .a specimen, aud I told him I would not sell it; and it was certainly pretty to look at. He asked me where I found it, and I told him in Eagle. He asked about ho.v far out. and I said right in the village, and I went out. Afterwards, and about the twenty-eighth of December, I needed money pretty badly, aud thought every dollar would help, and 1 took it back to Mr. Boynton and told him I had brought back the topaz, aud he says, 'Well, yes; what did I offer you for itV and I says, 'One dollar;' aud he stepped to the change drawer and gave me the dol- lar, and I went out.'' In another part of her testimony she says: "Before I sold the stone I had no knowledge whatever that it was a diamond. I told him that I had been ad- vised that it was probably a topaz, and he .said probably it was. The stone was about the size of a canary l)ird's egg. nearly the shape of an egg. — worn pointed at one end; it was nearly stiaw color,— a little darker," She also testified that before this action was commenced she tendered the defendants $1.10, and demanded the return of the stone, which the.v refused. This is substautially all the evidence of what took place at and before the sale to the defendants, as testi- fied to by the plaintiff herself. She pro- duced no other witness on that point. The evidence on the part of the defendant is not very different from the version given by the plaintiff, and certainly is not more favorable to the plaintiff. Mr. Samuel B. Boynton. the defendant to whom the stone was sold, testified that at the time he bought this stone, he had never seen an uncut dia- mond; had se3n cut diamonds, but they are quite dilferent from the uncut ones; "he had no idea this was a diamond, and it never entered his brain at the time." Considerable evidence was given as to what took place after the sale and purchase, but that evi- dence has very little if any bearing, upon the main point in the case. This evidence clearly shows that the plain- tiff sold tlie stone in question to the defend- ants, and deliveied it to them in December. 1883, for a consideration of one dollar. The title to the stone passed by the sale and de- li veiy to the defendants. How has that title been divested and again vested in the plain- tiff? The contention of the learned counsel for the appellant is that the title became vested in the plaiutiff by the tender to the Boyntons of the purchase money with inter- est, and a demand of a return of the stone to her. Unless such tender aud demand re- vested the title in the appellant, she cannot maintain her action. The only (luestiou in the case is whether there was anything in the sale Avhich entitled the vendor (the ap- pellant) to rescind the sale and so revest the title in her. The only reasons Ave knoAV of for rescinding a sale and rcA'esting the title in the vender so that he may maintain an action at law for the recovery of the posses- sion agaiust his veudee are (1) that the ven- dee AA-as guilty of some fraud in procuring a sale to be made to him; (2) that there Avas a mistake made by the vendor in delivering an article Avhich Avas not the article sold,— a mistake in fact as to the identity of the thing sold Avith the thing delivered upon the sale. This last is not in reality a rescission of the MISTAKE. 103 sale made, as )lu' tliinjf delivered was not the thiuff sold, and no title ever passed to the vendee by such delivery. lu this case, upon the plaintiff's own evi- dence, there can be no just fjrruund for al- leging that she was induced to make the sale she did by any fraud or unfair dealings on the part of Mr. Boynton. Both were en- tir(!ly ignorant at the time of the character of the stone and of its intrinsic value. Mr. Boynton was not an expert in uncut dia- monds, and had made no examination of the stone, except to take it in his hand and look at it before he made the offer of one dollar, which was refused at the time, and after- wards accepted without any comment or further examination made by Mr. Boynton. The appellant had the stone in her posses- sion for a long time, and it appears from her own statement that she had made some in- quiry as to its nature and qualities. If she chose to sell it without further investigation as to its intrinsic value to a person who was guilty of no fraud or unfaiiness which in- duced her to sell it for a small sum, she can- not repudiate the sale because it is after- Avards ascertained that she made a bad bar- gain. Kennedy v. Panama, etc., Mail Co., L. R. 2 Q. B. 580. There is no pretense of any mistake as to the identity of the thing sold. It was produced by the plaintiff and exhibited to the vendee before the sale was made, and the thing sold Avas delivered to the vendee when the purchase price Avas paid. Kennedy v. Panama, etc., Mail Co., supra, 587; Street v. Blay, 2 Barn. & Adol. 450; Gompertz v. Bartlett, 2 El. & Bl. 84!); Gurney v. Womersley, 4 El. & Bl. 133; Ship's Case, 2 De G., J. i^- S. 544. Suppose the ai)- pellant had produced the stone, and said she had been told that it was a diamond, and she believed it was, but had no knowledge herself as to its character or value, and Mi-. Boynton had given her !t;5(K) for it, could he have rescinded the sale if it had turned out to be a topaz or any other stone of very small value? Could Mr. Boynton have re- scinded the sale on the ground of mistake? Clearly not, nor could he rescind it on the ground that there had been a breach of Avarranty, because there Avas no Avari-anty, nor could he rescind it on the ground of fraud, unless he could show that she falsely declared that she had been told it Avas a dia- mond, or. if she had been so told, still she kneAV it was not a diamond. See Street v, Blay, supra. It is urged, with a goiwl de.il of earnest- ness, on the part of the counsel for the appi'l- lant that, because it has turned 44. is a word of precise legal import, both at law and in equi- ty. It means at aU times a contract between parties to pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought and sold. That no such contract was made by tliese parties in respect to the contents of the drill machine, we deduce from the agreed facts of the case. The macliine itself, and eveiy es- sential part and constituent element of it, were well sold. The consideration paid, though on- ly fifteen cents, was in law a quid pro quo, and the sale, unaffected by fraud or misrep- resentation, passed to the purchaser an inde- feasible right to the machine and all the uses and purposes to which it could be applied. But the contents of the machine are to be distinguished from its constituent parts. They were unknown to the administrators, were not inventoried, were not exposed to auction, were not sold. Of course they were not bought. All that was sold was fairly bought, and may be held by tlie purchasers. The title to what was not sold remains unchanged. A sale of a coat does not give title to the pocket-book which may happen to be temporarily deposit- ed in it, nor the sale of a chest of drawers a title to the deposits therein. In these cases, and many others that are easily imagined, the contents are not essential to the existence or usefulness of the thing contracted for. and not being within the contemplation or inten- tion of the contracting parties, do not pass by the sale. The contract of sale, like all other contracts, is to lie controlled by the clearly as- certained intention of the parties. The argmnent proceeded very much on the doctrine that CMiuity will, in certain cases, re- lieve against mistakes of fact as well as of law; but if there was no contract of sale, there could be no mistake of fact to vitiate it. and therefore that doctrine has no possible ap- plication. Mistake is sometimes a ground ot relief in equity; but a man who puts up his wares at auction and sells them to the high- est bidder, has no right to relief on the ground that he was ignorant of the value of that which he sold. Such a mistake comes of his own negligence, for it is his duty to possess all necessary knowledge of the value of that which he brings to market, and the mle is general that if a party becomes remediless at law by Ids own negligence, equity will leave him to bear the consequences. Nor could these administrators, had they sold the contents, have pleaded, in addition to their ignorance, their fiduciary character, and their possible liability for a devastavit, in de- feat of the vested rights of the purchaser; for, in respect to the personalty of the decedent, they stood in the dead man's shoes, and were in fact, as they are commonly called in law, his personal representatives. The law cast the ijersonal estate upon them for purposes of administration, and a fair sale made in pursuit of that purpose, would confer as perfect a title as if made by a living owner. They, no more than any other vendor, could set aside such a sale to avert tlie consequences of their own negligence. But inasmuch as they did not, in point of fact, sell the valuables which are in dispute, these principles, and all the arguments drawn from tlie law of mistake, are outside of the case. If, then, there was no sale and purchase of the contents of the block or machine, how did Huthmacher, when he discovered his unsus- pected wealth, hold it? Evidently as treas- ure trove, which, though commonly defined as gold or silver hidden in the ground, may, in our commercial day, be taken to include the paper representatives of gold and silver, espe- cially when they are found hidden with both of these precious metals. And it is not nec- essarjr that the hiding should be in the ground, for we are told in 3 Inst. 132, that it is not "material whetlier it be of ancient time hid- den in the ground, or in tlie roof, or walls, or other part of a castle, hou.se, building, ruins or otlierwise." Tlie certain rule of the common law, in re- gard to treasure trove, as laid down by Brac- ton, lib. 3, c. 3, and as quoted in Viner's Abridgement, Is, "that he to whom the prop- erty is, shall have treasure trove, and if he dies before it be found, his executors shall have it, for nothing accrues to the king unless when no one knows who hid that treasure." The civil law gave it to the finder, according to the law of nature, and we suppose it was this principle of natural law that was referred to in what was said of treasure hid in a field in Matthew's Go.spel, xiii. 44. But the common law, which we administer, gave it always to the o>vner if he could be found, and if he could not be, then to the king, a.s wrecks, strays, and other goods are MISTAKE. given, "whereof no person can claim proper- ty." 3 Inst. 132. Huthmacber. therefore, held the unsold valualjles for the i)ersonal rep- resentatives of the deceased owner. Several sporadic cases, some of which were hiyhly apocryphal, were mentioned in the argu- 105 ment as affording analogies more or less ap- proi)riate to this ca.se, but it is quite unneces- sary to discuss them, because if they touch, they do not encumber the clear ground where^ on, as above indicated, we rest our judgment. The judgment Is affirmed. 106 MISTAKE. SHERWOOD V. WALKER ot nlJ (33 N. W. 919, 60 Mich. 508.) Supreme Court of Midiipn. July 7, 1887. Error to circuit court, Wayue couuty; Jen- j nison. Judge. i C. J. Reilly, for plaintiff. Wm. Aikman, i Jr., (D. C. Holbrook. of counsel,) for de- i fendants and apix'llants. I ! MORSE. J. R('i)lovin for a cow. Suit coninicnccd in justice's court; judgment for plaintiff; appealed to circuit coiu't of Wayne county, and verdict and judgment for plain- tiff in that court. The defendants bring error, and set out 25 assignments of the same. The main controversy depends upon the construction of a contract for the sale of the cow. The plaintiff claims that the ti- tle passed, and bases his action upon such claim. The defendants contend that the con- tract was executory, and by its terms no title to the animal was acquired by plain- tiff. The defendants reside at Detroit, but are In business at Walkervllle, Ontario, and have a farm at Greenlield. In Wayne coiinty, upon Avhich were some blooded cattle sup- posed to be barren as breeders. The Walk- ers are Importers and breeders of polled Angus cattle. The plaintiff is a banker liv- ing at Plymouth, in Wayne county. He call- ed upon the defendants at Walkerville for the purchase of some of their stock, but found none there that suited him. Meeting one of the defendants afterwards, he was informed that they had a few head upon this Greenfield farm. He was asked to go out and look at them, with the statement at the time that they were probably barren, and would not breed. May 5, 188(i, plaintiff went out to Greenfield, and saw the cattle. A few days thereafter, he called upon one of the defendants with the view of purchasing a cow, known as "Rose 2d of Aberlone." After considerable talk, it was agreed that defendants would telephone Sherwood at his home in Plymouth In reference to the price. The second morning after this talk he was called up by telephone, and the terms of the sale were finally agreed upon. He was to pay five and one-half cents per pound, live weight, fifty pounds shrinkage. He was asked how he intended to take the cow home, and replied that he might ship her from King's cattle-yard. He requested de- fendants to confirm the sale In writing, which they did by sending liim the following letter: "Walkervllle, May 15, 1886. T. C. Sherwood, President, etc.— Dear Sir: We confirm sale to you of the cow Rose 2d of AI)ei-lone. lot 56 of our catalogue, at five and a half cents per pound, less fifty pounds shrink. We inclose herewith order on Mr. Graham for the cow. You might leave check with him, or mall to us here, as you prefer. Yours, truly, Hiram Walker & 1 Dissenting opinion of Shorsvoud, J., omitted. Sons." The order ujion Graham Inclosed in the letter read as follows: "Walkerville. May 15, 188(5. George Graham: You will please deliver at King's cattle-yard to Mr. T. C. Sherwood, Plymouth, the cow Rose 2d of Aberlone, lot 50 of our catalogue. Send halter with the cow, and have her weighed. Yours, truly, Hiram Walker & Sons." On the twenty-first of the same month the plaintiff went to defendants' farm at Greenfield, and presented the order and letter to (Jraham, who informed him that the defendants had instructed him not to deliver the cow. Soon after, the plain- tiff" tendered to Hiram Walker, one of the defendants, .$80, and demanded the cow. Walker refused to take the money or deliver the cow. The plaintiff then Instituted this suit. After he had secured possession of the cow under the writ of replevin, the plaintiff caused her to be weighed by the constal)le who served the writ, at a place other than King's cattle-yard. She weighed 1,420 pounds. When the plaintiff, upon the trial in the circuit court, had su1)mitted his proofs show- ing the above transaction, defendants moved to strike out and exclude the testimony from the case, for the reason that it was irrelevant and did not tend to show that the title to the cow passed, and that it showed that the contract of sale was merely executory. The court refused the motion, and an exception was taken. The defendants then Introduced evidence tending to show that at the time of the alleged sale it was believed by both the plaintiff and themselves that the cow was barren and would not breed; that she cost $850, and if not barren woidd be worth from $750 to $1,000; that after the date of the letter, and the order to Graham, the de- fendants were informed by said Graham that in his judgment the cow was with calf, and therefore they instructed him not to deliver her to plaintiff, and on the twen- tieth of May. 1880, telegraphed to the plain- tiff what Graham thought about the cow be- ing with calf, and that consequently they could not sell her The cow had a calf In the month of October following. On the nineteenth of May, the plaintiff' wrote Gra- ham as follows: "Plymouth, May 19, 1886. yir. Geoi-ge Graham, Greenfield — Dear Sir: I have bought Rose or Lucy from ^Ir. Walk- er, and will be there for her Friday morning, nine or ten o'clock. Do not water her In the morning. Y^ours, etc., T. C. Sherwood." Plaintiff" explained the mention of the two cows in this letter by testifying that, when he wrote this letter, the order and let- ter of defendants were at his house, and, writing in a hurry, and being uncertain as to the name of the cow, and not wishing his cow watered, he thought it would do no harm to name them both, as his bill of sale would show which one he had purchased. Plaintiff' also testified that he asked defend- ants to give him a price on the balance of MISTAKK. 107 tlivMr lioid at Oreonfield, as a friend thoujjlit of buyiun some, and received a letter dated May 17. 1KS(5, in which tliey named tlie price of five cattle, including Lucy, at $!«), and Rose 2d at $S0. When he received the let- ter he called defendants np hy teh'phoue, and asked them why they put Rose 2d in the list, as he had already pui-chased her. They replied that they knew he had. but thoug:ht it would make no difference if plain- tiff and his friend concluded to take the whole herd. The forejroinK is the substance of all the testimony in the case. The circuit judge instructed the jury tliat if they believed the defendants, when they sent the order and letter to plaintiff, meant to pass the title to the cow. and that the cow was intended to be delivered to plain- tiff, it did not matter whether the cow was weighed at any particular place, or by any particular person; and if the cow was weigh- ed afterwards, as Sherwood testified, such weighing would be a sufficient compliance with the order. If they believed that de- fendants intended to pass the title by the writing, it did not matter whether the cow was Aveighed before or after suit brought, and the plaintiff would be entitled to recov- er. The defendants submitted a number of requests which were refused. The sub- stance of them Avas that the cow was never delivered to plaintiff, and the title to her did not pass by the letter *and order; and that under the contract, as evidenced by these writings, the title did not pass until the cow was weighed and her price there- by determined; and that, if the defendants only agreed to sell a cow that would not breed, then the barrenness of the cow was a condition precedent to passing title, and plaintiff cannot recover. The court also charged the jury that it was immaterial whether the cow was with calf or not. It will therefore be seen that the defendants claim that, as a matter of law, the title to this cow did not pass, and that the circuit judge erred in submitting the case to the jury, to be determined by them, upon the intent of the parties as to whether or not the title passed with the sending of the let- ter and order by the defendants to the i)laiu- tiff. This question as to the passing of title is fraught Avith difficulties, and not always easy of solution. An examination of the multitude of cases bearing upon this subject, Avith their iutinite variety of facts, and at least apparent conflict of laAV. ofttimes tends to confuse rather than to enlighten the mind of the inquirer. It is best, therefore, to con- sider alAvays, in cases of this kind, the gen- eral principles of the laAv. and then apply them as best we may to the facts of the case in hand. The coAV being AA-orth over .$.~)0. the con- tract of sale, in order to be valid, must be one Avhere the purc-haser has received or ac- cepted a part of the goods, or given some- thing in earnest, or in part payment, or Avhere the .seller has signed some note or memorandum in Avriting. How. St. § OISC). Here tlicre Avas no actual delivery, nor any- thing given in payment or in earnest, but there Avas a sufficient memorandum signed by the defendants to take the case out of the statute, if the matter contained in such memorandum is sufficient to constitute a comjileted sale. It is evident from the let- ter that the i)aymeut of the pm-cjiase price AAas not intended as a conditi<»n precedent to the passing of the title. Mr. Sher\voo«l is given his choice to pay the money to Graham at King's cattle-yards, or to send check by mail. Nor can there be any trouble about the delivery. The order instructed (Jraliam to deliver the coav, upon presentation of the order, at such cattle-yards. But the price of the coAA' AA'as not dciermined upon to a certainty. Befoi-e this could be ascertained, from the terms of the contract, the coaa* had to be Aveighed; and, by the order inclosed with the letter, (iraham Avas instructed to have her Aveighed. If the coav had been weighed, and this letter had stated, upon such Aveight. the express and exact price of the animal, there can be no doubt but the cow AAould haA'e passed Avith the sending and receipt of the letter and order by the plaintiff. Payment Avas not to be a concur- rent act Avith the deliA-evy, and therein this case differs from Case v. DevAey. .~m Mich. 110, 20 N. W. 817, and 21 X. W. Ml. Also, in that case, there Avas no Avritten memo- randum of the sale, and a delivery Avas nec- essary to pass the title of the sheep; and. it Avas held that such delivery could only be made by a surrender of the possession to the vendee, and an acceptance by him. De- livery by an actual transfer of the property from the vendor to the vendee, in a case like the present. Avhere the article can easily be so transferred by a manual act, is usually the most significant fact in the transaction to shoAV the intent of the parties to pass the title, but it never has l)een held conclusiA'e. Neither the actual delivery, nor the absence of such delivery, Avill control the ca.se. Avhere the intent of the parties is clear and mani- fest that the matter of delivery Avas not a condition precedent to the passing of the title, or that the delivery did not carry Avith it the absolute title. The title may pass, if the parties so agree. Avhere the statute of frauds does not interpose Avithout delivery, and property may be delivered aa ith the un- derstanding that the title shall not pass imtil some condition is performed. And Avhether the parties intended the ti- tle should pass before delivery or not is gem>rally a question of fact to be deter- mined by the jury. In the case at bar the que.stion of the intent of the parties was submitted to the jury. This submission AA-as riglit. unless from the reading of the letter lOS MISTAKE. and the order, and all llic facts of the oral bai'gainin^ or' the parties, it is perfectly clear, as a matter of law, that the intent of the parties was that the cow should be weighed, and the price thereby accurately determined, before she should become the property of the plaintiff. I do not think that the intent of the parties in this case is a matter of law, but one of fact. The weijjhinjr of the cow was not a matter that needed the presence or any act of the de- fendants, or any agent of theirs, to be well or accurately done. It could make no dif- ference where or when she was weighed, if the same was done upon correct scales, and by a competent person. There is no pre- tense but what her weight was fairly ascer- tained by the plaintiff. The cow was spe- cilically designated by this writing, and her delivery ordered, and it cannot be said, in my opinion, that the defendants intended that the weighing of the animal should be done before the delivery even, or the passing of the title. The order to Graham is to deliver her, and then follows the instruction, not that he shall weigh her himself, or weigh her, or even have her weighed, before de- livery, but simply. "Send halter with the cow, and have her weighed." It is evident to my mind that they had perfect confidence in the integrity and re- sponsibility of the plaintiff, and that they considered the sale perfected and completed when they mailed the letter and oi-der to plaintiff. Tliey did not intend to place any conditions precedent in the way, either of payment of the price, or the weighing of the cow, before the passing of the title. They cared not whether the money was paid to Graham, or sent to them afterwards, or whether the cow was weighed before or after she passed into the actual manual grasp of the plaintiff. The refusal to deliver the cow grew entirely out of the fact that, before the plaintiff called upon Graham for her, they discovered she was not barren, and therefore of greater value than they had sold her for. The following cases in this court support the instruction of the court below as to tlie intent of the parties governing and con- trolling the question of a completed sale, and the passing of title: Lingham v. P]g- gleston. 27 Mich. 324; Wilkinson v. Holiday, 33 Mich. 3SG; Grant v. :\Ierchants" & :Manu- facturers' Bank, 35 Mich. .j27; Carpenter v. Graham, 42 Mich. 194, 3 N. W. 974; Brewer v. Salt Ass'n. 47 Mich. .134, 11 N. W. 370; Whitcomb v. Whitney, 24 Mich. 4SG; Byles V. Colier, .-|4 Mich. 1, 19 N. W. 565; Scotten V. Sutter, 37 Mich. 527, 532; Ducey Lumber Co. v. Lane. 58 Mich. 520, 525, 25 N. W. 5r>8; .Tenkinson v. Monroe, 01 Mich. 454, 28 X. W. 003. It appears from the record that both par- ties supposed this cow was barren and would not breed, and she was sold by the pound for an insignificant sum as compared with her real value if a breeder. She was evidently sold and purchased on the relation of her value for beef, unless the plaintiff had learned of her true condition, and con- cealed sucli knowledge from the defendants. Before the plaintiff secured possession of the animal, the defendants learned that she was with calf, and therefore of great value, and unch'rtook to rescind the sale by re- fusing to deliver her. The question arises wluHher they had a right to do so. The circuit judge ruled that this fact did not avoid the sale and it made no difference wlu>ther she was barren or not. I am of tlie opinion that the court erred in this holding. I know that this is a close questiim, and the dividing line between the adjudicated cases is not easily discerned. But it must be considered as well settled that a party who has given an apparent consent to a con- tract of sale may refuse to execute it. or he may avoid it after it has been completed, if the assent was founded, or the contract made, upon the mistake of a material fact, — such as the subject-matter of the sale, the price, or some collateral fact materially in- ducing the agreement; and this can be done when the mistake is mutual. 1 Benj. Sales, §§ 005. (!00; Leake, Cont. 339; Story, Sales, (4th Ed.) §§ 377, 148. See, also. Cutts v. Guild. 57 N. Y. 229; Harvey v. Harris, 112 Mass. 32; Gardner v. Lane, 9 Allen, 492, 12 Allen, 44; Huthmacher v. Harris' Adm'rs, 38 Pa. St. 491; Byers v. Chapin, 28 Ohio St. 300; Gibson v. Pelkie, 37 Mich. 380. and cases cited; Allen v. Hammond, 11 Pet. 03- 71. If there is a dift'erence or misapprehension as to the substance of the thing bargained for; if the thing actually delivered or re- ceived is different in substance from the thing bargained for. and intended to be sold, — then there is no contract; but if it be only a dift'erence in some qiiality or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both of them, yet the contract remains binding. "The difticulty in every case is to determine whether the mistake or misap- prehension is as to the substance of the whole contract, going, as it Avere, to the root of the matter, or only to some point, even though a material point, an error as to which does not aft'ect tlie substance of the whole consideration." Kennedy v. Panama, etc., :\Iail Co.. L. R. 2 Q. B. 580. 587. It has been held, in accordance with the principles al>ove stated, that where a horse is bought under the belief that he is sound, and both vendor and vendee honestly believe him to be sound, the purchaser must stand by his bargain, and pay the full price, unless there was a warranty. It seems to me. however, in the case made by this record, that the mistake or misap- prehension of the parties went to the whole substance of the agreement. If the cow was a breeder, she was worth at least .$750; MISTAKE. 109 if baiTen. she was wortli not over $S0. Tlio parties would not have made tlie conti'aot of sale except upon the understandinj; and be- lief that slie was incapable of brecvlinj;, and of no use as a cow. It is true slie is now the identical animal that they thouj^ht her to be when the contract was made; there is no mistake as to the identity of the creature. Yet tlie mistake was not of the mei-e sale. There could not be one to the supposed principal, because there was no such pers-on; and there was not one to Clementson, because none puiported to be made to him; but, on the contrary, such a sale was expressly refustd, and excluded. Edmunds v. Transportation Co., 135 Mass. 283. It was suggested that this case differed from the one cited, because there the principal was disclosed, whereas here he was not, and that credit could not be supposed to have been giv- en to au unknown person. We have nothing to say as to the weight which this argiuuent ought to have with a jury, beyond observing that the plaintiff's had reason, in Clementson's representations, for giving credit to the sup- posed manufacturer. But there is no rule of law that makes it impossible to contract with or sell to an unknown but existing party, and if the jury find that sucn a sale was the only one that puiporttd to have been made, the fact that it failod does uot turn it into a sale to the party conducting the transjiction. Schmaltz v. Averj', IG Q. B. (^55. only decid- ed that a man's describing liimself in a char- ter-party as "agent of the freigliter" is not sufficient to preclude him from alleging that he is the freighter. It does not hint that the agent could uot be excluded by express terms^ MISTAKE. Ill or by the description of tbc principal, althoujj;h iusutticient to identify the individual dealt with, as happened here; still less, that, in favor of third persons, the atrent woidd be presumed, without evidence, to be the undisclosed princi- pal, althouf,di expressly excluded. The invalidity of the transaction in tlie case at bar does not depend upon frjuid, but upon the fact that one of the supposed parties is wantiufj. it does not matter how. Fniud only ; becomes important, as such, when a sale or con- tract is complete in its formal elements, and i therefore valid unless repudiated, but the risht is claimed to rescind it. It goes to the mo- tives for making the contract, not to its exist- ence; as, when a vendee expressly or implied- ly represents that he is solvent, and intends to pay for goods, when in fact he is insolvent, and has no reasonable expectation of paying for them; or, being ideutitied liy the senses, and dealt with as the person so identified, says that he Ls A. when in fact he is B. But when one of the fonnal constituents of illegal transac- tions is wanting, there is no question of rescis- sion,— the ti-aiLsactioD is void ab initio,— and fraud does not impart to it, against the will of the defrauded party, a validity that it would not liave if the want were due to innocent mi.s- take. The sale being void, and not merely voidable, or, in simpler words, there hjiving been no sale, the deliveiy to (.'lementson gave him no iK)wer to conve.v a good title to a bona fide purcliaser. He had not even a defective title, and his mere possession did not enable him to pledge or mortgage. The considera- tions in favor of prottnting bona fide dejilers with persons in iwssession, in cases like the present, were much urged in Tliacher v. Moors, 134 Mass. lofj, but did not prevail. Much les.s can it be allowed to prevail against a legal title without the inteiTention of statute. Excep- tions overniled. 112 MISTAKE. in I'! i:V y .loliii V. Da^Kt'tt im.-iliisi Aluiiiii Kiiplr.v iiiitl .lacoli Kupli-y to n'«'i>v«'r a iiiiiiv wliirli tlic (It'toiulaiiis claiiii- »'«l tli»».v hail iMHi^rht ol' tin' plaiiilill. At tlu' tlrxt coiivtTsatidii aliiuit tlic iiiaif. Kiijilcy ask«Ml iIm- i>rlr»'. Ilic plainlifl" s\vi'ariii« that Ih' rcplltMl !!!H;.-.. whih- llu« (h'TciKhiiit Icsti- Mt-)! lluit 1h> said $<'.•'>. In I ho sccoiul t'on- v«>rsath>ii Knph'v says ht> lold Da«K«'tt that, if th«« ma IV was as n-pn'sculcd. tiu-y woukl flivc ?th"». and I)a^'j;»'tt said lie woiihl take Idin down n««xl niorninp to see hvv. l)afrK«"tt tfstitird tliat Kiiph-y said to him. "Did I uinlcrstand yon sixty-liveV" and that he sup- posed Uni»h>y refen-ed to tlie fraction of the ?1(H). and meant $!»;.". as named at the prevl- ellee had never agreed to sell for $05, and could not be compelled to part with liis property for a less sum tlian he chose to ask. It is according to natural justice, where there is a mutual mistake in regard to the price of an article of property, there is no sale, and neither party is bound. There has l)een no meeting of the minds of the contracting parties, and hence there can be' no sale. This principle is so elementary it needs no citation of authorities in its sup- port. Any otlier rule would work injustice and might compel a person to part Avitli his property without his consent, or to talve and pay for property at a price he had never contracted to pay. There was no error in refusing instruc- tions asked by appellants. The court was asked to tell the jury if they believed, from the evidence, appellee had "sworn willfully and corruptly false in any material portion of his testimony, then they are at liberty to disregard his entire testimony, except so far as it may be corroborated by other evidence in the ca.se." Ck)nceding this instruction states a correct aljstract principle of law, there was no necessity for giving it under the facts proven in this case. The verdict was right, and appellants were not preju- diced by the refusal of the court to give it. All that was pertinent to tlie issues in the other refused instructions was contained in others that were given, and tliere was no necessity for repeating it. No material error appearing in the record, the judgment must be affirmed. Judgment attirmed. whp:x title passes. lis HAKKNESS v. RISSELL k CO. (7 Sup. Ct. 51. 118 U. S. . also turned on the same point, and nothing in eitlier of tliese cases lias any bearing on the present Ques- tion." In Coggill V. Hartford & X. II. R. Co.. .'! (Jray, ."»4."». the rights of a boiia tide purchaser from one in possession under a conditional Side of g(X3ds were specifically discussed, and the court held, in an able opinion delivered by Mr. .fustice I>igelow, that a sale and delivery of goods on condition that the title shall not vest in the vendee until payment of the price passes no title until the condition is perform- ed, and the vendor, if guilty of no laches, may reclaim the iiroperty, even from one who has purchased from his vendee in good faith, and without notice. The learned justice com- menced his opinion in the following terms: 'It has long been the settled rule of law in this commonwealth that a sale and delivery of gootls on condition that the property is not to vest until the purchase money is paid or secured, does not pass the title to the vendee, and that the vendor, in case the condition is not fulfilled, has a right to repossess him- self of the goods, both against the vendee and against his creditors claiming to hold tiiem under attachments." He then addresses him- self to a consideration of the rights of a bona tide purchaser from the vendee, piu'chasing without notice of the condition on which the latter holds the goods in his possession; and he cimcludes that thej' are no givater than those of a creditor. He says: "All the cases turn on the principle that the compliance Avith The conditions of sale and delivery is. by the terms of the contract, precedent to the trans- fer of the property from the vendor to the vendee. The vendee in such cases acquires no property in the goods. He is only a bailee for a specific purpose. The delivery which in ordinary cases passes the title to the vendee must take effect according to the agreement of the parties, and can operate to vest the property only when the contingency coutem- pLated by the contract arises. The vendee, therefore, in such cases, having no title to the property, can pass none to others. He has only a bare right of possession, and those who claim under him, either as creditors or purchasers, can actpiire no higher or better title. .Such is the necessary result of carry- ing into etfect the intention of the parties to a conditional sale and delivery. Any other rule would be equivalent to the denial of the validity of such contracts. But they certainly violate no rule of law, nor are they contrary to sound policy." This case was followed in Sargent v. ^Nlet- calf, 5 Gray, oOO; Deshou v. Bigelow, 8 Ciray, ir.f); Whitney v. Eaten. L") (iray. JU.l; Hir- schorn v. Cauney, OS Mass. 141t; and Chase V. Ingalls, 1"J2 Mass. .'iSl; and is l)elieved to express the settled law of Massachusetts. The same doctrine i)revails in Connecticut, and was sustained in an able and learned opin- ion of Chief Justice Williams, in the case of Forbes v. Marsh, 15 Conn. 384 (decided in lS4o), in which the principal authorities are reviewed. The decision in this case was fol- lowed in the subsequent case of Hart v. Car- penter, 24 ( 'unn. 427. wfcere ihe (luestion arose u])on the claim of a bona fide purchaser. In New York the law Ls the same, at least so far as relates to the vendee in a coiiditi14, in which separate olalnnate opinions were delivered by .Judges U rover and I^ott. This decision was concurred in by ('Iiief .fudge Hunt, and .Judges Woodruff, .Mason, and Dan- iels; Judges .James and Murray dissenting. In that case Ballard agreed to sell to one I"" ranee a yoke of oxen for a price agreed on, but the contract had the condition "that the oxen were to remain the property of Ballard until they should be paid for." The oxen were delivered to France, and he subsequently sold them to the defendant Burgett. who purchased and received them Avithout notice that the plaintiff had any claim to them. The court sustained I^allard's claim; and subsequent cases in New York are in harmony witli this decision. See Cole v. Mann, (52 N. Y. 1; Beau v. Edge, 84 N. Y. 510. We do not perceive that the case of Dows y. Kidder, 84 N. Y. 121. is adverse to the ruling in Ballard v. Burgett. There, al- though the plaintiffs stipulated that the title to the corn should not pass until payment of the price (which was to be cash, the same day), yet they indorsed and delivered to the purchaser the evidence of title, name- ly, the weigher's return, to enable him to take out the bill of lading in his own name, and use it in raising funds to pay the plaiu- Titf. The purchaser misappropriated the funds, and did not pay for the corn. Here the intent of both parties was that the pur- chaser might dispose of the corn, and he was merely the trustee of the plaintiff, in- vested by him wnth the legal title. Of course, the innocent party who purchased the corn from the ttrst purchaser was not bound by the eipiities between him and the •plaintiff. The later case of Barker v. Baxter, 86 N. Y. .")803; Duncans v. Stone, 4.'5 Vt. 123; Moseley v. Shattuck. 43 Iowa, .")40; Thorpe v. Fowler, 57 Iowa, r>41. 11 X. W. 3. The same vieAV of the law has been taken in several other states. In New .Jersey, in the case of Cole v. Berry, 42 N. .J. Law, 308. it was held that a contract for the sale of a sewing-machine to be delivered and paid for by installments, and to remain the i)roperty of the vendor until paid for. was a condi- tional sale, and gave the vendee no title un- til the condition was performetl; and the ca.ses are very fully discussed and distin- guished. In Pennsylvania the law is imdoistood to be somewhat different. It is thus sunnnar- ized by .Judge Depue, in the opinion deliv- ered in ('ole V. Berry, 42 N. .J. Law. 314. where he says: "In Pennsylvania a distinc- tion is taken between delivery under a bail- ment, with an option in the bailee to piir- chase at a named price, and a delivery un- der a contract of sale containing a reserva- tion of title in the vendor until the contract price be paid; it being held that in the for- mer instance property does not pass as in favor of creditors and purchasers of the bailee, but that in the latter instance deliv- ery to the vendee subjects the property to execution at the suit of his creditors, and makes it transferable to bona fide pur- chasers. Chamberlain v. Snnth. 44 Pa. St. 431; Rose v. Story. 1 Pa. St. UK); Martin v. Mathiot. 14 Serg. & R. 214; Haak v. Lin- derma n. 04 Pa. St. 409." But. as the learn- ed judge adds: "This distinction is discred- ited by the great weight of authority, which ])uts possession under a conditional con- tract of sale and possession under a bail- ment on the same footing.— liable to be as- sailed by creditors and pin-chasers for actual fraud, but not fraudulent per se." In this connection, see the case of Cop- land V. Bos(iuet, 4 Wash. C. C. 588. Fed. Cas. No. 3,212. where Mr. .Justice Washing- ton and .ludge Peters (the former delivering the opinion of the court) sustained a condi- tional sale and delivery against a pin-chaser from the vendee, who claimed to be a bona tide purchaser without notice. In Ohio the validity of conditional sales ac- companied by delivery of possession is fully sustained. The latest reported case brought US WHKX TITLE PASSES. to our attention is that of Call v. Seymour, -to 01iii> Sr. i»T<>. whiih arose upon a written contract contained in several iironiissory notes given for installments of the purchase money of a machine, ami resemblins? very much the contract in the case now under consideration. FoUowinjr the note, and as a ijait of the same document, is this condi- tion: "The express conditions of the sale and purchase of the separator and horse- ix)wer for which this note is ariven, is such that the title, ownership, or possession does not pass from the said Seymour, Snbin & Co. until this note, with interest, is paid in full. The Siiid Seymour. Sabin & Co. have full power to dec-lare this note due. and take possession of said separator and horse- power, at any time they may deem this note insecure, even before the maturity of the note, and to sell the said machine at public or private sale, the proceeds to be ap- plied upon the unpaid balance of the pur- chase price." The machine was seized un- der an attachment issued against the ven- dee, and the action was brought by the ven- dor against the constable who served the attachment. The case was fully argued, and the authorities pro and con duly consid- ered by the court, which sustained the con- dition expressed in the contract, and af- firmed the judgment for the plaintiff. See, also, Sanders v. Keber, 28 Ohio St. 0:iO. The same law prevails in Indiana. Shire- man V. Jackson, 14 Ind. 4r)!); Dunbar v. Kawles, 28 Ind. 22.j; Bradsliaw v. War- ner, 54 Ind. TjS; Hodson v. Warner, 00 Ind. 214; McGin- v. Sell, Id. 241). The same in Michigan. Whitney v. McConnell. 2!j Mich. 12; Smith v. Lozo, 42 Mich. (J, :{ N. W. 227; Marquette Manuf'g Co. v. .leffeiy, 49 Mich. 283. IS X. VV. .",1)2. The same in Missouri. Itidgeway v. Kennedy, 52 Mo. 24; Wangler v. Franlc p:ii(l vvitiiii a certain time, r(;talnlng the tith; in liiniKell' In the mean time, and dclivfis tiic chatlcl lo the vendee so as to clollii- liim with the aj>|,ar<'nt ownership, a hnna liilc iiincliaser, or an execution cr«-dltor of the latter-, Is en- titled to ifroter-tlon as against the claim of the original vendor. Brundage v. Camp, 21 111. 330; McCormick v. Hadden, 37 111. 370; Murch v. Wriglit, 4(5 111. 4SS: iSlichigan Cent. K. Co. v. I'hillips. (!0 111. IIH); Lucas V. Campbell. 88 111. 447; Van Duzor v. Al- len, 00 111. 4911. Perhaps the statute of Illi- nois on the subject of chattel mortgages has influenced some of these decisions. This statute declares that "no mortgage, trust deed, or other conveyance of personal prop- erty having the effect of a mortgage or lien upon such proi>erty, is valid as against the rights and interests of any third person, un- less the possession thereof be delivered to and remain with the grantee, or the instru- ment provide that the possession of the property may remain witli the grantor, and the instrument be acknowledged and re- corded." It has been supposed that this statute indicates a rule of public policy con- demning secret liens and reservations of title on the part of vendors, and making void all agreements for such liens or reser- vations imless registered in the manner re- quired for chattel mortgages. At all events, the doctrine above referred to has become a rule of property in Illinois, and we have felt bound to observe it as such. In the case of Hervey v. Rhode Island Locomotive Works, 93 U. S. 004, Avhere a Rhode Island company leased to certain Illinois railroad contractors a locomotive en- gine and tender at a certain rent, payable at stated times during the ensuing year, with an agreement that, if the rent was duly paid, the engine and tender should become the property of the les.sees, and possession was delivered to them, this court, being sat- isfied that tlie transaction was a conditional sale, and that, by the law of Illinois, the reservation of title by the lessors was void as against third persons unless the agree- ment was recorded (which it was not in ])roper time), decided that a levy and sale of tlie projierty in Illinois, under a judgmenc against the lessees, were valid, and tliat the locomotive works could not icclaim it. Mr. Justic<' Davis, delivering the opinion of the court, said: "It Avas decided by this court in Green v. Van Buskirk, o Wall. 307, and 7 Wall. i:'.0, that the lial>ility of property to he sohl under legal jn-ocess issuing from the courts of the slate where it is situated, must be (lelerniiMcd by the law there, rather tlian tli;it of the jurisdiction wlicre (lie owner lives. Tiiese deeisious rest ou the gr()unrly to it im- pliedly snltinils lo I he regidatious d that the transaction was not an absolute sale, but was intended as a security for an indebtedness which defendant owed to them. 'J'he testimony in support of the theory of each i)arty was properly submitted to the jury by the court, and they found in accord- ance with the defendant's theory. Plaintiffs' claim that, because the logs were not to be- paid for until the lumber was sawed and tallied, so as to ascertain the 3 4s. lOd., adding thereto o per cent, on the said value less the amount of first instalment. (2.) "The said articles of furniture and ef- fects are hired by AV. A. Robertson upon the following terms and conditions: — (S.) "W. A. Robertson is to pay to Lewin Crawcour & Co. the sum of £10 on the signing heieof, £.5 on the 4th of January next, and £5 on th? 4th day of each succeeding calendar month diu'ing the continuance of this agree- ment, and is also on the signing hereof to de- posit with Lewin Crawcour & Co. promissory notes for the total amount of the instalments to be paid hereunder, such promissory notes being given as collateral security, and entire- ly without prejudice to the title of Lewiu Crawcour & Co. in or to the said furnitin-e and effects, and of all rights reserved to them by this agreement, and subject to this stipu- lation, that, in case of the goods being seized and removed by Lewin Crawcour & Co. under clause 5. the whole of such promissory notes, or so many of them as shall then be current, shall after such seizure and removal be given up on demand to W. A. Robertson, and shall from and after such seizure and removal be- come absolutely void. (4.) "W. A. Robertson is to keep the rent of the premises in which the said furniture and effects are placed regularly and punctually paid, and not to part with possession of, re- move, or otherwise deal with the said goods, or any part thereof, nor to part with the pos- session of, or assign his interest in. the house or premises wherein the said goods may be, without the consent in writing of Lewin Crawcour & Co being first ol)tained. (5.) "In the event of non-payment of any of the above notes on the days upon which they respectively become due. or of the breach of any of the conditions heiein expressed to be performed by AV. A Roljertson, or in case the said fxu'uiture and effects, or any part thereof shall be seized or taken in execution under any process of any coiu't either of law or of equitj-, Lewin Crawcour & Co. may by themselves, or others, their servants or agents. enter into any house or place where the said articles of f uruitin-e or any of them shall then be. and seize, remove, and retake possession of the same, as in their first and former estate, notwithstanding any payments made by W. A. Robertson, and Roljertson shall be l)arred from commencing or maintaining any action of trespass or otherwise by reason of such taking possession as aforesaid, or of the temporary possession of the premises wherein the said goods may be. for such time as may be rea- sonably occupied in such removal, or for the recovery of any part of the montws paid un- der this agreement, which, upon such default or breach as afoiesaid. it is hereby agreed are to be absolutely forfeited to lA'win Crawcour & Co. (0.) '"T'pon payment by W. A. Rol)ertson to Lewin Crawcour &: Co. of the full sum of £«m 17s. Itkl. by the instalments aforesaid the agreement shall be deemed completed, and shall thenceforth close and determine, and the said furniture and effects shall become and be the property of W. A. Robertson; but until the whole of the said sum shall have been paid the said articles of furnitine and effects shall remain the sole and absolute property of Lewin Crawcour ct Co.. and are only let on hire to W. A. Robertson, who hereby agrees to take all proper care of the same during the hiring, and. in case of damage by fire or oth- erwise, W. A. Robertson will l)ear the loss or risk." The articles mentioned in the schedule to the agreement consisted of ordinary house- hold furniture. Soon after the execution of the agreement they were delivered at Robert- son's private residence. On the 9th of Janu- ary, 1878, Robertson filed a liquidation i)eti- tion, under whicn a trustee was appointed, who, on the 2Gtli of Fel)ruary. took posses- sion of the furniture comprised in the agree- ment of the 29th of November. 1877. which was still in debtor's house, and remained in possession of it until the 19th of March, 1878, when Lewin Crawcour «& Co. took possession of it. The instalments of rent due in Febru- ary and March had not been paid. On the 22ud of March the trustee obtained from the court of bankruptcy an injumtion restraining Lewin Crawccur <& Co. from removing the furniture, and the injunction was continued from time to time. On the 3nth of Mai'ch the trustee gave notice of an application to the court for an order declaring that the furniture formed part of the property- of the debtor divisible among his creditors, and belonged to the trustee. This appliiation was heard on the 24th of May, 1878. On behalf of the tms- tee it was contended that the hiring agreement was void as against him. because it had not been registered imder the bills of sale act. 1854; and. moreover, that he was entitled to the furniture as being, at the commencement of the liquidation, in the order and disposi- tion of the debtor, with the consent of the tiiie owners. On the latter point a number of affidavits were filed by Lewin Crawcour & 126 WHEN TITLE PASSES. Co. to prove that there is a notorious custom of letting furniture upon terms .similar to those of the agreement of the 2yih of November, 1877, and it was said that this custom ex- cluded tlie opei-ation f)f tlie reputed owner- ship clause. These affidavits were answered by a number of attidavits filed on behalf of tlie trustee, which denied the existence, or at any rate the notoriety, of any such custom. The registrar held that the agreement ought to have been registered as a bill of sale, and that, by rea.son of its non-registration, it was void as against the trustee; and on this ground, witliout going into the question of order and disposition, he made the order asked for, granting a perpetual injunction to resti-ain Lewin Crawcoiu- & Co. from interfering witli the furniture. Lewin Crawcour «)c Co. ap- pealed. AViuslow, Q. C. and Finlay Knight, for ap- pellants. Yate Lee, for trustee. JIOSSEL, M. R.: — I cannot concur in the ground of the registrar's decision. Whether it can be supported on other grounds will be a matter for discussion at a future time. The registrar rested the title of the trustee simply on this, that the agreement was a bill of sale, and that it was void as against the trustee because it was not registered. It appears to me that the agreement was not a bill of sale by Robertson, who is the person by whom a bill of sale must have been executed if it is to be hit by the bills of sale act. Robertson never had any property in the goods. Craw- cour & Co., to whom they originally belonged, agreed to let them on hire to Robertson at a rent to be paid by instalments, with this fur- ther provision, that, until all the instalments had been paid, the pr iperty should remain in Crawcour «& Co.. and that, if any instalment should not be paid when it became due, tliey should be at liberty to retake pos.sessiou of their own goods, and the instalments already paid should be forfeited to them. Tliat does not make the document a bill of sale executed by I{ol)e:'*^son, or a license given by him to take possession of personal chattels as secu- rity for a debt. It is simply one of the terms of the letting for hire and conditional sale of the goods by Crawcour & Co. to him. When tlie liciuidation petition was filed, some instal- ments of tlie rent lieing overdue, Crawcour & Co. attempted to take poss ss on of thdr gocds. It appears to me that they were entitled to do so. and tliat there was no reason for granting the injunction. JAMES, L. J.:— I am of the same opinion. BRETT, L. J.:— It is said that this agree- ment contains a license by Robertson to Craw- cour tfe Co. to take possession of his goods, and that it therefore amounts to a bill of sale witliin sect. 7 of the Ijills of sale act. The only way, however, in which Robertson could have any interest in the goods or any right to deal with tliem was by virtue of the agree- ment itseif. It is said tliat the agreement passed the property in the goods to Robert- .son, and that by it he at the same time mort- gaged the goods to Crawcour & Co., and gave them a lici'use to seize them. Tlie sole ques- tion therefore is, whether the property in the goods passed to Robertson. In my opinion the property did i-ot pass by the agreement. To hold tliat it did Avould be clearly contrary to the expressed intention of the parties. Nor do I think that the property passed by the de- livery of the goods, which was made in ac- cordance with the agreement. In my opinion the propertj could not pass until all the in- stalments had been paid, and that lias not been done yet. The appeal was allo\^ed, with costs fixed at £20. and the cse was referred back to the registrar to try the question of reputed owner- ship. WHEN TITLE PASSES. 127 FIRST NAT. BANK OF CAIRO v. CROCKER et al. (Ill Mass. 163.) Suprfine .Tudicial Court of Massiirliusctts. Suf- folk. Nov., 1S72. Tort a^'ainst Crocker, Smith & Co. for the couversion of 100 barrels of flour. It api)ear- ed on the trial that Ayers & Co., of Cairo, Il- linois, had dealt with defendant conuuission inerc'liants in Boston for some years, sliii)i)in^ them lionr on consisimient, for sale in Bos- ton, and having an open >;eneral consijiinnent account with them. Ayers & Co., on August 2;], 1870, consigned to them some tlour, and drew on them for more than its value, writing them that they would make it all right in the next shipment. The defendants i)aid the draft, Avhicli left Ayers »fc Co. indebted to defendants for about .l^l.ijOO. On August 24. 1870, Ayers &^ Co. shipped the 100 barrels of flom- in dis- pute to Boston, taking a bill of lading "con- signed to shipper's order Boston, Mass.," but on which was written "St. Louis Mills and Blackburn. For Crocker, Smith & Co.. Bos- ton, Mass." They then drew on defendants with bill of lading attached, and discounted the draft, which defendants refused to accept, and it was retiu'ued to defendants with the bill of lading. When the flour arrived in Boston, Septend)cr 12, 1870, it was accompanied by a way bill, on which, tuidei' "Consignees," was written "Crocker, Smith tfc Co., Boston;" and the Hour was received by them and sold, and applied to the account of Ayers »fc Co. Sep- tember 14, 1870, Ayers »S: Co. drew a draft on account of the 100 barrels of flour on (Good- win, Locke & Co. of Boston, in favor of plain- tiffs, and attached to it the bill of lading. The draft was accepted and paid Avhen due. The bill of lading was indorsed in blank when de- livered by Ayers & Co.. but when for^^•al■ded by plaintiffs the words "Deliver within-named flour to Goodwin, Locke & Company, or order," were written over the indorsement of Ayers & Co. A. Churchill and J. E. Hudson, for plaintiffs. A. A. Ranney, for defendants. AjNIES, J. It is manifest that the flour was not placed in the hands of these defendants for the purpose of securing an existing debt, or indemnifying them for any advances that they had made. It was not consigned to them in order that it might be sold, and the proceeds carried to the ciedit of Ayers & Company in general account current. It is true that the consignors knew that they had overdrawn their account, and that they had expressly promised to "make it all right" at the next sliipnu>nt. But that was an executory con- tract. The proposed corri'ction stood wholly in agreement. A general promise to make the matter right was not of itself sutticient to vest in the defendants a title as absolute own- ers, even of the goods forwarded at the next shipment, unless the circmnstances indicated, or at least Avere consistent with, such an in- tention on the part of the shippers. But in tliis ca.se, the consignment and the draft consti- tuted one transaction. The bill of lading and the di'aft came together; and the defendants underst(X)d that the flour was sent to them, subject to a claim of .$.")00 in favor of the hold- er of the draft. They were to receive it upon the trust that they were to pay that amount out of the proceeds. The meaning of tlie trans- action on the part of the shippers was that the defendants were to receive it for that pinpo.se and upon that miderstanding only. It was as if they had said, "You may take this flour and sell it on oui- account, provided you will accept this draft." A bill of lading in- dorsed is only prima f.-icie evidence of owner- ship, and is open to explanation. I'ratt v. Parkman, 24 Pick. 42. This bill of lading was l)iovisional, and was not intended to vest the property in the defendants, or to authorize their taking possession of it, except upon the condition of their acceptance of the draft. Al- len V. Williams, 12 Pick. 207. The act of the defendants, therefore, in tak- ing possession of the flour was wholly unau- th.orized, and gave them neither valid title nor lawful possession. AUen v. Williams, ubi supra. In proceeding afterwards to sell it as if it were their own, and appiopriating the proceeds, they were guilty of a wrongful con- version. A carri(>r may be a mere bailee for the consignor; and where by the tenns of the bill of lading the goods are to be delivered to the consignor's order, the carriei- is his agent, and not the consignee's. Moakes v. Nicolson, 19 C. B. (N. S.) 2il0; Baker v. Fullei', 21 Pick. .^ibS; MeiThants' Nat. Bank v. Bangs, 102 Mass. 2i)l. On the refusal of the consignee to receive the goods tipon the terms and for the purposes for which they were sent, he cannot take them for any other purpose. Shepherd v. Harrison, L. R. 5 II. L. IIG; De Wolf v. Gard- ner, 12 Cush. v.), 23; Allen v. Williams. 12 Pick. 297. The title to the flour therefore re- mained in the shipper, wholly unaffected by tlie consignment. Even in the case of a con- tract of sale, the fact of nniking the bill of lading deliverable to the order of the vendor, Avlieu not rebutted by evidence to the con- trary, is decisive to show his intention to pre- serve the jus disponendi, and to prevent the property from passing to the vendee. Wait v. Baker, 2 Exch. 1; Van Casteel v. Booker, Id. (iUl. The case of a mere consignment to an agent would be of course still stronger. Upon the refusal of the defendants to accept the consignment upon the terms proposed, which refusal was sutflciently manifested by the protest of the draft and the return of the bill of lading, the owners of the flour, Ayers iVc Company, had a right to seek a new consignee, and to make another attemiit to obtain an ad- vance by a draft to be charged against the property. .\n arrangement was accordingly made with the plaintiffs, who discounted their draft of if400 upon the security of the same bill of lading that had been sent to the de- fendants and returned by them. If this bill 128 whp:n title passp:s. •of latliug was rtcliveied to the plaintiffs, in- dorsed in blank by Ayers & Company, (and tlioie is testimony to that effect.) the transac- tion would optMate as a transfer of their title in the flour to the plaintiffs, if such were the intention of the iiarties. As The property was at that time in Huston, it was of course in- capable of actual delivery at Cairo, and the delivery of the evidence of title, Avith tlie in- dorsement ui)on the bill of ladinj;. wa.s all that could be done for the transfer of the property from the general owner to the new purchaser; but it would be effectual for that purpose. Conard v. Atlantic Ins. Co., 1 Pet. 386. 445; Gibson v. Stevens, 8 How. 384; Bryans v. Nix, 4 M. & W. 775, 71)1; Low v. De Wolf. 8 Pick. 101; Gardner v. Howlaud, 2 Pick, .jlt!); Stan- ton V. Small, 3 Sandf. 230; Pratt v. Parkman, 24 Pick. 42. In Gibson v. Stevens, the court say, per Taney, C. .T.: "This rule applies to •every case where the thing sold is, from its oharactej" or situation at the time, incapable of iictual delivery."' To the extent of their ad- vance of money upon the draft, therefore, the plaintiff's would be considered as purchasers, •and they would acquire a special property in the flour for the purpose of protecting the •tbaft. At the time of this transaction, the flour remained in the possession of the de- fendants, and, with the exception of taking possession, nothing had been done on their part amounting to a wrongful conversion of it to their own use. They had not put it out of their power to replace tlie shippers in the enjoyment of their rights. It appears from the report, that, when the bill of lading was forwarded the second time, the name of the firm of Goodwin. Locke & •Company was written over the indorsement •of Ayers & Company. But we do not think that this fact, whether the blank indorsement ■were tilled up after or before the discount of the draft, woiild materially affect the plain- tiff's' rights. The bill of lading was attached to the draft, and the substance of the trans- action was that the draft was discounted upon the securitj' of the merchandise itself. It pur- ports to be on account of the barrels of flour described in the bill of lading. The flour, al- though intrusted to Goodwin, Locke & Com- pany to sell, was appropriated to the specific purpose of the payment of this draft. The bill of lading was put in the plaintiffs' hands to enable them to bold the merchandise as their security, and the discounting of the draft Avas the consideration for the transfer of the property to them. It was convenient so to indorse the bill of lading, as to make it man- ifest that Goodwin, Locke & Company were to receive and dispose of the goods; but they were to do so as trustees and agents of the plaintiff's, and not as proprietors in their own right. They certainly acquired no title in the property until they had accepted the draft, and when that event happened the goods had been dispensed of by the defendants, and had gone into the hands of bona fide holders with- out notice, so as to be bej-ond recall. The ef- fect of this transaction between the plaintiffs and Ayers & Company was that the flour was designated to stand as collateral security for the draft. If the draft had not been accepted, the plaintiffs clearly would not have lost their title to the flour. It is not necessary to hold that the plaintiff's became absolute owners of the property-; it is enough that they had a right of propcMty and possession to secure the payment of the draft, and the right of Ayers & Company as former owners of the specific property had become divested, leaving them only a right in the surplus money which might remain after a sale of the flour and a payment of the draft from the proceeds. De Wolf v. Gardner, 12 Cush. 10, has iu many re.spects a close analogy with this case. There the gen- eral owner of the flour was the plaintiff', and the defendant was a party claiming under the new consignee, and the court held that the plaintiff had parted with the right of property, and could not maintain his action. In Bank of Rochester v. Jones, 4 N. Y. 497, as in the case at bar, the plaintiff's had discounted a draft drawn by the owner of a quantity of flour upon the defendant, who, as in the case at bar, refused to accept the draft, and claim- ed to hold the flour and sold it for the pay- ment of a balance due from the drawer. In- stead of a bill of lading, there had been a carrier's receipt, which the drawer delivered, unindorsed, to the plaintiff bank. The agree- ment was that the bank should hold the flour as security that the draft should be accepted, but with power to sell it if the draft should not be accepted. The court of appeals held that the defendant could not acquire any prop- erty in the flour, except by performance of the condition imposed, namely, the acceptance of the draft; that the transaction between the consignor and the plaintiff' bank gave to the latter a general or special property in the , flour; that the transaction constituted a sale to the bank in trust for the fulfillment of the agreement; that the carrier's receipt, though not indorsed, was sutficient evidence of the plaintiff"s right of possession; and that the statute of frauds was not applicable, as the de- livery of the receipt, in consideration of the discount of the draft, Avas sutficient to trans- fer the title. In legal effect, and for the pur- pose of explaining what is to be done with the merchandise, there can be no substantial diff'ereuce between a bill of lading and a carrier's receipt. ^Ve have then in this case an intent of the general owners of the flour to make use of it as a securitj' for an advance of monej- from the plaintiffs; a delivery of the bill of lading iu pursuance of that intent; and a valuable and executed consideration in the discounting of the draft. The fact that the goods were in the custody of the defendants would not pre- vent this arrangement from having the effect to transfer the title of Ayers «& Company to the plaintiffs. Whipple v. Thayer. 10 Pick. 25; McKee v. .ludd. 12 N. Y. ()22. Whether it should be regarded as a sale, a ple;1ge or a mort- WHEN TITLE PASSES. 129 gage, there was a sufficient deliveiT to give to tlie plaintiffs a special property, which they could enforce bj- suit against any wrongdoer. They liad a right to transfer the property, sub- ject to the same trusts upon which they held it themselves, to their correspondent or agent in Boston, and it may well be that, if the draft had been accepted by Goodwin, Locke .& Company before the flour had been sold and placed out of their reach, they woulil have been the proper parties to have brought this action. Rut the transfer to them for that rea- son wliolly failed to take effect, and they ac- quired no title to the flour specifically. If they had accepted the draft before the flour had been sold to a bona fide purchaser, the case would have been almost exactly like Allen V. Williams, above cited. That was a case in which the consignee of merchandise refused to accept the draft which accompanied the bill of lading, and took possession of the VAN ZILE SEL.CAS.SALES — 9 merchandise, claiming as in this case the right to do so in order to secure a balance due to him from the consignor. The court held that a new consignee could maintain trover against him. Our conclusion then is, that at the time of the sale of the flour by the defendants, the plaintiffs had a right and property in it, which, whether geneial or special, and whether as purchasers, trustees, pledgees or mortgagees, gave them a right of possession as against all wrongdoers; and that the defendants had no title whatever and were mere wrongdoers. The fact that the draft has been paid by the new consignees does not prevent the plaintilTs from maintaining the action for the benefit and protection of the acceptors of the draft, who without fault of their own have been deprived of the security upon which it was discounted. Judgment for the plaiutiffs. 130 WHEN TITLE PASSES. MACOMBER el al. t. PARKER. (13 Pick. IT.".) Supreine Judicial Court of Massachusetts. Middlesex. Oct. 20, 1832. Replevin for three kilns of bricks attached by the defendant on several writs against Jc seph Evans. Plea, property in Evans. lU'pllcatlon, property in the plaintiffs. Trial before Shaw, C. J. It was proved that Iluntinj; & Lawrence had a certain brick-yard in Cambridge, origi- nally leased by A. Binney to .T. AVilson, who assigned the lease to Hunting & Lawrence. On the 1st of March, 1829, the following agreement was made between Hunting «& Lawrence on one part and Evans on the oth- er:— ";Memorandum of an agreement &c. showeth, that said Evans has agreed to make or cause to be made from eight to ten hun- dred thousand good merchantable brick in the brick-yard at Cambridge «fec.; said Evans agrees to hire the men and board to the best advantage, to perform the manufacturing of said brick, and said Evans agi-ees to give in his time and services in making said brick; and said Hunting & Lawrence agree to at- tend to selling of brick, purchasing of woo'd and all necessaiy materials for the manufac- turing, collecting the bills &e. to the best advantage, and after the brick are made, and tlie labor and board of the men are paid, and all materials and tools of eveiT kind are paid for, and the said Evans paying to said Hunting «fe Lawrence sixty cents per thou- sand for each and every thousand brick made or claj- sold, as rent therefor, then the parties agree to share the profits or loss, as the case may be, one half each; said Evans agrees to pay every attention to have the brick made in the best manner and in good season for making brick; said Hunting & I>awrence shall have full power to retain said Evans's pa.t of the brick or money col- lected or debts due for brick &e., in their possession, to the amount of all sums of mon- ey now due from said Evans and such other sums of money, goods &c., as they may from time to time advance him; all of which the parties agree to perform according to the true intent and meaning." No lease of the yard was given to Evans, and Hunting testified that Hunting & Law- rence expected to secure to themselves by the foregoing contract, a lien on the bricks to be manufactured in pursuance thereof, for the payment of any balance that miglit be due them. '1 he plaintiffs offered to prove, that under such contracts for the manufacture of bricks, it is customary for the owners of yards to re- tain all in their hands and account with the n-.akers of bricks for their share of the prof- its, after the sales are made and the proceeds collected. TliLs evidence was rejected by the court. On the 3d of July 1829, Hunting ,.V: Law- rence stopped payment and assigned all their property, including the brick-yard and all their interest therein and property thereon, to the plaintiffs, for the benefit of the cred- itors of the assignors, and on the same day delivered possession of the yard and all the property thereon to the plaintiffs, in presence o/ Evans; and the plaintiffs then and there- appointed Evans their agent, by a writing as follows:— "You will please take the charge and care of all the property and effects in and about the brick-yard &c., the said prop- erty having been this day assigned to us cen counted according to the stipulation between the parties to that effect. And if the counting was intended by the parties to precede the completion of the sale, then undoubtedly the objection must prevail. The evidence, however, does not support this objection, but rather shows that the sale was i:]2 WHEN TITLE PASSES. considered as complete aud absolute at tlie time when tbe settlement between Evans and the plaintiffs was made; or at least the jury would be warranted by the testimony of Hunting', to find that such was the int<'n- tion of the eontractinj^ parties. Tlie whole bricks were estimated at 370 tliousand. Ev- ans sold his sliare in the whole and received pay in account, and a balance was due to the plaintiffs which was to be paid for in carting the bricks, so far as that might go. It is true the bricks were to be counted. l)ut that was to be done to enable the parties to como to a settlement of their accounts, and not for the purpose of completing the sale. Taking the whole of Hunting's testimony tog-etiier, this, we think, is the reasonable inference to be draAvn from it. If the bricks had been actually delivered, there could have been no question that the sale would have been com- plete, notwithstanding the bricks were to be afterwards counted. The general principle is. that where any operation of weight, meas- urement, counting or the like, remains to be performed, in order to ascertain the price, the quantity or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete until such operation is performed. Brown, Sales, 44. But where the goods or commodities are ac- tually delivered, that shows the intent of the parties to complete the sale by the deliveiy, and the weighing or measuring or counting afterwards would not be considered as any pait of the contract of sale, but would be taken to refer to the adjustment of the final settlement as to the price. The sale would be as complete as a sale upon credit before the actual payment of the price. Nothing can be found in any of the numerous cases on this point, which militates against this position. We come, then, to the second objection to the sale, nanielj% that there was no deiiveiy. In answer to this objection it was said, as Evans agreed to cart the bricks and did ac- tually cart one load after the sale, this may be considered as a delivery of a part under an entire sale, and so according to the au- thorities would amount to a constructive de- livery of the whole. Perhaps this may be so, but we do not think, under the circumst.inccs of this case, that any actual delivery was necessary. The plaintiffs were in fact as much in possession of the bricks as Evans was; he was their agent; the bricks were remaining in their yard, and under the cir- cumstances proved, a delivery would be al- togetlier an unmeaning ceremony. The plain- tiffs accepted the bricks, gave orders to Ev- ans to cart them, and in all respects treated them as their property. The sale, therefore, amounted to a transfer, and was so consider- ed by the parties. Then it was objected, that the sale was void by the statute of frauds; but as here was a delivery of a pai-t, that alone woiild take the case out of the statute. But that which took place was equivalent to a deliv- ery of the whole, and therefore the statute of frauds can have no application. Whether this sale was void as against creditors, is a question not now to be considered; nor have we considered the question, whether the plaintiffs, before the sale, had a lien on the brick as security for the balance due them from Evans, since our opinion as to the sale renders this question immaterial. These questions may be raised on another trial, but at present we couiine ourselves to the two questions reserved by the report. As to one of these questions, namely, that touching the sale, evidence may be offered by the defend- ant which may have a material bearing; but as the evidence is reported, we are all of opinion that the plaintiffs have made out a prima facie case, and the nonsuit must be set aside and a new trial granted. WHEN TITLE PASSES. iy3 JEXXEK V. SMITH. (L. R. 4 C. P. 270.) Coimnon Ploas. April 30, 1S(J9. Aetiou for prnods bargained and sold and jjoods sold and delivered. Pleas: Never in- debted, payment, and payment of 8s. 2d. into court. Replication, taking issue, and dam- ages ultra. The cause was tried before Brett, J., at the sittings at Westminster after last Micli- aelmas term. The facts were as follows: On the 14th of October. lSi;7. the plaintiff, who is a hop-merchant in Loudon, met the defendant, a malster of Devizes, at Weyhill Fair, Hants. The defendant wished to buy of the plaintiff four pockets of Carpenter's Sussex hops which the plaintiff had there; but, as the plaintiff had already sold two of them, he proposed to sell the defendant in lieu of them two pockets of Thorpe's, of which he showed him a sample, offering to let the defendant have the two pockets of Carpenter's at £9 per ewt. (the price of that day's fair being £!> 9s.), if he would take two pockets of Thorpe's at £7 15s. per cwt. The plaintiff at the same time or shortly after informed the defendant that the last- mentioned two pockets were lying at Prid -i; Son's warehouse, Kentish Buildings. South- wark, and agreed that he should have them upon the same terms as if they had been in bulk at the fair, that is, that he should be at no expense for warehousing or carriage. The defendant consented to purchase the four pockets upon these terms, and took away Avith him the two pockets of Carpen- ter's, but requested that the two pockets of Thorpe's should not be sent until he wrote for them. The plaintitf had at this time three pock- ets of Thorpe's hops at the warehouse of Prid & Sou. On the 21st of October, the l)laintiff's son went to the warehouse, and instructed the warehouseman to .set apart two of the three pockets of Thorpe's for the defendant; and the warehouseman thereup- on placed on two of them, numbered re- spectively one and three, what is called a "wait order card," that is. a card upon which was written, "To wait orders." and llie name of the vendue. No alteration, how- ever, was made in the warehouse books; and the plaintiff, the original depositor, still I'emained liable for the rent. On the 4th of November, the plaintiff sent the defendant an invoice as follows, at the same time inclosing a draft for acceptance: — Mr. S. Sinitli. BdusIt of Cliar'i's Jtnuer: 2 iiooketsi Sussex hops (CurpeuttT, 1^G7), No. 2 ... 1 cwi. 2 qr.s. 2(> lb.s. 4 ... 1 cwt. 2 qrs. i:{ iba. 3 cwt. 1 qr. a lb.s. (ffi £9 per cwt. £30 2s. 8d. 2 poc'veta Sussex hop-: (Tlmrpe, ISii"), No. 1 ... 1 cwt. 2 ijrs. 27 lb.s. 3 ... 1 cwt. qr. 21 lbs. 2 cwt 3qrs.201b8 @£7158.p3rcwt. £22 I3.s. lOd. £5.' Ills. ea. The two last po. kete ol hop.s fiie lying to your order. On the 8th of November the defendant wrote to the plaintiff as follows:— Sir, — I have returned your bill unsigned; but, as I have never receivf^d the two pock- ets of hops or heard any thing about them, I concluded you had not thought of sending them, and have made an excliange for some malt, and shall not retpiire them. As I will never sign a l)ill. I will pay, as was agreed, in February, the weight of the two Carpen- ter's. The defendant subsequently paid the price of the two pockets which he had received, all but a small balance which was covered by the payment into court. It was objected on the part of the defend- ant that, as to the two pockets of Thorpe's hops, there was no contract binding within the statute of frauds, no delivery or ac- ceptance, or part payment, and no evidence of goods bargained and sold. For the plaintiff it was insisted that the whole was one bargain, and couseiiuently that there had been a part delivery and part payment, and that the property in the whole four pockets passed by the contract. The learned judge ruled that it was one entire contract, and that, therefore, there had been a part delivery so as to make a con- tract binding within the .statute of fr.iuds. that the plaintiff" could not rely upon the part payment, because the defendant, at the time of making the payment, repudiated the bargain as to the two pockets in ques- tion; that, though there was a binding con- tract, the property did not pass thereby, in- asmuch as the contract was to deliver two out of a larger number of pockets of Thorpe's hops equal to sample, the price to be deter- mined according to the weight; and that there had been no sufficient appropriation afterwards to pass the property, because Prid & Son never bound themselves to hoM for the defendant instead of for the plain- tiff. He thereupon nonsuited the plaintiff, reserving him leave to move to enter a ver- dict for £22 13s. lOd., the court to draw in- ferences of fact. Morgan Lloyd, in Hilary term last. ol)tain- ed a rule nisi accordingly. H. T. Cole, Q. C. and Bromley showed cause. Morgan Lloyd, in support of the rule. KKATIX0. April 30, 18S8. No further payments were made. (2) A con- tract made between himself and one Elizabeth Hass, .July 2, 1889, by the terms of which he sold conditionally to her an undivided one- half interest in the mill for the sum of $565. This also included the property in controversy. By the terms of this agreement $52..50 was paid at its date, the balance to be paid in monthly installments of $25. The title of the l)i'oix;rty was to remain in the plaintiff" until fully paid for. October 29, 1889. Mrs. Hass paid $25, and on December 14, 1889, she paid $115.19. These were all the payments made on that contract. The parties took possession of the mill under these contracts. It appears that the mill and property described in these contracts were partially destroyed by fire, and that the defendants, on April 28, 1890, pur- cliased the property in controversy from James R. Hass, the husband of Elizabeth Hass, and who acted as her agent; he giving the defendants a bill of sale, the consideration expressed in it being the sum of $05, which defendants paid. Mrs. Hass was in posses- sion of the mill property at the time the bill of sale was given. The defendants took the saw frame and caniage and appurtenances, placed it in their mill at Petoskey, where it was bolted to the floor, and used by them in their business. Defendants' counsel objected to the introduction of these contracts in evi- dence, claiming that they did not tend to show title in the plaintiff. They were admit- ted. This constitutes defendants' first claim of error. The plaintiff's counsel contended that the agreement with Lille M. Messier is an execu- toiy conti'act or agreement to convey upon condition that payments were made as pro- vided, and that, the vendee having defaulted in the payments, the title to that undivided one-half interest never passed to her; that, by the express provisions of the contract with Elizabeth Hass, that undivided one-half in- terest never passed to her, and that, therefore, the title to that part of the pi'operty in con- troversy here still remained in him at the time the suit was brought. The court below so held, and, we thinli veiy properly. IMie contract with Mrs. Messier does not purport to be a conveyance of the title of the mill property, but an agreement that, upon certain conditions thereafter to be performed by her, he was to convey the title to her. These con- ditions were not performed, and therefore the title to that undivided one-half interest had not passed out of the plaintiff. In the contract with Mrs. Hass the plain- tiff" expressly reserved the title in himself un- til full payment was made. These payments have not been made in full, so that the title to all of the mill property remained in the plaintiff at the time the defendants purchased from Mrs. Hass, through her husband. There was a considerable amount yet due to the plaintiff under both these contracts at the time the suit was brought; and the plaintiff was permitted to testify upon the trial, under de- fendants' objection, to the value of the prop- ertj- left at the mill, covered by these con- tracts, and not taken by the defendants. De- fendants' counsel bases his second claim of er- ror upon the admission of this testimony. There was no error in admitting it. It ap- pears from this testimony, and the plaintiff" had the right to show the fact, that the value of the whole proiiertj', including that taken by defendants, was no greater than tlie amounts remaining unpaid under these contz'aets. The defendants' third claim was that the WHEN TITLE PASSES. 137 proiiorty tnkeu by them, and put in their mill at I'etos-kcy, was so annexed to the realty that an action of replevin could not be maintained, as its removal from the mill would be an in- jury to the realty to wliich it was attached. The court below niled that the property had not become so attached. We think the court was correct. It was property beloni;ing to the plaintiff, taken by tlie defendants, and by them put in use in their mill. It was proper- ty capable of beneticial use, if set up in anj- other place. No agreement is shown upon the part of the owner that the defendants might so attach it; and the defendants, under the circumstances liere stated, cannot be permitted to malce such a claim. Personal proiierty may become a part of real estate, where atlixed to it, if such was the understanding between the parties; or it might remain personal es- tate, if the understanding to that effect was clearly indicated, or fairly deducible from the circumstances. Manwaring v. Jenison, 01 Mich. 117, 27 N. W. 890. and note; Rogers v. Brokaw. 2.") X. J. Eq. 490; Blancke v. Rogers, 20 N. .T. Eq. 503; Voorhees v. McGinuis, -18 N. Y. 278. Here the attempt is made to take the property of another, and to attach it to the realty, without the consent of the owner. and then to assert that it is a part of tlie real- ty. The court below very pi-operly licld tliat this could not be done. The court below, upon the presentation of the whole case, entered judgment in favor of the plaintiff. Complaint is made by defend- ants' counsel as to the form of this judgment. It appeared upon the trial that altliough the otticer stated in his return that he had re- plevied the proi)erty. and delivered it to the plaintiff, the fact was that at the time of the service of the writ the officer did not remove the property from defendants' mill, or disturb it therein, but, by an arrangement between the parties themselves, it was agreed that the property should remain there pending the suit, luitil its value was determined. A bill of ex- ceptions was settled in tlie case, but the cause was tried Ix^fore the court without a jury, and there is nothing in the record showing that findings of fact or law were a.sked or made. The attention of the trial court, as appears from the record, was not called to the form of judgment entered; and it is raised in this court, for the first time, by an assign- ment of error. The judgment of the court be- low must therefore be affirmed, with costs. The other justices c-oncm'red. 138 WHEN TITLE PASSES. HOVEY et al. v. GOW. (45 N. W. 9S5, 81 Mich. 314.) Supreme Court of Michigan. June 0. 1890. Error to ciicuit court, Mnskeson county. De Lontf & O'Hara, for ai)ijellHn t Smith, Nim.s, Hoyt & Erwin,for appeile cs CAHILL, J. Thi.s was an action of replevin commenced br Hovey& jMcCracken, to re- cover a quantity of lumber, wliicli in March, 1S89, liad been seized by the defendant as city treasurer of Muskegon, to satisfy a claim for taxes assessed aj^ainst A. P. & W. E. Kelley Company of Cliica^o, on cer- tain personal property of theirs situate in Muskegon, and liable to assessment there. The amount of the tax was something- over .f; 1,000. The plaintiffs claim to be owners of the lumber in suit, and their claim is based upon the following contract made between them and A. P. & W. E. Kellev Company: "Muskegon, Mich., Nov. 20. 1888. A. P. & W. E. Kelley Co. have this day bought, and Hove.vand McCrack- en have sold, one million feet selected Eaglehead lumber, now in cross-piles on McCracken, Hovey & Co.'s docks, in Mus- kegf)n, and one and one-half million feet additional to be cut from their Eaglehead logs, the number to be sorted and cross- piled as to quality same as above, that being sixty per cent, of the better lumber in the log. liovey and McCracken guar- anty to sort lumber, as follow's; Forty per cent, of the coarsest by itself, and they are to retain it. The remaining sixty per cent, by it.self for A. P. & W. E. Kelley Co. At the close of the present sawing season, C. S. Montague is to estimate lumber on dock, and determine as to the jjercentage as to sorting as above required. If sorted within two per cent, of above require- ments, either way, then this contract is to be in force; if more than two per cent., it is at the oi)tion of tiie A. P. & AV. E. Kelley Co. whether they take it or not; but they are to decitle and notify the sellers within five (.j) daysaftersaid estimation is made. The lumberis to be sawed and ti-immed in a good and workman-like manner, and cross piled on McCracken, Hovey & Co. docks, and held until the spring of 18S9 at the sellers' risk ; all the lumber to be cross- piled loose, and the piles to have good pitch ; all the i)iles to be covered and tied down, to shed snow and rain. The seller agrees to commence sawing at once on the one and one-half million feet yet to be sawed, and continue on same till the close of the present sawing season. In case the whole amount is not cut at that time, they will commence at the opening of navigation, in the spring of ls89, and complete the saw- ing of the same. The purchasers buy the above-mentioned lumber on the following terms: The lumber is to be settled for by the sellers' draft on the purchasers at such time, but not later than December 1st, 1888, as the purchasers may elect, not ex- ceeding six months' time from December 1st, 1888; but the price must be eighteen and fifty one-hundredths dollars ($18.50) net per thousand feet, and half tally to the seller, December 1st, ISSS. Final settle- ment to be made when lumber is shipped, in spring of 1889. Itisdistinctly agreed that this lumber belongs to the sellers until shi]»i)ed, in spring of 1889. and when so shipped it is to be free of any insurance charges or taxes that may be assessed against said lumber. All mill-culls to be taken out when shipped, and lumber to be tallied by C. S. Montague. It is further mutually agreed between the sellers and purchasers that, in the event of the loss of any portion of this lumber by fire, the pur- chasers may elect whether tlie trade is to be considered off for that portion of the lumber so destroyed, and the money re- funrunswick. etc.. Co. v. Hoover, 95 Pa. St. 508; 1 Benj. Sales (Corbin's Ed.) § 44G; 21 Am. Law Reg. (N. S.) 224, note to Le^vis v. McCabe. In the most recent case in the supreme court of Pennsylvania, Mr. Jus- tice Sterrett said: "A present sale and de- livery of personal property to the vendee, coupled with an agreement that the title shall not vest in the latter unless he pays the price agreed upon at the time appointed therefor, and that, in default of such pay- ment, the vendor may recover possession of the property, is quite different in its effect from a bailment for use, or, as it is some- times called, a lease of the property, coupled with an agreement whereby the lessee may subsequently become . owner of the prop- erty upon payment of a price agreed upon. As between the parties to such contracts,, both are valid and binding; but, as to creditors, the latter is good, while the for- mer is invalid." Forrest v. Nelson, 19 Re- porter, 38, 108 Pa. St. 481. The cases cited show that the Pennsylvania courts hold the same doctrine with respect to bona fide pur- chasers as to creditors. In this state, and in nearly all of our sis- ter states, conditional sales — that is, sales of personal property on credit, with delivery of possession to the purchaser, and a stipula- tion that the title shall remain in the ven- dor until the contract price is paid— have been held valid, not only against the imme- diate purchaser, but also against his cred- itors and bona fide purchasers from him, unless the vendor has conferred upon his vendee indicia of title beyond mere posses- sion, or has forfeited his right in the prop- erty by conduct which the law rega'ds as fraudulent. The cases are cited in Cole v. Berry. 42 N. J. Law, 308; Midland R. Co. V. Hitchcock. 37 N. J. Eq. 550, 559; 1 Benj. Sales (Corbin's Ed.) §§ 437-460; 1 Smith, L. C. (8th Ed.) 33-90; 21 Am. Law Reg. (N. S.) 224, note to Lewis v. McCabe; 15 Am. WHEN TITLE PASSES. 141 Law Tvov. 3S0, "Convorsioii by Purchase." The (loctnne of the courts of Peuusylvauia is fouuded upon the doctrine of Twyne's Case, 3 Coke, SO, and Edwards v. Harbon, 2 Term R. 587, that the possession of chat- tels under a contract of sale without title Ms an indelible badge of fraud, — a doctrine repudiated quite generally by the comls of this country, and especially in this state. Runyon v. Groshon, 12 N. J. Eq. SG; Broad- way Bank v. McElrath, 13 N. J. Eii. 24; Mill- er V. Pancoast, 29 N. J. Law, 2."iG. The doc- trine of the I'ennsylvauia courts is disapprov- ed bj' the American editors of Smith's Lead- ing Cases in the note to Twyne's Case, 1 Smith, Lead. Cas. (8th Ed.) 33, 34; and by Mr. Landreth in his note to Lewis v. McCabe, 21 Am. Law Reg. (N. S.) 224; but, neverthe- less, the supreme court of that state, in the latest case on the subject, — Forrest v. Nelson, decided February 10, 1885, — has adhered to the doctrine. It must therefore be regarded as the law of Pennsylvania that, upon a sale of personal property with delivery of posses- sion to the purchaser, an agreement that title should not pass until the contract price should be paid is valid as between the origi- nal parties, but that creditors of the pur- chaser, or a purchaser from him bona fide by a levy under execution or a bona fide purchase, will acquire a better title than the original purchaser had,— a title superior to that reserved by his vendor. So far as the law of Pennsylvania is applicable to the transaction, it must determine the rights of these parties. The contract of sale between the ]\larvin Safe Company and Schwartz was made at the company's office in Philadelphia. The contract contemplated performance by the delivery of the safe in Philadelphia to the carrier for transportation to Hightstown. When the terms of sale are agreed upon, and the vendor has done everything that he has to do with the goods, the contract of sale becomes absolute. Leonard v. Davis, 1 Black, 470; 1 Benj. Sales, § 308. Delivery of the safe to the carrier in pursuance of the contract was delivery to Schwartz, and was the execution of the contract of sale. His title, such as it was, under the terms of the contract, was thereupon complete. The validity, construction, and legal effect of a contract may depend, either upon the law of the place where it is made, or of the place where it is to be performed, or, if it relate to movable property, upon the law of the situs of the property, according to cir- cumstances; but, when the place where the contract is made is also the place of per- formance and of the situs of the property, the law of that place enters into and be- comes part of the contract, and determines the rights of the parties to it. Frazier v. Fredericks, 24 N. J. Law, 162; Dacosta v. Davis, Id. 319; Bulkley v. Hanold, 19 How. 390; Scudder v. Union Nat. Bank, 91 U. S. 400; Prlti'hard v. Norton, 100 U. S. 124, 1 Sup. Ct. 102; [Morgan v. New Orleans, M. & T. R. Co., 2 Woods, 244, Fed. Cas. No. 9,804; Simpson v. Fogo, 9 Jur. (N. S.) 403; * Whart. Confl. Laws, §S 341, 345, 401, 403, 418; Parr v. Brady, 37 N. .7. Law, 201. The con- tiact between Schwartz and the conqiany having been made and also executed in I'enn- sylvauia by the delivery of the safe to him, as between him and the company Schwaitz's title will be determined by the law of Penn- sylvania. By the law of that state the con- dition expressed in the contract of sale, that the safe company should not relinquish title until the contract price was paid, and that on the failure to pay any of the installments of the price the company might resume pos- session of the property, was valid, as be- tween Schwartz and the company. By his contract, Schwartz obtained possession of the safe, and a right to acquire title on pay- ment of the contract price; but until that condition was performed the title was in the company. In this situation of affa'rs, the safe was brought into this state, and the property became subject to our law.s. The contraijt of Norton, the defendant, Avith Schwartz for the purchase of the safe, was made at Hightstown, in this state. The property was then in this state, and the con- tract of purchase was executed by delivery of possession in this state. The contract of purchase, the domicile of the parties to it, and the situs of the subject-matter of pur- chase were all within this state. In every respect the transaction between Norton and Schwartz was a New Jersey transaction. Under these circumstances, by principles of law which are indisputable, the construction and legal effect of the contract of purchase, and the rights of the purchaser under it, are determined by the law of this state. By the law of this state, Norton, by his pur- chase, acquired only the title of his vendor, — only such title as the vendor had when the property was brought into this state and became subject to our laws. It is insisted that inasmuch as Norton's purchase, if made in Pennsylvania, would have given him a title superior to that of the safe company, that, therefore, his pur- chase here should have that effect, on the theory that the law of Pennsylvania, which subjected the title of the safe company to the rights of a bona fide purchaser from Schwartz, was part of the contract between the company and Schwartz. There is no provision in the contract between the safe company and Schwartz that he should have power, under any circumstances, to sell and make title to a purchaser. Schwartz's dispo- sition of the property was not in conformity with his contract, but in violation of it. His contract, as construed by the laws of Penn- sylvania, gave him no title which he could lawfully convey. To maintain title against the safe company, Norton must build up in himself a better title than Schwartz had. He can accomplish that result only by virtue 142 WHEN TITLE PASSES. of the law of the jurisdiction in which he acquired his rig:hts. ♦ The doctrine of the Pennsylvania courts, that a reservation of title in tlie vendor upon a conditional sale is void as against creditors and bona flde purchasers, is not a rule affix- ing a certain construction and legal efCect to a contract made in that state. The legal ef- fect of such a contract is conceded to be to leave property in the vendor. The law acts upon the fact of possession by the purcliaser under such an arrangement, and makes it an indelible badge of fraud, and a forfeitui-e of the vendor's reserved title as in favor of creditors and bona flde purchasers. The doc- trine is founded upon consideration of public policy adopted in that state, and applies to the fact of possession and acts of ownersliip under such a contract, without regard to the place where the contract was made, or its legal effect considered as a contract. In MacCabe v. Blymyre, 9 Phila. 61.5, the controversy was with respect to the rights of a mortgagee under a chattel mortgage. The mortgage had been made and recorded in Maryland, where the chattel was when the mortgage was given, and by the law of JNIaryland was valid, though the mortgagor retained possession. The chattel was after- wards brought into Pennsylvania, and the Pennsylvania court held that the mortgage, though valid in the state where it was made, would not be enforced by the courts of Penn- sj-lvania as against a creditor or purchaser who had acquired rights in the property after it had been brought to that state; that the mortgagee, by allowing the mortgagor to re- tain possession of the property, and bring it into Pennsylvania, and exeicise notorious acts of ownership, lost his right, under the mortgage, as against an intervening Pennsyl- vania creditor or purchasei-, on the ground that the contract Avas in contravention of the law and policy of that state. Under substantially the same state of facts this court sustained the title of a mortgagee un- der a mortgage made in another state, as against a bona flde purchaser who had bought the property of the mortgagor in this state, for the reason that the possession of the chattel by the mortgagor Avas not in con- travention of the public policy of this state. Parr v. Biady, 37 N. J. Law, 201. The piiblic policy which has given rise to the doctrine of the Pennsylvania courts is local, and the law which gives effect to it is also local, and has no extraterritorial effect. In the case in hand, the safe was removed to this state by Schwartz as soon as he be- came the purchaser. His possession, under the contract, has been exclusively in this state. That possession violated no public pol- icy, — not the public policy of Pennsylvania, for the possession was not in that state; nor the public policy of this state, for in this state possession under a conditional sale is regarded as lawful, and does not invalidate the vendor's title unless impeached for actual fraud. If the right of a purchaser, under a purchase in this state, to avoid the reserved title in the original vendor on such grounds- be conceded, the same right must be extend- ed to creditors buying under a judgment and execution in this state; for by the law of Pennsylvania creditors and bona flde pur- chasers are put upon the same footing. Nei- ther on pi'inciple, nor on considerations of convenience or public policy, can such a riglit be conceded. Under such a condition of the law, confusion and uncertainty in the title to property would be introduced, and the transmission of the title to movable prop- erty, the situs of which is in this state, would depend, not upon our laws, but upon the laws and public policy of sister states or foreign countries. A purchaser of chattels in this state Avhicli his vendor had obtained in New York, or in most of our sister states^ under a contract of conditional sale, w'ould take no title; if obtained imder a conditional sale in Pennsylvania, his title would be good; and the same uncertainty would exist in the title of purchasers of property so circum- stanced at a sale under judgment and execu- tion. The title was in the safe company when the property in dispute was removed from the state of Pennsylvania. Whatever might impair that title — the continued possession and exercise of acts of OAvnership oA'er it by ScliAA'artz, and the purchase by Norton— oc- curred in this state. The Ifegal effect and consequences of those acts must be adjudged by the laAV of this state. By the laAV of this state it Avas not illegal nor contrary to piiblie policy for the company to leave Schwartz in possession as ostensible owner, and no for- feiture of the company's title could result therefrom. By the laAV of this state, Norton, by his purchase, acquired only such title as Schwartz had under his contract with the company. Nothing has occurred which by our laAV AA'ill giA-e him a better title. The judgment should be reversed. WHEN TITLE PASSES. 143 LASSIXG y. JAMES. (No. 1.5,(337.) (40 Pac. 534, 107 Cal. 348.) Supreme Court of Califoruia. May 28, 1895. In bank. Appeal from superior court, city and county of San Francisco; A. A. Sander- son, .Tudjre. Action by J. F. Lassing against J. G. James ' on a conti-act to pasture and feed cattle. From a judgment for plaintiff and an order ; denying a motion for a new trial, defendant i appeals. Affirmed. I W. C. Graves, for appellant. Edward P. I Cole and T. C. Law, for respondent. GAIIOUTTE, J. The plaintiff, Lassing, was j a farmer, and the o\\ner of several fields of | growing alfalfa. He was also the owner of nine stacks of hay, amounting to about 2,700 tons, which hay was situated in these various fields. Defendant. James, was the owner of a large number of cattle, and was desirous of securing both pastiuage and hay upon which to feed them. Thereupon a written agreement was entered into between these two parties, which, among other things, con- tained the following covenants: "That the said party of the first part (Lassing), in consideration of the covenants, promises, and agi'eements on the part of the said party of the second part (James), hereinafter contain- ed, hereby covenants, promises, and agrees to and with the said party of the second part that the said party of the tirst part will take onto his inclosed alfalfa fields cattle aggregat- ing about 800 to 1.200 head, to be pastured at 90 cents per head per month. If any cat- tle should remain on said pasture any frac- tional part of any month, pasturage shall only be paid proportionately, and, wliL-n the pas- turage becomes exhausted as not to fatten said steers, and some hay is fed. then the price is to be on the pasturage as the quantity of hay is fed. allowing 28 pounds of hay for a full 24 hours" feed for each head; for instance, if 14 pounds of hay is fed per day, then 45 cents per month per head is to be paid, and pro rata more or less in that proportion, as the case may be. until the cattle are entirely confined to the feeding pens, and $o per ton is to be paid for each and every ton of hay fed between this day and April 1, ISSJO. And the first party agrees to fence off around each bunch of stacks a sufficient number of large feeding pens, and sufficiently strong to hold the cattle without fear of them getting away; also, to furnish a good, comfortable, dry house for the use of the men engaged in feeding and caring for said stock; also, to furnish a good supply of water troughs in each pen, with pipes, etc.. from the tanks, wells, and pumps, to be equipped and furnished in good order, and sufficient to plentifully water all of said cattle at all times, and. if it is found necessa- ry to save hay while feeding, feeding racks are to be made around the fence. Cattle may be taken out and others put in at any time. And the said party of the second part. In consideration of the said covenants, prom- ises, and agreements on the part of the said party of the first part hereinafter contained, covenant, promise, and agree to and with the party of the fu-st part that the said party of the second part will, on turning cattle on said alfalfa fields, pay $2,500 as the fii-st pay- ment on the hay, and at the end of each and every month pay the amount of all the pa.sturage used dm-ing the months just past. On or before November 1, 1889. both of the par- tics hereto is to cut off ten feet from the end of an average stack, and weigh it, and aver- age the balance by that, and, as soon as the amount is found, one-half of all the money it comes to is to be paid, and seventy-five days thereafter one-half of the balance due is to be paid, and at the end of the time all is to be paid." In pursuance of the aforesaid agreement, James placed his cattle upon the fields of Lassing, where they remained about six weeks, when he removed them therefi'om, and declined to be further bound by the terms of the contract. This action was brought by Lassing to recover the value of the hay at $.> per ton, and also the price of the pasturage as agreed upon. The plaintiff credited defend- ant with the payment of .S2..JUU, made at the time the contract was enteretl into, and also allowed him the further sum of §3,423, paid to plaintiff by an insurance company for a loss of a portion of the hay by fire, plaintiff having taken out a policy thereon after James re- moved his cattle from the premises. In ad- dition to the denials of the answer, defend- ant set out a cross complaint, claiming dam- ages to the amount of about §6.090 for in- jury to the cattle by reason of plaintiff's breach of agreement in the manner in which he cared for them. The cross complaint was held to be imsupported in the evidence by the trial com't, and judgment went for plaintiff. This is an appeal from such judgment and from the order denying a motion for a new trial. There is no question raised by appellant. James, as to the amount allowed by the court for pasturage of the cattle, but the chief bone of contention appears to be as to the amount of hay that James really purchased; and that brings us to a construction of the agreement itself. It is contended, upon the one side, that James was only to pay for the hay used in feeding his cattle; while it is in- sisted, upon the other, that James bought the entire nine stacks of hay, and that his liabil- ity to pay therefor was incurred whether or not the hay was actually fed to the cattle. I'pon the face of the contract there seems to be some inconsistency as to its provisions in this regard. In one part it is provided that •five dollars per ton is to be paid for each and eveiT ton of hay fed between this date and April 1. 1890"; while the last clause pro- vides in terms for the measuring of the en- tire nine stacks of hay for the purpose of de- termining the number of tons therein, ani 144 WHEN TITLE PASSES. further pnivides for partial pavments there- for, aud the respective times when such pay- ments are to be made, and also fixes the date of final payment of the balance due. The cont"act is inartiticia'.ly drawn, and from all points indicates the handiwork of a laynuin. At the same time the inconsistency or repn.ir- nancy present in the two portions of the con- tract cited is more seemiu? than real. These two provisions are certainly not du-ectly cou- flictiuET. James, as indicated by the first clause quoted, agreed to pay for all the hay used pi-ior to April 1. ISiHX The second clause quoteil is simply broader, and reaches fur- ther, for by that clause he agrees to pay for all the hay in the nine stacks. Section 1S.j8 of the Code of Civil Procedure, in speakin? as to the Interpretation of contracts, provides that: "'Where there ai-e several provisions or particulars, such a ccnsTruetion is. if possi- ble, to be adopted as will give effect to all." — and by vh-tue of this canon of construction we avoid a seeming contradiction in these two provisions, and allow them both to stand. There are also provisions of the Civil Code which, when applied to the facts here pre- sented, overthrow appellant's position as to the true constiiietion of this conti-aet. Sec- tion KMO provides: "If the terms of a prom- ise ai-e in any respect ambiguous or uncertain, it must be inten)reted in the sense in which the promisor believed at the time of making it tliat the promisee undei'stood it."' If James* promises of payment, when taken to- gether, are ambiguous and uncertain, then, under the oral evidence of Lassing. there is no question but that both parties nnelerstood that James was buying all the hay at §5 per ton. Lassing not only believed such to be the contract, but James, the promisor, be- lieved Lassing. the promisee, so understood it. These conditions are conclusively shown by Lassiug's testimony, and James, when up- on the witness stand, in no way offered con- tradictory evidence. Section lf>j4 of the Civ- il Code, provides: "In cases of uncertainty not removed by the preceding rules, the lan- guage of a contract should be interpreted most sti'ongly against the party who caused the uncertainty to exist. The promisor is presumed to be such paity. * * *'* James is the promisor, and, by virtue of this sec- tion of the Code, he is presumed to be the party who caused the uncertainty: but. be- yond this, he was the party who actually caused it, for he prepared the contract, and therefore it should be interpreted most strongly against him. Again, section IWO provides: "When through fraud, mistake or accident, a written contract fails to express the real intention of the parties, such inten- tion is to be regarded, and the erroneous parts of the writing disregarded." We think the provisions of this section may be prop- erly invoked in behalf of respondent's con- tention. James prepared the written con- tract in San Francisco, and brought it to Las- sing at his home for him to sign. At that time the contract did not contain the provi- sion providing for the measurement of the hay. and the partial payments therefor ac- conling to the number of tons found to be in the stacks, but it coutaiued a provision pro- viding for tlie payment of all the hay used, at the rate of $5 per ton. The contract thus presented to Lassing he refused to sign, in- sisting that James should take all the hay, or none. Thereupon James, in compliance with Lassiug's demands, erased from the con- tract as presented the provision as to paying for the hay used, and added thereto the pro- vision as to taking all the hay. It now ap- pears that a provision of general similar im- port to the one erased still remained in another portion of the contract; but the cir- cumstances all show that it was an over- sight upon the part of both parties in not also striking that provision from tne eouiract, and it is evident that it was omitted to be done pm-ely through mistake. It was not intend- ed to be left there, and, tested by section HMO. should be disregarded in the interpreta- tion thereof. The facts and circum-stances surrounding the making of this contract appear in the record by the uncontradicted evidence of the respondent. Lassing. Appellant, in his reply brief, strenuously attacks the rulings of the court in admitting this evidence. It is claim- ed that such parol evidence was inadmissible as tending to contradict, add to. and vaiy the terms of the written contract. But we are clear to the contrary. The contract has not been changed by Lassiug's evidence. Noth- ing has been added thereto. No term has been nullified or even modified. The sec- tions of the Code we have quoted relating to the construction and iuteii)retatiou of con- tracts contemplate the introduction of parol evidence. For it is only upon the introduc- tion of such evidence that it can be ascer- tained whether or not the principles of law embodied in those sections are pertinent and applicable to the facts of any particular case. We conclude that appellant agreed to take all the hay simated in the nine stacks. The clause of the contract as to the measurement of the hay and the payment therefor is as follows: "On or before November 1, 18S9. both of the parties hereto is to cut off ten feet from the end of an average stack^ and weigh it, and average the balance by that, and. as soon as the amount is found, one-haif of all the money it comes to is to be paid, and seventy-five days thereafter one-half of the balance due is to be paid, and at the end of the time all is to be paid." Appellant contends that this clause, standing alone, is simply an executory agreement for the sale and purcha.se of all the hay in the nine stacks, and that, consequently, the title to the hay has never passed to James. It is in- sisted that the contract was executory in this, that the hay was never measured and the amount ascertained, as provided in the conti-act. and that the measurement and de- WHEN TITLE PASSES. 14; termination as to the amount were condi- tions precedent to the passing' of the title. We are clear that the afireement to ascertain the number of tons of hay at some future time by weijrht and measurement in no way affected the question as to the present pass- ins of the title. All the hay in the nine stacks was purchased, at the rate of .'?.") ijer ton. The number of tons was immaterial as bearin;;,' upon the question of a valid trans- fer. The final determination as to the num- ber of tons was only material as fixinj; the amount of money to be paid. The subse- quent measurement and ascertainment of the exact number of tons could in no way fur- nish any grounds for the rejection or repu- diation of the sale by either paitj*. The hay was identified and the price per ton agreed upon at the date of the contract, and these only were the essentials nece.ssary to consti- tute a valid sale, for the sale was made re- gardless of the amount of the hay, and thus necessarily became complete and perfect when the contract was entered into and part payment made thereunder. In Klackwood v. ]\acking Co., 76 Cal. 212. 18 Fac. 248. a case involving the principle here discussed, this court s-aid: '"Some of the American cases are not in accord with the rule laid down by Mr. IJenjamin in this, that, if tiie goods are identified, it does not matter that weigh- ing or measuring is nece.ssary to ascertain the price or the quantity, and this seems to be the law in California, for the Civil Code contains the following: 'Sec. 1140. The title to personal property sold or exchanged pass- es to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from oth- er things or not."' After James repudiated the contract, removed his cattle from the fields, and left the hay in the stacks, appel- lant contends that it was the duty of Las- sing to sell the hay to the best advantage possible, and. if it failed to bring $.j per ton, then the right accrued to recover from James the difference. In a case like the present, where the title to personal property has pass- ed, there is no obligation resting upon the vendor to resell. In many cases he would have no right to resell, and possibly would be guilty of an act of conversion if he exer- cised any such dominion over the property; but upon the facts of this case, under any principle of law which appellant might ad- vance, Lassing had the right to choo.se his remedy, as between suing for the entire pur- chase price or selling the property and bring- ing an action for the difference in case the sale resulted in a less. Hunter v. Wetsell, 84 N. y. 5.J.5; Dustan v. McAndrew. 44 X. Y. 72; Van Horn v. Rucker, 84 Am. Dec. .53. It is insisted that Lassing so materially failed to cany out the covenants of the con- tract upon his part to be performed that James was justified in repudiating the con- tract and withdrawing from under its provi- sions. Of course, such cojiduct upon the VAK ZrLE SEL. CAS. SALES — 10 part of James could only be justifiey any absence of feereon. under Code. § l.j.">0. which provides that all payments made for intoxicating liq- uor sold in violation of our liquor law shall be held to have been received in violation of law. and against equity and good con- science, and to have been received upon a valid promise of the receiver to pay to the person fui'nishing such consideration the sum thereof. The first qtiestion which arises is, were the sales made in this state'/ From what we have already stated it would appear that the sales were each and all made in Nebraska. But plaintiffs contend that, while the defend- ants' agent may have had no authority to do more than take their orders for the goods, yet there is testimony tending to show that the licpiors were all shipped subject t<» their approval, and that the title to the goods did not pass until the liipiors were received and tested by them. The testimony on this point is as follows: Witness George W. Silvers said, in substance, that Gilmore. the agent, said: "If the goods isn't satisfactory after you receive them, you can send them back to Omaha." And Silvers told him (Gil- more) if the goods were not as he said they should come back. "The goods came, and we inspected them.— gauged them. We had a government gauge there. — a thermometer we called a "tester.' We tested the goods before we paid the freight. Gilmore said. 'If you re- ceive the order all in good sh.ape. and the goods are satisfactory, and you need any more, and I am not around, why. send your orders in to the house, and they will be filled.' " This witness further testified that when the goods came to the depot at Omaha they were taken by a drayman from the freight house, and delivered at plaintiffs' place of business, the drayman paying the freight in the first instance, and afterwards collecting it from the plaintiffs. Witi:e:'s further testified that one bill of goods which plaintiffs ordered shipped to Des Moines, to a customer of theirs at that place, was re- turned, and credit asked of defendants the'-e- for. and that defendants gave them a small discount on one of their bills. He further said: "If they were not satisfactory, they were to be returned. That was the contra -t. We never returned any from Ottumwa." Witness Wind testified that Gilmore said: "If his goods were not as represented we had the privilege of returning them. We told him we wanted to examine the goods after they came, and see if they suited us. He .«aid we had that privilege.'' "We had a gauge or whisky tester that we used. We took out the bung, and took a little out. and used the tester. We told Mr. Gilmore our method of examining it. He said it was sat- isfactory." Witness Silvers also testified that within three or fotu* days after giving the order the plaintiffs received a bill for the goods, and entries were then made on the plaintiffs' ledger of the amount of the bill. It is an elementary proposition of law. need- ing no citation of authority in its support, that title passes in the sale of personal prop- erty when from all circumstances sm-round- ing the transaction it is evident that the i)ar- tjes to the sale intended it to pass. It is wholly a question of intention to be arrived 148 WHEN TITLE PASSES. at from the contract and the acts and con- duct of tho parties thereto. In the absence of all stipulations and conditions iu the con- tract, the title will be presumed to pass, when the parties live at different places, when the soods are delivered by the seller to a transportation company for carriage to the buyer, subject to the seller's lien or ri^ht of stoppajje in tiansitu. This is certainly the rule where the buyer is to pay the freight. It is also a general rule that the buyer has a rijiht to inspect unascertained yoods to de- teiMuiue whether they are such as are bar- jiained for or not. Xewm. Sales. § '2~>2; Benj. Sales (Hennett's Ed.) pp. GIJ'.MJIXJ; Hirshhorn V, Stewart, 40 Iowa, 41S. This ri.iiht of in- spection, however, does not of itself post- pone the passing of the title. It simply au- thorizi^s a rescission of the sale in the event the goods are not as couti-aeted for. So that the re.-;ervation of the right to inspect the goods by the plaintiffs in this case does not of itself indicate that title was not to pass until the goods were tested, for it gives to plaintiffs no greater rights than they would have had under the law without such reser- vation. It is claimed that by the terms of the con- tract the title was not to pass until the plain- tiffs were satisfied, after testing the liquors, that they were the kind ordered. The law has made a somewhat refined, yet no less obvious, distinction between an option to pur- chase if satisfactory and an option to return if not sritisfaetory. In the one case title will not pass until the option is determined, and iu the other case the property passes at once, subjrct to the right to rc-clnd and return. The former may be said to be a conditional sale, and the latter has bsen denominated a ""sale or return." Hunt v. Wymau, lUO Mass. IDS; Foley v. Felrath (Ala.) 13 South. 485; Newm. Sales. § 310; Buswell v. Blckndl. 17 Me. 344; Benj. Sales (Bennett's Ed.) p. 509, and cases cited. It is also well settled that the rule that title does not pass so long as anything remains to be done to the goods to ascertain their value, quality, or (piaility. is only applicable to cases of constructive de- livei-y. Bogy v. Rhodes, 4 G. Greene. 133. Under this rule the right reserved to plain- tiffs to inspect and test the goods after they came into their actual' possession would not operate to postpone the transfer of title, but mei-ely gave tliera the right to rescind the ton tract and return the goods. See, also, in this connection. Foley v. Felrath, supra, and cases therein cited; 2 Kent, Comm. 49(5. We are satisfied from the fact that the drayman, who must be considered as plaintiffs' agent, jiaid the freight on these licpiors, took them from the carrier, and delivered them to plain- tiff's, and from the further fact that the plain- tiffs credited defendants with the liquors as soon as they received the bills for them, which was in advance of the delivery of tlie goods, with the undtn'standing that they were to have credit for such a-s might be returned, that both parties intended title to pass when the goods were delivered to the railroad com- pany at Omaha, Neb., for transportation to Ottiunwa; and that the sale was not one on trial or on approval, or if satisfactory to plaintiffs, but rather a completed sale, witli an option in plaintiff's to return them if they did not meet the test plaintiff's proi)osed to give them. Our conclusions tind support in the following cases: f^ngs v. Priest, G.j Iowa, 2;'.2, 21 N. W. .".SO; Whitlock v. Workman, 1.") Iowa, 351; Tegeler v. Shipman, 33 Iowa, 1!>4,— and are not in conflict with Gipps Brew- ing Co. V. De France (Iowa) 58 N. W. 1087, and Tolman v. .Johnson, 43 Iowa. 127. The following cases from other states are directly in point: Schlesinger v. SUatton, II. I. 578; Mack V. Lee, 13 K. I. 293; Gill v. Kaufman, It) Kan. 571; McCarty v. Gordon, Id. 35; Snider v. Koehler, 17 Kan. 432; Dolan v. Green. 110 Mass. 322; Abberger v. Marrin, 102 Mass. 70; Boothby v. Plaisted, 51 N. H. 43(5. If the sales were made in Omaha, then they were not unlawful in such sense as that recovery can be had for money paid thereon, although there is evidence in the record that defendants' agent knew plaintiff's had no per- mit to sell liquors in this state. — which they were at that time required to have to make lawful sales. It is no doubt true that if a nonresident makes sales of liquors in another state to a resident of this state, for the pur- pose and intent of enabling the purchaser to violate the liquor laws of this state, or par- ticipates or assists in a design on the part of the purchaser to dispose of them unlawfully in this state, his complicity in the illegal scheme will prevent him from recovering the price in an action against the purchaser. Davis V. Bronson, 6 Iowa, 410; AVhitloi-k v. Workman, 15 Iowa, 351; Bank v. Curreu, 3() Iowa, 555. And it is also true that, while mere knowledge on the part of the vendor that the purchaser intends to violate the law may not vitiate the sale, yet it is a fact from which the jury might infer an intent to vio- late such law. Tegeler v. Shipman, supra. Such unlawful participation in the illegal de- sign of the piu'chaser will defeat an action by the seller to recover the purchase price of the liquors sold on the grounds of public policy. But will it enable the purchaser to recover the amount of payments made on the conti-act under section 1.5.50 of the Code? We think not. The sale in such case is not un- lawful under this statute, for. as we have already seen, the nonresident has a perfect right to make the sale in his state, and i-e- cover the purchase price. His act is mdaw- ful because the policy of the law forbids his participation or assistance in the violation of our laws by the purchaser of the liquors, and on the grounds of public policy he cannot recover. The statute referred to gives the purchaser the remedy of recovering back his payments Avhen the sale is of intoxicating liquors in violation of the licjuor laws of this state. It is clear, then, that if the matter WHEN TITLE i'ASSES. 149 had bpou submitted to tho jury, and it liad fcnind that defond:ints. iu malciiif,' Ihi- salo in Omaha, inti ihUmI thereliy to emibh> phiiiitiffs to violate the law of this state, there could be no recovery under section 15o() of the Code. It must be remembered in this con- nection that all purchasfs and payments thereon for which recovery is sought in this action were made prior to the enactment of what is known as the "Wilson Bill," and it sliould further b? borne in mind that under *the decisions of the United States supreme court in Brown v. Maryland, 12 Wheat. 41D; Bowman v. Railway Co.. 125 U. S. 4(;.j, 8 Sup. Ct. GS9. 1(K)2; and Leisey v. Hardin, 13."5 U. S. IOC). 10 Sup. Ct. OSl,— sales like those in (piestion. if made in Omaha to a resident in this state, were perfectly lawful in and of themselves. See, also, Richards v. Wood- ward, llo Mass. 285. The statutes of this state regulating and licensing the traffic in liquors therein were void, and of no effect, so far as they interfered' with commerce be- tween the states. Lyng v. Michigan, 10 Sup. Ct. 72.">. So that defendants had the right to sell their liquors for importation into this state without reference to our police regula- tions. The sales iu and of themselves were not uulawful. I.iet it be conceded, however, for the pur- pose s of this case, that the sales of the liquor took place at Ottumwa, and that payments were made for it there. What, then, is the state of the case? Defendants insist that if this be true, then, as the sales were made in the original package in which the litpiors were imported, section 1.~».30 has no applica- tion to them, because it is a regulation of commerce between the states, and is imcon- stitutional under the cases from the supreme court of the United States before cjuoted. We are well satisfied that defendants' contention is correct. Indeed, it is practically conceded by the plaintiffs" counsel. But they insist that as soon as the barrels W'ere opened for the purpose of testing the property became iuconiorated into the general mass of prop- erty in the state, and subject to the police regulations adopted to preserve the health and morals of the community. That section l.").")0 was adopted to restrain the traffic in in- toxicants, and to aid in the general enforce- ment of the general liquor laws of the state, in virttie of the police power lodged in the state, cannot be doubted. And, if this be true, it is a direct restraint and interference upon trade and traffic in liquors, and. under the decisions before quoted, it is. or was prior to the enactment of the Wilson bill, iniconsti- tutional so far as it relates to commerce be- tween the states or the inhabitants thereof. This doctrine finds support in the cases of State V. Coonan, 82 Iowa. 4<)0, 48 N. W. 021, and State v. Corrick. 82 Iowa, 4.51, 48 X. W. SOS. What is said to the conl/ary in the case of Connolly v. Scarr, 72 Iowa,22;J,88 N. W.(^l, which was decided prior to the ca.se of Leisey V. Hardin, must be considered as overruled. It is our duty to follow the decision of the highest tribunal in this country— the final ar- biter on these grave constitutional questions — without reference to the fact that there is a strong dissent to the doctrines announced by that court, which many of us think announces the better rule. The question, however, is of little importance at this time, because of the enactment of the Wilson bill, which for- tunately gave to the states the right to exer- cise the police powers vested in them, with- out reference to the interference the exer- cise of those powers might have upon inter- state commerce. The question yet remains, did the drawing of the bung in the barrels in which the liquors were shipped into the state have the effect claimed for it by the appellants? AVe think not. The barrel was opened in order that a small quantity might be taken from it and tested, — not used, — in order to determine whether the liquors would be returned or not. We do not think that the inspecting or test- ing of an imported article to determine whether it shall be returned has the effect to make it a part of the general mass of prop- erty in the state. Plaintiffs, according to their theory, tested it to see if they would accept it, and make it their property. And if the mere act of testing made it theirs, there was no necessity for the test, because it l)ecame theirs by the act itself. We do not think they want such a rule applied in this case. In Leisey v. Hardin, supra, it is said: "Un- der our decision in Bowman v. Railway <^'o., supra, they had the right to import this b;'er into the state, and in the view we have ex- pressed they had the right to s; 11 it. by whic-li act alone it would be comi.dngled \Mth 'he genei'al mass of property within tlie st;ite. T"p to that point of time, we bold that, in t'jo absence of congressional permission to do so, the state had no power to interfere by seiz- ure." This court is committed to the doctrino that the size or form of the package has very little to do with the question we are now con- sidering. The point has been made to turn rather upon whether the liquors themselves \^ere imiiorted or not than upon the form or inviolability of the package. Collins v. Hills, 77 Iowa, 181, 41 X. W. .~>71: State v. Coonan, siqira. We are well satisfied with the con- clusions reached by the lower court, and the judgnieut is affirmed. 150 WHEN TITLE I'ASSES. GIBBS V. BENJAMIN. (45 Yt. 124.) Supreme Court of Yeriuont. Montpelier. Nov., 1872. *Book account. The facts reported by *12o tlie auditor sutticieiitl}' apjiear in the opin- ion of the court. The court at the March term, 1871. Rutland county. Wiikiolek, J., presiding, rendered judgment on the report for the i^iain tiff for the price of the wood sued for. E.Kcep- tions by the defendant. R C. Abell, for plaintiff. Joseph Potter and Edgerton & Nicholson, for defe-idant. REDFIEr.D, J This action is book account to recover the ])rice of cord wood alleged by the phiintiff to have been sold the defendant in April, 1S69. Jlost of the wood was ])iled on the margin of Lake Champlain. on plaintiff's farm, in Benson, in this state. Two small par- cels of the wood were on the opj^osite shore of the lake. About a week after the negotiation (which plaintiff claims was a sale), the wood was carried away by tne tiood of the lake, and lost. The report of the auditor gives a ininute detail of every incident of the negotiation, and submits them to the court to interpret their le- gal effect. *127 *The parties met at the instance of the plaintiff, and inspected the wood; after some discussion, it was agreed that the defend- ant should inirchase the wood at i?;^.r)0 per cord, the defendant insisting that a pin cousideriitions, and subject to the judgment of judicial triers. Amonji the cases applica- ble to this class are Dajifiett v. Johnson. 49 yt. 345, and Manufacturing Co. v. Brush, 43 Yt. 528. To which of these classes does this case belongV The answer is not difficult. The facts are very distinct. The plaintiff's own <>vidence is cogent that the defendant was extremely shy, and would enter into no ar- rangement except upon the terms of doing as h(^ liked about keeping the machine after testing it. His mind was fixed immoval)ly :hat no chance should be left to force the article upon him unless he finally chose to take it, and the special stipulation was spe- <-ifically drawn and executed to meet this purpose and thereby induce the defendant to concur in an arrangement. Had it been the intention that he should be liable in case the performance of the machine were such, in the opinion of a jury, as to deserve his ap- proval, it would have been quite unnecessarj' to get up the special writing. The original printed warranty would have answered the jmrpose. The transaction Avas one belong- ing to the first class, and the circuit judge Avas mistaken in deeming it otherwise. The question concerning notice is now in order. The circuit judge very properly in- formed the jury that the defendant was not at all answerable for the space of time dur- ing which the plaintiffs agents occupied themselves in trying to make the machine work well, and that the time chargeable to him only began when they quit, and from thence ran on, whether he was in fact enti- tled to a reasonable time thereafter, or to only two days. But he further stated that the defendant was bound to see that Price had actual notice, if such was the case, that the machine did not work to his satisfaction; and, further, that he was boiuid to see that Price had this notice within two days after the agents quit, in case the figure "2" was in the printed warranty, or, if it was not in, then within a reasonable time after that event. This instruction was not proper on any theory. It held that, in case the figure "2" was in the warranty, the defendant was bound, not only to conqilete his own trial of the machine during the first interval of two days, but also to see to it that Price, within the .same period, had actual notice that it did not work well, if such was the result of the test. Now, it is very obvious that more than the whole two days may have been nec- essary to reach Price and notify him. But this is not all. The printed warranty, what- ever its influence, if any, here, appropriated the whole of this period to the business of a test bj' the defendant, and postponed the necessity of starting to give notice till the expiration of it. It may be expedient to add .-i word in this branch of the controversy. According to the terms, as we have seen, of the printed war- ranty, the purchaser, in case of the failure of the machine to work well during the si)ace allowed for trying it, must give immediale notice to the selling agent. This provision for immediate notice does not mean the shortest time possible in which notice could be given. The terms must receive a sensible interpretation — an interpretation favorable to the general object and consistent witi? the surrounding conditions. It would be neces- sary to make allowance for the engagements of the parties, the distance between them, the facility of communication, and any other incidents having a bearing. \o greater dis- patch would be implied than such as would be fairly just and reasonable in view of all the circumstances. Attwood v. Emery, 1 C. B. (N. S.) 110; Staunton v. Wood. ItJ Q. B. G.3S; Roberts v. Brett, 11 H. L. Gas. 337; Toms V. AYilson, 4 Best & S. 442-445; Mas- sey V. Sladen, L. li. 4 Exch. 13; Tennant v. Bell, 9 Q. B. GS4; Spenceley v. Robinson, 3 Barn. & C. G58; Thompson v. (iibson. 8 Mees. & W. 281; Waddell v. Reddick, 2 Ired. 424. Complaint is made that the recovery was excessive, even if the plaintilf were entitled to prevail, and the point is that by the terms of the transaction three notes were fo be given, and that the time of one only had ex- pired when the suit was commenced. It is hardly worth while to go into that question now. From the pleadings and facts in the record, it is not easy to discover the theory on which the case proceeded; but hereafter the real ground of action may be distinctly indicated. The measure of damages, as Avell as the course of proof, would be alfected by the form of claim asserted on the transac- tion. Benj. Sales (1st Am. Ed.) § Ttj5. and notes. The other 'points are of no importance. The judgment must be reversed, with costs, and a new trial granted. The other justices concurred. 15li WHEN TITLE PASSES. PLATT V. BRODERICK. (08 X. W. 579, 70 Midi. 577.) SuprcMiie Court of Michigan. June 8, 1888. Error to circuit court, Berrien county; An- dreAV J. Siuitli. .Judjie. Assumpsit by CJeorfjo W. Piatt, assignee of the Waiter A. Wood :Mo\vinj,' & Reapiug Ma- chine Company, asain.st Edward Brcxlerick. for the price and value of a mowiiig-macliine. This action was brouglit in a justice's court, wliere the defendant liad judgment for costs. Tlie plaintiff ajjpealed to the circuit court, where he recovered judgment for ij^iij before a jury. Defendant assigns error. MORSE, J. The plaintiff declared against the defendant in justice's court for the price and value of a mowing-machine. !f(>5. sold by him, as agent of the Walter A. Wood Mowing & Reaping Machine Company, to said defend- ant, which said claim or account of .$<>j wa.s assigned by said machine company to him be- fore the commencement of this suit. The de- fendant had judgment in the justice's court for costs. The plaintiffi appealed to the circuit court for the county of Berrien, in which court, before a jury, tlie plaintilt recoveretl judgment for $65. The plaintiff claimed, upon the trial, that the machine was sold to the defendant in the sununer of 1886. The terms of sale were agreed upon on a certain Saturday in the month of .Inly. Broderick w-as to take the machine heme that day. An agent of the machine company, one Kuearl, was to go out to Broderick's place on the following Mon- day, and set the machine up, and stay until it -worked satisfactorily. If it did not suit the defendant, he was to bring it back Mon- day, and receive pay for brmging it in. If it worked all right to his satisfaction, Broderick was to keep the machine, and pay .$65 for it, — one-half October, 1S8(). and the balance Octo- ber, 1887, with interest from October, 1886. Under this arrangement, defendant took the machine home with him Monday morning. Kneaii testifies he went out to Broderick's farm to fulfill his part of the agreement. He found that defendant had set up the machine, and was at work with it. He made some changes in the setting of the machine. It was tried in all kinds of grass growing on defend- ant's place, and worked well. Knearl stayed about three hours, when Broderick told him he "liked the machine first rate," and he need not stay any longer. He then Avent back to town. A few days after, the defendant brought the machine back. The plaintiff refused to re- ceive it, and defendant ludoaded it in the yard of Mrs. Downey, about 20 feet from plaintiff's premises. The defendant's version of the transaction was that the price of the machine was agreed upon at .fOO, with a year's time, without interest. If the machine suited him, he was to take it out to his farm, and try it until he was satisfied. There was no time mentioned when he should bring it back if he did not like it; nor was there any limit as to time of trial. Did not tell Knearl that he was .satisfied with the machine, or anything of the kind. The machine did not do good work. Did not suit him, and he returned it on Thurs- day. Did not use it except on Monday, when he mowed about three acres. The testimony shows that some time in October, 18S6, the l)laintiff demanded of the defendant a settle- ment for the machine and notes, in accordance with the terms of the agreement; it being his custom to take notes when time was given. Demanded notes several times afterwards, but defendant always refused to give them, or pay for file machine. The circuit judge instructed the jury that in setting up the m.-ichine on IMonday, before Mr. Knearl arrived at his place, the defendant violated the contract of sale, and was bound to take the machine, and must pay for it; and that the only question to be determined by the jury was tlie price of the machine,— whether it was .$65, as claimed by the i)laiutiff, or .$60, as contended by the defendant. This iustructiori was erroneous. It does not appear that the setting up of the machine by the defendant had anytliing to do with the working of the same, or that any complaint was made by the plaintiff or Knearl because of such setting up of the machinery by defend ant. The issue was a simple one. If the plaintiff's theory of the contract was correct, and defendant, after using the machine on Monday, told the agent he was satisfied with it, and did not return it on that day, the plain- tiff was entitled to recover the price of the machine. If the defendant's version of the contract was the true one, the plaintiff could not recover, and the verdict should have been for the defendant. Under the agreement, as testified to by both parties, it was immaterial wl:ether the machine worked well or not. The defendant was to be satisfied with it; and, if it did not suit him, he had a right to return it, on Monday if plaintiff's theory was accepted, and upon the day it was returned if the agree- ment was as claimed by Broderick. Machine Co. V. Cochran, 31 N. AV. 561; Mamitacturing Co. V. Ellis, .35 N. W. 842; Machine Co. v. Smith, .50 Mich. 565, 15 N. W. 906. One other objection need only be mentioned- It was not competent for either the defendant or Lawrence to testify that Knearl stated to Lawrence what the bargain was between him and defendant. If Lawrence was present when the bargain was made, he could testify to what was said between the parties, in re- buttal of Knearl's te.stimony. But a stiitement made by Knearl after the contract was com- l)leted, not in the presence of plaintiff, could not be received in evidence except in impeach- ment of Knearl's testimony; and, in such case, Knearl's attention must be called to such state- ment, which was not done, as appears by the record. The judgment will be reversed, and a new trial granted. SHERWOOD, C. .1., and CHAMPLIX and CAMPBELL, .TJ., concurred. LOXG. J., did not sit. WHEN TITLE I'ASSES. 1^ UNITED STATES ELECTRIC FIRE- ALAK.M CO. V. CITY OF BIG RAPIDS. (4.3 X. W. 1030. 78 Micb. 07.) "Suprpuie Court of Midiigan. Nov. 15, 1S89. Appoal from circuit court, Mecost:i county. Action of assumpsit brought by tiie Unit- I €d States Electric Fire-Alaim Company of | Evart, Midi., against the city of Big Itapids, to recover the price of an electric lire-al.irm, put lip by the plaintiff for the (iefendant un- der contract. Juiigment for deleiulant, and phiintiff appeals. M. Brown and Austin Herrick, for ap- pellant. Frank Damon, for appellee. i CHAMPLIX, J. This cause was tried before the court without a jury, who, on re- quest of the jiaities, made a tiniling of fa ts and law, from which it appears that the city ■of Big Rapids has a volunteer fire depart- ment, consisting of six fire companies, l\\e liose companies, and one hook and ladder company, and the firemen who compose the j various comiKluies reside within a raJius of thre -fourths of a mile from the coun-house in sail city. On the Gth day of June. 18:^7, the common council of the city of Big Rapiiis appointed acommittee of five members of the council to consider the various propositions for a fire-^darm submitted to it, and tiiose which should be submitted to them there- after. On the 24th day of June, 1887, the L'nited States Electric Fire-Alarra Comjiany of Evart, Mich., submitted to said cummitlee the following proposition in writing: "Office of United States Electric Fire-Alarm Co. of Evart, Michigan, June 24th, 18>7. Alder- man Comstock, Chairman Fire-Alarra Com- mittee, Big Rafiids, Mich. — Dear Sir: Tn case it is decided to use the court-house tower instead of building a bell tower, we will fur- nish the following proposition to erect a large fire-alarm bell, tower bell striker, alarm cir- cuit, etc., as follows: One 3,000-poun(l bell and liangers, one medium sized tower bell striker for electrically striking the alarm and location of fires on the bell, and to be operat- ed and controlled from the water-worlds pump house; the bell and striker to be placed in the court-house tower, and one manual re- peater located at the water-worUs pump house for automatically operating the tower bell striker, and ca' able of repeating the number of any one of thirty difierent fire-alarm box- es, as may be desired, together with all the poles, wires, insulators, brackets, battery, etc., nec'ssary for constructing line and elec- trical alarm circuit, connecting repeater at water-woiks with tower beil striker in the tower; s;iid j^oles to be good sound cedar, of sufficient length to carry the line over all other electrical wires now erected; the line to be of the very best (juality of Xo. 12 gal- vanized telegraph wire, well insulated on good glass insulators, secured to the poles, and all joints well soldered; also all the necessary battery and minor altacliments for the successful operation ol the same, — all com- plete and ready for service for the sum of $1,248. It being indefinite as to the actual weight of a bell, although intended to be cast of a given weight, it is proposed to make an add;tion or reduclion in the price given at the rate of lij| cents per pound, according to the variation of tiie weight of the bell from the proposed weight. The company agrees to do all of the above work, and complete the con- tract in about thirty days from the date of signing the contract, and your honorable bi)dy shall thoroughly test the working of the same within thircy days after the cotnpletion of said work, and if found to be satisfactory, and according to contract, accept and pay for same. In case the manual repeater is left from the list of apparatus and a signal key used, the above figures will be reduced to .Sl,liS. It is further proposed that in case a 2.oUiJ-pound bell is used the above figures will be reduced to.Sl.Uti3. The bell foundry guaranty all bells, and we guaranty all of our machinery as to perfection of operation, and against breakage caused by fiaws or de- fects in castings. All of which is respect- fully submittid. UxiJ KD States ELKcruic FiKE- Alarm Co., S. A. Chase, Sec'y." Al- derman Comstock, one of the committee, afterwards i-e[iorted to a meeting of the com- mon council on July 5, 1887. that tiie com- mittee had neirotiated for a fire-aiarra with a 3,0u0-poi:nd bell, and asked the council to sltle on some location for it to be jil.iceth to fstaiul in proper manner; poles to be set in streets and alley's to points hereinafter named at inter- section of (irand Traverse and Warren av- enue, unless permission is granted to set them on private property, or to cross same with wire. One pole to be set at intersec- tion of Grand Traverse street with Warren avenue; thence along Warren avenue to Ik-mlock stieet; thence along Ilemldck street to River street; thence along liiver street to iMa{)le stieet; thence across j\Ia[)le street to alliv between [Stewart and Ives avenue; tiience s»utiierly along to Elm street; thence to court-liouse tow^er. All work to be done in a good and workman-like manner, and work done and contract to be perfoi'ined witliiu forty days from the date liereof. The tone of bell to be second A below middle C on tlie organ. Said lirst party to liave thirty days after contract is completed to test bell and working apparatus, and, in case same is satisfactory as per contract, then they agree to j)ay said second })arty the sum of twelve liundred and forty-eight dollars therefor, or as per specilications as to weight, t'sic. Said tirst party agrees to furnish and put in ceil- insr and lioor in tower." In pursuance of said contract plaintiff put in for the defend- ant a fire-alarm, including a bell weighing 3,20C) pounds, and tiie total amount of the plaintiff's demand against the city for the Hre-alarm system, including the bell, is ."i?!,- 294.99. The bell was put in the court-house tower, and the tone of the bell is about E fiat. On September 24, 1887, plaintiff noti- fied the common comcil that tlie system put in by it was complete, and requested the council to fix a time when they would test the same, and the council fixed the 1st day of October, 1887, at 9:30 o'clo k a. m., as the time when such test would be made. The common council assemliled accordingly for the purpose of testing the lire-alarm, and the plaintilf, by its secretary, S. A. Chase, made a thorough test of the working of said fire-alarm system, and the tone and volume of sound of said fire-alarm bell then in the court-house tower. The members of the council also tested the tone and volume of the bell from the different Hre-alai'tn boxes. Another test of the fire-alarm was afterwards made in the nigiit-time, by turning in an alarm from one of the boxes, said council be- ing then in session in their council chamber, and hstening thereto. A still further test was made on the9tli of October, 1887, it be- ing on the oce;isiou of a fire in the citv. On the lOth of October, 1887, the council con- sidered the question wliether the said fire- alarm system and said fire-alarm bell were satisfactory to said common council, and whether said common council should accept and pay for the same, and took action there- on, and then and there considered that said fire-alarm system and bell were not satisfac- tory to said common council, and they I'e- f used to accept the same, or any part there- of, for and in behalf of the city, and tliey then and there caused a record of their deter- mination to not accept the same, and di- rected the recorder of the city to notify the plaintiff of such action. TIih recorder sent to the j)laintitf by mail the notice following: "IJig Kapids, October 13, 1887. Electric Fire-x\.larm Co., Evart, Mich. — Gentlemen: At a meeting of the common council last Monday night they rejected the fire-alarm bell as not satisfactory. Yours, etc., S. A. Stambaugii, Recorder." The notice was re- ceived by the secretaiy of the company on the 15th of O. tober, 1887, at Evart, Mich. During the sauie month the common council adopted the following resolution: "Whereas, the city of Big Kapids has made a contract witli the Electric Fire-Alarm Comi)any of Evart, Michigan, the condition of such con- tract being that said fire-alarm company fur- nish a bell weighing 3,000 pounds, and all apparatus for striking the same, material and work to be satisfactory to the city: therefore, resolved by the common council of tlie city of Big liapids that the tests of the same have not been satisfactory; and it is further re- solved that we do not aceept the same, as it is not satisfactory according to contract."" The common council of the city has never in fact accepted said fire-alarm system, and said fire-alarm bell winch is a part thereof, and the city lias not used the same for any pur- pose whatever. The fite-alarm bell is not suitable for the purpose of a fire-alarm for the reason that its tone and volume of sound is such that said bell cannot be lieard easily by the fir;> .ueu wnen within their houses or places of business, or when engaged in anythinnf de- manding th ii- attention in any iiart of the city. The court further found that the bell put up by the plaintiff was the exact kind of a bell contracted for by the defendant, ex- cept as to the tone thereof; that the fire- alarm system furnished by the plaintiff foi the defendant, and all work done by it in putting up said fire-alarm system, and thft materials furnished therefor, were furnished and done in accordance with the terms of saiil agreement, except the tone of the bell, which was about E fiat, instead of second A below the miildle C on the organ; that de- fendant never objected to the bell on account of the difference in tone; that the bell was properly manufactured, was of the best bell metal, had been properly testetl by com] etent experts before it was put up by the plaintiff, and was in every respect a first-cia^s bell; that bells of the weight of the one in (pies- tion are not manufactured of the tone men- tioned in said agreement, but neither one of the [)arties knew this fact at tlie time said agreement was made. As soon as the plain- tiff found it out it notified said C. AV. Cora- stock, wlu) was the chairman of the commit- tee on water-works of the common council, which said committee had in charge the mat- ter of sail fire-uhirm system, and who, upon receiving said notice, notified the plaintiff to WHEN TITLE TASSES. 159 do tlie best it could in regard to tlie tone of tlie bell, wiiicli it did. The circuit judge also found that the common council, acting in good I'aith, made a thorough and fair test of tlie worUiug of said lire-alarm, and that tliey refused to accept the same in behalf of the city in good f;iitli, and for tlie reason tiiat the same was not suited to tlie needs of the city, and was of no practical utility as a (ire- alarm. He also found that the agreement above set out was the only agreement be- tween the i)aities in respect to the premises. As a conclusion of law he found that the plaintiff had nt)t made out by its proofs such a case as would entitle it to a judgment in any amount whatever against the defemlant. The plaintilf failed lo show a sulistantial compliance with that portion of the contract which stipulated that the tone of the bell should be second A below mid lie C on the organ. We do nut think that the defendant waived this provision of the aureement by the fact that bells of 3,000 pounds' weight are not manufactured having such tone, and that Mr. Comstock, when notified of that fact, told plaintilf to do the best it could with regard to the tone of the bell. The fact is not found that JMr. Comstock had any authority to make any changes in the contract, and the records of the proceedings show that when the com- mittee reported the proposition made by plain- tiff to the common council they were dis- charged. Counsel for plaintiff makes no claim in this case under the common counts in assumpsit. He chiims to recover upon tiie sole ground that the difference in the tone of the bell was waived, and in all otlier respects plaintiff' has fully p:M-forined its contract, and the defend- ant has refused to accept and pay thecontr.ict price. While admitting that the riglits of the parties .depend upon the const riKtion of the contract, he insists that the defendant did not have the arbitrary power to refuse to ac- cept the work done, and materials furnished, notwitiifetanding the plaintilf iiad |)erform( d in every particular; that, if tiie plaintiff I)erformed the agreement on its part, the de- fendant was bound to accept ajul pay. He admits that the defendant had the right to test the property for the purpose of ascertain- ing whether it was according to contract, and if it was they were bound to be satisfied, and were legally liable to pay the contract price. The particular clauses of the contract to be construed read as follows: "The company agrees to do all of the above work ami com- plete the contract in about thirty days from the date of signing the contract, and your honorable body shall thoroughly test the working of tiie same within thirty days after the completion of said work, and, if found to be satisfactory, and according to contract, accept and pay for the same." This lan- guage is contained in the written proposlion made by the plaintiff to defendant. The writ- ten contract executed by the parties con- tained this clause, namely: "Said lirst party to have thirty days after contract is complet- ed to test bell and working ai)paratus, and ia case same is satisfactory, as per contract, then they agree to pay," etc. The i)roposi- tion of the plaintiff was attached to and made a part of tlie contract between the parties, and consequently these clauses must be con- strued together. The language employed by the plaintiff in making the proposition clear- ly indicates that the council was not obliged to accept unless the work was done according to contract, and was also satisfactory, and this is a I'easonable construction of the con- tract. The council were acting in a repre- sentative capacity, and in the interest of the public. This contract involved a change in their system, and was to them in the nature of an experiment. What they required was ethciency in the system which they were about to adopt, which, while it might oper- ate well under a paid lire department, should be adapted to the workings of a volunteer tire de[)artment, the members of which are in general following th^-ir usual avocations, and volunteer their services upon an alarm of fire. It would a|)pear that the alarm should be such that the members would hear it wiiile about their business in their shops and count- ing rooms, as well as when in their houses at night. The council had a right, not only to test the workings of the system to ascertain wlielh'r it was according to contract, but to satisfy themselves if the system furnished an alarm sullicient for the purpose for which they designed to employ it. The clause last cited from the written contract does not change the import of the clause above quoted from the plaintiff's proposition. They must be construed together, and the reasonable construction of them is that the city of VAg liajiids was not obliged to accept and pay for the lire-alarm furnished by the plaintiff, un- less it was satisfactory to its common coun- cil when tested. Machine Co. v. Smith, 50 Mich. 5G5, 15 X. W. liep. 900; Machine Works V. Lowell, (32 Mich. 546, 29 X. W. Eep. 105; Manufacturing Co. v. Ell.s, 68 Mich. 101, 35 N. W. Kep. 841. The judgment of the circuit court is af- firmed. Tlie other justices concurred. 160 WHEN TITLE PASSES. COMMERCIAL NAT. BANK v. GIL- LETTE. (90 Iiul. 268.) Snproino Court of Indiana. May Temi, 188.3. .1. M. Yanfieet, lor appellant. J. H. Baker and J. A. S. Mitcliell, for appellee. ELLIOTT, J. The Elkbart Car Company, by a Avritteu contract, sold to the appellant 510 car wheels, constituting a part of 1,1UU Avheels; at the time of the sale the wheels were in one common mass, and there was no separation nor any designation of the wheels sold to the appellant; after the execution of the contract the entire lot of Avheels was seized upon executions issued at the suit of appellee, and this action was brought for the possession of those sold. The contention of appellee is that appellant acquired no title, because the articles sold were not designated or separated from the common lot of which they formed a part, and this contention prevailed in the court below. There is much strife in the American cases upon this question, but none in the English. The weight of the former is, perhaps, with the theory of appellant, but the text-writers are, so far as we have examined, all with the English decisions. Our own eases are in har- mony with the long established rule of the common law. In the case of Bricker v. Hughes, 4 Ind. 14(i, the English rule was ap- proved and enforced. In Murphy v. State, 1 Ind. 306, the court said: "To render a sale of goods valid, the specilic, individual goods must be agreed on by the parties. It is not enough * * * that they are to be taken from some specified larger stock, because there still remains something to be done to designate the portion sold, which portion, be- fore the sale can be completed, must be sep- arated from the mass." This doctrine found approval In Scott v. King, 12 Ind. 2Uo, and there are other cases recognizing it as the cor- rect one, among them Mottit v. Green. 9 Ind. 198; Raihvay Co. v. Maguire, (i2 lud. 140; Bertelson v. Bower, 81 Ind. 512; Lester v. East, 49 Ind. 588, vide o])inion. page 594. The rule which our court has adcjrted is upheld by the American cases of Hutchinsoij v. Hunter, 7 Pa. St. 140; Haldeman v. Duncan, 51 Pa. St. 66; Fuller v. Bean. M N. H. 290; Ocking- ton v. Ritchey, 41 N. H. 275; Morrison v. Woodley, 84 111. 192; Woods v. McGee. 7 Ohio, 467; McLaughlin v. IMatti. 27 Cal. 46::!; Courtright v. Leonard. 11 Iowa. '.V2; Hopes v. Lane, 9 Allen, 502; Ferguson v. Northern Bank, 14 Bush, 5.55. In Michigan, the rule seems not to be definitely settled, but in a late case it was said: "To the elaborate argu- ment made for the defence to show that there can be neither a sale nor a pledge of property without in some manner specially distinguish- ing it, we fully assent, and we have no pur- pose to qiL'ilify or weaken the authority of Anderson v. Brennemau, 44 Mich. 198, 6 N. W. 222." Bank v. Hibbard, 48 Mich. 118, 11 N. W. 834. The civil law rule is the same as that of the common law, and our great lawyers have given it unhesitating approval. 2 Kent, Comm. 639; Story. Sales, § 296. The American cases which have departed from the long settled rule, are built on the cases of Kimberly v. Patchin, 19 N. Y. 330, and Pleasants v. Pendleton, 6 Rand. 473, and these cases proceed upon the theory that com- mercial interests demand a modification of the rule. In our judgment, commercial inter- ests are best promoted by a rigid adherence to the rule which the sages of the law have so long and so strongly approved. The rule se- cures real transactions and actual sales, and thus checks the wild spirit of speculation. It prevents, in no small measure, the making of mere wagering contracts; it puts business on a stable basis, and makes it essential that there should be real, and not sham, trans- fers of property; it makes titles secure, pro- tects creditors and purchasers and represses fraud. If it were granted that the rule does somewhat interfere with the freedom of busi- ness transfers, still the good it produces far outweighs this inconvenience. But we do not believe It does interfere with actual business transfers, for common experience informs us that real sales are seldom, if ever, made with-, out a specific designation of the thing bought. The rule may interfere with dealers in "mar- gins," makers of "corners," and framers of "options," and to affirm that it does do this is to give it no faint praise. In principle the rule is sound, and in practical operation salu- tary. The efforts made by the courts that have departed from it to make exceptions, to manu- facture distinctions and point out differences in order to escape disastrous consequences, af- ford strong evidence of the wisdom of the rule. The fine of decisions in some of the states, where a departure has been taken, is a devious and tortuous one, and this is to be expected Avhen once sound principle is turned from and new rules sought and adopted which have no support in fundamental principles. AVe have no disposition to depart from the rule which has so long prevailed in this state and elsewhere. Judgment atftrmed. Petition for rehearing overruled. WHEN TITLE PASSES. 161 KIMBEKLY et al. v. TATCHIX. (19 X. Y. 880.) Court of Aiipcals of New York. Junt' Titiu. 18.J9. Appeal from the suprpuie court. Actiou to ret-over the value of (j(»0(t bushels of wheat, al- leged to have beeu the prnpert;^' of the i)laiutiffs, iind to have beeu converted by the defendant. Upon the trial before Mr. Ju. bushels. John Slmttleworth proposetl to purchase OoOO bushels of wheat. Upon beiuj:: shown the piles, he expressed a doubt whether they contained that quantity. Dickinson declared his opinion that they did. and asreed to make up the quan- tity- if they fell shoit. A sale was then made at sevent.v cents per Ijushel, Dickinson sisniins and deliveriuj: to Shuttleworth a memorandum, as follows:— "Littlefort, February 17. 1848. ■"John Shuttleworth bought of D. O. Dickinson. <)(K)(1 l)ushels of wheat, delivered ou board. 70 cents $4,200 lieceivetl his draft upon John Shuttleworth. of Buffalo, for. . $2,100 To remit me l.fiOO Five drafts of $100 each .300 4.200 "D. O. Dickinson." He also signed and delivered to Shuttle- worth this paper, viz.: — "Littlefort. Febrtiaiy IS. 1848. GOOO bushels wheat. Received in store GOOO bushels of wheat, subject to the order of John Shuttle- Avorth. free at all charges, on l)oard. D. O. Dickin.>-on.'' The wheat was left umlisturbed in the ware- house. Shuttleworth sold the wheat to the de- fendant, assigning to him the bill of s^de and Avarehouse receipt. Dickinson, shortly after- Awards, sold the whole quantity of wheat in the two piles to a person under whom the plain- tiffs derived title. The defendant having ob- tained the possession of the wheat, this action was bi'ought. The judge, under exception by the defendant, directed a verdict for the plain- tiffs, Avhich was rendered, and the judgmeut thereon having been affirmed at general term, hi the eighth district, the defendant appealed to this court. John H. Reynolds, for appellant. John L. Talcott. for respondents. COMSTOCK, J. Both parties trace their title to the wheat in controversy to D. O. Dickinson, A\ho was the former oAvner, and held it in store at Littlefort, Wisconsin. The defendant claims through a sale made by Dickinson to one ShuttleAvorth on the 18th of Februaiy, 1848. If that sale AA'as effectual to pass the title, it is not now pretended that there is any gi'ound on which the pbiiutiffs can recover in this suit. The sale to the person under Avhom they claim, was about tAA'o and a half months junior in point of time. A'AN ZILE 8EL.CAS.S.\T.ES— 11 The sale to Shuttleworth was by a Avritins in the form of a present traasfer of 6000 bush- els of wheat, at seventj- cents per bushel. No manual delivery was then made, but instead thereof the Aendor executed and deliA'ered tn the vendee another instrument, declaring that he had received in store the <| AA-as iKiid doAA-n. and the residue $lG0o. which AAas to be paid at a future day, the purclwser afterAA-ards offeree to pay, according to the agreement. So tar the contract had all the requisites of a perfect sale. The sum to be paid b.\- the purchaser was a.scertained because the number of bushels and the price per bushe! were specified in the contract. Although the article Avas not delivered into the actual r)0sses- sion of the ptirchaser, yet the seller, by the plain terms of his agreement, constituted him- self the bailee, and hencefoith stood in that relation to the purchaser and to the properts*. That was equal in its results to the most formal delivers-, and no argument is required to sIioav that the title was completel.A- diA'ested, unless a difficulty exists yet to be considered. The quantity of wheat in store to Avhich the contract rekited, A\as estimated by the parties at about GOOO bushels. But subsequently, aft- er Dickinson made another sale of the same wheat to the party under whom the plaintiff's claim, it appeared on measui-ement that the number of bushels was G249. being an excess of 249 bushels. When Shuttleworth bought the GOOO bushels, that quantity was mixed in the storehouse Avith the excess, and no meas- urement or separation was made. The .sale was not in bulk, but precisel.v of the GtMiO bush- els. On this gi'ound it is claimed, on the part of the plaintiffs, that in legal effect the con- tract was exeeutoiy. in other words a mere agi'eemeut to sell and deliver the specified quan- tity, so that no title passed b.v the transaction. It is not denied, hoAvcA-er. nor does it admit of denial, tluit the parties intended a ti-ansfer of the title. The argument is. and it is the only one which is even plausible, tliat the law over- rules that intention, although expressed in plain AA-ritten language, entirely appropriate to the puipose. It is a rule asserted in many legal authorities, but which may be quite as fitl.v called a nile of reason and logic as of law. that in order to an executed sale, so as to transfer a title from one part.A- to another, the thing sold must be ascertained. This is a self-eA'ident tnith. Avheu applied to those subjects of proinrty Avhich are distinguishable by their physical attri- butes from all other things, and. therefore, are capable of exact identification. Xo per- son can be said to oAvn a horse or a pic- ture, unless he is able to identify the chat- tel or specify Avhat horse or what picture it is that belongs to him. It is not only legall.v. but logically, impcssible to hold propert>- in such things, unless the.v are ascertained and distinguished froi all other things; and this. I apprehend, is the foundation of the rule that, ou a sale of chattels, in order to pass the title, 162 WIIKX TITLE PASSES. tho artirlos must, if not clolivered, be desi.u;- uated, so that posst^ssiou can bo takon by the pnrcliaser without any fuirlicr act en tlie pai't of the seller. But property can bt ac(iuired and held in many tliin.tis which are incapable of such an identification. Articles of this nature are sold, not by a description which refers to and distin- jiuishes the particular thing, but in (piantities, which are ascertained by weiirht, measure, or count: the constituent parts which make up the mass beins uudistinuuisliable from each other by any physical difference in size, shape, texture, or ciuality. Of this nature are wine, oil, wlu^at, and the other cereal grains, and the tlom- manufactured from them. These can be identified only in masses or quantities, and in that mode, therefore, they are viewed in the contracts and dealings of men. In respect to such things, the rule above mentioned must be applied according to the nature of the subject. In an executed and perfect sale, the things sold, it is true, must be ascertained. But as it is not possible in reason and philosophy to identify each constituent particle composing a ciuantity, so the law does not require such an identification. Where the quantity and the gen- eral mass from which it is to be taken are specified, the subject of the contract is thus ascertained, and it Decomes a possible result for the title to pass, if the sale is complete in all its other circumstances. An actual deliv- ery indeed camiot be made unless the whole is transferred to the possession of the piu'chaser, or imless the particular cpiantity sold is sep- arated from the residue. But actual delivery is not indispensable in any case in order to pass a title, if the thing to be dehvered is ascer- tained, if the price is paid or a credit given, and if uctlnng ftirther remains to be done in regard to it. It appears to me that a very simple and ele- mentary incjuiry lies at the foundation of the present case. A quantity of wheat being in store, is it possible in reason and in law for one man to oAvn a given portion of it and for an- other man to own the residtie without a separa- tion of the parts? To bring the inqiniy to the facts of the case: In the storehouse of Dickin- son there was a quantitj- not precisely knoAvn. In any eonceival)le circumstances could Shut- tleworth become owner of GOOD bushels, and Dickinson of the esidue, which turned out to be 240 bushels, without the portion of either being divided from the other? The answer to this in(iuiiy is plain. Suppose a third person, being the prior OAA-ner of the whole, had given to S. a bill of sale of (iCMJiJ bushels, and then one to D. for the residue more or less, intend- ing to pass to each the title, and expressing that intention in plain words, what would have been the result? The former owner most cer- tainly would have parted with all his title. If, then, the two purchasers did not acqtiire it, no one could own the wheat, and the title would be lost. This would be an absurdity. But if the parties thus purchasing could and would be the owners, how would they hold it? Plainly according to their contracts. One would be en- titlvd to (lOOO bu:^G barrels, beinu' giveu at a time when in fact there were but 2(>l barrels in the warehouse, so that it covered :]3."» more than Avere then on hand. But other quantities were subseciuently delivered at the warehouse, all of the same kind and quality, and the defendants, in fact, received by slii])- ment to them, 5(H) barrels. For the conver- sion of this quantity they Avere sued by tlie ])laintitt's, who had failed to receive the flour which their receipts called for. It cannot fail to be seen from this statement that the de- fendants, h.-ivinji' the first receipt and receiv- ins no more tlour than it specified, were enti- tled to judjrment by reason of the priority of their title: and this ^^round of decision is veiy clearly stated in the opinion of the chief jud^c. He thought if the transfer of the receipts could pa.ss the title to the flour, notwithstanding rhe mixture of all the quantities to.u'! thei', tliat the one held by the defendants entitled them not only to the 201 barrels in store when it was given, but also to so many barrels delivered in store afterwards as were necessary to make up their number. This view, wliich ai)pears to me correct, was fatal to the plaintiff's' case. Bnt in another aspect of the controversy, the learned chief judge was of opinion that the transfer to the plaintiffs of the receipts held by then) passed no title, on the ground that the (juantities which they respee-tively covered were all mixed together in tlie storehouse. Assmuing the correctness of that view — which I am constrained to question— the case is still unlike the present one. The transfer of a warehousemaJi's receipt, given to the owner, was certainly no more than a simple sale note of the specified numl)er of barrels; and where, in such cases, that is tlie whole traiisaction be- tween vendor and vendee, I have already ad- mitted a doubt, suggested by conflicting cases, wliether tlie title passes. If the owner of the flour had held it in his own wareiiouse. and had not only given a bill of sale of a portion of it, but had himself executed to the pur- chaser another instnunent declaring that he held the quantity sold as bailee and suliject to order, then the case would have resembled the one now to be determined. We are of opinion, therefore, both upon authority and clearly upon tlie principle and reason of the thing, that the defendant, under the sale to Shuttlewortli, ac(iuired a perfect title to the iKKXt bushels of wheat. Of that (luantily he took possession at Buffalo, by a writ of replevin ag;unst the master of the ves- sel in which the whole had been transported to that place. For that taking the suit wa.s biijuglit, and it results that the plaintiff" cannot rt-covcr. It is unnecessary to decide whether the iiarties to the original sale became tenants in common. If a tenancy in common arises in such cases, it must be with some peculiai' incidents not usually l)elonging to that spe- cies of ownership. I think each party would liave the right of severing the tenancy bj- his own act; that is, the right of taking tlie por- tion of the mass which belonged to him, being accountable only if he invaded the quantity which l)elonged to the other. But assuming that the case is one of strict tenancy in com- mon, the defendant bec-ame the owner o^" (jOOO and the plaintiff's of 24!) parts of the wlujle. As neither could maintain an action against the other for taking possession merely of tli(^ whole, more clearly he cannot if the other talces only tlie (piantity whicli l)elougs to him. The Judgment must be reversed and a new trial granted. (JKAY and GROVER. .7.T., dissented; STROX(i, .T., expressed hhnself as inclined to concur, if necessaiy to a decision, but it being unnecessaiy, he reserved his judgment. .luilgiiient reversed and new trial oi'dered. WHEN TITLK I'ASSK.S. 165 SANGER et al. v. WATERBURY et al. (23 N. E. Rep. 404, 116 N. Y. 371.) Court of Appeals of New York, Second Divis- ion. Oct. 23, 1889. Appeal from judgment of the general term of the supreme court, in the second judu-iai department, entered upon an order made I)e- cemljer 14, 188G, wlitcli atlirmed a judyfment in favor of the defendants, enteied upon a verdict directed by the court. This was an action of rej)]evin brought to recover the possession of 238 bags of coffee identilied and described in the complaint as follows: "89 ba<:s, marked Xo. G. II. L. li & Co., D. li. & Co.; 82 bags, marked No. 8, IJ. 1j. B. & Co., D. B. & Co.; 14 bags, marked No. 10, 11. L. B. & Co., D. B. & Co. ; 2U bags, marked No. 12, II. L. 13. & Co., D. B. & Co.; 68 bags, marked No. 14, II. L. B. & Co., D. B. & Co.; 6 bags, marked No. 16, H. L. B. & Co., L). B. & Co."' The complaint alleged, and the answer admitted, "that on or about the 22d day of July, 1885, the said goo Is * •■!: * were sold by the plaintiffs to the defendants John K. Huston and James E. Huston, * * * on the credit of sixty days for one-half thereof, and of ninety days lor liie i)alance Iheieol." It appeared thaltlie plaintiffs, on the 6th day of -Inly, 1885, pur- chased of Boulton, lUiss & Dallett 6U5 bags of coffee, then stored with E. B. Bai tlett & Co. On the 22dday of July the plaintiffs sold the 238 i)ags of coffee hereinbefore referred to to J. K. Pluston & Co., of rhiiadelpiiia. That firm, on the 24th day of July, up- on the security of the coffee thus purchase. I, borrowed from the defendants AVaterbnry it Force S2,300, and then transferred thecoff e to them. On July 27ih following, said firm failed, making a general assignment. On the next day, the plaintiffs commenced this iiction, by means of whicli the < offee was taken from the possession of Waterbury & Force. The coffee then was, as it had been from the time of tlie i)urchase by the plain- tiff's, actually deposited in the warehouse of E. B. liartlett & Co., and had not as yet been weighed. William W. troocZrw/i, for appellants. Ed- toard N. Shapard, for respondents. Parkeu, J., [after statL.g the facts as rtbore.) Ttie appellant contends that the title to tlie coffee in controversy did not pass to J. K. Huston & Co., and that therefore the trans- fer to Waterbury & Force di 1 not vest in them the title or the possession. The sale is admitted; but as the coffee had to be weighed, in order to ascertain the amount to be paid to plaintiffs, it is insisted that the title remained in the plaintiffs. In aid of this contention is invoked the rule that where soineihing remains to b;' done by the seller to ascertain the identity, quantity, or quality of the article sold, or to put it in the condition which the contract requires, the title remains in the vendor until t!ie condition be com[)lied with. The appellant cites a numlter of au- tliorities whicli, he urges, so apply this rule as to make it ap[)l caiile to the case here pre- sented. It is said in (ir^at v. Giie, 51 N. Y, 431, tiiat this "rule has reference to a sale, not of specific property clearly ascertained, but of such as is to bese|)arate(i from a larger quantity, and is necessary to be identified be- fore it is suscei)tible of delivery. The rule or pr.nciple does not apply where the number of the particular articles sold is to be ascer- tained for the sole purpose of determining llie total value tiiereof at certain speciiied rates, or a designated fixed price." This distinc- tion is recognized and enforced in Crofoot v, Bnnett, 2 N. Y. 258; Kimberlv v. Palchin, 19 N. Y. 330; lirailley v. Wheeler, 44 N. Y. 495. In Crofoot v. Bennett, su|)ra, the court say: "If the goods sold are clearly identified, then, although it may be neces-ary to num- ber, weigh, or measure them, in order to as- certain what would be the price of the whole at a rate agreed upon b-tween the parties, the title will i)ass." This expression of thecourt is cited with approval in Burrows v. Wliita- ker, 71 N. Y, 291, in which case, after a full discussion of the authorities, the court ap- proved the rule as laid down in Gro it v. Oile, supra. Now applying that rule to the facts in this case, nothing remained to be done in order to identify the goods sold; be- cause while, out of a larger lot, 238 b.igs of coffee Were disposed of, nevertheless, as ap- pears from the complaint and the testimony adduced, the bags were so marked that there was no dithculty about identifying tlie par- ticular bags sold. There remained, there- fore, nothing to be done except to weigh the coffee for the purpose of ascertaining the pur- chase price; for whefher the 238 bags of cof- fee should prove to weigh more or less than the parties anticipated was not of any con- sequence. Whatever should prove to be, for that number of pounds J. K. Hus- ton & Co. had agreed to ]iay. This case, therefore, does not come within the rule con- tended for by tile appellants, liut, ins ead, is governed by the principle enunciated inGroat V. Gile. Having reached the conclusion that the title and the possession passed to J K. Huston & Co., it becomes unnecessary to consider any of the other (juestions discussed, for the plaintiffs are without title upon which to found the riglit to maintain an action. Tlie judgment a])pealed from should be af- firmed. All concur. IGO AVIIKN TITLE PASSES. MALTBY ct ill. V. PLIM^MEU. (40 X. W. :'>. 71 Mich. .178.) Siiprcinc ("nurl nt" Michigan. Oct. 19, 1888. Vatoi to liicuit court, Kay oouuty; S. M. said first party for the Saginaw market not less than three million, nor more than five million, feet betAveen the date of this contract and the 1st day of De- cem])er, A. D. 188.j; (4) that he Avill suspend operation from said 1st day of December next imtil the 1st day of April, 1880, or until said first party shall have time to cut and save sudi timber as may have been damaged by fire upon lauds OAvned by him in the neighbor- hood of said above sections; (.j) tliat he will board tlie men of said first party engaged in cutting said timber free ot cost; ((!) that they Avill do all such Avork in a good and Avork- manlike manner and use all due diligence in delivering and forwarding the timber intended by first party for the Saginaw market upon the reconunencement of operations in the spring of ISSO and thereafter. In consider;i- tion Avhereof first party agrees: (1) that lie Avill pay said second parties for skidding, hauling, and delivei ing logs intended for Sag- inaw market, ip2..")0 per thotisand feet, etc.; (li) tliat he will allow said second parties tlie use of all the railroad cars and ecpiipments uoaa^ belonging to said railroad running to and from said lands to do sut'li Avorlc; (.'>) that he Avill cut a sufficient amount of timber from said lands per day to mutually assist said second parties in doing said AA'ork, and keep said mill supplied Avith logs, and that he Avill keep a sufficient space clear for the unloading of tlie same, and the care of such logs after unload- ed, so as not to delay said second parties in deliA'ering tlie same. The logs AA'ere to be scaled by a competent scaler to be agreed up- on by the parties, each party to pay one-half of scaler's Avages. This contract was signed by defendant Plummer and by Smith & Ginl- ford. The defendant pleaded the general is- sue, and gave notice of set-off, and also notice of several matters of defense. Tlie parties sulisequently entered into a stipulation cover- ing certain matters of account and showing that the plaintiffs and their assignors had earned in skidding, hauling, and delivering logs, .1;.j2,.570 02 Due plaintiffs for camp supplies and due bills 339 14 For certain items of interest and protest fees 86 13 Making a total for Avhich plain- tiffs Avere entitled to credit of. . .i!.32.99o 29 The amount for which it AA'as stip- ulated tlie defendant is entitled to credit is .?41,890 88 Thus leaving a balance, oxclti- siA'e of interest, prima facie due the plaintiffs according to stipulation, of ..$11,104 41 In addition to this balance and interest there- on the plaintiffs claimed in tlieir declaration and at the trial damages for the increased ex- pense i-Q skidding occasioned by the manner in Avhich tlie cutting was done by the defend- ant in skipiiing or moving about from place to place instead of ctitting tlie timber stibstan- tially clean as the Avork progressed, Avliich it Avas claimed is the usual and customary man- ner in Avliicli timber is cut upon lands that are being luml)ered. The plaintiffs also claimed damages laused by the alleged failure of the defendant to "keep a sufficient space clear for the unloading" of the logs, and to take care of them "after unloaded, so as not to delay said second party in delivering tlie same." WHEN TITL5 PASSES. 1G7 Thoy also claiiued damages for alleged failure of defeudant at certain times to cut tlie tim- ber fast euougli to euable them properly to do the work, but no qu-^stiou arises upon this branch of the case. The declaration alleges the assignment of the contract declared upon from Smith & Uuilford to the plaintiffs. De- fendant, in his notice of recoupment, alleged and insisted upon the trial that plaintiffs and their assignors did not perfonn the contract stied upon; that they failed and neglected to load o.OOOXHH) feet of logs for the Saginaw market before December 1, 18S.j; that, by rea- son of the default in the delivering of said logs for the Saginaw market, the expense of hauling, taking care of, and receiving them was hugely increased; that they failed and neglected to deliver on the cars of the Michi- gan Central Railroad Company at Ogemaw village all the white pine saw logs suitable for the Saginaw market, but on the contraiy de- livered logs that were coar.se and unsuitable for the Saginaw market, thereby increasing the expense of handling the coarse logs, in- cluding the freight, to a large amount; that, by the admixture of coarse logs with the white pine logs suitablp for the Saginaw market, it depreciated the value of the logs suital)le for the Saginaw market to a large amount; that they failed and neglected to furnish a suffi- cient quantity of logs to keep defendant's mill rimning. and by reason thereof defendant was compelled to and did shut down his saw-mill at Ogemaw village a large number of times, and was compelkd to keep a large crew of men idle, and wa.'> thereby unable to put upon the market his said lumber, and was unable to till his orders or perform contracts eutere;3 into by him, and thereby lost great gains and profits; that they did not regard the terms of said contract whereby they agreed to keep logs of particular lengths upon skids by them- selves at defendant's saw-mill, but that they piled upon skids at the mill of defendant logs of all lengths, including hard wood, hemlock, and pine, both Avhite and Norway; that at tlie time of making said contract, and during its continuance the defendant was engaged in the manufacture of special bills; that his mill is what is known as a special bill timl)er mill; that it was in the contemplation of the tilling of such special orders that the contract de- clared on was entered into, and that plaintiffs and their assignors had full knowledge of these facts, and that by reason of their failure to so pile said logs he was compelkd to saw his logs into lumber of misc-ellaneous lengths, and was unable to till special orders and con- tracts, and was compelled to cancel ntimerous contracts and orders entered into by him: that the lumber manufactuitd from the logs, by reason of being so mixed and sawed into mis- cellaneous lengths, was rendered almost value- less; that he was deprived of great gains and profits he would have enjoyed had logs cf par- ticular lengths bten piled at his said saw-mill in separate lengths from each other; that by reas(m of the admixture of the loirs he was compelled to and did ship a large quantity of the lumber green which brought a much small- er ijrice by reason of liaving been placed on the market green, and the cost of transporta- tion was greatly increa.sed; that they did not remove to defendant's mill at Ogemaw a large quantity of .saw logs cut dean by them as they went, but left a large amount, about 2.0U0,- CHX) feet, on the skids in the woods and on the ground, which by reason of being so left subject and exposed to the weather became rotten, worm-eaten, and greatly damaged; that a large quantity, some .j(JU,(JOO feet of said logs, by reason of being so left in the woods, was burned by forest tires. Defendant fur- ther claimed that neither plaintiffs nor their as- signors built a suitable and proper railroad track and si)urs in suitable pbices, but at- tempted to constioict a railn-ad track and spurs over which to convey said logs from said land in unsuitable, improper and imi)racticable places; that a portion of said niilroad track and spurs was abandoned and could not be used; that other tracks and spurs were built in their stead, and that while attempting to operate sjtid imperfect ard improperly con- structed railroad, large quantities of said saw logs accumulated along the liiie of said rail- road track and spurs, and were there left and abandoned and by reason thereof became valueless to defendant; that the plaintiffs and their assignors failed to properly use and man- age a certain steam locomotive lielonging to defendant, and included in the terms of the contract declared upon; that said locomotive was injured and damaged, and that in all. by reason of the neglect and failure of the plain- tiffs and their assignors, defendant was dam- aged to the amount of .S.lo.iMj*!. The jury re- turned a verdict in favor of the plaintifts for the sum of .S11,0S(,».7T, and defendant brings eiTor. The record contains substantially all the evi- dence in the case. The case was ftilly submit- ted by the court to the jury upon the re- spective claims of the parties for damages growing out of this contract imder the special counts of the declaration. It is now claimed by defendant's counsel that the stipulated amount, aside from these re.*;pective claims for damages, being .$11,104.41. is so near to the amount cf the verdict rendered by the jury of $11.0S(J.77, that it is evidence that the jury did not allow damages to the plaintiffs un- der their declaration, nor did they allow any damages by way of recoupment to the defend- ant in finding the amount of their verdict. I One hundred and fifteen errors are assigned. I The case was very fully tried, and a large i number of witnesses exanuued. and a large I amount of testimony taken. The ch-irge of ; the couit is very full and explicit upon the claims of the resjiective parties. Some :;o of the a.ssignmeuts of error relate to the refusal I of the court to permit certain questions put either upon tlie direct examination of defend- I ant's own witnesses or upon the cross-examina j tiou of plaintiffs' witnesses to be answered. 168 WHEN TITLE PASSES. iiad some 4!) of the assisnments of error relate to the admission of evidence offered by phiiii- tiffs under objection of defendant's counsel. The other assij,Minieuts of error relate to the refusal of the cnurt to charge as requested by defendant's counsel and to the charfre as giv- en. At the close of the testimony the defend- ant reciuested the court to charge the jiu'y: "First. By th(> terms of the contract between Smith & Guilford- and the defendant dated July 17. 18S."), Smith & Guilford were bound to delivi'r upon the cars of the Michigan Cen- tral Kailioad at Ogemaw village switch all the merchantable white pine on sections twenty- one and twenty-eight, town twenty-two north, range one east, that defendant should deem ])roper for the Saginaw market. If, from the evidence, you find that Smith & Guilford or Itlaintiffs delivered, among the white pine logs that defendant deemed proper for the Saginaw market, against the protest of the defendant, coarse and cull logs that defendant did not deem proper for the Saginaw market, the de- fendant is entitled to recover such damages as he sustained by reason of such default." Er- I'or is assigned upon the refusal of the court to give this request in charge to the jury specifi- cally. The court, in its general charge to the jury, fully covered this question, and, as we think, vei'y fairly. Among other things in re- lation to this part of the case, the court stated to the jury: "Under this contract both par- ties had a duty to perform. Mr. Pluramer would have no right to come in here and say: ■I deem certain logs proper for the Saginaw market and certain other logs not proper for that market, but these plaintiffs delivered logs that I deem not suitable for that market,' and claim damages unless he shows that he had indicated to them in some proper manner what logs lie did deem suitable for that market. * * * If these men, in violation of their con- tract and their good judgment, and the judg- ment which they ought to have applied to the distinction which he pointed out to them as their guide, if they disi'egarded it, and sent legs to Saginaw that they had reason to sup- pose Mr. Plummer did not deem proper for that market, then they are liable for the con- sequences and the damages that resulted to him from securing that kind of logs there. But if he left it to the judgment of these men. and these men exercised that judgment fairly and honestly, he must be bound by that judgmcMit. But if they frequently disregard- ed his directions, and did put timber upon the cars and send it to Saginaw that they knew was not .suital)le for that market, and knew that he deemed unsuitable, then they ought to pay damages." It is clear oy tne contract that defendant was required to designate the logs which were to go to Saginaw. He should do it in such manner as it would be profitable for plaintiffs to work by. If he left it to plain- tiff.s' judgment, or to the judgment of the scal- er or foreman, and gave only a general de- scription, so that it involved judgment, and that judgment was fairly exercised, he could not complain, and we think this part of the charge fully covered all that defendant had any right to ask. Defendant further requested the court to charge: "If you find from tbe evidence that plaintiffs' assignors did not keep defendant's mill at Ogemaw village constant- ly supplied with pine logs for sawing purposes, the defendant is entitled to all damages sus- tained by him by reason of such failure." This the court also refused to give. The claim made by the notice under his plea does not set forth any particular bills lost. His claim is- that he might have obtained orders for special bills. He does not name a single bill which he thus failed to get. The claim is presented in no other than the most speculative waj-, and does not present a fact to be tried as to dam- ages. The court instructed the jury tipon this question, and we find no eiTor in those in- structions. The case in principle falls direct- ly within the ruling of this court in Allis v. McLean, 48 INIich. 428, 12 N. W. 640. De- fendant further requested the court to cnarge the jury: "Keeping logs of particular lengths by themselves in the contract of .Tuly 17, 1885, means that logs of different lengths should be placed on skid-ways at defendant's mill, each length sepaiate fi-om every other length. As an illustration, all logs twelve feet in length together, all logs fourteen feet in length to- gether, and so on throughout the varioois lengths of logs under the contract. If they were not delivered, so that logs of particular len.gths were kept by themselves, the defend- ant is entitled to recover damages by reason of this breach of the conti'act." The conten- tion of the defendant is that the random logs, that is logs of different lengths, though cut for bill stuff, should have been separated by their lengths at the mill, and put on different skid-ways at the mill, and because that was not done the defendant has suffered damages which he is entitled to recover. The contract cannot be so con.strued, and it is apparent from the conduct of the defendant and his employes that no such construction was thought of at and during the time the Avork was in progress. The logs cut varied in length from 12 to 36 feet, and it would have required 13 different skid-ways at the mill to place separately these different lengths of logs. It was the duty of defendant to provide these skid-ways, and as appears by the evidence only two were pro- vided for long timbers, and defendant's fore- man directed them placed on these skid- ways. The language of the contract itself does not bear any such construction. The lan- guage in the contract "keeinng logs of particu- lar lengths by themselves" was employed to designate a class, and conveys the same idea as the Avords "special lengths." If the intent had been to keep each length of logs by itself, that language would have been used. It is an idea easy to express. The actual business of lumbering about which the contract was made does in fact make use of two genei'al classes, viz., the usual or customary lengths, which are from 12. to 22 feet, and cut so as WHEN TITLE PASSP:S. 109 to save tiiiil)er, and loii;;tlis wliicli are cut with reference to particular bills or orders. There can be no doubt that it was intended by the contract that the logs for bill stuff should be kept by themselves and the other classes of lojjs by themselves. This was the interpretation jjiven by the court to the cou- tract. and we think it is the true construction. Some contention was had upon the trial, and considerable evidence intrcMluced by ea(;h pw- ty. under a claim made l)y the plaintiffs that the defendant, in cutting the timber, did not do so in the usual and ordinary way, but went from place to place so that plaintiffs were put to lartje exi)ense in hauling. There is no pro- vision in the contract as to the manner in which the plaintiffs should do the work ex- cept that it should be done in a workman- like manner, and keep the mill supplied. The defendant was to do the cutting in such man- ner as to mutually assist the plaintiffs "in do- ing the work and keeping the mill supplied." Under these terms it was no matter how fast logs were cut, or what kinds. The plaintiffs fulfilled by keeping the mill supplied with every kind of logs, and might elect for them- selves which kind to load tirst and from what point.s to work to the best advantage for them- selves. The defendant claimed the right to ski]) about, cut here and there, and compel hauling lu the same way. 'I'lie plaintiffs de- nied this, and claimed that it added to the expense in hauling. The contract was made in reference to the work of logging as actually and customarily done, unless it could be oth- erwise shown by competent evidence. The IJlaintiffs gave evidence tending to show the custom was to cut clean. The defendant gave evidence tending to show an understanding, before and when the contract was made, to cut as he did. The plaintiffs gave evidence in rebuttal, and the whole question was sub- mitted to the jury by the court in its general charge, and gave the defendant the benefit of this understanding if they so found. We think the matter was fully and fairly submitted to the jury, and the defendant has no reason to complain of this part of the case. The de- fendant reciuested the court to charge: '"If j-ou find from the evidence that defendant, by order of (Juilford, paid to Angus Bedour the sum of .$(>ir>.:J2 for work done by him for Guil- ford under verbal contract, between defendant and Guilford, the defendant is entitled to credit for such amount as payment." The court refused this request, but charged the jury, substantially: "Here is an amount claimed to have been paid by Mr. Phimmer to Bedcur for skidding a quantity of logs that Mr. Guilford was under contract to get out. The claim is for payment made by defendant \ for loading these logs. It is conceded that Mr. riummer did pay for the skidding and hauling. Tlie only dispute is whether he was authorized to pay it. * * * You may have no sort of doubt that this payment was made by Mr. Plummer, who had no sort of interest i?i paying it to ^Ir. Bedour, because he imder- stood his authority and the direction. Mr. Bedour may have received it with that under- standing, and it may be supposed it is sug- gested that Mr. IMummer would not have paid this man Bedour unless he thought and be- lieved he was authorized by Guilford to do so. And (iuilford's good faith is attested in the same way, to a certain extent. He testified that he paid Bedour, and Bedour receivwl from him some four hundred and ninety-four dollars of this same amount. What you may think of Bedour for receiving from these two parties double payment for his labor is an- other question. * * *" The court, in an- other portion of its charge, stated to the jury: "Assuming that these witnesses are equally honest, and perhaps you may be satisfied they are, it indicates that there was an entire mis- apprehension between the parties." It ap- pears from the record that Plummer and Be- dourtestitied that (Juilford authorized this pay- ment, while Guilford denied giving Plummer any such authority. Plummer testified that he paid Bedour .$()l."i.32 for loading the logs, and that that amount included nothing but for logs loaded under the contract, and that the payment was directed by Guilford in the pres- ence of Bedour. Mr. Bedour testified that Plummer was at Ogemaw, and that he went down with him to West Branch. That the conductor held the train at his reipiest. He went to the hotel, and got Guilford to come down to the train, and talk the matter over with Plummer. That Plummer was to pay liim. Mr. Plummer asked Guilford if he should pay Bedour for the Avork. and he said. "Yes." Mr. Guilford denied making any such statement, or ever authorizing Plummer to pay for loading those logs. The issue was thus made between the parties, and it was a question of fact for the determination of the jury. Defendant's claim is that the court voluntarily i^assed upon one of the most im- portant questions of fact in the case, and clearly informed the jury what his opinion of the testimony upon the payment was. That this statement of the court was a finding of fact that, conceding both parties to be equally honest, they misapprehended each other. An- other claim is also made that defendant's case was prejudiced by the remarks of the court upon the witness Bedour in that the court said, "What you may think of Bedour for receiving from these two parties double pay- ment for his labor is another question." as Bedour had testified that he had done other work for Guilford, and that this .'i<()l.").;i'J in- cluded no part of the other work. Mr. Be- dour testified: "This work I did for Mr. Guil- ford was on that deal, for sections 10 and 11. I had a separate transaction with Mr. Guil- ford, apart from that, but this was all done on sections 10 and 11. The payments that I have received from Mr. Guilford and Mr. Phmur.er pay me in full for all the work I did for Guilford on sections 10 and 11. It does not overpay me." It is evident that Bedour's testimony was important upon this 170 WHEN TITLE PASSES. ^G1.").;JJ item, riiiiunu'r clainicil to have paid it under authoiitj- from tJuilt'ord, and claim- ed a credit for it on this account. (Jnilford denied givinj,' any such authority to riunnner, iind further insisted that he had paid that item for the Identical work to Bedour him- self. Bedour was called by defendant, and i?ave testimony sciuarely contradictory to Guil- ford, and claiminj;; that, while (Jnilford paid liim the $Ulu.32, it was for other work done for him, and that what he received from (Jnil- ford and riuinmer only b:ilauced his claim, and he was not overpaid. The remarks of the court "What you may think of Bedour for re- ceiving from these two parties double pay- ment for his labor" would naturally and nec- essarily have {,'reat weight with the jniy. It was an expressi(m of doubt by the court as to the honesty of Bedour for receiving double ])ay. It must have made an impression upon The minds of the .jury, which they would carry into the jury-room, and where the case was so evenly balanced between Plunnuer and Guil- ford, who so squarely contradicted each other upon the question of the authority for the payment. Betlour's testimony was of much juoment and might be decisive of the question. We tliink this remark prejudiced the defend- iiut's case upon this $(iir>.:j2 item. We think. also, tile coui t was in eiTor in charging the jury that there was an entire misapprehension between the parties upon this question of au- thority to Plunnuer to pay the !f(;i5.32. The testimony was direct and positive, and plainly irreconcilable, and it was a (luestion of fact for the jury to deternnue which was right. If Plummer and Bedour were right in their ver- sion of it, then Plununer was entitled to the credit, and if (iuilfoid was correct, the credit should not liave been allowed. In view of the issue made in the case, by the pleading, the court allowed great latitude in the examina- tion of witnesses. We think this was proper, and we tind no error in the record upon the reception or rejection of evidence. The case was fully tried and submitted to the jury un- der a very full and fair charge by the court. We find no error in the construction given to the contract by the court. The only error we tind in the case relates to this ii;()l.").32 item, and in the charge of the court upon that sub- ject we think there was error. The judgment of the court below nmst be reversed, with costs, and a new tri;il ordered. SHERWOOD, C. J., and i^riAMPLIX and MORSE. .I.I., concurred. CAMPBELL, J., did not sit. WHEN TITLE PASSES. 171 ALLAUD V. (JKl-.ASEUT. (01 N. Y. 1.) Commission of Appeals of Now York. Sept. Term, 1874. Actiou for goods sold and* delivered. De- fendant firm orally ajireed with an ajient of plaintiffs to buy by s-aniple the foUuwing bill of hats and caps: C>f ease No. 3U1, 1/2 doz. (hikl's Leghorn sy Ivans, at .I'll per doz •$ •") ~>0 Of case No. 312. one doz. harvest hats, at 4 oO Of case No. 371. half doz. Pana- ma hats, at 28 r>0 a iloz. Of case No. 372. half doz. Pana- ma hats, at 3(5 00 a doz. Of case No. 320. one doz. pahn leaf hats, at 2 oO a doz. Of casf No. 324, one doz. pahn leaf hats, at 3 ud a doz. Of east- No. 32U, one doz. white Gleuwood, at 1-'. IK) a doz. Of case No. 159, one doz. black Alpine, at 24 (Mia doz. Of case No. 309, one doz. Leg. harvest, at 3 2o a doz. The samples weie shown by the agent, and the prices of the different styles named, and a memoraudmu made by the agent of the num- ber of each kind purchased. No memorandum was made in writing, and signed by either party. When the goods were sent, by ex- press, as ordered, defendants refused to re- ceive them because the one dozen harvest were in some slight particular different from the samples shown. Defendants moved for a nonsuit because (1) "that the agreement under which the plaintiff's seek to recover is within the statute of frauds, and void; (2) that the order for the goods constitutes one entire con- tract, and the plaintiffs have failed to fullill, ou their part, to deliver the harvest hats of the description ordered; that, by reason of said failure, the defendants had a right to refuse to leceive any of the goods sent." The i'ourt nonsuited plaintiff's on the last ground. Daniel Wood, for appellants. Bowen & Pitts, for resixiudeuls. EAKL. C. The judge at the circuit regard- ed this as an entire contract of sale, and not severable; and if he was right in this, he properly nonsuited the plaintiffs upon that ground. If it was an entire contract, within the meaning of the law. the plaintiff's could re- cover only by showing entire performance, by a full delivery of all the articles purchased. But it is not necessary, in this case, to deter- mine whether this was an entire or a severa- ble contract, because the defendants also mov- ed for a nonsuit upon the ground that the contract of sale was void under the statute of frauds. Although the .iudge did not place the nonsuit upon this ground, it may be consider- ed here. He nonsuited the plaintiffs, and even if he gave a wrong reason for it, and placed it upon the wrong ground, the mmsuit may lie upheld upon any ground appearing in the case, Curtis v. Hubbard, 1 Hill, 330; Siuiar v. Canaday, 53 N. Y. 298; Deland v. Ki.t Court of Aiipeals of .Maiylan.l. Eoli. r2. 1SS">. Before ALVEY. C. .1.. aiul YELEOTT. STONE. MILLER. ROIUXSO.X. IKVLNHJ. ami BHYAX. ,1.1. W. Irvine Cross and John K. Cowen. for apiu'Ilauts. Joseph C. France auil .loim I'reu- tiss Toe. for appellee. lUVIXi;. J. The appellee beinj; a i-onunis- siou nierehaut iu Baltimore, between the mouth of Autrust. 1S)SL and the mouth of January. ISJSl*. rei-elvetl eonsiunmeuts of Iknu- from Oliver Meriou, of Minneapolis. Minne- sota, for sale upon eounuissiou. Ipou the 121st of Janiuir.v, ISSJ. Meriou shipiH'd to Cor- ner & Co.. without order, a (•ar-U)ad of ••Cham- pion" tlour. being one hundred and twenty- tive barrels, by Milwaukee and St. I'aul Kail- road and Baltimore and Ohio Kailroad via Chieago. On the same day he wrote Corner & Co. advising of this shipment, and naming a priee at which Corner, his faetor. shoukl sell the same. Xo bill of lading was sent to Cor- ner iV Co.: but at the time of the shipment a shipping receipt was taken from the railroail for the flour, and that with a draft on Corner & Co. for tive hundred dollars was plaeed iu bank for trausndssion to Baltimore, but was subst'(iuently withdrawn, and was never sent. Subseciuent to the shipment to Corner »S: Co.. Meriou reeeiveil an order for tlour from Con- rad Kuhl «!c Son of Baltimore, and decided to change the shipment and to send to Kuhl <.Vr Sou this car of tlour on their oriler. Accord- ingly, on the l'4th of January. ISSl'. the rail- road having beeu notihed. its agent at Minue- apolis telegraphwl the Chicago agent to hold the car of tlour. as Meriou wished to change the consignment to Kuhl & Son. On the .*Wth of January, the original receipt was surren- dered to the railroad agent at Minneapolis, and a bill of lading for the Hour was taken out to Kuhl & Son. The agent on the :24th had takeu steps to have the address of Corner & Co. removed from the car. and to have that of Kuhl ^: Son substituted. lie telegraphed to Chicago directing this change to be made. but it was neglecteil. and the tlour came through to Baltimore labeled for Corner & Co.. and was delivered to them; the Balti- more agents of the railroad not being adviseil of the change of destination, and Corner & Co. as yet. having received no information of ]Merion"s change of purpose, and the actual consignment, by bill of lading, to Kuhl «S: Son. The proof shows, that on the l'4th of January, three days after the shipment spoken of. but before Corner knew of it, he wrote to Meriou advising against further ship- ments unless Meriou chase to ship a car of "Clematis" flour, without draft, as the mar- gins on the flour still on hand were exhaust- ed. On the 2()th of January. Corner acknowl- edged the receipt of the letter telling him of the shipment of "Champion," promising it should be sold for the best priti's. and say- ing, ••we note you have not made draft on this car. as if in anticipation of our rent. and who paid therefor. They claim that title nevi>r passt'd from Meriou to Cor- ner iV: Co.. but that it did pass to Kidil \; Son. The appellants furtlu'r and strongly re- lied on the act of lS7t;. c. -<>2. in respei-t to bills of lading, and the effect of the posses- sion of svch bills of lading upon title. But the di'cision of this case does not involve any consideratitui by the court of the effect of the act of 1S7(; or what construction shall be giv- en it: for there are well settled principles es- tablished and acted upon in very many eases, which will contrid the decision of this case ir- respective of any act of assembly. It is the well-settled law. that the delivery of goods to a CHumuou carrier for one who has purchased and who has oidered them, is a de- liver.v to the purchaser, though it does not amount to an acceptance of them. 1 IW'Uja- min on Sales, pp. LS'J and !!>.">. But it is equally well settled, that where goods have been shipped to one who has not ordertnl them, title does not i)ass to the consignee by delivery to the carrier, and the right to change the consignment and destination during the transportation remains iu the shipi)er; and 174 AVilEN TITLE I'ASSES. this is so far tlie manifest reason that there- is a \vant of the essential element of nnitiial assent to eonstitnte a contract of sale. So that in all cases where ^oods are shipiit d upon the account of, and at the risk of, the sliipper, tills rijilit remains in him. The Francis (Hoy- er. Master,) S Crauch, 418; Mitchel v. Ede, 11 Adol. iVc E. SSS; Scothorn v. Railway Co., 8 Exeh. ;3-l(); 8 Pet. Cond. Rep. U. S. 245, and notes; Elliot v. Bradley. 2:^ Yt. 217; Ilodjjes V. Kimball, 4iJ Iowa, 577; Hutch. Carr. SS 134, ;5;^7; Blanchard v. I'age, 8 Gray, 285; and AValter v. Ross, 2 Wash. C. C. 28(J. Ved. Cas. No. 17,122. In this last case of Walter V. Ross, the subject was fully considered, and .hulse Washinf;ton says, "the factor has no in- terest or prcjiierty in the ^oods beyond his commissions, and, of course, cannot contro- vert the riylit of his principal. If, indeed, he be a creditor of the shipper, he has a coutin- sent interest in virtue of his risht of lien which the possession would give; but for the perfection of his right he must acquire and re- tain an actual possession of this property — constructive possession will not do." The same principles are declared in (Jros- venor v. riiillips. 2 Hill, 147. and in Bank v. Jones, i N. Y. 500. In Bonn^jr v. Marsh, 10 Smedes & M. o70; Chafte v. Railroad Co., 59 Miss. 185; \Yoodruff v. Railroad Co., 2 Head, 87. and several other Tennessee cases, the law- is laid down more stringently, as against the factor, than the weiglit of authority justifies. There can be no doubt, upon the weight of authority, that if the factor have claims for advances against his principal, and it lie ex- pressly agreed, that goods shall be sliiiiped to the factor to pay those advances, then, in such cases, the Law makes the delivery to the carrier a delivery to the consignee, though a factor; and the appellee's counsel endeavor to bring the appellee within the operation of this rule as laid down in Bailey v. Rail- road, 40 X. Y. 70, and Sti.ius v. Wessel. 30 Ohio St. 211. But these cases are not analo- gous to the present one. In Bailey's Case it was decided that title had passed. Tlie court said that the plaintiffs in that casc> "occupied the legal position of vendees after having paid the purchase money and received deliv- ery of the goods." It is true, the court sa.vs, in addition, that it is not necessary to hold in That case that the plaintiffs occupied the posi- tion of vendees strictly; but still the decision is wholly based en the ground that "the ac- tual agreement and transaction proved by two | members of the firm, and uncontradicted, pre- vailed." It was because of the agieement ex- pressly proved that title was held to have { pa.ssed to the consignee on delivery to the ' carrier, and in that way the shipper's right to J change consignment and destination was lost, j The court say in that case, the goods were not sold outright to the consignee at specitied ! price, but they were by agreement sent to him for siile. and that the proceeds should be ap- plied to the i)ayment of the debt; creating th rel y the quisi r lation of tiustee, 1 1 wh im, for the purposes of the trust, tlie title passed. In Straus v. Wessel. 30 Ohio St. 211, the ad- vances had been made on the particular lot of pork to be shipped, which, by express con- tract. Avas shipped to pay the indebtedness; and it was held, that under these circumstan- ces, the delivery to the carrier was a delivery to the consignee, who. the court say, in sucli case, is in the jjosition of purchaser, having paid for the goods. If the present case by the proof, measured up in its facts to these last considered cases we should think the delivery complete so as to pass title unless the act of 187(J interposes an insuperable barrier to such a view, which the necessities of this case do not reciuire us to consider. According to the facts of the case, which are undisputed, we think it very dear that there Avas no intention in the orig- inal shipment to pass the title out of the ship- per, which. Judge Church says, in Bailey's Case, already considered, is the true test to be applied. There was certainly no contract that the tlour should be shipped to pay the margins or advances on account of the goods still in Corner's hands and unsold. The tlour Avas shipped Avithout order from Corner iS: Co. The letter advising Corner of the ship- ment and naming the price at Avhich he Avas to sell, bears evidence of its being an unsug- gested shipment, jind that Corner had been Avriting despon500 Avas draAvn and put in bank for transmission to Baltimore for presentation to Corner & Co., but it also appears it Avas subsequently AvithdraAVn and was never sent, because Merlon had received an order from C. Ruhl cV: Son for flour, and de- termined to change the consignment, and send this flour to Ruhl tS: Sou instead of to Corner cV: Co. The Chicago railroad agent AAas tele- graphed by the Minneapolis agent to hold the flour for this change to be made before Cor- ner & Co. sent their letter of the 24th of Jan- uary, suggesting There was an exhaustion of margins, and if any flour should be shipped, that it be shipped without draft. It is clear, therefore, there Avas no mutual assent be- tAveen Merion and Corner & Co. to the flour being sent by Merion to Corner & Co. to pay for preAious ailvauces on former orders. AA'ithout such assent, of course there Avas no contract, rnfornniately, the carding of tiie car, by tlu' neglect of the railroad or of WHEN TITLE PASSES. 17; Mt'iiou. was not rhaii.^cd, aud the flour came tlirougb to Baltimofc, aud was delivered to Coruer & Co., aud this couiplieatiou has pro- duced all the trouble. If the Hour was Mer- ion's wlieu Corner received it, of course Cor- ner's liens for previous advances would at once attach, and ^leriou would have to pay them to release the flour; but if. on the other liand, Merion had. while the flour was in transitu and at his risk, parted with the title, and the flour was no lousier liis. the liens of Corner «& Co. would not and could not attach. We have seen that when the flour was ship- ped it was sent to Corner without order, aud the carrier was Merion's ajieut aud not Cor- ner's; aud that notliiuy afterwards occurred to change the relation of the carrier and make it the agent of Coruer 1. Until he delivered the goods to her no title or right of possession would pass to her, and it is immaterial whether he right- fully or wrongfully refused to make the de- livery. At the time she replevied the goods, she had no title or right of possession. Ex- ceptions overruled. WIIi:.\ JITLi: PASSES. 177 HiGGiNS V. :\[rui:AY. (73 N. Y. ■27,-2.\ Court of Appeals of New York. 1878. Action for work and materials. Defendant enaployed plaintiff to maunfacture some cir- cus tents, Avitliiu a .specitied time, from ma- terial fiirnislied by plaintiff. No place of delivery or price was si)ecitied. Defendant afterwards requested plaintiff, by letter, to ship the tents to him at Lewistou. He ship- ped them b.v steamboat, via I'ortland, C. 0.1)., and they were destroyed by fire on the way. CHFRCIl. C. J. The action is not strictly for the sale of the article manufactiu-ed. but for work, labor, and materials, performed and used in its manufacture (Mixer v. How- arth. 21 Pick. 20.")); and hence is not within the statute of frauds. It is undisputed tliat the plaintiff performed liis contract, and if the defendant had refused to take the tents, an action upon the agrreement would have been sustained. Crookshank y. Biu'rell. 18 Johns. oS. There is some confusion in the authorities as to when the title passes to the purchaser in such cases. In Andrews v. Durant, 11 N. Y. 3o, Denio. J., lays down the rule, that in such a case "the title does not pass until the article is finislied and deliver ed. or at least ready for delivery, and ap- proved by such party;" and there are otli- er authorities to the same effect. Grippeu V. Railroad Co.. 40 N. Y. 3i!; Comfort v. Kiersted, 20 Barb. 473. It is urged in this case that the title did not pass, for two reasons: First. Because there was no acceptance; and. second. Be- cause the plaintiff' sliipped the property C. O. D., thereb.v refusing to deliver until the value was paid. This last ground was sus- tained in Baker v. Bourcicault, 1 Daly. 24. where certain cards were ordered to be sent to New Orleans, and were sent C. O. D.. and lost at sea. The important question to determine is when the lial)ility of the defendant attach- ed. If the article had burned during the progress of construction, it is clear that no action would lie, for the reason that the contract was an entirety, and until perform- ed, no liability would exist. And this rule I apprehend would apply when the contract is to make and deliver at a particular place. and loss ensues before delivery at the place, and for the same reason. But when the con- tract is fully performed, both as it respects the character of the article, and the delivery at the place agreed upon or implied, and the defendant is notified, or if a specified time is fixed, and the contract is performed within that time, upon geueral principles I am unable to perceive wh.v the party mak- ing such a contract is not liable. One per- son agrees to manufacture a wagon for an- other in thirty days for ."flOO. and the other agrees to pay for it. The mechanic performs his contract. Is he not entitled to enforce the obligation against the other party, and if VAX ZILE SEL.CAS.SALES— 13 after such performance the wagon is destroy- ed without the fault of the meclianic, is thf undischarged liability canceled? It does not depend upon where the technical title is, as in the sale of goods. It was upon this principle substantially that Adlard v. Booth, 7 Car. & I*. 108, was decided. The qius- tion was submitted to the jury whether tlie work of printing books was completem the seller, and to transmit the price to the seller. When, thnrefore, the goods were delivered to the carrier at Pittsburgh for the purpose of trans- portation, the duty of the seller was per- formed, as we have already seen, so far as he and the purchaser were concerned, and as between them the transaction was complete. The duty of transportation devolved upon the carrier, and for it he was, in one sense, tiie agent of the seller, as well as of the pur- chaser; but, as it was to be at the expense of the purchaser, the delivery to the carrier was a delivery to the purcliaser; and this was ruled in (Jarbracht's Case. Tlie injunc- tion to the carrier to collect the money on de- liveiy impiised an additional duty on the car- rier, which the carrier was, of course, bound to discharge. This arrangement was a mat- ter of convenience, both to tiie purchaser and the seller, rehitive to the payment and trans- mission of the price; but that is all. To con- vert this entirely innocent and purely civil conversation, respecting the mode of collect- ing the price of the goods, into a crime, is, in our judgment, a grave perversion of the criminal lavv, to which we cannot assent. As a matter of course, there is an utter absence of any criminal intent in the case. The de- fendant had a license. The sale was made at his place of business, and both the sale and delivery were completed within the ter- ritory covered by the license. If, now, a criminal character is to be given to the trans- action, it must be done by means of a tech- nical inference that the title did not pass un- til the money was paid; and thus that the place of sale, which in point of fact was in Allegheny county, was changed to M-mc r county, where no sale was made. Even granting that, in order to conserve the ven- dor's lien, su'h a technical inference would be jiistilied for the purposes of a civil con- tract, it by no means follows that the plain facts of the case must be clothed with a crim- inal consHquence on that account. So far as tlie criminal law is concerned, it is only an actual sale without license that is prohibit- ed. But there was no such sale, because all the essential facts which constitute the sale transpired in Allegheny county, where the defendant's license was operative. The car- rier, being the agent of the purchaser to re- ceive the goods, does receive them from the seller in Allegheny county, and the delivery to him for the purpose of transportation was a delivery to the purchaser. This is tlie le- gal, and certainlv the common, understand- ing of a sale. The statute, being criminal, must be strictly construed; and only those acts which are plainly within its meaning, according to the comm(m understanding of men, can lie regarded as prohibited criminal acts. We c naot consider, therefore, that a mere undertaking on the part of the carrier WHEX TITLE PASSES. 181 to collect the price of the goods at the time of his delivery to the purchaser, though the payment of the price be a condition of the delivery, can sullice to convert the seller's delivery to the carrier for transportation and r^ollection into a crime. We tlu^rcfore hold that the sales made by the defendant upon orders, C. O. D., received from the purchasers were not in violation of the criminal statute against sales without license, and the con- viction and sentence in the court below must be set aside. The jud^'ment of tiie court of quarter sessions is reversed, and the defend- ant is discharged from his recognizance up- on this indictment. WILLIAMS, J., dissents. 182 WHEN TITLE TASSES. AT LTMAX. ^[ILLEK & CO. v. CLIFFORD. (."»(•> N. W. r)!»8, .".."i Minn. 159.) Supreme Court of Minnesota. Oct. 27, 1893. Appeal from (li.strict court, Traverse coun- ty; Brown, Jurtaiu kind of work does not fulfill the conditions of the order by furnishing a binder of a different kind, and which will not do the work of the binder ordered. This is not the case of a binder being present at the time the order was given, and the seller then warranting the binder to do good work, but a case of an executory instrument, incom- plete on its face, and not puri)orting to give the whole of the mutual executory engage- ments of the parties. The term "three fall payments, at eight per cent.." of ifllO. is uncertain and amliigiioiis. The term "fall," when applied to the seasons of the year, is defined b.v Webster to mean "the season when the leaves fall from the trees." If the word "fall," as used in this order, means during the months of Septeml)er, October, and November, then its ambiguity is ap- parent, for in such case it would be payable in some of those months; biit whether Sep- tember 1st. or the middle of October, or the last day of November, there is no legal way of determining. The plaintiff' might claim that the payments would each be due the 1st day of September of each year, and the de- fendant Avith equally as much confidence claim that they would not be due imtil the last day of November of each year, and this ambiguity lead the parties into that verj' litigation which the law seeks to avoid, by recpuring contracts to be definite and cer- tain, or, in other words, complete contracts in themselves. If there was no time men- tioned at all, then it would be understood by the parties to be a cash payment, or that deliveiy and payment were to be concuiTent acts. In the case of O'Donnell v. Leeman, 43 Me. 1.18, an ins-^rument of sale provided that the consideration should be one-third cash down, but ft was silent as to -vvhen" the rest shoiUd be paid, and it was held to be an incomplete instrument, and that no ac- tion could be maintained upon it at law or in equity. In this case there was not that le- gal delivery or acceptance of the projierty which passed tht' title to the defendant. There was an actual physical deliveiy of the binder to the defendant, and a temporary use of it by him. but he did not receive any substantial benefit from its use, and return- ed it to the premi!/»\s of the plaintiff, where it was left, although plaintiff refused to ac- cept it. A delivery of property, so as to pass the title to it tsnd make the transaction an executed contract, should be a delivery of the property correrponding with the order or contract, which *s a condition precedent to the vesting of tht' title in the vendee. 10 Amer. & Eng. Enc. J.aw, 104, 105. The writ- WHEN TITLE PASSES. 183 ten instnimont or order being incomplete, and not purporting- on its face to express the wliole of the nvutual agreement of tlie parties, parol evidence was admissible to show an oral agreement on the part of plaintiff, which constituted a condition on which defendant gave the written order, and on wliich performance on his part was to depend, as that tlie binder should be of a certain quality. The jury must have found that the plaintiff did not in this respect com- ply with his parol warranty and representa- tions, and, if not, then there was not such legal delivery and acceptance of the binder by defendant as Ijound him to retain or pay for it. The oral evidence respecting tlie parol waiTanty was properly admitted, and the court below erred in granting a new trial. For this error the order granting .such new trial is reversed. 184 WHEN TITLE PASSES. HOOVEK ft :il. v. MAIIER. (."3 N. W. G4(;, r,! Minn. 269.) Supreme Court of Mimiesota. Nov. 12. 1S02. Appeal from district court. Biu: Stone couu ty; Brown. .Fudfie. Action in tlie district court of Hennepin county by Abel Hoover and another, partners as Hoover & (Tand)le, anainst .John Maher to recover for jidods sold. After issue joined, the action was removed to the cotmty of Bijr Stone, on demand for a change of venue, and submitted to the court on an agreed state- ment of facts. Findings were thereafter tiled, and judgment ordered for defendant. From an order denying a new trial, plaintiffs appeal. Affirmed. Keith. Evans, Thompson tfe Fairchild, for appellants. A. S. Crosstield. for respondent. GILFILLAN, C. J. Action to recover for goods sold. The only question is, was there an executed, or only an executory, contract of sale? The plaintiffs' place of business was Miamisburg, Ohio; the defendant's, Beardsley, ]\Iiuu. .June 25, 18!)0, the defend- ant ttlegraphed plaintiffs: "I Avill take 4.000 lb. of your standard twine, at 13i/^, at Minne- apolis, but don't want it shipped till about .luly 1.5th." June 28th plaintiffs wrote de- fendant: "Yours of 25th to hand. \Ve are loading car to-day for ^linneapolis. and will put in for you 4,000 lb. of our standard twine at 131/^ c. frt., from Minneapolis. The car will arrive at Minneapolis about .Tuly Gth. If you do not want it shipped out at that time, please notify the Security Warehouse Company, Minneapolis. Minn., to hold till you want it; otlierwi.se will instruct them to sliip as soon as car arrives, and, if they do not hear from you, they will do so." .June 30th plaintiffs sent a bill for the 4,000 lbs. twine with this notation: "In car load to Security W. H. Co. Terms, note due Nov. 1, '00, with 8^ interest after due." June 13th defendant w-rote the Security Warehouse: "Messrs. Hoover & Gamble, of Miaiyisburg, Ohio, are shipping twine to your house for me, and I want you to hold this twine until I order it out. It must be held free of charge to me; if there is any charge, you must make H. & G. stand it." .Inly 9th defend- ant Avrote plaintiff: "Your letter received, with note inclosed for signature. I will at- tend to it as soon as twine is received." Up- on the telegi-am of .June 2.5tli plaintiff set apart from its stock 4,000 lbs. of twine, marked it with defendant's name addressed to him at Beardsley, sent it in a car load of other twine in various parcels tagged and addressed to various persons to tiie Security Warehouse Company, Minneapolis, where it was received prior to .July loth. July 15th the warehouse, with its contents, including the 4,000 lbs. of twine, was totally destroyed by fire. Whether, upim tlie foregoing corresjjond- ence, the twine was to be delivei-ed by plain- tiffs to d'efendant at Beardsley or at INimiie- apolis is immaterial. It is clear it was not intended the title should pass to defendant, so that he should become liable for tue price, until a delivery at one place or the other. Merely setting the twine apart from plain- tiffs' general stock, for the puii)ose of filling defendant's order, did not pass the title, nor shipping it to the Security Warehouse, nor tlie receipt of it by the warehotise company, for that company was the agent of the plaintiffs. And had that company either ten- dered delivery to him jit Minneapolis, or ship- I)ed it to him from that place, prior lo the time specified in his order, he wotild have been under no obligation to receive it. ^vnen one orders goods to be sent him, auct tiiereliy makes the vendor his agent to select and ap- propriate the specific aiticles to the contract, the latter must do it in the manner pre- scribed. Thus, where the order was to ship the article from a specified place to the ven- dee, a shipment from another place was held not an appropriation of the article to the con- tract, so that the title passed. Jones v. Schneider, 22 Minn. 279. Of course, the ven- dee, when authorizing the vendor to make the appropriation, may attach a condition as to time, as the defendant did in this case, as well as .any other condition. The plaintiffs did not observe that condition. The defend- ant might waive compliance with the condi- tion; might take such action as would make a constructive delivery, without actually re- ceiving the twine from the warehouse com- pany, as if he had consented that the com- pany should thereafter hold it for him; and plaiutitt's claim that he did so by his letter to the company of June 30th. ^\ hen that let- ter is read in connection with the order, and plaintiff's" letter of Jxme 28th, it would be do- ing violence to it to construe it to be a con- sent, as between plaintiffs and defendant, to waive the condition of the order as to time, and to have tlie warehouse company hold the twine thereafter on account of defendant in- stead of on account of plaintiffs. Had it been written without any suggestion of plain- tiffs that might be claimed as its effect. But they, for their own convenience, had shipped the twine from Miamisburg, so that it would arrive at Minneapolis before the time when defendant Avould be ready to receive it ac- cording to his order, and, assuming that he might waive the matter of time and consent to its shipment to him from ^linneapolis as soon as it arrived there, the plaintiffs wrote their letter of June 28th, re(iuesting him, in case he did not so consent, to do just what he did,— to notify the warehouse company, the agent of plaintiff's, to hold it till he shoiild want it. Neither ]-»arty could have under- stood that notification to be a consent to re- ceive the twine before the time when he would have received it had it been shijiped as directed by the order. Order affirmed. WHEN TITLE PASSES. 1S5- CRANE V. WILSON ot al. (G3 N. W. 500.) Supreme Court of Michigan. May 28, 1895. Error to circuit court, Bay county; An- drew C. Maxwell, Judge. Action by Hiram A. Crane a5,^ainst Filzland L. AVilson and others, as the Wilson Hoop Company, for the contract price of goods sold. From a judgment for plaintiff, defend- ants bring error. Reversed. L. E. Joslyn (H. H. Hatch, of counsel), for appellants. Pratt, Van Kleeck & Gilbert, for jippellee. LONG, J. Plaintiff and one Hart entered into a written contract with the defendants, as the Wilson Hoop Company, to "deliver in the boom limits of the Bay View Boom Com- pany, below M. Haggerty's boom," one to three hundred thousand feet of elm logs, 12 inches in diameter and upwards. The logs were to be banked at a certain place men- tioned in the contract. The contract pro- vided that, in consideration of the faithful performance of the agreement, the Wilson Hoop Company was to pay to Hart & Crane .$().50 per 1,000 feet, as follows: $2.75 when the logs were delivered on the bank, and $3.75 Avhen the logs were delivered in the Bay View boom, rafted in good shape, as l)rovided above. The contract provided, as to time of delivery, as follows: "The party of the first part further agrees to run said logs down the boom limits just as early as possible in the spring of 1891; if possible, before or ahead of the drive." The contract was assigned to the plaintiff in this suit. He claims to have delivered on the bank 111,118 feet of contract logs; that, after they were scaled, all were rafted that defendants furnished chain dogs for; that they were run to the Bay View boom, the greater part in 1891; that those not run remained in the jam the following winter, and were run the next season; that he had received $2.75 per 1,000, according to the contract, for 111,118 feet; and that the balance of the contract price was still due. This action is brought to recover such balance. On the trial, de- fendant contended that under the contract it was not bound to receive the logs deliver- ed after the season of 1891; that the logs were for manufacture into hoops, and must be green timber; that the logs remaining over the sen sou exposed to the sun were spoiled for lioops; and that the contract limited the time in which they were to be received to the season of 1891. The court charged the jury that: "If the logs came down, and were delivered to the defendants, in the boom company limits l)e- low Haggerty's boom, either in the year 1891 or 1892, they would be bound to take them. * * * They would be bound to pay for them, whether they took them or not, if they were put down there for them." This raises the only question which we need discuss. The contract, in very plain terms, limits th(> time of delivery to the season of 1891. It is true that in an agreement which calls for delivery by a certain time, and delivery is not made by such time, a subsequent deliv- ery will be binding, provided the party to whom the delivery is to be made accepts and retains the property, as such acceptance is a waiver of the terms of the contract, so far as the time is concerned, and is evidence of a new contract, fixing a different time; and it is true that the plaintiff claimed that the defendant did accept delivery at a time later than the time mentioned in the contract. But this was in dispute between the parties. as the defendant contended that it had not accepted them. The testimony was confiict- ing on this point. The court, however, ex- plicitly instructed the jury that the defend- ants were bound to take them, even if not delivered until the year 1892. It was a (pies- tion of fact, for the jury to determine, wheth- er there was an acceptance of the logs of 1892. If there was no such acceptance, or waiver of the time of delivery, then, luider the terms of the contract, the plaintiff could not insist upon the defendants taking the logs of 1892. The court was in error in the chai-ge. The parties had reduced their con- tract to writing, and nmst be bound by its terms. The judgment must be reversed, and a, new trinl granted. The other justices con- curred. 186 WHEN TITLE PASSES. WHEELHOUSE v. PARR. (6 N. E. 787, 141 Mass. 593.) Supreme Judicial Court of Massachusetts. Middlesex. May 8, 188G. This was an action of contract to recover ?440.22 for a lot of leather sold to defend- ant. Hearing in the superior court, which found for the plaintiff, and the defendant appealed. The facts appear in the opinion. F. VV. Qua and F. P. Marble, for plaintiff. "Wm. H. Anderson, for defendant. DEVENS. J. When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties, or directed by the purchaser; or when no agreement is made, or direction given, to Oe transported in the usual mode; or when the purchase!", being informed of the mode of transportation, as- sents to it; or when there have been previ- ous sales of other goods to the transportation of which, in a similar manner, the purchaser has not objected, — the goods, when deliver- ed to the carrier, are at the risk of the pur- chaser, and the property is deemed to be vested in him subject to the vendor's right of stoppage in transitu. This proposition as- .sumes tliat proper directions and informa- tion ai'e given to the carrier as to forward- ing the goods. AVhiting v. Farrand, 1 Conn. GO; Quimby v. Carr, 7 Allen, 417; Finn v. Clark. 10 Allen. 484: Finn v. Clark. 12 Al- len, .522; Downer v. Thompson, 2 Hill, 137; Foster v. Itockwell. 1(H Mass. 170; Odell V. Railroad, 100 Mass. 50; Wigton v. Bow- ley, 130 Mass. 2.52. The defendant had made a purchase of leather in November previously to the pur- chase of that the price of which is in con- troversy, under a direction to the plaintiff to "ship to care of D. and C. Mclver, ship- ping merchants, Liverpool, as soon as pos- sible, for their next steamer to Boston, di- rect." This shipment was made as ordered, and on December 10, 1884, the defendant sent a further order saying: "As regards the shipping of the leather just received, you have done everything .satisfactory-. Ship this order in like manner." The directions by which the plaintiff was to be controlled nmst be interpreted as re- quiring him to forward the goods to D. & C. Mclver, to be transported by them by the Cunard line, of which they were managers and agents. The words "their next steam- er" could not have meant any steamer which would accept freight from D. & C. Mclver. Cases may be readily imagined wliere these words would be of the highest importance; as if the defendant had an open policy of insurance protecting his goods which might be sent by the Cunard line. It might also be true that the defendant would not deem a policy of insurance necessary when goods were sent by a well-established passenger line, where greater precautions might prob- ably be taken for safety, which he would deem necessary when they were sent by a purely freighting steamer. The goods were actually forwarded to D. & C. Mclvei-, with instructions in conformity Avith the direc- tions of the defendant, and, had the mat- ter ended there, so far as any directions to D. & C. Mclver is concerned, the plaintiff would be entitled to treat them as delivered to the defendant, and to require him to pay the purchase money. If, on the other hand, while the goods were yet in the hands of the carrier, and before transportation of them had commencetl, the plaintiff changed the directions given to him by the defendant, or authorized the carrier to transport them in a different mode fix^m that directed by the defendant, and loss has thereby occur- red, he cannot contend that they were de- livered to the defendant by him. By con- tinuing to exercise dominion over them, and by giving a new direction, impliedly with- drawing the directions previously given, he cannot be allowed to assert that he had made a complete delivery by his original act. if a loss lias occurred by reason of that which he has subsequently done or dii'ected. The change in the directions given relates back to and qualities the original delivery. The plaintiff, in answer to a letter from D. & C. Mclver, after the goods had reached them, inquiring whether they were to keep the goods "for our steamer, 14th inst., or ship by the Glamorgan," ordered them to be shipped by the steamer arriving out first, presumal)ly the steamer which D. & C. Mc- lver believetl would be the first to arrive. The Glamorgan was not a steamer of any line of which D. & C. Mclver were owners or agents, and in no way answers the de- scription of "their steamer" as applied to D. & C. Mclver. By neglecting to limit the authority of D. & C. Mclver to send by a steamer which could be thus descril)ed, and by directing them to send by the steamer which would first arrive, the plaintiff" had failed to comply with the orders of the de- fendant as to the shipment of goods: and if correct directions had originally been given, had withdrawn them, and substituted others. When, therefore, exercising the autliority thus given by the plaintiff, D. & C. Mclver send by the Glamorgan, as being, in their judgment, the steamer likely to arrive first, and a loss occurs, it should not be borne by the defendant, whose directions have not been followed. .Judgment for the defendant. WHl-:.\ TITLE PASSES. 187 COMSTOCK et al. v. SANGER ct al. (16 N. W. 872, r.l Mi.h. 4117.) Supreme Court of Miehigau. Oct. 17. 1883. Keatiua: «.V: Dickermau and Markhani iVi Xoves, for auuellants. Norris «& Ulil. for an Dellee. COOLEY. J. Assumpsit to recover the price of luml)er sold. On August 2(i. 18S1, Mr. Chauucy Pettibone, as agent for the defend- ants, entered into a contract with the plain tiffs, of which they gave him the memor;ni- dam copied in the margin. i The plaintiffs commenced making deliveiy on the contract, and prior to October 4, ISSl, had delivered upwards of 4(^),()()0 feet of lumber in Milwau- kee: and sutticieut in Muskegon to make up a total of 759.023 feet. Mr. Pettibone had at- tended to the receipt of the lumber at Muske- gon, and tally sheets had been given, showing the quantity of the several sizes. It will ap- pear that only a fraction over 40,000 feet was then required to make up 800.000 when, on the day last named, a vessel, the R. P. Ma- son, was waiting at Muskegon to be loaded. But though the whole quantity was so nearly supplied, it is shown that of the special sizes mentioned in the contract much more than 40.000 feet had not been delivered. These sizes were of more value than the ordinary run of the lumber, and were not always readi- ly obtainable, and much lumber of imusual sizes, but not corresponding to the sizes si^eci- fied in the contract, appear to have been deliv- ered from time to time, without objection by either party, and without any expressed un- feet, as per the taUy sheets, and that thereupon the agent of the defendants. Mr. Pettibone. objected to paying the contract price of $9..j0 upon such excess, as it exceeded the amount contemplat- ed by the contract, and it was then and there agreed between the said Pettil)one and plain- tiff Chester W. Comstock, as a compromise and adjustment touching the lumber received and agi-eed to be received under the contract, that such excess of 135,530 feet should be cliarged at nine dollars per thousand only, rlien. although the entire amount of 93.J..530 feet actually receiA-ed by the defendants, and by them appropriated to their own use. was not. in every respect, sawed into the particular lengths and sizes specified in the contract, the df^fiudants will not be allowed to recoup by reason thereof, but will lie held to pay for the lumber so received and retained by them." "The contract provided that out of the 800,- OCK) feet contracted to be sold a certain por- tion should be cut into certain specified sizes and lengths, and it was the pi'ivilege of the defendants to insist upon strict compliance therewith or to waive the same. It was their privilege, as the lumber was delivered to them from time to time on the dock, to refuse to re- ceive any portion that did not satisfy the con- tract; and if. with eveiy opportunity afforded to inspect the same, and if. when the last cargo was loaded, they had full knowledge that the entire (juantitj- contemplated by the contract would be thereby I'eceived, and that there was an excess of certain sizes and lengths, and a shortage as to other sizes and lengths, and they saw fit to accept the same in satisfaction of the contract, they cannot re- covei- on account of such shortage." It is contended on the part of the defense that there was no evidence in the case which wai'ranted sul)mitting to the jury tlie question of compromise as the judge submitted it, and no evidence showing any waiver by defend- ants of their right to the remainder of the special sizes. We think there not only was such evidenc-e, but that it was so c-ondnsive in its nature that but one deduction could be made from it. It is true that in the talk between Pettibone and the plaintiffs after the loading of the K. P. Mason, the word "compromise," or pe)'- haps any equivalent word, is not shown to have been made use of, but what they were speak- ing of is seen to have been a delivered sur- plus above the contract quantity, and it is only in respect to this that there is any allu- sion to an open question. The 800,000 feet had been delivered and received; it did not in all resp(H-ts comply with the contract, but it had nevertheless been taken without, so far as appears, any protest or any reservation of a right to question afterwards its having been received under the contract. A large excess had also been received, and Pettibone claimed that this liad happened because they would not otherwise get the special sizes the contract called for. For this reason, and also because, as he said, there had been a decline in prices, he insisted there should be an abatement. But it does not appear that any excess was in the mind of either party except the existing excess over S*M),000 feet, nor did Pettibone at the time put forward a claim to the special sizes not yet delivered. If those special sizes were still to be received, the existing large excess would be doubled, and there would be the same reason for making a deduction for the added excess as for that already had. But nothing said by either party at this time gives any indication that either of them had in mind any increase to take place afterwards in the existing excess. It appears, then, that the full contract quan- tity had been delivered by plaintiffs, and been received by defendants under the supervision of defendants; and though the special sizes did not correspond to those specified in the contract, there had been no protest against the receipt, and no reservation of a right to ob- ject afterwards to any of it. Wlien the final load was taken, defendants, by their agent, did complain that an excess had been thrown upon them, in consequence of the practical difficulty in reaching the special sizes in any other way: and, in respect to this excess, an abatement in price was insisted upon as rea- sonable. No further claim was then made, and, so far as the evidence goes, there was nothmg to then apprise the plaintiffs that de- fendants disputed having received any part of the 800.000 feet of lumber under the contract. But even if defendants had then insisted, at that time, upon a right to ff»rther delivery of si:>ecial sizeCi of lumber, we see no ground on which they could have been entitled to it. They had ali'eady received the full (luantity, and any difference between what they liad a right to demand and what, they had actually received was waived by the reception without protest. This is a mle of justice as well as law. Parker v. Palmer, 4 Barn. & Aid. 387; Chapman v. Morton, 11 Mees. & W. .534; lieed v. Randall. 29 \. Y. 3.58; Manufacturing Co. V. Allen, 53 N. Y. 515; Barton v. Kane, 17 Wis. 37; 18 Wis. 264; Watkins v. Paine, 57 Ga. 50. The contract in law had been complied with; and. though the performance was not exact, it had l)een accepted. If tlie WHEN TITLE PASSES. 189 jury had found otherwise, it would have beeu the duty of the court to set aside their verdict as unwarranted. As to the excess over S(X),- (.HiO feet, it is of no importMice in this case whether Pettibone did or did uot agree to the price the plaiutiffs uamed, as it appears with- out dispute the luuiljer was wurtli that price; aud. iu tlie abseuce of any a;.?reeuieut upon the price, the vahie must govern. the case disposes of it, and must be attirnied. with costs. The other justices concurred. This view of tlie judgment 190 WHEN TITLE PASSES. PALMKR V. BAXFIELD. (5G N. W. 1()'J(», SO Wis. 441.) Supreme Court of Wisconsin. Nov. 2S, 1893. Appeal from circuit court, Grant county; Gcorjje Clenioutson, Judge. Action by Jolin Palmer, Jr., against Thom- as Banliekl. From a judgment for plaintiff, defendant appeals. Attirmed. The other facts fully appear in the follow- ing statement bj^ LYON, C. J.: This action is to recover the price of a reai)er and harvester alleged to have been sold and delivered by plaintitf to defendant in August, 18!:k2, for the agreed price of .$110. The complaint states the contract to have been that defendant should on demand give plaintiff for the price of the machine his two promissory notes for ^~m each, — one payable in one year, and the otlun- in two years, from the date of sale, with interest. It is fur- ther alleged in the complaint that defendant took, used, and accepted the machine, and that on due demand by plaintift", made be- fore the action was commenced, that de- fendant execute such notes, the latter re- fused to do so. In his answer defendant de- nies that the parties made the agreement al- leged in the complaint, and avers that the only agreement made in respect to the ma- chine (which is referred to in the answer as a harvester and binder) was as follows: "The defendant was to take and did take said binder to try and use in his harvesting for the years 1892 and 1803, and that, if said harvester and binder did the work satis- factorily to this defendant during said two harvests, then, in that event, said defendant was to pay said plaintiff the sum of .'J!r>."> after the harvest of 1893. and the further sum of .$ r>.j in the fall of 1894, and not otherwise." The answer further alleges that on a fair trial of the machine it failed to work satisfactori- ly to defendant, and failed to do good work, whereupon he immediately returned it to plaintiff. The answer also contains a coim- terclaim for $2o damages for "trouble and expense by reason of said harvester and binder failing to work satisfactorily to the defendant." The cause was tried before the court and jury. The testimony of plaintiff tends to prove the allegations of the com- plaint, and that of defendant tends to prove the allegations of the answer. It appears by the testimony that the machine was deliv- ered to defendant on a certain Thursday aft- ernoon, and was immediately put to work, and developed some defects in its construc- tian. That defendant used it through Fri- day, and discovered other defects going to the capacity of the machine and the principle upon which it was constructed. The testi- mony tends strongly to show, if it does not prove conclusively, that as early as Friday defendant had discovered all the defects in the machine, was dissatisfied with it, and had decided to return it. However, he used the machine nearly all day on Saturday, and until he had finished cutting his grain, and then sent it to Cuba City, ly, miles distant. where plaintiff had a place of busines.s, and it was left on a vacant lot formerly occupied by plaintiff. The plaintiff never accepted return of the machine, and has had nothing; to do with it since such attempt to return it. The court refused to give the following in- structions proposed on behalf of defendant: "(1) When machinery is guarantied to do certain work in a satisfactory manner, ami not to be paid for until satisfactory to the purchaser, if it is in good faith unsatisfac- tory to him, and he notifies the vendor of that fact within a reasonaljle time, there is no sale. (2) If you find that the contract was that the binder was to do work to the satisfaction of the defendant, and that the defendant made an honest effort to make said binder do good work, and if the de- fendant within a reasonable time returned the binder to plaintiff" because he was in good faith dissatisfied with the binder, thi>n your verdict shall be in favor of the defend- ant. (3) If the jurj' find in favor of the de- fendant, they may also find such, damages, if any, that he may have suffered by reason of the failure of the binder to do the worl; agreed that it would do by the contract." The court submitted it to the jury to find what the contract of the parties was. and instructed the jury substantially that, if they found it to be as alleged by the plaintiff", there was an implied warranty that the ma- chine was suitable for the work it was in- tended to do; and, if not suitable therefor, defendant had the right to return it to plain- tiff within reasonable time after discover- ing its defects. But the court further in- structed the jury, if they found that defend- ant, after "he knew or ought to have known from the test he made that this machine was an unsatisfactory machine on Thursday- or Friday, and, after determining that he was not satisfied with it, nevertheless went on and worked with it on Satiu-day, for the purpose of completing his harvest, the law would consider that an acceptance of the machine." Also that such acceptance would foreclose defendant's right to return it. and render him liable to pay therefor the agreed price. The coiu't furtlier instructed the jury that, if they found defendant's version of th- contract the correct one. he had the right to return the machine if not satistied with it. unless he had theretofore accepted it under the rule of acceptance above stated; and. if he did thus accept it, the right to return it was lost. The jury found for plaintiff", and asses.sed his damages at .$110 (that be- ing the admitted conti-act price of the ma- chine) and interest thereon from the com- mencement of the action. A motion by de- fendant for a new trial was denied, and judgment entered for plaintift" pursuant to the verdict. Defend.mt appeals from the judgment. T. L. Cl(>nry. for appellant. Carter & Burns, for respondent. WHEN TITLE PASSES. 191 LYUN, C. J., (after statinji tho facts.) T. There is no claim in this case for dani- a;res for a breach of warranty, either ex- press or implied, on the sale of the reaper and liarvcster in controversy. The (jnesui-n of warranty is, therefore, of no siguittcance in the case, except as it bears upon the right of defendant to rettu'n the machine in case the sale thereof was absolute, as claim- ed by plaintiff. If the jin-y found the con- tract to be as claimed by defendailt, uni'> to his possession. So the question is not wheth- er the offer to return was made within •) n-a- sonable time, but whether the defeiulaut had any right to return the machine wlien he attempted to do so. If the sale was ab- solute, as claimed by plaintiff, and there was a breach of an express or implied war- ranty of the machine, and if defendant ac- cepted the machine after testing it. and dis- covering its defects; or if the sale was upon condition that, if dissatisfied with the ma- chine, the defendant miglft return it. and if defendant, after testing it, fully determined that it was unsatisfactory to him. and he would retm'u it. and afterwards accepted it. —in either case the right to return it was lost. The court instrticted the jury that, if defendant ascertained on Thursday or Fri- day that the machine did not do good work, in the one case; or. in the other case, that he then determined he would i-eturn it a>? unsatisfactory. — if he used it on Saturday, not to test it fm-ther. but merely to com- plete the cutting of his grain, and without any expectation that plaintiff or bis agent would come there and make the machine satisfactory to him. such use was an ac- ceptance of the machine as a compliance with the contract, and was fatal to his right to retiu'n it. We think the court stated the laAV correctly, and that the testimony jus- tified the submission to the jury of the ques- tion of accei»tMnce. It slioidd I)e stated that when phiintiff took the machine to defendant he had with him an expert, who assisted in starting it. There is testimony to the effect that, wltliout plaintiff's knowledge, such expert told defendant's son he would return on Friday, and see how the machine worked; but he made no promise to go there on Saturday. Plaintiff informed de- fendant that he would remain at Cu])a City (his home being in (ialena) until Saturday, where he could be notified if the machine did not work right. He remained there un- til Saturday afternoon, but received no such notice. It is very doul)tful whether the ex- pert had authority to bind plaintiff by his promise to retin-n on Friday, the plaintiff being present, acting for himself, although not in hearing at the time. But, waiving that question, the jury miglit well find from the testimony that defendant had no right to expect, and did not exjiect, that either plaintiff or the expert would retiu'n to de- fendant's farm on Friday, or at any other time, or that either of them intended or promised to have anything further to do with the machine, unless notified that it did not work well. II. It results from what is said above that the first and second instructions proposed by defendant are defective, in that they ignore the question of acceptance. They should have been qtialified by adding to each a clause to the effect that, if defendant ac- cepted the machine in the manner above stated.— that is, by -u-sing it to finish his harvest after he had tested it. and foimd that it would not do good work, or he determined that it was iinsatis factory and he would re- turn it,— his right to return it was lost; and the question whether he did so return or offer to return it, or notify plaintiff of his dissatisfaction therewith, within a rea.sou- able time, wotild be thereby eliminated from the case. The third proposed instruction goes expressly upon tie hypothesis that the defendant obtain a verdict. The verdict be- ing for plaintiff, the instruction becomes in- applicable to the case. III. On the trial the question was rais(>d whether plaintiff owned the cause of acti(m for the price of the machine. It was i)roved that he was the agent of the manufacturers for the sale thereof, and otlnu- like macliines. under a contract prescribing the terms on which alone sales shotild be made by him. and providing that, if sales were made on other terms, plaintiff should be charged with the machines thus sold as a purchaser. Tlie sale of the machine in question was not made in accordance with such prescribed terms and before this action was conimenceil it was charged to the plaintiff" as a purchas- er, and he paid the manufacturer therefor. ! Of coiu-se, he thus became the owner of the cause of action for the price of the machine. IV. Among the several errors assigned, one is as follows: "The court erred in conveying 102 WIIIOX TITLE PASSES. to tlio said jury his o]»ini(ms on tlic merits of the caso by the inaniicf in whifh Iw roiu- luouted on tho case aud furiuulated his m- structions to the jury." Tlic li'i'niod couiuu'l for defendant stated in liis arj,ninieut that this Is the main error on whieh he relies Tor a reversal of the jndiiinent, and he exi)lain- ed in a very ixiterestuij; manner how an hon- est jud.ue may be uneonsciously betrayed into actions and exi)ressions in tlie presence of the jury very prejudicial to the cause of one or the other of the parties. And si>, while paying a high and well-deserved trib- ute to the integrity, ability, and desire to do exact justice in all cases of the judge who lircsided at the trial, he argued that this Is S case of unconscious bias on the part of the judge against the case of the defendant, and souglit to prove its existence from the record. It is almost, if not entirely, inevit:^- ble that he should fail. This com-t can on'y know from tlje r(H'ord what the judge said and did on the trial. It is sufficient to say that the most searching scrutiny of the rec- ord not only fails to disclose the existence of any such bias, but it fails to raise even a suspicion of its existence. We find neither error nor impropriety in any of the remarks of the judge on the trial, which are referred to by counsel in support of bis position. Neither do we find any error in the rulings of the court on the trial, or in the charge to the jury. The judgment of the circuit court must be aflirmed. WHEN TITLE PASSES. 193 PRATT V. PECK ot al. (3() X. W. 410, 70 Wis. 020.) Siiprotnc Cou'-t of Wisconsin. Jan. 31, 1888. Appeal from circiiit c-ourt, Outagamie coun- ty. Geori^re W. Piatt sued Oscar D. Peck and others upon a contract for the manufacture und sale of lumber. Plaintiff obtained judg- lueut, and defendants appeal. Weisbrod, Ilarsliaw & Nevitt and S. U. Pinnej-, for appellants. Gabe Bouck, for re- ispondent. OliTON, J. The plaintiff was a manufac- turer of lumber in the city of Oshkosh, and Ihe defendants were manufacturers of sash, doors, and blinds, on the opposite side of the street. About the ninth day of August, 1S83, the defendants bought of the plaintiff 000,000 feet of plank, pai'tly seasoned and then piled up in the plaintiff's mill-yard, and 400,000 feet of the same kind of lumber, to be sawed ivud to be piled up in the plaintiff's yard, in the same manner, but in another piace nearer the defendant's factory. The terms of the bargain were that the defendants should pay for said lumber at the rate of $14 per thou- sand for shop common, $24 per thousand tor third clear, and $34 per thousand for first and second clear. For the 600,00(^) feet tneu piled up, the defendants were to pay the plaintiff' in 10 days, and for the 400.000 feet, to be sawed and so piled up, in 90 days, and if the plaintiff" should wish to use the defend- ants' paper for the 400,000 feet, before it was due, that he should have it, and the interest thereon should be charged back up to the time it was due. The IKMJ.OOO feet was to be hauled at once to the defendants' yaru by the plaintiff, and the 400,0(X) feer was to be piled up loosely, so that it could di-y, and was not to be hauled by the plaintiff' until the next spring. Both parties agree that this was the contract. The plaintiff commenced hauling the dry lumber at once, and contin- ued to haul until October 14th following, when the defendants' factory was burned, and had hauled 334,000 feet, and aiterwards, by the direction of the defendants, 143,000 feet was hauled to Gould's mill, in Oshkosh, and the balance was l)urned up in the plain- tiff's yard. The defendants paid the plain- tiff, by September 1st, $10,, etc., supra), have no application. They were enacted for the benefit and pro- tection of the parties therein mentioned. namel,v. creditors of the vendee, subsequent purchasers, and mortgagees in good faith, and the well-established rules of law fixing defendant's liability as a common carri'T were in m manner affected bj- the provisions therein contained. Order reversed. 196 WHEN TITLE PASSES. -XATIOXAL BANK OF COMMERCE OF BOSTON V. MERCHANTS' NAT. BANK OF MEMPHIS. (91 U. S. 92.) Supreme Court of the United States. Oct., 1875. Error to the circuit court of the United States for the district of Massachusetts. H. W. Paiue and H. C. Hutchins, fur plaiii- lilT iu error. W. G. Russell, contra. Mr. .Tusllce STRONG delivered the opin- ion of the court. The fundamental question in this case is, whether a bill of lading of merchandise de- liverable to order, when attached t(j a time draft and forwarded Avith the draft to an agent for collection, without any special in- structions, may be surrendered to the draw- ee on his acceptance of the draft, or whether the agent's duty is to hold the bill of lad- ing after the acceptance for the payment. It is true, there are other questions growing out of portions of the evidence, as well as one of the findings of the jury; but they are questions of secondary importance. The l)ills of exchange were drawn by cotton-bro- kers residing in Memphis. Tenn.. on Green & Travis, merchants, residing in Boston. They were drawn on account of cotton ship- ped by the brokers to Boston, invoices of which were sent to Green & Travis; and bills of lading were taken by the shippers, marls ed in case of two of the shipments "To or- der," and in case of the third shipment mark- ed "For Green 6c Travis, Boston, Mass." There was an agreement between the ship- pers and the drawees that the bill of lading should be surrendered on acceptance of the bills of exchange; but the existence of this agreement was not known by the Bank of Memphis when that bank discounted the drafts, and took with them the bills of lad- ing indorsed by the shippers. We do not propose to inquire now whether the agree- ment, under these circumstances, ought to have any effect upon the decision of the case. Conceding that bills of lading are negotiable, and that their indorsement and delivery pass the title of the shippers to the property specified in them, and therefore that the plaintiffs, when they discounted the drafts and took the indorsed railroad receipts or bills of lading, became the owners of the cotton, it is still true that they .sent the bills with the drafts to their correspondents in New York, the Metropolitan Bank, with no instructions to hold them after acceptance; and the Metropolitan Bank transmitted them to the defendants in Boston, with no other instruction than that the bills were sent "for collection." What, then, was the duty of the defendants? Obviously, it was first to obtain the acceptance of the bills of ex- ciiange. But (Jreen & Travis Avere not bound to accept, even though they had or- dered the cotton, unless the bills of lad- ing were delivered to them contemporaneous- ly witli their acceptance. Their agreement with their vendors, the shippers, secured them against such an obligation. Moreovei*. independent of this agreement, the drafts upon their face showed that they had- been drawn upon the cotton covered by the bills of lading. Both the plaintiffs, and their agents the defendants, were thus informed that the bills were not drawn upon any fund.s of the drawers in the hands of (Jreen & Travis, and that they were expected to be paid out of the proceeds of the cotton. But how could they be paid out of the pro- ceeds of the cotton if the bills of lading were withheld? Withholding them, there- fore, would defeat alike the expectation and the intent of the drawers of the bills. Hence, were there nothing more, it Avould seem that a drawer's agent to collect a time bill, with- out further instructions, would not be justi- fied in refttsing to surrender the property against which the bill was drawn, after its acceptance, and thus disable the acceptor from making payment otit of the property designated for that purpose. But it seems to be a natural inference, in- deed a necessary implication, from a time draft accompanied by a bill of lading in- dorsed in blank, that the merchandise (which iu this case was cotton) specified in the bill was sold on credit, to be paid for by the accepted draft, or that the draft is a de- mand for an advance on the shipment, or that the transaction is a consignment to be sold by the drawee on account of the ship- per. It is difficult to conceive of any other meaning the instruments can have. If so, in the absence of any express arrangement to the contrary, the acceptor, if a purchaser, is clearly entitled to the possession of the goods on his accepting the bill, and thus giving the A-endor a completed contract for payment. This would not be doubted, if, instead of an acceptance, he had given a promissory note for the goods, payable at the expiration of the stipulated credit. In such a case, it is clear that the vendor could not retain possession of the subject of the sale after receiving the note for the price. The idea of a sale on credit is that the vendee is to have the thing sold on his assumption to pay, and before actual payment. The consideration of the sale is the note. But an acceptor of a bill of exchange stands in the same position as the maker of a promissory note. If he has purchased on credit, and is denied possession until he shall make pay- ment, the transaction ceases to be what it was intended, and is converted into a cash sale. Everybody understands that a sale on credit entitles the purchaser to immediate possession of the property sold, unless there be a special agreement that it may be re- tained by the vendor; and such is the well- recognized doctrine of the law. The reason for this is, that very often, and with mer- chants generally, the thing purchased is needed to provide means for the deferred WHEN TITLE PASSES. 197 payment of rlic price. Hence it i.s justlj' in- ferred that the tliinj^ is intended to pass at once within ihe control of the purchaser. It is admitted that a different arraug:ement may be stipulated for. Even in a credit sale, it may be ajjreed by the parties that the vendor shall I'etain the subject until the expiration of the credit, as a security for the payment of the sum stipulated. But. if so. the agreement is special, something superadded to an ordi- nary contract of sale on credit, the existence of which is not to be presumed. Therefore, in a case where the drawing of a time draft against a consignment raises the implica- tion that the goods consigned have been sold on credit, the agent to whom the draft to be accepted and the bill of lading to be delivered have been intrusted cannot rea- sonably be required to know, without in- struction, that the trau.saction is not what it purports to be. He has no right to as- sume and act on the assumption that the vendee's term of credit must expire before be can have the goods, and that he is bound to accept the draft, thus making himself ab- solutely responsible for the sum named tlierein. and relying upon the vendor's en- gagement to deliver at a future time. This would be treating a sale on credit as a mere executory contract to sell at a subse- (luent date. If the inference to be drawn from a time draft accompanied by a bill of lading is, not that it evidences a credit sale, but a request for advances on the credit of the consign- ment, the consequence is the same. Perhaps it is even more apparent. It -plainly is. that the acceptance is not asked on the credit of the drawer of the draft, but on the faith of the consignment. The drawee is not a.sked to accept on the mere assurance that the drawer will, at a future day, deliver the goods to reimburse the advances: he is ask- ed to accept in reliance on a security in hand. To refuse to him that security is to deny him tlie basis of his requested acceptance: it is remitting him to the personal credit of the drawer alone. An agent for collection hav- ing the draft and attached bill of lading can- not he permitted, by declining to surrender the bill of lading on the acceptance of the bill, to disappoint the obvious intentions of the parties, and deny to the acceptor a sub- stantial right which by his contract is as- sured to him. The same remarks are ap- l)lieable to the case of an implication that the merchandise was shipped to be sold on account of the shipper. Nor can it make any difference that the draft with the bill of lading has been sent to an agent (as in this case) "for collection." That instruction means simply to rebut the inference from the indorsement tliat tlie agent is the owner of the draft. It indicates an agency. Sweeny v. Easter. 1 Wall. IW. It does not conflict with tlie plain inference from the draft and accompanying bill of lad- ing that the former was a request for a promise to ]iay at a future time for guods sold on credit, or a request to make ad- vances on the faith of the described consign- ment, or a request to sell on account of the shipper. By such a transmission to tli.^ agent, he is instructed to collect the money mentioned in the drafts, not to collect the bill of lading; and the tirst step in the col- lection is procuring acceptance of the draft. The agent is, therefore, authorized to do all which is necessary to obtaining such ac- ceptance. If the drawee is not bound to :ic- cept without the surrender to him of the consigned property or of the bill of lading, it is tlie duty of the agent to make that sur- render; and if he fails to perform this duty, and in consequence thereof acceptance be re- fused, the drawer and indorsers of the draft are discharged. Mason v. Hunt, 1 Doug. 297. The opinions we have suggested are su])- ported by other very rational considerations. In the ab.sence of special agreement, what is the considei'ation for acceptance of a time draft drawn against merchandise con signed? Is it the merchandise'.' Or is it the promise of the consignor to deliver? If the latter, the consignor may be wholly ir- responsible. If the bill of lading be to his order, he may, after acceptance of the draft, indorse it to a stranger, and thus wholly withdraw the goods from any possibility of their ever coming to the hands of the ac- ceptor. Is. then, the acceptance a mere pur- chase of the promise of thie drawer? If so. why are the goods forwarded before the^ time designated for payment? They are a.s much, after shipment, under the control of the drawer, as they were before. Why incur the expense of storage ajid of insur- ance? And if the draft with the goods or with the bill of lading be sent to a bank for collection, as in the case before us. can it be incumbent upon the bank to take and maintain custody of the property sent dur- ing The interval between the acceptance and the time fixed for payment? (The shipments in this case wei'e hundreds of bales of cot- ton.) Meanwhile, though it be a twelve- month, and no matter what the fluctuations in the market value of the goods may be. are the goods to be withheld from sale or use? Is the drawee to run the risk of fall- ing prices, with no ability to sell till the draft is due? If the consignment be of lierishable articles.— such as peaches, fish. l)Utter. eggs. &c.,— are they to remain in a warehouse until the term of credit shall ex- pire? And who is to pay the warehouse charges? Certainly not the drawees. If they are to be paid by the vendor, or one who has succeeded to the place of the ven- dor by indorsement of the draft and bill of lading, he fails to obtain the price for wliich the goods were sold. That the holder of a bill of lading, who has become such by indorsement and by dis- counting the draft drawn against the con- J98 WHEN TITLE PASSES. siyued property, suceoeds to the situatiou of the shipper, is not to be doubted. He has tlip same rij;ht to demand acceptauce of the aceompanylng bill, and no more. If the shipper cannot require acceptance of the draft without surrendering the bill of ladinj.;. neither can the holder. Bills of ladlns". though transferable by iudorseiyent, are only quasi negotiable. 1 Pars. Sliipp. 1!)2; i'.lanchard v. Page, 8 Gray, 297a. The in- (lorser does not acquire a right to change the agreement between the shipper and his ven- dee. He cannot impose obligations or deny advantages to the drawee of the bill of ex- ciiange drawn against the shipment which were not in the power of the drawer and consignor. But, were this not so in the ease we have now in hand, the ageiits for col- lection of the drafts were not informed, ei- ther by the drafts themselves or by any in- struetious they received, or in any other way, tliat the ownership of the drafts and bills of lading was not still in the consignors of the cotton. On the contrary, as the drafts were sent "for collection," they might well con- clude that the collection was to be made for tlie drawers of the bills. We do not, therefore, perceive any force in the argument pressed upon us, that the Bank of Memphis was the purchaser of the drafts drawn upon Green tVL' Travis, and the holder of the bills of lad- ing by indorsement of the shippers. It is urged that the bills of lading were con- tracts collateral to the bills of exchange which the bank discounted, and that, wdien transfer- red, they became a security for the principal obligation; namely, the contract evidenced by the bills of exchange,— for the whole contract, and not a part of it; and that the whole con- tract required not only the acceptance, but the payment of* the bills. The argument assumes tlie very thing to be proved; to wit, that the transfer of the bills of lading were made to se- cure the payment of the drafts. The opposite of this, as we have seen, is to be inferred from the bills of lading and the time drafts drawn against the consignments, unexplained by ex- press stipulations. The bank, when discount- ing the drafts, was bound to know that the drawers on their acceptance were entitled to the cotton, and, of course, to the evidences of title to it. If so, they knew that the bills of lading could not be a security for the ultimate payment of the drafts. Payment of the drafts by the drawees was no part of the contract when the discounts were made. The bills of exchange were then incomplete. They needed acceptaiace. They were discounted in the ex- pectation that they would be accepted, and that thus the bank would obtain additional prom- isors. The whole purpo.se of the transfers of the bills of lading to the bank may, therefore, well have been satisfied when the additional names were secured by acceptance, and when the drafts thereby became completed bills of exchange. We have already seen, that whether the drafts and accompanying bills of lading ( videnced sales on credit, or requests for ad- vancements on the cotton consigned, oi' l^ail- nients to be sold on the consignor's account, the drawees were entitled to the possession of the cotton before they could be required to ac- cept; and that, if they had declined to accept because possession was denied to them concur- rently with their acceptance, the effect would have been to disclv.rge the drawers and in- dorsers of the dr.:'f'ts. The demand of accept- ance, coupled with a claim to retain the l)ills of lading, would have been an insufficient de- m.'ind. Surelj' the purpose of piitting the bills of lading into the hands of the bank was to secure the completion of the drafts by obtain- ing additional names upon them, and not to discharge the drawers and indorsers, leaving the bank onl.y a resoit to the cotton pledged. It is said, that, if the plaintiffs were not en- titled to retain the bins of lading as a security for the payment of the drafts after their ac- ceptauce, their only security for payment was the undertaking of the draw^ees, who were without means, and the promise of the accept- ors, of whose standing and credit they knew nothing. This may be true; though they did know that the acceptors had previously prompt- ly met their acceptances, which were numerous, and large in amoimt. But. if they did not choose to rely solely on the responsiljility of the acceptors and drawers, they had it in their pow- er to instruct their agents not to deliver the cotton until the drafts were paid. Such in- structions are not infrequently given in case of time drafts against consignments; and the fact that they are given tends to show that in the commercial community it is understood, that, without them, agents for collection would be obliged to give over the bills of lading on ac- ceptance of the draft. Such instructions would be wholly unnecessary, if it is the duty of such agents to hold the bills of lading as securities for the ultimate payment. Thus far, we have considered the question \\'ithout reference to any other authority than that of reason. In addition to this, we thinlv the decisions of the courts and the language of many eminent judges accord with the opinions we avow. In the case of Lanfear v. Blossom, 1 La. Ann. 14S, the veiy point was decided, after an elaborate argument both by the coun- sel and by the cou-M:. It was held that "where a bill of exchange drawn on a shipment, and payable a certain number of days after sight, is sold, with the bill of lading appended to it, the holder of the bill of exchange cannot, in the absence of proof of any local usage to the contrary, or of the imminent insolvency of the diawee, require the latter to accept the bill of exchange, except on the delivery of the bill of lading; and when, in consequence of the" refusal of the holder to deliver the bill of lad- ing, acceptance is refused, and the bill protest- ed, the protest will be considered as made with- out cause, the drawee not having been in de- fault, and the drawer will be discharged." This decision is not to be distinguished in its essen- tial features from the opinions we have ex- pressed. A judgment in the same case to the WHEN TITLE PASSES. 199 same effect was jjiveii in the coinuierclal court of New Orleans by Judge ^^'atts, who support- ed it by a veiy couvinciuj; opinion. 14 Hunt. Mer. Mag. 2li4. The.se decisions were made in l-'4.j and lS4(j. In other couits. also, the ques- tion has arisen. What is the duty of a collecting banlv to which time drafts, with bills of Luling attached, have been sent for collection? and the decisions have been, that the agent is boimd to deliver the bills of lading to the ac- ceptor on his acceptance. In the case Wiscon- sin Marine & Fire las. Co. v. Banii of British North America (decided in lSi]li 21 U. C. Q. B. 284. Avhere it app'eared that the plaintiff, a bank at Milwaukee, Wis., had sent to the de- fendants, a bank at Toronto, for collection, a bill drawn by .\. at ^Milwaukee on B. at Toronto, payable fortj--five days after date, together Avith a bill of lading, indoiscd by A., for certain wheat sent from Milwaukee to Toronto, it was held, that, in the absence of any instructions to tiie coutraiy. vhe defendants were not bound to retain the bill of lading imtil payment of the draft by B., but wers^ right in giving it up to him on obtaining his acceptance. This case was reviewed in 1S(")3 in the court of eii'ov and appeals, and the judgment affirmed. 2 U. C. Err. & App. 282. See, also. Gooodenough v. Bank, 10 U. C. C. V. .jl: Clark v. Bank, 13 (irani, Ch. 211. There are also many expre.ssions of opinion by the most respectable com'ts. which, though not judgments, and therefore not authorities, are of weight in determining what are the im- plications of such a state of facts as this case exhibits. In Shepherd v. Harrison, L. R. 4 Q. B., 493, Lord Cockburn said: "The authori- ties are equally good to show, when the con- signor sends the bill of lading to an agent in this country to be by Wm handed over to the consignee, and accompanies that with bills of exchange to be accepted by the consignee," that that "indicates an mtention that the handing over of the bill of lading, and the acceptance of the bill or bills of exchange, should be con- current parts of one and the same transaction." The case subsi ciuently went to the house of lords (.5 H. L. 133) when Lord Cairns said: *Tf they (the drawees) accept the cargo and biU of lading, and accept the bill of exchange diawn against the cargo, the object of those who ship- ped the goods is obtained. They have got the bill of exchange in return for the cargo; they discount, or use it as they think proper; and they are virtually paid for the goods." In Coventry v. Gladstone, 4 L. It. Eq. 493, it was declared by the vice-chancellor that "the par- ties shipping the goods from Calcutta, in the absence of any stipulation to the contraiy, did give their agents in England full authority, if they thought fit, to pass over the bill of lading to the person who had accepted the bill of ex- cliange" drawn against the goods, and attached to the bill of lading; and it was ruled that an aUeged custom of trade to retain the bill of lading until payment of the accompanying draft on account of the consignment was exceptional, and- was not established as being tlie usual course of business. In Schuchardt v. Hall, 39 Md. 590 Avhich A\as a case of a time draft, ac- companied by a bill of lading, hj-pothecated by the drawer, both for the acceptance and ijay- ment of the draft, and when the di-awers luid been authorized to draw against the cargo ship- ped, it Avas said by the court: "Under their contract with the defendants, the latter Avere authorized to (haw only again.st the cargo of wheat to be shipped by the Ocean Belle; and they (the drawees) were, therefore, not bound to accept without the delivery to them of the bill of lading." See also the language of the judges in (iurney v. Behrend. 3 El. & Bl. 022; Bank v. Wright, 48 N. Y. 1; Bank v. Daniels, 47 N. Y. G31. We have been imable to discover a single de- cision of any court holding the opposite doc- trines. Those to which we have been referred as directly in point detennine nothing of the kind. Gilbert v Guignon, L. R. 8 Ch. 16, was a contest between tAvo holders of several bills of lading of the same shipment. The qutstlGn AA-as, which had priority? It AA'as not all wheth- er the draAA-ee of i time draft against a con- signment has not a right to the bill of lading Avhen he accepts. The drawer had accepted without requiring the sm'render of the first in- dorsed bill of lading; and the lord chancellor, while suggesting a query Avhether he might not have declined to accept unless the bills of lad- ing Avere at the same time deliA^ered up to him, remarked. "If he Avas content they should re- main in the hands of the holder, it was ex- actly the .same thing as if he had previously and originally authorized that course of pro- ceeding; and that (according to the chancellor's view) was actually Avhat had happened in the case." Nothing, therefore. Avas decided respect- ing the rights of the holder of a time thaft, to A\'hich a bill of lading is attached, as against the drawee. The contest was wholly inter alios. Seymour v. NeAAton, lO.j Mass. 272, AAas the case of an acceptance of the draft, without the presentation of the bill of lading. In that re- spect, it was like Gilbert v. Guignon. No ques- tion, however, was maole in regard to this. The acceptor became insolvent before the arrival of the goods; and all that AA-as decided was, that, under the circumstances, the jury would be authorized to find rliat the lien of the shippers had not been discharged. It was a case of stoppage in transitu. It is tiiie, that, in deliv- ering the opinion of the court, Chief Justice Chapman said: "The obvious purpose AA-as. that there should be no deliveiy to the vemlee till the draft should be paid." But the remark was purely obiter, uncalled for by any thing in the case. NeAAComb v. Boston & L. R. Coip.. 11.5 Mass. 230, was also the case of acceptance of sight drafts, w-ithout requiring the deliverj- of the attached bills of lading: and the contest A\-as not betAA-een the holder of the drafts and the acceptor; it Avas IjetAveen the holder of the drafts Avith the bills of lading and the carrier. We do not perceive that the case has any ap- plicability to the qutstion we haA-e now under 10(3 \Vlli:X TITLE PASSES. consideration. True, there, as in the case of Seymour v. Newton, it was remarlced by the jufljj:e who delivered the opinion, "Tlie raih'oad receJiits were manifestly intended to be held by the collecting bank as security for the accept- ance and payment of the drafts." Intended l)y whom? Evidently the court meant by the drawees and the bank; for it is immediatdj added, "Tliey continued to be held by the bank after the drafts had been accepted by Chandler & Co. (the drawees), and imtil at Chandler & Co.'s request they were paid by the plaintiff; and the receipts with the drafts still attached were indorsed and delivered bj' Chandler & Co. to the plaintiff." In Stollenwerck v. Thach- er, 115 Mass. 224 (the only other case cited by the defendants in eiror as in point on this ques- tion), there were instructions to the agent to de- liver the bill of lading only on payment of the draft; and it was held that the special agent, thus instructed, could not bind his principal by a delivery of the bill without such payment. Nothing was decided that is pertinent to the present case. In Bank v. Bayley, Id. 228, where the instructions given to the collecting agent were, so far as it appears, only that the drafts and bills of lading were remitted for collection, and where acceptance was refused. Chief Jus- tice Gray said: "The drawees of the draft at- tached to each of the bills of lading were not entitled to the bill of lading, or the propei'ty described therein, except upon acceptance of the draft." It is but just to say, however, that this remark, as well as those made by the same judge in the other Massachusetts cases cited, was aside from the decision of the court. After this review of the authorities cited, as in point, in the very elaborate argimient for the defendants in error, we feel justified in saying, that, in our opinion, no respectable case can be found in which it has been decided that when a time draft has been dra^vn against a consigiunent to order, and has been forwarded to an agent for collection with the bill of lading attached, without any further instructions, the agent is not justified in delivering over the bill of lading on the acceptance of the draft. If this, however, were doubtful, the doubt ought to be resolved favorably to the agent. In the case in hand, the Bank of Commerce, having accepted the agency to collect, was bound only to reasonable care and diligence in the discharge of its a.ssumed duties. Warren V. Bank, 10 Cush. oS2. In a case of doubt, its best judgment was all che principal had a right to require. If the absence of specific instruc- tions left it uncertain what was to be done further than to procure acceptances of the drafts, and to receiv^e payment when they fell due, it was the fault of the principal. If the consequence was a los«, it would be most un- just to cast the loss on the agent. Applying what we have said to the instruc- tion given by the learned judge of the circuit court to the juiy, it is evident that he was in error. Without discussing in detail the several assignments of error, it is sufReient for the ne- cessities of this case to say that it was a mis- take to charge the jury, as they were charged, that "in the abs'^nce of any consent of the owner of a liill of exchange, other than such as may be implied from the mere fact of sending^ 'for collection' a bill of exchange with a bill of lading pasted or attached to a bill of ex- change, the bank so receiving the two papers for collection would not be authorized to sep- arate the bill of lading from the bill of ex- change, and surrender it before the bill of ex- change was paid." And again: there was er- ror in the following portion of the charge: "But if the r*Ietropolitan Bank merely sent to the defendant liaiik the bills of exchange with the bills of lading attached for collection, with no other instructions, either expressed or im- plied from the past relations of the parties, they would not be so justified in surrendering (the bills of lading) on acceptance only." The Bank of Commerce can be held liable to the owners of the drafts for a breach of dut^' in surrendering the bills of lading on acceptance of the drafts, only after special instructions to retain the bills until payment of the acceptances. The drafts were all time drafts. One, it is time, was di-awn at sight; but, in ^lassachu- setts, such drafts are entitled to grace. What we have said renders it unnecessary to notice the other assignments of error. The judgment of the circuit court is reversed, and "^lie record is remitted with directions to award a new trial. WHEN TITLE PASSES. CO I BAKER T. CHICAGO, M. & ST. P. RY. CO. (G7 N. W. 37G.) Supreme Court of Iowa. May 22, 1S9G. Appeal from district court, Woodbury coun- ty; S. M. Ladd, Judge. Action for the value of goods shipped over defendant's line of road. Judgment for the plaintiff, and the defendant appealed. Re- versed. Taylor, Shull & Farnsworth, for appellant. Lynn & Foley, for appellee. GRANGER, J. 1. The ease on appeal pre- sents two causes of action, the first being for dates, ci-auberries, and cabbage shipped from Sioux City to Ha warden, in Iowa. They were consigned to L. M. Lake, who refused to re- ceive them, and the company sold then to third parties for two dollars. The petition charges a conversion by the defendant. The court instructed the jury that the plaintifC was entitled to recover the fair and reason- able value of the articles less the charges for transportation. The value, as alleged, is $10.30. The jury allowed plaintiff .$6. There is. in argument, as there should be, a con- cession that there was a conversion of the goods. The court left it to the jury to fix the amount, and there is testimony to show that the articles were worth from $10 to $12. There is no reason why Ave should disturb the finding of the jury, and the judgment in that particular will stand affirmed. 2. The other cause of action is for a car load of apples shipped from Boston, Mass., to Yankton, S. I). The apples were purchased for plaintiff by one Stickney about November 21, 1S02, and shipped by the National Dis- patch & Transfer Company to Chicago, and from there to Yankton by the defendant com- pany's line of road, reaching there about De- cember 4, 1802. After the shipment, the plaintiff, through defendant's agent at Sioux City, attempted to have the destination of the car changed to Sioux City, but it was not done. The purchase in Boston was made from York & Whitney, and the shipment was made by that finn to itself at Yankton. In making the purchase Stickney paid, on the car load, $100, and for the balance — .$324 — a draft was attached to the bill of lading by York & Whitney, and sent to the bank at Siou.x City for collection. The plaintiff re- sided at Sioux City, and at Yankton tliere was no one to receive the apples, and after some time they were stored, and afterwards, in Febrtiary, 1893, shipped to Sioux City, at the request of plaintiff. On reaching Sioux City they were found to be of no valtie, and plaintiff refused to accept them. The court, in charging the jury, stated the claims of the jmrties as follows: "The plaintiff claims that through his agent. Stickney, he purchased a far load of 150 barrels of apples in Boston, and paid $100 thereon, that the sellers, York & Whitney, as a condition of said sale, told plaintiff said apples were plaintiff's, and to have said apples shipped as plaintiff might wish, and to pay therefor when said apples reached their destination; that Stickney, the agent of plaint ilf, caused said apples to be shipped in the name of I'ork & Whitney to said York & Whitney at Yankton. S. D., and that said apples were so shipped and reached said Yankton, and that while there, by rea- son of the negligence of defendant, they were wasted, and lost by decay. The defendant claims that the car of apples was shipped by York & Whitney to themselves as consignee and that the apples were not to be delivered until the balance due thereon was paid for; and at the time of the injury, if any, to said apples they were the property of Y^ork «fc Whitney, and not of plaintiff; and defendant further claims that it exercised due diligence in the care of said apples." The court pre- sented to the jury two questions: First, whether by the purchase at Boston plaintiff became the owner of the apples, before he ob- tained the bill of lading, by the payment of the balance of the purchase price; and. sec- ond, if he did, then whether the defendant was negligent in caring for the apples at Yankton. In expressing the law as to what would amount to a transfer of title at Boston, so that the plaintiff would be the owner, the court s.aid to the jury, in substance, that if there was an agreement by which the apples were plaintiff's, and there was no condition that the bill of lading was not to l)e delivered until tbe balance of the purchase price was paid, they became the property of plaintiff, so that he could recover. It then stated as follows: "If, however, you find from the evidence that the plaintiff, through his agent, Stickney, purchased the apples from York & Whitney in Boston, and paid $100 thereon, and that nothing was said concern- ing the payment of the balance, or that it Avas agreed that the balance should be paid upon the delivery of the bill of Itiding to plaintiff, and it was arranged that the bill of lading should be made out to York & Whit- ney, to be turned over to plaintiff upon the payment of the balance due on the apples, then the apples would not become the prop- erty of the plaintiff until he received the bill of lading. So, too. unless you find that York & Whitney at the time of the purchase told Stickney that the apples were his, and he had accepted them, and that he could ship them as he pleased, and the bill of lading was made out to York & Whitney as consignees at the instance of Stickney, the property did not pass to the plaintiff until he had received the bill of lading at Sioux City; and if you flud under this instrtietion that the property did not pass to plaintiff until he received the bill of lading in Sioux City, then he did not be- eome the owner of said property until after the injury, if any, occurred, and he could not recover the damages, if any, to said ap- ples." These rules of law are not ques- tioned, and in the light of them we may on- -202 WHEN TITLE PASSES. sider an assignment of error tliat the court erred in refusing to direot a verdict for the defendant because the phiintiff had no owner- ship of the property in controvorsy. It will he seen that it is the law of the case that, if uotliing was said concerning the payment of the balance, or that it was agreed that the balance should be paid on the delivery of the bill of lading to plaintiff, and it was ar ranged that the bill of lading should be made out to York & Whitney, to be turned over to ]ilaintiff upon the payment for the balance of the apples, then they would not become the property of plaintiff until he received the bill of lading. The purchase was made by Stick- ney, and his is the only testimony from which it can be known what the understanding at Boston was. There had been other transac- tions betv.-een York & Whitney and plaintiff, but they do not aid the question. Stickney, on his direct examination, makes some state- ments that, disconnected from his cross-ex- amination, might leave the conclusion in doubt as to the purpose of sending the draft for collection with the bill of lading. It will be seen that the law as stated makes the ab- sence of evidence to show an understanding that plaintiff was to have the apples regardless of the bill of lading fatal to plaintiff. The fact of such a right must be made to ap- pear to overcome the legal Inference from sending the draft for collection with the bill ' of lading. The following is the statement of Stickney on cross-examination: '"The last time I was in Boston I bought these six cars of apples. Did not pay for them at that time in full; not the six cars. The car in ques- tion was one of the six. Tlie bills of lading for the other cars were all forwarded to Mr. Baker, I expect. I had possession of the bill of lading there. I took it to York & Whitney, and gave them possession of it. They sent it, with the draft, to the bank here,— the draft for the balance of the one car load of apples. Mr. Baker couldn't get them until he paid that draft. I don't know of any con- tract or arrangement between York & Whit- ney and myself and ^Ir. Baker by which Mr. Baker could come into possession of that bill of lading without paying for the apples. There was nothing said about that, that I know of." In his direct examination there is nothing actually in conflict with these state- ments, when carefully considered. He had before made purchases, and paid for them, and similar shipments had been made except as to bills of lading which were sent directly to plaintiff. On his direct examination he says, after speaking of other shipments: "When I bought these cars I suggested to him perhaps he had better ship them to his own order, not being very well acquainted with Mr. Baker, and send the draft with the bill of lading." The witness further said on his direct examination: "I asked him if I paid him one hundred dollais for each car if it would be all right; that he would ship the apples right through; and he said 'Yes,' it would be all right; it didn't make any dif- ference about that. I suggested to him. if it wasn't all right, whether it w;is or not, he could attach the draft to the bill of lading. He had never known Mr. Baker except what transactions I had done with him the last four or five Aveeks, and lie said that would be all right; and I gave him directions where to ship each car." This evidence is without practical conflict. There are genei-al state- ments seemingly so; but at all times wh( a the thought of payment is the controlling one there is nothing to indicate that the title wrs to pass before payment. There is no phar;e of the evidence on which there c-an be a re- covery under the instructions, and hence the court should have directed a verdict for de- fendant on this branch of the case. This conclusion renders it unnecessary to consider the question of negligence or a failure to stop the car at Sioux City. As to the latter, how- ever, it may be said that the court instructed the jiu'y that there was no evidence to show that defendant ought to have so stopped the car. The costs as to the branch of the case we affirm are but nominal, and the costs of the appeal will be taxed to appellee, and the judgment as to the claim for apples will stand reversed. \VHEX TITLE PASSES. 203 FREEMAX V. KRAEMER et al. (G5 N. W. 455.) Supreme Court of Minnesota. Dec. 19, 1895. Appeal from miiiiuipal couit of Duln+h; Roger S. ro\vell. Judjie. Action by C. F. Freeman. d(jing business as C. F. Freeman & Co., against P. G. Kraemer and others, for conversion. From an order denying a new trial, after a verdict for plain- tiff, defendants appeal. Affirmed. L. U. C. Titus, for appellants. Jaques & Hudson, for respondent. CAXTY, J. On Xovemlier 26, 1894. plain- tiff shipped a car load of oats and a car load of hay from Rol.erts. Wis., to one Stevenson, a commission merchant at Duluth. Minn. A bill of lading or shipping receipt, whichever it may be called, was issued by the railway com- pany to plaintiff (as C. F. Freeman & Co.) for each car. One of these bills of lading, as far as here material, reads as follows: "Chicago, St. Paul. ^Minneapolis & Omaha Railway Co. X'^o. car. 12.444. Roberts Station. Xov. 26, 1894. Received of C. F. Freeman «fc Co.. in apparent good condition, marked, Geo. F. Ste- venson. Duluth. Minn.: Articles, baled hay, weight 20.4(10. as described above; contents and value unknown; to be transported by the Chicago. St. Paul. ^linneapolis & Omaha Rail- way Company to the destination named above. * * * J. E. Bethel. Agent." The other bill of lading is in the same form. A few days prior to this. Stevenson wrote plaintiff offering $12 per ton for one car of hay. and 31% cents per bushel for one car of oats, and the ship- ment to him was in response to his offer. Im- mediately on shipping the two care, plaintiff drew one draft for the price of the hay, and at- tached it to the bill of lading for the car of hay. and drew another draft for the price of the oats, and attached it to the bill of lading for the car of oats. These drafts were drawn on Stevenson in favor of plaintiff's banker at Roberts, who forwarded them, with the at- tached bills of lading, to another banker at Duluth. for collection, but the drafts were not discounted. These drafts arrived in Duluth and were presented to Stevenson for payment on November 2^th, but he refused to pay them, giving as an excuse that the care had not yet arrived. The cars had arrived on the 2Tth. and on the 2Sth the railway company, on the order of Stevenson, delivered them to defend- ants, who claim that they bought the oats and hay from Stevenson in good faith, and paid him in full for the same. The 29th of X'oveni- ber was a legal holiday, and on the next day the Duluth banker attempted to find Steven- son, and again demand ]iayment of the drafts from him, but he could not be found. There- upon the drafts and bills of lading were re- turned to plaintiff, who proceeded to Duluth, and demanded the oats and hay of defendants, who refused to deliver the same to him, and Ihis action was brought for damages for the conversion of the same by defendants. On the trial the court ordered the jury to i-eturn a verdict for plaintiff for the value of the prop- erty, and from an order denying their motion for a new trial defendants appeal. We are of the opinion that the order aiipealed fror^ should be affirmed. It clearly and con- clu . Ay appears from the evidence that the sale or contemplated side from plaintiff' to Ste- venson was to Ix" a cash transaction. Xo in- dicia of ownership was given to Stevenson. On the contraiy. the bills of lading were forwarded by plaintiff, with the drafts at- tachefl to them, in such a manner as to make the intended delivery of the bills to Steven- son concurrent with the payment of the drafts for the purchase price of the prop- erty. From the circumstances, it conclu- sively appears that plaintiff did not intend to vest the title to the property in Steven- son until the goods were paid for. Of course, where, on an absolute sale of goods, credit is given, so that the delivery and payment of the purchase price are not intended to be con- current acts, the delivery is absolute, and, in the absence of fraud or mistake, there is no way of revesting the goods in the vendor, ex- cept by the exercise of the right of stoppage in transitti. Where it is a conditional sale on credit, the title not to pass until paid for, it is void as against sitbsequent ptirchasers in good faith for value, unless the proper evidence of the transaction is filed of record, ptirsuant to sections 4148 and 4149. Gen. St. 1894. But this statute has uo application to cash sales. National Bank of Commerce v. Chicago, B. «& N. R. Co., 44 Minn. 231, 46 N..W. 342, 500. Where the sale is to be a cash transaction, if the vendee gets possession before the purchase price is paid, his possession will, at least for a short period, be regarded as merelj' condition- al, and of such a character that he cannot vest a purchaser from him with title. National Bank of Commerce v. Chicago, B. «& N. R. Co., sttpra; Benj. Sales (6th Ed.. Am. notes) p. 282. See. also. Emeiy v. Bank. 25 Ohio St. 360; Bank v. Kelly. 57 N. Y. 34; Bank v. Daniels. 47 X. Y. 631; Bank v. Jones, 4 N. Y. 497,— which are cases similai* in principle to this. 2. Appellants contend that plaintiff had con- ferred indicia of ownership on Stevenson, and that this gave Stevenson power to vest title by estoppel in appellants. In view of the au- thorities just cite<:l. it is hardl.v necessary to say that merely shipping the goods addresseil to the consignee, while retaining the bills of lading, confers no indicia of ownership on the consignee. 3. It is also contended that the instrtimouts delivered to plaintiff by the railway company in this instance were not bills of lading, but what counsel terms mere "shipping receipts." and that the retention by the consignor of these receipts was not a retention of the in- dicia of ownership, but that the same passed to the consignee. Whether, if counsel's premises were correct, his conclusion would be, we need 204 WHEN TITLE PASSES. not consider. These instruments consist each of a receipt for the goods, and an agreement to transport them to a certain place, and, in our opinion, are bills of lading. See Railway Co. V. ..Johnston (Neb.) G3 N. W. 144. 4. Tliei-e is nothing in the point that plain- tiff failed to establish his ownership or right to possession of the property. He must have been in possession of the property when he shipped it. It is true that it appeal's from the er\-idence that, in answer to Stevenson's first inquiry for hay, plaintiff stated that he had no hay, but that another party at Roberts had some, which he was going to press. In re- sponse to Stevenson's sec-ond inquiry for hay and oats both, plaintiff shipped the two cars, but never in any manner claimed to be acting for said third party (whose name is nowhere disclosed), nor for any one but himself, in making such shipment. This disposes of the case, and the order ap- pealed from is affii-med. WHEN TITLE PASSES. 205 FIFTH NAT. BANK OF CHICAGO v. BAYLEY. (115 Mass. 228.) Supreme Judit'ial Court of Massachusetts. Suffolk. June 18, 1874. lieplevin for four hundred barrels of flour. In the superior court judjiment was ordered for the plaintiff on aj^reed facts in substance as follows, and the defendant appealed to this court: On June 5 and 6, 1871, R. H. Sa^e owned and shipped at Chicago for Boston five hun- dred barrels of flour by bills of lading where- by the flour was deliverable to his own or- der. On the same days he made drafts in favor of I. G. Lombard, the plaintiff's ca'sh- ier, upon E. Williams & Co., Boston, one for ^^■.1.8^K1. and the other for $1,000. and attached the bills of lading thereto, and indorsed on each bill of lading, "Deliver the within to the order of E. Williams & Co. R. H. Sage," and delivered the bills of lading to the plain- tiff as collateral f ecurity for the payment of the said sums which the plaintiff advanced him thereupon. The plaintiff then forward- ed all the papers to Boston for collecton. These drafts were duly presented to E. Williams & Co., who refused to accept them, and they were immediately returned to the plaintiff. On June 13, when the $1,000 draft was re- ceived by the plaintiff in Chicago, Sage de- livered to the plaintiff, in exchange for it, a draft on Crockett Bros, for $1,000, and for the retiu'ned bill of lading which was deliv- ered up to the transportation company, .a new original bill of lading, indorsed: "De- liver to the order of Crockett Bros. R. H. Sage." The plaintiff then forwarded all the papers to Boston for collection. On June l(3th, when the $1,800 draft on E. Williams & Co. arrived in Chicago. Sage paid the plaintiff on account $800, and delivered to the plaintiff, in exchange for the balance of the returned draft, a new draft for $1,."')(X>, on Crockett Bros., and for the returned bill of lading, which was delivered up to the transportation company, a new original bill of lading, indorsed: "Deliver to the order of Crockett Brothers. R. H. Sage." The plam- tiff then forwarded all the papers to Boston for collection. Both lots of flour arrived in Boston, and .vliile in the carrier's hands, two hundred barrels were attached by the defendant, a deputy sheriff, upon a writ in favor of a creditor of Sage, on June 10th, and two hun- dred barrels on June 19th. Crockett Bros, refused to accept the drafts, which, with the other papers, were then im- mediately returned to the plaintiff, who again, and after the attachments had been made, exchanged the bills of lading for bills of lading indorsed to the plaintiff, and upon them received from the carrier the one hun- dred barrels not attached. The plaintiff then duly made demand on the defendant for the attached flour, and *lie defendant refused to deliver it to the plaintiff; and thereupon the plaintiff replevied the same in this action. E. H. Abbot and L. A. Jones, for plaintiff. G. O. Shattuck and O. W. Holmes, Jr., for de- fendant. GRAY, C. J. This case is governed by those of National Bank of Cairo v. Crocker, 111 Mass. 103, and National Bank of Green Bay V. Dearborn, 11.5 Mass. 219. The bills of lading by which the carrier undertook to deliver the goods to the shipper or his assigns were representatives of the jiroperty. The delivery of those bills of lad- ing to the plaintiff corporation as collateral security for the payment of its advances, al- though it would not have enabled it to sue the carrier upon the contract therein made with the shipper, yet did transfer at least a special property in the goods to the plaintiff, (for which its discount of the drafts was a valuable consideration,) and gave it a light of immediate possession sufficient to main- tain replevin against the shipper or any one attaching the goods as his property. The drawees of the draft attached to each of those bills of lading were not entitled to the bill of lading or the property described therein, except upon acceptance of the draft, and, having refused to accept it, tin- order, indorsed by the shipper upon the bill of lad- ing, for the delivery of the goods to the drawees, never took effect. Judgment for the plaintiff. ENDICOTT and DEVENS, JJ., absent. 206 AVOIDANCE OF CONTRACT. KIMBALL .t al. r. SACJT'IN. (.",:! N. W. 110, 8!J Iowa. 18i;.i Supit'iuc Cuiu-t of Iowa. Oct. 7. 1S!I2. Appeal from district foiirt, Pollawattamie county: IL E. Deenier, Judj'e. Tliis is an action upon a promissory note executed l)y defendant Saguiu to defendant William Siedeutopf or older, l)y whom if was assi.uned to defendant FarusAvortli. by liini to the I'Mrst National Bank of Council Blutts. and by said bank to the plaintiff. Saguin alone defends, and alleges that said note, together with .$l,."»(ii» in cash, was given to Siedentopf in consideration of a conveyance to defendant of certain real estate by said Siedentopf ; tliat for the purpose of inducing defendant to make said purchase and to pay said money and ex- ecute said note, the said Siedentopf made cer- tain false and fraudulent representations con- cerning the title in himself to said real estate, knowing the said representations to be fabe; that, relying tipon said false repi'eseutatious as true, he, the defendant, was induced to pay sai- dentopf to Saguin was Avith limited covenants, as follows: '"Do hereby covenant to warrant and defend the title to said premises against the lawftil claims of all persons claiming by, throttgh. or tuider me." The failui'e of title alleged was not by reason of any person claim- ing through or tmder the defendant Siedentopf. but because of his having no valid title to the property conveyed. There is no allega- tion of a breach of the covenant in the deed, (U- of a verbal warranty and breach thereof; but the defense is frattd and deceit in knowing- ly and fratidulently misrepresenting the title held by the grantor. Appellants conteiKl that an action or defense for deceit in misrepre- sentation of title will not lie; that the only remedy for a failure of title is upon the cove- nants in the deed; and that, where these are limited, the purchaser takes all risks not cov- ered by the limited covenant; and if there be no covenant, as in case of a (pntclaim deed, he takes all risks as to title; that when it is intended that the vendor shall answer for llie title, covenants are inserted in the dt'cd tliat define the terms of the contract: that cove- nants will not be implied; and that the piu'- cliaser takes the title at his own risk, except as it may be warranted by covenants in the (le(>(l. In considering the question before us we uuist keep in mind the distinction between an action for a breach of warranty and an ac- tion for fratid and deceit. Appellant cites cases wherein the courts have either expressed doubts upon the riglit to maintain an action for fraudulent representations as to the grantor's title, or the oiiiniou that such an action could not be maintained, but an examination of these cases shows that the question before us was not involved nor determined. In Leonard v. Pitney. H Wend. .3(t. Marcy. J., says: "Uouljts may well be entertained whether an action at law will lie for a deceitful and false repre- .•-•entation of title in the vendor of real es- tate. Stich an action has not as yet, I be- lieve, been sustained, except, it may be, in some of the states where the same tribunal is possessed of equity jurisdiction as well as the poAAers of a coiul of common laAA'. There is, hoAA'eA'er, no occasion now to examine that question." In Frost v. Raymond, 2 Caines, at page 192. the court recognizes the rule "that, if there be no coA'enant of title in a deed, the purchaser takes, at his own risk, the good- ness of the title." It is said "the parties to deeds knoAv that a covenant is reqtiired to hold the seller to warrant the title, and they regu- late their contract accordingly. If there be any fraud in the sale the purchaser has his remedy. If one sell land, affirming he had a good title, Avhen he had no title, an action on the case for a deceit will lie." Here the dis- tinction betAveen an action on a contract of warranty and for a deceit is recognized, and the case is authority for the right to maintain an action for deceit. In Whitney a-. Allaire. 1 N. Y. 30.), it is said that it is a strong argu- ment against the action for falsely represent- ing the title that no precedent for it has been fottnd. It is fttrther said: "It is not neces- sary in this case to decide Avhether an action Avill lie for a false and frattdulent representa- tion by the A'endor of real estate that he has title to the property; for that question seems not to haA'e been made on the trial." The only case from other states Avherein this pre- cise qtiestion has been determined, that we ar;' al)le to find, is Peabody v. Phelps. 9 Cal. 213. At page 220, the court states the ques- tion to be "Avhether an action for a false and fraudtdent representation as to the naked fact of title in the vendor of real estate can be maintained by the pinchaser. Avho has taken possession of the premises sold under the con- veyances with express covenants." The cove- nant in that deed Avas to AA'arraut and defend the title "from me and my heirs and as- signs forever." The court says: "The pre- cise question does not appear to have been directly decided. There are dicta in the Re- liorts. but Ave have been unable to find any adjudicated case on the exact point." The conclusion reached in that case is that tlie AVOIDANCE OP CONTRACT. 207 action could not be niaintainotl. Wc think, however, that tlie reasoning- of the learned judge shows that the distinction between an action for deceit and for breach of warranty was lost sight of. AA'hile this case was not overruled in ^^'rig■ht v. Carrillo, 22 Cal. .590, its correctness was questioned. In connnent- ing upon it the court says: "There are certain very strong reasons for contending that a per- son obtaining money by false and fraudulent representations respecting his title to laud sliould be compelled to repay it,— as much so as the seller of a horse or other personal prop- erty; and the fact that the vendee has neg- lected to secure himself by proper covenants of warranty should be no defense. The fraud may have been perpetrated and falsehood em- l)loyed ^'or the very purpose of inducing the vendee to take the conveyance without any or with insufticieut covenants. Tliat fraud has been successful has never been supposed to deprive the party defrauded of all remedy. The power of a court of eiiuity, as well as of law, has heretofore been considered most po- tent in such cases; but if such be the law, they are powerless in the most aggravated cases of deceit. The ruling upon this point in Peabody v. Phelps, is clearly in conflict with the decision in Alvarez v. Brannan, 7 Cal. .j04, and it should be reinvestigated in some case where it can properly l)e adjudged, and upon sufficient argument of the question." P.allou V. Luca.s, 59 Iowa, 22, 12 N. W. ~io, was an action in chancery to rescind a sale and conveyance of land on account of fraudii- leut representations as to the title. Defend- ant insisted that, as the contract of purchase called for a quitclaim deed, and plaintiff had accepted such a deed, "he has no remedy against defendant for the fraudulent repre- sentations as to the title of the land." The court says: "The position is based upon the familiar rule that one who takes lands imder a quitclaim deed is not to be regarded as a bona tide pui-chaser without notice of outstand- ing titles and equities. But this doctrine is not applicable to this case. It prevails in set- tling conflicting titles, and is intended to pro- tect equities as against those charged with no- tice of their existence. It is never invoked to protect a fraudulent grantor, who. by false I'epresentations, induces a contiding purchaser to believe that he acquires a good title under a quitclaim deed. * * * It would be a re- proach to the law to hold that a vendor who, by fraudulent representations, has induced a vendee to accept a quitclaim deed for land, can wholly escape lial)iliry for his fiaud." This case is decisive of tlie (luestion before us, and leads us to the couc-lusion that the con- tention of appellants on this point is not well founded. 2. Appellants complain of certain rulings in admitting and rejecting testimony. They of- fered to prove that Saguiu knew of the de- fects in the tax title upon which the convey- ance to him was based, and that he coidd purchase the patent title at less than ^10 per lot. They also offered to prove the price at which the patent title had been purchased V)y others. This evidence was properly excluded. There Avas no question of damage submitnd to the jury. The issues submitted were as to the alleged fraud, failure of title, and consi.l- eration in the note, and whether appellants Vy'eve purchasers for value before due without notice. Saguin was not bound to prevent a failure in the consideration of tlie note by buy- ing the patent title, even if such a purchase would have prevented it. After the evidence was closed and the argument commenced, ap- pellants offered to prove by the assistant cash- ier of the bank that he had no notice of any defenses to the note at the time the bank re- ceived it. It was in the discretion of the court whether or not to then admit further evidence, anerty enough to pay all his debts except $20,000. Such a representation may be susceptible of either of two interpretations. It may be in- tended as a willfully false statement of a fact, and may be understood as a statement of a fact. Or it ma^- be intended as the expres- sion of the opinion or estimates which the owner has of the value of his property, and may be so understood. Suppose, for instance, that a man who owns property worth $1,000, for the purpose of procuring credit, repre- sents that he is worth or that he has property worth $100,032.5; that defendant falsely represented that the horse was sound in everj- way, to induce plaintiff to buy; that the plaintiff, believing that said representa- tion was true, was thereby induced to buy the horse, but the horse was not sound in ev- ery way, but Avas lame and foundered, and lame in the fore legs and shoulders, and was unsound and of little value, as defendant well knew. Answer a general denial. The court allowed a bill of exceptions to the effect that there was evidence that the defendant made the representations as alleged; that they were falso, and known by defendant to be false; that the plaintiff, relying thereon, was in- duced to purchase the horse as alleged; and that the horse was then in fact lame and un- sound. The evidence was conflicting on all these points. Plaintiff" paid defendant ^'625 for the horse, and there was evidence that he was not worth at the time of the sale over $100. The defendant testified that he made no representations whatever, and that he had worked the horse almost every day for three weeks, and did not observe any lame- ness or that he was unsound. Upon this evi- dence the plaintiff" requested the judge to charge that, if the defendant made a repre- sentation of the sotmdness of the horse as of bis own knowledge, he might have known by reasonable inquiry and examination whether lie was sound or not, and the horse was not sound, and if the plaintiff" relied on such rep- resentations, and was induced thereby to pur- chase the horse, and thereby sustained dam- age, the defendant was liable. If the de- fendant represented that the horse was sound, when he was unsound, and the plaintiff" was thereby induced to buy the horse, and was thereby injm-ed, then the defendant was lia- ble. If the defendant knew the horse was unsound, and did not make such fact known to the plaintiff", but allowed him to purchase the same at a fair market price as a sound horse, then the defendant was guilty of fraud, and was liable. If the defendant had no knowledge one way or the other as to the .soimdne.ss of the horse, but represented to the plaintiff" that he was sound, and he was in fact unsound, it would support the allegation that he made to the plaintiff" a false allegation knowingly. If the defendant made the repre- sentations to the plaintiff without any knowl- edge, information, or ground of belief, and they were in fact false, it would not differ legally from a representation known by the defendant to be false. The judge, instead, instructed the jurj- that if the defendant made the representations alleged, as matter of fact within his own knowledge, and the represen- VAX Ztl.E SEL.C.\S. SALES — 14 tat ions in any material respect were not true, and the defendant knew they were false, or he did not honestly believe them to be true, and the plaintiff", relying upon them as true, was induced to purchase the horse and pay therefor, the defendant was iialile. But that the action could not be maintained by mere- ly proving that the defendant had reasonable cause to believe the representations were un- true; the declaration alleging that they were fraudulently made, and that the defendant knew them to be false, and that a false repre- sentation is knowingly made when a party, for a fraudulent purpose, states what he does not believe to be true, even though he may have no knowledge on the subject. The jury returned a verdict for the defendant, and the plaintiff" alleged exceptions. D. S. Richardson (G. F. Richardson, with him), for plaintiff". W. S. Gardner, for de- fendant. , MORTON, J. This is an action of tort, in which the plaintiff" alleges that he was induced to buy a horse of the defendant by represen- tations made by him that the horse was sound, and that the horse was, in fact, unsound and lame, all of which the defendant well knew. To sustain such an action it is necessary for the plaintiff to prove that the defendant made false representations, which were ma- terial, with a view to induce the plaintiff" to purchase, and that the plaintiff" was thereby induced to purchase. But it is not always necessary to prove that the defendant knew that the facts stated by him were false. If he states, as of his own knowledge, material facts susceptible of knowledge, which are false, it is a fraud which renders him liable to the party who relies and acts upon the statement as true, and it is no defence that he believed the facts to be true. The falsity and fraud consists in representing that he knows the facts to be true, of his own knowledge, when he has not such knowledge. Page v. Bent, 2 Mete. (Mass.) 371; Stone v. Denny, 4 Mete. (Mass.) 151; Milliken v. Thonidike, 103 Mass. 382; Fisher v. Mellen. Id. 503. In the case at bar the plaintiff" asked the court to instruct the jury "that if the defend- ant made a representation of the soundness of the horse, as of his own knowledge, and the jury are satisfied that he might have known by reasonable inquiry and examina- tion whether he was sound or not, and the horse was not sound as a matter of fact, and if the plaintiff" relied on such representations, and was induced thereby to purchase the horse, and thereby sustain damage, then the defendant is liable." We are of opinion that this instruction should have been given in substance. If the defect in the horse was one which might have been known by reason- able examination, it was a matter susceptible of knowledge, and a representation by the de- fendant made as of his own knowledge that such defect did not exist, would, if false, be 210 AVOIDANCE OF CONTRACT. a fraiul for which he wouhl he liable to the plaintiff, if made with a view to induce him to purchase, and if relied on by him. A false representation of this character is sufficiently set forth in the declaration to constitute a cause of action, without the fur- ther allegation that the defendant well knew the representations to be false. It is not nec- essary that all th- allegations should be prov- ed ifenough are proved to make out a cause of action. The instructions given upon the subject em- braced in this prayer required the plaintiff to prove, not only that the defendant made the false representations alleged, as of his own knowledge, but also that the defendant knew that they were false, or that he did not hon- estly beiieve them to be true. In this respect the instructions were erroneous. Exceptions sustained. AMES and EXDICOTT, .JJ., absent. AVOIDANCE OF CONTRACT. 21i GALLOWAY et al. v. MERCHANTS' BANK OF NELIGH et al. (60 N. W. 569, 42 Neb. 2.j9.) Supreme Court of Nebraska. Oct. 16, 1894. Appeal from disti'ict com*t, Antelope coun- ty; Allen, Judse. Action by William C. Galloway and wife and others asaiust the Merchants' Bank of Nelifih and Henry L. Pratt. Judgment for plaintiffs, and defendants appeal. Affirmed. W. M. Robertson, for appellants. N. D. Jackson, for appellees. HARRISON. J. April 30. A. D. 1891. the appellees herein tiled a petition in the dis- trict court of Antelope county alleging in substance, after pleading the corporate char- acter of appellant and defendant the Mer- chants' Bank of Neligh: That on or about January 25, 1889, appellees were indebted to the bank, and being desirous of effecting a loan on some real estate then owned by them, and situated in Antelope countj', in order to pay the debt to the bank, and being solicited by the bank to make an application to or through it for such loan, made an applica- tion in writing, in which all the terms and conditions of the loan to be made were gen- erally stated, except that no mention was therein made of the rate of interest which should be paid on the money loaned if the loan should be obtained; the contract in re- gard to the rate of interest to be paid by appellees on any loan effected for them being that they were to pay such a rate of interest as might be demanded by the party with whom the loan was negotiated or effect- ed, and no more; the bank not to charge or receive any commission or bonus for making the loan. It was further agreed that the president of the bank should go east for the pm'pose of procm-ing the loan; the appellees to pay all the necessaiy expenses, etc., of the jom-ney. Pursuant to this understanding a ti'ip was made to New York by the presi- dent of the bank, and a loan of $12.(X>0 ne- gotiated for appellees with one Hem-y L. Pratt, the rate of interest to be 7 per centum per annum. That the appellees executed notes for the .$12,000, payable to Heniy L. Pratt or order, with interest at 7 per cent, per annum, and a real-estate mortgage to secm-e its payment, and executed 10 notes of $120 each, payable to Henry L. Pratt or order or bearer; whether to order or bearer being one of the facts in dispute in the case, the appellees stating that these 10 notes were made payable to Heniy L. Pratt or order, and altered after delivery, and with- out their knowledge, by the erasure of the word "order," and insertion of "beai'er." These 10 notes were payable on the 1st of the months of January and July of the five years succeeding 1889, ending with January, 1894, and were secured by a mortgage on I'cal estate in Antelope county, which was particulai-ly described in the petition. That appellees were induced to execute the lO notes and the mortgage securing the same by the representations of the officers of the bank to the effect that Heniy L. Pratt demanded 9 per cent, interest per annum on the .$12,000 loaned to appellees, but desired it divided as above indicated for his convenience, which representations were false and untnie, but were relied upon by appellees, and by them taken as true, and believed. Tliat the bank retained the 10 notes and the mortgage securing them, and 3 of them were paid by appellees before they discovered that they belonged to the bank, and not to Pratt, and had been retained by it as a commission or bonus for mi \g the loan, conti'arj' to the terms of the agreement between the bank and appellees, and the fm-ther fact that Pratt had demanded and was to receive only 7 per cent, on the $12,rx>0 loaned. It is fur- ther alleged that they paid a bill of $365, claimed by the bank to be the expenses of effecting and perfecting the loan. The prayer of the petition was for a cancellatioa of the remaining seven notes of $120 each, and the mortgage securing them, the quiet- ing of title in plaintiffs to the real estate covered by the mortgage, and a judgment against the bank for the amount of the three notes paid to it. The answer of the bank admitted the existence and corporate char- acter of the bank, and denied each and eveiy other allegation of the petition, except the payment of the three notes of $120, and. stated or admitted they were paid to Pratt. The answer filed for Hem-y L. Pratt ad- mitted that the banlv existed and was incor- porated as stated in the petition; further, admitted the execution of the notes and mortgages as alleged in the petition, and that he made the loan of $12,(XK3 to bear interest at the rate of 7 per centum per annum, and stated that his understanding was and is; tliat the 10 notes for .$120 each were for thc- sum charged by the bank as a commissiors for negotiating or effecting the loan of $12,tMK>,. and denied all the other allegations of the petition, and, for further answer or cross bill, declared upon the 7 notes of $120 each as belonging to and being owned by the defendant Henry L. Pratt, and asked for foreclosm-e of the mortgage .seciu"ing them for alleged bi'each of its conditions in regard to payment of the notes. The appellees filed a reply to these several answers, in whiclt all new matter in the answers was deuietl. and the fact of the alteration of the 10 notes was pleaded, and it was further alleged that Pratt was not the owner of the 7 $12(> notes, but that they had been delivered to him in fraud of appellees' rights, and to prevent them from obtaining relief in this; action, and that Pratt well knew, and was informed at the time the notes were de- livered to him, all the facts and circum- stances attending their execution as pleaded! in the petition. A trial of the issues to the court resulted 212 AVOIDANCE OF CONTRACT. in the followini; fiiulinss and decree, from whifli the b;mk and Pratt have appealed to this court, to wit: "Be it reni;>nibered that on this 20th day of .Tune. A. D. 1802, this cause came on to be heard before the court; the plaintiffs appearing by N. D. .Tackson. their attorm^y; the defendants. by W. M. Robertson, their attorney. And thy evidence was submitted to the court, and the court, after hearing the argument of counsel, and being fully advised in the premises, finds for the plaintiffs, and that the allegations contained in the plaintiffs' petition are true; that on or about the •_'.">th day of January, 1880, the defendant the .Merchants' Bank of Neligh negotiated for the plaintiffs a loan for the sum of .$12,000 from the defendant Henry L. Pratt; that the contract between the plaintiffs and the de- fendant the Merchants' Bank of Neligh for the negotiation of said loan was in writing, except the contract as to the rate of intei'- est to be paid by the plaintiffs; that the de- fendant the ^Merchants' Bank of Neligh agreed with the plaintiffs at the time of the execution of said contract that the rate of interest on said loan would be such rate of interest as the said defendant the Mer- chants' Bank of Neligh would be enabled to negotiate said loan for in the east, and that the plaintiffs would not be required to pay any other or greater rate of interest than that for which the note could be negotiated, and that plaintiff's should not be required to pay the defendant the Merchants' Bank of Neligh any commission fees or charges, ex- cept the actual expenses incurred in nego- tiating said loan; that the said loan was ne- gotiated for the pui-pose of paying an in- debtedness to the said defendant the Mer- chants' Bank of Neligh; that at the time of the execution of the notes and mortgages .securing the said loan the defendant the Merchants' Bank of Neligh falsely repre- sented to the plaintiffs that the rate of in- terest demanded by the defendant Henry L. Pratt, to whom the said note had been negotiated, was 0%, and that the defendant Henry L. Pratt desired the plaintiff's to exe- cute and deliver to the defendant Henry L. Pratt a note for the sum of .$12.(X)0, draw- ing interest at the rate of 7% per annum, payable semiannually, and ten notes for the sum of ^120 each, representing the remain- der of the 9% interest, one payable in six months from the date of execution of said notes, and one each six months thereafter, until said notes were fully paid; that there- upon the plaintiffs, relying upon the repre- sentation of the defendant the Merchants' Bank of Neligh, executed and delivered to the defendant the Merchants' Bank of Neligh. for the use and benefit of the defend- ant Henry L. Pratt, a note for the sum of §12.000. drawing interest at the rate of 7% per annum, and a mortgage upon the prop- erty in Antelope county securing the same, and 10 notes of $120 each, payable to Henry L. Pratt or bearer, one payable on the 1st day of July, 1889, and one each six months thereafter, and. to secure the payment of said notes, executed and delivered to the defendant Merchants' Bank of Neligh. for the use and benefit of the defendant Henry L. Pratt, a mortgage upon the following described real estate, situate in Antelope county. Nebraska, to wit, block twenty-two (22) in the city of Neligh, and the said mortgage was filed for rec- ord in the office of the county clerk of An- telope county. Nebraska, on the 28th day of January, 1889, at three o'clock p. m., and recorded in Book W of Mortgages, at page 48;^; and that the plaintiffs also paid the defendant the Merchants" Bank of Neligh about the sum of .$.305, expenses in negoti- ating said loan. The plaintiffs have paid the note for .S120 which matured on the 1st day of July, 1889, and the note for $120 which matm-ed on the 1st day of January. 18:^M), and the note for $120 which matured on the l.st day of July, 1890. The court fur- ther finds that the defendant the Merchants' Bank of Neligh negotiated said loan to the defendant Henry L. Pi*att at an agreed rate of interest, and that the rate charged and received by the defendant Henry L. I'ratt was 7%, and no more; that the defendant Mercliants' Bank of Neligh did not deliver to the defendant Henry L. Pratt the ten promissorj- notes of $120 each, nor the pro- ceed.s thereof, but unlawfully, and in fraud of the plaintiff.s' rights, converted said ten notes to their own use and benefit. The court further finds that the three notes paid aforesaid by plaintiffs were paid to the defendant the Merchants' Bank of Neligh. believing that said notes belonged to the defendant Henry L. Pratt, and be- fore the discovery of the fact that the defendant the Merchants' Bank of Neligh had converted said notes to its own use. The court further finds that after the pay- ment of the threfi notes aforesaid the de- fendant the Merchants' Bank of Neligh con- veyed the remaining seven notes to the de- fendant Henry L. Pratt, but that the de- fendant Henry L. I'ratt acquired the title and possession of said notes with a full knowledge of the facts hereinbefore enu- merated. The court further finds that no con- sideration was ever paid by the defendant the Merchants' Bank of Neligh, or received by the plaintiffs, for the said ten notes of $120 each, and the mortgage securing the same, and that said notes and mortgage are fraudulent and void, and that the plaintiffs are entitled to have the same surrendered to them, and the said mortgage canceled, and the cloud created thereby upon the title to the plaintiffs' propertj\ to wit, block twen- ty-two (22) in the city of Neligh, Antelope county. Nebraska, removed. It is therefore considered, adjudged, and decreed by the court that the defendants surrender to the plaintiffs the seven notes of $120 each, paj- AVOIDANCE OF CONTRACT. 213 able as follows: One each ou the 1st day of the mouths of Jaiuuu-y and July, 1891; one each ou the 1st day of January and July, 1892; one each on the 1st day of Jan- uary and July, 1893; and the one which matures on the 1st day of January, 1894,— and that the mortgage given to secure the same, to wit, the mortgage executed by the plaintiffs, and filed in the office of the coun- tj'' clerk of Antelope county, Nebraska, on the 28th day of January, 1889, at three o'clock p. m., and recorded in Book W of Mort- gages, at page 4So, be, and the same hereby is, canceled and annulled, and rendered whol- ly void and of no force and effect, and that the cloud created by the said mortgage upon the title of the plaintiffs be, and the same hei-eby is, removed, and the defendants, and each of them, are enjoined and restrained from claiming any lien, title, or other interest in said property by virtue of said mortgage, and that the plaintiffs have and recover from the defendant the Merchants' Bank of Ne- ligh the sum of $410, with interest thereon at the rate of seven per cent per anniim from this date. To all of which findings the de- fendants at the time excepted. And after- wards, to wit, on the same daj', the said cause came on for hearing upon the motion of the defendants for a new trial; and the court, after hearing the argiunent of the counsel, and being fully advised in the premises, overruled said motion. To which order, ruling, and judgment of the court the defendants then and there duly excepted, and forty days are allowed to settle bill of exceptions. It is further ordered that the defendants have and recover from the plain- tiffs herein tlie costs of this action, taxed at $6.93. Plaintiffs except to that portion of the decree wherein the court finds that the notes in controversy were made payable to Henry L, Pratt or bearer." The main contention of counsel for appel- lants in brief filed is that the findings and decree were not supported by the evidence. We have read and carefully examined all the testimony in the case, and deem it un- necessary to quote from it at large and com- ment upon it here, but a full consideration of it leads us to conclude that the determina- tion of the di-^trict court was sustained by the evidence. Counsel for appellants further contend that appellees should at least have offered to pay what it was reasonably worth to prociu'e the loan, before asking to have the commis- sion notes and their accompanying mort- gage canceled, under the rule that "he who seeks equity must do equity." The evi- dence shows that they paid the bank $305 for procuring the loan, or as expenses of the trip to New York by the president or officers of the bank to negotiate this loan, in exact pursuance of the terms of the agreement of the parties, as contended by appellees; and, having determined that the finding of the lower court that the con- tract was as alleged or claimed by the appel- lees was sustained by the testimony, the bank must be held to its terms, and, having been paid Avliat it agi'eed to take according to such conti-act, it has received its whole compensation, and it was unnecessary for the appellees to offer to pay more before they were in a position to ask relief in a coiu't of equit.v. Having reached the conclusion that the find- ings of fact, as announced by the judge of the district court, were supported by the evidence, we must apply to them the rules which govern comls of equity in affording relief in cases of the nature of the one at bar; and we are satisfied that the case was one that, by its facts and circumstances, war- ranted the remedy granted. The rule has been stated in Barnard v. Iron Co. (Tenn.) 2 R. AV. 2.J, as follows: "It is likewise true that where a partj^ intentionally or by de- sign, misr;»i!:-esents a material fact or pro- duces a false impression in order to mislead another, or obtain an undue advantage of him, in every such case there is a positive fraud, in the fullest sense of the term. Nor can it be maintained that the evidence of the fraudulent representations is to be ex- cluded, upon the doctrine that all repre- sentations are merged in the writings sub- sequently executed by the parties. This rule has no application w'hen a suit is brought to be relieved against a written instrument on the ground of fraud. The purpose is not to contradict or vary the terras of the written agreement, but relief is sought upon the gi'omid that by false rep- resentations the parties are entrapped into an agreement which they would not other- wise have made. It is not denying the deed, nor its terms, to insist that it is vitiated by fraud;" citing Finlay v. King's Lessee, 3 Pet. 382. See, also, Insurance Co. v. Huyck (Ind. App.) 32 N. E. 580. and citations. Tho de- cree of the district court is aflu-med. Af- firmed. 214 AVOIDANX'E OF CONTRACT. MAXTED V. FOWLER. (53 N. W. U-2\, 'M Mith. 100.) Supreme Court of MicluKau. Dec. 22, 1S92. Error to {'ircuit court, Manistee county; -I. r.yi-on .ludUins. .ludjjfe. Action by John I). Max ted against Suiitli AV. Ft)\vler. Judj^nient for plaint itt'. De- fendant appeals. Reversed. Calilll iV: Ostraudi'r. for api)ellant. Xis- ){e)-n cV- ^^■iIlley, for ai)pellee. MONTtiO.MFRY. J. The plaintiff l)rou,s,'ht an action to recover damages for a breach of warranty allejied to have been made by *lefendant on an exchange of property own- ihI l»y plaintiff for stock in a niininjr cor- l>oration transferred to him by the defend- ant. On a trial before a jury in the ^lan- istee circuit a judgment was rendered for ^l.(;.")T.r)(>. From this judgment defendant i)ppeals. The plaintiff's testimony tended to show that he exchanged property in Manistee, vjilued at «j51.8UO, for mining stock, which, nt 7.") cents per share, amounted to .^1,300, and ?.")(>() in cash; that the defendant ex- liibited specimens which he claimed came from the mine of the company, and assur- ed plaintiff that he (defendant) was going to make a rich mau of him, and that the stock was then selling for .?1 per share, but that, as the company desired to engage plaintiflf's services, and to have him inter- «\sted. he would let him have the stock at 7~) cents; that he (defendant) would make "tlie stock worth .^^2 a share inside of six months. The mine owned by the corpora- tion was not developed, consisted of little more than an excavation, and the plaintiff testified that he Avas wholly unacquainted with mining property, and of this the de- fendant was advised. The circuit .judge charged the jury: "If the defendant repre- sented to the plaintiff that the stock was worth a dollar a share, that he would make it worth two dollars a share, and that the plaintiff relied upon and acted upon this I'epre.sentation, and turned out his property for the ^'AX) and the stock, and if the jury also find that the stock Avas utterly worth- less, the plaintiff would be entitled to re- cover." Defendant's first contention is that these representations of value are not such as a purchaser has a right to rely upon. He invokes the rule that any purchaser must «'xpect that the vendor will seek to enhance his wares, and must disregard the vendor's .-statements as to value. This is undoubtedly the general rule, but it is subject to excep- tions. Where the defendant knows that the plaintiff is wholly ignorant of the value of the pi-opei-ty. and knows that he is relying ui)on the defendant's representation, and such rejiresentation does not take the form 'of a mere expression of opinion, and is in the nature of a statiMuent of fact, the rule of caveat em])tor does not necessarily apply. Picard v. McCormick. 11 Mich. GS; Man- ning V. Albee, 11 Allen, .j20; T..awtou v. Kittredge, :'.() N. H. 500; Bradley v. Poole, 1)8 Mass. l(i!>; Miller v. Barber, OC N. Y. 5."kS; Gerhard v. Bates, 20 Kng. Law & Eq. 12!l. We think, under the circumstances of this case, that the plaintiff had the right to rely upon the defendant's statement that the stock was i-eadily selling at a dollar a share. This was a statement of fact which the testimony shows to be unti'ue, and it cannot be doubted that such a statement would have a material infiuence upon the purchaser. In Medbury v. Watson, (i Mete. (Mass.) 2.59, an action was maintained for false and fraudulent representations as to the price paid by a tliird person for the property in question. In Manning v. Albee, supra, it was said: "In the case now before us the plaintiff offered to show that he was induced to part with his goods by the false and fraudulent representations of French and the defendant, not only as to the value of the bonds offered by French to secure the note given by him for the goods, but also as to the sales of such bonds in the market at a certain price, appearing by a publish- ed list of sales of stocks and securities, which they exhibited to him to have actual- ly taken place. This last representation was one which the plaintiff is not shown to have had eipial means of knowing the truth or untruth of, and on which he might, with- out imputation of negligence, rely, and, up- on discovering it to be false and fraudulent, maintain an action.'" In Miller v. Barber, a representation that a patent owned by the company was of great value, and that certain otlier persons were owners of stock, was held to have been such a representation as the purchaser had a right to rely upon. In Lawton v. Kittredge, a representation that certain stock "is good property or in- vestment, and is about to make a dividend," is held to be a false representation when un- true, and where the person taking the stock objected to receiving it on account of his doubt or ignorance as to its value. In Brad- ley V. Poole, representations that a corpo- rate property is valuable, and one of the best properties in Colorado, when in fact the company was a bubble company, raises a question of fraud for the jury to pass up- on. We think that the representation as to the market value of stock of this charac- ter is a representation of a fact which bears upon the question of the actual value, and there was no error in so instructing the jury. But it is said that, inasmuch as the plain- tiff retained this stock, and went into the employ of the company in the effort to make the stock valuable and his adventure profit- able by developing the mining property, he cannot, the adventure failing, recover the vahie of his stock upon the ground that the re])resentations upon which he purchased AVOIDAXCE OF CONTRACT. 215 were unti'ue. Undoiihtt'dly tliis contention is sound if it be intended to be limited to as- serting the doctrine that, after thus par- ticipating in the nianafrenieut of tlie corpo- ration, and holding stock souu' months, thf plaintiff would not be permitted to rescind his contract with the ily committed by dis- honest dealers, by confounding these grades, and cannot be detected iu many cases except by persons of experience. In the case before us the alleged fraud consisted of false state- ments by a jeweler to an unskilled purchaser of the value of articles wlilch none but an ex- pert could bo reasonably supposed to under- stand. The dealer knew of t!ie purcliaser's ig- norance, aad deliberately and designedly avail- ed himself of it to defraud him. We think that it cannot be laid down as a matter of law that value is never a material fact, and we think the ciretimstances of this case illustrate the impiopriety of any such lule. They show a plain and aggravated case of cheating. And it would be a deserved reproach to the law if it exempted any specific fraud from its reme- dial action, where a fact is stated and relied upon, whatever may be the general difficulty of defrauding by means of it. The same rea- soning will dispose of the objection thar in the second couut the representation.s are not set out as having been relied upon, or as having been made in deliberate breach of confidence. If value can be regarded in any case as a ma- terial fact, then it may be made the subject of a warranty. This count is in the usual form for breach of a fraudulent warranty, and is therefore gootl. An objection was also made that one of the counts averred damages less than $100. This objection is net tenable. The counts must al- W'ays be regarded in law as separate claims, and, if the aggregate damages alleged in the various counts joined exceed $100, the court has jurisdiction. Upon the trial, one of the witnesses, having detailed the false representations made by Pi- card to McCormick, concerning the watches, one of which was set with diamonds on the outside, was asked, "What was said about the jewels?" This Avas objected to because the declaration alleged no representation about the jewels, but the objection was overruled, and the witness swore Picard said if the watch was smashed up the diauionds would be worth .$70. The question was not improper. A declaration would be improperly framed and needlessly prolix, if it should set out in terms the whole of a conversation from which a jury would be warranted in finding that fraud had been practiced. A pleading slKjuld conUiin al- legations of fact, and not of evidence. The inference from the evidence is one of fact, and not of law. The plaintiff was entitled, if not required, to lay before the jitry tl]# whole transjiction, so that they might determine from all the facts what might not be so clear from a portion of them. The evidence was proper, therefore, as forming a part of the transaction. It was very material as tend- ing to show a resort to circumstantial false- AVOIDANCE OF CONTRACT. 217 hooiii.son and anotlior for the price of sold and delivered. There was judj for defendants, and plaintiff brings error. Armed. D. E. Corbitt, for appellant. W. ]Mitcliel, for appellees. 1894. Allen unian goods j;inent Af- AV. LONG, J. riaintiff resides at Syracuse, N. Y., and is the manufacturer of a machine called the "Peck Autographic Cash Register." He has a general agent in this state for the sale of the machines, and the general agent also has agents' taking orders for sales. Some time in March, 18'.)o. Mr. Forte, one of these subagents. called upon the defendants, who keep a country store in Ottawa county, and procured from them the following order: "A. R. Peek, Cortland, N. Y. Please ship to us to Jenison, Mich., one Peck's cash register, same as sample shown. Cabinet to be oak N. 5, three rolls of paper. On fulfillment of the above, we agree to pay you forty-tive dol- lars (.i;4.j.(X>) as follows: Five days after shipment you to draw at one day's sight, de- ducting 5 p. c. from purchase price. Register to be delivered f. o. b. Cortland, N. Y., in good working condition, and espial in every respect as sample shown. All paper rolls used to be purchased of A. R. Peck, the cost not to exceed twenty -five cents' per roll for No. 3, and thirty-five cents for No. 5, and in quantity not less than four rolls at one time. In default of any payment, you or your agent may take possession and remove said cash register Avithout legal process, and all claims for damages arising from such re- moval are hereby waived. Tliis order is given subject to your approval, and it is ex- pressly agi'eed that it shall not be coimter- manded. Should there be any failures to accept s'uch drafts or execute notes for de- ferred payments on presentation of same, it is agreed that the entire purchase price shall at once become due and payable. In default of any one acceptance or note, it is agreed that all the remaining acceptances or notes shall at once become due and payable, notwithstanding anything in the acceptances' or notes to the contrary. All claims for verbal agreements not embodied herein are waived. It is expressly agreed that the title of .said cash register shall not pas's until paid for in full. Should the register get out of order within two years from date sold, you to repair the same gratis, the undersigned paying the express charges to and from the factory. Yours, trul.v, L. «& L. .Jenison." The machine was left with the defendants, who kept it for a time, and tlirn shtiii)ed it to the plaintiff. This suit was brought to recover the value of the machine. The defense set up was that the contract or order for the machine was obtained by false and fraudu- lent representations. The representations made b.v the agent who took tlie order were that the machine was the best and cheapest cash register that could be bought, that it was worth the price, and that it was the on- ly one that could be bought on the market for that price, and that, if the defendants did not tind it as he represented, they could re- turn it. Defendants knew nothing of the quality or practical workings of such ma- chines, and told the agent that they would take it wholly upon his representations. The price was to be $4.j. The representations were made by the authority of the general agent in this state for the plaintiff, and he testiflod that he instructed the subagent who made the sale to represent to the parties pur- chasing that the machine was actually worth $45, and that that was the only one which could be bought for that price; and that if they would take it and try it. and it was not as represented, they might send it back. It was shown that a machine of equal value was at that time selling in the market for .$20, and also that this machine was not worth to exceed .$5. The court directed the jury substantially that if they found that these representations were made, and defendants relied upon them in signing the order, and that they were untrue, that the defendants had a right to return the machine and rescind the contract. The jury retiu'ned a verdict for defendants. It is contended by counsel for plaintiff that the court was in error in these instructions on the grounds: (1) Because the contract provided that the order should not be counter- manded, and also that "all claims for verbal agreements not embodied herein are waived." It is said that the testimony given, and the instructions of the court thereunder, changed the terms of the written contract, and there- fore the testimony was not admissible, and the charge of the com-t was erroneous. The testimony was not offered or received for tills purpose, and the court did not submit the question to the jury upon that theory. The claim Avas that the oi'der was procured by fraud, and, if so. the defendants would have the right to rescind on that ground; but it is claimed: (2) That the testimony did not tend to establish that fact; that the repre sentations as to the value of the machine were but the expression of an opinion; and that a vendor has the right to praise his goods in order to make a sale, and the state- ment of the value is no more than the expres- sion of an opinion. This is undoubtedly the general rule, but in the present case it ap- pears that the defi'udants knew nothing of its value, and signed the order relying wholly upon the statenu'nt of the agent. It was AVOIDANCE OP CONTKACT. 219 the statement of a fact Avhicli the agent knew to be false. The case falls so squarely with- in the rule laid down in Picard v. McCormick, 11 Mich. 68, and Maxted v. Fowler, 94 Mich. 103. bJ N. W. 921, that fmiher suggestions are quite unnecessary, be affirmed. The judgment must HOOKER, J., did not sit. The othir justices concurred. 220 AVOIDANCE OF CONTRACT. TOTTEN T. BURHANS. (51 N. W. 111!). 01 Midi. 40.").) Supreme Court of Michigan. May 6, 1802. Error to circuit court, Shiawassee county; >Yilllam Newton, Judge. Trespa.ss on the case by Frank M. Totton against Daniel Burhans. Verdict and judtr- nient for phiintiff. Defendant hrin.ss error. Reversed. AVatson & Chapman, for appellant. S. F. Smith and G. R. I^yon, for appellee. MORSE, C. J. The pl.-iintlff commenced suit in the circuit court for the county of Shiawassee against the defendant in trespass oh the case, claiming damages for fraud, and recovered verdict and judgment for .$1,237.50. 'l\)tten on the 4th day of February, 1880. bcught out the interest of Burhaus in the Owosso Cigar & Candy Company, a copart- nership doing business at Owosso. Adelbert. Chase at the time of this purchase was a partner with Burhans, and after the sale con- tinued as a partner of Totten. Chase had but little money in the concern, but traveled for the tirm. and it would seem put his sei'v- iees and experience against the money of Totten, as the record shows, from plaintiff's testimony, as well as other evidence, that he was an equal partner in the profits of the business. The declaration alleged the fj'aud to have consisted in the representations of Burhans that the business of said Owosso Cigar & Candy Company, for a long time prior to said sale of his interest to plaintiff, had been "a good, profitable, paying, and re- munerative business," and that Burhans and Chase had realized, and were then receiving, large profits from such business, and that said plaintiff could not fail to receive $2,000 net profits per j^ear from sucli business. And that certain accounts and demands belonging to said company against divers persons, cus- tomers of said company, amounting to the sum of .'RT.OOO. purchased by said plaintiff with said business, were good and collecti- ble, and actually owing to said firm or com- pany: that they would be paid promptly, and were all and each of them worth their face value, dollar for dollar. The declara- tion further alleged the falsity of these rep- resentations, and that, by means of the prem- ises, the defendant defrauded the plaintiff, so that he not only lost the money he paid to jiurchase defendant's interest, to wit, .f2.(KM). but was deprived of his good and fair reputa- tion as a business man, and was damaged Ij.v the loss of the accounts not collectible and his labor and services for one year. The tes- timony shows that Totten paid .'?2.(M»0 down, wliich was about the value of the Burhans interest in the stock on hand, received froiti Burhans between !?(i.(K>!» and .$7.01)0 Avorth of accounts, and agreed to and did assume the old indebtedness of the firm to about the sum of .$7,0D0. After running the business alxiut a year. itlaintifC sold out to Burlians, to whom the firm was indebted for indorse- ments, losing his $2,000, and l>eing indebted besides in a large sum of money on account of the business, which had proven unprohta- ble under his management. The court in- structed the .iuiy that the only damages that the plaintiff could recover would be the dif- ference between the accounts turned out to him as good, worth dollar for dollar, and what they were actually worth, with 6 pel* cent, interest from date of commencement of suit. Under the declaration in the case, and the facts as shown by the plaintiff's own tes- timony, the only fraud he could legally com- plain of was in relation to these accounts. The evidence failed to show that the busi- ness was unprofitable before he purchased defendant's interest, and the court rightly held that he could not recover for injuiy to his business reputation. For his .$2,000 he received an eqaivalent in the goods on liaud. It follows, therefoi'e, that the evidence in the case should have been confined to the matter of these accounts, whether they were good and collectible, worth a hundred cents on the dollar at the time plaintiff purchased them, what amount of them were collected b.y the plaintiff, and whether or not tlie bal- ance could liave been collected by due dili- gence on the part of plaintiff. But the in- quiry went outside of this plain issue, against the repeated objections of defend- ant's counsel. It was eiTor to peraiit plain- tiff to show how he conducted the business after he purchased Burhans' interest, and Burhans' connection with such business, ex- cept in so far as the collection of these ac- counts was concerned. Also that Burhaus had his office in the building, and that de- fendant counseled with him in the manage- ment of the business. The sale of the business back again to Burhans, and the details of such transaction, had no legitimate place in the case, and no bearing upon any proper issue in it. The I admission of this testimony, which forms a principal part of the record before us, was evidently prejudicial to defendant. It is claimed that there was no evidence tending to show that any of the accounts purchased by plaintiff were not good and col lectible, lint, as all of the testimony in the case is not returned, we are not able to say that tlie court below erred in not directing a verdict for the defendant. The fact that all the testimony, or the substance of it, is not returned upon any particular sul^ject. dis- poses also of the claim made in tliis court. — the record is silent as to its being made in the court below, — that one half of these ac- counts belonged to Chase, and that plaintiff was allowed to recover the full amount of them. There is some testimony tending to show that Totten had bought out Chase be- fore the resale to Burhans. and also that AVOIDANCE OF CONTKACT. 221 Chase had but a nominal interest in the part- nerslili). 'I'here was no error in the c'har;;e of the circuit judK'e. The rule of law is well settled in this state since the case of Holcomb v Noble, G9 Mich. 29(5, 87 N. W. 497, that it is immaterial whether a false representation is made inno- cently or fraudulently, if, by its means, the plaintiff is injured. Therefore it made no dilference in this ease whether Burhans knew that any of these accounts were not good, or sui)posed them to be all good. If, in fact, any of them were not good, and plaintiff lost money thereby, then there was a legal fraud, for which defendant was responsible. And if any of the accounts so purchased by plain- tiff had been paid, the defendant must malie them good. The judgment is reversed, and new trial granted, with costs of this court to defendant. The other justices concuiTed. 222 AVUIDAXCE OF CONTRACT. HENRY V. VLIET ct al. (54 N. W. 122. 30 Noh. 138.) Suprenu' Court of Ncl.rjiskn. Jan. 18. 1803. On ivliraring. MAXWELL, C. J. lliis is an action of replevin to rooover the possession of (K) i)ar- rels of 74 }r;i.soline. 7."»0 cases 100 tlasli oil, 300 cases 2-5 150 W. W. oil. of great vahie. The answer of the defendant below (plaintiff in "Tor) was a general denial. On the trial of the cause the jtu-y returned a verdict in favor of the (".efendauts in error for the prop- erty in dispute, and "'that tlu> defendant is indebted to the plaintiffs in the sum of •$757.- 52 for goods not foinid." .Judgment was rendered f)n the verdict. The substantial facts in the case are as fol- lows: One L. A. Stewart, doing business in Omaha as L. A. Stewart & Co., during the months of April, May, June, and July, 18S7, seems to have purchased goods from every one who woidd sell to him on credit. He se(Mns to have had but little property, and less integrity. Earh' in July of that year he purchased from the plaintiff l)elow four car loafls of oil, which were to be paid for in cash on delivery, or by a secured note or draft ac- cepted by some bank. Upon the arrival of the property he managed to obtain possession of tlie same without either paying the cash or giving a sectired note. He th(>reupon exe- cuted a chattel mortgage on the same, togeth- er with other property, to Henry, to secure the payment of one note for .$5,000, dated April 30, 18S7, due 90 days from the date tliereof; one note for $5,000. dated June 10, 18S7, due ill 90 days from the date thereof; one note for .$2,500, dated June 25, 1887, due in 90 daj's from the date thereof; and one note for $2.-500, dated June 22, 1887, due 90 days from the date thereof; and also tliree certain drafts drawn by L. A. Stewart & Co. on W. R. Stewart, of Des Moines, !owa, in the aggregate sum of .$4,957.50. The notes described in said mortgage (with the excep- tion of one for .$2,500, dated June 25. 1SS7.) ^^ ere renewals of prior indebtedness. $10,000, which was first loaned January 2, 1880. The bills of exchange secured by said chattel mortgage consisted of one draft di-awn July J 9, 1887, upon Will R. Stewart, Jr., of Des Moines, Iowa, for $8.50; one draft for .$2,017.- .50. dated July 20, 18S7, upon Wil R. St -wart, .li-. : one draft npf)n W. R. Stewart. Jr., for $1.49(1, dated July 21. 1887.— aU of which said drafts \A-ere protested for nonacceptance. Said drafts were deposited in the Bank of Omaha, of which Andrew Henry was the sole owner, and received as cash, and L. A. Stew- art & Co. were allowed to draw against them a-s so nuich cash on deposit. At the time of the giving of said mortgage there was in the Bank of Omaha to the credit of L. A. Stewart & Co. the sum of $274.50. The notes secured by said mortgage were all signed by L. A. Stewait & Co. and also by W. R. Stewart. Jr. It had been the custom of W. R. Stew- art, Jr.. to honor the drafts of L. A. Stewart &; Co. upon him. It also appears that on July 20, 1887, W. R. Stewart. Jr.. of Des Moines, Iowa, accompanied by his attorney, Mr. Dud- ley, came to Omaha, and insisted upon L. A. Stewart & Co. securing the indebtedness to the Bank of Omaha upon which W. R. Stew- art, Jr., was liable as surety. A mortgage Avas therf-upon prepared by L. A. Slewart & Co. conveying the stock of goods and ac- counts of the said L. A. Stewart & Co., in- cluding the goods in controversy in this ac- ilon; and W. R. Morris, attorney for L. A. Stewart & Co.. W. R. Stewart, Jr., and his attorney, Mr. Dudley, on the morning of the 22d of July, 1887, presented the same to Henry, and demanded that, in consideration of the entire indebtedness to said Andrew Henry being sectired, the said Andrew Henry should release the said W. R. Stewart, Jr.. from liability by reason of said notes. The mortgage was thereupon received by Henry. There is a conflict of testimony on this |)oint; the evidence of W. R. ^lorris and W. R. Stewart, Jr., being that said W. R Stew- ai-t, Jr., was absolutely released from his liability upon said notes; and the testimony of Pklward J. Cornish was that Andrew Henry agreed, as part consideration of said mortgage, not to press W. R. Stewart, Jr.. upon the notes, or to bring suit or in any manner to make claim for paym(»nt upon th' notes until the mortgaged property should be entirely exhausted; and this we a/e ( ouvinced is the truth in regard to the trans- ■•iction. W. R. Stewart, Jr., therefore, is still liable on those obligations. It is unnecessary for us to review the various assignments of error at length. The conceded facts show that the property in question was sold for cash on receipt or seciu'ed notes; that .Stewart obtained the property without paying foi" it; that he soon afterwards exec-uted the mortgage in ques- lion; that Henry knew, or had the means of knowing, that the property in question had not been paid for. and in no sense is he a Ijona fide purchaser. The same is tnie of W. R. Stewart, ,Ir. As against these parties, therefore, the owner of the goods had a right to reclaim them. Some reflectif)ns are in.ide upon the plaintiff in error in the defendants in -n-ror's brief, but there is no ground for such insinuations, as he seems to have done nothing inconsistent with fairnes; anl int;»g- lify; but the claims of the defendants in error are superior to his. It follows that the judg- ment is right, and that the opinion in this case on the former hearing, which is reported in 33 Neb. 1.30, 49 N. W. Rep. 1107, should be overruled. The .judgment of the district court is affirmed. The other judges coucm;. AVOIDANCE OF CONTRACT. 223 POTTER et Jil. v. LEE. (53 N. W. 1047. 94 Mich. 140.) Supreme Coiut of Michigan. Dec. 22, 1892. Error to circuit court, Wayne county; Cornelius J. Rcilly, Judiji.'. Action by G^^orge N. Poner and otliers, co- partners, as the I'otterfield Clieese Factory, against Gilbert W. Lee, to recover llie value of cheese sold defendaiit. From a .judgment for plaintiffs, defendant ai)peals. AtHrmed. Charles W. Casgrain and Chai-les S. Mc- Donald, for appellant. Philip T. Van Zile and Frank E. K()bst)n, for appellees. LONG. J. Plaintiffs bi-ought assumpsit in the Wayne circuit court on the common counts. In their bill of particulars they claim- ed for the price and \alue of IGO cheeses, weighing 7,2.j3 jiounds, at 1^2 cents per pound, amounting to .i;.'>4o.98. Defendant gave notice under his plea of rhe general issue that the plaintilfs falsely and fraudulently represented that the cheeses were good and merchantable, were nor strong, and ^^ould not crumble when cut; that between 18 and 20 only were made during the month of .Inly, and the balance wei'e made during August of that year, and that the entire lot was equal, if not superior, to the samples which were exhibited; that he (the defendant) relied upon such warranty in making tlie purchase; that the same were not equal to the samples, and that such rep- resentations were false, and the cheeses were of an inferior (juality; were made from infe- rior ingredients; were strong, and would crumble when cut; were immerchantable, and of no value; and that he sustained loss thereon, and to his business, etc., which he would recou[) on the trial. The case was tried before a jury, and the i)laiutifrs had verdict and judgment for $.")8".(>(). Defendant brings error. On the trial the plaintiffs pi-oduced as a witness John Potter, who was the agent of the plaintitJs in making the sale to the de- fendant. His version of the sale and what the contract was is that on the 24th day of September. 1890. he called upon the defendant at his place of business in Detroit, and en- deavored to sell hin. a quantity of cheese, which he had at the Detroit, (irand Haven & Milwaukee depot in Detroit. He did not sell them on the first visit to defendant. He called upon others, and on the next day made a sale to the defendant. He took lo cheeses as sam- ples to defendant's stoiv. Three or four were taken into the store, and examined by the de- fendant with a trier. Defendant asked what he wanted for them, and he said 8 cents. De- fendant would not pay that price, and offered ~V2 cents, and the bargain Avas closed at that price. The cheeses were each marked i)lainly on the outside with the date they were made. Mr. Potter testified that no representations were made as to the cheeses being good and marketable, or that those at the depot were as good as the samples, but that he Jtated that thev were made in .July and August. He also testiiied that in st'le<-ting he samples he took some of July and some of August make, and without an effort to select the best. The de- fendant testified that he tried three of the cheeses with a trier, and found them good. He asked how many of the whole lot were made in July, and Potter answered 1."j or 20, and the rest in August. After examining^ the tliree. he asked Potter if the cheese would crumble when cut; if they would, he would not give a cent per pound. Potter said other merchants at Potterfield had used them with perfect satisfaction. That he then .said to Potter: '• 'If that lot of cheese is as you rep- resent it, and will not crumble, and are as. good as these three samples I will take it all, and pay you seven and a half cents per pound for it." Potter said he would take that price, and wanted a check for the amount. I told him: 'That may be all right; we have plenty of money to pay it, but we don't pay quite as proiupt as that. You are a stranger to me, and I have seen only ten boxes of these cheese, and I don't know what is in the car. If in the course of ten days we find this cheese as you represent it. we will pay for thenu taking one per cent., which is customarj'.' Mr. Potter then left for home." The last part of this arrangement is substantially agreed to- by Mr. Potter. He says that defendant want- ed I per cent, oft', or take 30 days to pay it in. and he gave him the 30-days time. Nothing has ever been paid. Defendant took the cheeses from the depot, sold some, and says that in less than 10 days parties to whom he shipped some of them refuse:! to pay, and wrote letters rejecting them. He introduced testimony tending to show that he attempted to make .sales; that the cheeses wotild crumble when cut, and come back upon his hands, as they were not equal to the sample; and that it had injured his business to a great extent. He testified further that he wrote a letter to the plaintiffs on October 21st, which was the first notification he gave them of the quality or condition of the cheeses, and the first refusal to i)ay for them. He states in his letter that the 1-3 cheeses shown as samples were readily sold, and that no fault was found with them; but claim is made that some 40 were shipped to Mt. Clemens, and all but 5 or (! returned; that others were afterwards rettirned by parlies to whom he had shipped them. Plaintiffs were asked to take the bal- ance away. Much testimony was given which it is not neces.sary to allude to. The errors re- lied upon relate principally to the refusal of the court to give certain of defendant's n-- quests to charge, and to the charge as given. Claim is also made that the court was in error in refusing to permit the defendant to show the loss of profits on resale caused by breach of warranty, and the effect sucii breach had upon his business and trade. The court chai"- ged the jury that if they found the defendant remaiiu'd silent for some 20 days after the clieeses were ptuchased. without complaining that those delivered were not such in quality 224 AVOIDANCE OF CONTRACT. as those purchased, and if they found that cheeses were perishable property, defendant could not. after that lapse of time, rescind his contract; and their verdict must be for the plaintiffs for the price the cheeses were sold for; and, further, the court directed the Jury that the failure to notify the plaintiffs must l>e considered as an acceptance of the property at the price agreed upon. We need not state the several requests to char,i,'e, as, from the view we take of the case, the court, under the testimony of the defend- ant himself, should have directed the verdict in favor of the plaintiffs. Defendant admits that he said to Mr. Potter, plaintiffs' agent: "You are a stranger to me, and I have seen only ten boxes of these cheese, and I don't know what is in the car. If in the course of ten days we find this cheese as you represent it, we will pay for them." The arrangement, in effect, was that he was to have 10 days to examine the cheeses, and if found as rep- resented, he was to pay for them; and, if not found as represented, he might return them. Potter does not dispute this arrange- ment. It is therefore evident, even if a war- ranty was made by Potter as to the quality of the cheese in the car, and not examined at the time by the defendant, that the defend- ant did not rely upon it, but preferred to make an examination for himself, and was to have the 10 days to do it in. If he did not make such examination, it was his own fault. He says the cheeses were brought to his store. He had therefore every oppor- tunity to make an examination. He was told by Mr. Potter that they were made in .Tuly and August, but claims that Potter told him that only 1.5 or 20 were made in .July. and the rest in August. When they Avere lirought to the store, he could readily see what quantity was made in each month from the marks upon the boxes. He claims that complaint was made of some that he sold even before the 10 days elapsed, and yet he gave the plaintiffs no notice of these facts for 26 days after the purchase, know- ing, as it is shown, that the cheeses were perishable property. He continued selling right along after the 10 days elapsed and up to the time he finally refused payment. It appears that there was no contract of warranty ui)on which he relied, but rather an agreement for 10 days' time to examine and determine whether or not he would keep them. He failed ro return them within the 10 days, and, under the admitted facts, he iniist be considered as having accepted them, and cannot be heard to set up the defense of warranty and breach. Farrington v. Smith, 77 Mich. 550, 43 N. iv. 927; Childs V. O'Donnell, 84 Mich. 533, 47 N. W. 1108; Manufacturing Co. v. Bangs (Minn.) 44 N. W. 671; Ilosenfield v. Swenson (Minn.) 47 N. W. 718. In Reed v. Randall, 29 N. Y. 363, the court, in speaking of an article found to be unmerchantable, said: "The lat- ter [the vendee] is not bound to receive and pay for a thing that he has not agreed to purchase; but. if the thing purchased is found on examination to be unsound, or not to answer the oi'der given for it, he must im- mediately return it to the vendor, or give him notice to take it back, and thereby re- scind the contract, or he will be presumed to have acquiesced in its quality." In the present case. the defendant admits that he had some of the cheese returned within 10 days after its purchase, yet he kept on sell- ing for 16 days thereafter, without notice to the seller. In this view of the case, what- ever technical errors may have been com- mitted on the trial are of no importance, as the right result has been reached. .Tudg- ment is affirmed, with costs. The other jus- tices concurred. AVOIDA.NX'E OF CONTllACT. 221 WILSOX V. NEW MXITKD STATES CAT- TLE-KAX'CII CO.. Liinitcd. (20 C. C. A. 244, T^ Vv\. ll!)4.) Circuit Court of Appenls. lOif^lith Circuit. March 30, ISIX!. In error to the circuit court of tlie United States for the district of Colorado. At some time in the early part of 1SS4 tlie New United States Cattle-Kancli Company. Limited, a corporation, and the defendant in error herein, agreed to purchase of \\ miam .J. Wilson, the plaintiff in eri'or, tlie Circle ranch, which was locatal on the Kei)ublican river and some of its tributaries in the states of Nebraska, Colorado, and Kansas, and 6,000 liead of cattle j?i"-iziny thereon, and to pay therefor about !i;;JOO,(M)U in money and some stock of the corporation. By this contract, and its various moditications, the plaintiff in error covenanted to convey to the vendee a gwMi title to 3,0(MJ acres of land, and to de- liver to it <5.0(>0 head of cattle. Tlie vendee paid .^tW^.S.lo of tlie purchase price, took pos- session of the rancli and of some of the cattle, and jrave a bond and niortj^afjes upon the cat- tle and the laud to secure the payment of the balance of the price. The vendor made a bill of sale of the cattle, and a deed of 453.80 acres of the land to the vendee, and also gave to it a bond to convey a good title to the re- mainder of the 3,000 acres of laud. All these papers were deposited with a bank in the eity of Denver, to be delivered to the vendee if it paid the balance of the purchase price according to their terms, and to be delivered to the vendor if the vendee failed so to do. It was also agreed that the moneys realized from the sales of the cattle meanwhile should be applied in part payment of tlie purchase price. On the 22d day of July, 18S.j, the vendor entered upon this ranch, took posses- sion of the cattle and personal property there- on, and in the month of September sold them under the chattel mortgage given by the ven- dee for a default in the payment of an over- due installment of the purchase price. There- upon the cattle company brought an action against the i)laintift' in error in the court be- low for .$2.">t».0iM». It alleged in its complaint that the plaintiff in error had by false and fraudulent representations as to the number and character of the cattle, and as to his title to the 3,0re joined upon the averments of this complaint, and upon their trial the juiy returned a verdict against the plaintiff in error for $."»0.000. It is the judg- ment upon this verdict that is attacked by this writ of error. Chas. S. Thomas (W. H. Bryant was with him on the brief), for plaintiff in error. Chas. J. Hughes, Jr. (Tyson S. Dines was with him on the brief), for defendant in error. Before CALDWELL. SANBOK.N, and THAYER, Circuit .ludges. SAXBOKN, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The futile attempt of the defendant in er- ror to maintain an action for affirmance, and an action for rescission of its contract of purchase, upon the facts pleaded in its com- plaint, has resulted in such inextricatile con- fusion of the rules of hiAV applicable to the trial of this case that the judgment below must be reversed. When a vendee ascer- tains that he has been induced to make a couti'act of purchase by the framhilent mis- representations of his vendor, he has a 216 AN'OIDANCE OF CONTRACT, choice of remcdios. He may resciud the con- tract, restore what he has received, and re- cover back what he lias paid, or he may af- tirm tlie contract, and recover the damages he lias sustained by the fraud. He cannot, however, do both. It is as ditficuit a feat to maintain a cause of action for the considera- tion paid for the purchase on the ground of rescission, and one for damages for the fraud which induced it, and for a breach of the contract of purchase itself, in the same action, as it is to ride at the same time two horses that are traveling in opposite direc- tions. Upon a rescission of a contract of purchase, the measure of damages is the con- sideration paid and the moneys naturally ex- l)ciuU'd on account of the purchase before the fraud was discovered. Upon an action for damages for the deceit and fraud which in- duced the purchase, the measure of damages is what the vendee has lost. It is the differ- ence between that which he had before, and that which he had after, the contract of purchase was made. Smith v. BoUes, 132 U. S. 125, 10 Sup. Ct. 39; Reynolds v. Franklin, 44 Minn. 30, 40 N. W. 139. Upon an action for a breach of the covenants and warran- ties contained in the contract of purchase, the measure of damages is the difference in value between the property actually received, and its value as it would have been if the warranties and covenants had not been bro- ken. The two causes of action last men- tioned are consistent with each other, and may be maintained together; but each of them is inconsistent with the cause of ac- tion for rescission, and neither of them can be maintained at the same time with that cause of action. One who has been induced by fraud to make a disadvantageous con- tract of purchase may attiim the contract, and sue for its breach by the vendor, and at the same time may recover of him the dam- ages which resulted from the fraud which in- duced the contract; but he cannot recover for a breach of the contract, and for the fraud which induced it, and at the same time recov- er the consideration which he paid for it. He cannot have the benefit of the contract which he purchased with the consideration, and also have the consideration itself. The court below perceived this dilemma, and. in opening its charge to the jury, it told them that the defendant in error sought to recover on either of three grounds: First, on the ground of deceit; second, on the ground of a breach of express warranties; and, third, on the groind of a rescission of the contract,— but that they need not consider the latter ground, except to ascertain whether or not the whole consideration to the plaintiff fail- ed on account of the fraudulent acts and practices of the defendant. The court then attempted to keep these three grounds of re- covery distinct, and it charged the jury that, if they found that the contract and its mod- ifications were induced by deceit, the de- fendant in error might recover the proper measure of damages for that fraud, and that if they found no deceit, but found that there was a breach of express warranties, the de- fendant in error might recover damages on that ground, and that if there was an entire failure of consideration, as there would be in case of rescission, the defendant in error might recover all its expenditures on account of the contract. This attempt, however, prov- ed futile. The different measures of dam- ages applicable to the three causes of action became inextricably confused before the charge closed; and the court advised the jury, among other things, that if they found that through the failure of the plaintiff" in error to fulfill his warranties, and the retaking of the property by the plaintiff' in error un- der his chattel mortgage, there was an en- tire failure of consideration to the vendee, they might give to the cattle company a ver- dict for the moneys it had paid to the ven- dor with interest from September 19, 18S.5, and for all the expenses it had paid on ac- count of the purchase. In other words, the court charged that the jury might give the same damages for the breach of the war- ranties in the contract that they might have given in case of the rescission of the con- tract. If we apply this portion of the charge of the court to a single warranty, its error is apparent. One of the guaranties contain- ed in the contract was that there were (j,000 cattle on the ranch, and that the vendor would gather and deliver to the vendee 5,- 400 cattle of all ages during the season of 1884. The breach of this guaranty alleged in the complaint was that there were not more than 3,000 cattle in the herd at the time the contract was made, and that the vendor did not deliver during the season of 1884 more than 4,000 cattle of all ages, it is obvious that the measure of damages for this breach was the difference in value between the herd as it was and as it was warranted to be, and not the consideration paid for, nor the expenses paid on account of, the con- tract. Nor could the fact that the vendor some months later seiz.'d the cattle then upon the ranch, under an alleged default in the mortgage given to secure the payment of the balance of the purchase money, change the measure of damages upon the warranties, or substitute for it the measure of recoveiy allowed upon a rescission of the contract. The court fell into another error in its treatment of the warranties alleged in the complaint. Jt charged the jury as follows: "You may take into consideration all the facts and circumstances, in determining what, if any, warranties defendant made, or caused to be made; statements made by the defendant, or caused to be made, if any, by him, not made as mere matters of opinion or belief, but attirmations of existing facts as facts, for the purpose of assuring the plain- tiff' or its agents, or both, of the truth of the facts attirmed. and inducing the plaintiff' to make the purchase of the ranch and property AVUIDANCE OF CONTRACT. 227 in qiiostiou; aud such stateuieuts, if auy, re- lied ou by tlie plaintiff and its agents, or ei- tbei% in nmkinji said purcliase, or entering in- to said contract, or acting in respect thereto, may antliorizo you in tinding an express war- ranty, if you tlilnk it ought to he found from the evidence and all the circumstances of the case." Again, it charged the jury with reference to a representation that there were 800 beef cattle in the herd, which was made before any of the written contracts were signed, as follows: "The court charges the jury that if they find from the evidence that it was represent- ed by the said defendant, or his agent, that there were in said herd eight hundred beef cattle ready for the market, that this was a material representation, for the truth of which the said defendant was responsible, and that, if said cattle were not there as I'epresented. then the said plaintiff had a right to a deduction from the contract price, and from the first payment thereon of the value of the cattle which were not there according to said representation, and the said defendant was under obligation to make reduction therefor; and this although there may be no special mention or refer- ence in the contract itself to the number of the said cattle, for the reason that the said plaintiff had a right to rely upon the state- ment and declaration and representation made bj- and for the said defendant as to their existence and presence in said herd." These portions of the charge were erro- neous and misleading in the case now be- fore us. It may be that some portions of them could be sustained in a case in which the parties to the sale had not reduced their contracts to writing, but they were certain- ly not applicable to the case at bar. The parties to this suit embodied their agree- ment of sale in a written conti'act, and sign- ed it. So careful were they that there should be no question what their contracts were and what they were not, that they re- duced to writing and signed no less than tive agreements of modification of their orig- inal contract. In these various agreements the vendor made certain express warranties. He guarantied that the herd sold should consist of G.OOO cattle which should be well graded American stock, free from Texas or Spanish pedigree, and should include 30 full-blood Durham bulls; that he would de- liver all these cattle by the close of the round-up season of 18S."»; and that he would deliver .5.400 cattle of all ages during the season of 18S4. But he nowhere in these contracts guarantied or agreed that there were 8U0 beef cattle in this herd, or that he would deliver any such cattle to the pur- chaser. The defendant in error made no plea of any mistake in the draft of these <-ontracts. It made no demand for any change or reformation of any of them. FvDm these facts the legal inference irre- sistibly follows that all prior representa- tions, statements, and declarations made in good faith, and all prior oral contracts, were merged in these written agreements, and that they contained all the warranties aud guaranties that the parties to these ne- gotiations made. They contained some war- ranties. The conclusion is irresistible that when they were made the parties selected from their oral representations those decla- rations, and all those declarations, wliich they agreed to warrant or guaranty, and embodied them in these written agreements. "Expressio unius est exclusio alterius." In the absence of fraud or mistake in reducing complete contracts of sale, containing war- ranties, to writing, the presumption is con- clusive that they contain all the warranties that the parties intended to make or did make. The supreme court of Minnesota states the rule thus: "Where the parties have deliberately put their engagements into writing, in such terms as to import a legal obligation, with- out any uncertainty as to the object or ex- tent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the manner and extent of their undertaking, was reduced to writing." Thomp.son v. Libby. 34 Minn. 374. 377. -!(5 N. W. 1; 1 Greenl. Ev. § 275; Barnes v. Railway Co., 12 U. S. A pp. 1. 7. 4 C. C. A. 199, and 54 Fed. 87; McMurphy v. Walk- er. 20 Minn. 382. 38(; (Gil. 334); Harmon v. Harmon. 51 Fed. 113, 115. The result is that the plaintiff in error was not liable for the breach of auy guar- anties or warranties not found in his writ- ten contracts, and it was error for the court to instruct the jury that they might find that any statements of facts which he made to induce, and which did induce, the con- tract of sale, were express warranties, for whose breach he was liable. [Moreover, if the plaintiff" in error had warranted that there were 800 beef cattle in the herd sold, and there were in fact no such cattle there, the measure of damages for the breach of this warranty would not have been the value of 800 beef cattle. It is conceded that there were more than 8(X) cattle in the herd, and the measure of damages for the breach of a contract that 800 of them were beef cattle could not be more than the difference between the value of 800 beef cattle, and the value of 800 of the best cattle found in the herd. The defendant in error had a written guaranty of the number of the cat- tle in the herd, for the breach of which it was entitled to recover the difference be- tween the value of the number of cattle ac- tually there, and the value of the U,000 cat- tle guarantied to be there. If, in addition to these damages, it could also recover the value of the 800 beef cattle, the plaintiff in error would, in effect, be required to fur- nish the equivalent of G,000 cattle guaran- tied in his written contract plus 800 beef 22S AVOIDANCE OF CONTRACT. caltlo, or in all t;,s(M) cattle, aud that was not the contract. There are many other assii^unieiits of er- ror in this case. Those which we have no- ticed present basic questions that will re- turn for consideration upon the second trial. Many of those raised by the other assij^n- nieiits present minor questions that may not arise again, and it would serve no good purpose to extend this opinion by noticing them. The fundamental principles which must govern this case are: One who is induced to make a disadvantageous contract of pur- '•hase by the fraudulent misrepresentations of his vendor has a choice of remedies. He may. upon the discovery of the fraud, re- scind tlie contract, restore what he has re- ceived, and recover what he has paid, or he nniy enforce the contract, and recover the vin for certain wagons, poles, and seats. The defendant (Jeorye W. Piatt had, prior to Februai-y 3. 1889, been en,ira,s;ed in the mer- cantile business at Benton Harbor, the prin- cipal line of his business beiuir hardware. He was also interested in the milling: business at tliat place. He was assisted in his store by his son. Frank H. Piatt, who. during his father's absence, or inability to attend to business, on account of sickness, exercised full control over the business. In 1887. (Jeorge W. Piatt drew money out of his bard- ware business to invest in the milling busi- ness; and. to meet a bank-note and bills maturing on August 7, 1887. he borrowed .$3,- 000 of the Bank of Benton Harbor, and gave seciH'ity, by way of a chattel mortgage, upon his stock of liardware. This mortgage was, by mutual consent, not placed upon tile, and in December. 18S7, this debt had all been paid except JKOOO. for which the bank took three notes, of $300. .$100. and $500, respec tively. On .Tamiary 27, 1888, there was due on this mortgage the principal sum of $G00, and on that day. unknown to Piatt, the mort- gage was plac-ed on file. On February 2, 1888, the mortgage was paid in full and dis- charged. The filing of the mortgage caused inquiries to be made by the creditors of Piatt, w-ho was then sick; and his son, Frank H., without the knowledge of his father, pre- pared, and on the 10th day of February, 1888, gave to the collecting agency of R. G. Dun & Co., a statement of the financial standing of George W. Piatt on the 1st day of .Tami- ary. 1888. as follows: Benton Marbor Milling Co $ 4.000 (X) 4V/> acres in citv limits, Niles, Mich .'>.000 00 House and lot St. Jo., Mich 2.0OO 00 One-seventh interest in estate, Nlles, Mich 1.000 00 One-half interest in store, lot, and building, Bangor, Mich 500 00 Incumbrance on aiiove. Invoice merchandise . . $14,031 27 Tinners' tools and store fixtures 830 00 Notes 2.105 ,50 Accounts receivable . . . 5,3.53 05 Freight, boxing, and carting on merchan- dise, 3 per cent 419 73 $12,500 00 5,000 00 $ 7,500 00 $22,805 61 Liabilities, sundry acc'ts 7,015 49 15,190 12 Total assets in excess of liabil- ities $22,690 12 A schedule of lial)ilities upon merchandise accounts was attached. The correctness of the statement was sworn to by Frank H. IMatt. On May 12, 1888, Dun's agency at- tached to such statement of Piatt "an opinion of statement" of their own, as follows: "May 12. '88. Opinion of statement. Should suppose that the only (piestion here would be as to the value of the real estate, etc. Writer has seen his ledger, which shows, as he recollects it, something of this .sort: Estimated Niles property at $5,(KX). Understand that it is worth about $4,000." Again, on .Tune 5th, Dun's agency made another report, as follows: ".Tune 5, '88. " In Avriter's opinion, following is a more correct statement: Invoice of mer- chandise, .$8,000: tinners' tools, etc., $500; farmers' notes. $2,165.56; accounts receiva- ble, $5.3.53.05; 3 per cent, for freight, etc., $419.73. Ha^e very good reasons for placing invoice at $8,000. The tinners' tools are old. and more or less out of date, and hardly worth $500. The farmers' notes may foot up tlie figures given, but for some reason were not discountable at the time of the chattel- mortgage difficulty. Feb. 2, 1888. Accounts receivable are not worth over fifty cents on the dollar, $3,211. s;i; 3 per cent., boxes, cart- age, etc., $240,— total, $14,117.89; liabilities, total indebtedness on stock, $7.615.49.— bal- ance, $6..501.90; 160 shares in milling com- pany, at .$25, $4,000; 41 acres, Niles city lim- its, $5,000; St. Joseph house and lot, $2,000; 1/7 interest in house of Piatt estate, $1,000; % interest in Bangor house and lot. $500.— total. $19,001.90; mortgage incumbrances, $5,- 000. As to 160 shares, he first bought 80 shares, at $25. making $2,000; subsequently suliscribed for 80 more, and hypothecated the first 80 to secure the payment of the second 80, leaving only, say $2,000. The 41 acres are not worth $5,000. They are not worth more than $2,500. An outside figure is $3.- 000. The St. Joseph bouse and lot he recent- ly sold for $1..500. 1/7 interest in the Geo. Piatt family residence at Niles, Mich., is good, but not available. 14 intei'est in Ban- gor hou.-: real-estate assets, $7.3.50; real-es- tate mortgage, $5.000. — assets in excess of liabilities. .$8.8.51.90. (Continued.)"' "June 2, "88. The mortgage was dated Aug. 8, '87, but was not filed until Jan. 28th, 1S88. The note to which the mortgage was U0, wliicli was discharged from rec- ord alter being nearly paid up, and l^ank toolv a mortgage on some real estate near Niles. Piatt is treasurer of the Benton Harbor Mill- ing Co., and owns $4,(X)0 of the stock, which is hypothecated for a loan of $2,000. Is said to sell on very close margins and below cost on many articles, and it is not deemed probable that he is making any money. Is said to have a nominal surplus of 8 to .$10,000, but is not re- garded a very safe credit risk." ■'Jan. 2o, '89. Has a large trade, but is reck- less in selling. Stock about $7,000. Is hard up, but not so much so as at one time. Wortli about $10,000 above debts. G-3-1-2." ^^'ith tills statement as to Piatt's financial standing, and with a rating in Dun's Commer- cial Agency of from $.5,000 to $10,000 capital invested in his l.usiuess, the plaintiff in this suit received a letter from Piatt dated Fel:)ruaiy 3, 1889, requesting it to quote prices on its car- riages, stating that he should probably sell a few veiy fiue outfits that seasou, to which tlie plaintiff replied, under date of February 10th, stating prices, and terms of discount and credit. Afterwards the salesman of plaintiff called per- sonally upon Mr. Piatt, and on :March 7, 1889, received his order, upon the terms of 90 days net, .") per cent. 30 days. Two days later, Piatt wrote plaintiff requesting it to add to the order three spiral-spring carts. Plaintiff commenced shipping the goods March 30, 1889, and made two more shipments in April, when, Ijefore the goods were all sliipped and on April 29th, the defendants wrote plaintiff requesting it to cancel order foi' carts and buggies. It appears that, about the same time, defendant Piatt can- celed other orders which he had made for goods from other parties, for the reason that he be- came satisfied that he sliould not be able to pay for them. The plaintiff claims that it .sold the goods and extended the credit to defendant solely upon the strength of tlie rating statement of Piatt, and repoils received from Dun & Co., above set out. It also claims. iliat such statement was false and fraudulent, and made for the purpose of inducing plaintiff to sell to him upon credit, and that, on account of such fraud, it had a right to rescind tlie sale and reclaim the goods. I'laintiff also c-laims that Pbitt, at the time he puivhasetl the goods of ])lain(iff. did not intend to pay for them. Accordingly the plaintiff sent its attorney to Benton Harbor, where he ar- rived on May 18, 1889. This was on Satur- day. He called at the store, where he found Frank H. Piatt, and was informed that (Jeorge W. Piatt was sick. He told Frank H. that he had heard that fliey had been putting some mortgages on tlie property there, and it was not looking just right, and he had come to see what there was about it. That Fraulv H. told him they had given some mortgages, and, upon further iiuiuiry, he stated to whom and the amounts. He was told that the mortgages covered the whole stock, including the wagons, and he said to Frank that they did not .send the wagons to him to be mortgaged for old family debts, but they \\-ere sent supposing tliat Piatt would .sell them in the course of busi- ness, and then pay for them. He replied that they should pay their debts; they expected to; they should get their money upon their notes and accounts, and pay eveiythiug in three months. He then told him that he did not want to make unnecessary tiouble; that he did not like the looks of things there; and if he tliought he was going to pay in three months, if he could give plaintiff a note payable in six mouths, with an indorser. without interest, it would be satisfactory to it. It would give him three months' extra time in case he did not get arouud to pay all his debts. Frank said he did not want to do that. Further conversation en- sued, in which the plaintiff's agent suggested that perhaps I'lalt could get Mr. Tatman, who then held a chattel mortgage as security for indorsing defendant's notes, to sign a note with Piatt for the debt due plaintiff, and he said he would not want to do that. The witness tes- tified: "I said to him: 'If you are not willing to do that. I have not much faith in your talk about paying in three months. 'S^'ith tlii'se notes here, you cannot expect us to be easy.* Then I said to him: 'So we shall have to re- claim our goods. These wagons we shall take back.' That is what I was here for,— to re- claim These wagons if the matter was not sat- isfactory, so we could get the pay out of it." It is claimed by d(>fendants' counsel that this was such a recognition of the contract relations between the parties as amouuted to a raiiliea- tion of the contract of sale. But I do not think so. It was a mere effort to get security for payment of the debt. Had he taken se- curity, or given a valid extension of time of payment, it would have bwn different. A per- son defraud(Hl doi's not lo.se his right to rescind by making an effort to compromi.se or obtain pay for the property, unless he does some act which evinces a clear intention to waive his right to rescind. For the purpose of showing the falsity of the statement made by Frank H. Piatt of his fa- ther's financial standing on January 1. 1888, 2:52 AVOIDANCE OF COXTIIACT. J. H. Brcckcniidiic w;is iiitnxljccd ns a witness on the part of the iilainlUT. and tc^slilicd that he had lu'i'ii a book-kci'ijcr for l") or It; years lit Johel and Chicago, 111., aud had examined the books of account of Cieorije W. I'latt with F. A. Ilobhs. On his direct examination, he testified that on January 1, 188S, the books showed net assets ,"t;fo,87(J.2-t, and that there was a difference betAveen what the books show- ed and the statement of !fi).8i:j.S8. He at- temi)ts to exjtlain the method he pursued to r(>ach his conclusion, which from his testimony is not ver.v satisfactory. He deducts items which the books of George W. Piatt show were in the banks at that date, because an examina- tion of the books of the banks shows that cer- tain checks had been chaiged up against the ac- counts, making a difference of $1,027.44; but it was shown that the checks had been used in reducing liabilities to that amoiuit. He deducts .S2.(iiM» from real estate, for the reason that he finds from the cash-book the house and lot had been sold, and the proceeds put into the store, and a note given therefor to Jane E. Piatt, which he puts Avith the liabilities. On his cross-examination, he admits that the accounts receivable, as shown by the books, were $4,- 1I2G.94, and the bills receivable were $l.!)2.j.r)(j, making a total of $(I8r)2.oO; and that in his memoranda he only called them $3, 421120; and that, counting them at their face, Piatt would be worth $3,420.2.") more than he had testilied he was worth the day before. It apiiears that this witness testilied from memoranda, and that, upon adjournment of court in the evening before he was cross-examined, counsel for plaintitt" furnished defendants' attorney with a copj' of some figures purporting to be those used by the witness. The next morning the court called upon cumisel for defendants to produce such memoranda and have them marked as an exhibit. They had not been offered in evi- dence, and counsel for defendants did not ad- mit them to be copies of the memoranda from which witness testilied. Nevertheless the court insisted that they should be marked as an ex- hibit, to be printed with the record in case the cause should be taken to the supreme court, but should not be read in evidence or considered in evidence upon the trial. The court stated that he made "the order in view of Mr. Valentine's refusal last evening to admit that these figures were furnished by counsel." Exception was taken to such ruling. That this was error there can hn no doubt, but, so far as we can see. it Avas harmlfss error. The exhibit is returned and printed in the record, but is not considered by this court. EiTor which was prejudicial was ci uunitted upon the examination of the witness F. A. Hobbs. He Avas a book-keeper and coal-deal- er, and lived in Benton Harbor. He assisted Breckenridge in the examination of the books, and, in testifying, made use of memoranda, and swore that he could ucjt testify to the exact fi.inn-es Avithout the aid of the memoranda, and that he had used it to get at the exact tigui'es throughout his direct examination; that all the figurc^s upon it related to tlr^ examination of the books ma^th of that month, high pressure ptimps w^re brought into use. which, at a pressure of 4(X) pounds, reopened some of the old leaks, atid disclosed many new ones. Further attempts were then made, by caulking and other means, to remedy tlie defects, but with imsiitisfactory results, until November l.lth. when wintc set in. and work was stopped. On the other hand, while there had been delays in the deliverj- of pipe, the Columbus Company had not paid in full for the pipe delivered: and on September iOth the short- age had risen to $139,900. but by later pay- ments, the last of which, in the sum of .$1.),- 00(">. was made Noveiuber 2(;th. the deficiency was reduced to .?73.S(N». These shortages were the subject of correspondence, and of complaint by the Crane Company, in behalf of which it is claimed that, while various ex- cuses were offered, it was never assigned "as the reason for not paying spot cash that the pipe was not satisfactory": that complaint was once made by Mr. Yerkes. who. in Oc- tober, had succeeded ^Mr. Heiiuembourg as the representative of the Columbus Company in the transaction, that some of the pipe ship- ped by the Reading Company had been for- warded in a damaged condition, but that, it having been found on investigation that some of the threads had been jammed in transit, the Crane Company offered to have all dam- aged pipe put in order, and returned to the place of use. at its* own expense, and that nothing was said at any time about a de- ficiency in the weight of the collars, or about any defect other th'in jammed threads: that on December 31. 1890. Mr. Yerkes offered in writing to accept ^he proposition for repair- ing pipe, and to pay therefor when returned and further inspected, but upon condition that the mills sho.ild commence delivery of ,)i|ie. to fill the balance of their contracts, on February 1, 1891. and that the contract be modified so that, instead of spot cash for all pipe delivered. 50 per cent, of the price should be paid on delivery, and the remain- der after a test in line, under a pressure of 1.0(X) pounds to the square inch; that the Crane Company refused to accede to this ( liaiige in the terms of payment, and now contends that its proposition to repair the damaged threads was thereby in effect re- jected by Yerkes. This difference, it seems, divided the parties until January 30, 1891, when ;Mr. Verkes telegraphed tlie Crane Com- pany: "We are prepared to receive pipe in accord- ance with contract, particularly that part which provides for a test of 1,000 pounds when laid. Although you have not complied with terms of your contract, we will receive pipe if you commence immediate delivery." — And. receiving no response, on February 12. 1890, wrote as follows: "On the 3ijth ult.. I telegraphed you from New York as follows: 'We are prepared to receive pipe in accordance with contract, par- ticularly that part which provides for a test of one thousand pounds when laid. Al- though you have not complied with terms of .vour contract, we will receive pipe if you ccmmence immediate delivery.' Up to the present time. I understand, you have had no pipe delivered this year. I wish to notify you that we cannot wait longer for the said delivery, and will therefore cancel our con- tract. In regard to the pipe that has already been delivered, we are prepared to make some arrangement with you respecting the repair of same, and adjusting the acctnints now remaining open. "[Signed] Chas. T. Yerkes. "Vice Prest.. C. C. Co." To that letter, the Crane Company on the same da.v responded as follows: "Your young man brought in yours of even date a few minutes ago, and upon its receipt it struck me that there was no occasion for any reply in view of all that has been said and written, but have since concluded that we had better make answer, in order that we mn.v keep our record straight. Would say that we answered yours of .January 30th. from New York, to the effect that we were prepared to go ahead with your pipe line con- tract on the conditions of .said contract, and we are now prepared to do so. But you have persistently rpquested that we go ahead on the contract upon terms dilTerent from The contract, and this we have persistently refused, and now refuse, to do. We Have simply demanded that you carry out your part of the contract, and desire now to noti- fy you that, if .vou cancel this contract, you do so at your peiil. and we will hold you re- sponsilde for the results. We have not de- livered any of the pipe this year, because you have not asked us to deliver it. and be- cause you have not complied with your part of the contract. We have been, as we are now, awaiting your orders to go on with the contract, and will do so when you comply with your part of the contract. "[Signed] Crane Company. "R. T. Crane. Prest." In the following March. Mr. He-as finished and turned over to the Indiana company late in 189:2. The defective taper in the threads of the collars, it is asserted by the plaintiff in error, was not discovered until just before the trial of this case, which was commenced December 3, 1804. and therefore could not have been the ground for the rejection of the pipe. The suit was commenced May 23, 1891, the decla- ration being framed as "of a plea of trespass on the case upon promises." and charging, in substance, that the pipe was made of imper- fect iron, and was incapable, when tested in line, of standing the required pressure, and that the threads upon the pipe and in the col- lars did not have a uniform taper. The plaintiff in error tendered the general issue, with notice of special matter. The trial re- sulted in a verdict and judgment in the sum of $48,000 for the defendant in error. Nu- merous error's are assigned, but the ques- tions to be considered are comparatively few. Evidence of certain tests made of the pipe in line Avas admissible to show the quality and value of the pipe delivered as compared with that contracted for: and if the tests were made without notice to the plaintiff' in error, and not within a reasonable time after delivery of the pipe, the value, but not the com]"»etency. of the testimony, was att'ected by those circumstances. Upon the question whether the pipe was handled carefally and properly laid, wit- nesses who supervised or participated in the work were permitted to testify "hat. in their opinion, the workmen w'ere skillful, and the work well done. It was competent, we think, to shov/ that men of experience and skill were employed upon the work; and doubtless, in such a case, a Avitness may be required to state what defect, if any. he saw in the work, or what carelessness or lack of skill in the manner of its execution; but the gt'ueral question whether the line or lines of pipe in question had been laid with proper skill and care was not one. we think, to be df^termined upon the opinions of witnesses. Among the cases cited to'iching the point are Provision Co. v. Baier. 20 111. Ap]). ^TG; Kail- rond Co. v. Clark. 108 111. 113: Morris v. Town of East Haven. 41 Conn. 2~)2: Turn- pike Co. V. Coover. 20 Ohio St. .")2(). .\ more serious question has arisen upon the admission of testimony to shoAv the cost of taking up. repairing, and relaying of pipe at Deep Kiver. Tolleston. and Kankakee. Proof was made tliat in 1891 aud isiii, after the bringing of this suit, the Columbus Com- l-any, having determined to make use of the pipe which had been delivered, took up what had been laid, removed the Crane collars, re- threaded such pipe as had been bent or caulked, put on heavier collars, and relaid Ihe pipe where it had been before. The men employed in doing this work were at the same time engaged in other work, and no separate account v\-as kept of the labor and expense incident to the changing of the col- lars, and rethreadiug aud relaying of the pipe received of the Crane Company. The excuse offered is that it coiild not be done with economy. On direct examination. Mr. Hequembourg, testif.ving for his company, stated that the cost per foot of taking up and relaying the pipe was .$1.50 at Tolleston, 75 cents at Deep River, and at Kankakee $1. 1 he cross-examination showed that these were mere estimates, prepared without per- sonal knowledge of the facts, from reports which were not designed for the purpose, and contained no data to enable him to reach a definite and just conclusion. These esti- mates were clearly incompetent. They were mere guesses by a witness interested to make the figures large. He testified that it was liis "particular business to ascertain what was a fair amount to charge the defendant for changing the collars and reconstructing the line"; aud. that being so. he should have kept, or caused to lie kept, accurate and dis- tinct accounts of the labor and expense as the work progressed, and should not have been allowed to give to the jur.v, as the re- sult of a calculation the basis of w'nich was not shown, the very large sum mentioned, and then to testify, as he did, that that sum was the reasonable cost of the several items inchided in the estimate. Such evidence does not become competent, under ordinary circumstances, because bettor evidence may not be at hand. Error Is also assigned upon the exclusion of evidence offered by the plaintiff in en-or for the purpose of showing that useless and rmreasonable expense had been incurred by the defendant in error in its efforts to make the pipe confonn to the specifications, fulfill the conditions, and stand the tests I'equired by the contract. The Columbus Company was engaged in laying a pipe line, not direct- l.v for its own use. but for the Indiana Com- pany, with which it had made the contract of .Tune 5. 1890. By an act of Ihe Indiana legislature apiu'oved ilarch 4. 1891. regulat- ing the mode of procuring, transporting, and using natural gas, the use of more than nat- ural pressure or an artificial pressure exceed- ins .'UK) pounds to the s(iuare inch was for- bidden; and by a decision of the supreme court of that state, handed down .Tune 20. 1891. the act had bees declared constitution- al. Jamieson v. Oil Co.. 128 Ind. .5.55. 28 N. E. 70. The defendant in error and the Indi- ana Company were joint parties to that suit, and. as a result of th(> decision, they modi- AVOIDAXrE OF CONTRArT, 237 •fled their contract so as to ri (luirt- tlic pipt' ii.nd collar to be tested at the mill luuler l.nCKJ pounds hydraulic pressiu'e, and. when laid, to stand, for 24 consecutive hours, a w'orkiu.s pressure of 4()0 pounds to the scjuare inch, without manifest or material defects, or leaka^'e exceedinj; 10 per cent, of its total storage capacity; the ■ tests to be made in , five-mile sections, as soon as each section should be completed. The plaintiff in error offered to put the contract and the modilica- tion in evidence, and asked the court to give to the jury, at the proper time, an instruc- tion which, after referring to the Indiana statute and other relevant and undisputed facts, proceeded as follows: "If, therefore, the jury tind from the evi- dence that the pipe delivered to the plaintiff by the defendant under its contract, prior to the commencement of this action, was of suffi- cient structural strength to stand a working line pressure ot three hundred pounds to the square inch, and also that the threading and taper conformed to the specifications of the contract, so that the line, when constructed, was sufficient for the transportation of the gas at the pressure of three hundred pounds, as limited by law; and if you further believe that, after the commencement of tliis action, the plaintiff unreasonably and unnecessarily expended money in the purchase of new coup- lers, and in exchanging such new couplers for the old. for the alleged purpose of construct- ing a line that would stand a pressure of a thousand poimds to tht square inch; and if you further believe from the evideuca that such expenditiire was uni'easouable and un- necessary. — then the court instructs yoti that you should not find for the plaintiff as dam- ages the amount of money so expended." We are of the oxjinion that the evidence should have been admitted and the instruc- tion given. By the general rule governing the measure of damages for a breach of warranty in the sale of chattels, the defendant in error, having paid the entire purcha.se price, was en- titled to reclaim a .sum equal to the difference in value between the pipe delivered and pipe of the quality warraated; and if, at the time of delivery, it remained necessary or desir- able, and was practicable, by a reasonable expenditure, to bring the pipe up to the re- quirements uf the contract, it was the privilege of the defendant in error to make the ex- penditure n-^cessary for that purpose, and to exact reimbursement of the Crane Company, instead of resorting to the proof of compara- tive values. But if. as the proposed instruc- tion assumes, the pipe met the requirements of the modified contract with the Indiana Com- pany, and. by reason of the Indiana statute, a pipe capable of bearing a pressure of more than oiM) pounds was not needed, then, mani- festly, it was unreasonable to expend time or money in an eft'ort to impart to the pipe a degree of strength which could be of no prac- tical utility. Under such circumstances, the ordinary rule should prevail, and the recovery I shoi'.ld be on the basis of the difference of I value between the article delivered and that which ought to have been delivered,— to be i determined by the market prices, or. if that ; should be impracticsible. then, probably, by the difference in cost of proeluction at the [ mills; certainly not by the cost of repair or reconstruction in or along the trenches in I which the pipe was to be laid, where neces- sarily the work would be more difficult and j expensive than at the mills. The instruc- tion a.'^ked was hypothetical, leaving to the jury to determine whether the facis were as supposed, and whether the expenditures in (luestion were reasonable, and if the nicdi- tied contract with the Indiana Company had been admitted in evidence, the instruction would have been pertinent and proper to be given. The statute of Indiana, and the deci- sion of the supreme court of that state where- by it was declared coLstitutioual. were mat- ters of judicial cognizance, in respect to which formal proof was unnecessary. Among the authorities cited touching the measure of dam- ages in such cases, besides the texts of I'ar- sons, Sedgwick. Sutherland, and Addison, are the following: Maish v. Mcl'herson. 105 U. I S. 71G; U. S. V. Behan, 110 U. S. 3:-!'.), 4 Sup. I Ct. SI; Blacker v. Slown, 114 Ind. :J_'2, m N, E. 021; Smith v. Dunlap. 12 111. 184; Millei V. Mariners' Chinch, 7 Me. ol; Le Blanche v. Railroad Co.. 1 C. P. Div. 280; Hamilton v. McPlierson, 28 N. Y. 72; Frick Co. v. Falk (Kan. Sup.) 32 Pac. 300: Loomer v. Thomas (Neb.) 50 X. W. 973; Lake Co. v, Elkius, ^4 Mich. 439; Bradley \. Denton. 3 Wis. 557; Dillon V. Ander.son. 43 N. Y, 231; Muller v. Eno. 14 X. Y. .597; Passinger v. Thorljurn, 34 X. Y. (j34; King v. Barnes. 109 X. Y. 207, 10 X. E. 332; Fisk v. Tank, 12 Wis. 270; Brown V. Bigelow. 10 Allen, 242; Medbury v. Wat- son. Mete. (Mass.) 240. But the question which is most earnestly dis- puted is whether, in respect to the pipe deliv- ered and retained, the defendant in eiTor, by reason of its refusal, in the letter of Februaiy 12, 1890, to accept further deliveries under the contract, is debarred of the right to sue for a breach of the warranty of quality. It is in- sisted that the refusal to accept more pipe was justified by the bad quality of that re- ceived, the presumption being under the cir- cumstances that further deliveries, coming from the same mills, would be of the same bad quality. That was a question of fact, which, if the evidence was sufficient, should have been left to the jury; but it is to be ob- served that the refusal was not put upon that ground, but on the ground that no pipe had been delivered recently, though no order or request, with a designation of the place for such delivery, had been made. On the facts as presented in the briefs, beyond which we have not looked, it does not appear that there was an adequate excuse for the refusal to ac- cept further perf rrmance of the contract; but, whether there was or not, it was the right of the plaintiff" in error to have the case submit- J38 AVOIDANCE OF CONTRACT, ted to tlu> jury upon the hypothesis that noth- ing had been done to justify a termination of the contract by the defendant in error; and on tliat basis, whether other modes of relief Avere available or not, we tliink it clear that the defendant in error can have no remedy in an action upon tlie contract. It cannot at one and tlie same time repudiate an executory con- tract like this in respect to a i^art of the sub- ject-matter, and in respect to other parts in- sist upon its enforcement. If the declaration hatl disclosed such a breach or unexcused re- pudiation of tlie contract by the plaintilT, it would have been plainly demurrable. Only upon the theory that the Crane Company had been guilty of a breach or breaches which jus- tified the other party in refusing further per- formance Avas the action maintainable as brought; and yet from the damages which the jm-y Avas directed to award the plaintiff, on account of the defective quality of the pipe delivered, a deduction was authorized of the amount of commission which that company would have earned if 'it had been permitted to deliver the remainder of the pipe, and a further deduction on account of a decline in the market price of pipe. If the conduct of the Crane Company was such as to justify a refusal of the otlier party to receive fiu'ther deliveries, it was entitled to no profit thereon by way of commission or otherwise (U. S. v. Behan. 110 U. S. 339. 4 Sup. St. 81); and just as if the contract had been terminated by agreement, or as if the pipe delivered had been the total amount called for by the contract, the Columbus Comnany was entitled to re- cover undiminished damages, equal to the dif- ference in value between the pipe delivered and pipe of the stipulated quality. It is not a case of rescission. That re(iuires the placing of both parties in statu quo. and in this case would have involved a return, or at least a tender back, of the pipe which had been received. Neither is it a case of i'efu.sal to receive particular lots of pipe, offered for delivery, because the same was visibly, or, upon immediate inspection, was found to be, defective. The rejection of such pipe, before placing it in line, would not have been an act either of rescission or repudiation, but rather of enforcement of the contract. Barrie v. Earle, 143 Mass. 1, 5, 8 N. E. 639; Norrington V. Wright, 11.5 U. S. 188, 6 Sup. Ct. 12; Pope V. AUis, 115 U. S. 363, 6 Sup. Ct. 69. But upon the hypothesis of the proposed instruc- tion, which, together with the evidence of- fered in support of it, ought, as we think, to have been submitted to the jury, it is simply a case where, under a contract of sale which is executory and entiie, the vendee repudiates the contract in respect to a part of the goods, and in respect to the remainder seeks to en- force it.— a proposition which, we believe, is supported neither by reason nor precedent. The earlier cases touching the general subject, both English ana American, are collected in the notes ro Cutter v. Powell, 2 Smith. Lead. Cas. 17-.">3; and while, in some respects, there has been a contrariety of ruling, no case lias been cited which is perceived to be inconsist- ent with our present conclusion. The case of Norrington v. Wright, supra, was not in fact a case of rescission, though partially so treat- ed. It Avas a suit by the vendor, seeking dam- ages of the A-endees on account of their refusal to accept consignments of old T rails, Avliich. by the contract, Aveie to be shipped 1,000 toiis^ per month, to the total number of 5,000 tons., ^rhe vendees accepted and paid for 4(M3 tons, received in one consignment, but afterAvards. learning that the (piantities sliipped during three months did not correspond Avith the re- (luireiuent of the contract, refused to accept or pay for any more. The court held the con- tract to be entire, and the specification of the quantity to be delivered each mouth to be descriptive of the goods, a departure from which through three months "justified the de- fendants in rescinding the Avhole contract, pro- Aided they distinctly and seasonably assert- ed the right of rescission"; and their retention of the 400 tons received in February, it Avas said, "was no AA'aiA'er of this right, because it took place Avithout notice or means of knoAvledge that the stipulated quantity had not been shipped in February. The price paid by them for that cargo being above the market value, the plaintiff suffered no injury by the omission of the defendants to retiu'n the iron; and no reliance was placed on that omission in the coi'respondeuce betAA'een the parties. "' To make that case like this, on the theory of rescission, it is necessary to reverse the par- ties, and to suppose that the vendees, after receiving and paying for the 400 tons shipped in February, had learned at once that no more had been shipped during that month, and hav- ing on that account refused to receive further consignments, even though offered in conform- ity Avith the contract, had brought suit for damages for the failure of the vendor to ship 1,000 tons in February, instead of the 400 tons recelA'ed and retained. If that had been the case, it would hardly have been said that the keeping of the 400 tons was not a waiver of the right of rescission. The case is expressly distinguished from Lyon v. Bertram, 20 Hoav. 149; and the projiosition is announced, AAiiich alone and independently of the doctrine of rescission was sufficient to disjiose of the suit, that "the plaintiff, denying the defendant's right to rescind, and asserting that the con- tract Avas still in force, Avas bound to shoAv such performance on his part as entitled him to demand performance on their part, and, having failed to do so, cannot maintain this action." The principle of that proposition is applicable here. Having repudiated the con- tract in part, the defendant in error had no right to ask its enforcement in another part. See Clark v. Steel AVorks, 3 C. C. A. 600. 53 Fed. 494, and 3 U. S. App. 358. In Pope v. Allis, 1 15 U. S. 3t)3, 6 Sup. Ct. 69. the contract was for the sale of 500 tons of American iron and 300 tons of Scotch iron, which the seller undertook to shii) to the buyer. The contro- AVOIDANCE OP CONTRACT. 2:39 versy was coucerning the American iiou aloue, which, after (lelivery at Milwaukee, the pur- chaser refused to accept, on the ground that it was not of the grade called for by the con- tract, and, having notitied the seller tliat the iron was held subject to his order, brought suit to recover the price which had been paid for the iron and the freight thereon. The point decided was that, the juiy having found that the iron was not of the quality which the con- tract required, "on that ground the defendant in error, at the tiist opportunity, rejected it, as he had a right to do." The syllabus couples, with the right to reject, the right to '"rescind the sale."' but that is taken from the court's statement of a general proposition of law in respect to sales by sample. When the entire subject of a contract of sale is rejected, it amounts to a rescission of the contract; but when a part of the subject is accepted, and another part rejected, because not of the qual- ity contracted for, it is not a rescission. In Pope V. Allis it does not appear whether or not the Scotch iron included in the contract was received by the purchaser. If not. then the case was. as it seems to have been treated, the same as if the American iron aloue had been the subject of the sale, and the rejection of the iron was a rescission; but, if the Scotch iron was received and retained, it was not a rescission, but simply a rejection of the Ameri- can iron, on the gmiud stated, that "the ven- dee cannot be obliged to receive and pay for a thing different from that for which he con- 1 tracted"; just as the defendant in error here j was not bound to receive a shipment of pipe I which was visibly below the contract stand- j ard, though »^he test provided for was to be ! made when the pipe was in line. But, un- I der this contract, the vendor would have had the right, within a reasonable time, to fui- nish. in lieu of pipe so rejected, other pipe of the required cpiality; while in the case of I'ope V. Allis such right of substitution was not contemplated, and probaljly did not ex- ist. In (ierman Sav. Inst. v. De La Vergne Refrigerating Macli. Co., 17 C. C. A. 34, 70 Fed. 14(!, the rule that rescission must De total is strongly stated, and numerous authorities are cited. Many cases have been cited which afford little aid to the decision of this one, because they grew out of completed deliveries, and involved no question of partial or im- perfect performance by the party who was seeking a remedy upon the contract. In Cher- I ry Valley Iron Co. v. Florence Iron River Co., ! 12 C. C. A. 306, 61 Fed. 509. the contract, which was for the sale of a quantity of ore to be delivered and paid for monthly, is broad- ly distinguished from the present contract by the single provision that, if the purchaser failed to pay as agreed, the seller should have the right to cancel the contract in respect to ore not delivered at the time of the default in payment. The judgment below is reversed, and the cause remanded, with instruction to grant a new trial. 240 A \0 1 DANCE OF CONTRACT. ILLINOIS LEATHER CO. v. FLYNN. (Go N. W. r.l').) Supremo Court of Michigan. Dec. 30. ISO."). Error to circuit court, Wayne county; Jo- seph W. Donovan, Judge. Replevin by tlie Illinois Leather Company against William H. Flyun. receiver of W. A. Bourke & Co. There was a judgment for defendant, and plaintiff brings error. Affirm- ed. Willis G. Claik. for appellant. Frank D. Andrus (John D. Conely, of counsel), for ap- l)ellee. MONTGOMERY. J. Defendant was appoint- ed receiver of the property covered by a chat- tel mortgage given by W. A. Bourke & Co. to the City Savings Bank of Detroit. Plaintiff, by permission of the court, brought replevin against the receiver for 1,001 bales of hair ordered of plaintiff February 10, 189.5, and shipped to Bourke & Co. April 1.5, 1895. On the trial, plaintiffs contended that the goods were bought and sold by Bourke & Co., un- der circumstances raising a presumption that they received the goods, having formed the intention of not paying for them, or at least under circumstances that show that a man of ordinary prudence would have known that he could not have continued the business un- til the maturity of plaintiff's claim; and the chief contention, as made in this court, is that, under such circumstances, a purchase is to be deemed fraudulent in law. We think the law is otherwise. It is not the law that, though a dealer is insolvent, he is guilty of fraud if he continues to purchase goods, if he buys in good faith, and in the expectation of continuing in the business. He is not bound to abandon hope. It is true there is a class of cases in which it has been held that, where the natural effect of the acts of the party is to work a fraud against another, the absence of an intent to defiaud is not a defense; but it is not a fraud i»er se for a purchaser of goods to fail to make payment, nor is it a fraud per se for a dealer to pur- chase goods, though insolvent, in the absence of any misrepresentation, and with the in- tention of paying for them; nor does the fact of a subsequent failure make the purchase fraudulent by relation. What constitutes fraud in such a case is the purpose of the buyer not to pay for the goods. This is not determined by what purpose some other less hopeful of success in his ventures might un- der like circumstances have entertained; but. to constitute the purchase fraudulent on this ground, there must have been an actual in- tent on the part of the purchaser to obtain the goods without paying for them. Tied. Sales, § 107, and cases cited; Morris v. Tal- cott. 9G N. Y. 100; Doyle v. Mizner, 40 Mich. Kil; Edson v. Hudson, 83 Mich. 4,50, 47 N. W. 347. The circuit judge in the present case withdrew the question of fact from the jury. An examination of the testimony sat- isfies us that there was no error in this. While there was testimony which might be construed as showing the insolvency of Bourke & Co., as we have pointed cut, this fact alone, if established, would not have jus- tified a verdict for the plaintiff. There was no proof of any misrepresentation, nor, as we think, was there any testimony tending to show a preconceived purpose of obtaining these goods, and avoiding payment therefor. The judgment will be affirmed. McGRATH, C. J., did not sit. The other justices concurred. AVOIDAN'CE OF CONTRACT. 241 PETERS BOX & LUMBER CO. v. LESH ot al. (20 N. E. 291, 119 Iiul. 98.) Supreme Court of ludiuiiu. Feb. 21, 1889. Appeal from circuit court, Huntington county; Henry B. Sayles, Judge. Action of replevin against the Peters Box H& Lumber Company by W. H. and J. A. X,esh, to recover certain lumber. Judgment for plainti£f.s, and defendant appeals. A. Zollars, H. Colerick, and W. S. Oppen- Ilieim, for appellant. F. W. Rawles and T. E. ElllSDU, for appellees. COFFEY, J. This action was brought by the appellees against the appellant in the Allen circuit court, to recover certain lumber and logs described in the complaint. The cause was put at issue by a general denial, .and the venue was changed to the Hunting- ton circuit court. The cause was tried by a jury, who returned a verdict for the appel- lees, assessing the value of the property at $270. Motion for a new trial overruleil and -excepted to, and judgment on the verdict. The errors assigned in this court are: (1) That the Huntington circuit court had no ju- risdiction over the cause; (2) that the court •erred in overruling the motion for a new irial. No point is made in the brief of coun- sel for the appellant on the first assignment •of error, and, therefore, the same is waived. The evidence on tlie part of the appellees tends to prove that the appellant is a cor- [)oration carrying on a large saw-mill and lumber business at the city of Fort Wayne, Ind.; that the appellees, in November, 1SS3, had been and were operating a saw-mill at Sidney, Kosciusko county, Ind.; that a man calling himself Milliard came to Sidney, and represented to the appellees that he was the agent of the appellant, to buy lumber and logs for it. The appellant had, before that, to the knowledge of the appellees, bought such property in that vicinitj-, and they sup- posed he was such agent. One of the appel- lees went with the said Milliard to several places, where he bought logs for the appel- lant, and they finally sold him, as the agent of appellant, the property in question, for $203. By their agreement, it was to be measured, put on the cars, the measurement to be sent to the appellant and it to imme- diately pay the bill by a draft on New York. The property was measured, .sold, and ship- ped on Monday, and Milliard left Fort Wayne on Tuesday. The draft not coming, one of the appellees went to Fort Wayne on Tuesday, where he met Mr. Papa, the appel- lant's president, and asked him to pay for said propert}^ Papa denied the authority of Milliard to act for the appellant, and, ■after demand, refused to deliver the proper- ty, and also refused to say much about the contract of appellant with Milliard, or to say how much he had been jiaid for the ■property. The appellant did in fact pay yAN ZIIiE SEL.CAS.S.VLES — 16 Milliard .'^12.5 for the property in controver- sy. Immediately after the delivery of the property to it by Milliard, the appellant com- menced to saw up the logs and mix the lum- ber with its own. Up to this point there seems to be no disagreement alxnit the facts. It is claimed by the appellant that bills of lading were made out for the property In the name of Milliard, with the consent of one of the appellees, but this fact is disputed by the aiipelleos, who claim that there was notliing m:ule out at the freiglit office from which the property was shipped except a re- ceipt for the property. The court gave to the jury the following instruction: "Should you find from the evi- dence that the title and right to possession of the property in controA'ersy is in the plaintiffs, and if j'ou further find that the defendant, in the purchase of said proi)erty, was in no fault, then you should lind the value of said property at what you believe was its fair market value in the condition and place it was situated when the plain- tiffs demanded the same of the defendant, if such demand were made, exclusive of any expenses or labor the defendant may have invested in manufacturing the same into lumber up to the time said demand was made. But if the evidence shows defendant knew or ought to have known that Milliard was not the real owner, then you should not take into consideration any expense or labor the defendant put upon said logs and lum- ber, but give the plaintiffs a verdict for the full value at the time and place it was de- manded, and in its condition then." To the giving of this instruction the appellant ex- cepted. The court had previously instructed the jiu-y, substantially, that if Milliard had rep- resented himself to the appellees as the agent of the appellant, and they, relying on such representation, sold him the prt)perty in controversy as such agent, without any intention of vesting the title in him, but in- tending to vest it in the appellant, when he was in fact not the agent of the appellant, such sale was void and vested no title in Milliard, and he could not by a subsequent sale vest title to the property in the appel- lant. This case comes clearly within the law as enunciated in the case of Alexander v. Swackhamer, 105 Ind. 81, 4 N. B. 433, and 5 N. E. 908. It is there distinctly decided that in a case like this no title passes to the fraudulent purchaser, and that such pur- chaser cannot by any subsequent sale trans- fer title to another, for the reason that he has none to transfer. It must be true, then, that at the time the appellees demanded pos- session of the property of the appellant, at Fort Wayne, the title was in them, as well as the right to the possession. It was the duty of the appellant to surrender to them such possession, and upon its failure or re- fusal to do so, what were they entitled to 212 AVOIDANCE OP CONTRACT. recover? It is oarneslly eouteiided by the learned counsel for the appellant that, as the freight from Sidney to Fort Wayne was paid by the appellant, the measure of the appel- lees' damages was the value of the property at Sidney. But it must be remembered that the appellant did not purchase the property at Sidney. It was purchased at Fort Wayne; and the appellant must be presumed to have taken into consideration the amount he would be compelled to pay to obtain pos- session of the property, in fixing its value at the time of the purchase. It certainly will not be contended that the appellant could refuse to deliver the possession, upon de- maud, because it had paid the freight. Nor can it be successfully claimed that Milliard, the fraudulent purchaser, could claim to have tlie freight refunded to him if he had l)een caught at Fort Wayne, before he had disposed of the property. Section 572, Rev. St. ISSl. provides that in a<-tions to recover the possession of personal property judg- ment for the plaintiff may be for the deliv- ery of the property, or the value thereof in case a delivery cannot be had, and for dam- ages for the detention thereof. It is not denied that at the time of the demand the appellant had the property in controversy, and that it could have delivered it to the ap- pellees. By refusing to do so, we think it became liable to the appellees for the value of such property at the time and place of such demand and refusal, less any addition- al value it may have had by reason of labor bestowed upon it, in good faith, before such demand was made. Mitchell v. Burch, 3G Ind. 529; Wells, Repl. §§ 549, 5(33; Cushing V. Longfellow, 26 Me. 306. It is claimed that in actions for trover the rule is dif- ferent, but, as this is an action of replevin, we need not, and in fact do not, decide that question. It is earnestly insisted by the learned coun- sel for the appellant that as the appellees permitted Milliard to take bills of lading in his name, and thus enabled him to sell the property to an innocent purchaser for full value, they ai-e now estopped from claiming the property in controversy in the hands of the appellant. Instructions were given by the court, and others asked by the appellant, and refused, which fairly raise this ques- tion. The court instructed the jury that if Mil- liard had the bills of lading made out in his own name as the consignor, to enable him to fraudulently sell the same to the defendant, and the plaintiffs knew that the property was so shipped, and that Milliard's purpose in so shipping said property was that he might fraudulently sell the same to the de- fendant, then their verdict should be for the defendant. In the case of Alexander v. Swackhamer, supra, this court, by Mitchell, J., says: "The appellee was not estopped on the ground of negligence in delivering the cattle under the circumstances disclosed. To constitute an estoppel the party sought to be estopped must have designedly done .some act or made some admission inconsist- ent with the claim or defense whicli he pro- poses to set up. and another must have acted on such admission with his knowledge and consent." If the appellees acted under the belief that ^lilliard was the agent of the appellant, and that they were selling the property to the appellant, basing such belief on the representations made to them by Mil- liard, we do not think that they would be estopped from claiming their property by reason of permitting the bills of lading to be made out in the name of the supposed agent. The instructions asked by the appel- lant ignore this phase of the case, and we tliinlv the court properly refused to give them. We are of the opinion that the in- struction given by the court properly stated the law applicable to the case as made by the evidence. We find no error in the record for wJiicIi the judgment should be reversed. Judgment aflii'med. Petition for rehearing overruled. AVOIDANCE OF CONTRACT. 243 BYRNES V. VOLZ pt al. (54 N W. 042. r>:i Minn. 110.) Supreme Court of Minnosota. April 27. 1893. Appeal from distnct court, Kice county; Bnckham, Judge. Action by (Jeorge W. Byrnes, as receiver of the estate of Adolpli F. Schacht, against John Yolz and otliers and Charles Thonet, to declare fraudident a transfer of a note to 'xnonet by Schacht pending divorce proceed- ings against the latter by his wife, and apply the proceeds of the note in payment of the wife's judgment for divorce and alimony. There was judgment in favor of plaintiff, and defendant Thonet appeals. Affirmed. Thos. H. Quiim. for appellant. H. S. Gip- son, for respondent. DICKINSON, J. This appeal from a judg- ment of the district court brings in question the correctness of the legal conclusions of that court from the facts found by it. The facts as found by the court may be thus stated: During the pendency of an action for divorce, prosecuted by a Mrs. Schacht against her husband. Adolph F. Schacht, one of the defendants in this action, the said Schacht indorsed and transferred to this defendant. Thonet, a promissory note for the .sum of $500, the same being the property of Schacht. In consideration thereof Thonet agreed to pay certain debts of Schacht, and to board the latter for one year, the value of which board was fixed at .$200. Schacht was also indebted to Thonet in the sum of $45, which indebtedness was agreed to be dis- charged by this transfer. Thonet knew of the pendency of the divorce smt, and this note was transferred by Schacht. and was received by Thonet, for the purpose and with the intent of hindering, delaying, and de- frauding the wife as to any alimony which might be awarded to her, and to render in- effectual any money judgment which she might recover in such pending action. Sub- sequent to the rendition of judgment in favor of the wife, awarding a divorce with alimonj', and after the return unsatisfied of an ex- ecution against Schacht. and the institution of proceedings supplementary to execution, in which Thonet had been required to appear and testify as to property of the judgment debtor in his hands. Thonet received payment of the amoimt then due on the note, $425. Thereafter he paid out for the defendant Schacht, for debts of the latter justly due, the sum of $209.50, aside from his own debt of $45. Schacht is insolvent, and has no property subject to execution. This plaintiff was appointed receiver of his property in proceedings supplementary to execution. The conclusion of the court was that the transfer of the note to Thonet was fraud- ideut as to the wife of Schacht, and that the proceeds of it in his hands were held by him subject to her right to enforce payment of her iudgmont therefrom, and that the plain- tiff was entitled to recover from him (Thonet) the amount of her judgment, not exceeding the amount received by him. Judgment was entered to this effect, and Thonet app(»als. For the purposes of this decision we may assume that such a transfer of the note would not be covered by any statute having the effect to avoid the same. unles.s it be chapter 41, § 18. Gen. St. 1878. which de- clares void transfers of real property made, as well as bonds or other evidences of debt given, with intent to hinder, delay, or di-fraud "creditors or other persons of their lawful actions, damages, forfeitures, debts, or demands." It is said that the wife of the defendant in the pending divorce suit, in whose behalf this action is prosecuted, was not a "creditor;" that she is not within the protection of the statute; and that as to her the tran-fer was not voidable. This statute is founded upon that of 13 Ehz. c. 5, which included in terms "goods and chattels" with other property, transfers of which, with the specified fraudulent intent, were declared void. That statute has been held merely declaratory of a rule of the common law, and, notwithstand'ng the omission of the words "goods and chattels" in our enact- ment, the common-law rule, partially ex- pressed therein, remains in force. The transfer of such property with the fraiidulent intent specified in the statute is voidable. Piper V. Johnston. 12 Minn. GO, GG, (Gil. 27;) Blackman v. Wheaton. 13 Minn. 320. (Gil. 299;) Hicks v. Stone. 13 M'nn. 434, 440, (Gil. 398;) Benton v. Snyder, 22 Minn. 247; Fox V. Hills, 1 Conn. 294. The right to call in question the validity of such transfers on the ground of fraud extends to others than "creditors," in the strict sense of that term. Among the classes of "other persons" at whose instance such transfers may be avoid- ed, because of the intent to defraud them in re.siiect to their "lawful actions, damages, forfeitures, debts, or demands." is that of the wife prosecuting, or about to prosecute, a suit for divorce and alimony, when the husband, with intent to render ineffectual any recovery by her, transfers his property to another not a purchaser in good faiih. Twyne's Case, 3 Coke. 80, 82a; Livermore v. Boutelle, 11 Gray. 217; Morrison v. Morrison, 49 N. H. GO; Bailey v. Bailey, Gl Me. .".r.l; Feigley v. Feigley, 7 Md. 537; Bouslough v. Bouslough. 08 Pa. St. 495; Draper v. Draper. 08 111. 17; Tyler v. Tyler. 12G 111. 525. 21 N. E. Rep. 010; Boog v. Boog. 78 Iowa. 524. 4;> N. W. Rep. 515. But. irrespective of the fact that the statute applies to "other persons" besides "creditors," the wife, upon the rendi- tion of the judgment in the pending suit, be- came an actual creditor; and even in this view of the case she might avoid the transfer made with intent to defraud her, for a transfer made with intent to defraud even subseciuent creditors is voidable. Livermore V. Bjutelle, supra; Plvmkett v. Plunkett, 114: 244 AVOIDANCE OF CONTRACT. iud. 4S-1, IG N. E. Hop. 012, and 17 N. E. Rep. 5G2. The appellant avus an active party with tlie husl):uicl in the accomplishment of the fraud- ulent purpose. The agreement to board Schacht for a j-ear, made with the intent to defeat or render ineffectual the claim of the wife in the pending action, was a fraud upon her. condemned alike by the common law and by the statute, and, being a substantial part of the consideration for the transfer of the note, that alone rendered the transfer voidable, notwithstanding the further consideration that j^honet should pay certain debts of Schacht, much less in amount, as it seems, thari the value of the property transferred. Albee v. Webster, 16 N. H. 302; Morrison .. Morrison, supra; Sidensparker v. Sidou- sparker, 52 Me. 481, 490; Twyne's Case, supra. Thonet, having actively participated in the fraud, is not entitled to protection even as to the amounts paid by him out of the pro- ceeds of the note which he collected. The transfer to him is to be treated as void in its entirety, and he is answerable for the pro- ceeds of the note, without deduction even on account of his own debt. Thompson v. Bick- ford, 19 Minn. 17, (Gil. 1.) The case Avill be seen to be distinguishable from one where the property of the debtor is appropriated wholly in payment of the debts of preferred creditors, there being reserved no benelit io himself from the transfer. Judgment affirmed. VANDERBURGH, J., took no part. AVOIDANCE OF CONTItACT. 245 RIXDSKOPF T. MYEHS. (57 N. W. t»(i7, 87 Wis. 80.) Siii)r(Mno Court of Wisconsin. Jan. AO. 1894. Appeal from circuit court. Wood (^lunty; Cliarles "\'. Banlepu. Jurlcrp. Action by Elia.s Rindslcopf against Henry Mj-ers. Tiun-e was ju{l;.;uient for defendant, and plaintiff appeals. Affirmed. The other facts fully appear in the fol- lowing statement by PINNEY, J.: This action was brought by the plaintiff to recover the value of the greater portion of a stock of goods sold and delivered by Hyman Nathan to the plaintiff, and seized a few days thereafter under writs of attachment in the hands of the defendant, as sheriff of Clark cotmty, in favor of Henry Benedict, a creditor of Hyman Nathan, on the gi'ound that the sale to the plaintiff by Hyman Na- than was fratidulent and void as again.st his creditors. The record presents only certain alleged errors in the instructions of the court to the .jiu-y, and its refusal to give cer- tain others, it being conceded that the evi- dence in the case to support a verdict for the defendant is sufficient. Facts and circum- stances were given in evidence, some of which amounted to badges or indicia r" fraud, properly calling for instnictions on all the points hereinafter stated. The court in- structed the jury, among other things, that "(1) a sale or assignment of all a man's prop- erty, when he is largely in debt, natm-ally ex- cites suspicion of fraud, and is therefore evi- dence of fraud," and in this immediate con- nection added: "Or if made in miusual haste, and not in the manner in which men of ordi- nary care and prudence usually transact their business, or if made at greatly inade- quate price, these and similar acts are badges of fraud. They are not fraud, but may be considered, when they are proven to exist, by the jury, as facts and circumstances tend- ing to show fi-aud. (2) When a sale is made with intent to hinder, delay, or defraud cred- itors, it is void, if the pai'ty receiving or pur- chasing the property so sold had knowledge of such intent; but this knowledge need not be actual, positive information or notice, but may be inferred from the knowledge by the purchaser of facts and circumstances suffi- cient to raise such suspicions as should put him upon inquiry as to the real situation, and which, if pursued, would lead him to the truth." That, if the sale was with fraud- ulent intent on the part of X;ithan, the jury should inquire if the plaintiff knew of such intent, "or had knowledge or notice of such facts and circumstances as to put him, as a reasonably prudent man, upon inqiiiry in re- lation thereto, and would have led to his as- certaining the truth." That if Nathan in- tendea to defraud his creditors, and if "the circumstances, .situation, and surroundings were such as to put an ordinarily prudent man on his guard, and the plaintiff had knowledge thereof, and purpasely or negli- gently onntted to make such in(]uiries as an ordinarily prudent and cautious man would h:ive made in liis situation, v.iiich inquiries, if pursued, would have led to his ascertain- ing the truth as to Nathan's intent, then the plaintiff cannot recover." The court refused. lO instruct the jury, at plaintiff's recpiest, (1) that if the plaintiff "had no knowledge of the intent on Nathan's part, and did not partici- pate with him in such intent, then the jury should find for the plaintiff; (2) to" avoid the .sale the fraudulent intent must be known to, and entertained by, both biiyer and seller, and both must be connected with the fraudii- lent design; (3) the payment by a purchaser of a fair consideration upon a sale of prop- ert.v, although not conclusive, is strong evi- dence of the good faith of the ti-ansaction, and requires clear evidence of fraudident intent to overcome it." On the cross-exam- ination of Louis Rindskopf, a witness for the plaintiff", his brother, the court allowed de- fendant's counsel, against plaintiff's objec- tions, to show that he (Louis) did not ask Nathan any questions as to whether he owed for his stock of goods, or was pressed by creditors; that he asked him no questions at all. — made no inquiries as to his financial condition. On the cross-examination of the plaintiff', it appeared that he had a bank book, and that it was in Milwaukee. On re-examination his counsel asked him to state the reason he had, if any. for not bringing the book. The court nded that the reason why he did not bring it was immaterial, un- less requested to bring it. and even then it might be immaterial. It appeared that nO' such request was made, and the coiu't ex- cluded the inqiiu-y. The jury found for the- defendant, and the defendant had judgment, from which the plaintiff appealed. R. J. MacBride. for appellant. James O'Neill, for respondent. PINNEY, J., (after stating the facts.) 1. The instruction, in substance, that the sale or assignment of all a man's property, when he is largely in debt, naturally excites sus- picion of fraud, and is therefore evidence of fraud, must be considered with the contexts The com*t had instanced this with some other like facts, saying: "This and similar acts are badges of fraud. They are not fraud, but may be considered, when they are proven to exist, by the jury, as facts and cir- cumstances tending to show fraud." The jm-y were told that in this sense the particu- lar fact or badge of fraud referretl to was evidence to show fraud, but not that it was sufficient to prove it. We think the jury could not have misunderstood the purport and meaning of the charge, and that, as ex- plained, it was correct, and is in accordance with what was held in Bigelow v. Doolittle, 3(j Wis. 119. and Pilling v. Otis. 13 Wis. 553. The charge, in this and other respects, ren- 246 AVOIDANCE OF CONTRACT. ck'i-c-d it unuocessary to instruct the jury that they were not to infer an intent to defraud from the mere fact that Nathan sold his en- tire stock to the plaintiff. The court had said, in substance, that a sale of the entire stock of one, when largely in debt, would be evidence or a bad^e of fraud, and that a per- son in failing circumstances misht notwith- standinj; sell and convey a good title to his property. This was sutticiently clear and favorable to the plaintiff. 2. The instruction asked by the plaintiff that payment by the purchaser of a fair con- sid(-ratiou was strong evidence of good faith, and required clear evidence of fraudulent in- tent to overcome it, if given, would have been a clear invasion of the province of the jury, and was therefore properly refused. The ef- fect of evidence of payment of such consider- ation, as well as what evidence would or would not suftice to overcome it, were ques- tions depending upon all the facts and cir- cumstances in evidence bear n ;■ upon h > bona fides of the sale, and were to be decided by the jury, and not by the court. Bigelow v. Doolittle, supra; Lampe v. Kennedy, GO Wis. 110, 18 N. ^Y. 730. 3. All other instructions excepted to, and the refusal to give those relevant to the case and not fairly embraced in the general charge, present, in substance, the single ques- tion, in somewhat varied phraseology, wheth- er knowledge on the part of the piu-chaser of his vendor's intent, in making the sale, to hinder, delay, or defraud his creditors, must be actual, positive information or notice, or belief of that fact, or whether, as the court instructed, that knowledge or notice of such intent might be inferred from knowledge on the part of the purchaser of facts and cir- cumstances sufficient to raise such suspicions as to put him, as a reasonably prudent man, upon inquiry in relation thereto, and would have led to his ascertaining the truth; that if the circumstances, situation, and surround- ings Avere such as to put an ordinarily pru- dent man on his guard, and he purposely or negligently omitted to make such inquiries as an ordinarily prudent and cautious man would have made in his situation, and which, if pursued, would have led to his ascertain- ing the truth as to his vendor's intent, in cither case, in an action such as this, it would prevent a recovery by the purchaser. The rulings of the court in the instructions given, and in refusing those asked, are certainly in accordance with the law as settled in this state nearly a quarter of a century ago, and since then frequently reiterated in clear and unmistakable terms, although a different view of the law has been and still is maintained in some of the states, in cases cited by the ap l)ellant's counsel. This conflict of decided cases is considered somewhat at length in Wait on Fraudulent Conveyances, (sections 374^370.) and in Bump on the same subject, (page 2CX).) where the cases on both sides are collected, and the rule applied by the cir- cuit court, and hitherto maintained in this state, is approved. In Avery v. .Johan, 27 Wis. 24G, 247, it was held that knowledge of such facts and circumstances as raised a suspicion in the mind of the purchaser, and did or ought to have put him upon inquiry, was sufficient, so that he purchased and paid at his peril; and the rule in Atwood v. Impson, 20 N. J. E(i. 150, in accordance with the charge in this case, is cited with ap- proval. The rule was laid down with added vigor and clearness in Hopkins v. I.angton, 30 Wis. 379, 381. To the same effect is David V. Birchard, 53 Wis. 405, 400, 10 N. W. 557. In Brinkman v. Jones, 44 Wis. 498, and Helms v. Chadbourne, 45 Wis. 61. in rela- tion to sales of real estate, the court said: "We think the true rule is that notice must be held to be actual when the subsequent purchaser has actual knowledge of such facts as would put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of the right or title in conflict with that which he is about to purchase." And the conflict in the cases is noticed and considered by Mr. Justice Tay- lor in his opinion in the former case. The rule thus maintained was expressly approved in the circuit court of the United States for this circuit by Harlan and Bunn. JJ., in Bar- ties V. Gibson, 17 Fed. 293. and in the Case of HoUaday, 27 Fed. 849. The question was subse(iuently before this court in Hooser v. Hunt, G5 Wis. 72, 20 N. W. 442, wlien many of the eases relied on by the appellant here were cited, but the court refused to recon- sider the rule thus established in this state, and to which we adhere. We think the rule was fairly expressed in the general charge, and that it justified the refusal to give the instructions requested, already noticed. It is a rule applicable alike to legal and equitable actions, whether the subject of the action is personal or real estate. One about to pur- chase under the circumstances stated is bound to stay his hand, and if he will not the fault is wholly his own. The question of fraud, and of notice of the intent to de- fraud, is still a question for the jury, who, when they find the facts, are to apply the rule and declare the consequence; and we fail to see in it anything in conflict with the statute making fraud, in cases such as this, a question of fact for the jury. 4. There was no evidence in the case to warrant the submission to the jury that there was any scheme or conspiracy on the part of Stumes. Hyman Nathan. Louis Rindskopf, and the plaintiff to defraud the creditors of Nathan, or tending to such a conclusion, and there was no such suggestion in any part of the general charge, nor anything to show that any such claim had been made; and therefore the refusal to instruct the jury that there was no evidence to warrant such a finding was not prejudicial to the plaintiff, and the testimony elicited from Louis Rind- skopf, against the plaintiff's objection, had AVOIDANCE OF CONTRACT. 247 no tendency to establish any such conspiracy. We do not see any reason for saying that the plaintiff could have been injuriously affected by it. 5. As the plaintiff had not been requested by the defendant to bring his bank book to the trial, the covu't properly ruled that it was wholly immaterial why he omitted to do so. No sufficient reason appears for his en- tering upon any explanation on the subject. It follows from these views that the judg- ment of the circuit court is correct, and must be affirmed. The judgment of the circuit comt is aifirmed. 248 AVOIDANCE OF CONTRACT. NICHOLS V. BANCROFT et al. (41 N. W. SOI, 74 Mich. 191.) Supreme Court of Michigan. Feb. 15, 1SS9. Appeal from ciivniit court, St. Clair county, in cliHUCery; Canfield, Judge. Atkinnon & Vanoe, for appellants. Charles K. Dodge, {Parker & Burton, of counsel,) for appellee. LONG, J. The bill is filed in tliis cause in aid of execution. The court below made a decree, substantially as prayed in the bill, from which defendants appeal. The follow- ing is a statement of the facts, which we take largely from brief of the counsel for complaiuaut: On ]\Iarch 6, 1883, a judgment in favor of the complainant was obtained in tlie St. Clair circuit court, against \Villiam L. Bancroft and Edgar White, for the sum of .$5,141.81, and costs taxed at .$20. Coun- sel for Mr. Nichols, after iuriuiry and search, found no pro])erty upon which to levy, be- longing L'ither to IJancroft or White ; but, un- d isianding that IMr. J3ancrott was to he called as a witness in another ease, wherein he was testifying as to liis solvency, counsel for Mr. Nichols attended to find out whether li^ would testify to the ownerliip of property subject to levy. Mr. Bancroft in his testi- mony in that case did admit ownership of real estate, but could not recollect the de- scription, and while he was yet testifying counsel hurried out to look up the descrip- tion, and get a levy made, but before he could do so iMr. Bancroft finished his testi- mony, and put a deed on record at 11:10 a. M., conveying the land to his son, Carroll D. Bancroft, for an alleged consideration of $400. The levy was made after the tleed was filed for iec to repay money bor- rowed by Mr. Bancroft from his son, Carroll. It appears that another judgment had been obtained on notes against Stevvart, Goiilden, and Wiiham L. Bancroft and others, some time previous. Stewart was tiie only respon- sible defendant in that judgment, and had paid it in full. He tlien began a suit in eq- uity to compel Goulden to [)ay a moiety of the judgment. Stewart deceased before the hearing. It was in this case that William L. Bancroft was called as a witness to show his solvency or insolvency. Counsel for com- plainant claims that, if he had been solvent at the time the suit in equity was begun by Stewart against Goulden, his testimony to that effect would have tended to defeat the case, and that his testimony in that case did lend to siiow his solvency at the time the suit was begun, and at the time he was testi- fying. It was at this time that counsel for Mr. Nichols attended to find out whether, in his testimony, Bancroft would admit of pres- ent ownership of property subject to levy. Mr. Bancroft was called to testify in the case of Stewart v. Goulden, about 10 o'clock a, M., March 13, 1883. He testified to present ownership of 12| acres of land on section 1 of the township of Wales, St. Clair county, but could not recollect tiie description. He said he owned it, and that the title was iu him. Counsel for Mr. Nichols, who heard the testimony, immediately left tlie court to- get a levy upon the laml in the case of Nich- ols V. Bancroft and White. Mr. Dodge, counsel for Mr. Nichols, went some 30 rods^ or a little more, to the abstract olHce, to look up the description, and returned to the court- house, when he found that Mr. Bancroft had finished his testimony, and put the deed on record to his son. Mr. Bancroft says that this deed was not executed until after he gave his testimony in the Stewart Case ; that, after giving his testimony, he went to his- office, executed the deed, and his son, Car- loll, took it to the register's office, and put it on record. The testimony shows that the distance from the court-house to his oifice and return was about one-half a mile. The deed was in iMr. i5anjrofL's handwriting, and was acknowledged on that day. It is- admitted that Mr. Bancroft and his son, Car-^ roll, were in Port Huron several days before this deeil was given, and before Mr. Bancroft gave liis testimony in the Stewart Case, and remained there several days after that. Mr. Bancroft, in his testimony in the present case, says tliat he had bargained this land away to his son, Carroll, some tiiree months before he gave his testimony in the Stewart Case, and for the consideration of .$400, then agreed upon, but that the deed was not then made out, because he did not then have the description; that tliis deed was to be made in consideration of the .$400, which he had be- fore that time borrowed of his son, Carroll. Counsel for complainant now contends that the fori'going facts show beyond question tiiat the story of William L. Bancroft and his son about borrowing money, and an agreement to deed the land in question in payment thereof, was purely an after-thought, — a story made up to suit the circumstances of the case as well as might be; that there was a concerted action between the two defend- ants to defeat the plaintiff's claim, by con- veying the property in such a way that it could not be levied upon; and that this was done for the express purpose of defrauding the creditors of the defendant. There is nO' contention but what the deed in question was placed upon record before the levy was made. The foregoing circumstances, in sub- stance, are about all the claims set forth by the pleadings, and in the proofs upon which complainant relies to set aside this deed, ex- cept that William L. Bancroft, as is shown^ had an order on the bank at Port Huron, dated in February or March, 18S3. signed by Carroll, by which he was authorized to draw any money fi'om the bank standing in Car- roll's name on a certain book numbered 1,G87, and that the testimony of the defendants is- not to be believed. The two defendants- AVOIDANCE OF CONTRACT. 249 were examined as witnesses on the hearing of the case in tlie court below. 'i'iie testimony of the defendant Carroll D. Bancroft was taken by commissioner at Hot Spriiii^s. Ark, He testilies, in answer to in- terro.'ations put to him, that his father, William L. Bancrolt, was indebted to him in the sum of about 8800. The sum of s600 was for cash loaned to his father on Febru- ary 11, lbS'2, and the balance for cash sent him from Florida, and that on March 13, 188;J, he received a deed from his faliier of a piece of land in the town of Wales, St. Clair county, known as the "Railroad Sand Pit." Th it he was present when the deed was exe- cuted and acknowledired, having himself re- quested Charles D. Tliompson, a notary in and for said county, to take the acknowledg- ment; and that the deed \.as delivered to him by William L. Bancroft. That lie took the deed himself to the office of tlie register of deeds of St. Clair county, and had it re- corded. That the consideration for the deed was the money had of him by his father, as befoie stated; and that the deed was given in pursuance of a previous understanding with his father at Hot Springs, Ark., in the win- ter of 1882 and 1883. That the first he knew of the judgment of Edwin C. Nichols against William L. Bancrott and Edgar White was when he was called upon to answer the com- plaint filed in this cause. On his cross-ex- am, nation he stated that on March 13, 1883, at the tiuiethe deed was executed, his mother was at Hot Springs, Ark. That the money loaned his father was partly money he re- ceived from his mother, and partly from his own e.irnings. That he had money and prop- erty which, prior to March 13, 1883, he had earned paitly in Port Huron and partly in Hot Springs, as a teacher of languages, as a clerk, and in the {)rofession of music. Wit- ness further says that he received in 1880 or 1881 a quarter interest in the Arctic Ice Com- pany of Jacksonville, Fia., valued at 81.000, as a gift from his motlier. That the deed in question has been in ids possession ever since It was reconled, and was delivered to him by his father on tlie day of its execution, some time before dinner, and tliat he took it at once to the olfice to have it recorded, and gave it personally to the register of dee Is. In answer to a cross-interrogatory put to him, as to the circumstances under wliicli the deed was to be given, the witness testified that there was an agreement between his fa- ther and himself in regard to deeding him the land in question. Tliat it was made at tiieir house, in Hot Springs, Ark., in the winter of 1882 and 1883; and it was that he should have the deed when they went north in the sprintr, an 1 could get the description. That his father said it was good for a ballast pit, and would soon be wortii something, as tlie C. & G. T. liailroad would soon be compelled to set up their track again, and lie thought it was worth 8400. That it was a verbal, but distin t, agreement between them, as to the matter, and he believed it was woith that amount. That it was the desire of his father to give him something for th ' money he hid from him, as he had not the money to pay him, and ha agreed to take the luni at that price. That his mother did not sign the deed, because she wjvs not there. This testimony of Carroll D. Bancroft is fully corroborated by the testi- mony of his father, William L. Bancroft. On his cross-examination, Mr. William L. Bincroft was asked: "Was not the fact that that piece of property might be levied upon, being the only one held in your name in this county, the re.ison of your putting tiiat deed on record at that particular timer' A/iswcr. My recollection is that it was not the only piece of property I had. I think the record would show to-day that I transferred an in- terest. I quitclaimed an interest in a forty- acre lot (1 would not be positive ai)out the date) since that time. As to 3'our question, I will say, no; 1 did not put it on record. Qnestioji. Was not that the reason of your executing it at tiiat particular tiiiiey A. I have not th" slightest recollection of think- ing that there was any trouble impending to me in the Stewart Case at all, while in regard to the Nichols Case it had actually not come to my knowledge that a judgment had been taken there. You see I was not here when that judgment was taken." Mr. Charles D. Thompson was called as a witness by defend- ants, and testified that he is assistant cash- ier of the Port Huron Savings Bank, and that on Febi uary 11, 1882, a check was drawn in favor of William L. Bancroft on their bank for 8600 on CD. Bancroft's savings account; that Mr. W. L. Bancroft at that time ha 1 a written order from Carroll to draw on that fund; that at the time this check was drawn the fund was 8671.88, and on deposit since that in that fund was 82,329.64 in Carroll Ban- croft's na:ne; that this account commenced back in 1875, with a deposit of 82; up to January, 1877, the total amount of deposit was 8330.96; from 1879 to 1851 the total de- posit was 8-300; up to April, 1882, he depos- ited 83.001.52; in April and May, 1882. he deposited about 81,100: from that time down to October, 1885, it figured up to 89,500, when the account closes; and that, so far as the bank knew, there was no one interested in this account except Carroll D. Bancroft; that drafts were drawn right along from time to time on this account, so that at no time was there a very large balance; but that, as Carroll grewolder, the account grew longer, till it closed. This testimony stands upon this record wholly uncontradicted, except by the circum- stanct'S befoie set out. and these circum- stances counsel for complainant contends should outweigh the positive statements of Carroll, corroborated by his father and Mr. diaries D. Thompson. We find nothinsj in the record to contradict the fact that on Feo- ruary 11, 1882, the check was drawn for 8600 against the fund belonging to Carroll, then in the bank, and that William L. B.mcroft had 250 AVOIDANCE OF CONTRACT. tlie money. Mr. Thompson testified to this. The bank-books show the fact. Carroll s wears that it was paid, and that it was his money; ■and he gives an exphmation as to how he be- came possessed of it. Carroll further testi- iies tiiat it was in consideration of tiiis that his father agreed to deed liim this land; and that on ^laroli 13, 1883, in pursuance of such agreement, the deed was so m ide and deliv- ered Lo him, and he placed it on recorii. To meet this testimony the complainant says tliat William L. Bancroft, having in tiie fore- noon of March 13, 1883, testified in the Stew- art Case tliat he was then the owner of the identical piece of property, and having at once, after giving his testimony, gone to Ills oflice, and made and delivered tliis deed to Oirroll, it is evidence of an intent to defraud the complainant and his other creditors. If this fact were conceded, it would not, stand- ing alone, destroy the validity of this deed. Something further must be found. The court must not onlv be satisfied tliat the deed was made with intent to hinder, delay, or to de- fraud creditors, but that the deed was not actually made to pay a debt justly due. The burden was upon the complainant to pi'ove tills fact. It not only is not [iroven, but the testimony, we think, shows very clearly that William Ij. Bancroft was indebted to CarroU m the amount claimed. ^Vilere property goes to pay an honest debt, that use oi it is law- ful, although it may cut off tlie redress of all others, anil although intended to do so. We think the testimony upon the part of the com- plainant falls far short of making a case upon which a court of equity would be justi- fied in setting aside this deed, and, when we take the case made by the defendants' proofs, we are satisfied that Carroll took this deed in payment of a bona fide debt then due him from his fatlier. Tlie decree of the court be- low must l)e set aside, and decree entered in this court dismissing complainant's bill, with costs of both courts. The other justices con- curred. AVOIDANCE OF COXTIIACT. 251 WILSON V. SrEAR et ux. (34 Atl. 429.) Supreme Court of Vermont. Windsor. Sept. 20, 1895. Appeal in ebancery, Windsor county; Thomp- son. Chancellor. Bill by .James J. Wilson ajrainst George J. Spear and wife to have a voluntary convey- .anee by him to the wife set aside as in fi-aud of creditors. JFi'om a decree for plaintiff, defendants appeal. Reversed. French & Southgate. for appellants. J. J. Wilson, pro se. MUNSON. J. On the liSth of November, 1SS.J. the defendant George .1. Spear received from one Parkhurst a deed of one undivided half of his farm. In the fall of 1SS7 said Spear purchased the other undivided half of the farm, and had Parkhurst convey it to his wife, the defendant Eva B. Spear. The consideration for both conveyances was paid by ( Jeorge .J. Spear from his own means. On the 31st day of December, 18S7, George J. Sptar executed to one Beach a deed of the undivided half conveyed him by Parkhurst, and on the 16th day of January, ISSS, Beach conveyed the same to Eva B. Spear. The master finds that the defendant George had this property conveyed to his wife, the de- fendant Eva, "for the reason that he thought the same would be safer in her hands than in his own. from attachment by his credit- ors," of whom the orator was one. This is a sufficient finding that the transfer was made with intent to defraud the orator. There is no finding that connects the de- fendant Eva with the fraudulent pui-pose of her husband. Upon the question of con- sideration, the master says he is "'unable to find" that the defendant Eva paid anything for the farm, — which cannot, of itself, be treated as an affirmative finding that nothing was paid. But, as the master says in this connection that the defendant husband had the same conveyed to his wife to keep it fi-om his creditors, it is thought by a majori- ty of the court that the payment of a con- sideration is fairly negatived. The master also reports certain facts in regard to the grantor's Indebtedness and unconveyed prop erty which it will not be necessary to con- sider. It appears that a part of the orator's account accrued after the conveyances were made, but the case will first be considered as if the entire demand were pre-existing. We have, then, the case of a voluntary con- veyance, executed with an actual intent to defraud an existing creditor, to be passed upon without reference to the amount and availability of the property retained. In disposing of the question stated, it seems desirable to make some reference to the cases, in view of the frequent failure to distinguish carefully between fraudulent conveyances upon consideration, and convey- ances without consideration, and, in the case of voluntary conveyances, between those which rest upon a legal inference of fraud, and those where an actual fraudulent in- tent is shown. When the conveyance is without valuable consideration, the creditor may avoid it for the fraud of the grantor alone. Poster v. Foster, 5(3 Vt. TAO. 54S. It is only when there is a valuable considera- tion that fraud on the part of the grantee is essential. Such were the cases of Root V. Reynolds, 32 Vt. 139; Leach v. Francis, 41 Vt. 070; Nichols v. Nichols, 01 Vt. 426, IS Atl. 153. The fraud of a voluntary gran- tor may be an actual fraudulent purpose, or the fraud which the law imputes to him from the condition of his estate and the neces- sary consequence of his act. AVhen the gran- tor is foimd to have c-onveyed for the ex- press purpose of defrauding his creditors, the condition of his estate is immaterial. Wadsworth v. Williams. 100 Mass. 120; Ha- ger V. Shindler, 29 Cal. 47; Westerman v. Westerman, 25 Ohio St. .500; Gormley v. Potter, 29 Ohio St. 597; Vasser v. Hender- son, 40 Miss. 519; Edmunds v. Mister, 5S Miss. 765. It is only in cases where no actual fraud appears that the conveyance can be sustained on the ground that the grantor retained sufficient property to satis- fy his debts. Of this character were the cases of Brackett v. Wait, 4 Vt. 389; Dewey V. Long, 25 Vt. 564; Church v. Chapin, 35 Vt. 223; Wilbur v. Nichols, 61 Vt. 432, 18 Atl. 1.54. It appears, then, that the orator, as an antecedent creditor, can avoid these conveyances without other findings than that they were designed by the grantor to de- fi-aud his creditors, and were without con- sideration. Upon the facts reported, the disposition of the case is not affected by the finding that a part of the account was for services rendered after the conveyances were made. The char- ges were for the orator's services and dis- bursements as attorney in a single suit. If the conveyance was designed to defraud the orator, it was an attempt to defeat the col- lection of his compensation for a continuing sei-vice, rendered and to be rendered under an employment already given. It is iwssible that in a case of this character the entire ac- count should be treated as pre-existing. If this would not be permissible, there is au- thority for saying that the orator could have relief, to the extent of the pre-existing char- ges, notwithstanding the judgment was for more. Henderson v. Hendei-son, 133 Pa. St. 399, 19 Atl. 424. It has been held, how- ever, that one who takes a judgment cov- ering both antecedent and subsequent claims must be treated as a subsequent creditor as to all. Usher v. Hazeltine, 5 Greenl. 471. But, if enough appears to avoid the convej-- ance as to subsequent creditors, it will not be necessary to consider the questions sug- gested. It is said in McLane v. Johnson. 43 Vt. 48, that a conveyance without considera- tion, and with fraudulent intent, is invalid as to both existing and subsequent creditors. But that was a case in which the fraudulent 252 AVOIDANCE OF CONTRACT. intent existed in both grantor ami grantee. It is by no means iniiversally coneedod that a volnntary conveyance to an innocent gran- toe, void as to existing creditors, is neces- sarily void as to all subsequent creditors. Hagernian v. Buchanan (N. J. Eit. & App.) 14 Am. St. Rep. 750, note, 17 Atl. 94G. But a consideration of this question will be uuneces- saiy, if it suthciently appears that there was an actual intent to prevent the collection of the grantor's subsequent account. In view of the character of the claim, the finding of an intent to defraud the orator must be held to apply to both parts of his demaiad. We have, then, a finding of an intent to defraud the orator as a subsequent creditor. A voluntary conveyance, made with an intent on the part of the gi-antor to defraud subsequent creditors, is void as to such creditors, without proof of fraud on the part of the grantee. Laughton V. Harden, 68 Me. 208. And, there having been this actual intent to defraud the orator of his claim for the services to be thereaft- er rendered, the deed would be void as against such claim, notwithstanding the pos- session of other property. Nor is a different disposition of the case required by the fact that the conveyance w-as to the grantor's wife. It is true that a voluntary conveyance to wife or child, which does not impair the grantor's ability to pay his existing debts, and is without fraudulent design, will be sus- tained. Brackett v. Wait, 4 Vt. 380; Jones V. Clifton, 101 U. S. 225. But a deed execut- ed in actual fraud cannot be sustained on the ground that the grantee is one whom it is the grantor's dutj' to provide for. These conveyances were not designed to effect a settlement, but to perpetrate a fraud. The findings are inconsistent with the theory of a gift to the wife. The property was trans- ferred to the wife because the husband thought it would be safer in her name. The actual fraudulent purpose vitiates the con- veyance, notwithstanding the grantor's pos- session of other property, the innocence of the grantee, and the consideration of affec- tion. The finding that George J. Spear had the farm conveyed to his wife is regarded by a majority of the court as being, in effect, a finding that Beach took his deed of an undi- vided half merelj' to enable Spear to trans- fer it to his wife, and that in coiiveying to Mrs. Spear he passed the title as it was re- ceived. This being so, Beach is not a neces- sary party to a proceeding to set aside his deed from Spear, and the half which Mrs. Spear obtained through him can be reached as the case stands. Day v. Cummings, 19 Vt. 4S>6. But the orator can have no relief as regards the half which Mrs. Spear receiv- ed by and from Parkhurst, in a proceeding to which Parkhurst is not a party. An avoidance of her deed of this half would leave the property in Parkhurst, and the orator cannot avoid her title to a share which he is not in a position to obtain. This will require a reversal of the decree. The orator's proceedings at law are clear- Ij' sutticient to entitle him to equitable relief. The levy of execution is not defective iu the particulars complained of. The officer's re- turn shows a compliance with the require- ments of the statute regarding notice and adjournment of sale. The return is evidence that the newspaper in which the notice was published was one of general circulation in the vicinity. We think counsel are incorrect in saying that this is not within the rule laid down iu Swift v. Cobb, 10 Vt. 282. It was the otRcer's duty to publish the notice in a uewsi aper of a certain description. Hi& return is evidence, not only that he published it in the paper named, but that the paper was such as the statute prescribed. The failure of the officer to deliver a deed of the property until long after the expira- tion of the time limited for redemption, and until after the bringing of this bill, is not a bar to the orator's relief. The deed is to be given effect from the time when it should have been delivered. It is well settled that the doctrine of relation will be applied to sustain the title of the purchaser at an exe- cution sale. Jackson v. Ramsay. 3 Cow. 75. 15 Am. Dec. 242, and note. The case cited was an ejectment suit, in which the defend- ant relied upon a sheriff's deed executed aft- er the action was commenced and issue join- ed therein; and it was held that the deed had relation to the time of sale, and that the defendant could avail himself of it with- out pleading it as a matter of defense aris- ing after issue joined. The fact that the term of office during which the sale was made expired before the deed was executed does not render it invalid. Counsel have not referred to R. L. § 800, and its application to this question need not be considered. It is certain that an express statutory provision is not necessary to se- cure the complete execution of process which is being served by an officer when his term expires. In the case of a levy upon personal property, it is universally held that the service is to be completed by the officer who made the levy, notwithstanding the close of his term. It is generally considered that this rule of the common law is applicable to the service of executions under statutory provisions for the sale of real estate, but some authorities hold that in the case of real estate the service must be completed by the new incumbent. Tukey v. Smith, 36 Am. Dec. 705. note. The giving of a deed for land sold while in office is a part of the exe- cution of the process, which may be done after the expiration of the term. Allen v. Trimble, 4 Bibb. 21. It is not necessary to determine here whether the acts required after the expii-ation of the term should be done by the former officer, or by his suc- cessor; for in this case the deed was given by the same person who made the sale, while he was filling the same office by virtue of a reappointment. Decree reversed, and cause remanded, with mandate. AVOIDANCE OF COXTKACT. BRESNAHAN v. NUGENT. (52 N. W. 735, 92 Mich. 7G.) Supreme Coui't of Miuliigan. June 10, 1892. Ei'i'or to circuit court, Kent county; Allen •C. Adsit, Juclj;e. Action by John Bresnaljan, atluiiuistrator of llie estate of Daniel Nugent, deceased, against Emanuel Nugent, under How. St. §§ 58S4, 5885, to recover for the benefit of decedent's creditors for certain personal property fraudu- lently transferred by decedent to defendant. i'"roin a judgment for plaintili', defendant ap- l)eals. Reversed. Taggait, Wolcott & Gnnson, foi- appellant. J. H. Tatem and James Nugent, for appellee. M()NT(j;OMEIlY, J. On the 2'Jth of April, 187U, Daniel Nugent, by bill of sale, trans- foried all liis personal property to his brother Emanuel Nugent, the defendant, and imme- diately left the state. Daniel was last heard from in September, 1S79, and after the lapse of seven years from that time letters of ad- ministration were issued to the i^laintiff. .Fames Nugent presented claims which were allowed against the estate, as follows: First, a joint note made by James and Daniel Nu- gent to John Nugent, dated April S, 1S7G, and payable one year from date, for $191, less in- dorsements; second, two notes for $150 and $;iUO. respectively, each bearing date Sep- tember 11, 1878, and payable to Mary Nu- gent or bearer, and due three years from date Avith interest; third, one note for $400, given to Mary Nugent, of the same date, and pay- able live years from date, with interesi; fourth, a claim for support of Mary Nugent iind Cecelia Nugent, mother and sister of Daniel Nugent, amounting to $094.58, with interest, which support Daniel Nugent had agreed to furnish by contract with Mary Nu- gent, which contract was by her assigned to James. No property came into the hands of the administrator, and this suit is brought un- der sections 5884 and 5885 of Howell's Stjit- utes, under a claim that the personal prop- erty transferred to Emanuel was so trans- ferred in fraud of creditors. The plaintiff re- covered a judgment of $;i. 052.29. and defend- ant Inings error. 1. The plaintiff described, in the first count of his declaration, the personal property claimed to have been transferred, including in tlie description 953 bushels of wheat. He also appended the common counts for goods sold and delivered and the money counts, but nowhere alleged any transfer of real prop- erty. The plaintiff was permitted to show that at about the same date as the transfer of the personalty a deed of lands upon which wheat was standing growing was made, and that it afterwards harvested and threshed out 9.53 bushels or thereabouts. This was error. The conveyance of the land was confessedly good as against Daniel, and the wheat grow- ing upon the land passed by the conveyance. The pleadings in this case did not apprise the dufcniiant of any attcnu't to attack such con- ve.\-ance, even if it were possible to treat the wheat as perscjnal property belonging to Dan- iel, without first setting aside the convey- ance,— a question not involved, and which we do not decide. But if the product of the land could be thus treated for this year it might with equal propriety be open to the plaintiff; to reap the benefit of all crops since grown upon the land, without regard to the labor invohed in producing them. 2. A ]iortion of the property transferred was exemijt. The recovery did not exclude this. This is error. It has been fre on the notes and obliga- tions aforesaid. The administrator was ap- pointed in 1886 or 1887, and in October, 1890. he brought assumpsit under How. Ann. St. § 5884, alleging the sale, transfer, and deliv- ery in April, 1879, of the personal property by Daniel Nugent to defendant, its disposition, a deficiency of assets, and that the sale made to defendant was without consideration, and was made with intent to defratid creditors. Defendant set up the statute of liniil:ations. How. Ann. St. § 5884, is as follows: "When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate, or any right or in- terest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or convey- ances are void as against creditors, the ex- ecutor or administrator may, and it shall be his duty to, commence and prosecute to final judgment any proper action or suit, at law or in chancery, for the recoA-ery of the same, and may recover, for the benefit of the cred- itors, all such real estate so fraudulently con- veyed; and may also, for the benefit of tlu^ creditors, sue and recover for all goods, chat- tels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance." The statute provides that all actions of assumpsit, all actions of replevin or trover, and all other actions for taking and detaining goods and chattels, shall be commenced within six years after the cause of action shall accme. and not afterwards. Id. § 8713. The present action is predicated upon a fraudulent conveyance of the personal property to defendant in April, 1879. It is to recover the amount of four notes, one of which matured in 1877, eleven years before Daniel Nugent's deatli. and thir- teen years before the commencement of this suit; two of which matured in 1881, seven years before Daniel's death, and nine yeai-s before this suit was commenced; and one ot AVOIDANCE OF CONTRACT. wliicli matured in 1883, five j'ears before Dan- iel's death, and seven years before this suit was commenced; and also upon a claim for the care and support of the mother and sister, tlie last item of which is dated Autiiist l(i, 1884. It is unnecessary, in the present case, to determine whether or not the statute com- menced to run in favor of defendant from the time of the conveyance or conversion, for here moi'e than six years elai)sed after all the claims against Daniel matured before this suit was brought. The statute makes convey- ances with intent to defraud creditors voida- l)le at the instance of creditors. For more than six years no attack was made upon the conveyance of the property, the recoveiy of the value of which is here sought. It is im- material whether a promise or trust be im- plied. The statute runs against an implied, as well as an express, promise; and where a trust is created by implication of law the stat- ute commences to i-un from the repudiation of the trust. The statute certainly commen- ced to lun in favor of defendant and against the creditors at the time that the maturity of their debts placed them in a position to fol- low the property. The absence or death of Daniel Nugent did not intermpt tlie running of the statute in favor of defendant. A cause of action may accrue against one absent from the state, but by virtue of express provisions the statute does not operate until his return. A cause of action may accrue after the death of either partj-, but because the statute so pro- vides the time does not begin to run until the appointment of an administrator. Suits may be commenced in such cases, not because the cause of action did not accrue imtil the dis- ability was removed, but because the period is expressly extended beyond the disal)ility. 7 Am; (fc Eng. Euc. Law. p. oT(j. and cases cited. Here, Daniel's absence and death kept alive the claim of the creditors as against 'him and his estate, but the al)sence of Daniel did not defer the accrual of the right of action in favor of the creditors, and the death of Dan- iel did not toll the statute as against defend- ant, becaiLse such a case is not within the statute. The statute, being general, must operate upon all cases wliicli are not exempt- ed by express exemption. 4 Bac. Abr. 47.j. After the right of action once attached, and the statute had commenced to run against the creditors, if the death of Daniel Nugent in any wise affected their ability to pursue their rem- edy, that was a disability not within the con- templation of the statute, and tlie statute con- tinued to ran notwithstanding. Ten Eyck v. Wing. 1 Mich. 40-46. Section .j884 provides for the bringing of any proper action or suit. It cannot be con- tended that it was the intention of the legis- lature to revive rights of action in favor of creditors, which have been barred by the statute of limitations. The creditors might have proceeded under chapter 277, How. Ann. St. §§ 8087-8089; in trover or assumpsit for the jiropertj' in question. This statute, like all others empowering e.vecutors or adminis- trators to bring .suits, must be construed with reference to otlier statutes relating to actions, riglits of action, and remedies. The construc- tion contended for would defeat the very i)ar- pose of statutes of repose by enabling an ad- ministrator to revive actions against which the statute had run, and to bring trover for a conversion happening half a century before the commencement of suit. Certain rights uf action .survive to executors and administra- tors in favor of the estate, but only those against which the statute had not run. Thi.>? statute gives to them certain riglits of action in favor of creditors, but it cannot be con- strued as giving them a right of action in favor of a creditor where the full period of the statute has run in favor of the person sought to be cliarged and against the creditor. As is said by Campbell, .1., in Blake v. Hub- bard, 45 Mich. 1, 4, 7 N. W. 204: "The deci- sions on the subject of frauds against cred- itors do not hold fraudulent assignments sc absolutely void that the parties may not lose their right of complaint by waiver or acfpii- esceuce." In Fearey v. Cummings. 41 Mich. .370-384, 1 N. W. 040, it is said that section 8091 1 is contined to titles and conveyances of such property as the garnishees have iu possession at the time of making the affidavit. Upon examination of the record in that ca.se it appears That the garuishtes had taken a chattel mortgage upon a stock of goods, but had not filed it until the day upon whicli they took possession; but they claimed that the possession which they took was not, in fact, under the mortgage, but by virtue of a parol understanding under which the debtor voluntarily turned over the goods to them to enable them to make their debt. They insist- ed that such voluntaiy delivery of the goods was but a preference. In the brief of comisel for garnishees the point is made that, in order to bring the case under the section named, the garnishees must be holding under the void title at the time of the garnishment. Fpon the second trial a recovery was had against the garnishees, and the judgment was affirmed, (44 Mich. 39, 6 N. W. 98.) althougli at the time of the commencement of the gar- nishee proceedings the stock of goods had been sold, and was not in the possession of the garnishees; Graves. .1., who wrote this opinion in the first case, dissenting. It appears that in 1883 Mary Nugent com- menced suit on certain of the notes by at- tachment running against the real estate, and recovered judgment in February, 1883; that che then filed her bill against Daniel Nugent and defendant in aid of this levy, but in 1 How. Ann. St. § 8091. provides that, "if nny person iraniisliod shall liavo in his posst's- siou any of the property aforesaid of the prin- cipal defendant, which he holds by a convey- ance or titfe that is void as to the creditors of the defendant, he may be adjudged liable as frariiishee on account of such property, although the principal defendant could not have luain- tainod an action therefor against him." 256 AVOIDANCE OF CONTRACT. April, 1S8S, the proceedings were held defect- ive, :iud were set aside. In May, 18S8, ap- plication was made for the appointment of an administrator, and it is insisted that under How. St. § 8723, this right of action has been thereby kept alive. That was a proceeding to subject the real estate to the payment of a claim by virtue of an attachment. This is an iiction for the recovery of the value of per- sonal property. Not only is the form of ac- tion distinct, but the subject-matter is dif- ferent. The plea of tlie statute should be held good, and the judgment reversed, with costs of both courts to defendant. GRANT, J., concurred witli McGRATH, J. MORSE, C. J. In this case I do not fully agree with either of the opinions filed by Jus- tices McGRATH and :\IONTGOMERY. As to the note of .?191, dated April 8, 1876, made by James and Daniel Nugent to John Nugent, and due in one year, the statute of limitations had begun to run against Daniel before he left the state, and it was therefore in a shape to take proceedings against Daniel when the transfer was made to Emanuel. Neither in law nor equity is there any reason why Eman- uel, who has never been out of the jurisdiction of the courts of this state, should now be pro- ceeded against for the amount of this note, 11 years after his alleged fraudulent dealings v."ith Daniel. And I agree with Justice Mc- GRATH that the notes maturing in 1881— seven years before Daniel's death — a re covered by the statute of limitations, hut as to the note maturing in 1883, and the claim for support, which accrued in 1884, the statute of limita- tions, as against Daniel, was postponed for a peiif^d until the appointment of an adminis- trator, and two years thereafter; and I think also as against Emanuel. How. Ann. St. § 8722. Bresnahan was appointed administra- tor July 19, 1888, but appeal was taken to the circuit court by Emanuel, and in that court the order of the probate court appoint- ing an administrator was set aside. James appealed the matter to this court, where the order of the probate court was affirmed No- vember 8. 1889. The administrator was therefore not appointed until the decision of this court, and the suit was commenced against Emanuel within two years from that date. While Daniel was living and absent from the state Emanuel could have been pro- ceeded against as garnishee of Daniel under sections 8087-8091, How. Ann. St., and the action in such case as against Emanuel, the garnishee defendant, would have been in as- sumpsit or trover. Therefore, if the creditor allowed his claim against Daniel, upon which he bases his action against luuanuel, to sleep for six years after its maturity, he has lost such right of action because of the statute of limitations. But he would have the right to commence his action at any time within six years; and as, in order to reach Emanuel, he must make Daniel a party to the suit or gar- nishee proceedings, it follows that, as to the notes and claims which had not rim six years from matiu'ity before Daniel's death, the cred- itors could not proceed until an administrator was appointed, and then I think they would be entitled to the two additional years provid- ed by statute against Emanuel as well as Dan- iel's estate. It was said by Justice Graves in Fearey v. Cummings, at page 384, 41 Mich., and page 80, 1 N. W., that the right given by section 8091, How. Ann. St., to assail conveyances set up by garnishees on the ground of being fraudulent as against creditors, is confined to conveyances of propertj- then in the hands of the garnishee at the time of commencement of the garnishee suit, and did not apply where the property had been fi-auduleutly received by such garnishee, but disposed of before suit. I think this language evidently refers to property passing into the hands of the gar- nishee, and then being disposed of, passing out to another or to the original owner, and not to a case where it is shown that, although the garnishee has disposed of the property be- fore action commenced against him, he still has the avails of such propertj' in his own hands, or has converted the proceeds of the sale of It to his own use. In such case he has money and effects in his hands belonging to the creditors of the principal defendant, and the words "any of the property aforesaid," used in section 8091, refer not simply to prop- erty- in its restricted sense of goods and chat- tels, but to money as well, which is pn)i)erty in the largest and proper sense of the word. In my opinion, the statute of limitations has run against the notes falling due over six years before the death of Daniel. I therefore concur iu the reversal of the judgment. AV(tII>AXrE OF CUNTltACT. 257 NAvSH V. STEVENS ot ux. (65 N. W. 825.) Supreme Court of lowu. Jan. 22. IS'.fij. Appeal frou' district court, Sac couuty: Charles D. Goldsiuith, Judge. Action in equity to subject land to the pay- ment of a judgment. There was a hearing on the merits, and a decree for the defend- ants. The plaintiff appeals. Athrmed. R. M. Hunter, for appellant. S. M. Ehvood, for appellees. ROBINSON, J. On and before the 1st day of June, 1875, tht- defendant Benjamin Ste- vens was indebted to the plaintiff in the sum of .?2UU. In August, 1875, the plaintiff com- menced in the district court of Tama county an action ou the indebtedness, to recover the amount due, and in February, 1877. he re- covered against Stevens judgment for $2(X) and costs. On the 19th day of June, 1875. Stevens purchased an improved farm, of ItJO acres, situated in Tama county, for the agreed consideration of .?2.4(X>. In payment he gave a note for .^(UX* made by himself and a surety, and notes for the aggregate sum of .SI, 800, secured by a mortgage on the land. Three days after the action against Steven.*! on the indebtedness stated was com- menced, and before he had paid any ^art of the purchase price of the laud, he conveyed it to his wife and codefendaut. Maggie Ste- vens, by a deed which was duly recorded on the following day. The deed recited a con sideration of $000, and was subject to the mortgage of .$1.pect to the subsequent acquiring of title to the Sac county land. Both these transactions occurred more than five years before the com- mencement of this action. It is said, how- ever, that the fraud alleged was continuous, for that the earnings of the husband wcra placed in the name of th.? wife from the time the conveyances were made until this action was commenced. But the earnings of the husband were exempt from execution, and it was his right to give them to his wife free from tht (.laims of his creditors. Jami- son V. Weaver. 87 Iowa, 79. .53 N. W. 1076. We do not hold that fraud in the transaction in question has been shown. There is much support in the record for the claim that Mrs. Stevens agreed to pay for the U'ama county land its fair value at that time, and that the property she now owns was derived in part from money which she had when she was married, in part from the increase of the value of the land in both Tama and Sac coun- ties after it was purchased by her, in part 258 from the labor of her husband, and in part from her own personal exertions. But we need not determine the facts in regard to this. The plaintiff has failed to use the diligence AVOIDANCE OF CONTRACT. in prosecuting his claim which the law re- quires, and it is now barred by the lapse of time. The decree of t.b,e diatiict court is af- firm evering the g'eneral rule, where creditors Contest a sale of personal property on the j;round of fraud as to them, and that the <'.ourt erred in refusing; to give it, and in giving a modified rule as to parties stand- ing in the relation of husband and wife. We think the defendant was entitled to a charge covering his thecjry of the case, and to tne general rule laid down in the statute respecting sales of personal prop- erty, where the same is not accompanied by an immediatedelivery, and folhnved by an actual ami continued change of i)osses- sion. At the time the bill of sale was ex- ecuted the plaintiff and Mr. Kipp were not ''husl)and and wife. That was dated Oc- tober 2, Isss. and they were not mari-ied until in Dee^-einber following. A marriage engagement existed, and after the bill of sale was executed she went to .Milan to prepare for her wedding. lie continued to carry on the livery business in the city of (Jrand Rai>ids. The levy was not made until after the marriage. The (iuesti(jn of change of possession must in all cases be considered in connection with the other facts in the case. The relation of husband and wife foi-ms no exception to the rule. The situation of the parties, and their i-e- lation to each other, the kin 1 of pi-operty, itssu.soeptibility of an actual change, must all be considered, and that must be done which will indicate an a-tual and con- tinned cha.nge of possession ; and where this is not the case the iyurden of proof is uixm the ])urchaser to show that the sale was made in good faith, and without any intent to deframl creditors. From this burden the wife or husband wIkj is a pur- chaser from the other is not exempt. It is a ujistake to sui)pose that the case of Davis v. Zimmerman, 40 Mich. 24, counte- nances a different doctrine. That case holds that the wife must establish her i-ight to the property (in that case an executed gift) by a fair preponderance of evidence. This right includes the hona fides of the transaction, and the non-existence of the intent to defraud creditor-, when therehas been no actual and continiu'd change of possession. The court, in modifying the general rule upon this branch of the case, told the jury that the controlling rjuestion was, if the jui'y should find that the sale was made in consideration of money loaned, then their verdict should be for the plaintiff; otherwise it should not. This omitted the important element con- tained in the statute relative to intent. Under this section of the statute it is not enough that the purchase .was mad that, if any- thing was settled in the law. it was that an assignment for the lienitit of creditors, when executed by Iho assignor and accepted by the assignee, creates a valid trust, which can- not be changed or revoked by the assignor, or by the .joint act of both assignor and as- signee; and what the assignor and assignee lannot do. certainly the court cannot do for them. Inileed, the appellant admits this; but his contention is that it is only the ben- eliciaries under the assignn;ent— the creil- itor.s— who can object, and that the plaintiff is not in position to raise the (luestion. or assail collaterally the action of the court. We cannot assent to this proposition. The issue lure is one of title to the ])roperty, and the question is, what is the nature and ex- tent of the assignees title, and what, if any, objections is he in pi.sition to make to i)Iain- tifl's claim of title? The assignee's title, if any, rests exclusively upon the deed of as- signment. The action of the court in assum- ing to change the luiture of ;'. vested trust Mas an absolute nullity, and this the plain- till had a right to assert as against an at- tempt of the assignee to set up the void de- cree for the purpose of assailing his title. The appellant, therefore, v.as not in posi- tion to attack the sale .-is being an unlaw- ful preference under the ins ilvent law of 1S81, and that (luestion is wholly out of the case. 2. It was open, however, for Ihe as.signee to avoid the sale as frauilulent on any grounds upon which creditors of the assignor might avoid it. Oeu. St. 1878, c. 41, § 27 ((ien. St. 1S!)4. S 42:j3). The principal ground upon Vhicli it is claimed that the sale was fraud- ulent and void as against creditors is that it was not accompanied by an immediate deliv- ery, or followed by an actual and contiinied change of possession. Gen. .^t. 1878. c. 41. § l."> (<;en. St. 181)4. § 421. The court has expressly found that the sale was made in good faith, and without any intent on the part of said Cottre:i or plaintiff' to hinder, delay, or de- fraud creditors. I'pon an examination of the entire record we are clearly of opinion that, even assuming that there was not an actual and continued change of possession of the property, the question whether i)laiutiff' had satisfactorily rebutted the presumption of fraud arising from that fact was, tipon the evidence, (me of fact for the trial court, and that his linding cannot be disturbed. In dis;i;tsi!!g this branch of the case, counsel for 262 DELIVERY AND CONTINUED POSSESSION. the assignee lay much stress upon the evi- dence tending to show that the sale was in- tended to secure a preference over other creditors to the Twenty-Third Ward Bank of New York, of which plaintiff was president. The evidence to that effect was quite per- suasive. But. as already suggested, that IKtint was not in the case, and the evidence referred to had no legitimate tendency to prove the second point, viz., that the sale was made with intent to hinder, delay, or de- fraud creditors. There is a point in the sec- ond, or "Pillshury," case which is not in the first. Some two or three weeks after tbe sale already considered, it was found that an error had l)een made in computing the quantity of property sold. Cottrell liad then on hand in his warehouse between 13,0UU and ir),0()0 Brazilian barrels, and, to make good the shortage referred to, he executed to plaintiff a bill of sale of 12.384 of tliese bar- rels, bur no specific barrels out of the entire lot were ever set apart or designated as those covered by this supplemental bill of sale. Cottrell sold all the barrels indiscrim- inately to the Pillsbnrys in the usual course of business in his own name. When Cot- trell made the assignment to appellant there was still due from the Pillsburys somewhat more than enough to pay for the 12,384 bar- rels covered by the bill of sale. Plaintiff brought suit against the Pillsburys to recov- er the amount which he claimed he was en- titled to. Thereupon the appellant interven- ed, claiming tliat he, as assignee, was en- titled to the money. The point is made that, as no specific barrels were ever set apart out of the whole lot and appropriated to this bill of sale, therefore the title to none of the barrels ever passed from Cottrell to plaintiff. We imderstand the fact to be that all the barrels were of exactly .the same kind and value. The evidence was sufficient to warrant tlie conclusion that the intention of the parties was that the title to the bar- rels should presently pass by the bill of sale, and that thereafter plaintiff should be the owner of 12,384 barrels out of the whole lot, and that they sliould be under the ex- clusive control of Kern, plaintiff's agent, who had the riglit and power at any time to malie the separation, and take that number of bar- rels out of the lot. While there is some con- fusion and conflict among the authorities on the subject, yet it is settled in this state tliat where a certain number of articles are sold out of a greater number of exactly the same kind and quality, with the intention that the title should presently pass, and where the vendee has the absolute right at any time to take the amount or number out of the whole mass or quantity, this is sufficient to pass the title, although the specific articles are not ac- tually designated or separated from the re- mainder. Under such circumstances, until the separation is made the vendor and vendee are tenants in common of the whole accord- ing to their respective interests. Nash v. Brewster, 39 Minn. r)30, 41 N. W. 105; Benj. Sales, c. 4, and American note. The evi- dence was sufficient to justify the finding that plaintiff" was the owner of these barrels. If, under the particular facts of this case, there was any objection to plaintift''s suing the Pillsburys alone for the amount to which he was entitled, it was obviated by the inter- vention of the appellant as assignee, for thereafter all the parties interested in the whole sum due from the Pillsburys were be- fore the court, which could award to each the amount to which he was entitled. Order affirmed. DICKINSON, .7., absent, took no part. DELIVERY AND CONTINUED POSSESSION. 263 HOPKINS V. BISHOP. (51 N. W. 902, 91 Mich. 328.) Supreme Court of Micliigau. April 8, 1892. Error to circuit court, Kent couut}-; Allen €. Adsit, Jucljj:e. Keplevin by Thomas J. Hopkins against Loomis K. Bishop. Judgment for plaintiff. Defendant brings error. Reversed. C. O. Smedley, for appellant. D. C. Lyle and Stuart & Knappen, for appellee. MORSE, C. J. The defendant, as sheriff of Kent county, represents in this litigation at- taching creditors of Clinton H. Hopkins, a .son of the plaintiff. The plaintiff brought replevin for the goods attached, and recov- ered judgment in the Kent county circuit court. It was shown by the plaintiff on the trial that his son, who was in the mercantile business at Cedar Springs, was unable to meet his obligations; and that plaintiff" was signer of two notes, with his son, to one Mc- Bryer, for the means with which to engage in business. These notes were for .$1,000 and .$800, and there was due upon them, Decem- ber 15, 1890, $1,898. On that day plaintiff took up the.se notes and gave his individual note in their stead, and his son gave him a bill of sale of the stock and fixtures in his store, estimated to be worth .$1,.jOO. The book-accounts, amounting to about $700, and what cash there was on hand, were retained by the son. Plaintiff" then went to the store with his son, who delivered the key to him, ivnd Informed the clerk that plaintiff was thereafter to be proprietor. Plaintiff then hired the clerk and his son to run the busi- ness for him. Two days tnereafter the at- taclunent levies were made. December 23, 1890, plaintiff' replevied without making any demand for the goods. It is contended that a demand should have been made, as the goods were found in the possession of the son, Clinton H. Hopkins, against whom the writs of attachment ran. Authorities are cited to the effect that, where property seized on attachment or execution is found by the officer in the actual custody of the person named in the writ, the possession under the levy is lawful, and a demand is necessary be- fore I'epievin can be brought. In this state. a demand before suit is not requisite if, at the time of the levy, the goods seized are the property of the person suing in replevin. The fact that such goods are in the lawful possession of the person named in the writ of attachment or execution does not affect the right of the owner as against one taking possession of tliem in hostility to him. The question of demand before suit by the owner to regain possession of his property depends upon whether the taking was lawful as against him. If the plaintiff in this case had a right to recover this property from the sheriff, no demand was necessary. The sheriff may have, in good faith, levied upon these goods, believing them to be the prop- erty of Clinton H. Hopkins; but, as the right of plaintiff to regain possession of them does not at all depend upon the good faith of the officer in taking them, there is no good rea- son, as shown in Trudo v. Anderson, 10 Mich. oo7. for a demand before suit. The taking, if the plaintiff was owner, was a trespass, and would itself have constituted a conver- sion in trover without proof of a demand and refusal. There are several assignments of error to the refusal of the circuit judge to give de- fendant's requests to charge. These re- quests are not set out in the bill of excep- tions, nor in the printed record, except as they apx)ear in' the assignments of error. These assignments form no part of the bill of exceptions, and we cannot presume against the validity of a jutlgment that a request to charge, not found in the bill of exceptions, was presented to the circuit judge, from the mere fact that such request is set out in the assignments of error. The assignments, therefore, as to the requests not given by the court, will not be considered. Lindner v. Hine, 84 Mich. 512, 48 N. W. 43. It is assigned as error that the circuit judge modified the tenth request of defendant, which was as follows: '"The sale must be accompanied by an actual and continued change of possession as Avell as a nominal and constructive change, or the transaction will be deemed fraudulent as against cred- itors; and a constriictiou which would allow the vendor or assignor of a stock of goods to continue in possession thereof, and to sell them out as the agent of the piirchaser or as- signee, woidd render the statutory provision for the prevention and detection of frauds a mere nullity,"— by adding to the same: "That is, if you shoidd find that Clinton H. Hopkins was left there in charge of the goods as a mere figure-head, and there was not an hon- est and open transfer." It is claimed that this request, as presented, was good law. and applicable to the case under the ruling of this court in Doyle v. Stevens, 4 INIich. 93; citing with approval the language of the court in Butler v. Stoddard. 7 Paige. IGG. But it was held in Doyle v. Stevens that, if there was any evidence tending to show an open, outward change of possession and a continuation of it, it woifid be a (luestion of fact for a jury. In this case the transac- tion between the plaintiff" and his son was not concealed from any one. The day the alleged sale took place the fact was made known to McBryer. who Avas a creditor to the extent of over $1.8(iO. and the clerk in the store Avas made acquainted with the change. All the possession that could have been tak- en was taken, except the putting out of the son as an employe, and the going in of the plaintiff' to manage the store personally. The plaintiff" was not a merchant, and, unless he was precluded, as a matter of law, from hiring the son to manage the business for him, the question whether or not there was 2G4 l>ELlVElfV AND CONTINUED POSSESSION such a clijui.^e of possession as satisliod the statute was one for the jury to determine. We do not think tlie defendant was entitled to the reect:ve interests. Nor can it be said that they surrendered their right to demand from him an accounting in respect to his manage- ment of tlie property. Upon such account- ing he might b'come indebted to them; and, to the extent that he was justly so indebted, tliey would be his creditors, with the same riglit that other unsecured creditors had to obtain satisfaction of their claims. The mode adopted by them to that end, with full knowledge as well of his linancial condition as of the fact that he was being pressed by Cotzliausen, was to take property on account of tlieir respective claims. After he had executetl the conveyances, bill of sale, war- rant of attorney, and transfers, to which reference has been made, he was left with- out anything that could be readied by Cotz- liausen. So completely was he stripped by these transactions of all prop^-rty that subse- quently, when liis deposition was taken, he admitted that he owned notliing except the clothing he wore. He recognized his lio[)e- lessly insolvent condition, and formed the purpose of yielding to creditors the dominion of his entire estate; and it is too plain to ad- mit of dispute that in executing to his motii- er, sisters, and brother th:' conveyances, bill of sale, warrant of attorney, and transfeis in question his intention was to give them, and their intention was to obtain, a preference over all other creditors. What was done was in execution of a scheme for the appro- priation of his entire estate by his family, to the exclusion of other cred tors, thereby avoiding the effect of a formal assignment. The first question, therefore, to be consid- ered is whether the several writings executed by Alexander White, Jr., for tiie purpose of effecting that ivsiilt, may be regarded as, in legal effect, one instrument, design • d to evade or defeat the provisions of the statute of Illi- nois known as the "Voluntary Assignment Act," in force .July 1, 1877. The first section of tliat statute provides "that, in all cases of voluntary assignments hereafter made for the benelit of creditor or creditors, the debtor or debtors shall annex to such assignment an inventory, under oalh or affirmation, of his, her, or tiieir estate, real and personal, according to the best of his, her, or their knowledge; and also a list of his, her, or their creditors, their residence and place of business, if known, and the amount of tiieir respective demands; but such inventory shall not be conclusive as to the amount of the debtor's estate, but such assignment shall vest in the assignee or as- signees the title to any other projierty, not exempt by law, belonging to the debtor or debtors at the time of making the assign- ment, and comprehended within the general terms of the same. Every assignment shall be duly acknowledged and recorded in the county where the person or persons making the same reside, or where ihe business in re- spect of which the same is made has been carried on; and in case said assignment shall embrace lands, or any interest Iherein, then the same shall also be recorded in the county or counties in which said land may be situ- ated." Other sections provide for publica- tion of notices to creditors; for the execution by the ass.gnee of a bond and the tiling of an inventory in the county court; for the re- port of a list of all creditors of the assignor; CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. :67 and for exception by any person interested to the claim or demand of anyotlier creditor. 'IMie sixth section provides "that at tiie lirst term of the said county court, after the ex- piration of tlie three n)ontiis, as aforesaid, should no exception be made to the claim of any creditor, or if exceptions have l)een ma le. and tlie same have been adjudicated and settl 'd by the CO I rt, the said court sliall order the assignee or assignees to make, from time to time, fair and equal dividends (among the creditors) of the assets in his or their hands, in. proportion to their claims," etc. Tlie eighth section declar;s that "no assignment shall be declared fraudulent or void for \v;int of any list or inventory as provided in tiie first section." The thirteenth section is in thi'se words: "Every provision in any as- signment hereafter made in this state pro- viding for the payment of one debt or liabil- ity in preference to another shall be voiil, an I i',11 debts and liabilities within the pro- visions of the assignment shall be paid p/'o Tata from the assets thereof." The main object of this legislation is mani- fest. It is to secure equality of right among the creditors of a debtor who makes a volun- tary assignment of his property. It annuls every provision in any assignment giving a preference of one creditor over another. Xo creditor is to be excluded from participation in the proceeds of the assigned property be- cause of the failure of the debtor to make and file the required inventory of his estate and tlie list of his creditors; nor, it such a list is filed, is any creditor to be denied iiis ]jro rata part of sucii proceeds because his name is omitted, either by design or mistake u[)on the part of the debtor. The dittiiulty with tlie courts has not been in recognizing the benef- icent objects of this legislation, but in de- termining whether, in view of the special circumstances attending their execution, par- ticular instruments are to be treated as part of an assignment, within the meaning of tiie statute. The leading case upon this subject in the supreme court of Illinois is Preston v. Spaulding, 120 111. 208, 10 N. E. Kep. 903. In tiiatcase the members of an insolvent firm, in anticipation of bankruptcy, made, within a period of less than thirty days, lour convey- ances of tiieir indiviilual estate to near rel- atives, and various payments of money to oth- er relatives, on alleged debts; after these con- veyances and payments, and with full knowl- edge of impending failure, the members ol the lirm held a conference with their legal ad- visers before the ex[)i ration of said thirty days, respecting the measures to be adopted by thein, and the shape their failure was to as- sume. It was determinetl that they should m.ike a voluntary assignment, but that pref- erence be given to certain creditors by execut- ingtothein whatare called "judLjinent notes." The assignment in form was male, but on the same day, and before it was executed, the creditors to whom tiie notes were given caused judgment by confession to be entered th -leon, and immediately, and before the deed of assignment was or could be tiled, caused execution to be issued and levied, whereby they took to thciii-ielves the great bulk of the debtor's estate. The trustee named in the assignment having refused to attack the inefeieuces thus secured, a creditor brought suit in equity, upon the theory that the giv- ing of the judgment notes and the making of the deed of assignment were parts of one transaction, and consequently the j)reference3 attempted were illegal and void under tin- stat- ute. The supremecouit of Illinois, consider- ingthequestion whether the preferential judg- ments obtained in that case were within the proliibitions of the act of 1877, said: "The statute is silent as to the form of the instru- ment or instruments by which an insolvent debtor may effect an assignment * * * If, then, these preferences are to be held to be witiiin the ' provisions ' of the assignment or ♦ couiprehended within its general terms,' it must be because th.ey fall within the intent and spirit of the act. It will be observed this act does not assume to interfere, in the sli .litest degree, with ttie action of a debtor, while he retains the dominion of his prop- erty. Notwithstanding this act, he may now, as lieretofore, in good faith sell his property, mortgage or pledge it to secnie a bona Jide debt, or create a lien upon it by operation of law, as by confessing a judgment in favor of a bona fide creditor. But when lie reaches the point where he is ready, and determines, to yield the dominion of his property, and makes an assignment for the benefit of his creditors, under the statute, this act declares that the effect of such assisrninent shall be the surrender and conveyance of all his estate, not exempt by law, to his assignee, — render- ing void all preferences, and brmjiing about the distribution of his whole estate equally among his buna fide creditors; and we hold tliat it IS within the spirit and intent of the statute that when the debtor lias formed a determination to voluntarily dispose of his whole estate, and has entered upon that de- termination, it is iminateri;il into how many parts tlie perlormance or execution of his determination may be broken, — the law will regard all his acts having for their object and effect the disposition of his estate as parts of a single transaction, and, on the execution of the formal assignm nt, it will, under the statute, draw to it, and the law will regard as embraced witiiin its p'rovisions, all prior acts of the debtor having for ther object and purpose the voluntary transferor disposi- tion of his estate to or for creditors; an I, if any preferences are shown to have been made or given by the debtor to one creditor over another in such disposition of his estate, full effect will be given the assignment, and such preferen:-es will, in a court of equity, be de- clared void, and set aside as in fraud of the statute." After setting out the details of the plan devised to secure certain creditors a pre.erence in advance of the filing of the deed of assignment, the court further said: "It will be observed that all this was strictly in accordiince with the forms of law; but will anyone deny that a most palpable fraud was 268 CONVEYANCE AND ASSIGNMENT OK RENEFIT OF CKEDITOIIS. in fact perpetrated upon llieaj)neilee, .Spauld- ing, by the debtois, or that tlie acts of the debtors were in fraud of tliestatiiteV * * * Tliis voluntary assij^nnient act is in its cliai- acter reni'dial, and niustthereforel)elil)eraliy construed, and no insolvent debtor liaving in view the disposition of his estate can be permitted to defeat its operation by effeLt- ing unequal distribution of his esta'.e by means of an assignm nt, and any other shift or artitice nmler the forms of law; and, what- ever obstacles iniijjht be encountered in other courts of tills state, a court of equity, when properly invoked, was bouiul to look tinough and beyond the form, and have regard to tlie substance, and, having done so, to lind and declare these preferential judgments void un- der the statute, and to set them asule." 8ee. also, Hank's Apneal, 57 Pa. St. 19^. h)\); Winner v. Ilovt, G6 Wis. 227, 239. 28 N. W, Rep. 380; Wilks v. Walker, 22 S. C. 108, 111, \\'e agree with tlie supreme court of Illi- nois that this statute, being remedial in its character, must be iiberaily construed ; that is, construed "largely and benelicially, so as to suppress the mischief and advance the remedy." That court saiJ in liailroad Co. v. Dunn, 52 111. 2G0, 263: "Tiie rule in con- struing remedial statutes, though it may be in derogation of the common law, is, that ev- erything is to be done in advancement of the remedy that can be done consistently with any fair construction that can be i)ut upon it." See, also, Johnes v. Johnes, 3 Dow, 15. If, then, we avoid over-strict construction, and regard substance rather than form; if effect be given to this legislation, as against mere devices th.it will defeat the object of its enactment, — the several writings executed by Alexander White, .Jr., all about the same time, to his mother, sisters, and brother, wiiereby, in contemplation of his banki upt- cy, and according to a plan previously formed, he surrendered his entire estate lor their benefit, to the exclusion of all other creditors, must be deemed a single instru- ment, expressing the pur()oses of the [larties in consummating one transaction, and oper- ating as an assignment or transfer under which the appellee, Cotzhausen, may claim equally of right with the creditors so pre- ferred. It is true there was not here, as in Preston v. Spiulding, a formal deed of as- signment by the 3ebtor under the statute. IJut of what avail will the statute be in se- curing equality among the creditors of a debtor who, b6ing insolvent, has determined to yield the dominion of his entire estate, and surrender it for the benelit of creditors, if some of them can be preferred by the simple device of not making a formal assignment, and permitting them, under the cover or by means of conveyances, bills of sale, or writ- ten transfers, to take his whole estate on ac- count of their respective debts, to the exclu- sion of other creditors? If Alexander White, Jr., intending to surrender all liis property for the benelit of his creditors, and to stop business, had excepted from the conveyances, bill of sale, and Iraiisleis executed to his mother, sisters, and brother a relatively small amount of property, and had shortly there- after made a general assignment under the statute, it could not be doubted, under the decision in Preston v. Spaulding, and in view of the facts here disclosed, that such convey- ances, bill of sale, and transfers would have been held void as giving forbidden prefer- ences to particular creditors; and his assii^n- meiit would have been heid, at the suit of other creditors, to embrace, not simjily the property owned by him when it was made, but all that he previously conveyed, soM,{Mid transferred to his mother, sisters. and biother. But can he, having the intention to quit bus- iness and surrender his entire estate to cred- itors, be permitted to defeat any such result by simply omitting to make a formal assign- ment, and by including the whole of his property in conveyances, bills of stile, and transfers to the particular creditors whom he desires to prefer y Shall a failing debtor be allowed to employ indirect means to accom- plish that which the law prohibits to be done directly? These questions must be answered in the neirative. They could not beanswered otlierwise without siigiresting an easy mode by which the entire oljject of this legislation may be defeated. We would not be understood as contraven- ing the general principle, so distinctly an- nounced by the tiiprerae court of Illinois, that a debtor, even when linancially embar- lassed, may in good faith compromise his liabilities, sell or transfer property in pay- ment of debts, or mortgage or pledge it as security for debts, or create a lien upon it by means even of a judgment confessed in favor of ills creditor. Preston v. Spauliling; Field V. Gtohegan, 125 III. 70, 16 N. E. Rep. 912. Such transactions often take place in the or- dinary course of business, when the debtor has no purpose, in the near future, of dis- continuing business, or of going into bank- ruptcy and surrendering control of all his property. A debtor is not bound to succumb under temporary reverses in his affairs, and has tiie right, acting in good faith, to use his {uofierty in any mode he chooses, in order to avoid a general assignment for the benelit of his creditors. W'e only me;in by what has been said that when an insolvent debtor recognizes the fact that he can no longer go on in busi- ness, and determines to yield the dominion of his entire estate, and in execution of that pur- pose, or with an intent to evade the statute, transfers all, or substantially all, his proper- ty to a part of his creditors, in order to pro- vide for tlieni in preference to other cred- itors, the instrument or instruments by which such transfers are made, and that result is jea'died, whatever their form, will be iield to oji rate as an assignment, the benefits of which may be claimed by any creditor not so preferred, who will take appropriate steps in a court of equity to enforce the equality con- templated by tiie statute. Such, we think, is the necessary result of the decisions in the highest court of the state. Tiie views we have expressed find some CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. 269 support in adjudged cases in tlie Eighth cir- cuit, wliere the courts have construed tlie statute of Missouri providing that "every assignment of hinds, tenements, goods, chat- tels, el'tVcts, and creilils, made l)y a debtor to any pt-rson in trust for his creditors, shall be for the benefit of all the creditors of the assignor in proportion to th' ir respective claims." lieferring to that statute, Kukkkl, J., said, in Keilog v. llichardson, 19 Fed. Rep. 70, 11, following tlie previous case of Martin v. Hausman, 14 Fed. Hep. 160: "A niei chant may eive a moitgage or a deed of trust "1 oart or all of his j)roperty, to set-ure one or m >r»^ of iiis cre.iitors, thus preferring them, but he cannot convey the whole of his jir.'p^'rty to one or more creditors and stv^p do- ing bu-^iness. Such turning over and virtual- ly declaiing insolvency brings the instrument or act by which it is done within the assign- ment law of ^lissonri, which requirt'S a dis- tribution of tlie pro])eity of the failing debtor foi- the l)enelit of all the creditors in propor- tion to tlieir res[)eftive claims. Such is the declared policy of the law; it places all cred- itors upon an etjual footing." So in Kerbs v. Ewing, 22 Fed. Rep. 6"j;l, where Judge Ml CuAUV, referring to the Missouri statute, said: "Xo matter what the form of the in- strument, where a debtor, being insolvent, conveys all his property to a third party, to pay one or more creditors, to the exclusion of otlieis, such a conveyance will be con- strued to b? an assignment for the benefit of all the ere litors: the preference being in C(jn- travention of the assignment laws of tliis state." Again, in Freiind v. Yaetrerinan, 26 Fed. Rep. 812, 814, it was said by^TuEAX, J., that the conclusion reached by Mr. Jus- tice MiLLEK, and Judges McCn.\it\', Kke- KKi., and himself, was "that, under the stat- ute of tiie state of Missouri concerning vol- untary assignments, when propi-rty w;is dis- posed of in entirety or subslanti;dly — that is, the entire property of the debtor, he being insolvent — it fell within the provisions of the assignment law. The very purpose of the law was that no preference should be given. Xo matter by what name the end is sought to be effected, it is in violation of that statute. You may call it a mort;^age, or you may make a confession of judgment, or use any other contrivance, by wiiatever name known if th" purpose is to dispose of an insolvent debtor's estate, whereby a preference is to be effected, it is in violation of the statute." See, also. Perry v. Corby, 21 Fed. Rep. 737; Clapp V. Dittman, Id. 1.5; Clapp v. Xord- meyer, 25 Fed. Rep. 71. If Alexander W'i.ite, Jr., had made a form- al assignment of liis entire property- in trust for the benefit, primarily or exclusively, of his mother, sisters, and brother, as cred- itors, its illegality would have been so ap- parent that other creditors would have been allowed to participate in the proceeds of sale. 13y the conveyances, bill of sale, confession of judgment, and transfers, all made about the same time, and pursuant to an under- stan ling previ(jusly reached, he has effected precisely the same result as would have been reached by a formal assignment to a trustee for the exclusi\e bt^nefit of his mother, brother, and sisters. The latter is forbidden by the letter (;f tlie statute, and tlie former is eijually forbidden by its spirit. Surely, the mere name of the particular iiistrum''nts by which the illegal result is reached ought not to be peimitted to stand in the way of giving the relief contemplated by the st itiite. Courts of equity are not to be misled by mere devices, nor batHed by mere forms. It remains only to consider the effect of these views upon tlie decree below. We liave already seen that the circuit court ju-ocecded upon the ground that the conveyances, bill of sale, confession of judgment, and trans- fers by Alexander White, Jr., were made without adequate consideration, and with in- tent, to hinder, delay, and defraud tlie appel- lee. Upon these grounds it gave him a prior right in the distribution of the property. We are not able to assent to this determina- tion of tlie rights of the parties, for the nii'ther, sisters, and brother of Alexand r Whit>', Jr., were his creditors, and, so far as the record disclo-ies, they only sought to ob- tain a preference over othr creditors. Rut their attem[)t to obtain such illegal prefer- ence ouiriit not to have the effect of depriv- ing them of their interest, umler the stat- ute, in the proceeds of the property in ques- tion, or justify a decree giving a prior right to the appedee. It was not intended, by the statute, to give priority of right to the cred- itors who are not preferred. All that the ap- pellee can claim is to participate in such pro- ceeds upon terms of equality with other cred- itors. It results that the decree below is erro- neous, so far as it directs tlie property, riglds, and interests tlierein describe I to be sold in salisfaclion primarily of the sums found by the decree to be due from Alexander \\'hite, Jr., to the appellee. Tise case should go to a master to ascertain the amount of all the delits owing by Alexander White, Jr., at the date of said conveyances, bill of sale, and transfers. In respect to the amounts due from him to his mother, sisters, and brother, respectively, it is not necessary, at this time, to express any opinion, further than that the accounting in the probate court between them is not conclusive against the appel- lee. It will be for the court below to deter- mine, under all evidence, what amounts are justly due from Alexander White, Jr., to his mother, sisters, and brother, taking into con- sideration all tiie circumstances attending his management of the property, formerly owned by liis father, whether real or personal. To the extent we liave indicated the decree is reversed, each side paying one-half the costs in this court; and the cause is remanded, with a direction for further proceed. n-s not inconsistent with this opinion. The Chief Justice did not sit in this case, or participate in its decision. 27U CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. WARNER V. LITTLEFIELD, Sheriff. (50 N. W. 721, 89 Mich. 329.) Sii[U-c'nu> Court of Michigan. Dec. 22, 1891. Error to circuit court, Wayne county; Cor- nelius J. lU'illy. Judge. Action in trover by Cliarles E. Warner, trustee under a cliattel mortgage for the benefit of creditors of ^Minnie Wertheimer, against Louis' B. Littlofield, for the conversion of goods cov- ered by tlie mortgage, by attaching the same at the instance of a creditor of said Minnie Wertlieinier. I'laintiff had judgment, and de- fendant brings error. Reversed, and new trial gi-anted. Julian G. Dickinson, for appellant. CJrittin, Warner & Hunt, for appellee. CHAMRLIN, C. J. This action is trover. The defendant was sheriff of Wayne conntj', and pleaded the general issue, and gave notice that he seized the goods declared for, as sher- iff of Wayne countj-, by virtue of a certain writ of attachment issued out of the circuit court of Wayne cminty against Minnie Wertheimer, and that he Avould show that the claim to the goods set up by plaintiff was fraudulent and void against the creditors of said Minnie Wert- heimer; that the mortgage, so called, under which the plaintiff claims. Avas made with in- tent to cheat and defraud her creditors; that it comprised substantially all of her propei'ty sub- ject to execution; that it was given for the purpose of distributing her property to certain of her creditors in preference to others, and was made for the purpose of covering and conceal- ing her property; that the plaintitt" in said cause was not a bona fide purchaser, and is charge- able with notice of the facts and circumstances constituting the fraud perpetrated by the said Minnie Wertheimer in said transac-tion; that the said mortgage tf said property to plaintiff did net comprise a large poition of the prop- erty of said Minnie Wertheimer, which she had concealed and covered by transfers to parties in St. Paul and Chicago, and to the Western Knitting Company, of Detroit, and to Max Pu- laski, of Detroit. Avith the view to defeat and defraud her creditors; that a large portion of the indebtedness mentioned in said mortgage, and wliich is pretended to be secured thereby, is fictitious and fraudulent as against the cred- itors of the said IMinnie Wertheimer. notably indebtedness therein mentioned to ^Max Wert- heimer. Morris Wertl^eimer, and .Joseph Wert- heimer. On the 13th of December, 1889, Minnie Wert- heimer, who was the'-i engaged in business in the city of Detroit under the name of Weil- heimer Bros., executed a chattel mortgage, in which she set forth that she was justly in- debted to several creditors, naming tliem. and the amoimts owing to each, and to secure the i)ayment of such claims, and of indemnifying Pernard Wurzlierger and Freund Bros, against liability upon certain obligations, mortgaged cer- tain pr.)p( rty, fully described in sucli chattel mortgage, to "Carlos E. Warner, of Detroit, Mich., in trust for said parties severall.v." upon certain conditions, as follows: "The conditions to these presents are such that if I, the said Minnie ^^'ertheimer, doing business as afore- said, shall pay, or cause to be paid, to said Warner, trustee, the claims and demands afore- said, and each and all thereof, within ten da.vs from the date hereof, with interest thereon from the maturity of said several claim-^ and demands, and shall keep and save harmless the said Wurzberger and the said Freund Bros, from liability as aforesaid, then this obligation shall be void, otherwise to remain in full force; and I, the said Minnie Wertheimer, agree to Y>i\y the same accordingly, and keep said Wurz- berger and said Fremid Bros, free and harm- less from liability as aforesaid. But if default shall be made in the payment of said debts and demands or any thereof and the interest thereon, or any portion thereof, within the time or manner herein provided; or if I, said ilin- nie Wertheimer, shall not keep and save harm- less the said Wurzberger and said Freund Bros., or either of them, from liability as aforesaid; or if I shall sell, assign, or dispose of said goods and chattels, (excepting those expresslj' excepted herein,) or shall remove, or attempt to remove, the whole or any portion thereof from the premises aforesaid, without the writ- ten consent of said '^'arner, trustee, except in the usual course of trade; or if the said War- ner, trustee, shall deem himself or said del)ts, or any of them, insecure, — then, in each such instance, the said Warner, trustee, his suc- cesscrs or assigns, or his or their authorized agents, are hereby expressly authorized to en- ter the said several premises, or any place or places where s-.iid goods and chattels, or any portion thereof, may be, and take possession thereijf, subject to said exemption, and sell the same, or so much thereof as shall be necessary to pay the expenses incurred in and about the taking possession of said goods and chattels, and in the care thereof, and in and about the foreclosure of this mortgage, and the costs and charges, taxes and insurance, and services here- inafter mentioned, and the claims and demands hereinbefore mentioned, and each and all there- of, and the interest thereon, and to keep and save harmless the sai-i Wurzberger and Freund Bros, from lial)ility as aforesaid, at public auction, to the highest bidder, or at private sale, in bulk or parcels, at his option, (any- thing contained in this mortgage to the con- traiy notwithstanding,! after giving five daj^s' notice of such sale, and the time and place of such sale, by posting written or printed notice thereof in three pul)lic places in the city of De- troit and Cheboygan aforesaid. The said War- ner, trustee, is hereby authorized to insme said goods and chattels in such sum as he may deem proper to protect his interests in this mort- gage, and the moneys paid therefor may be added to and becoiiie a part of the debts here- in secured, and shall be payable forthwith, and draAv interest at the raie of seven per cent, per annum. The said Warner, trustee, is also an- CONVEYANCE AND ASSIGNMENT FUR BENEFIT OF CREDITORS. 271 thorized to pay nil taxes that are assessed against said goods and chattels, and add the same to the debts herein secured, and to be payable forthwitli, with lilie interest. From the moneys realized upon this mortgage in any manner by said Warner, trustee, he sliall pay and applj' tlie same in the following manner, to-wit: First. He shall pay all of the e.xpenses incurred by him in and al)out the execution of the trust herein created. Second. lie shall pay said taxes, insurance, and the expenses incur- red in and about the foreclosure of this mort- gage. Third. He shall pay himself a reason- able compensation for his services in executing the trusts herein created. Fourth. With the residue and remainder he shall fii-st pay in full the following of the claims and demands here- inbefore mentioned, if sufficient there shall be; if not, to prorate the same among them, viz., the said claims of the German American Bank, Wurzberger, Freund Bros.. C. E. Bresler, Schloss Brcs. & Co., S. S. Simon & Co.. Jacob Brown & Co., L. Krug, Goldsmith Bros., Mrs. A. Linx, Heniy Tittlebaum. IMax Wertheimer, Albert Fiusterwald, the Kalamazoo Overall Company, M. Rosenberg & Co.. Isaac Wert- heimer. and Joseph Wertheimer. guardian, and :Meier & Schul^necht. and Morris Wertheimer. Fifth. And, after the payment in full of said claims, he shall pay. apply, and prorate the residue among the remainder of the parties hereinbefore first mentioned in proportion to the amount of their respective claims; the suiT-lns, if any, to be returned to said first party." This trust was accepted in writing by Warner on the same day. Upon the trial in the cu'cuit, the comt, under the testimony introduced, directed a verdict for plaintiff, and left it for the juiy to determine the value of the goods seized by the defendant, and the defendant Ijrings eiTor. Considerable testimony was introduced upon the trial which the defendant's attorney claims had a tendency to prove that the mortgage was fi-audulent in fact as a conveyance made with intent to delay and defraud creditors. He also claims that it was fi'aud in law, as being an assignment at common law. and was void un- der the statute (1 How. Ann. St. § ST39), Avhich enacts: "All assignments, commonly called 'common-law assignments,' for the benefit of creditors, shall be void, unless the same shall be without preferences as between such credit- ors, and shall be of all the property of the as- signor not exempt fi-om execution." The first question is whether the instrument is void, as contravenixig the statute aliove re- feiTed to. The first objection to the instrament, upon which some reliance seems to be placed. is that the instrament is made to AA'anier, who was not a creditor, in titist for the creditor's named; but this does not tend in the remotest degree to give the instrument the character of a common-law assignment. The instrument must be read as a whole, and the intent gath- ered from its entire contents. By naming him as trustee, the conveyance did not vest in him the absolute title to the propei-ty, and place it beyond the reach of creditors. If valid, the mortgagor and subsequent lieuholders had a right of redemptirn; not so, if it was a com- mon-law assigmuinit. This question ought to- be considered as settled by the repeated deci- sions of tliis court. It first arose in Eagg v. Jerome, 7 Mich. 14.j. There, as here, a moi-t- gage was executed to Robert P. Toms and George Jerome, to act as tnistees for the cred- itors named in the mortgage. It was daimetl on the ijart of the unsecured creditors that this conveyance was in its nature and trae effect an assignment in trast by an insah'ent debtor of all his propertj- for the benefit of his cred- itors, and sliould be governed by rales applica- ble thereto: (1) That it was a conveyance by an insolvent debtor, conscious of his utter in- solvency; (2) that it was of all his propertj^; (3) it was in trust for the btniefit of creditors- other than the trustees, and to secm-e the pay- ment of the debts of such other creditors; (4> it involved a resulting tiiist to the giantor. Mr. Justice Manning, in delivering the opinion' of the court, said: "The mortgage is an ordi- nary chattel mortgage with two exceptions. It is given to the defendants in eiTor instead of the creditors of Bayless who are mentioned, with the amount Bayless was owing each one of them, in tlie recital: and it contains a pro- vision that the defendants in error shaU not be liable for anything except their own per- sonal fault and neglect. These were matters proper for the jury to take into consideration, with the other evidence in the case, but Ave see nothing in them rendering the mortgage fraud- ulent." In Adams v. Niemann, 46 Mich. 136, 8 N. W. 719, the mortgage was made to Nie- mann and Emil Jochen jointly, but the debts- intended to be secured were not joint, but sev- eral. Niemann had t«o claims, one for a per- sonal debt due to himself, originally, and one covering liabilities which he had undertaken for Ernest Jochen to other creditors. Emil Jochen also had a personal cla^m. and it was insisted that a joint mortgage could not l)e made to cover separate debts. Mr. Justice Campbell, in delivering the opinion of the court, said: '"We do not tliink there is any legal objection to sucli a mortgage. We have ah-eady held, at this tenn, that a policy of insm'ance may be taken jointly to seciu'e properly owned in severalty. Castner v. Insurance Co., 46 Mich. 15. 8 N. AV. .554. It has never been necessary that the mortgage should be given directly to the beneficiaries. The security is always made in trust to secure obligations, ami the trust and the beneficial interest need not be in the same hands. A mortgage to a third iierson wouki be as valid as a mort gage to a creditor. The choice of a mort- gagee is a matter of convenience, and there can be no wrong, and there may be some advantage, in giving to all of the secured creditors a control over the security* in which aU are ratably interested, and it would effectually prevent any dispmes as to priority." The ques- tion came before the court again in Walker v. White, 60 Mich. 427, 27 N. W. 5.54. In thaft 272 CONVEYANCE AND ASSIGNMENT FOK BENEFIT OF CREDITORS. case a inortsajie was executed by a ineinl>jr of a linn in the firm name, to Wallver, as trus- tee for certain creditors tlierein uamed. includ- iu.i,' also tlie claim of Henry E. Porter, at $900. It was claimed in this case that tlie mortgage really amounted to an assignmtnt with prefer- ences. Mr. Justice Morse, in delivering the opiniun of the court, said: "The mortgage was so dra^^■n as to s])ecify tlie amount of Indebted- ness to each creditor specifically, and the plain- tiff was by its terms made trustee for the col- lection and payment of the amount owing to each. There is no legal objection to such a mortgage, (Adams v. Niemann, 4G Mich. 137, 8 N. W. 719,) and we think each mortgagee <.'0uld enforce his own claim under the mort- gage, his separate debt being clearly stated, (Ilerm. Chat. Mnrtg. 357; Burnett v. Pratt, 22 Pick. .">.5G; Gilsor^ v. Gilson, 2 Allen, 11.5.)" The validity of a mo tgage securing several sep- arate creditors in one instrument was again af- firmed in Lyon v. Ballentine, G3 Mich. 99, 29 N. W. 837. If in tliis case there had been succissive mortgages running to the creditors, and thereby securing a preference in favor of these same creditors, no one would contend that all together ihey would constitute a gen- eral assignment. The effect of the instrument in this case is no different. It was said in Walker v. White that each creditor could en- force the mortgage for his own benefit, to tha same extent as if he had a separate mortgage. Two features are relied upon as taking this instrument out of the category of chat- tel mortgages, and relegating it to that of oommon-law assignments. One is that Avliich I have just noticed, the mortgage be- ing made to a trustee; and tlie other that it includes all the pi'operty of the debtor. Expressions have crept into some decisions to the effect that if the property is con- veyed in trust the instrument is thereby changed from a chattel inortgage to an as- signment. But such is not the law, unless the conveyance is absolute, and places tlie title of the property in the trustee. Every chattel mortgage contains a trust to a cer- tain extent. It necessarily creates a trust in the mortgagee as to the surplus, but this does not invalidate the mortgage. Jones. Mortg. § 3.53. Even an assignment by a debtor to his creditor of personal property, upon trust to sell and paj^ his debt, with reservation to himself of the surplus, if any there be, is held to be in effect a mortgage. Jones, Mortg. § 352, and cases cited in note 2. If the mortgage is to a trustee for the benefit of creditors, as was held in Adams V. Niemann, 411 Mich. 137, 8 N. W. 719, it is as valid as if made to the mortgagee. The question in such cases is this: Is the title of the property conveyed to the trustee so that it is beyond the reach of the creditors of the mortgagor? If their relation to the property is not changed by the interposition of a trustee between the creditoi'S and the property of their debtor, so that they can- not reach the surplus, or redeem ivom the mortgage, and become subrogated to the riglits of the mortgagee, tlien the instru- ment is valid as a chattel inortgage. If the position of the unsecured creditors is not changed; if their legal rights are tlie same as they woukl be if separate mortgages were executed directly to the creditors se- cured, — it would be nonsense to hold that the intervention of the name of a trustee, mei'ely for convenience, and representing the rights of such creditors as mortgagees, would destroy the validity of a mortgage, and change it to a common-law assignment. There is no baleful magic in the words, "in trust for the benefit of creditors." The law looks alone to the legal effect of the instru- ment, and, if the trustee is a mere agent to carry out and enforce the lien of the creditors for whom the security is given, then the instrument is a chattel mortgage, and nothing else. In this case, what is the trust which the trustee is to enforce for the benefit of cred- itors? It is simply to protect and enforce their lien upon the property. He can do so in no different manner than they could were the security given to them individuady and separately. He has no greater power than they would have. The power of sale is the same, and the contlitions are the same. The words, "in trust for said parties severally," might have been stricken out without detriment to the validity of the in- strument. Warner would then, as he does now, stand merely in a representative ca- pacity. The creditors assented to his so act- ing for them, and no fraud is perpetrated upon other creditors, and they have the same rights and remedies as they would have had if these secured creditors had been named mortgagees jointly, or had sep- arate mortgages. This is quite different from an assignment. There the title of the property would have been conveyed, and a trustee would have stood betweeen the u.u- secured creditors and the property of their delator. 2. The instrument in this case does not purport to convey all of the debtor's prop- erty. As a matter of fact, as appears from the record before us, it did not cover all her property. But. if it had. it would not have had the effect to invalidate the securi- ty. A debtor, although insolvent, may se- cure a creditor for the payment of a pre- existing debt by a mortgage upon all his l)roperty. although he may have numerous otlier creditors who are unsecured. This doctrine has been so often and so repeatedly held by this court that the citation of au- thorities in support of it would be idle. Some of them are referred to in Sheldon v. Maun. 85 Mich. 205, 48 N. W. 573. The mortgagor is not prevented from placing in the mortgage property of greater value than the amount of the debt. If every mortgage was to be declared a common-law assign- ment, and therefore void, be<-ause it con- CONVEYANCE AND ASSIGNMENT FOR BENEFIT OP CREDITORS. 273 taiiu'd all of the debtor's property to seciire some creditor or creditors over others, or because the value of the property exceeded the amount of the debts secured, I veutnre to say that there is not a mortgage in the state of ^Michigan that is not void. If the value of the property greatly exceeds the debt secured, that fact may be considered as having a bearing upon the validity of the mortgage, as having been given with intent to defeat, delay, and defraud creditors; but it ^Yould not change the character of the instrument to a common-law assignment, and be therefore void in law. Neither the fact of insolvency, nor the knowledge of the debtor's insolvency on the part of the mort- gagee, will defeat or impair a mortgage se- curity taken for an honest debt. The right of. a debtor to give security, and the right of a creditor to take security, for a bona fide debt, cannot be denied. In fact, insol- vency, or impaired credit, or inability to pay, are the only reasons for requiring or tak ing security for a pre-existing indebtedness. and the creditor is not required to assert or prove his ignorance of the financial situa- tion of the debtor at the time he takes the security. If the creditor asserted that he supposed that his debtor was solvent, we know, from the common experience of man- kind, that nine out of ten times the asser- tion would be a falsehood, and the law does not require any such miserable subterfuge to justify the exercise of a legal right. The difference between a chattel mortgage and a common-law assignment is that one is a conditional transfer of property, and the other is an absolute transfer. From one the debtor, the attaching or execution cred- itor, or a subsequent mortgagee has a right to redeem; from the other there is no right of redemption. In an assignment both the title and possession of the property is vest- ed in the assignee; in a chattel mortgage neither, until default and foreclosure, under the decision of Lucking v. Wesson, 25 Mich. -143, whatever may have been the effect of such a conveyance at common law. It has been supposed that Kendall v. Bishop, 76 Mich. (i34, 43 N. W. 04.j, lends support to the idea that a chattel mortgage is an assignment if its effect "is to put the entire assets, legal and equitable, into the hands of a trustee for sale and distribution." But Mr. Justice Campbell in that case laid down no such doctrine. He was speaking of an instrument which transferred the le- gal title absolutely to a trustee for sale and distribution. The effect of that decision ought not to be open to misunderstanding, or a misconstruction, if attention is paid to what Mr. Justice Campbell stated the trust contained in the instrument was. He did not make any objection upon the grouud that the instrument was made to Mr. Ken- dall in trust instead of to the creditors di- rectly. It is not to be supposed that he in- tended to overrule what he had said in Ad- V.\X ZILE SEL.CAS.SALES —18 ams V. Niemann, above quoted, upon that branch of the case. The trusts which he referred to were contained in the body of the instrument, and were plainly pointed out. Thus he says: "The trustee was em- powered, if he should think it for the inter- ests of the secured creditors, to continue the manufacturing business so as to get all ma- terials on hand ready for market, and buy new stock, goods, merchandise, and mate- rials, long enough to dispose of the proper- ty for the best advantage, and from' the proceeds he was, first, to pay the expenses of the trust and sale and disposition of the property; second, to pay all debts to em- ployes; third, to pay the other secured delirs in full or pro rata; fourth, to pay the sur- plus moneys to the company. * * * By this document the trustee is expressly em- powered to continue the business if he chooses, to go on and complete the manu- facture of the stock, and to buy further ma- terial and goods to help on the profitable winding up of the business, and to dis- pose of everything as soon as reasonably practicable. And by this grant of powers it is evident that the company, having put everything in his hands, could not possibly do anything to pay debts or redeem the mortgage, while the intermingling of new and old business would deprive execution creditors of any means of getting a sale of the residue belonging to the mortgagor, if in fact there should be, as the law and the instrument both assume there might be,- one. In other words, Mr. Kendall not only took an interest by way of security for debts which by law any execution creditor would have a right to redeem, but he also took title to the surplus, with power to manage and' dispose; and a trust was cre- ated for the company which would not be subject to execution as a mere equity in the proceeds, and not an ownership in the prop- erty." It was for the reason that the instru- ment contained these trust powers, which operated as a transfer of the property, that Mr. Justice Campbell held the instrument not to be a chattel mortgage, but an assign- ment in effect. He noted and relied upon the distinction which I have stated between a chattel mortga?re and a common-law as- signment, and he placed no reliance what- ever upon the ground that the mortgage was made to Kendall in trust for the bene- fit of the creditors, instead of to the credit- ors themselves. And. having held that it was an assignment, he says: "An assign- ment of all one's assets to an assignee for the benefit of creditors is within all the definitions of a general assignment. It is the completeness of the transfer that gives it character." He dees not say that a chat- tel mortgage of all one's assets to a mort- gagee for the benefit of cei'tain creditors comes withm all the definitions of a general assignment. Indeed, he has said to the con- trary more than once. Rollins v. Van Baa- 271 CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CKEDITorvS. len, 50 Mich. (114. 23 N. W. 332; Root v. Potter. r.O Mich, noo, -lOT. 2(5 N. W. 082. In the Rollins Case the point wa.s directly raised by a bill in equity charging that the giving of a single mortgage to secure two creditors, and another to secure another, up- on all of the debtor's property, which was worth considerably less than the securities, was in effect an assignment of such proper- ty, and was void under the statute of 1879, above quoted. Upon the question thus squarely raised. Justice Campbell said, re- ferring to the statute: "It should be con- strued as it reads, as applying only to what purport to be common-law assignments. If proceedings not in that form are claimed to be fraudulent as to creditors, they must be reached in some other Avay. and shown to be against some other policy. The law does not avoid honest transfers or securities which are not general assignments." Root V. Potter was also a proceeding in equity wheie all the facts came before this court. In that case securities had been giv- en by way of chattel mortgages which were executed on the 12th of July. 1884. and hand- ed over to the mortgagees on the loth, and tiled on the 10th. late in the evening, and on the IGth the mortgagors executed a common- law assignment. These mortgages were at- tacked as being preferences, and also that they were given to hinder, delay, and de- fraud creditors. Under the latter claim. Judge Campbell said, referring to the statute against frauds: "Under these provisions of law, fraud was made a question of fact, and any creditor who obtained in good faith his security for an honest debt can hold it against any subsequent claim to attack it." He then said: "The question then arises whether the transactions were illegal, as amounting to unauthorized preferences under the assignment law; and it is a question which is supiiosed to be an entirely new one in this state. It is, however, upon such facts as appear to exist in the record before us. within well-settled and familiar princi- ples. There is nothing in the assignment law Avhich undertakes to avoid dealings previous to the assignment, whether near or remote in point of time, which Avere in no wa.v con- nected with it in the intention of the par- ties. Retroactive operation which Avould di- vest lawfully vested rights is not in har- mony with our laws. The statute only makes preferences void which are made by the assignment itself, and this, by the lar- gest possible construction, cannot go be- .vond such acts is are done in such a time and manner as to be parts of the same trans- action, and within the same disposition, whereby the debtor's entire estate is applied to the payment of all his debts. In other words, the preferences, to come Avithin the language and meaning of the statute, must be made in separate form to avoid the ettect ivhich the statute would operate, of annul- ling them if thej' were included in the as- signment itself. The assignment hnv shows no intent in the legislature to change the ex- isting statutes against frauds, except in the one particular of preferences; and it would be a veiy dangerous and unforttuiate nde, if it could be legally adopted, Avhich would an- nul the dealings of honest persons Avith those Avhom the.v do not suspect of fraudulent or tinhiAvful designs." In Burnham v. Haskins, 79 Mich. 3o, 44 N. W. 341. a bill Avas filed to declare a chattel mortgage executed contemporaneously Avith an assignment for the benefit of creditors A'Oid as an illegal preference. In that case, while holding under the testimony that the chattel mortgages Avere executed contempo- raneously Avith the assignment, and Avere part of the sane transaction, we expressly stated that AA'e adhered strictly to the rule laid doAvn in Root a*. Potter, and haA^e tini- formly upheld security taken by a creditor for a bona fide debt, under circumstances and testimoony that the creditor had no no- tice or knowledge that the debtor contem- plated the making of a general assignment, or Avhere the acts of making the assignment and giving the securit.v Avere done in such a time and manner as not to be parts of one and the same transaction. Sheldon v. Mann announces the correct doctrine, in these Avords: "The creditor has a right to secure and to collect his claim, even if he knoAA's that his debtor is insoh'ent. and that by getting his claim paid he de- prives other creditors of the opportunity to secure or collect their delits. At common laAA', a general assignment for the benefit of creditors could be made AA'ith preferences. Nor AA'as the debtor compelled to make an assignment. He could dispose of his prop- erty as he saAV fit in the payment of his debts, if it Avas all applied to such puri^ose; and. Avhether it AA'as all so applied or not. AvhateA'er portion of it was applied to the payment of a bona fide debt could not be touched or disturbed by other creditors. The common laAv put a premium upon the vigi- lance of the creditor, and there are not want- ing those Avho doubt to-day the equity as AA-ell as the Avisdom of bankuiptcy laws. And. under the law of this state, the debtor has the right to prefer one creditor over an- other by paying his debt in full or in part. This right is not affected by the debtor's in solA^eney. nor by the creditor's knowledge of such insolvency, nor b.A' the fact that others may lose the entire amount of their delits credited upon the faith of the debtor's own- ership of the property. As long as no as- signment is made for the benefit of creditors, or the transaction does not amount in laAv to such an assignment, the delitor is at liberty to pay or secure any of his creditors at the expense of the others. It Avill be found that our statutes do not prohibit preferences un- less an assignment commonly called 'com- mon-law assignment' is made. Hoaa*. Ann. St. § S739; Rollins v. Van Baalen, 50 Mich. CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. 275 Mich., and page "7.5. 48 N. W., and also what was said as to the knowledge of the creditor of the debtor's insolvenc.v. upon page 273. So Mich., and page o~~>. 48 N. W.. above quoted. The oiiiniou also states that no assignment was intended to be made. That is a fact that must appear outside of the instrument. It could not be gathered from the language of the instruments, for in form and effect they were chattel mortgages. Immediatel.v fol- lowing, it is stated that the mortgagees "ob- tained their security honestly, aud in the usual methods of business, without any thought of the assignment law. But wheth- er they did so or not, whatever their mo- tives or intent maj' have been, so long as the securities covered no more than the amount of their just and houest claims against Manu they have a right to the full benefit of sucli securities, unless the giving of these three mortgages upon the same day to separate parties can be declared, in law and in fact, to be a common-law assignment for the bene- fit of all his creditors. It plainly cannot be so declaimed or construed." The case here under consideration falls di- rectly within the principles laid down ii) Sheldon v. Mann, and should be ruled by it. The only difference is one that does not affect its character as a chattel mortgage, viz., in- stead of separate mortgages to each creditor, it names a third per.son as trustee; and this is ixniuissible, as above stated, under the de- cisions of this state upon the subject, and was expressly held not to be fraudulent per se in Bagg v. .lerouie, 7 Mich. 14.j. There ought to be and is some underlying principle from which to determine whether an instru- ment is a chattel mortgage or a common- law assignment. If tl>e instrument is a con- veyance upon condition, given as a security for a pre-existing debt, and contains no trust in the body of the instrument whereby the property is withdrawn from the right of the mortgagor or others to redeem, who ordinari- ly have such rights in cases of chattel mort- gages, or whereby the title of the property is placed beyond the reach of execution as to any surplus, then the instrument is not an assignment, but a chattel mortgage. But if it conve.vs the absolute title to a trustee for the benefit of creditors, and thus places the property and surplus beyond the reach of creditors, it is a common-law assignment. Kendall v. Bishop was determined upon th's principle, and so was Root v. Potter a'nd Sheldon v. Mann. The question as to whether the instrument is a chattel mortgage or an assignment for the benefit of creditors must in all cases be determined as a question of law upon the contents of such instrument, and not upon any testimony which appears outside of such instrument; aud, unless the conveyance up- on its face purports to conve.v all of the debt- or's property to secui'e some creditors in preference to others by an absolute title upon its face, the court is not at liberty to de- clare it a common-law assignment; and if facts appear outside of the instrument itsi-lf Avhich tend to prove that tlie execution of tlie instrument was made with the iuteution of having the effect of a common-law assign- ment, or with the intention of evading the statute, then it becomes a question of fact for the jurv to decide, and not for the court. Bagg V. .Terome. 7 ^Nlich. 14.1; Butler v. Did- dy (Iowa) 49 N. W. 99.">. lu the latter case it was held that "the statute providing that 276 CUXVEYANCE AND ASSIGX.MKNT FOR BENEFIT OF CREDITORS. no general assignment for the benefit of cred- itors shall be valid unless made for tJie bene- fit of all the creditors applies only to a gen- eral assignment, and does not applj' to other conveyances The execution of mortgages by an Insolvent debtor, with the bona tide in- tention of securing particular creditors, does not operate as a general assignment for the benefit of creditors." And upon this propo- sition the court cites a number of Iowa cases. The supreme court of Iowa, like our court, has uniformly held that where mortgages were given in good faith, with the intention of securing creditois to whom they were exe- cuted, a different intention than what the jiarties had could not be given them by the court. And in the case last cited it was further said: "Where an insolvent executes n mortgage or mortgages, not for the purpose and with the intent of securing a pre-exist- ing indebtedness, but intending the same for an assignment of all his property, divesting himself thereby of the title to all his proper- ty, and where the same is made in view of insolvency, such conveyance shall be treated as an assign^nent; but where an assignment is not intended by the parties to the transac- tion, and the intention is only to secure a pre-existing indebtedness, in such case the instrument is a mortgage, and should be treated as such, even though all the property of the debtor is taken, and he is left insol- vent, and there are other creditors who have not been secured. ' This court has more than once declaretl that an insolvent debtor could not be compelled to execute a common-law assignment; but if this court can declare an instrument which upon its face is a chattel mortgage, creating only a lien upon the prop- erty, to be a common-law assignment, why is the debtor not compelled by the decision of this court into making a common-law assign- ment, and that, too, against his wish and in- tention? The statute of 1879 does not attempt to compass the object and purpose of the insol- vent law. It does not prohbit any prefer- ence to creditors, unless the preference is made in a conunon-law assignment. It con- tains no provisions for the discharge of a debtor from all liability in case he transfers and delivers over to his assignee for the ben- efit of all his creditors all of his property. If the debtor makes a conmion-law assignment, he is still liable for any balance that may be due to his creditors after his assets are ap- plied by his assignee to the pa.vment of his debts pro rata. The creditors are not com- pelled to accept the terms proffered in the assignment; they may stand aloof from the assgnment, and may rely upon the liability i of their debtor to pay. There is no provision for recovering preferences made on the eve of assignment. It is not either a bankrupt or insolvent law. It is of nr) practical use. and its only mission seems to be to beget litiga- tion, and atTord an opportunity for a creditor to obtain a preference over other creditors, by asserting and occupying the inconsistent position of asserting that the chattel mort- gage given to secure a bona fide debt is a common-law assignment, and therefore ought to be construed as such, and void as to cred- itors, while he attaches or levies execution, and thus obtains securities and preferences fully as unlawful and against the policy of the law. In Crow v. Beardsley. 68 Mo. 435, under a similar statute, the court held that, if the instranient was attacked upon the ground that it is in effect a common-law as- signment, the creditor had no occasion to re- sort to an attachment, because he would have had equal rights under the deed with those named therein, and could by a proper pro- ceeding have compelled the trustee to have discharged his duties under the assignment law. This court has not been as consistent, because of its eft'orts to harmonize the stat- ute and protect the rights of creditors. We have connnented ttpon the manifest imperfec- tions of the statute in failing to provide suit- able provisions for carrying out its design, and we have held that, under certain circum- stances, the creditor might proceed by at- tachment. Coots v. Radford, 47 Mich. .37, 10 N. W. G9; Beard v. Clippert. 03 Mich. 719, 30 N. W. 323; Wolf v. Slosson, 83 Mich. 543, 47 N. W. 341. The case of Crow v. Beardsley clearly dis- tinguishes between cases where the instru- ment is given as a security for a bona fide pre-existing debt and where the property is absolutely appropriated to the payment of the debts. And the court held thdt the in- strument, although in form of a trust-deed, yet, from the fact that it contained a clause of defeasance, was a mortgage, and could not be construed as an assignment, and that the statute could not be extended to include constructive assignments. The legislature of Illinois adoptetl a statute, of the provisions of which ours is a substantial copy, into the statutes of that state in 1877. Numerous de- cisions of their supreme court upon the intent and effect of the statute have been made. In Preston v. Spaulding, 12U 111. 208, 10 N. E. 903, it was held that, after the debtors had made up their minds to make an assignment of their property for the benefit of their creditors, all conveyances, transfers, and other dispositions of their property and as- sets, made in view of their intended general assignment, whereby any preference was giv- en, would, in a court of equity, be declared void, and be set aside, the same as though in- corporated in the deed of assignment itself. In this case preferential payments, convey- ances, and confessions of judgment to rela- tives and favorite creditors were made in view of an intended assignment, which al- most inunediately followed. And it was held that such preferences were in fraud of the statute, and that the property so transfer- red passed under the deed of assignment to the assignee in trust for the benefit of all the creditors. But there is nothing in that COXVICYANCE AND ASSIGNMENT FOR RKNEFIT OF CREDITORS. 277 decision wliidi supports the ilnctriiie of con- structive assif^nnu'Uts. or tliat the series of preferences, transfers, and conveyances made by tlie insolvent in view of an early assijrn- ment would, in and of themselves, consti.ute an assignment. In Weber v. Mick, lol 111. .120, 2.3 N. E. j. 48 N. W. .")7;i. See. also. Warner v. Littlefield (Mich.) ."iO N. W. 721. and Fitzjrerald v. McCaudlish, Id. SGO. The facts are substantially as follows: Prior to 1887. Samuel W. PJir- sons and George W. Parsons were in part- nership in Ypsilanti. running a planing mill. In that year Samuel W. bought out George W.. and assumed the indebtedness of tlie firm. Soon after Samuel W. made an oral agreement with his wife to enter into partnership, under the name of S. W. Par- sons & Co. The wife put no money or prop- erty into the business, and there was no agreement how much she should contribute, but it was understood that she was to be an e(iual partner. Quite a large amount of the indebtedness of the old copartnership be- tween Samuel W. and George W. Parsons was to the father of Mrs. S. W. Parsons, and it was talked that, when her father died, the part coming to her. as heir at law, would be in the business. When the father died, part of this indebtedness was paid to the other heirs by giving the notes of S. W. Parsons & Co. November 20. 1889, Parsons and his wife, doing business under the firm name of S. W. Parsons & Co., executed a chattel mortgage to secure certain creditors upon a portion of the copartnersliip property, and tiled the same. This was done without the knowledge of the creditors sectired, but they were immediately notified of it by Mr. Parsons, and in a few days accepted the security. Upon the execution of this mort- gage. Parsons i-equested one Edwin C. War- ner to take possession of the property, and act as trustee for the creditors named in this mortgage, which he did. When the creditors first came to Ypsilanti they maae arrangements with Warner to hold the pos- session for them for a few days, as their agent, which he did. The creditors met sub- sequently, and appointed the plaintiff as their agent to foreclose the mortgage, which he proceeded to do. After this first raort gage was made. Parsons found that ne nad unintentionally left out some creditors that he meant to have named in the first mon- gage. and he and his wife executed another u'.ortgage. November 21. 1880, covering the same property, securing the parties named in the first mortgage, and also the others that he had inadvertently omitted from it. November 20, 1880. they executed another mortgage to McCullougli Bros, on patterns and tlasks in their poss(>ssion; and also a mortgage covering stock, book accounts, ma- chinery, and fixtures to secure a number of creditors whose nanus appear in .said mort- gage. I'arsons asked the creditors named in tlie first mortgage to share pro rata with those additionally named in the second mort- gage, but they refused to do so. The lum- ber and shingles involved in this suit were covered by the first mortgage. While it was in the possession of Edwin C. Warner, but after he had been made the agent of the creditors named in the first mortgage, the defendant, as sheriR: of Washtenaw county, levied upon it l)y Airtue of a writ of attacli- ment in favor of Sawyer, Goodman & Co.. and against S. W. I'arsons & (,'o., and sold it on execution upon judgment sul>se(iiiently taken in such attachment suit. The persons named as l)eneficiaries in this first mortgage, before suit, assigned their cause of action against the sheriff to the plaintiff, and au- thorized him to prosecute the same in his own name. There was no evidence tending to show any fraud in the making of this first mortgage, or any of the others, nor any testimony tending to show that any of the debts thus secured were not bona fide obli- gations. The giving of these mortgages did not constitute a fraudulent assignment, bat was a legitimate transaction, for reasons stated in the cases above cited. It is claim- ed that individual debts of Samuel W. Par- sons were included in this mortgage upon the pai'tnership property, but the proofs show that these debts were incurred l)y Par- sons for the benefit of the copartnership, and were really partnership obligations, and had been assumed as such by the firm. It is further contended that, as the plain- tiff did not allege in his declaration the as- signments of the mortgagees' rights of action to him. they could not be introduced in evi- dence; that he could not recover under his declaration, which was in the usual form In trover, under the proofs in the case; citing the following cases: Draper v. Fletcher, 26 Mich. 154: Rose v. .Jackson. 40 Mich. 30: Altman v. Fowler, 70 Mich. .57. 37 N. W. 708: Blackwood v. Brown. 32 Mich. 104; Cilley V. Van Patten. .58 Mich. 404. 25 N. W. 320; Dayton v. Fargo. 45 Mich. 153. 7 N. W. 7.^8. These cases do not apply. In replevin and trover there is an authorized form of decla- ration for each action which is ordinarily used, and which has been held sufficient in each respectively. These declarations do ?'.:;t undertake to notify defendant of the nature of the plaintiff's title, or what are the evi- dences of it. These are matters of evidence merely. Harvey v. Mc Adams, 32 Mich. 472: Myres v. Yaple. 60 :Mich. .330, 27 N. W. 536; Williams v. Raper, 67 Mich. 427. 34 N. W. 800; Hutchinson v. Whitmore (Mich.) 51 N. W. 4.51. The judgment of the circuit court is affirmed, with costs. The other justices concurred. CONVEYAN'CE AND ASSIGNMENT FOIl BENEFIT OF CREDITORS. 279 ARMSTRONG et al. v. COOK. (54 N W. 873. 9.-5 Mich. 2.57.) tNupreme Court of Michifrnn. Ajiril 10. 1S0.3. Certiorari to firtuit ccurt. Siuiilac county; AVatson Beach, .Tudgc. Attachment by Silas Arm-stron?: and .A.1- bert A. Graves ag^iinst Henrj- A. Cook. De- fendant moved before a court commissioner to dissolve the attachment, which was jL'ranted, and plaintiffs appealed to the cir- cuit com-t. From an order of the circuit ciiurt reversing the order of the commis- .sicner, defendant brings certiorari. lie- versed. Dickinson, Thurber & Stevenson and J. B. Houck, for appellant. Avery Bros. & Walsh, (Farley & Aitkin, of cotmsel.) for appellees. GRANT, J. The defendant was a country merchant doing btLsiness in tte village of CrosTvell, in Sanilac county. Plaintiffs were merchants in Port Huron, and had sold goods to the defendant to the amount of §"243, only .?77 of which were due at the time this suit was instituted. November 12, 1S90, plaintiffs sued out a writ of attachment. and caused it to be levied upon defendant's entire stock, wliich was then worth about $4,000. They gave a bond in attachment for only .$2(K3. Defendant moved before a circuit court commissioner for a dissolution of the attachment, which was gninted. Plain- tiffs appealed from the decision of the com- missioner to the circuit court, which re- versed the action of the commissioner, and held there was sufficient ground for issuing the attachment. Plaintiff Graves made the atfidavit for tte attachment, in which the sole ground alleged to justify the issuance of the writ was that he had good reason to believe that defendant was about to a.s- sign and dispose of his property with in- tent to defraud his creditoi-s. Graves went to Croswell November 11th. to see Mr. Cook. Mr. Cook was embarrassed, and had not then the money with wliich to pay his in- debtedness. He had gone to Detroit to see hLs creditors there with a view to arrange an extension of time. His principal creditors were in Detroit. Mr. Cook had a clerk and a boy in the store. The clerk was then sick, and when Mr. Cook went to Detroit the night before, he reqtiested Mr. Houck. who kept his books, to look after the business in his absence. Mr. Graves testified that the sole reason he had for believing that Cook was about to dispose of his property Avith intent to defraud his creditors, was that he learned that Cook had given a mort- gage to his wife on September 19th previotis for $1..54- of Tie second part, shoidd be as binding in • all respects upon the as.<:igns of said busi- ness of the first party, or any of them, as if made by them or him In perse n." is no badge of fraud. This clause only states the log-il effect of the mortgage. Without it ihe security would have continued imtil dis- charged, and would have bound the assigns of the mortgagor. The power to sell at pubhc or private sale, and the power to remove the goods to other places for sale in case of default, are not imusual provi- sions In chattel mortgages. It was imdoubt- edly understood and contemplated that the stock might be sold to better advantage in some other place than in the smaU village of Croswell. Judgment reversed, and the attachment proceeding quashed. The other justices conctirred. 2b0 CONVEYANCE AND ASSIGNMENT I'OIt BENEFIT OF CREDITOES. NUGENT V. NUGENT et al. Cn N. W. TOG, 70 Mich. 52.) Supremo Court of Michigan. April 27, ISSS. Appeal Iroiu circuit court, Kent county, in chiincery; K. M. Montgomery, Judge. Bill by James Nugent, as judgment creditor of defendant Daniel Nugent, to set aside a conveyance by Daniel to defendant Emanuel Nugent as in fraud of creditors. Complainant had judgment, and defendant Emanuel ap- peals. Taggart. Wolcott & Ganson. for appellant. John C. Quinsey and James Nugent, for ap- pellees. LONG, J. The facts in this case are very well stated by counsel for defendant, and are as follows: "The bill of complaint in this case is filed by James Nugent as judgment creditor of Daniel Nugent, one of the defend- ants, to set aside a deed of lands made by Daniel to Emanuel, upon the alleged ground that said conveyance is fraudulent and void as to the creditors of the said Daniel. As we understand it, the case turns upon questions of law, and nearly all of the more material facts are either conceded or established by clear admissions of the partj' against whom they weigh. Outlined briefly, they are as fol- lows: In the spring of 1871) the defendant Daniel Nugent was a single man, 34 years old, living with his aged and widowed moth- er, and a brother and sister, (both invalids and unmarried,) upon the old family homestead, an 80-acre farm in the township of Cannon, in Kent county. Since some time in April, 1877, Daniel had held the legal title to this farm, subject (1) to a lease of the same to Mary Nugent, his mother, for the term of her life; and (2) a lease of the south half of the same to his brother John, which Avas to take effect at the death of his mother, and contin- ue for the life of the said John Nugent; and (3) subject, further, to a mortgage for $1,000, given in 1877 for the benefit of his sister Ce- cilia, upon which there was about two years of interest accrued. He also owned 120 acres adjoining the homestead, which was incum- iK'red with mortgage to James Nugent, the complainant, for $3,200 and accrued interest. Daniel had been working the farm, and taking care of the family, imder some arrangement with his mother, who held the life-lease. The defendant Emanuel Nugent is an elder brother, who was living upon his own farm in the adjoining township of Grattan. about four miles from the old homestead. Daniel had become dissatisfied with his surroundings, and April 30, 1879, he left, stating that he was going to Colorado and the mining country of the west. Before his departure he deeded all his lands to Emanuel, and also gave him a l)ill of sale of his farming tools, stoclv, and other personal property, amounting to .$1,000 or $1,200 in value. Emanuel expressly as- Kiuned the mortgage for $3,200. and look the 80-acre farm subject to the $1,000 mortgage and the two life-leases, and he also assumed certain debts of Daniel, amounting to about $;>00, and including, so far as appears, all of Daniel's unsecured debts, except about $800 or $1,000 of notes in the hands of his mother and brothers. After his departure. Daniel wrote quite often to ditTerent members of the- family, up to August or the 1st of Septem- ber, 1879, at which date two letters, written at Leadville, Col., were received. Nothing has been heard from or of him since then, except vague rumors, though a good deal of ettort has been made, by advertising in the newspa- l»rs and other means, to obtain information as to his fate. When Daniel went away, about the 30th of April, 1879, complaiimnt was a law student at Ann Arbor. About the 1st of June he came to the homestead in Grattan, and stayed some weeks, leaving July 6 or 7, 1879, after a somewhat stormy talk with p]manuel, in which he was charged by Emanuel with stirring up trouble, which he denied, and retorted with charges of like na- ture against Emanuel. In the spring of 1880, the complainant, with full knowledge of the whole matter, settled with defendant Eman- uel, and received a deed of the 120 acres cov- ered by his mortgage from Daniel, in full satisfaction of that mortgage and notes, then amounting to $3,400, or upward. He has since sold and conveyed the gi-eater portion of these lands to third parties, who have conveyed to still others. In September, 1880, the said Maiy Nugent, the mother of the parties to this suit» together with her two sons, Joseph F. and John, and her daughter, Cecilia, filed their bill of compliiint by the said James Nugent, their solicitor, in the circuit court for the coun- ty of Kent, in chancery, against said Eman- uel Nugent as defendant; alleging, among other things, that the conveyance of said prop- erty, real and personal, from Daniel, was made and received in tmst for the payment of the debts and obligations of said DanieU and more especially the debts owing to the complainants in said suit. This bill was held bad on denmrrer, and was dismissed by the complainants on their own motion, rather than to amend. In August, 1882, complain- ant, James Nugent, acting in the name and on behalf of Mary Nugent, his mother, began an attachment suit against Daniel Nugent by fil- ing his affidavit in the circuit court for lue count^^ of Kent, which finally resulted in the judgment and le\y which are set out in the bill of complaint in this case. The original bill was filed by Mary Nugent as complainant,, but James Nugent, who is the complainant in the final bill of revivor and supplement, came into the case under an assignment of said judgment, and the notes on which it is based. After hearing on pleadings and proofs, the circuit court made a decree substantially as prayed in the bill, except that it reduced the amount of complainant's lien to $1,101.74, From this decree defendant Emanuel Nugent appealed to this court." There are several distinct grounds of objec- CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. 281 tion to tbe decree of the circuit court. Tlie judgmeut wLiicli this bill is filed to enforce was recovered in a suit began in August, 1S82, by attachment against a non-resident de- fendant, who was not served with process, and who never appeared in any mann(!'r in the cause. It is claimed that the proceedings in this attachment suit did not comply with the requirements of the law. The atlidavit for attachment was made and tiled August 4, 1882, and the writ issued the same day, re- turnable September 5, 1882. The statutoiy notlce of attachment was published for six weeks beginning September 28, 1882, and proof of publication was filed December 28, 1882. The declaration was filed September 2, 1882. which was prior to the retm-n-day of the writ, and three months and twenty-six days before the filing of the affidavit of publi- cation of notice of attachment. The declara- tion was prematurely tiled. Section 8005. How. Ann. St.. provides: "If a copy of the attachment shall not have Iteen served upon any of the defendants, and none of them shall appear in the suit, the plaintiff, on fil- ing an affidavit of the publication of the no- tice hereinbefore required, f .r six successive weeks, may file his declaration in the suit, and proceed therein as if a copy of such at- tachment had been served upon the defend- ants." In suits by attachment, where no per- sonal service of the writ has been obtained, and tlie defendant has in no manner appeared in the cause, a strict compliance with statu- tory requirements is essential to the vahdity of th'? judgment. In Woolkins v. Haid, 49 Mich. 209. 13 N. W. .">0S, the declaration was filed four days prior to the filing affidavit of publication of notice of attachment, and this court held the judgment void. In Steere v. Vanderberg (Mich.) 35 N. W. 110, the writ of attachment was issued September 5, 1884, returnable September 12, 1884. Declaration was filed November 21, 1884, and affidavit of publication of notice of attachment was fil- ed November 29, 1884, the affidavit being filed eight days after the filing declaration, and this court held the declaration prematurely filed, and the judgment void. In the above case, Mr. Justice Champlin said: "It is a settled rule of law that all exceptional methods of ob- taining jurisdiction over persons not found within the state mu.st be confined to the cases and exercised in the way precisely indicated by the statute; and it may also be regarded as settled law that a failure to comply with statutory rei)cliant. E. R. Annnhir, for appellees. LONU, J. There is no controversy over tlie facts in this case. As they appeared upon the trial in the court below, they arc sul)stantially as follows: On the '22(\ of Septeiuher. ISnS. Messrs. ("lark. Baker & Co., who were v.holesr;le grocers at Jack- son, in this state, had a claim against one Frank Potts, of Decatur, and to recover and collect it commenced a suit by attach- ment in the circuit court for Van Buren county. The writ of attachment was de- livei'ed to James F. Bullard, who was then the under-sheriff of the county of Van Buren. On the 22(\ day of .September, Bul- lard attached a tiuantity of in-operty, con- sisting largely of teas, as the property of Frank Potts; the same being then in the custody of Trowbridge & Roberts, who claimed to liave purchased it of Potts. It was claimed that Potts had fraudulently dis]Josed of the property to Trowbridge & Ivoberts, to cheat and defraud his cred- itors. The oHIcer was unableto find Potts within hiscounty, and could not make per- sonal service of the attachment upon him. The writ of attachment wasin all respects properly returned; and on the PStli day of Oct(jber. INSS. a notice was published of the issuing of the attachment pursuant to law. On the 2Sth of November, proof of publication of said notice of attachment was made. On the same day an affidavit was filed of the non-appearance of the de- fendant Potts, and the plaintiffs also filed their declaration. On 5s'ovember 2Sth the default of Potts for want of appearance was entered. On November ."JUth such de- fault was made absolute. On December 12, 1888, a judgment was rendered in favor of Clark, Baker & Co., and against Potts, for $206 and costs. On the 13th day of De- cember, IsSS, execution upon such judg- ment was issued and delivered to Bullard. who on the 17th day of December levied upon the same property which he had at- tached, and, after giving a proper and suf- ficient notice, sold the property to Clark, Baker & Co.. the plaintiffs in tjie attach- uient suit, on the "ith day of March, 188'J. v^n .March .j, 1880, Theodore Trowbridge and Lewis D. Roberts commenced a suit in the circuit court for Van Buren county against James F. Bullard by summons, and on May 1, 1889, tiled a declaration as against him. in trover, for the property in question. The defendant appeared on the l.jth of May, and filed a plea of the general issue, and gave notice of the justification under the attachment proceedings, and al- so under the levy of said e.xecution. At the trial, Theodore Trowbi'idge was sworn in behalf of the plaintiffs, andgaveevidence tending to show the purchase of the prop- erty by himself and his co-plaintiff, Rob- erts, of the defendant Potts. Cpon cro.ss- oxamination.it wassoughtin behalf of the ilefendaiit to show that this sale was fraudulent, and made with intent to cheat and defraud the creditors of Potts. The plaintiffs' attorneys objected to this, and the court ruled that the testimony was in- ailmissible, ami not propercross-examina- tion, as the case stood under the state- ment of counsel. The plaintiffs also gave evidence tending to show the value of the property, and rested their case. Upon the i)art of the defendant, the proceedings in attachment were offered in evidence, and some testimr)ny was given controvert- ing that introduced upon the part of the ])laiiitiffs as to the value of the property. The plaintifls then introduced in evidence the balance of the proceedings in the at- tachment suit, infduding the judgment, ex- ecution, and the levy and sale thereunder. It will be seen that the default of the de- fendant was entered with'n three days after the filing of the plaintiffs' declaration therein, and that the judgment was en- tered wMthin twelve days of that time, it is conceded by defendant's counsel that the judgment, and the proceedings thereunder to sell the property, are void. The defend- ant, however, claimed the right to justify underthe attachment ; insisting that, if the judgment was void, the attachment was still valid in his hands, and an ample and sufficient justification to him, provided it could be shown that the sale to the plain- tiffs was fraudulent, and that the prop- erty attached was liable to attachment by the creditors of Potts. The court held, however, that the defendant could not justify thereunder, and directed the jury that, if they found the property had been sold by Potts to Trowbridge & Roberts, they (the plaintiffs in the acticui) would lie entitled to a verdict for the value. Veidict and judgment was given for plaintiffs for the value of the property. Defendant brings error. The only question raised is whether, un- der the circumstances, the defendant was entitled to attack the transfer of the goods to the plaintiffs as fraudulent, though the judgment upon which the execution issued was void. It is claimed by counsel for the defendant that, though the judgment, and execution, levy, and sale thereunder, were void, yet that the attachment remained unimj>aired, and the othcei" had the right thereunder to show that the alleged pur- chase by Trowbridge & Roberts was fraudulent. The only evidence which de- fendant offered which was excluded by the court was his proposal to show that the purchase by plaintiffs from Potts was fraudulent as to his creditors; and the title of plaintiffs to the goods in contro- versy was not attempted to be impeached upon any oth'T ground. The claim, there- fore, was that, inasmuch as the defendant had on September 22, 1888, seized and taken these goods from the possession of Trowi)ridge & Roberts under a valid writ of attachment issued against Mr. Potts, he could attack the title of Trowbridge & Roberts as fraudulent against the creditors of Potts, though he had not followed up the writ of attachment to judgment. It is further insisted that the case must be governed by its status at the time the plaintiffs' suit against the defend- ant was commenced, and that at that CCNVEYAXrE AXD ASSIGNMENT FOR BENEFIT OF CREDITORS. 283 ;iiiio no unreasonable time had elapsed after the period at which a valid judgment niight have been entered; that, when prcjpert.y is seized under attacliment, it is in the custody of the law, and tlie officer Is bound to produce it to s;itisfy aTiy judj;-- nient wliicii may be obtained in the pro- ceedinji, and theofficermay justify underit. and tliereforeit is a protection to him. Hut tiu' difficulty of this position is tliat the officer is not ojdy seckiiiji: to justify his ac- tion in holdiufi,- the proi)erty this len;.;th of time, but is also endeavorin<;- to assail the title of others. He lias not seized {i,(iods in the hands of I'otls, the defendant in the writ, and confessedly owned by him ; but he has taken jj,-oodsa\vay from Tro\vbi'id:;5; Griswold v. Fuller, 33 Mich.2i;s; Stoddard v. McLane,,')!! Mich. 11, 22 N. W. Rep. S)5; Root v. Potter, 59 Mich. 'ins, 20 N. W. Rep. (;s2; 8cott v. Chambers, (;2 Mich. 532, 29 N. W. Rep. 94; Krolik v. Root. 63 Mich. 5(52, 30 N. W. Rep. 339. It is undoubtedJy true that, had this action been brought before a reasonal)le time had elapsed for the taking of judgment and issue of execution, the officer holding the writ of attachment, and representing the parties in interest, might have attacked the borui fides of the i)lain tiffs" ])urchase. The fact that an attachment is issued be- fore the debt is conclusively established on wliich it is founded, and that it may sub- sc(|uently l)e sliown by the defendant in the attachment that there is no such debt, is not suthcient reason for holding that the attaching creditor cannot slunv that t!ie i)roperty attached is in fact the debtor's, when sued for it by a third person, who claims it by a title which is fraudulent as against the attachingcreditor. Such third person may show that no such debt exist- ed until it is established by a judgment in the attachment suit. He may therefore defeat the attaching creditor on either of two grounds: (1) That there was no debt to justify the issuing of the attachment ; (2) that he had a good title to the prop- erty in disi)ute when it was attached. Of course the officer must fii-st prove the ex- istence of the debt for which the attach- ment was issued, when such debt has not been established by a judgment against the debtor. When that is done, the judg- ment proves it. Rinchpy v. Stryker, 2.^ IS'. Y. .51. In the present case, however, there Avas no testimony given or offered to be given, on the part of the defendant, that Potts was indebted to Clark, Baker & Co., the plaintiffs in the attachment suit. The judgment was offered in evidence by the plaintiffs for the purpose of showing its irregularity, but it appears that the judg- ment was void. It did not prove the in- debtedness. It nijiybe that counsel f(jr de- fendant was misle(i as to their rights un- der the writ by the oi)inion and ruling of the trial court. It was the opinion (jf the coiirt that, tlujugh the attacliment was a valid one, yet, when the (jfficer took the property under the execution, he no longer lield it undi'r the attachment, any more than as if hehad turned it over to another party; that l^is attachment was ended, and that, the judgment, execution, levy, and sale being void, the ofhcer wfis not in a position to contest the plaintiffs' title to the jji'opcrty ; and that the only (juestion open f(M' contest was the value of the goods attached. Counsel for defendant took excejition to this ruling, and desisted from further cross-examination of plain- tiffs' witnesses. However, when he came to make his direct case in his defen.se. he utterly failed to show, and made no effort to show, that Potts was indebted to Clark, Baker & Co.. the i)laiiitiffs in the at- tachment. The defendant, under any cir- cumstances, had no right to attack i>lain- tiffs' title for fraud until he showed hislien under the attachment, and proved the del)t against Potts. This fact justified the verdict and judgment rendered in thecase. But the circumstances shown upon this record did not warrant the claim made by defendant's counsel. The attachment was issued and levied on September 22, ISSS; and the present suit was not c(jnimenced until March 5, 1889. In the mean time the defendant had sold and disposed of all the property held under the writ. This prop- erty was taken and sold by virtue of this void execution. Nearly six months had elapsed from the time the property was taken from the plaintiffs' possession before the suit to recover its value was com- menced. The action is in trover for a con- version of the property. The property was not in the custody of the law at the time the suit was commenced. Neither was it at that time held under legal process. The writ of attachment, though valid, had performed its office. Fnder it thepropertj' had been held to await the time of its be- ing turned over, and to be levied upon by the execution. It was so levied upon and taken out of the protection of the writ of attachment. The execution, as has been seen, was void, and was therefore no jus- titication to the officer to take the prop- erty, and hold it or sell it, against the rights of the i)laintiffs. If the oiticer could justify the holding under an attachment under such circumstances at the e;id of six months, then he might do so at the end of a year or of live years. The office of the writ of attachment is to hold the property until tin- coming of an execution to enforce the judgment against the [iropiu-ty of the debtor, so that the debtor may not put his jtroperty beyond the reach of su.-h creditor when he shall obtain his judg ment; but the creditor has no right to hold the property beyond a reascuiable time to obtain his judgment and issue and levy his execution, and the attachment is no justit1catit)n to the officer in selling and disposing of the property, unless it is done under the execution thereafter issued. The 284 CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. writ of attachment confers no right to sell the property except in special cases, when ordered by" the court. The officer had sold the property on a void execution, and applied theproceedsupon avoid judgment. The sale and conversion of the property •inder this void writ of execution was un- lawful, and the officer must be held liable in this action of trover. McGough v. Wellington, 6 Allen, 505; Sawyer v. AVil- son, 61 Me. 529. There was no error in the ruling of the court, under the circum- otances here stated; and the defendants offered no proof which would, if admit- ted, have amounted to a ju^^^^ification. The judgment must beaffirmed, with costs. CONVEYANCE AND ASSIGNMENT FUK BENEFIT OF CREDITORS. 285 GRAY V. FINN ct al. (55 N. W. G15, 9G Mich. G2.) i>>nprpme Court of ^lichigan. Juno 10. 180.3. Error to circuit court, St. Clair county; Arthur L. Cautit'ld, Judge. Action by Samuel J. Gray against John E. Finn and another to replevin propt-rty. Judgment was rendered for defendants, and plaintiff appeals. Affirmed. Frank "SMiipple, for appellant. P. 11. Phil- lips, for appellees. GRANT, J. Defendant Finn was collector of taxes for the Fourth ward of the city of Port Huron. By virtue of his tax warrant he levied upon certain personal property, as belonging to one Lewis Potts, to satisfy a personal tax assessed against him. Plain- tiff, claiming to own the property, brought this action of replevin to recover it. As evidence of title he introduced a bill of sale from Potts to him. The court instructed the jury as follows: "It is the claim of plaintiff that at the time when the property was taken he was the owner of it; that he had a bill of sale of the .same from Lewis Potts, who had been previously the owner of most of the property; and that by virvue of that he was entitled to possession. The defeUu ants, on the other hand, claim that at the time of the commencement of this suit the property in question was owned by Lewis Potts, and in his possession, and not the property of plaintiff, or in the possession of plaintiff'. It appears that, at the time the property was taken by Mr. Finn and the other defendants, it was here, in the city of Port Huron, situate in a barn; and it is the claim of plaintiff that at that time it was in his possession; that he had it in his possession, and under his bill of sale. The defendants claim that as a matter of fact it was not in his possession, Ijut was at the time the propertj' of Mr. Potts, and was in the possession of Mr. Potts; that the plaintiff was Mr. Potts' hii'ed man, and was taking charge of the horse, as usual.— as he had before he claims to have bought it,— and as usual for a man in his situation to be taking care of it. Now, in regard to the question of fact, as to the ownership and ac- tual possession, and right of possession, of this property, it is for you to determine, from aU the facts and circumstances of the case. The claim of defendant, you will un- derstand, is that the transaction betwe>en Potts and Gray was simply a pretense; that it was a bill pretending sale, for the pur- pose of having it said that the property be- longed to Mr. Gray, in order that Mr. Potts might avoid tlu' payment of his taxes. On the contrary, Mr. (iray claims it was an actual transfer to him, in gooil faith. Now, as to whether it was a m.-re pretense is a matter for you to determine from all the facts and circumstances in the case. You should consider all the testimony that has been given in, view of the transaction, in the light of the circumstances, and satisfy youi*self, as ordinary, unbiased men, what the truth is in that regard; and if the prop- erty is not the property of Mr. Gray, and was not in the po.ssession of Mr. Gray, at the time it was taken, then the defendants would be entitled to a vei'diet in this case." The court further instructed the jurj- that if they found that plaintiff was the owner of the property, and entitled to the po.ssession, their verdict rhould be for the plaintiff, but if they found that he was not the owner, and not entitled to the possession, but that Mr. Potts Avas owner and in possession at the time the property was seized by the de- fendant, then their verdict should be for the defendant. Under the evidence and the charge of the court, the jui-y settled the following facts: (1) That the title and possession were in Mr. I'otts; (2) that the pretended biU of sale was given with no intention to pass either title or jxtssession to plaintiff, but that it was given for the express purpose of pre- venting a levy by the tax collector. There was ample evidence to sustain the verdict. Only judgment creditors can assail a trans- fer of property by a debtor as fraudulent. Jind a valid judgment is necessary to enable the creditor to make the attack. Millar v. Babcock, 29 Mich. 52G. But we do not think this rule obtains where the person against whom a tax is assessed makes a pretended sale of the property for the ex- prK?ss purpose of preventing a levy, retains possession of it, receives no consideration, and the pretended vendee participates in the fraud, and takes the bill of sale, in order to assist in defeating the collection of the tax. Such party stands in no better position than his pretended veur.or to contest the valid- ity of the tax. Otherwise the statute (How. St. § 831S) which prohibits replevin for property seized by virtue of a tax warrant could be very readily evaded. The question as to the validity of the tax warrant there- fore becomes immaterial. Judgment af- firmed. The other justices concurred. 286 CONVEYANCE AND ASSIGNMENT FOR BENEFIT OF CREDITORS. WEBBER V. JACKkSON et al. (44 N. W. 591, 79 Mich. 175.) Sui)n'in(' Court of Michigan. .Tan. 17, 1890. Appeal from circuit court, Saf;ina\v coun- ty ; C. II. (lajvc, Judge. S.G. Hig«ins, (Wisiior & Draper, of coun- sel,) for appellant. Wiiliani H. Sweet, for appellees. CAMPBELL.,!. C()mi)lainant filed a juilir- nieiit creditor's bill in aid of execution, and to leach equitable assets. On the 2Gth of September, 1SS4, he recovered a judgment in a suit upon a former judgment indebt- ednes.s against Andrew E. Jackson for be- tween seven and eight thousand dollars. In .\i)ril. 1.SS4, while this suit was pending, it is claimed by defendant Timothy \V. Jackson that he bought in good faith, and for a conii)lete valuable consideration, a considerable amount of real estate in Sag- inaw county from his brother Andrew, be- ing the land levied on by complainant; the consideration being .fG, 7:^7. 74 of past indebtedness given up. The validity of this alleged arrangement is the only important question befoie us. If that was valid, there seems to be nothing else to get at as ecjuitable assets or personalty. If it was not valid, its re- scission involves the subsequent dealings in I'egard to rents, and other incidental profits and property, based on the owner- ship of the land. "I'he defendant Andrew E. Jackson, instead of answering the bill seriously, filed a so-called " answer '' which is full of impertinence, in the popular as well as the legal sense of that word, which deserves censure. As no answer under oath was asked , it amounts to nothing, except so far as it professes to show the nature of the ti-ansfer to Timothy ; and in this it is not clear. Timothy, who is the defendant chiefly interested, ostensibly claimed to be a bona fide i)urchaser for valuable consideration. His answer amounted to no more than an assertion of the fact, without explanation. But, in- stead of averring the fact that tliere was a conveyance, and that it was for value, he contents himself with saying tliat the con- veyances, "if any were inade by said de- fendant Andrew E.Jackson to this defend- ant, were made in good faith, and for a valuable consideration." Such an answer is not only without point, but it asserts nt) rights whatever in defendant, and is a circumstance of some meaning. Complain- ant put Andrew on the stand, and in a long examination, in which direct and cross-examination alternate fretpiently, the defense is, rather shadowed out than plainly swoi-n to, that in Ajuil, ]ns4, An- drew went to the state of New York, at Timothy's re(]urst,and had an accounting with 'I'imothy. and arrived at a balance due of the sum stated. It is not suggest- ed or shown that Andrew had any coun- ter-claims. The amount of debt is said to have been figured uj) by adding together sevei-al notes and express receiijts, which are proiluced and identified by .\iuirew, but not by Timothy, who, however, says the amount named in the deed was due for loans. None of those items accrued within the period of limitation, except one. All the items of notes were, with that excep- tion, dated in 1874,1875, and 1S7G, and pay- able at from 10 to 30 days, except one, of December 5, 1874, for $1.30, at six months. Among these ntjtes was one 30-day note, of $8,477.17. None of them had any place of paynu'ut. In each of them the word "or- der" had been changed to " bearer," which is a very uncommon thing in such busi- ness. ]\Iost of them had no appearance of handling. All were on the same printed or lithographed form, got up some years be- fore, in the days of revenue stami)s; and most of them had the left-head ornamental portion torn off. wholly or partially. There is no explanation why they, or some of them, had never been demanded or dis- cussed during their legal life. There was no attempt to show that any of these notes represented any particular money or other transaction. None of them was identified by Timothy; but he did swear that all of the notes and otherevidences of debt were surrendered to Andrew in the spring of 18s4. when in New York, and that the settlement was then completed, — which is not true, literally, at least. In this con- nection it maybenoted that while, accord- ing to both parties, the settlement Avas the result of urgency from Timothy, which seems to have been a single instance of so- licitude after many years of quiet, and both say it was comi)Ieted, no writing was made on either side, and no haste was shown in conveying. A paper is pro- duced, purporting to be a letter fi'om Tim- othy to .\ndrew, dated May 10, 1884, and within two weeksof the alleged statement, as follows: "Mr. A. E.Jackson — Sir- As you have executed the deed of jtroperty tt> me as you said you would when here, now see if you can find any one to lend monev and fill out mortgage, and send to me. and I will execute it, and return. I want .$!,- L'OO or .$1,500 dollars, five or ten years. Tim W. J.acksox." Timothy does not re- fer to this in his testimony. Andrew, tic- cording to his testimony, never wrote him on business after his return to Michigan^ No attempt seems to have been made tc borrow money, and ncithing more wa.s said by any one concerning this matter. The testimony shows both defendants ta be intelligent men, of some business expe- rience. At this time the deed was not made. Andrew, at some time or other, dresv it up himself. He did not got his wife to execute it. It was dated Ai)ril 28. 1884, but was not witnessed or acknowl- edged until June I'od, when it was record- ed. It was never sent or delivered to Tim- othy : and it does not appear whether he hearu of it at all beforesuit. Andrew con- tinued to use the property, and receive its returns, under what he claims to have been an agreement with Timothy to do so on shares. Timothy says nothing of any such agreement, never received a cent of the proceeht on whatconcernshini much more tlian it concerns Andrew. But it seems a little incongruous to claim that a pai'ty who puts a defendant on the stand for the express purpose of showing hisfraud there- by gives him credit for honesty. Tliissame claim was set up in Roberts v. Miles. 12 -Mich. 2;>7, where it was lield by this court that, whatever risks may be run in doing so, the testimony is to be judged accord- ing to its merits, and creates no estoppel. We have no disposition to go into con- jectures concerning the real character or origin of some of the very suspiciou.s doc- uments before us; but a review of the whole record convinces us that this trans- action was not only meant to avoid pay- ment of a claim which had no defense, but that there Avas no genuine sale at all. All of the circumstances indicate that it was a sham throughout, and that Timothy's name is used to hold what has never been anything but Andrew's property. The testimony is evasive, and too vague to ex- plain what needed explanation, and what both parties— Timothy as well as Andrew — must have been able to explain. While fraud is not to be assumed without proof, it is nevertheless oftener shown by circum- stances than iji any other way. When things appear that ai-e contrary to the or- dinary ways of honest business men, and call for explanations which might be, but are not, given, it is no violent inference to conclude that there is something wrong. And where this (occurs repeatedly, and is the general characteristic of the conduct and statements of the pai-ties, it is their own fault if they are held to the conse- quences. We think that the conveyance to Timo- thy should be declared void as against compainant's levy and judgment, and that all the ))roceeds, so far as thej' can be reached, and all the dealings connected with the land, must be regarded as belong- ing to Andrew. The c(»mplainant is enti- tled to a receiver, if hechcjosesto haveone, and to have the usual assignment to iiim under the practice in judgment creditors' bills, and to pursue the usual remedies in such cases. He is entitled to a reversal of the decree below. withcost>»of both courts, and to enter a decree in accordance with these views. The other justices concurred .^ 288 ILLEGAL SALES. GAMES et al. v. SUTHERLAND'S ESTATE. (59 N. W. G52, 101 Mich. 355.) Snin-cmc Court of Mic-liisan. July 5, 1S94. Case made from circuit com-t, Bonzie coun- ty; Fred H. Aldrlcli, Judjre. Action by Josepli Gambs and Cliarles Dan- iels asainst the estate of Charles H. Suther- land, deceased. From a judgment for plain- tiffs, defendant appeals. Affirmed. Manly C. Dodge, for appellant. D. G. F. ^^'arner, for appellees. MONTGOMERY, J. This is a claim filed against the estate of Charles H. Sutherland for beer claimed to have been furnished to Sutherland in his lifetime. It appears from the case made that, for several years prior to the year 1S8S, Charles H. Sutherland had carried on a saloon business in the village of Frankfort, in his own name; that for some time prior to June, 1SS8, his brother, George Sutherland, had been employeil by him in the business; that in that month Charles and Geoi-ge, in order to enable Charles to furnish the liquor bond required by law, made an ar- rangement by which the saloon business should be carried on in the year ISSS in the name of George Sutherland. To carry out this arrangement, Charles executed and con- veyed to George a bill of sale of the saloon outfit, excepting the liquors. An inventory was taken, the tax was paid by George Suth- erland, and a bond in the sum of $3,(X)0 was given and approved, George Sutherland ap- pearing as principal, and Charles as surety. George continued to work in the saloon, as bartender, for $2 a day and his house rent. The business continued to belong to Charles, and he furnished all the capital, and received all the profits of the business. Charles kept the books of account, wrote all the letters re- lating to the business, looked after the busi- ness generally, but everything was done in the name of George. George did nothing in the business, except waiting on customers. The plaintiffs sold beer, which was shipped to "Sutherland," and knew of the fact that the business was being conducted in George's name, and also that the business was in fact that of Charles Sutherland. Under the cir- cumstances, it cannot be doubted that Charles Siitherland, who was the actual owner of the business, and who had the property and tlit proceeds of it, is in law liable to pay for the goods, unless the claimants have been con- nected with an illegal transaction, in such a way as to preclude recovery by them, on grounds of public policy. Does the evasion of some of the terms of the liquor law (see sections 1, 4, and 8 of the act, 3 How. Ann. St. p. 3181 et seq.) constitute an offense, under the facts foiuid in the present case? We think not. The date when the plaintiffs or their agent learned that the business was being conducted in the name of George Suth- erland, while it was in fact that of Charles Sutherland, is not definitely fixed, nor is there any affirmative finding that the plain- tiffs did any act with the purpose of aid- ing in the evasion of the law. The case comes within the ruling in Webber v. Don- nelly, 33 Mich. 4G9, where it was held that mere knowledge on the part of the vendor that the vendee of the goods is engaged in illegal business will not prevent a recovery of the value of the property, if there be no act done by the vendor in futherance of the at- tempted illegal transaction. It may perhaps be admitted that there are circumstances in the pi'esent case from which an inference might be drawn that the claimants were guilty of some participation in the attempt to defeat the statute, but we cannot draw in- ferences of fact from the testimony, for the purpose of establishing error. The proper practice would have been to have had th(> findings cover the point, or, if the circuit judge refused to find in accordance with the testimony, to have excepted to such refusal, and thus have raised the question as to whether the evidence called for a finding or facts in aceoixlance with the claim of the de- fendant. Unless we go outside of the find- ing, and draw inferences fi-om circumstances, which might or might not be justified, error does not affirmatively appear. The judg- ment will be affirmed, with costs. LONG, J., did not sit. The other justices concurred. ILLEGAL SALES. 289 GRAVES et al. v. JOHNSON. (30 N. E. 818, 15() Mass. 211.) "Supreme Judicial Court of Massacliusetts. Suffolk. May 6, 18!»2. Exceptions from superior cmirr. Suttolli •county; Robert R. Bishop, Judge. Action by Chester H. Graves and others iigaiust Walter B. Johnson for the price of liquors sold to defendant by plaintiffs. Judg- ment for plaintiffs, and defendant excepts. Exceptions sustained. A. J. Pratt, for plaintiffs. C. C. Powers, for defendant. HOLMES, J. This is an action for the price of intoxicating liquors. It is found that they were sold and delivered in Massachu- setts by the plaintiffs to the defendant, a Maine hotel keeper, with a view to their be- ing resold by the defendant in Maine against the laws of that state. These are all the ma- terial facts reported, but these findings we must assume were warranted, as the evi- -dence is not reported, so that no question of the power of Maine to prohibit the sales is open. The only question is whether tlie facts as stated show a bar to this action. "J'he question is to be decided on principles Avhich we presume would prevail generally in the administration of the common law in this country. Not only should it be decided in the same way in which we should expect a Maine court to decide upon a Maine contract presenting a similar question, but it should be decided as we think that a Maine court ought to decide this very case if the action were brought there. It is noticeable, and it has been observed by Mr. Pollock, that some • of the English cases which have gone fur- the.st in asserting the right to disregard the .revenue laws of a country other than that where the contract is made and is to be per- formed, have had reference to the English revenue laws. Holman v. Johnson. 1 Cowp. 341; Poll. Cont. (5th Ed.) 308. See, also, Mc- Intyre v. Parks, 3 Mete. (Mass.) 207. The assertion of that right, however, no •doubt was in the interest of I<]nglish com- merce (Pellecat v. Angell, 2 Cromp. M. & R. 311, 313) and has not escaped criticism (Story, Contl. Laws, §§ 25i, 257, note; 3 Kent, Conmi. 205, 2(j6; Whart. Confi. Laws, § 484), although there may be a question how far the actual decisions go beyond what would iiave toeen held in the case of an Eng- lish contract affecting only English laws (see Hodgson V. Temple. 5 Taunt. 181; Brown v. Duncan, 10 Bam. cVt C. 93, 95. !)8; Harris v. Runuek;, 12 How. 79, 83, 84). Of course it would be possible for an in- ■dependent state to enforce all contracts made .and to be performed witliin it without regard to how much they might contravene the pol- icy of its neighbors" laws. But in fact no state pursues such a course of barbarous iso- lation. As a general proposition, it is admit- V.-VN ZILl'^ SEL.CAS.S.\LES— 19 ted that an agreement to break the laws of a foreign country would be invalid. Poll. Cont. (5th Ed.) 308. The courts are agreed on the invalidity of a sale when the contract contemplates a design on the part of the pur- chaser to resell contrary to the laws of a neighboring state, and requires an act on the part of the seller in furtherance of the scheme. Waymell v. Reed, 5 Term R. 599; Gaylord v. Soragen, 32 Vt. 110; Fisher v. Lord, 03 N. H. 514, 3 Atl. 927; Hull v. Rug- gles, 50 N. Y. 424, 429. On the other hand, plainly it would not be enough to prevent a recovery of the price that the seller had reason to believe that the buyer intended to resell the goods in viola- tion of law. He must have known the inten- tion in fact. Finch v. Manstield, 97 Mass. 89, 92; Adams v. Coulliard, 102 Mass. 107, 173. As in the case of torts, a man has a right to expect lawful conduct from others. In order to charge him with the conse- quences of the act of an intervening wrong- doer, you must show that he actually con- templated the act. Hayes v. Hyde Park, 153 Mass. 514-510, 27 N. E. 522. Between these two extremes a line is to be drawn. But as the point where it should fall is to be determined by the intimacj' of the connection between the bargain and the breach of the law in the particular case, the bargain having no general and necessary tend- ency to induce such a breach, it is not sur- prising that courts should have drawn the line in slightly different places. It has been thought not enough to invalidate a sale that the seller merely knows that the buyer in- tends to resell in violation even of the domes- tic law. Tracy v. Talmage, 14 N. Y. 102; Hodgson V. Temple, 5 Taunt. 181. So of the law of another state. Mclntyre v. Parks, 3 Mete. (Mass.) 207; Sortwell v. Hughes. 1 Curt. 244, Fed. Cas. No. 13.177; Green v. Collins, 3 Cliff. 494, Fed. Cas. No. 5,755; Hill V. Spear, 50 N. H. 253. Dater v. Earl, 3 Gray, 482, is a decision on New York law. But there are strong intimations in the later Massachusetts cases that the law on the last point is the other way (Suit v. Wood- hall, 113 Mass. 391, 395; Finch v. Manstield, 97 Mass. 89, 92); and the English decisions have gone great lengths in the case of knowledge of intent to break the domestic law. Pearce V. Brooks, L. R. 1 Exch. 213; Taylor v. Chester, L. R. 4 Q. B. 309, 311. However this may be, it is decided that when a sale of intoxicating liquor in an- other state has just so much greater prox- imity to a breach of the Massachusetts law as is implied in the statement that it was made with a view to such a breach, it is void. Webster v. iSIunger, 8 Gray, 584; Or- cutt V. Nelson, 1 Gray, 530. 541; Hubbell v. F14nt, 13 Gray, 277, 279; Adams v. Coulliard. 102 Mass. 107, 172, 173. Even in Green v. CoHins and Hill v. Spear, the decision in Webster v. Muuger, seems to be approvetl. See, also, Langton v. Hughes, 1 Maule & S. 290 ILLEGAL SALES. 593; M'Kinnell v. Robiuson, 3 Mees. ^ W. 434, 441; White v. Buss, 3 Cnsb. 448. If the 'sale would not have been made but for the seller's desire to induce an unlawful sale in Maine, it Avuuld be an unlawful sale, on the principles explained in Hayes v. Hyde Park, l.-)3 Mass. 514, 27 N. E. 522, and Tasker v. Stanley, 153 Mass. 148, 26 N. E. 417. The overt act of selling, which otherwise would be too remote from the apprehended result, —an unlawful sale by some one else,— would be connected with it, and taken out of the protection of the law by the fact that that lesult was actually intended. We do not un- 'derstaud the .iudge to have gone so far as we have just supposed. We assume that the sale would have taken place whatever the buyer had been expected to do with the goods. But we understand the judge to have found that the seller expected and de- sired the buyer to sell unlawfully in Maine, and intended to facilitate his doing so. and that he was known by the buyer to have that intent. The question is whether the sale is saved by the fact that the intent mentioned was not the controlling inducement to it. As the connection between the act in ques- tion, the sale here, and the illegal result, the .sale in Maine,— its tendency to produce it, — is only through the later action of another man, the degree of connection or tendency may vary by delicate shades. If the buyer knows that the sale is made only for the purpose of facilitating his illegal conduct, the connection is at the strongest. If the sale is made with the desire to help him to his end. although primarily made for money, the sell- er cannot complain if the illegal conse- quence is attributed to him. If the buyer knows that the seller, while aware of his in- tent, is iudifierent to it or disapproves of it. it maj' be doubtful whether the connection is sutticient. Compare Com. v. Churchill, lo(j Mass. 148, 150. It appears to us not unrea- sonable to draw the line as it was drawn in Webster v. Munger, and to say that when the illegal intent of the buyer is not only known to the seller, but encouraged by the sale as just explained, the sale is void. The accomplice is none the less an accomplice that he is paid for his act. See Com. v. Har- rington, 3 rick. 2ti. The ground of the decision in Webster v. Munger is that contracts like the present are void. If the contract had been valid, it would have been enforced. Dater v. Earl. 3 Gray, 482. As we have said or implied al- ready, no distinction can be admitted based on the fact that the law to be violated in that case was the lex fori. For if such a distinc- tion is ever sound, and again if the same principles are not always to be applied wheth- er the law to be violated is that of the state of the contract or of another (see Tracy v. Talmage, 14 N. Y. 102, 213), at least the right to contract with a view to a breach of the laws of another state of this Union ought not to be recognized as against a statute passed to carry out fimda mental beliefs about right and wrong shared by a large part of our own citizens. Territt v. Bartlett, 21 Vt. 184, 188, 189. In the opinion of a majority of the court, this case is governed by W^ebster v. Munger, and we believe that it would have been decided as we decide it if the action had been brought in Maine instead of here. Banchor v. Mansel, 47 Me. 58. Exceptions sustained. ILLEGAL SALES. 291 GIBBS V. CONSOLIDATED GAS CO. OF BALTIMORE. (9 Slip. Ct. 553, 130 U. S. 39G.) Suprome Court of the United State.s. April 15, 1S89. In Eiror to the Circuit Court of tlie United States for the District of Maryljind. riaintiff in error brouglit this action in the circuit court of tlie United States for the dis- trict of Maryland against the defendant in error, "a corporation duly incorporated un- der the laws of Maryland, for money pay- able by the defendant to the plaintiff," as stated in the "bill of particulars of plaintiff's claim," "for services rendered by me at your request in negotiating and consummating an arrangement and settlement of differences between the Consolidated Gas Co. of Baito. City and the Equitable Gas-Light Co. of Balto. City, between .Inly 1, 18S4, and No- vember 1,' 1884, $50,000;" and a trial was had upon the general issue {)leaded, resulting in verdict and judgment for the defendant, May 14, 188.5. From the bill of exceptions it appears that — "At the trial of this case, the incorpora- tion of the defendant being admitted, the plaintiff, to maintain the issues upon his part joined, gave in evidence tlie agreement fol- lowing between said defendant and the Equi- table Gas-Ligiit Company of Baltimore City, a Maryland corporation, — that is to say: " ' Agreement. Tliis agreement, made this seventh day of October, eigiiteen hundred and eiglity-four, between the Equitable Gas- Light Company of JSaltimore City, a corpora- tion duly organized under the laws of the state of Maryland, party of the first part, and the Consolidated Gas Company of Baltimore City, a corporation duly organized under the laws of the same state, party of tiie second part. Whereas, the parties hereto conduct the business of making and selling gas in the city of Baltimore, Maryland, and for some time past have been drawn into active com- petition, resulting in a loss of pronts to eacli company, as well as large expens s and great annoyance; and whert-as, each party hereto desires to enter into an arrangement with the otiier, whereby the business of eacii may be conducted in a more prolitr.ble manner than at present: Now, therefore, in considera- tion of the })remises, and of the mutuality hereof, it is hereby agreed between said par- ties as follows, viz.: " ' 1. Gas shall be sold by each company at a rate of one dollar and seventy-tive cents per thousand cubic feet, with a rebate of fifteen cents a thousand feet to consumers for pay- ment within seven days from date of render- ing bill, unless the rate shall be changed b\' mutual agreement of the parties hereto in writing; but, in view of the much larger in- tert St of tlie party of the second part in the subject-matter of this contract, it is agreed tliat in case of competition on the part of any other gas company the said party of the sec- ond part shall have the right at its discretion to reduce the rate at which gas shall be sold by either or both of the parlies hereto, and siiall have the right at its discretion to lix and change said price at wliich gas shall be sold by either or both of the parties hereto, from time to time, so long as such competi- tion shall continue: provided, that said price sliall not be placed at less than one dollar (.•SLOO) per thousand feet without the mutual consent of the parties hereto in writing. The introduction of gas from the street main to the inside of the building to be ligiited will in all cases be done by the companies, for which tlie proprietor of the buil.ling or the person applying for the supply of gas will be required to pay in advance the sum of eight dollars, (.'n^8.6o,) to cover the ex- penses of tapping main, laying service pipe, setting meter, and its connection to the building line. An extra charge will be made where the building is set back from the build- ing line. " ' 2. P^ach party hereto shall deduct from its receipts and retain the sum of one dollar for every thousand feet of gas sold by it as a basis of cost to cover all expenses of the bus- iness of each. " * 3. All extensions of mains, including services and meters on said extensions, and all enlargement of tiie capacity of the works necessary to do the increasing business dur- ing tiie continuance of this agreement, shall be made by tiie Consolidated Gas Company of Baltimore City, at its own cost and ex- pense, wliose property such enlargements and extensions shall be, the Equitable Com- pany only being required to provide the meters and services necessary to supply such additional consumers as may be f urnislied by it under section 5, below. "' 4. Division of receipts shall be made as follows, viz.: "'(1) All receipts(over and above the sum of one dollar per thousand feet, allowed as a basis of cost) from gas sold each year upon sales not exceeding the total quantity of gas sold by both of said companies during the year ending October first, eighteen hundred and eiuiity-four, shall be divided between the parties hereto in the following proportions, viz.: The party of the first part shall re- ceive such a proportion of the same as the amount of gas sold by it during the year end- ing October first, eigiiteen hundred and eighty-four, shall bear to the total quantity of gas sold by both of tlie parties hereto dur- ing that period, provided the quantity sold by the party hereto of the first part during said period shall not exceed two hundred and thirteen millions of feet, (21o.000,000,) and the party of the second part shall re- ceive all the balance, after dedu ting the amount to wiiicli the party of the first part shall be entitled, as above provided, it being expressly understood and agreed that the ba- sis of participation in said receipts shall be the proportion which the quantity of gas sold by each party from October first, eight- een hundred and eighty-three, to October 292 ILLEGAL SALES. first, eighteen hundred and eigliLy-loiir, bears to the total quantity of gas sold by both parties heretfo, and that neither party herr-to shall receive more thereof than by such a basis of division it would be entitled to. subject, however, to the foregoing pro- vision that the quantity sold i)y tlie party of the (irst part during tiie said year ending October first, eigliteen hundred and eighty- four, shall not be considered as exceeding two hundred and thirteen millions (213,000,- 000) of feet as aforesaid. "•(2) All receipts (over and above the said allowance of one dollar j)er thousand feet as a basis of costs) from gas sold each year up- on sales in excess of the said total qunntity sold during the year ending October first, eighteen hundred and eighty-four, shall be divided as follows, viz.: Tiie party of the first part shall receive tiiereout a percentage equal to one-halt of the percentage which it will receive as aliove, and tiie party of the second part sliall receive all the balance of such receipts from said increased sales. "* 5. Neither party hereto shall solicit any business belonging to the other, but either party may taiight Company of Baltimore. It is objected that the court erred in giving the instruction that the plain- tiff was not entitled to recover, because it assumed a material fact in dispute, which should have been left to the jury, namely, that it was "for the procuring of the mak- ing" of the contract offered in evidence that compensation was claimed. The record does not show that this objection to the instruction was taken in the court below, nor does it con- tain any evidence tending to establish that the plaintiff claimed compensation for any- thing else than for services in bringing about the agreement. Plaintift''s bill of particulars is for services "in negotiating and consum- mating an arrangement and settlement of differences" between the two gas companies; and he put the contract in evidence, and ad- duced proof that he carried on negotiations, which "resulted finally" in the execution of it. lie was general manager of a corpora- tion engaged in tlie business of "tlie owning, improvnig, leasing, and manipulation of gas property throughout the country," and, as ills company and oilier gas companies "had been mateiially inconvenienced by the fact that tliey were required and expected by their customers to sell their gas at the insufficient price at which it was furnisiied in Balti- more, " he suggested "that the conflict in lialtimore should, if possible, be brought to an amicable termination," "and in conse- quence thereof" was employed by the ?^qui- table Gas-Light Company "to bring about a settlement, if possible, with the defendant." The conllict referreil to seems to have been the comjietition in the in.iking and vending of gas in the city of Ijaitimore, which it had been the object of the general assembly of Maryland to encourage; and the settlement to which he alludes was emliodied in the con- tract in question, by which competition was to be destroyed, and the object of the general assembly defeated. We do not feel called npon, under such circumstances, to reverse the judgment upon the ground that the court assumed in the instruction a matter of fact which should have been left to the jury to determine. According to the evidence given by the plaintiff, he informed the defendant "that he was employed and would be paid by the Equitable Gas-Light Company, if he made an arrangement satisfactoi-y to that com[)any, and that, if he should be successful in bring- ing about a settlement satisfactory to the de- fendant also, he should expect and claim to be compensated by the defendant lil<(Hvise." Since he had thus entered upon the enterprise under a specitic agreement with the Equita- ble (ias-Light Company, it is somewhat dif- ticult to undeistand upon this record how, in carrying such an express contract out, he could iin|iose the obligation on the defendant to pay him for doing so upon a mere notiti- cation that he shoukl expect from it compen- sation for the services he had exi)ressly agreed to render the other company, because the re- sult might be satisfactory to the defendant, —a result necessarily to be assumed if any contract was arrived at. The defendant could not, in that view, be held to have laid by and accejiled services which the plaintiff would otherwise not have been obliged to perform, nor could plaintiff assert that he did perfoim only upon the expectation of be- ing also paid by the defendant. The hypoth- eses of fact set up by the plaintiff in the in- structions he asked, and which were refused, contain nothing in respect of wliich testi- mony tending to support and establish such hypotheses would add to the mere fact of the notitication of plaintiff's expectation, and the evidence on defendant's part tended to show a denial of any obligation to pay. But, apart from this, the real question submitted to us for decision is whether, even if there were no other objection to plaintiff's recovery, such recovery could be allowed in view of the nature of the alleged services. In Irwin v. Williar, 110 U. S. 499, 510, 4 Sup. Ct. Eep. 160, it was held that where a 294 ILLEGAL SALES. CDntrac't, void on account of the illej^al in- tent of the principal parties to it, liad lieen nef;otiat(d by a person ignorant of such in- tent, and innocent of any violation of law, tiie latter nii.ulit have a meritorious ground for the recovery of compensation for serv- ices and advances, but wlien such agent "is privy to the unlawful design of the parties, and brings them together for tlie very pur- pose of entering into an illegal agreement, he is paitlceps eriminis, and cannot recover for services renderetl or losses incurred by himself on ber session, 1816, c. 251, so far as the same are not inconsistent with the provisions of tliis act; and the said company lierehy incorpo- rated shall be liable to all the duties, restric- tions, and penalties [provided] for in said sections of said ordinance and in said act of assembly." Laws Md. 1867, jip. 207, 211, 212. Reference to the act antl ordinance of 1816 (Laws Md. 1813 1817, c. 251, of 1816; Or- dinances, Baltimore, 1818 1822, p. 95) does not contribute to the argument here save as indicating the design of tlie general assembly to give equal poweis to a competim,' com- pany. Said act of March 6, 1867, § 14, fur- ther provided that "tlie geneial assembly hereby reserves the right to alter, amend, or repeal this act at pleasure. " Laws Md. 1867, pp. 207, 214. Ou the 3d of May, 1882, an act supplementary to the act incorporating the Equitable Gas-Light Company of Balti- more City was approved, (Laws Md. lC)82, p|t. 550, 551,) autliorizing and empowering said company to manufacture and sell gas in Baltimore county as well as in Baltimore city, and to exercise all the powers and rights con I erred upon it by the ;icts of asseml)ly and any amendments thereto, including the right to lay all necessary and convenient [lipes, etc., in tiie county as well as in the ciiy, and the fourth section of this act was as I'ol.ows: "That tiie said company be, atid hereby is, prohibited from entering into any consolidation, combination, or contract with any other gas company whatever; and any attempt to do so, or to mal^e such combina- tions or contracts as herein prohibited, shall be utterly null and void." In Greenwood v. Freight Co., 105 U. S. 13, the riglit to repeal the cliarter of a street- railioad company was sustained under a pro- vision of the General Statutes of Massachu- setts declaiing "every act of incorporation passed after the lllli day of March in the year 1831 shall be subject to amendment, al- terati(m, or repeal at the pleasure of the leg- islature." In Close v. Cemetery, 107 U. S. 466, 476, 2 Sup. Ct. Rep. 267, it was said that "a power reserved to the legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it, whic*lr will not defeat or substantally impair the object of tlie grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public rig'it. " ILLEGAL SALES. 295 Similar views were expressed in Water- works V. Schottler, 110 U. S. 347,4 Sup. Ct. Hep. 48; County of Caliaway v. Foster, 93 U. 8. 567; ami otlier cases. The consent of the corporation was not re- quired to the o})eralion of such a provision as that embodieil in the fourth section of the act of 1S82, but, if acceptance were necessary, the exercise of corporate action by this gas company after the passage of the amendment was suliicient evidence of sucli acceptance. The supplying of illuminating gas is a busi- ness of a publi • nature to meet a public ne- cessity. It is not a business like that of an ordinaiy corporation engaged in the manu- facture of ai tides that maybe furnished by individual effort. Gas-Light Co. v. Manu- facturing Co., 115 U. S. 6:)0, 6 Sup.Ct. Rep. 252: Gas Co. v. Gas-Light Co.. 115 U.S. 68;:3, 6 Sup. Ct. Rep. 205; Siiepard v. Gas-Lislit Co., 6 Wis. 539; Coke Co. v. C<.ke Co., 121 111. 530, 13 N. E. Rep. 169; St. Louis v. Gas-Light €o., 70 Mo. {59. Ileiice, while it is justly urged that those rules which say that a given contract is against public policy, siiould not be arbitrarily extended so as to interfere with the freedom of contract, (Printing Co. v, Sampson, L. R. 19 Eq. 462,) yet, in tiie in- stance of business of such character that it presumably cannot be restrained to any ex- •tent whatever without prejudice to the pub- lic interest, courts decline to enforce or sus- tain contracts imposing such restraint, how- ever partial, because in contravention of public policy. This sul)ject is mucii consid- ered, and the authorities cited in Transporta- tion Co. v. Pipe Line Co., 22 W. Va. 600; Coke Co. V. Coke Co., 121 111. 530, 13 N. E. Rep. 169; Telegraph Co. v. Telegraph Co., 65 Ga. 160. The decision in JSIitchel v. Reynolds, 1 P. Wms. 181, 1 Smith, Lea.!. Cas. pt. 2, p. 508, is the foundation of the rule in relation to the invalidity of contracts in restraint of trade; but as it was made under a condition of things, and a state of society, different from those wliich now prevail, the rule laid down is not regarded as inllexible, and has been consideral)ly modilied. Public welfare is first considered, and, if it be not involved, ami the restraint upon one party is not great- er than protection to the other party requires, the contract may be sustained. The question is whether, under tiie particular circum- stances of the case and the nature of the par- ticular contract involved in it, the contiact is or is not unreasonable. RousiLon v. Rousil- lon, L. R. 14 Ch. Div. 351; Cloth Co. v. Lor- sont, L. R. 9 Eq. 345. "Cases must be judged .according to their circumstances." remarked Mr. .Justice Buadley in Navigation Co. v. Winsor. 20 Wall. 64, 68, "and can only be rightly judged when the reason and grounds of the rule are carefully considered. Tliere are two prin^ ipal grounds on which the doc- trine is founded that a contract in restraint of trade is void as against public policy. One is the injury to the public by being deprived of tli3 restricted party's industry; the other is the injury to the party him'^elf by being precludeii from pursuing his occupation, and thus being prevented from supporting him- self and his family. It is evident that both these evils occur when the contract is gen- eral, not to pursue one's trade at all, or not to pursue it in the entire realm or country The country suffers the loss in both cases; and the party is deprived of liis occupation, or is obliged to expatriate him- self in order to follow it. A contract tiiat is open to such grave objection is clearly against public policy. But if neither of tliese evils ensue, and if the contract is founded on a valid consideration and a reasonable ground of benefit to the other party, it is free irora objection and may be enforced." In- numerable cases, however, might be cited to sustain the proposition tliat combinations among tiiose engaged in business impressed with a public or quasi public character, which are manifestly prejudicial to the pub- lic interest, cannot be upheld. The law "can- not recognize as valid any undertaking to do what fundamental doctrine or legal rule di- rectly forbids. Xor can it give effect to any agreement the making wiiereof was an act violating law. .So that, in short, all stipula- tions to overturn, or in evasion of, what the law has established; all promises inter- fering w.th tiie workings of the machinery of the government in any of its departments, or obstructing its officers in their official acts, or corrupting them; all detrimental to tlie public order and public good, in such manner and degree as the decisions of the courts iiave delined ;all madeto promote whatastatute has declared to be wrong, — are void." Bish. Cont. § 549; Iron Co. v. Extension Co., t» Sup. Ct. 402, (decided at this term, by Mr. Justice Field;) Trist v. Child, 21 Wall. 441; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. Rep. 160; Arnot v. Coal Co., 68 N. Y. 558: Salt Co. V. Guthrie. 35 Ohio St. 6i;6; Woodruff v. Berry, 40 Ark. 261; Railroad Co. v. Railroad Co., 3 Rob. (X. Y.) 411; Craft v. McCon- oughy, 79 111. 346; Hooker v. A^andewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Railroad Co. v. Collins. 40 Ga. 582; Coal Co. v. Coal Co., 68 Pa. St. 173. It is also too well settled to admit of doubt tiiat a corpora- tion cannot disable itself by contract from performing the public duties whieii it has un- dertaken, and by agreement compel itself to make public accommodation or convenience subservient to its private interests. " Where, " says Mr. Justice .Miller, dtlivering tlie opinion of the court in Thomas v. Railroad Co., 101 U. S. 71, 83, "a corporation, lik-.- a railro.ul company, has granted to it by char- ter a franchise intended in large meiisure to be exercised for the public good, the due per- formance of those functions beingthe consid- eration of the public grant, any contract wiiicli disables the corporation from perform- ing those functions, which undertakes with- out the consent of the state to tiansfer to 296 ILLEGAL SALES. others the rights and powers eon'"erred by the charter, and to relieve tlie jrrantees of tlie burden whieli it imposes, is a violation of the contract with the state, and is void as against public policy." These gas companies entered tiie streets of Baltimore, under their cliarters, in the exer- cise of the equivalent of the jiower of emi- nent domain, and are to be held as liaving as- sumed an obl;g;ition to fultiil the public pur- poses to subserve which they were incorpo- rated. At common law, corporations formed merely for the p^^cuniary benefit of tlieir sliareholders could, by a vote of the majority thereof, part witli their property, and wind up their business; but corporations to wliich pr.vileges are granted in order to enable tliem to accommodate the public, and in tlie proper discharge of wiiose duties tlie pul>lic are in- terested, do not come within the rule. But we are not concerned here with tlie question when, if ever, a corporation can cease to op- erate witliout forfeiture of its franchises, up- on the excuse that it cannot go forward be- cause of expense and want of remuneration. There is no evidence in this record of any suc:i state of case, and. on the contrary, it appears that the cost of the manufacture of gas was largely below the price to be charged named in the stipulation between the par- ties. There is nothing upon which to rest tlie suggestion that the companies were un- able to serve the consumers, wliile the rec- ord shows, on the other hand, that they sim- ply desired to make larger profits on what- ever gas they might furnisli. Nor are we called upon to pass upon the validity, gener- ally, of pooling agreements. Here the con- tract was directly in the teeth of the statute,, which expressly forbade the Equitable Gas- Light Company from entering into it. Tliat prohibition declared tlie policy of the state^ as well as restrained the particular corpora- tion. The distinction between >nalum in se and malum prohibitum has long since been exiiloded, and as "there can be no civil right- where tiiere can be no legal remedy, and there can be no legal remedy for that which is itself illegal," (Bank v. Owens, 2 Pet. .527,. 539,) it is clear that contracts in direct vio- lation of statutes ex])ressly forbidding their execution cannot be enforced. The question is not one involving want of authority ta contract on account of irregularity of organ- ization, or lack of an affirmative grant of power in the charter of a corpm-ation, but a question of the ab.solute want of power to do that which is inhibited by statute, and, if at- tempted, is in positive terms declared "utter- ly null and void." "The rule of law," said P.MtKKR. C. J., in Piussell v. DeGrand, 15 Mass. o5, 39, "is of universal operation, that none shall, by tiie aid of a court of justice, obtain the fruits of an unlawful bargain." Wp Cannot assist the plaintiff to get pay- ment for efforts to accomplish what the law declared should not be done, and the judgment niubl be athiiued. ILLEGAL SALES. 297 NATIONAL DISTILLING CO. v. CREAM CITY IMPORTING CO. (56 N. W. 804, 86 Wis. 3.j2.) Supreme Court of "Wisconsin. Nov. 7, 1S93. Appeal from circuit court, Milwaukee coun- ty; D. H. Johnson, Judge. Action by the National Distillng Company against the Cream City Importing Company for goods sold and delivered. From an or- der denying a motion to strike out the first defense in the answer, and for failure to make an order on a motion to make the second defense more definite and c.ertain, l>laintiff appeals. Reversed. The other facts fully appear in the follow- ing statement by PINNEY, J.: The complaint in this action is for a bal- ance of .$1,148.72, due for goods, wares, and merchandise, to wit, alcohol, spirits, whisky, etc., sold and delivered to the defendant at its special instance and request. The an- swer is to the effect that the plaintiff, prior to the sale and deliveiy of the goods, en- tered into an agreement with divers firms and corporations residing in different states for the purpose of forming a tnist or con- spiracy, whereby they agi'eed, combined, con- federated, and associated thems: Ives togeth- er for that purpose, and wrongfully to in- terfere with the freedom of trade and com- merce, so that it might acquire tlie full, ab- solute, and complete control and monopoly of all alcohol, spirits, and liquors manufac- tured in the United States, and the e.vclusive right to regulate, dictate, and control the amount manufactm-ed. and the price thereof, and to render it impossible for dealers or consumers to purchase any such gooJs, etc., exqept from or through such trust, combina- tion, etc.; that it was impossible for it to buy such goods through agents or membei-s of said trust at their real market price by reason of such combination, but it was com- pelled to pay a greater price tlierefor, and for the pm'pose of recovering back such over- payments on its pin-chasos it was oblig d to enter into an agreement to purchase all such goods used in its said business for the period of six months succeeding the date of pur- chases fi'om said trust or members thereof. an-d by so doing it would then receive the amount of such' overcharges; that its business has been greatly injured by reason of said trust, etc., and by its business methods. And it was alleged on information and bel ef that said trust, confederation, or association, or the members thereof, were the real parties in interest in this action, and that the plain- tiff is only an agent, member, or one of many partners residing in many and different states, and that the action should be dis- missed, unless brought in the names of aU such real parties. And as a separate de- fense, that between the 22d of Jun:^ and 22d of October, 1S02, the defen.lant pur- chased goods, wares, and merchandise to the amount as per bills rendered of more- than $3..500: that they were billed and charged to this defendant at a greater price than the market value, and with each bill an agreement in writing was given to it, a copy of which Is made an exhibit, for rtbate of charges as before stated; that the spirits, alcohol, wliisky, brandies, liquors', and com- pounded liquors purchased as aforesaid were of an inferior quality, and were not of the proof marked upon the bills furnished with the same, and upon which proofs the price therefor is fixed; that aU of said goids were of less value than chargtd, and less than the market price, and that many of the goods were almost wholly worthless, whereby de- fendant was damaged, and his custom-^rs quit trading with him for that reison; that defendant had paid on said purchases a sum exceeding ?2.400, and that the value of said goods, etc., purchased by the defendant was not gi-eater than that sum. The plaintiff moved that the first defense of illegality should be stricken out as irrelevant and re- dundant, and that the scond d fense set up should be made more definite and ce.tain by showing the date and amount of each item of goods which the defendant claims was defective, and by showing of what the de- fect consists, whether in quantity or qual- ity, and the amovmt of damage claimed for each defective item or article. The court de- nied the motion to strike out the specified portions of the answer, with $10 costs, but did not make any order in respect to that part of the motion to make the second de- fense more definite and certain, and the plaintiff appealed., George E. Sutherland, for appellant. C. W. Briggs, for respondent. PINNEY, J., (after stating the facts.) 1. Taking the allegations of the fii"st defense in their most lil^eral sense, it is apparent that tli(\v are irrelevant, and have no legal re- lation to the controversj' between the par- ties to the action, which is whether the plain- tiff shall recover the demand set forth in its complaint. It is obvious that they state no defense to the action; and it doc-s not ap- pear that any of the matters so set up cr.n oe material in any aspect of the case as now p!-esented, biit they are of such a character that they may embarrass and prejudice the pl.-.intift in preparing for trial, and in main- taining its action upon the merits. An entire defense may be stricken out as irrelevant, (Rev. St. § 26S4;) and where a defense is ir- relevant, and of the tendency above indi- cated, it ought to be stricken out on motion, (Horton v. Aimold. 17 Wis. 1-14: School Dist. V. Kemen, -38 ^Vis. 24G, 32 N. W. Rep. 42.) But in this instance the motion was denie-d, Willi .$10 costs of motion a^'ainst the plaintiff. The first defense does not deny any aUega- tiou of the complaint, but the substance of it is tliat the sale and delivery of the goods in question to the defendant was void as. .298 ILLEGAL SALES. :i^';iinst public polky, because the vendor was at the time a member of an unlawful trust or combination formed to unlawfully inlerlVre with the freedom of trade and com- meree, and in restraint thereof and to accom- plish the ends therein set forth. It is not tl. limed in the aiiswer that the trust or com- bination had acquired the control and mo- nopoly of all such goods, or that the defend- ant might not have purchased the gooxisting contract, shall not be construed as a violation of this contract." It was further agreed that each of the parties should trans- fer to the other any agency or agencies it might then have, and the good will of any business it may have established, within the territory of the other as thus defined; the plaintiff's assignor was to pay to the defond- anr a commission of 5 per cent, on the amount received for any goods or articles which might be thereafter delivered by it to any person, firm, or corporation within the ter- ritory of the party of the second part, under any then existing contracts; and, fm"ther, that the first-named contract should not be in force thereafter, but that this contract or any of its provisions should not be construed • as waiving or releasing, or in any way im- pairing, any claim or right of action either party may have against the other under and by reason of said conti'act of February 8, 18S0, or otherwise." The first counterclaim is for damages for neglecting and refusing to manufacture $100,000 worth of goods ordered under the last-named contract, in the amoimt of ?J."),- ; in all. amuunting to $:{i;5,0, upon which damages were claimeading will be bad on dennwrer if it does not appear from the contract or .averments of exu uisic facts that the restraint was rea- sonable. This is in accordance with the great weight of authority, and seems to be the nec(>ssary result of the rvile as to the va- lidity of such restraint. The gi'eat diffusion of wealth, the wonderful advances made in the methods and facilities for manufacturing and carrying on commerce, the manifold im- provements in machinery, and in the adapta- tion of steam and electricity as motive pow- ers, have enlarged or opened numerous tields of industry, and wrought marvelous chan- ges, and the tendency of the later cases has been in relaxation of the earlier rule in re- lation to contracts in resti'aint of trade. The most liberal and advanced doctrine on the subject in this country is found in the case of Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, in which the history of the law is elaborately considered, and a covenant excluding a manufacturer of matches, who had sold his property, stock, etc., from en- gaging in the manufacture and sale of matches for a period of 99 years within any of the states and territories, except Nevada and Montana, was sustained; but it appear- ed in that case that before such sale he had carried on the business of manufacturing friction matches, "and of selling the same in the several states and territories of the Unit- ed States, and in the District of Columbia," and so the case really came within the rule under consideration, and the restraint was reasonably necessary to protect the other par- ty in his purchase, in view of the circum- stances disclosed. Tode v. Gross, 127 N. Y. 485, 28 N. E. 469, was in relation to a i-e- straint imposed upon the vendor of a busi- ness foun-:led on a secret process, but it recognizes and sustains the general rule. A manufacturing business founded iipon the use of a secret process, or the use of patent- ed processes or means, is n5t understood to be within the rule. The cases of Leather Cloth (;o. V. Lorsont, L. R. 9 Eq. 345, and Rousillou V. Rousillon, 14 Ch. Div. 351, are understood to represent the more modern views of the law on this subject in England. In the former case it Avas said: "All re- straints upon trade are bad as being in viola- tion of publ'c jjolicy, unless they are actual- ly and not unrea.sonably for the protection of parties in dealing legally with some sub- ject-matter of contract." The same sub- ject was considered in the somewhat recent case of Davies v. Davies, 36 Ch. Div. 359. in which Cotton, L. .1., held the law to be "that a limited restraint may be good, pro- vided the resti-aint is reasonable, and such as was required for the protection of par- ties with whom the covenant is entered in- to," and that the rvile ought not to be altered but by the house of lords; and Bowen, L. J., held substantially the same view, and no- tices that in that case the court had no ma- terials for deciding that the covenant in question was beneficial to the public, or rea- sonably necessary for the protection of th" covenantee, and, in substance, that to sus- tain it would be "leaping into the dark;" while Fry. L. .J., was inclined to adhere to liis decision in Rousillon v. Rousillou, supra, and hold that the burden of proof as to the validity of the restraint is shifted by show- ing that it has been entered into for the pro- tection of the interests of one of the con- tracting parties. The counterclaims and second contract, made an exhibit thereto, are exceedingly ILLEGAL SALES. 305 meager, and wholly insufficient to show that the agreement of restraint insisted on by the defendant was reasonably nooessai'y for the protection of its interests under the contract. While it appears, by implication, that the respective parties may have agencies in the territory set apart to each for the sale of the line of goods and wares mentioned in the contract, there is nothing to show the amount of annual output of these goods and wares by the plaintiff's assignor, or of the ordinary amount of manufacture and sale by either party, or that the defendant had estab- lished or carritHl on any trade in more than one state out of the thirty states and terri- tories to which the restraint it seeks to en- force extends, and in respect to which it chaiges violations of this restraint by the plaintiff's assignor. The counterclaims whol- ly fail to show tliat the defendant's inter- est for less than foiu* years in the sale and disposition of .$200,000 in value of the goods and wares mentioned, even upon the most liberal view of the subject, and under the existing state of trade and competition, would justify the very extensive restraint relied on. It follows from these views tliat, upon the face of the pleadings, it is not made to appear that the conti-act was a reasonable and valid one, and therefore the portions of the order appealed from are er- roneous. The parts of the order of the cir- cuit coiu't appealed from are reversed, and the cause is remanded, with directions to sustain the plaintiff's said demuiTers to the counterclaims. 1104 ILLEGAL SALES. GREGORY et al. v. WENDELL et al. (39 Mich. 337.) Supreme Court of Michigan. Oct. 1.5, 187S. As.simipsit. Plaintiffs bring error. Atkinson & Atkinson, for plaintiffs in error. Otto Kircbner and Asnley Pond, for defend- ants iii error. MAKSTON, J Plaintiffs reside in Owosso, and in 1877 were euj^aged in the purchase of grain and other farm products. Defendants were eoiumissiou merchants in the city of De- troit. On the 26th of April, 1877, one of the plain- tiffs had a con- ersation with one of the de- fendants in the city of Detroit about speculat- ing in corn and wheat. It resulted in plaintiff's •directing defendants to purchase for them 20,- OUU bushels of corn, deliverable at Chicago in June following. It was claimed that defend- ants thereupon telegraphed to certain commis- sion merchants in Chicago directing the pur- chase, and received a few minutes thereafter a, telegram announcing the purchase of the quantity mentioned and at prices therein named. It was at this time agreed that plain- tiffs should send defendants $l,(MXt as a mar- gin upon this purchase, which was done within a few days thereafter. The receipt thereof was acknowledged bj defendants and credited to plaintiffs' account. Other correspondence was had between these parties in reference tc this purchase and the condition of the grain markets. On May 17th plaintiffs wrote defendants, suggesting a change fiom June to July corn, and on the ISth defendants wrote plaintiffs that they had sold the June corn and pur- chased July coi-n, and enclosed a statement of account showing a loss to plaintiffs. The re- ceipt of this lettei by plaintiff's was on the next day. and a hope expressed that the loss sustained on the June would be got back on the July corn. The market continued to de- cline. Further margins were called for, but not made. Two car loads of wheat were shipped by plaintiffs to defendants, and by them sold on commission, and the proceeds credited to plaintiffs on account. Action was brought to recover the amount received for this wheat, and to recover back the !?1,(XX) margin. There was no dispute as to the wheat or its vauie, and judgment was recovered for the amomit thereof. The court charged the jury that no part of the ^il.OOO could be recovered In this it is claimed thr.t the court erred, and also in not submitting the question o the jury whether any corn was ever actually purcl ased. Gregory, one of the plaintiffs, testified that be never saw any of the corn, and that none Lad ever been delivered to him. He also testified that in .July certain parties called at his office; that they had an en- velope, the contents of which he declined to examine, and there was evidence tending to show that they were there and offered to make him a tender of war«'house receipts for July corn. There was evidence tending to show that before the commencement of this action defendants were called upon in the phiiutiffs' interest, and requested to produce and show the telegrams in reference to the purchase cf the June corn, but that, although search v.'as maES — 20 business object. "But it is evident such agreements can be readily prostituted to the worst kind of gambling ventures, and ther.-- fore its character may be weighed by a ju- ry in connection with other facts in consid- ering whether the bargain was a mere scheme to gamble upon the chance of prices. The form of the venture, when aided by evidence, may clearly indicate a puri»ose to wager upon a rise or fall in the price of oil at a future day, and not to deal in the arti- cle as men usually do in that business. We must not confound gambling, \vhether it be in coi'poration stocks or merchandise, witli what is commonly termed 'speculation.' Merchants speculate upon the future prices of that in which they deal, and buy and sell accordingly. ♦ * * xheir speculations display talent and forecast, but they act up- on their conclusions, and buy and sell in a bona fide way. Such speculation cannot be denounced. But when ventures are made upon the turn of prices alone, with no bona fide intent to deal in the article, but merely to risk the difference between the rise and fall of the price at a given time, the case is changed. The purpose then is not to deal in the article, but to stake upon the rise or fall of its price. No money or capital is invested in the purchase, but so much only is required as will cover the difference, — a mar- gin, as it is figuratively termed. Then the bargain represents not a transfer of prop- erty, but a mere stake or wager upon its fu- ture price." See, further, Grizewood v. Blaue. 11 C. B. 520. where it was held that a contract to purchase shares of stock without the in- tention to deliver or receive them was a gaming contract. In Yerkes v. Salomon, 11 Hun. 473. it was said that the authorities were abundant up- on the proposition that, if neither party in- tended to deliver or accept shares^, but mere- ly to pay differences according to the ri.se or fall of the market, the contract would be a gaming one. And in that case it was held to be error to exclude a question asking what the intention at the time the contracts were made was, — whether to tender or call stock, or merely to settle upon differences. It is clear from these authorities that the form of the contract on its face is not con- clusive, but that its character should be con- sidered by the jury in the light of all the surrounding facts and circumstances, in or- der for them to determine whether a mere scheme to gamble upon prices was the in- tention, or an actual bona fide sale of grain to be delivered at the time mentioned. There were some suspicious facts and cir- cumstances in this case. The weight there- of, or the proper conclusion to be arrived at from a view of the whole case, it is not for this court to determine. The whole ca.se. iinder proper instructions, should have been submitted to the jury, and the court erred in withdrawing the case from them. There o06 ILLEGAL SALES. must, therefore, be a new trial ordered, up- on Avliicli the case maj appear in one of three different aspects: First. If the parties acted in good faith, and the agreement made contemplated an actual purchase and delivery of grain, and such a purchase was in fact made, then the amount paid by plaintiffs in error to cover any loss which defendants might suffer or become responsible for on account of a de- cline in the price or value of the grain pur- chased cannot, to the extent of such loss, be recovei'ed back. Second. If, under the agreement made, neither party contemplated or intended that any grain should in fact be purchased or de- livered, but that at the time mentioned for delivery the difference between the contract and tlie market price should be paid to the person entitled to receive the same, such agreement being void as against public poli- cy, and both parties being equally in the wrong, the law would afford no assistance to either, and the amount paid over as a margin could not be recovered back. Third. If plaintiffs in error, acting in en- tire good faith, authorized defendants to purchase grain for them, to be delivered at a future date, contemplating and intending that an actual purchase of grain and a de- livery thereof to them would be made, but the defendants, without being induced by plaintiffs' action into any misunderstand- ing, did not in fact make or cause to be made an actual bona fide purchase of grain, but acted upon the theory that the differ- ence in price only should be accounted for and paid, then, and under such circumstan- ces, plaintiffs, upon discovery of such facts, would have a right to repudiate what had been done, and recover back the amount by them advanced or paid over to the defend- ants. .Judgment reversed, with costs, and a new trial ordered. The other justices concurred. ILLEGAL SALES. yo7 MOIUILSSEY V. BROOMAL et al. (50 N. W. 383, 37 Neb. 7G6.) Supreme Court of Nebraska. Oct. 4, 1893. Commissioners' decision. Appeal from dis- trict court, Lancaster coiinty; Hall, .Tudjie. Action by John C. Morris-^ey against George Broomal and others for an injunction and other relief. Defendants had decree, and plaintiff appeals. Affirmed. G. M. Lambertson, for appeUaut. Lamb, Ilicketts & Wilson, for appellees. RAGAN. C. :\Iarch 1, 1889, appellant was a grain dealer in Nebraska, and appellees were commission merchants in Chicago, 111. These parties entered into a written con- tract bearing said date, in words and fig- m-es as follows: "This agreement, made this first day of March, 1889, by and between Wanzer & Co., of Chicago, 111., of the first part, and J. C. Morrissey, of Lincoln, Ne- braska, of the second part, witnesseth as follows: Wanzer & Co. agree to loan to said Morrissey a sum not exceeding th'rty thousand dollars, to be used in the pur- chase of corn and other gi'ain. seeds, etc.. in the state of Nebraska, the rate of interest on the same to be seven per cent, per annum, to be charged montlily, as said Morrissey's indebtedness may ap- pear. Said Morrissey agrees to give his promissory notes at 30, GO. and 90 days, to be renewed from time to time, as may be necessary, for the entire sum so loaned, to- gether with crib or warehouse receipts rep- resenting all the gi-ain pm'chased with such funds, or other grain or produce of fullj' equal value. Said Morrissey fm'ther agrees to sell through said Wanzer & Co.. for fu- ture delivery in the Chicago market, corn equal to the amount of ear corn purchased with funds fiu-nished by Wanzer & Co., which sales may be charged from month to month, as may be directed by said Z\Iorris- sey. For the pm'chase and sale of this grain said Morrissey agrees to pay Wanz!>v & Co. one-sixteeuth of one cent por Irasliol per month on all corn on hand at the close of each and every month, which shall cover the charge of changing from month to mouth; and if pm-chases and sales of this character are made in any month in excess of the amount of corn on hand, the charge of such piu'chase and sale, or sale and pm*- chase, shall also be one-sixteenth of one cent per bushel. Said IN'^orrissey agrees to ship to Wauzer & Co. a. ^rain, seeds, and other produce pm-chased b^' him; Wanxer & Co. to sell the same in the Cliicngo market in such manner as in their judgment shall best serve the interests of said Morrissey, and the commission charge for such serv- ice shall be one-half cent per bushel for corn, and for all other gi'ain or produce one- half the rates provided for by the rules of the Chicago Board of Trade for the ship- aieut of nonmembers of said board of trade: provided, however, that said Morrissey shall have the privilege of selling such grain on track or of shipping it to other markets, having first obtained the written consent of said Wanzer & Co., said Morrissey to pay to Wanzer «& Co. the sum of $2.00 per car on every car of gi*ain or seed or produce sliipped by him or his agents during the life of tliis coiUract, and not liandled by said Wanzer & Co., which .$2.00 per car shall be in li.'u of the one-half cent per busliel above prov; U'd for. Said Morrissey sliall make a full state- ment at the close of each calendar month of the amount of the gi'ain on hand and the amount of grain sold or shipped bj- him dur- mg that month other than to Wanzer & Co., and on receipt of said statement of Wanzer & Co. shall make the charges provided for in this agreement. Said Morrissey shall al- so fm'uish to said AVanzer & Co., on tlieir request, a full and unreserved statement of his financial condition, as tliey may de- mand from time to time. Besides such smus of moneys as are above provided for, AVan- zer & Co. agree to pay drafts attached to negotiable bills of lading to nearly the value of the property so represented. Said Wan- zer & Co. agree to report daily all sales of property for account of said Morrissey. and to furnish him with such information as .le may request concerning such sales, and to make all returns as promptly as possilile. Said Morrissey further agi-ees to pay inter- est on all sums Wanzer & Co. may dep.isit as margins on transactions made in his be- half, and said Wanzer & Co. shall notify said Morrissey of the deposit of said margin. This contract shall be terminated on the first day of March. 1890, Wanzer & Co. reserving the right to terminate the same by giving 30 days' written notice; and on the termination of this contract, eitlier by such notice or al the expiration of the time hei'ein agreed, said, and tlieir re- fusal to carry it into effect and advance said moneys for one year, as understood and agreed between the plaintiff and defend ants, and by reason of the defendants' re- call of all the moneys advanced and l«Kined. said plaintiff was damaged in his business and credit and put to great expense in the sum of .$10,000." The prayer of this an- swer was that the cross petition of th<' appellees might be dismissed, and the ap- pellant m -vht have such other relief as in equity and good conscience the court might find him entitled. To this answer appellees tiled their reply, denying all the allegations of new matter in the answer. Theie was a trial to the court, who found all the issues in favor of the appellees, but found that ap- pellant had sold and shipped the identical grain covered by the crib receipts, and the court rendered a personal judgment against the appellant for the amount due on the note. When the issues were complete, appellant moved the com't to transfer the case to the law docket, and impanel a juiy for the trial of the case. This motion the court over- ruled. When the trial was about to be.gin, appellant again moved the com't for a jui'y trial on the issues of the facts involved in the case. This motion the court overruled. The overruling of these motions is the first complaint made by the appellant here. Whether tliis rulin.g of the com-t was correct depends upon the natm'e of the issues made by the pleadings, and the character of the relief demanded. Tlie cross petition alleged the making and delivery by the appellant to appellees of a note and certain warehouse receipts on grain in his elevatoi*s to secm'e the payment of the note; that the note was past due and unp:iid. Appellees' prayer was for a foreclosure of the liens on the gi'ain. and a decree for its sale to pay the ;r»uount due on the note. The answer ad- mitted the execution of the notes and secu- rities, but alleged that the liens or crib re- ceipts had been discharged; that the note was usurious; that the contract out of which the subject-matter of the claim in the cross petition grew was void, being a gam- bling contract; that said contract, as writ- ten, was not as agreed and understood by he parties; and there was a prayer for a reformation of it. The cross petition de- manded eqiiitable relief only. It invokeci the equity powers of the court, and the is- sues made by the cross petition, the answer of the appellant thereto, and the reply of the appellees were entirely equitable; but ap- IH-Ilaut also alleged by way of counterclaim in his answer that he had been damaged $10,- uuo by the wrongful termination of the con- tract by the appellees. Did this counter- claim of the appellant for damages oust the coiirt of its equitable jurisdiction? Is a de- fendant to a purely equitable suit entitled an ILLEGAL SALES. 309 a matrer of rijsrht ami law to a jury for the trial of an issue of law which he has volun- tarily broxiglit into the case? We think not. The appellant had a rij;ht. if he was so minded, to llle his connterelaim for dam- ages in this equity suit. It was an inde- pendent cause of action existing in his fa- vor and against appellees, but apnellant's cause of action on his coimterclain. >vas not lost to him or baiTed had he left [i*^ out of this suit. The action as made by the ap- pellees in their cross petition was one pure- ly of eqiiitable c«;gnizance; but part of the relief demanded by the appellant could only oe granted by a coxu't of equity. The famil- iar principle is that when a court of equity acquires juris^liction over a cause for any pui'pose it may retain the cause for all pm- poses, and proceed to a final determination of all the mattters put at issue in the case. 1 Pom. Eq. Jiu". § ISl, and cases cited. In Wilson V. Johnson. 74 ^^'is. 337, 43 X. W. Kep. 148, it is said: "An action tc» enforce a lien upon a pledge is an eciuitable one, triable by the court." In Loan Co. v. Wen;- worth, 2.J Pac. Rep. 298. the supreme coui'i of AVashington say: "As the foreclosure ot a mechanic's lien is a proceeding cognizable in a court of equity, the mere fact that the defendant in such suit interposes a comiter- claim for damages, as he is allowed to do by the laws of Washington, is not sutticient to divest such court of its .Imnsdiction, anCi to entitle the defendant to demand a trial by jm-y." This com-t said in Dolile v. Ma- chine Co., 15 Neb. 43G. 19 X. \\'. Kep. »J4i, that "an action to foreclose a mechanic's lien is essentially a suit in equity, and a party is not, as a matter of right, entitled to a juiy trial therein." See, also, Gormley v. Clark. 134 U. S. :i3S. 10 Sup. Ct. Rep. .",4; Ryman v. Lynch, 76 Iowa, 587. 41 X. W. Rep. 320. After the evidence was in, it appeared that the grain called for by the warehouse receipts sought to be foreclosed had been ah'eady disposed of by the appellant, and his counsel now contends that the court should have then impaneled a ^ury. But this position is untenable. The com't was sitting in equity. It had before it on the pleadings an equitable action, and it did not lose its jurisdiction because the evidence dis- closes that the only adequate relief it could afford was a persomU juilgment. Van Rens- selaer V. Van Rensselaer, 113 X. Y. 207, 21 X. E. Rep. 75. The com't was right in re- fusing the appellant a jury trial. The contract between the appellant and appellees contained this clause: "This coii- tract shall be terminated on the first day ot ^Nlarch, 1890, Wanzer & Co. reserving the right to terminate the same by giving thirty days" written notice; and on the termina- tion of this contract, either by such notice or at the expiration of the time herein agreed, said Wanzer & Co. shall be entitled to collect from said Morrissey a sum ecpial to one-half the charges said Wanzer & Co. would receive on the grain s^xid Morrissey 1 shall then have on hand, according to the aforenamed rates in this contract." On Xo- vember 18, 1889, appellees notified appellant in writing of their election to terminate saii; contract on December 20, 1889, and on said last date appellees terminated the contract The appellant's next point is that the con- tract between him and the appellees was to continue in force tmtil March 1, 1890, noi- withstanding the agreement therein that the appellees might terminate it sooner. Appel- lant bases this contention on an agreement which he alleges existed between himsilr and appellees to that effect, outside of the instrument itself. The court found this is- sue against the appellant, and rightftilly so. We cannot stop here to quote tlie coitc- spondenee between the parties leading up to the execution of this agreement, but it set- tles beyond all doubt that the contract as signed and as it exists is in all resjjccts as all parties thereto understood it at the time of its execution. The evidence shows that the appellees refused absolutely to contract with appellant on any terms, unless the right to terminate the contract on 30 days' notice was reserved to them in the instru- ment. There was much correspondence be- tween the parties on this very clause, prior to the execution of the contract; and it is a waste of words, in the face of this record, to say that appellant did not Ivnow that the right to terminate the agi'eement was re- served, or that there was any agi'eement or understanding, even on appellant's part, that the contract should, at all events, run to March. 1890. Appellant contends, however, that notwithstanding the clause in the agree- ment reserved to appellees the right to ter- minate it on giving 30 days' notice, the con- tract could not, as a matter of law. be thus terminated. We do not so understand the hi w. •When the right to terminate a contract on notice is reserved without any fraud or mis- take, but with the actual knowledge and consent of all parties to the agreement, it is as valid in law as any other clause of the instrument; and the coiu'ts, when called up- on, will enforce it, unless to do so would be manifestly contrary to equity and good conscience. In Ireland v. Dick, 18 Atl. Rep. 735. the supreme court of Pennsylvania say: ''The appellants accepted a license from tlK- appellees for the manufacture of drilling jars. * * * The agreement was in writ- ing; that is, it was a printed form, filled in as to names, dates, etc., in writing, and with the addition in the right-hand margin of the following stipulation: 'It is agreed by the parties of the first part that the par- ties of the second part can cancel this license by giving thirty days' notice in writing.' This portion of the instrument * * * is presumed to express the exact agreement or the parties upon the subject. Both of the parties acted under the agreement imtil De- cember 19, 1878, when the licensees under the written clause * * * sent a notice to the licensors in the following terms: 'We 1310 ILLEGAL SALES. wish to caucol our liconso concerning the | manufacture of drilling jars * * * as per | contract.' It is entirely clear that this let- ter was an absolute and complete rescission of the agreement." The district court found that the appel- lant was not entitled to recover any damages from th'> appelkH'S by rea.son of their hav- ing terminated the contract, and that find- ing is the ne.vt in order of appellant's com- plaints; and this claim for damages is based solely on the assumption that the appellees violated their contract with the appellant. But did ilioyV The contract was terminated in accordance with its provisions. There is no evidence tending to show that it was ter- minated by the apiiellees for a sinister pnr- po.«e, nor that in exercising their right to terminate it they acted maliciously or arbi- tranly. IntU-ed, the evidence would support a tinding that the appellant's own violation of the conti-act afforded sntficient grounds for its teriuination by the appellees, had the contract by its terms required the ex- istence of such grounds as a prerequisite ro the right of the appellees to terminate it. The evidence shows that the appellees, however, in no respect violated either the letter or spirit of the contract; nor has the appel- lant sustained any damages by rea.son of its termination for which appellees can be made liable. The losses, if any, sulTered by the appellant in consequence of the termina- tion of the agreement, were such only as he must have known, when he signed the con- tract, might ensue if it should be terminated according to its provisions. The appellant also claims that the court's finding that the contract between the par- ties thereto was not usurious is erroneous. By the terms of the contract appellant wai5 to pay 7 per cent, interest on all money loaned him by the appellees, th(» money bov; rowed to be used in the purchase of grain. Appellant was to pay appellees a comm..s.-jion of one-half of one cent per bushel for selling grain shipped to them and .$2 per car on divert- ; ed shipments; that is, for all grain he shipped to others than appellees, and which grain ' had been purchased with money furni.slied by them. Appellant was also to sell througli the appellees, for future delivery in Chicago market, com to equal the amount of ear corn purchased by the appellant with the ; money borrowed; and for making these sales appellant was to pay appellees one- | sixteenth of one cent per bu.shel on all com l appellant had on hand at the close of each j month. Appellant now contends that as the j amount paid ;ippellees on diverted shipments, j ."?412, the aujount paid for comniis,sion on j sales for future delivery, $189.24, added to the amount paid as interest, $788.48.— ex- ceeded 10 per cent, .interest on the money | during the time it was loaned; that, there- fore, the agreement was usurious. The con- I tract is not on its face necessarily a usu- rious on«. Appellees were engaged in the buying and selling of grain on commission, and had a right to lend their money at law- ful rates of interest to such parties and on such terms as would probably increase their commission business, and out of Avhich in- crease they might derive additional proht. The circumstance that their profits growing out of the transaction covered by the con- tract exceeded the legal rate of interest on the amount of money actually embarked in the enterprise does not afford conclusive proof that the agreement was in fact a usurious one. At the most, this circumstance was evidence tending to show that the inten- tion of the parties was to make the contract a cover for u.surious transactions. The ques- tion is: Were these charges for diverted shipments and for making sales for future delivery honestly so intended by the parties as compensation for such services, or were these charges invented as a cover for usury? This was a question of fact for a trial court to determine. He has found that the ti*ans- actions were not usurious ones, and the evi- dence supports that finding. Cockle v. Flack, 03 U. S. 344; Beckwith v. Manu- facturing Co., 14 Conn. .594. Finally, it is said by the appellant that the contract between him and the appellees was a gambling contract, and void. If this is so, it must appear either from the instini- ment itself or from the transactions of the parties under it. The expressions in the con- tract which it is alleged show it a gambling contract on its face are as follows: "Said Moi-riss(^y further agrees to sell througli said Wanzer & Co., for future delivei-y in the Chicago market, corn equal to the amount of ear corn purchased with funds furnished liy Wanzer & Co., which sales may be changed from mouth to month, as may be directed by said Morrissey. For the pur- cliase and sale of this com said Morrissey agrees to pay said Wanzer & Co. one-six- teenth of one cent per bushel per month on all corn on hand at the close of each and every month, which shall cover the charges of change from month to month; and, if piurhases and sales of this charac- ter are made in any month in excess of the corn on hand, the charge of such purchase and sale, or sale and purchase, shall also be one-sixteenth of one cent per bushel. Said Morrissey further agrees to pay inter- est on all sums said Wanzer «& Co. may de- posit as margins on transactions in his be- half, and said Wanzer & Co. shall notify said Morrissey of the deposit of said mar- gins." The substance of the fii-st quotation is that the appellant would sell through ap- pellees, in the Chicago market, for future delivery, as much corn as appellant pur- chased with the money borrowed of the appellees; in other words, it was an agree- ment to sell gniin for future delivery. "The sale of grain for deliveiy in the future is a valid contract." Gregory v. Wendell, 39 Mich. 337. "If a party has property under his control he has a right to sell it to be delivered at a future time." Sanborn v. ILLEGAL SALES. 311 Benedict, 78 111. 309. "Tlio pnrclia.tation is that the appellant agreed to pay interest on all sums of money appellees might advance for him as margins on transactions in his behalf. What transactions? Gambling transactions? We do not think such is a fair construction of the language of this in- strument. "Where a contract is capable of two constrtictions, the one making it valid and the other void, the law will adopt the construction that upholds the contract." Whart. Cont. § 337. To say that this clause shows that the intention of the parties to the contract was to engage in gambling 'transac- tions in grain under it wotUd be a forced construction of the language. "A contract for the sale of grain for future delivery be- ing legal, it logically follows that the agree- ment of the appellant to pay interest on moneys advanced for him by the appellees to protect these sales against the fluctua- tions of the market did not taint the con- tract with the vice of gambling." Gru- man v. Smitli, 81 N. Y. 25; Gregory v. Wendell, 39 Mich. 337. In Rudolf v. Win- ters, 7 Neb. 125, this court said: "A contract to operate in grain options, to be adjusted according to differeu':;^ in the market value thereof, is a contract for a gambling trans- action, which the law will not tolerate." We adhere to that decision. To the same effect, see Embrey v. .lemison. 131 U. S. 33(3, 9 Sup. Ct. Rep. 77u: Sprague v. Warren. 2(J Xeb. 32G. 41 N. W. Rep. 1113; Watte v. A ickersham, 27 Xeb. 457, 43 N. W. Rep. 259. iiut the contract we are considering does aot come within the rule laid down by those cases. The true question here is from the terms of this contract, what was the inten- tion of the parties thereto? Was their in- tention to buy and sell grain upon the market, and settle the differences without any delivery? If so, the contract was a gambling one, and void. But to render a contract invalid it must appear, either from the instrument itself or from the evidence outside, that at the time of its execution the mutual intent of the parties was that no deliveries of grain should be made under it. i)ut the ditf erence in the price paid. We are of the opinion that this contract, on its face, cannot be held a gambling one. But appellant insists that if this agree- ment cannot be construed from its text to be a gambling contract, such facts never- theless appear of evidence. We cannot quote all the testimony to this point. The appellees testified that they hud no inten- tion by entering into this contract to specti- late or gamble in the price of grain. The appellant testified as follows: "Question by the Court: What do you mean by •selling for future deMvery?' Answer. I will explain that to your honor. We in the grain busi- ness build cribs and elevators for the pur- pose of getting storage out of om* grain. We buy the grain from the farmer in November and December and January, dtn-ing the win- ter months, when there is good storage charges. The winter storage is generally about 4 cents from December tiutil May. * * * Now. whan a man takes and fills a crib up in November he has money to pay for it,— he has money to pay for it in the bank.— and he don't ship it out. but puts it in the crib, and fills the cribs up; and as he fills the crib he wires a commis.-;ion hotise in Chicago, "SeU 5.000 bushels March deliv- ery against my acttial corn in crib.' Q. Then he actually intends to deliver that corn? A. Yes, sir. Q. Is that a gambling contract? A. That is not a gambling contract when you sell corn in crib for future delivery, when you have the actual corn. Q. Was there anything of that kind in this contract between you and Wanzer & Co.? A. I don't think there was any gambling any different from selling against the corn which was being held in cribs. A. Anything in the con- tract? A. Not on my part, any other inten- tion than that I went into this contract for to get the storage charges. I had money enough to rim this business. The object was to put the corn in store, and get the winter storage on it. * * * Tliat was the inducement for going into that con- tract." The record also shov»'s that the ap- pellant from time to time sold for future delivery as much grain as he had on hand, and when the time arrived to make delivery, instead of shipping the grain he had in the cribs, he would buy grain on the market to r,i2 ILLEGAL SALES. fill or offset the sales mfide, and resell tlie j,a-ain ou hand for a futiu'e delivery. These transactions, or rather the record of them, would make it falsely appear that the appel- lant sold very much more corn than he ever I)aid for during the time of the transactions; and it is this feature of the dealings of the parties that appellant's counsel claims es- tablishes by the acts of the parties to the contract under it a gambling character. But we think this is not a fair deduction from the evidence. It shows that all these sales and purchases of appellant on the market were based on grain he had on hand, and that this seL'ing and buying on the market was not dealing in options, not betting on the rise and fall of the market, but pur- chases made to till sales he had previously made, and thus obviated the necessity of delivery of the grain he had in his cribs in Nebraska. The case of Douglas v. Smith, 74 Iowa, 468, 38 N. W. Rep. 163, is one in which the facts were substantially the same as in the case at bar. and that court said' "Where country grain Iniyers had a large- quantity of corn in cribs, and they made sales from time to time, through Chicago commission merchants^ for future delivery of No. 2 corn, but fearing tliat their corn would not grade No. 2, and hoping that it would imi)rove with age, they bought in and resold, intending to deliver the corn to cover' their sales, held, that the transactions were not illegal, so as to defeat their brokers in the collections of the margins advanced for them." The facts in this case bi'ing the transactions of the parties within the opera- tion of the decisions of the case last above cited. The preponderance of the testimony establishes the fact that the sales made by the appellant were not wagers, but that the grain was to be actually delivered at the time agreed upon. The decree of the dis- trict court is right, and the same is in all things athrmed. The other commissioners' concur. ILLEGAL SALES. 313 WHITE V. BARBER (two cases), (S Sup. Ct. 221, 123 U. S. 392.) Dec. 5, 1887. EiTor to the cironlt court of the Unitofl States for the Northern district of Ilhnois. and appeal from the circuit ^ourt of the United States for the Xortliern district of Illinois. The first cue of these cases is an action at law brought on the tenth of May, l'-S3, by James B. Wliite ajraiust George M. Barber, in the supei'ior court of Cook countj', Illinois. The declaration demanded the siun of $1.">,000. and declared on the common coimts. The defend- ant pleaded non assumpsit. In June, 188;^, the cause was removed by the defendant into the circuit court of the United States for the North- ern disti'ict of Illinois. At the trial, in Feb- ruarj-, 1884, there was a verdict for the de- fendant, followed by a judgment for him, to re- view which the plaintiff has brought a writ of error. There wj,s a bill of exceptions, the Avhole of which is, in substance, as follows: The plaintiff introduced the following evi- dence: James B. White, the plaintiff, testified that now. and during the time in question, hi resided at Fort Wayne, Indiana, engaged in the busi- ness of dealing in general merchandise; that in 1879, and prior thereto, one A. S. ^laltman. of Cliicago. acted as his agent in purchasing and forwarding merchandise of various kinds. .."About September, 1879, desiring to do some trading on the board of trade, Chicago, I asked Maltman to recommend some good responsible broker on the board of trade, through whom I could do business; that Maltman recommended the defendant, who th^n, and during the time in question, was a broker residing in Chicago, and doing business on the board of trade: that thereupon I commenced ti'ading on the board, sending my orders at first to IMaltman, who communicated them to the defendant; that about December, 1879, I came to Chicago, made the acquaintance of defendant, and thereafter did business directly with him; that I contin- ued to do business with defendant during the years 1S79, 1880, 1881, and 1882, buying and selling on the board, through the defendant, as broker, corn, wheat, oats, pork, and other com- modities, and that about April 19, 1882, I had a settlement with defendant, in which all pre- vious dealings were adjusted; that up to this time the transactions which I had made through defendant on the board amounted to .?10.j,000 in 1879, $1,718,000 in 1880, $010,000 in 18^1, and .$072,000 in 1SS2; that in November or De- cember, 1879, and at other times prior to the settlement in April, 1882, I had conversations with the defendant in which I told defendant that I was a merchant in Foit Wayne, and did not want it known that I was engaged in specu- lating on the board of trade in Chicago, as it miglit affect my credit, and that the account could be kept in the name of A. S. ilaltman; tliat I considered it a hazardous business, but was willing to gamble provided I could have a fair show that I wanted my deals placed with responsible parties, so that I could get my mju- ey when I made it: that I didn't want any of the proi erty, but meant simply to do a gambling busiuiss; that defendant told me [plaintiff] that he knew what I wanted; that Maltman had explained my situation and business; that he would deal only \^ith responsible parties, and the deals should be settled so as to get the prof- its or losses; that defendant told me [plamtiff] that not one bashel in a million that was bought and sold on the board was legitimate business; that a few of the large houses did some legitimate business, but most of it Avas simply trading in differences; that he [defend- ant] did nothing but business of the latter kind; that he dealt mostly for himself; tliat he did a good deal of 'scalping,'— deals made and closed the same day, on the tvu-u of the market; that he did not let his deals run over night; that, up to April, 1882, I [plaintiff] never delivered or received any of the property so sold or bought, nor was anything ever said by defend- ant to me about receiving or delivering the property or making arrangements to do so; that, from time to time defendant rendered' statements to me [plaintiff] showing the deals made, the price per bushel, or. in 'case of pork, the price per 100 lbs., at which the commodity was bought and sold, the difference in dollars and cents, the commissions charged, and the total debit or credit passed to my account; that all the deals made were in form contracts for future delivery, in which the seller had the op- tion of delivering at any time during some future month; that up to April, 1882, all trades made by defendant for me [plaintiff] had been settled or closed by coimter-trades prior to the mouth in which delivery could be made; up ta April 19, 1882, no commodities had been deliv- ered to or received on these trades, nor had any suggestion or requirement on the part of Mr. Barber to deliver been made; that defend- ant never reported to me the names of the par- ties with whcm trades were made on my ac- count, and that I never knew or inquired who such parties were; that, after the settlement in April, I commenced selhug wheat for July deliveiy, and by the last of May had sold, through defendant, 100,000 bushels for that de- livery, which are the trades in question in this case; that there was a comer in July wheat, and the price was forced up ten or twelve cents; that on the last of July I came to Chicago, had an interview with defendant in the morning, in which he [defendant] proposed to make a tender of No. 2 red winter wheat, the kind sold being No. 2 spring wheat; that No. 2 red win- ter is intrinsically more valuable than No. 2 spring, but that on the last of July the former stood at 98 cents per bushel, and the latter at $1.3.5 to $1.37; that I [plaintiff] knew of the tender, and I did not object; that I met de- fendant later in the day. and was informed by him that he had borrowed warehouse receipts for ten thousand bushels No. 2 red winter wheat, and had made a tender of the same to the several parties to whom he had sold the wheat, and that such tender was in every ca^-e de- cliued, and that said tender was made uuleic . if - " " 'I have 100 M July spring wh't sold for you, and the settling price of same as fixed by board of trade, (1.35,) including coms., 14c.' "That the item of $12,000 balance in said ac- count consisted of money advanced and paid to the defendant; that the item, 'July 3rd, by draft, $3,000,' consisted of $3,000 money paid the defendant by means of a draft." Plaintiff testified, further, that "on April 2, 1883, I served the following notice upon the defendant, by delivering to him a copy there- of. The defendant read the notice, admitted he had the money in his hands, but declined to paj^ it over." The notice was offered in evi- dence, and is as follows: ''To G. M. Barber, Esq.: In a statement made by you, dated October 30, 1882, of deals made on my account on the board of trade, Chicago, you acknowledge a balance in your hands of $11, 112. .50 in my favor, being, so the statement says, the difference between price j-ou sold 100 M July wheat for me and the selling price of same as fixed by the board of trade, $1.35, including your commission of \i cent. Nowyoj are hereby notified that I claim all contracts for sale of said wheat to be ille- gal and void, and forbid you to pay over any part of said money or balance to any one, and I further demand the immediate payment thereof to myself. James B. White. "Dated Chicago, April 2, 1883." On cross-examination plaintiff testified that, during all the time he traded through defend-1 ant, iNIaltman continued to some extent to act as his agent in the Inisiness with defend- ant; that he received some profits debited to him in the statement offered in evidence; that defendant complied with his orders, so far as he knows; that he didn't tliink defendant had anything to do with the corner in wheat; that he (plaintiff) had nothing to do with the appointment of a committee by the board to fix a selling price for July wheat; that he knew what was going on, and talked with A. M. Wright and other members of the board of trade about the deal, but did not enter into any agreement or arrangement with the other brokers similarly situated to the defendant in regard to legal proceedings to prevent the consummation of the corner; did not employ , counsel on behalf of dofendan*', or authorize any steps to be taken in his name; that he (plaintiff) was an outsider, and was not rec- ognized in that matter; that he did not agree to pay attorney's fe^s. but expected he would have to do so, and did after the litigation was over; that he knew a bill was filed; that the matter was contested and decided by the su- preme court in favor of the cornerers. The litigation was after a committee appointed by the board had fixed the selling price at $1.35. In the progre.ss of the case the plaintiff" testi- fied further, among other things: "I left it for INIr. Barber to put the contracts in form when I wished him to buy or sell. I under- stood that he would go on the board of trade and either buy or sell, and I understood that he did go on the board of trade and buy and ILLEGAL SALES. 315 sell according to my orders. There was no disobedience of my orders, so far as 1 know. I have no complaint to make on the score of nonoliservauce of my orders. I knew that while we thought the corner in J^ily wheat was about to cuhninate, buyhig wheat at Milwaukee or elsewhere to fill orders was talked about,— a great many talked of it, — but it was considered that parties who at- tempted that got beaten, because they sim- ply dropped the grade on them. It is possible I may have talked with ^laltman about the possibility of buying wheat in ^.Jilwaukee to fill my orders, but I never dreamed of it. I .said sonif Avero doing it; some did do it. It was generally talked that some i>eople had done it, and as to the propriety of doing it. It was only three cents, I think, to bring it fi'om Milwaukee here, and twelve, fifteen, or twen- ty cents, snmewiiere along tliei'e, lower a bushel, and they could fill their contracts here with it, and not lose so much as they would in the extortion of the corner. I might have said, 'Well, it could be done.' 'I wish I could do it,' or something of that kind. I knew B.arber, being a member of the board of trade .and making contracts on the board for me, would ba obliged to observe the rules of the beard. I understood there was a rule that one must keep his margin good. I told him to buy, and told him to sell, and told him to sell out, and when to cover and when to close trades, and he cbsei'ved my orders. If there was any corner it was not my fault, as I was selling, and it was not from Barber's fault, •so far as I know. After he made the tender of red winter wheat on the tliirty-first of July, 1SS2, I approved of what he did. 1 went to see Mr. A. M. Wright, who Avas one of the parties proposing to file a bill to question the propriety or binding force of a finding of a committee of the board of trade fixing the settling price for July wheat. I saAV published a communication in the paper, an interview with the reporter, in regard to this corner, or at least he publi.shed a communication, and I went to see him. and consulted with him about it. The complaint Avas that the price of July wheat was put too high on the thirty- first of July. Barber had spoken about the • contracts being under the board of trade rules. After the culmination of the corner I got a copy of the rules,— printed copy. He shoAved me the rules under which the committee was -appointed. I think the rule is on page 51 of Rules of 1SS2, § 3. Mr. Wright believed it was a legal tender; so did I. I believed that 'red' would be a good tender. I went to see counsel. It was John E. Burke. He was a lawyer, who had charge of Avhat he called 'Contested Cases.' There were some thirty- tAVo members of the board in contested cases, and jNIr. Barber joined in with them. I foot- ed the lawyer's bill; that was all I did. I told Mr. Burke that I was one of the felloAvs that got bled in this affair, and I did not Avant to stand it if he could help it. He Avas seem- ingly as nuicli out of humor about it as I Avas, as far as the situation AA'as concerned,— the unfairness of it. When it came to pay for the expense of tliose legal proceedings, the bills were pre.sented to Mr. Barber and :Mr. Malt- man, and I told them to pay them and I would pay them back; and I did. I AA'ent with Mr. Wright to Mr. Burke. Mr. Barber AAas away from home at the time. I told Mr. Burke the situation I was in, and he said: 'Well, Avhen j-our broker comes here, have him come up and see me.' It Avas luiderstood that Mr. Barber Avas my broker or commission meichant. and, Avhen he returned, he Avent and joined in Avith the others to contest this thing. I kneAV hoAv the matter prG5:vessed aft- er that. It Avas contested in the court? in some formal AA'ay to get into the supreme court. There was a px'o forma decision in the court here, and the case Avas taken to the su- preme court, and was there determined in fa- vor of the cornerers. That was after the com- mittee of the board of trade appointed under these rules had been appointed. The case went to the supreme court. We simply had to have patience to wait until they determin- ed it. They determined it about a year ago last January,— that is, in January. 188o,— be- fore 1 had served notice on him. In most cases Avhere I bought or sold, I closed before the ejid of the month in some way, — either sold out or CGA^ered it. If I bought Avheat of a man for the month of July, he had the Avhole month of .July in which to tender to me. During the whole of the month of July I liad an option at what time I would deliver. The buyer has to close his trade the first of the month, and the seller has to the last of the mouth, or, if he pleases, he can close betAveen times." GJeorge M. Barber, defendant, being first duly sworn, testified as follows: That after the notice was seized upon him by plaintiff, in April, ISSo, he paid over to the various parties to Avhom he had owed the wheat in question the sum of $11,412..50, less the amount of his commissions, which were $2.30; and, on cross-examination, that he made such payment because charges had been preferred against him and he had to pay or be suspend- ed from the board. Plaintiff here rested his case, and the de- fendant, to maintain the issues on his part, introdviced the foUoAving: George IM. Barber, defendant. Avho, being recalled, testified that he AA'as a commission merchant and member of the board of trade; that he Avas employed by Maltman to trade for plaintiff on the board of trade,— to make trades there; that, in executing the orders of plaintiff, he dealt with other members of the board; that he did not seek commission busi- ness, but dealt mostly on his oavu account; that once, Avhen White was hanging on to a deal which had gone against him. Avitness told him that Avitness never hung on to a deal, but in his OAvn trades generally calculated, when he 316 ILLEGAL SALES. ■went home at niixht, to have an equal amount bought and sold, so that he would not bo affected by the huetuatious of the market, but did not say to Mr. White that Wliile's busi- ness would be conducted in that way. Wit- ness had to be governed by White's orders, which were to do so and so; did not recollect plaiutiff saying that he wanted to gamble on the board; that the manner of making ti'ades on the board is as follows: If the order was to sell, he would go on the board and offer to sell so much wheat at such a price, and some other broker would accept the offei', or some other broker might offer to buy. and he (de- fendant) Avould accept the offer, and thereupon both parties made a memorandum of the trade on a card, without comparison; that such memorandum was usually as follows, (re- ferring to a card,) this being one of the trades in question: "10 M, July, H. G. Gaylord, l:2dVs, J. B. W.;" that this was the only wilt- irg made in the hurry of business on the board; that "10 M" meant 10,000 bushels; "July" meant for delivery in July, at the sell- er's option; that No. 2 spring wheat was un- derstood; that "H. G. Gaylord" was the name of the broker to whom the sale was made; that "1.25'^{i" denoted the price, and the ini- tials "J. B. W." indicated that the sale was on account of plaintiff; that their trades were afterwards, on the same day, entered on the books of the respective parties, and their clerks went round and compared and checked them olf ; that this was the case with the sales of 100,000 bushels for delivery at seller's option during July, 1882, (the deals under considera- tion;) that he had no different agreement with any of the persons with whom he dealt for plaintiff; that the grain was to be delivered or received; that "puts" and "calls," or mere options to buy or sell, were not recognized on the board; that it is customaiy, where a com- modity is sold to and bought of the same broker, upon different orders, for the brokers to settle their trades by paying the dif- ference, as the case may be. (And a rule of the board of trade aUowiug such transfers was read in evidence.) That he never told plaintiff that trading on the board was illegit- imate, but may have told him many of the other trades were settled up, or offset, with- out deliverj\ The volume of transactions was too large to make delivery practicable in all cases. As to the conversation between wit- ness and White, November 30, 1879, witness stated he believed it was the fii\st time he met White, for whom there were then to ma- ture contracts to buy 100,000 bushels corn, and witness told White that the chances were strong that the corn would be delivered, and he must either furnish the monej^ to pay for it or order him to sell it, so that he would have a place to put it, when delivered, or could make arrangements to transfer it; that in the contracts for Mr. White witness had received and delivered property; had received as high as 60,000 bushels in a day; that, at tlie re<]m'st of plaintiff, ho did not settle the (■■■'als for .July, but made default as to the 1011,000 bushels. "Mr. Maltman, for Mr. AVhile, gave me the draft of $.j,000, June 12, 1882. I Y^s required to give my word that I Avould not buy in the wheat unless by his orders, but would allow him to default, and Maltman told me that White said he would settle, — let the committee lix the price, and he would settle that way, if possible, if he did not decide to buy in the wheat." White sent witness a telegram from Fort Wayne. Au- gust 5, 1882, as follows: "Don't cancel the July trades. My attorneys here believe the tender we made is good, and can be enforced. J. B. White." (Telegram read in evidence.) There were about 30 other brokers who made default; that a committee was appointed in accordance with the rules of the board, who fixed the settling price at $1.35; that thereuj)on the brokers filed bills in court, to enjoin the board from suspending them for not settling at the price fixed by the committee; that he returned to the city about September 10, 1882, after being absent a mouth or more, and was informed by 3Ialtman that the plaintiff had made arrangements for him to join in the in- junction proceedings; that the next day he went to the oflice of J. E. Burke, the attorney for the defaulting brokers, and signed and swore to a bill for the purpose above stated; that said bill was filed; that afterwards the supi'eme court rendered a decision adverse to the prayer of the bill, and the bill was dis- missed; that plaintiff was informed of the result, and paid the attorney's fees and dam- ages in the case; that plaintiff did not suggest the making of any further contest; that at the time plaintiff made the demand upon him, April 2, 188^^, ihe monej^ in question was un- der his conti'ol, except $6,700. which had been deposited in the bank as margins, on account of some of the deals; that he frequently re- ceived and delivered grain; had received as high as 60,000 bushels in a day; that he could not recall any trade in which he bought for Mr. White where he received any commodity, but had no doubt at all in all his tradings he did I'eceive a good deal, but could not recall any particular instance. "There was a cer- tainty that delivery would be made, imless. after the trades Avere made, I made offsets. 1 always do get more or less; do not expect it will all be delivered. I expect I can offset trades with a good part of it." When the 100.000 bushels in question were sold, wit- ness expected it would be delivered; that he would buy here in 'the market, the largest grain market in the world. Thomas W. Burns, being duly sworn, tes- tified for the defendant that, in 1882, he Avas a member of the firm of Ulrich, Busch & Co., and a broker on the board of trade; that,, on May 17, 1882, he bought of defendant, for his firta, "5, July Avheat. at 1.24%." No. 2 spring Avheat, (5,000 bushels;) that the con- tract was made in the regular way; that ILLEGAL SALES. 317 there was no secret understanding or agree- ment that it was not to be executed, or that it was to be settled; that the wheat was to be delivered at any time in July, at the seller's option. Abel H. Bliss, being duly sworn, testified for defendant that he was a mem1)er of the board of trade, and was doing business as a commission merchant in ISSli; that in May he bought 10,000 bushels July wheat (No. 2 spring, deliverable at sellex-'s option at any time during Julj') of defendant, which he never received; the wheat was to be deliver- ed in July, at' the seller's option; that there was no agreement that the wheat was not to 1)6 delivered, or that it was to be settled; that he certainly expected to get the wheat. It was admitted that the other brokers to whom defendant had sold the w'heat in ques- tion Avould testify in a similar way, as to the trades with them, respectively. Alexander S. Maltman, being sworn, testi- fied, for defendant, that he was of the firm of A. S. Maltman & Co., and was engaged In the commission business in Chicago; that he acted as agent for plaintiff, in his trans- actions with defendant; that he never told defendant that the transactions were to be of a gambling or fictitious character; that his instructions from plaintiff were for the most part contained in telegrams and let- ters, and these he gave or showed to defend- ant; that the transactions were quite con- tinuous; that, in July. 1882, he had several conversations with plaintiff as to Barber defaulting; that when the price was up in the thirties, plaintiff was unwilling to ad- vance more margins unless defendant would agree to default, and that he procured such an agreement from the defendant at the re- quest of plaintiff: that, after default had been made, plaintiff said he was willing to leave it with the committee to be appointed by the board; that he went with plaintiff to the office of Burke, the attorney; that plain- tiff went there to get otit an iniunction to prevent the board of trade from sus]iending defendant; that he paid out for plaintiff on account of the said suit $283.50, which plain- tilT had repaid him. George F. Morcom, being duly sworn, tes- tified for defendant that he Avas of the firm of A. S. Maltman & Co.; that he heard plain- tiff say that the tender of No. 2 red winter wheat was good; that, according to their own lilies, they were l)oun(l to accept It; that plaintiff said that he desired Mr. Bar- ber to default on the deals and let the mat- ter go to a committee and let them fix the price, and said that he would see that Mr. Barber was protected. Deville C. Bannister, being duly sworn, testified for defendant that during the time in question he was book-keeper for defend- ant; that plaintiff, at the time the injunc- tions were being obtained, went to Mr. Burke's office to see about the matter, and said he wished he w^ould take the matter into his own hands; that Mr. Barber did not pay over the money until it was necessary to do so in order to save himself from being suspended from the board. The bill in chancery above referred to, being a bill filed in the superior court of Cook county, by George M. Barl)er, in the interest of or for the benefit of the plaintiff, on the eleventh of September, lo<52, making the board of trade of the city of Chicago party defendant, was, together with a copy of the injunction issued in pursuance of the w-rit, read in evidence. It set forth certain sections of the charter of the board of trade, and referred to a copy of the rules of said board in force January 1, 1882, making such copy a part of the bill as an exhiliit, and re- ferred also to sales of No. 2 spring wheat, made by defendant for delivery in July, 1882, and alleged that there was an unlawful com- bination to prevent the complainant and oth- ers situated like him from fulfilling thein contracts, etc., and set forth a certain rule of the board of trade providing, among oth- er things, for the appointment of a commit- tee to detei'mine disputes as to the price of property, in case of supposed excessive claims for damages being made under con- tracts, on default, etc., and showed that ap- plication for the appointment of such com- mittee was made with reference to the de- faults made upon contracts for delivery of No. 2 spring wheat in July, 1882, and show- ed that the committee determined the price for settlement at $1.35 per bushel; and the decision of the committee was drawn in ques- tion by the bill upon various grounds, not drawing in question the validity of the con- tracts, but questioning whether the board of trade had power to compel members to al)ide the decision of such committee, and also ques- tioning the regularity of the appointment of the committee, and charging that, in the con- duct of the hearing had before the commit- tee, and in the finding of the committee, the spirit of the rules of the board* of trade was violated by putting it in the power of per- sons who had been concerned in cornering the market to get excessive damages, etc. The bill pointed out certain mles of the board of trade under which, in case a mem- ber failed to comply promptly with the terms of any business contract or obligation, or failed to satisfy, adjust, and settle the con- tract, or failed to comply with or fulfill any aM'ard of the committee of arbitration, or committee of appeals, made in conformity with the rules, regulations, and by-laws of the association, he should, upon admission or proof of the delinquency before the board of directors, be subject to be suspended from all privileges of the association, etc.; and an injunction to prevent suspension or expul- sion, and especially to restrain and enjoin the board from accepting, treating, or rec- ognizing the decision of the committee afore- s.Mid as in force, or as having any effect, w.'is prayed for by the bill. Such injunction was 31S ILLEGAL SALES. onlorod. and was issued Soptfinber 11,1882, and was served on the board. There was also introduced a certified transcript of tlie order of said superior court, made on tlie eleventh of October, 1882, dissolving the injunction, and assessing damages on account of the issuing of the same, but showing that, by stipulation, the cause was to al)ide the tinal result of the case of Abner N. Wright et al. V. The Board of Trade of the City of Chicago, in the appellate court or in the supreme court, and that, in case of the reversal of the decree in that case, then the decree In the Barber Case should be set aside on his motion, and the injunction in his favor was continued. This decree was to be regarded as final in case the decree in the Wright Case should be affirmed, except that, in such case, tlie injunction was to be dissolved, on defendant's motion. The transcript further showed that, on the sixteenth of April, 1883. the said superior court, in the said chancery- suit of Barber, vacated the order to con- tinue the injunction, and the bill thereupon stood dismissed under the previous order of the court, this being because the supreme court had, in the Case of Wright, afflrmed the decree of the superior court dismissing his bill. It appeared that, after the deci- sion of the Wright Case, inquiry was made of the plaintiff as to wliether he wislied anything further done in refei'ence to the prosecution of the chancery suit in the name of Barber, and he replied: "Further appear- ance not necessary." It further appearing, from the testimony, that the plaintiff paid the damages which were assessed against Barber on account of the issuing of the injunction, the testimony of the witness Barber tended to show that, at the time of the delivei'y by defendant to the plaintift" of the statement aforesaid, dat- ed October 30. 1882. the balance of .$11,412.- 50 therein mentioned, that amount being the difference between the price at which the 100,000 bushels of wheat were sold for .Inly delivery, and .$1.3.5 per bushel, the selling price so fixed by the committee.—that is, the difference over and above the commissions of one fourth of a cent per bushel charged by the defendant, — was to remain with the defendant, to await the action of the court upon the afoi*esaid bill in equity, seeking to impeach the decision of the committee fix- ing the settling price, and that, after that matter had been litigated in the courts, through the suit so brought in favor of Wright, which was made a test casp, com- plaints were made before the board of di- rectors of the board of trade against the defendant on account of default on his part in performing or settling the contracts for the sale of the said l(K),Oii() bushels of wheat, notice of one or more of which complaints was given by defendant to plaintitT, and the defendant appeared before the directors to make defense, but did not succeed in mak- ius anv defense, and. being about to be sus- pended unless he settled, did thereupon set- tle by paying according to the decision of the committee declaring $1.35 per bushel to be the settling price, so that the moneys paid out by defendant, together with his commission, exhausted the said sum of $11,- 412.50; and this was prior to the commence- ment of tliis suit, but after the notice of April 2. 1883, above set forth. The testimo- ny tended to show that this money was left in defendant's hands by Mr. White, when the aforesaid statement of account stating said balance, etc., was given by defendant to the plaintiff, and Avas so left for the protection of the defendant, as to the contracts, with ref- erence to the litigation arising as to whether the decision of the committee should be al- lowed to be binding in I'egard to the settling price. On the foregoing evidence, the plaintiff claimed to recover the before-named sum of $11,412.50, as money placed by him in the hands of the defendant for the purpose of dealing in gambling contracts at the Chicago board of trade, and which contracts, it was- asserted, Avere made illegal by a statute of Illinois. The court charged the jury, among other things, as follows: "The question of fact for you to determine under the proof is whether these dealings made by the plain tiff on the board of trade, through the de- fendant, as his broker, were gambling con- tracts, within the meaning of the law. The statute of the state of Illinois upon the sub- ject I will now read you. Section 130 of chapter 38 [Hurd, Rev. St. 111. Ed, 1883, p. 394; Ed. 1885, p. 405] reads as follows r 'Whoever contracts to have or give to him- self or another the option to sell or buy, at a future time, any grain or other commodity, stock of any railroad or other company, or gold, or forestalls the market by spreading false rumors to influence the price of com- modities therein, or corners the market, or attempts to do so in relation to any of such commodities, shall be fined not less than $10 nor more than $1,000, or confined in the county jail not exceeding one year, or bothr and all contracts made in violation of this section shall be considered gambling con- tracts, and shall be void,' The plaintiff con- tends that the contracts in question, made by the defendant for him and in his behalf. were gambling contracts, within the mean- ing of this law. The question then arises, what kind of contracts are prohibited by this statute"? You will notice the language is, 'whoever contracts to have or give to himself or another the option to sell or buy at a future time,'— an option to sell or bu.v at a future time. The courts have construed to some extent the meaning of this statute, and I will read from a case decided by the supreme court of this state the construction which is there given upon it: 'The evidence in this record is by no means concUisivc- that the contracts for grain made by defend- ants for plaintiff were unlawful. I'liey ILLKCAL SALES. 319 were made in the regular course of business, and. for anything that appears in this rec- ord, they could have been enforced in the courts. It is true, they wei"e time contracts, —that is, the seller had all of the month in which to deliver the grain; but the testi- mony of Wolcott is they were bona tide con- tracts for the actual purchase of the grain. The only option tlie seller had was as to tlie time of delivery. Tlie obligation was to deliver the grain at all events, but it was the seller's privilege or option to deliver it at any time before the closing of business on the last day of the mouth. Time contracts, made in good faith, for the future delivery of grain or any other commodity, are not l»rohibited by the common law, nor any stat- ute of this state, nor by any policy bene- ficial to the public welfare. Such a restraint would limit commercial transactions to such a degree as could not but be prejudicial to the best interests of trade. Our present statute was not in force when these deal- ings were had; consequently the rights of the parties are not affected by it. What the law prohibits, and what is deemed detri- mental to the public interests, is specula- tions in differences in market values, called, perhaps, in the peculiar language of the deal- ers, '"puts" and '"calls," which simply means a privilege to deliver or receive the grain or not, at the seller's or buyer's option. It is against such fictitious gambling transactions, we apprehend, the penalties of the law are leveled.' " The above extract is taken from the opinion of the supreme court of Illinois in Wolcott V. Heath, 78 111. 433. The circuit court then proceeded in its charge as fol- lows: "Now. the question is. in the light of the testimony in this case, whether the contracts in question in this case were con- tracts to buy or sell at a future day. or whether they were simply absolute sal^s. in which the seller had the entire month.— the month specified, — in which to perform his contract. This court has found it necessary, on several occasions, to construe this statute, and has held, with the case Avhich I have just read, that the statute is leveled against what are called "puts' and 'calls,' — that Is, the right or the privilege which a party may have to buy or sell of you at a future day, not an absolute agreement now to sell, but where one man pays another $.5 or .$10 for the privilege of delivering to him 1.000. 5.000. or lO.OOO bushels of graiu at a future time, or pays him a similar amount for the priv- ilege of buying or accepting from him grain at a future time.— a contract which cannot be enforced in terms, because it is wholly at the option of the party holding the option whether he will call for the grain or not. This is what is termed a "gambling contract,' or a 'put' or 'call.' or 'an option to buy or , sell at a future time.' within the meaning of the Illinois statute." The bill of exceptions further says: ""And the court further expl;iine(l to the jury that the "option to buy or sell,' prohibited by sec- tion 130, c. lis. of the Revi.sed Statutes, means a privilege which the buyer or seller may or may not exercise at his option, and that a contract by which the seller absolutely agrees to deliver a certain commodity to the buyer within a specified time, wlien the only option is as to the delivery within a certain time, such as within the whole of some month named, is not a gambling contract, \Wtlun the meaning of this statute." There were otlier instructions to the jury, the entire charge covering nearly seven print- ed pages of the record. The bill of exceptions states that the plaintiff excepted to all of the instructions given, and especially to those hereinbefore set forth. The second case above named is a suit in equity, brought on .July 24. 1S,S3. in the cir- cuit court of Cook county, Illinois, by the Bank of British North America, a corporation Oi Great Britain, again: t .James B. White and George M. Barber. The biU alleges that the bank has on deposit, in its office at Chicago, Illinois. .$0,700, standing to the credit of Bar- ber, the same having been deposited by him as security for certain trades or deals in wheat with members of the board of trade of Chi- cago, the money having been turned over to the plaintiff by the ^Merchants' Bank of Cana- da, to whose business at Chicago the plaintiff succeeded; that White claims that said money belongs to him, and claims that Barber, in depositing it. acted merely as the agent of him. White; that on April 2, 18S3, White made a demand upon the plaintiff for the money, and forbade it to pay the money, or any part thereof, to any person, except upon the order of him. White; that White had com- menced an action against the plaintiff to re- cover the money; and that Barber had de- luanded of the plaintiff that it should pay the luoney to him. The bill prays that the de- fendants may interplead and settle the con- troversy, and that the plaintiff may be al- lowed to pay the money into court. Both of the defendants appeared in the suit. White put in an answer setting up that the $<;.70;) was part of a larger sum of money placed by him in the hands of Barber to be used by Barber as margins in gambling contracts which Barber was to make for him on the board of trade in Chicago; that Barber, in pursuance of such employment, and in .Vpril. May. and June, 1882. made certain gambling contracts with members of the board of trade, wliich contracts were ostensibly for the sale of certain quantities of wheat by Barber to such members, to be delivered at any time iu July, 1882. at the option of the pretended pu - chaser, but such pretended contracts were a mere form and cover, and tne real intention of all the parties was to settle them by a pay- ment of the difference between the price for which the wheat was sold and the market price of the same when delivery thereof shouM be called; nmt Barber took .$(i,700 of the money of White, so placed in his hands, and 320 ILLEGAL SALES. iloposited the same with the Merchants' Bank of Canada, as security for certain of such pre- tendetl contracts, being the same $6,700 turn- ed over to the plaintiff by the Merchants' Bank, and that, while the money was still in the possession of the plaintiff,, and on April 2, 18S3, White notified both the plaintitf and Bai'ber not to pay the same to any one but A^'hite. Barber also answered the Tilll, and in his answer made the following allegations: He was not the agent of White in depositing the $(5,700. As a commission merchant at Chi- cago, he made certain sales and purchases of gi'ain and poi'k, for future delivery, at the in- stance and request of White, being, as be- tween himself and those with whom he made the contracts, responsible for the performance of them on his part. A large number of such transactions occurred in May, June, July, Au- gust, September, and October, 1882. Barber was doing business on the board of trade of Chicago, of which he was a member, and White was living at Fort Wayne, in Indiana. The contracts were made with reference to the rules and regulations of the board of trade, and to the usages of business on that board; and by those iiiles, the persons with whom Barber made such contracts were au- thorized to demand margins and deposits, as security for the performance of the contracts by Barber, and in various instances such de- mands were made, and it became necessary for Barber to make deposits for margins or .'•.ecurit:^ with reference to the contracts. These rules provided t}rat, on time contracts, purchasers should have the right to require < f sellers, as security, 10 per cent, margins, based upon the contract price of the property bought, and further security, from time to time, to the extent of any advance in the mar- ket value above that price; also that sellers should have the right to require, as security from buyers, 10 per cent, margins on the con- tract price of the property sold, and, in addi- tion, any difference that might exist or occur between the estimated value of said property and the price of sale. The rules also provided that securities or margins should be deposited either with the treasurer of the board of trade, or with some bank authorized to receive the deposits. The rules also prescribed the form of certificate to be used by the bank, which form was adopted by the ^Merchants' Bank of Canada, and by the plaintiff. In accordance with those rules, the certificates showing the deposits were issued in duplicate in eacn case, one being marked "Original" and the other "Duplicate," and both being marked "Not ne- gotiable or transferable." The certificates wore not made with express reference to any particular contract, and the aeposits were subject to be treated as security for the ful- fillment of any contracts made between the parties to +he respective certificates, during the time the deposit remained unpaid. During May. 18S2, Barber, at the instance and re(iuf'st of "^A'hite, made contracts for the sale and delivery by Barber to divers persons, members of such board of trade, of large quan- tities of No. 2 spring wheat, for delivery at seller's option during July, 1882, at certain prices specified in the various contracts, ran- ging from $1,221/2 per bushel to $1.2.51/8 per bushel, which wheat was to be delivered in lots of .5,000 bushels. W^hite did not put Bar- ber in funds to buj^ wheat for delivery accord- ing to the contracts. While Barber remained liable upon the contracts, he was from time to time called upon to deposit margins on account of the contracts, to secure their per- formance, and did, in accordance witli the rules of the board of trade, and in compliance with his duties under the contracts, make de- posits of money and procure certificates there- for from the Merchants' Bank of Canada. The answer then gives the particulars of 12 different certificates for such deposits on vari- ous contracts, amounting in the aggi'egate to $r.,70<). The contracts for the delivery dur- ing July, 1882. of No. 2 spring wheat, were not performed by White, me moneys de- posited as margins were furnished by Barber in large part from his own means, for the purpose of keeping the contracts open, as was desired by White. Barber also, in order to avoid loss by White, and to protect the in terests of White, made, before the close of July, 1882, a tender of No. 2 red winter wlieat under the contracts, which wheat was of greater intrinsic value, as Barber believed, than No. 2 spring wheat; but the tender was rejected by the purchasers, on the ground that the wheat tendered was not of the kind and grade contracted to be delivered, nor such as, under the rules of the board of trade, was necessary to be delivered. The parties with whom the contracts had been made, and who had the right to call for delivery, made large claims for damages against Barber, and in- sisted that the tender was irregular and in- sufficient; and White desired Barber to ob- ject to the payment of such claims, and to reduce the same, if he could. With this ob- ject in view. Barber, at the instance of White, filed a bill in chancery in the superior court of Cook countj% on September 11, 1SS2. against tlie board of trade, seeking by the bill to impeach the regularity and fairness of an award 01 decision of a committee which had been appointed, under the rules of the board of trade, to determine the settlement price un- der contracts such as those which were so made by Barber and whicn committee had determined that such settlement price should be $1.35 per Inishel. The bill also sought to restrain the board of trade from enforcing such award or disciplining Barber on account of non-compliance therewith. An injunction was temporarily granted on the bill. The award made Barber liable to pay, as dam- t ages, to the parties with whom he had made the contracts, the difference between the con- tract price and the settlement price of $1..35 per bushel. The suiierior court of Cook coun- ty adjudged in the suit that Barber was not ILLEGAL SALES. 321 onritled to any relief on account of any of the njatters stated in the bill, and the injunction was dissolved on April 1V>, 18Sy. The bill was drawn up by counsel employed by White, White knowing that if the injunction should be dissolved Barber would be required lo set- tle on the basis of the award of the committee. With reference to that basis, White drew from Barber, on October 30, 1882, $987.50, as an excess of money, including prolits, due to him from Barber after reserving enough to pay damages at that rate. Prior to the bringing of the suit in chan- cery, it was the right of the iiarties with whom Barber had entered into the contracts to have the moneys which had been deposited as u'.argin or security under the contracts paid over to them on the order of the president of the board of trade, they holding, respec- tively, duplicates of the certificates; and Bar- ber, on making default as to the delivery, be- came amenable to discipline under the rules of the board of trade, for not complying with the terms of tht contracts. One of those rules provided that, when any memoer of the association failed to comply promptly with the terms of any business contract or obliga- tion, and failed to equitably and satisfactorily adjust and settle the same, he should, upon admission or proof of such delinquency be- fore the board of directors, be by them sus- pended from all privileges of the association until all his outstanding obligations to mem- bers of the board of trade should be adjusted and settled. The parties who were entitled to delivery of the wheat under the contracts for delivery in .Tuly, 1882, were, by these rules, entitled to settlement with Barber at the aver- age market price of the commodity on Julj' 31, 1882, the day of the maturity of the con- tracts, and the damage or loss due to such purchaser by reason of the required settle- ment became thereupon immediately due and payable by Barber to such purchasers; but the payment was delayed because cl differ- ence of opinion as to the amount of damages, and in order to enable White to obtam. If possible, a reduction of them; and this was the object of the suit in chancery against the board of trade. It was also, under those rules, the right of such purchasers, after a failure for three business days succeeding the ma- turity of the contracts, to cause to be sub- mitted to a select committee of three members of the board any dispute between Barber and such purchasers, with reference to any deposit of moneys applicable to the contracts; and the decision of a majority of the committee, reported to the president of the board, would liave determined in what manner ana to whom the deposit should be paid; and there- upon the president would have been author- ized by the rules to make an order for the payment of the deposit in accordance with the decision of the committee, which order would have been a sufficient warrant to the bank by which the certificates were issued, to pay the money in accordance with the order; VAN ZTLE SEL.CAS.SAT>ES — 21 but action before the board, as against Barber, was postponed because of the injunction, and the certificates of deposit for margin and se- curity, so issued, having peference to such wheat contracts, were held over in view of the injunction. After its dissolution, the pay- ment of the margins or security moneys rep- resented by the certificates was subject to be enforced under the rules of the board of trade, and Barber was in danger of being suspended from the privileges of the board because of the non-settlement of the conti'acts. White had due notice of all the foregoing facts, out failed to protect Barber or to give him any guaranty for his protection. The liability to suspension from membership of the board of trade was one of great consequence to Barber in a mouetarj' point of view, as well as with reference to his standing and reputation as a merchant, for such suspension would have operated as practically a forfeiture of his membership, so long as the contracts re- main unsettled. The fee for membership was fixed by the rules of the board at $10,000, and any permanent suspension of Barber trom the membership of the board would have caused a loss to him of even more than $10,0fX), be- cause it AA'ould have interfered with his liveli- hood and business. He could not, cous-istent- ly with his rights or duties as a member of the board, defer an adjustment or senicment of the contracts any longer than was neces- sary to determine what he would, under the rules of the board, be requirea to do in respect to such settlement. In order +o accommodate White as far as possible. Barber delayed making settlement r.ntil after complaint was made againsi him before the board, in pursuance of its rules; and he allowed the complaint to proceea to a hearing, at which he attempted to make de- fense as to one of the contracts, setting up. among other matters, such tenner cf y.o. 2 red winter wheat; but the board ruled against him, and was about to direct his suspension from membership unless he made settlement. Tliereupon, on the twenty-fouith of April, 1883, he settled such of the contracts as were then outstanding, making such settlement in accordance with the rules of the beard, and on his making it the deposits for margins and security pertaining to the contracts were lib- erated, and on the return to the bank of the original margin certificates, so issued by the Merchants' Bank of Canada, the certificates being indorsed to the bank, it gave to Bar- ber credit for the moneys on his account as a depositor in the bank. White caused Bar- ber to make the contracts, and to become bound for their perfoimance, and made it nec- essary for Barber to put up margins and se- cuiity, and thus placed it out of the power of Barber to control such margins and se- curity in any other way than according to the rules of the board of trade, and also so in- volved Barber, in causing him to become amenable to discipline by or suspension from the board of trade, that White could not legal- 322 ILLEGxVL SALES. ly or equitably revoke the authority of Bar- ber to make settlement of the contracts or pay over the moneys when it became neces- sary to settle the contracts. The contracis were lej^al, and the provisions of the rules of the board of trade applicable thereto were bindiiiK upon Kaiber, and were necessary and proper to be considered with reference to his duties and ii{;hts, as between himself and the other contracting parties, and as between himselil and White. Barber avers that it was his right to pay damages or differences on default under the con- tracts, when such damages became due, ac- cording to the rules of the board of trade; that such right imu'ed to him by direct authority fi'om White, when the contracts were made at the instance of White, and the moneys were paid or advanced to Barber; and that thereaft- er there A\as no time when White had any right or authority to revoke the power to pay over the moneys, when, in the course of trade, or in accordance with the rules of the board of ti'ade, it became necessary to pay them over, in making settlement of the contracts on which White defaulted, and which it became neces- sary for Barber to adjust, because he had be- come a party thereto at the instance of White; that the contracts in question were but a small part of the dealings which were had by ^Mnte through Barber, as his commission merchant, with various members of the board of trade; that in many of those dealings, which were car- ried on contemporaneously with the dealings in question, there was profit to White, and White received from Barber, on account thereof, large sums of money, representing such profits; and that it would be inequitable for White to claim that he should be relieved at the expense of Bar- ber from the effects of the contracts for the de- livery of No. 2 spring wheat in July, 1882, which remained open at the close of that month lA'cause of the non-fulfillment thereof on the part of White, while White had received profits from other contracts of a similar character, made for him by Barber, which White chose to have settled and closed, when the same re- sulted in profits which were to be paid to White by Barber. Replications were put in to these two an- swers, and, in .January, 1884, the suit was re- moved by Barber into the circuit court of the United States for the Northern district of Illi- nois. Afterwards, it was stipulated that the money might remain in the hands of the bank \mtil the final disposition of the cause, subject to like order by the court, as if the money were jjaid into the registry of the court, and an order was made dismissing the bank from the litiga- tion, as well in the suit at law connnenced against it by White, as in the interpleader suit. By a further stipulation, made in May, 18^, the testimony taken in the suit at law before mentioned, of White against Barber, to recov- er the .$11,412.50, at the trial which took place in February. 1884, was used and introduced by tlie party taKing the same, as liis testimony on the trial of the suit in ecpiity. Such testimony consisted of the detailed examination of the wit- nesses examined on the trial of the suit at law, and of documentaiy testimony, the substance of which examinations and documentary testi- mony is given in the bill of exceptions in the suit at law, and is hereinbefore recited. TO' this were added, in the suit in equity, the fur- ther depositions of White and Barber, taken therein in ^lay, 1884. In these supplementary depositions, each party goes over with greater particularity the matters pi'eviously testified to by him, as set forth in the bill of exceptions; but nothing is substantially added throwing light upon the merits of the dispute. By the same- stipulation, there was put in, as part of the tes- timony on behalf of Barber, a copy of the pro- ceedings and judgment in the suit at law above mentioned, brought by White against Barber to recover the .$11,412.50. In May, 1884, a final decree was made in the suit in equity, ad- judging that Barber was entitled to the $(j,70iJ, and ordering that it be paid to him. From that decree White has appealed to this court. L. M. Ninde, for appellant. Thomas Dent, for appellee. Mr. Justice BLATCIIFORD, after stating the facts as above, delivered the opinion of tlie court. The only question involved in the suit at law is as to the correctness of the charge to the jury in the particulars specially excepted to. The proper constiiiction of the statute of Illinois (section 130, c. 38, Rev. St.) was determined by the supreme comt of Illinois in Wolcott v. Heath, 78 111. 4.33, in the passage from the opin- ion in that case quoted by the circuit court in its charge to the jury. According to that con- stiiiction, the contracts for the sale of No. 2 spring wheat, deliverable in July. 1882, made by Barber, were not void as gambling contracts, if they were bona fide contracts for the actual sale of grain, and if the only option the seller had was as to the time of deliveiy, the obliga- tion assimied by Barber being to deliver the gram at aU events, with the option only to de- liver it at any time before the close of business on the last day of July, 1882. That the con- tracts made by Barber were of that character, and were not such gambling contracts as the statute denounces, must be held to have been found by the jury under the portions of the charge specially excepted to, and under other portions of the charge contained in the record. The plaintiff did not pray for any instructions to be given to the jm*y, nor did he present to the court any propositions of law which he maintained tlie com-f should lay before the jmy as guides to a proper solution of the questions in controversy. The general exception to the whole of the charge cannot be regarded, as it is a violation of rule 4 of this court. In its charge to the jmy. the circuit court explained fuUy to them the theory of White,— that the dealings on account of which Barber paid out the moneys in question were, as be- tween White and Barber, gambling or wager contracts, and, therefore, ill(>gal. It presented ILLEGAL SALES. J23 fairly to them a statement of the testunony on both sides of tliat question, as set forth in the bill of exceptions. It also submitted to them the question whether, in view of the testimony, the contracts in question were contracts to buy or sell at a future day, or whether they were ab- solute sales, in which the seller had the entire mouth of July, 1SS2, in which to perform his contracts; and it instructed them that if they should find that the dealings by the defendant for the plaintiff Avere options to buy or sell at a future daj', their verdict should be for the plain- tiff; but that if, on the contrary, they should find that such dealings were contracts by which the grain was to be absolutely delivered during the mouth of July, 1SS2, the only option being the time when, during the month, the delivery should be made, their verdict should be for the defendant. This charge was very favorable to the plaintiff", for it necessarily involved an affirmation of the propositions that the plaintiff had a right to revoke his action in advising the tender of the No. 2 red winter wheat in fulfill- ment of the contracts, and had a right to revoke his express or implied assent to the appoint- ment of the committee, under the rules of the board of trade, to determine what Avas a fair settling price for the Avheat ou the thiity-firet of July, 1882, and had a right to recall his con- nection with the chancery suit brought by Bar- ber against the board of trade, in which the validity of the contracts was recognized, and had a right to ignore the fact that he had placed Barber in the position in which, at the time of the giving of the notice of April 2, 1883, by White to Barber, Barber was uot at liberty to refuse payment of the damages arising out of the non-fulfihment of the contracts, but was in danger of being expelled from the board of ti-ade, if he persisted in such refusal. The jury must have found, on the testimony, that the contracts made by Barber for the plaintiff" at the board of trade were valid con- tracts, aud that Barber was liable on them to either deliver the grain or pay the damages in case he failed to deliver, because the court char- ged the juiy that, if the proof satisfied them that, by the conti-acts, Barber was liable to ei- ther deliver the grain or pay the damages, then the contracts were not gambling contracts, and they should find for the defendant. We find no error in the record in the suit at law, and the judgment is affirmed. In the suit in equitj% the contention on the part of 'S^'hite is that the contracts and transac- tions between Barber and himself were wager- ing contracts, and, therefore, void, and that the $(J,TOO was subject to the demand of AVhite, if such contracts were void. It is urged on the liart of White that the wheat was sold by Bar- l)er for him without any intention on the part of either of them that there should l)e any de- livery thereof, but with the intention that the ti'ausactions should be settled by the payment of the differences between the prices at which the wheat was sold and its prices at the times stipulated for its dehvery. White testifies that such was his understanding, communicated to Barber before Barber made the contracts of sale. Barber testifies that he has no recollection of anything of the kind. The evidence as to what White did in connection with the transac- tions is inconsistent with White's version, and it clearly appears that Barber had no such un- derstanchng. The defense set up in the answer of Barber is proved to eveiy substantial intent, and the facts therem set forth constitute a valid bar to the suit of White. The evidence shows that White, in advance, required that Barber should trade with parties whom he knew to be respon- sible; that in each case he gave special direc- tions to Barber to buy or to sell, as the case might be, and left it to Barber to put the con- tract in form, these directions being generally given by telegrams from White at Fort Wayne to Barber at Chicago; that it was understood between them that Barber should buy or sell at the Chicago board of tirade; that Barber, in all cases, obeyed the orders of White; that White controlled the trades which Barber made; that, unless the margin AA'as exhausted. Barber was not to close out White's trades until White di- rected him to do so; that it was undei-stood that Barljer was to observe the rales of the board of trade; that White knew that Barber, as a member of such board, making such con- tracts on the board for White, would be obliged to observe those rules; that White directed Bar- ber when to cover and when to close trades, and that Barber observed his orders; that White acted on his own judgment in making the sales of Avheat for deliveiy in July, 1882; that, when the contracts for those sales had matured, White approved of the tender being made of No. 2 red winter wheat; that subse- quently, on August 5, 1882, White telegraphed to Barber from Port Wayne, directing him not to cancel the July trades, and saying that Wliite's attorneys at Fort Wayne believed that si;ch tender was good, and could be enforced: and that, on the fifteenth of August. .1882, White, in a letter to Barber, stared that his at- torney at Fort Wayne had examined the subject of the July deals in connection with the rules of the board of trade, and had concluded that the delivery which Barber had tendered was good, and was "binding on the buyer, and that we can collect the difference in court."' It also appears that Barber was unwilling to default on the conti-acts lest it should injure his reputa- tion on the board of trade, and that he defauhed on them because White insisted that he should do so. White knew of the rale of the board of trade under Avhich a committee could be ap- pointed to determine Avhat was a fair iirice for property to be delivered, and was wilhng to leave it to such committee. After the commit- tee had fixed the price at $1.35 per bushel, White was advised of this action, and deter- mined that legal proceedings should be taken to set aside the award of the committee. It was in pursuance of the wish of White that tlie cliancery suit was brought by Barber against the board of trade, to enjoin all action under such award. In that suit, an injunction was um ILLEGAL SALES, »htained to roslinin such action, which injuuo- "ion remained in force until the delenninution \>y tlie supreme court of IHinois of a suit orought by one Wriijht against the ))(,iar(l of trade (15 Chi. I^eg. X. 23U), it having been stip- ulateil tliat the suit of Barber against the board of trade sliould abide the final residt of the Wright suit. The latter suit was decided in favor of the board of trade. After all this liad occurred, White deteruiiued to repudiate his obligations to Barber, and, on the second of April, 1SS3, he served on Barber the written notice, claiming tbat the contracts for the s:ile of the wheat were illegal and void, and forl)id- diug Barber to paj- over any part of the $11,- 412. r.O to any one but White, and deuuindiug the immediate payment of it to him. On the twentieth of April, 1SS3, Barber, having b(H!n notified of complaints made against him before the boai'd of trade, under its rules, wliich pro- vided for the hearing of complaints and for sus- pension or expulsion in case of noncompliance with contrac-ts, notified White in writing of these facts, and asked White if he could pro- tect him (Barber) in any way. Not receiving such protection. Barber, on the twenty-fourth of April, 188.3, paid out the moneys necessary to satisfy the damages on the contracts, and thei-eby relieved himself from being sust)ended from membei-ship in the board of trade. He had no alternative but to pay the money or lose his business, and also lose a sum of mon- ey, in the value of his membership in the board of trade, equal to, if not greater than, the amount in contToversy in this suit. He had acted strictly according to the instructions he had received from White, ^^'hite had left the money in his hands for the express purpose of paying such damages as the committee of the board of trade should find to be due. Barber retained the money in order to allow White to obtain some benefit, if he could, from thy suit in chanceiy brought by Baiber. By that suit, and by the suit of Wright, all legal means were exhausted, leaving the rights of the purchas- ers under the contracts of sale to be enforced according to the rales of the board of trade un- der whicli they were made. The payinent of the money by Barber in satisfaction of those damages was, imder the circumstances, de- manded by every principle of law and of equity, and no right was left in AVhite to claim the $(>.- TOO. White had no right to forbid the payment of the money by Barber, or to recall it from its destination. The money is to be regarded as having been, for all practical purposes, irrevo- cal)ly set apart by ])oth White and Barber for the payment of such damages, prior to the giv- ing of the notice by White to Barber on the .second of April, 1S83. White had caused Bar- ber to make tlie contracts, and to become bound for their performance, and had made it neces- saiy that Barber sliould put up the margins and secm-ity, and had thus jjljiced it out of the power of Bai'ber to control the margins and security iu any other M-ay than according to the rules of the board of u-ade, in subordina- tion to which White as well as Barber had act- ed throughout. It was obedieu ■;' to the orders of ^^'lute which had made Barber subject to suspension or expulsion by the board of trade. The .f 0,700 had been put up ]>y Barber as mar- gins, under the rules of the l)oard of trade, prior to the giving of the notice of April 2, 18S3. and thus had been before that time devoted l).\- White as well as Barber to the purpose of pay- ing the damages under the niles of the board of trade. For the reasons thus stated, we are of oi)inion that the claim of White sought to be enforced in this suit in ecpiity cannot be allow- etl. A claim is made on the part of White that he can recover this money under the provisions of section 132, c. 38, Rev. St. 111. (Ilurd, Rev. St. Ed. 1883, p. 394; Ed. 188ri, p. 405). That sec- tion provides that "any person who shall at any time, * * * ^y any wager or bet up- on any * * * unknown or contingent event whatevt r, lose to any person so * * * bet- ting any sum of money, * * * amounting in the whole to the sum of $10, and shall pay * * * the same or any part thereof, the per- son so losing and paying * * * the same shall be at liberty to sue for and recover the moiu-y * * * so lost and paid, * * * q^. any part thereof, * * * by action of debt. * * * from the winner thereof, with costs, in any court of competent jm-isdiction." It is a sutficient answer to this claim to say that Bar- Iter was not the "winner" of any money from White. There is a further view applicable to this case, arising out of the decision of this court in Hig- gins V. ilcCrea, 116 U. S. 071, 6 Sup. Ct. 557. In that case, Higgius, the broker of McCrea. sued him to recover moneys which Higgins had paid for the purchase, at the Chicago board of trade, of pork and lard, on the instnicHon of IMcCrea, iu Maj-, 1883, deliverable iu August. 1883. on such day as the seller might elect. In his ansAver, McCrea set up that he had engaged with the plaintiff in gambling ti'ansactions, and tliat the contracts which the plaintiff had made Avere not contracts for the actual dellveiy of any merchandise, but were pretended purchases and mere options, and that it was the under- standing of all the parties to the transactions that no merchandise should be delivered on the contracts, but that the same should be settled ui)on the differences between the contract prices and the market prices. On this basis, McCrea claimed, by way of counter-claim, to recover judgment against the plaintiff for the sum of nearly $20,(XX), wliich he alleged he had paid to the plaiutiff to carry on such gambling trtms- actions and to purchase option contracts. The plaintiff denied the version thus given by the defendant of the ti'ansactions. The circuit court had instructed the juiy that the defendant was entitled to recover upon his counter-claim, and he had a judgment accordingly. This court held that the case of the defendant, as stated by himself in his answer and counter-claim, was that the money was advanced by him to cany on a gambling transaction; that with his ILLEGAL SALES. 32.> foiK-urn lice the niouoy so advancod was used in sii.li .trambliup: trausiiction; and tlmt, by tlv statute of Illinois, where the coutfacls wei-e made, they were tre:ited as gambling coutracts. and were void; Tint the counter-claim thus stat «l was supiM)r;ed by the testunony of the de- fendant giv( n on the trial; that there was no statute of Illinois to authorize the recoveiy of mouc'.v paid on such contracts; and that no re- covery could be had by the defendant. This court s;iid in its opinion; '"AVe do not see on what ^iiuund a party who says in his ploadinj: that tlie money which he seeks to recover v\-ns paid out for the accomplishment of a purpose made an offense by the law, and who testifies and insists to the end of his suit tlnit the con- tract on which he advanced his money Avas il- legal, criminal, and void, can recover it back in a couit whose duty it is to give effect to the law which the party admits he intended to vio- late." The decree of the circuit court is affirmed. 326 ILLEGAL SALES. DOWS.'t nl. V. (^.LASPEL. | (00 \. \V. CO. 4 N. I). 251.) Siii)rome Court of North Dakota. Aug. 3, 1894. j Appeal from tlistriot court, Stutsman couii- ; ty; Koderick Hose. .luilj,'!-. Actiou by David Dows, .Jr.. ami (Jcorj,'e B. Cooksey, eopartners as David Dows, Jr., & i Co.. aj,'aiiist Samuel L. Glaspid. to recover \ commissions and advances made by plaintiffs on account of the sale and purchase of wheat by them as defendant's a.i;ents, in which de- fendant set up a com)terclaim. From a judg- ment for defendant in the main case, and against defendant on his counterclaim, and also disallowin,u: costs to defendant, both par- ties appeal. Modified as to costs, and affirm- ed. Ball & Watson and White & Hewitt, for plaintiffs. E. AV. Camp and S. L. Glaspel, for defendant. CORLISS. J. The plaintiffs are seeking to recover judiiinent against defendant for their commissions and for advances made by them on account of the sale and pmx-hase of wheat by them as agents for defendant. Thus far they have been unsuccessful. The case was tried before the court, and judgment was ren- dered in favor of the defendant. The find- ings of the court amply sustain the judgment. But it is here urged that the evidence does not jiLstify certain of the findings. The de- fense relied on was that the transactions in which the plaintiffs claim to have paid out moneys for the defendant were mere wagers on the price of wheat, and that the plaintiffs knew that the sole purpose of defendant was to g.nuble in wheat options, and not to enter into bona fide wheat contracts in which wheat was to be delivered to or by him thereunduced to writing. One of the plaintiffs testified that formal contracts were not drawn up, but that there was al- ways a full understanding as to the nature of the transactions. But, however perfect the likeness of a gambling transaction to the form and features of a legitimate sale, the legality of the dealings between the parties nuist rest ultimately upon their honest in- tention. Illegality is seldom guilty of the consummate folly of flaunting its defiance of law in the face of public sentiment— of furnishing itself the evidence of its violation of law. To escape the penalties of breaking the law, it will always put on the "suits and trappings" of honest transactions. Mere wagering contracts invariably wear the garb of bona fide sales. This is common knowl- edge. Myriads of gambling operations are daily arranged by two interested brokers, who fatten on the folly of their dupes, in the decent and decorous habiliments of lawful business transactions. The naivete of a tri- bunal which in such cases should unqucstion- ingly take the semblance for the substance would, indeed, be pitiable, if it did not ex- cite derision and contempt. The courts have always sought to pierce the disguise, and as- certain the real intention of the parties. AVhitesides v. Hunt, 97 Ind. 191; Melchert V. Telegraph Co., 11 Fed. 193; Edwards v. Hoeffinghoff, 38 Fed. 039; Embrey v. .Temi- son. 131 U. 8. 331). 344, 9 Sup. Ct. 770; Irwic v. Williar, 110 U. S. 499. 4 Sup. Ct. 109; Mohr V. Miesen (Minn.) 49 N. W. 802. Said the court in Melchert v. Telegraph Co.. 11 Fed. 193: 'Tn seeking to ascertain the intentions of parties to such tran.sactions as the one under consideration, it is evident that it will not do to place any great stress upon the mere terms of the contract, or upon their own declarations, whether under oath or not. Parties under such contracts will always seek to give them the form and semblance of legality, and all our experience admonishes us to receive with extreme caution, if not ab- solute distrust, what parties charged with transactions ap])areutly illegal say respecting the innoceucy of their own intentions." In Edwards v. Hoefliiighoff, 38 Feci. 039. Judge Sage says: "No matter what the form of the contract, no matter how many colorings of reality and genuine dealing are thrown about the transaction, if. piercing all these disguis- es, the court or jury see that all these forms nre mere shams, and that there was in fact ao actual dealing in the article itself, but that 'ornis were adopted as a mere semblance to deceive and evade the law. it is the duty of the court and jury to tear away the disguise, and treat the transaction as it is." In Em- brey V. Jemison. 131 U. S. 344, 9 Sup. Ct. 770, the court said of the transaction there before it: "If this be not a wagering contract under the gtiise of a contract of sale, it woidd be difficult to imagine one that would be of that charactei-. The mere form of the transac- tion is of little consequence. If it were, the statute against wagers could easily be evad- ed." What, then, were the intentions of de- fendant? Was his purpose merely to gam- ble? Did plaintiffs have knowledge of such purpose? Did they aid him in carrying it out? Were these losses incurred by thrm in so doing? The evidence fully sustains the finding of the court with respect to the inten- tion of the defendant. He testified tliat his sole object was to make wagers on the price of wheat. The character of the transactions, and the evidence of all the parties, fully cor- roborate his statement. The only remaining question is whether the plaintiffs were aware of defendant's pur- pose when they went upon the board of trade to make for him the several purchases and sales out of which these losses grew. If they did, it is an inevitable inference that they participated in his gambling project, and actually aided him therein. We are clear that the circumstances surrounding these transactions fully sustain the finding of such knowledge and participation. The order to purchase wheat came to plaintiffs in the form in which mere orders to gamble in the price of wheat are sent by speculators to brokers. It is a well-known fact that a large percentage of such transactions are only wager'ng operations. Xo one knew this better than the plaintiffs when they received the defendant's different orders to buy and sell. At no time during all these transactions was there a suggestion from either plain- tiffs or defendant that a bushel of this wheat w'as to be delivered to or by the defendant. He was never informed of the names of the dift'erent brokers of whom these purchases or to whom these sales were made. He never knew who were the principals back of such brokers with whom he had entered into con- tracts calling for the delivery, on plaintiffs' theory, of thousands of bushels of wheat. His indifference to this matter of delivery all through these transactions w^as certainly suggestive to plaintiff's, who were familiar with such indifference, and the reasons for it. through having witnessed it in a multi- tude of similar transactions. From the very br-ginning the defendant pursued the course of closing out these purchases long before tlie day of delivery had arrived; in some oases ordering sold,, within a few days after the purchase, all or a portion of the wheat purchased for ^lay delivery. What did this indicate to the mind of the plaintiffs, if it did not tend to show them 'that defendant was merely gambling in options? The de- ILLEGAL SALES. 129 f.>!ul;int was a lawj'tT, as plaintiffs well i know. Why was he bnyiuj? thousands of | bushels of wheat for future delivery, and then closin;,' out the ti-ansaetion in a short j time? It is also sin^'ular that the defend- j ant should take no pains to inquire a ; to j the responsibility of tlie persons of whom the plaintiffs had pm-chast-d wheat for him for May delivex-y, if the transactions were or- '< diuary business transactions, and not the j usual wagering deals ui>on the board of j trade. The pm-ehaser iu an honest business sale naturally wishes to know something of the pecuniary responsibility and of the char- acter of the man who has agreed to deliver property to him at a certain time for a speci- tied price. If the vendor will not perform : his contract, and cannot be made to pay dam- ages for breach of it, the contract is of no value to the purchaser. How could the plaintiffs expect that the defendant would regard a bona fide purchase by him closed out, and himself released from all further liability on the conti-act bj' ordering a new contract to be made with another person, — a contract of sale, — thus increasing, rather than extinguishing, his liability, if the two transactions were bona fide sales? The nat- ural mode of wiping out an obligation is to reach the pai*ty who holds it, and agree with him as to the terms on which he will release the other partj' who desh-es to be discharged. Yet the plaintiffs knew that the defendant was willing to pursue a widely different com'se, and close out his purchase at a profit, by obligating himself to sell moi*e wheat to another without seeming release from the contract of purchase which he desired to wipe out It is only on the theory that these transactions were understood by the defend- ant to be mere wagers on the price of wheat that they can be accoimted for when we con- sider tlie object of the defendant in enter- ing into them, — i. e. to close out his pretend- ed purchases at a profit. Where the piu*- chase and the sale are legitimate transac- tions, one cannot count in advance on a profit, although he has contracted to settle at a higher price than he has agreed to pay for the same commodity. The one who has agreed to pay him the higher price may re- fuse to perform the contract, and may be without financial responsibility. Indeed, the dealer may, in such case, find, when the time for delivery arrives, that he has actual- ly lost, as the market price of the commodity .-.y then be lower than the price he has ;;gi'eed to pay for it. and the irresponsible purchaser iu the other contract maj- refuse to carry out his agi'eenieut. Defendant's belief, which his communications and conduct made manifest to the plaintiffs, that both ti'ans- actions. the purchase and the sale, were at an end, and that he had won or lost, as the case might be. must have furnished to the plaintiff's verj* cogent evidence that defend- ant did not regard these dealings as legiti- mate purcha.ses and sales, but only in the light of wagers on the market price of wheat. Plaintiffs knew that defendant had no use for the wheat he ordered purchased, and they took no pains to ascertain whetlu'r he had sulli<'ient financial ability to pay for the large purchases he made from time to time on the theory tliat he intended to re- ceive and pay for the wheat. Defendant never furnished any money to make the dif- ferent purchases with, nor was he ever etilled on by the plaintiffs to furnish them with money for that purpose. He merely sent them funds from time to time to keep g )od his margins as he bought and then sold. It is true that plaintiffs insist that the sales were genuine, and that they did not know of defendant's purpose to gamble. But courts are not bound by the testimony of interested parties, but may look to the surrounding cir- cumstances, to ascertain the true character of tlie transactions. Some of the correspond- ence between the pai'ties fm-nishes strong^ evidence that plaintiffs knew that defend- ant's sole purpose was to gamble. On Eeb- ruary 5, 1S8G, defendant wrote to plaintiffs a letter, in which the following sentence ap- pears: "'I now see that you have my actual wheat account mixed with my option ac- count." In this letter he distinctly notifies plaintiffs that his option account is not an account involving the purchase and sale of "actual wheat." The two expressions are used to distinguish the two classes of trans- actions; one relates to actual wheat, the other not. He speaks of the account of the fictitious wheat ti'ansactions as the "option account." Fictitious wheat transactions they must be if they do not relate to actual wheat. On the loth day of December, ISS-j, defend- ant wrote plaintiffs as follows: "When you can buy 20 May at 9.3 cents, take it. I have ."i.WO wheat in granary. Do you handle wheat in Minneapolis? By the way, I want you to handle options for me at one-eighth." On the 4th of December, 18S.J. plaintiffs wrote to defendant a letter, in which they said: "Om- market opened at 98^^ for May, ; developed strength throughout the day. and closed at one dollar bid. We are very glad you had the pluck to hold on. and be- lieve that wheat is a purchase on all .good breaks. Still, if you get a fair profit, we ; would advise you to close it out, taking clmnces of getting it back at cheaper figures. \Ye have had a very good advance, and any further bulge wiU doubtless be followed by some reaction." In this letter plaintiffs tlieuiselves advise this man, who. according to their theory, had bought actual whi'at, to close it out, and buy it back cheaper. In other words, they plainly tell him that the iK'livery of tlie wheat is not what any one is thinliing of. They advise him to close up the old bet as soon as he can secure a fair profit, and then make another bet when wheat has again fallen in price. Om- attention has been called to one of the rules of the Duluth Board of Trade, and to 330 ILLEGAL SALES. tlio tostiinoiiy that it was iu force when these trausactious were had, and that they were entered into by phiintiffs with refer- ence to such rule. It dechires as follows: "In all cases of sale of produce, the party or parties selliuj; shall deliver the property sold at the time specitied, unless the purchaser shall consent to accept or pay the difference in cash, when so requested to do by the seller. In all cases, however, the buyer shall have the right to demand the property, if he so elects." This rule confirms our views that these transactions were known by plaintiffs to be mere wagerintr deals. In this very rule the pm-chaser is given the option to accept or pay the diiferenee in price when the seller so requests him to do. In other words, the rule provides that the parties may agree to do what every layman knows they can agi'ee to do without any such rule. Why mention this right to agree to settle by paying differ- ences when it is a right which exists inde- pendently of any rule? The reason is ob- vious, when the almost imiversal practice is considered. When brokers, by their rules, inform their speculating customers that no delivery is necessary if the parties agi-ee to dispense with it, and this is followed by the almost uniform practice of settling by paying differences, we are constrained to believe that no delivery was intendcxl from the very outset of any of these transactions, and that the brokers were well awai-e of it. With the obvious pm-pose of covering up the gambling character of these operations, they establish a rule that there shall be a delivery, unless both parties agree to dispense with it; know- ing that both parties will always so agree. It is significant, too, that this rule applies on- ly to actual sales. This still leaves the ques- tion open whether the parties intended an actual sale or were merely wagering on the price of the commodity ostensibly bought and sold. This rule does not apply at all if the deal is a mere wager. It does not dec-lare that every transaction on the board of trade shall be a bona fide sale, but merely provides that, if it is a sale, the parties must deliver, unless they agr?e to settle by paying differ- ences. Moreover, it does not appear when the consent may be given to settle in this way,— whether after the transaction is con- summated, or at the time the deal is made. If at the time the deal is made, then this un- derstanding of itself renders the operation a mere wager, for it is an undei'standing from the very beginning that there shall be no de- livery. But the real purpose of the parties to gamble, when it is once found to exist, cannot successfully escape the condemnation of the law, whether the false appearance of an honest sale is put on by riiles of boards of trade or by the devices of executing legal con- tracts in form. It has been frequently held that circumstances similar to those which surround these ti-ansactions amply sustain a finding that the dealings between the parties were mere wagers, when the circumstances were no more convincing than in this case. Mohr V. Miesen (Minn.) 49 N. W. 8G2; Phelps v. Holderness (Ark.) 19 S. W. 921; Cobb v. Prell, 15 Fed. 774; Crawford v. Spencer, 92 Mo. 498, 4 S. W. 713; Miles v. Andrews, 40 111. App. 155; Beveridge v. Hewitt, 8 111. App. 482; Colderwood v. McCrea, 11 111. App. 540; Watte v. Wickersham (Neb.) 43 N. W. 259; Sprague v. Warren (Neb.) 41 N. W. 1113. We would expect the plaintiffs to give to these gambling ti'ansactions the appear- ance of honest sales, and to insist in their testimony that they were what they ap- peared to be. But, although the hands may seem to be tlie hands of Esau, the voice is unmistakably the voice of Jacob. One of the errors assigned relates to the admission of the testimony of the defendant with reference to statements made to him by one Nichols, the agent of the plaintiff's, touching the character of the business he urged defendant to carry on with plaintiff's. In substance, the defendant testified that this agent informed him that these transactions which the agent induced him to enter into with plaintiffs would be mere wagers on the price of wheat; that in them no wheat would be delivered by either party to the different deals. Plaintiffs here contend that the re- ception of this evidence was en'or, because the agent, Nichols, had no authority to rep- resent them, except in the matter of securing shipments of actual wheat, to be sold by plaintiffs for the shipi>ers, as their agents in Duluth. There is no attempt in this case to enforce against plaintiffs any liability be- cause of any contract made by this agent on their behalf; but it is claimed that the case shows that Nichols had no authority to act for them except in legitimate transactions, and that, therefore, any knowledge he may have acquired that the defendant intended to gamble would not affect them; and hence it is contended that it was prejudicial error receive this evidence, as the court may have considered it as evidence of knowledge on the part of plaintiffs of defendant's ille- gal purpose. But this evidence was admis- sible for the purpose of strengthening de- fendant's testimony that his sole purpose was to gamble; to show that he had ground for believing that he was only gambling, and that he so understood the subsequent trans- actions. Its value for this purpose would not depend upon the authority of the agent, but upon the mere fact that such agent had put into defendant's mind the thought of en- gaging in such gambling transactions. As it was admissible for this purpose, it was not error to receive it. We cannot assume that the court considered it as proving another fact which it had no legal tendency to prove. On the contrary, it is a fair presumption that the court, after having lawfully received the evidence to establish one fact, regarded it as incompetent to prove another fact, which could not legally be established in tnat way. Especially must this be the presumption ILLEGAL SALES. 331 Avlu'ii it appears, as is done in this case, that tlie latter fact is almost conclusively estab- lislu'tl by other evidence. We come now to the second branch of the case. Defendant set forth in his answer as a coimterclaim that he had paid to plaintiffs certain sums of monej^ as marjjins in these ijamblinj,' transactions, and asked that judg- ment for this money be rendered against the plaintiffs in his favor. It is undisputed that defendant did in fact pay to the plaintiffs as margins the sum of .$4.2.jU.US. The right to recover back this money, it is conceded by defendant's counsel, rests upon the Minne- sota statute. It seems to be agreed between counsel for the plaintiffs and defendant that there is no common-law liability to refund such money, and that the rights of the par- ties are governed by the laws of Minnesota, where the ti'ansactions were can-ied on, and not by the laws of this state. The statute of Minnesota relied on by defendant provides that: "Whoever by playing at cards, dice or other game, or by betting on the hands or sides of such as are gambling, loses to any person so playing or betting any sums of money or any goods whatever and pays or delivers the same or any part thereof to the winner, the person so losing, and paying and delivering the same, may sue for and recover such money by a civil action before any com't having competent jurisdiction." Gen. vSt. c. 99, § 13. Without attempting, in this opinion, an analysis of the statute, we are en- tirely free from doubt In our view that it does not relate to moneys lost in dealing in options. Under similar statutes the courts bavo uniformly held against the liability of the person receiving the margins to refund them. Sondheim v. Gilbert, 117 lud. 71, 18 X. E. (>S7; Shaw v. Clark, 49 Mich. 384, 13 N. W. 78G; Bank v. Harrison, 10 Fed. 243. The cases cited by defendant's coimsel arose under very different statutes, and for that reason they are not in point. We therefore hold that the statute gives defendant no right to recover the moneys paid to plaintiffs for margins. That there is no liability inde- pendently of statute is not open to discus- sion. The law leaves both parties where i finds them. Higgins v. McCrea, 110 U. S. U71, G Sup. Ct. 557; White v. Barber, 123 U. S. 392. 8 Sup. Ct. 221; Kahn v. Walton (Ohio Sup.) 20 N. E. 210. The trial court errtxl. however, in refusing costs to defendant. Plaintiffs, having failed to establish their cause of action, were not entitled to costs; and in all cases in which the plaintiff is not entitled to costs the de- fendant recovers costs as a matter of course. His rights do not depend upon his sustaining a counterclaim which he may have inter- posed. It depends solely upon his prevent- ing a recovery of costs by the plaintiff. Had defendant set up no counterclaim, there would have been no doubt about his right to costs. He is in no woree position because he did interpose a counterclaim, and failed to sustain it. Ury v. Wilde (Super. N. Y.) 3 N. Y. Supp. 791. On plaintiffs' appeal, the judgment, so far as it dismisses the action, is aftirmed. On defendant's appeal, the judgment is modified by allowing to defendant his costs in the dis- trict court. As so modified, the judgment is in all respects atfii-med. Ail concur. 332 AVAKKAXTY. MORSE ot al. v. MOORE. (22 Atl. 362, 83 Me. 473.) Supreme Judicial Court of Maine. May 20, 1 SU1 . Exceptions lioiu supreme judicial court, Sasadahoe count}'. This was an action of assuniiisit to recover for two cargoes of ice under a written con- tract. Th(^ verdict was for the [)laintiffs. for the full contract price, with interest. The defendant contended at the trial that the ice shipped was not such as Avas called for by the contract: aud that its quality was such, on account of excessive sap, that it had no market value, and was worthless wiien load- ed on board the ves.sels in this state, or was at least wortli very much less than the con- tract price. Both cargoes were discharged in Marcli, 3888. at Richmond, Va., and placed by the defendant in his ice-house. He denied that the ice was accepted. Upon the ques- tion of acceptance, the defendant offered the following letters and telegram, which were received by the plaintiffs. The telegram and the parts of the letters inclosed in braclcets were admitted by the court, and the rest of the letters were excluded. "[Richmond, Ya., March 13, 1888. •'Mr. .Tno. A. Morse, Bath, Maine: "Dear Sir: The 'Hyde's' cargo is worse as it goes down. The sap averages five inches on each cake. Please telegraph me what to do about 'Crockett' cargo. She is due. and if as liad as 'Hyde' I do not want it.] Do not send any more unless you can send ice up to contract. Please wire me on receipt of this what you will do. It is not only a loss on cost of ice, but freight also, and storing. The top tier's as white as snow as .soon as the sim strikes it. "Yours, Warner Moore." "Received at Bath, Maine, ]March 22iid. 1888." "Dated at Richmond, Ya., 21." "To J. A. Morse: "Crockett arrived; more sap than 'Hyde's.' What shall I do with it? Answer. "Warner Moore." "[Riclunond, Ya., March 21, 1888. "Mr. J. A. Mor.se, Bath: "Dear Sir: I telegraphed you, 'Croc-lcett ar- rived. More sap than Hyde's. What shall I do with it? Answer.' I wrote you several days ago about the ice but no reply.] I measured .several cakes, and they have from four to six inches of sap. Haley, of Gardi- ner, is here, and T am soriy to say he has seen it, and is using his influence against my wagons. It is awful. Why did you send me such stuff? My manager, :Mr. Gaubert, came fi-ou' Gardiner. He was with Hayues and Dewitt Co. for j-ears, and he never saw such ice shipped before. I am sorry you un- load this bad ice on me. My contract calls for prime quality. Answer by first mail. Oblige, Warner Moore." The defendant was called as a witness to prove that he had not accepted the ice, aud was aslvcd what he did with the cargoes after they were dischai-ged at Richmond, and after the telegram and letter dated March 21st; but upon objection the court excluded the questions. Upon this point the following instructions were given to the jury: "Was it clear, mer- chantable ice, within tlie meaning of the term as used among merchants? If so, then per- haps that may end any fui'ther consideration of the case; because it was delivered on board the defendant's vessel, and carried away by him, and you may be satisfied, from the evidence that has been submitted to you, was used l)y him in some way. "If, under the circumstances, he takes the commodity, and carries it away to a distant state, and unloads it from the vessels, aud puts it into his own ice-house, and commences to deliver that as his own property, what would you. and what do you, infer as to the question of acceptance under the contract?" The defendant claimed that the ice in con- troversy had from three to four inches of sap or snow ice upon it as an average, and that quite a portion of it had from six to eight inches of sap upon it, and that for these rea- sons it was not merchantable, and was value- less. This was denied by the plaintiffs. The defendant contended, also, that he could re- ceive the ice. and, if it was not of the quali- ty required by the contract, that in this action against him for the price he could prove the fact, either in dimimUiou of damages, or in full answer to the action, if tlie ice was of no value. Upon this branch of the case the pre- siding ju^^tice instructed the jury as follows: "He cannot, under a contract like this, i-e- ceive the property- called for by the coutract. aud accept it. and then turn round and say that he is not bound to pay the price which tlie contract calls for. * * * "It has been contended to you by couns;'l that the defendant might receive this propertv and keep it, use it, and sell it, and still it is open to him to show that it was of no value wlien he received it, and, therefore, that he is not required to pay anything. I do not un- derstand that to be the law. That may be and is the rule of law when a contract of .sale is executed with a contract of warranty of tlie thing sold. Then the warranty goes to the purchaser as his protection against defects that may be discovered in the thing sold. But this is not an executed contract,— this written contract between the parties. It was executoiy." "It is like a contract for sale by sample, where a merchant agrees to sell a cer- tain commodity which shall conform to a sample which he delivers to tlie purchaser. * * * Still, if he finds that it does not in ail respects conform to the sample, he has the right of accepting it, aud, if he does accept it as a compliance with the contract, he is bound to pay the contract price. "Comideriug all the facts as sliown to you, WARRANTY. 533 3-011 must dctpfinine, if you are not fully sat- iPlu'd that the ice iu all respects conformed to the terms of the contract, whether this de- fendant accei)tt^ it under the contract so as to preclude liim from throwing it back onto the hands of the plaintitf. "When he took the pro[)erty and carried it away the propertj- passed to him." "If you do find an acceptance under the rules I have given you, I say to you that the defendant is bound to pay the contract price." "If you find an acceptance of the property by tlie defendant, then he is liable for the con- tract price." Tlie defendant excepted to these rulings and instructions. A. N. Williams, for plaintiffs. C. E. Little- field, for defendant. PETERS, 0. J. The controversy in this case grows out of an agreement between plain- tiffs and defendant, made and delivered in this state, which runs as follows: "This agree- ment, made and entered into this seventh day of Januaiy, 18SS, by and between Morse A: Sawyer, of Bath, Maine, of the first part, and A^'arner Moore, of Richmond, Va., of the sec- ond part, witnesseth : "That the said parties of the first part, for and in consideration of the sum of one dollar to them in hand paid, the receipt whereof is hereby acknowledged, do hereby sell and agree to deliver at their wharves at Water Cove, (Cape Small Point, opposite Burnt Goat Island, as seen in Coast Chart No. 6, from four to six miles west of Seguin Island light house,) ;Maine, after the ice has become twelve inches iu thickness, of good quality, during the montlis of January or February, 1888, two thousand tons of good, clear, merchantable ice, not less than twelve inches in thickness, to be weighed by a sworn weigher, with all the proper fitting material necessary for the vo.yage included, at the price or rate of forty cents per ton of two thousand pounds. Each cargo to be paid for on presentation of sight draft or note for thirty days or sixtj- days, as may suit party of second part, for the amount accompanying bill of lading and weigher's certificate of said cargo. Cakes to be twentj'-two by thirty inches." The ice delivered under this contract was shipped to Richmond. Va., where the defend- ant resides, to be sold in that market to his customers. It was to be paid for according to its weight and quality at the port of ship- ment in Maine, any deterio'-ation of the arti- cle during transit being at the risk of the purchaser. Tiie first question submitted to the jury was whether the ice had been accepted by the de- fendant or not. and that was decided in favor of the plaintiffs. That brought up the question whether, hav- ing- accepted the ice, the defendant could rely on a breach of the warranty of the quality of the ice to reduce the claim of the plaintiffs who sue in this action of indebitatus assump- sit for the contract price; the defendant al- leging that the ice was not, at the time and place of delivery in Maine, of the quality call- ed for by the contract. The judge presiding, being of the impres- sion that such a defense might be admissible in case of an executed agreement containing warranty, but not where the agreement is ex- ecutory, ruled out the defense as a matter of law. It is to be noticed that the ruling was without qualification, admitting of no inquiry into the circumstances iu which the ice was accepted. It determines that an acceptance in a ca.se of this kind (in the absence of fraud, of course) absolutely terminates the obligation of the vendor. Tiie judge further ruled that "when the defendant took [that is. by a hired carrier] the property and carried it away the property passed to him." Our examination of this question leads us to the conclusion that the position of the de- fendant was well taken, and that the alleged defense should have been pernutted to him. That there is a warrantj' or a condition pre- cedent amounting to warranty in the contract, there can be no doubt. Such a warranty will be found to be variously characterized in the books as executoiy warranty, a condition precedent amounting to warranty, iu the na- tui'e of warranty, with the effect of warranty, equal to warranty, and the fike. It is imma- terial, for present purpose, whether it be re- garded as an express warranty or an express condition implying warranty, as the eftect must be the same. One kind within its limit is not a more potential ingredient in a con- tract than the other, the difference between them being only in the style of agreement to which they may be annexed. An exnress warranty may be also special, however. It is now well settled by the authorities general- ly—our own cases included— that a sale of goods by a particular description of quality imports a warrantj- that the goods are or shall be of that description; a warranty which be- comes a part of the contract if relied upon at the time by the purchaser. Bryant v. Crosby. 40 Me. 9; Randall v. Thornton. 43 Me. 22u; Hillmau v. Wilcox, 30 Me. 170; Gould V. Stein, 140 Mass. 570, 22 N. E. 47, and cases cited. Here there is a clear de- scription of both the kind and quality of the ice.— the quality to be merchantable. It -was conceded at the trial that the posi- tion relied on by the defense would be legiti- mate were it an executed, instead of execu- toiy, contract that contained the warranty. Why sh.ould there be the difference? Certain early New York cases, which will be further considered hereafter, by which the rule given at the trial is more or less supported, give as a reason for the rule that iu an executory con- tract any article of a particular quality may be tendered in the performance of the con- tract, and the vendee must see if the article agrees with the terms of the contract, while in an executed sale the agreement is tliat a particular article actuallj- delivered possesses 3:34 WARRANTY. Iho quality stipulated for. This undoubtedly expi-esscs correctly the distinctiou between tlio classes of contract, but it does not im- press us that there should be such an essen- tial difference in their effect. The reason is not palpable why the vendee in the one case more than in the other should have to see that he receives only merchantable articles when a delivery is made. It seems inconsist- ent that the warranty, which is a part of ei- ther contract, should terminate at delivery in one contract, and not in the other. Each ven- dor makes virtually the same warranty, and th(> two vendors at the point of delivery would api)ea ' to stand upon common ground. The seller in an executory contract agrees to do what the seller in an executed contract has already done. AVhen he tcniders the articles that he has agreed to deliver, such articles iK'come particularized and identilied; and he then represents that such particular and iden- tified articles possess the quality stipulated for by his executory agreement. The terms of the contract of sale become the terms of the sale. The condition precedent becomes a war- ranty. Prof. Wharton (Whai't. Cent. S .504) expresses the idea in these words: "A sub- stantial, though partial (defective) perform- ance of a condition precedent, followed by ac- ceptance on the other side, transmutes the condition precedent into a representation, (im- plying warranty,) not barring a suit on the contract, though leaving ground for a cross- action for damages." Executory and executed contracts are very much alike in the elements that enter into them. There are executory steps in all ex- ecuted contracts. A bargain precedes the sale. If there be a warranty, that is usually first a part of the bargain, and afterwards of the sale. So ia an executory contract the warranty is part of the agreement of sale, and at delivery a part of the sale. Many con- tracts commonly spoken of as executed con- tracts are really wholly or partially executory. All orders for goods, whether for present or future deliveiy, are of an executory nature. AH sales by sample are such. The author of Smith's leading Cases (8tli Ed. vol. 1. pt. 1, p. 3.39) says in discussing this distinction: "Where the vendor agrees to sell goods of a certain kind, without design; i dug or referring to any specific chattel, fne contract is essen- tially executory', whether it purports to .be a present transfer or a mere undertaking to de- liver at a future period, and the right of prop- erty does not pass until the merchandise is delivered to or set apart for the purchaser." Every contract is executory on the one side or the other until the party has done wliat he has agreed to do. The fact of acceptance, however, as a mat- ter of evidence, may have great weiglit on the question of satisfactory or sufficient per- formance. In the first place, it raises consid- eral>le pre-^umptinn that the article delivered actually corresponded with the agreement. In tile next place, it is some evidence of a waiver of any defect of quality, even if the article did not so correspond; evidence of more or less force according to the circum- stances of the case. If the goods be accepted without objection at the time or within a reasonable time afterwards, the evidence of waiver, uidess explained, might be considered conclusive. But if, on the other hand, objec- tion is made at tlu; time, and the vendor no- tified of the defects, and the defects are ma- tei'ial, the inference of waiver would be alto- gether repelled. But acceptance accompanied by silence is not necessarily a waiver. The law i)ermits explanation, and seeks to know the circumstances which induced acceptance. It might be that the buyer was not competent to act upon his own judgment, or had no op- portunity to do so, or declined to do so as a matter of expediency, placing his dependence mainly, as he has a right to do, upon the war- ranty of the seller. Upon this question the facts are generally for the jury, under the di- rection of the court. The law of waiver more commonly applies to things that are not essential to a substan- tial execution of the contract; often such as relate to the time, place, or manner of per- formance, or that affect merely the taste or fancy, perhaps, and are such departures from literal performance as do not bring loss or in- jury upon the purchaser. Baldwin v. Farns- worth. 10 Me. 414; Lamb v. Barnard, 16 Me. 3G4. We think the rule invoked by the defend- ant a just one. Speaking generally, it is the safer rule for both buyer and seller. The op- posite rule imposes on either of them veiy great responsibility and risk. It might be ruinous to a vendee, who is in urgent need of an article, not to accept it, although even much inferior in quality to the description contained in the contract. Certainly it should not be considered a hardship to a seller to re- quire of him a compliance with his contract, or damages for his non-compliance. The present case illustrates the justness of the iide, if the facts are proved as the de- fendant alleges them. The plaintiffs agreed to deliver ice, which they warranted sliould be good, clear, and merchantable. Two car- goes were loaded for shipment to a southern port. Defendant furnished the vessels, though they were probably chartered by the plaintiffs on the defendant's account. There is nothing in the charge of the judge, in the exceptions, or on briefs of counsel, intimat- ing tliat the defendant ever saw the ice, ei- ther by agent or personally, until it arrived in Virginia, or that he was notified to be pres- ent, or knew of the delivery at the time of it. It would seem to be a rather stringent con- struction of the contract that the defend- ant must watch the loading of the cargoes, upon the penalty, if he failed to do so, of having to pay full price for whatever de- fective ice might be delivered behind his- back, after he had taken for his protection, and paying for it in the consideration of the- WARRANTY. 33i contract, au agreement of waiTjiiity iu such positive terms. Still it may bo that the plain- tiffs could le^ially refuse to deliver the ice ludess the defendant after notice should be present to receive it. The cargoes, after rea- sonal)le passages, arrived in a very unmer- chantable condition. There was no lack of objection or protest from the defendant. He wrote repeatedly, and telegrai)hed the plain- tiffs, expressing his disappointment, and ask- ing their advice as to the disposition of the ice. But no satisfactory answer came. What shovdd he do? There was no possi- bility of reshipment. nor coidd the ice be preserved in that climate without the pro- tection that his own ice-houses would afford for such purpose. Storage in any ordinary manner could not possiblj' save the property. He stored the ice, and sold it by enterprising expedients as rapidly as possible. He al- leges that it was late spring ice, of poor tex- ture, and in proximately worthless condition when shipped from Maine. If that can be shown by witnesses and in court at the home of the plaintiffs, it would seem to be an in- justice if the defendant is not permitted to make the defense INIr. Benjamin, (Benj. Sales, 3d Am. Ed. p. 888.) in allusion to the buyer's remedies after receiving possession of the goods, says he has three remedies against the seller for breach of the warranty of quality: I<'irst, the right to reject the goods if the property in them has not passed to him; second, a cross-action for damages for the breach; third, the right to plead the breach in defense to an action by the vendor, so as to diminish the price. These remedies are mentioned without any distinction between kinds of sales. The propositions are general, without any intimation that the procedure does not fipply to warranties in executory sales. In the text such a distinction is not even no- ticed. In the notes to the text, however, it is remarked bj' the American editor that there are New York decisions inconsistent with the rule stated in the text. The first of these remedies— that of rejecting the goods — seems especially applicable to executory and inapplicable to executed sales, because it precedes acceptance, while in executed sales there has been acceptance, and the title has passed. It is only in executory contracts and contracts that are mer(>ly prima facie executed that the title has not passed. Mr, Benjamin states further tnat the buy- er's remedies are not dependent on nis re- turn of the goods, nor is he bound to give notice to the vendor; "but," he adds, "a failure to return the goods or comi)iain of the quality raises a. strong presmnption that the complaint of defective quality is not well founded." Prof. Parsons, in the text and notes of his work on Contracts, lays down the same legal propositions that Mr. Benja- min does, making not a word of allusion to there being any dilfereuce in the application of them between sales executed and sales executory. He also states that if the buyer accepts goods inferior to such as are stipu- lated for, his continued possession wlvnout complaint will be a presumption against him on the question of damages. Pars. Cont. (Oth Ed.) *.7J1, and notes. Mr. Smith, in J>eading Cases, in notes to- the case of Chandelor v. Lopus, (8th Kd., vol. 1, pt. 1, p. 294,) discusses and fully in- dorses the same rules, as deducible from the authoiities, and he and the editors in the last American edition of that work cite and com- pare a great many of the decidea cases on the subject, and they give no recognition to a distinction between executed and execu- tory contracts in the application of such rem- edies. We quote a few pas.sages from their comments: "AVhen specihc property is refer- red to, stiU, if the reference be through the medium of a sample, the contract will be so- far executory as to fail of effect unless the bulk of the commodity corresponds with the sample." "Nor will his [buyer's] right to in- demnity or compensation necessarily end on his acceptance and u,se of the goods with full knowledge of the defect, but he will be enti- tled to bring suit on the contract, and re- ceive damages for the breach of the implied engagement that the bulk of the commodity should correspond with the sample exhibited at the time of the sale." In the case at bar there was an ideal or descriptive sample, — a description eqtiivalent to the exhibition of a sample. There can be no doubt that, if the vendee may bring an action of his own on the contract, he can as well defend against an action brought upon the contract by the vendor. '"The right of the vendee to rely (in the breach of warranty, or a faihu-e to comply with the terms of an executory con- tract, as a defense to an action for the pur- chase money may now be regarded as estab- lished in England, and in most of the courts in this country." "The course of decision at the present day tends towards the position that a partial failure of consideration may bo given in evidence in mitigation of dam- ages, even when the original contract re- mains iu full force, and the suit is expressly or impliedly fotmded upon it." "In the case of AA'ithers v. Greene, 9 How. 21.3. the su- preme court of the United States receded from the groinid taken in Thornton v. Wynn, 12 Wheat. 183, by holding that a partial fail- ure of consideration, growing out of fraud or breach of warranty, may be set tip as a de- fense to an action brought by the vendor. The same rule applies to sales under an ex- ecutory contract or by sample, and the buyer may rely on the deficiency of value resulting from the failure of the property sold to cor- respond with the terms of the contract as a reason why he should not be compelled to pay the price in full. Mondel v. Steel. S Mees. & W. 8r)S; Babcock v. Trice, 18 111. 420; Dailey v. Green. 1.5 Pa. St. 118." We are unable to find in the English cases much support for any discrimination in the- me WARRANTY. application of the above doctrine between sales execntert and sales executory, altliougli very many of the modern l<:n.iilish cases arise out of sample sales and other contracts of an executory natiu-e. Tlie principal support for it is found in some of the New York cases and in those of a few other states that have followed the lead of the New York court in this respect. There are cases whicli hold to a modification of some of these forms of rem- edy, having no bearing, however, on the de- cision of the present case. Some courts have held that a rejection or i-escission is not al- lowable if the goods tendered are of the kind or species contiacted for, even though the quality be Inferior; but in this state the doc- trine of rescission in cases of warranty has been fully established. Marston v. Knight, 2!) Me. 341. In a few cases there is a lean- ing towards the doctrine that an acceptance becomes a waiver after a long-continued ac- <1 in erect- ing a building. .Tudgnieut for defendants, and new trial denied. Plaintiff appeals. Reversed. Wni. Lancaster, for api)ellant. Wm. B. Phelps and White, Reynolds & Schmidt, for respondents. COIJJXS. .1. Plaintiff corporation, having furnished a quantity of bricli.. ;^40 '^VAUUANTY. was i»i'(>jrn'ssiiiir. insislcil ropcatcdly that In' was iisin.t,', alt!i(»u.i,'li lie knew to the contra ry. Till' (UrCrn'iuc hftwccn these two f;i":»'h'S is substaulial. aci-ordiii.u to the evidence, both as to quahty anl vahie. Kiln run inehich' all brieks found in a kiln, taken a-s they eonie. while eoniinim are the bricks reiualnin.t,' after .suine of the very bes; (inalily iiuve l)e(Mi tak(>n out. It follows that the coni- uion iL,'rade will include a nuich larjicr i)er- centajic of s()fi-l)urned bricks than kiln run, and that a wall built of the };ra(h' first, nieniioned cainint be as durable, n^r can it be made as uniform in color, as wlu-u built of kiln run. At any rate. Hood aji'reed to ui>e the hitler, and deliberately purchased an in- ferior article. Tlicre was no evi(h'n('e in the ca.-(>. nor was there a lindin^' of fact, which w(»ulik juslify the claim of counsel that there was an imiilii-d warranty that the bricks to be furiiislied i)y plaintiff should be suit- ab!(> for the use intended by Hood. The written contract was complete and unam- bij;uous, and by its terms plaintiff was to furnish the grade af bricks known as com- mon, to be of good qu:ility and Cijual to samjiie. B(H-au.se the plaintiff wa.s in- fornuKl that th(> bricks were to be u.sed in building a factory for defendant comp.'iiiy,' it cannot be said that there was an im- plied warranty that they shf)uld be reason- ably tit for the purpose. Hood contracted for, and plaintiff agreed to fuiii'sh, a specitic ai-.ticle of a well-recognized kind or descri])- tion, according to the tinding-i. This article was not to be supplied to satisfy a required puiixjse. as was the fact in Brren v. Moran, (Minn.) .j3 X. W. Rep. 75."), cited by counsel. that purpo.se. and not any specitic article, being the e.sseutial matter of the contract; but it was to be of a well-known grade and quality. If an order be given for a specilled article of a recognized kind or desciiption, and the article is supplietl, th ':-e is no war- ranty that it will answer the puri)Ose de- scribed or supposed, although Intended and expected to do .so. (iould- v. Bropliy, 42 Minn. !()!>. 43 N. W. Kep. 834; Leake, Cont. 404. Applying this well-s;>ttled and sensible rule to this case, it is obvious that a conclu- sion of law ba.sed to any extent upon a liuding of fact that the bricks were not tit or proper to be usetl in th(> erection of the buildings cannot be .sustained. Agai:i, it is ((bvious that a conclusion of law by \^•hicll the amount of damages sustained by the ri'frigerator company is tixed. solely ana wholly based on the finding of fact before mentioned, — that, had the bricks "been of the er cent., more or less, each case packed with two of their patent cans, wltli low screw tops or nozzles and brass label.-?, containing five gallons each of refined petrole- um of their Stella brand, color standard white or better, fire test 76 degrees Abel or upwards, at eight and one-half cents per gal- lon, cash on delivery. To be delivered .n yard, free of expense to vessel; to be ready not earlier than the twenty-fifth January. 18.s7. not later than the tenth of February. 18S7, witli twenty-five days to load. Brass labels one- half of one cent each." It appears that before* closing this contract the plaintiffs had receiv- ed from the firm of Graham & Co., merchants at Calcutta, British India, an offer to purchase a like amount of refined petroleum of the same brand, color, test, and packing, to be shipiM^d at the port of Xew York, not later than March 15, 1887, for their account and risk, on board the British ship Corby, bound for Calcutta. This offer the plaintiffs accept- ed on the same day that they entered into the contract with the defendant, and imme- diately after closing it. On or before MarcJi 1, 1887, the defendant delivered the oil, pack- ed in the manner specilied in the contract, to the plaintifts, alongside the Corby, at its factory at Bayonne. The delivery by thfc defendant to the plaintiffs, and by the plain- tiffs to their vendees in Calcutta, was thus accomplished l)y sulistantially the same act. I'he rules of the Produce Exchange, which > were made part of the contract between the I plaintiffs and the defendant, so far as ma- i terial to the questions involved, were these: I (1) The committee on petroleum were au- I thorized and reiiuired to license duly quali- ' ficd inyjiectrrs, members of the exchange, for the various branches of that business. (2| Buyers should have the right of naming the insix'ctor, but must do so at lea.st five da.xs before the maturity of the contract. Failing in this, the seller might employ any regular • inspector at the buyer's expense, and hi.s ] certificates that the oil is in conformity with ' the contract shall be accepted, (li) When goods are delivennl to vessel by buyer's or- ' ders, the acceptance of them by buyer's in- spector shall be an acknowledgment that the goods are in accordance with the contract. The plaintiffs, under the rule, named the in- spector, who on March 1. 1887, after the car- go was loaded on l)oard tlu^ Corby, made and delivered to them a certificate in writing which certified that he had inspected the oil shipped on board the Corby, and . eans so shipped conlained ix'troleuni inipt'i'fwtly relined, eontaining water, acids, and other foreign substances, which would, in the course of transportation, corrode the cans, and should have been eliminated therefrom by proper refinement, and the presence of which rendered the article shipped unmer- cliantable and unfit for transportation. There VN-ere various other breaches of the contract alleged, not material to state. Notice was giv- en to the defendant to come iu and defend the action, and it complied with the notice. It participated iu the preparation of the de- fense, the production of proofs, and at the trial was represented by counsel, and had ev- ery opportimity to resist the claim. The jury, however, rendered a verdict for the plaintiffs in the action, and against the defendants, who are the i)lalntiffs here, upon which a judg- ment was entered for nearly ,^.")(),