페이지 이미지

surroundings is necessarily uncertain, and conflicting results may be worked out from apparently similar cases. There to a common carrier, consigned to seller retained the horse in his posthe vendee, is a sufficient delivery. session for his own use, by consent. Hope Lumber Co. v. Foster & Logan or, in other words, as a borrower, and Hardware Co. (1890), 53 Ark. 196, 13 it was held that he was a bailee of S. W. R. 731.

the buyer, and that the delivery was Goods remaining in hands of sufficient. The possession of the seller seller as bailee of buyer.- But continued uninterrupted, but the where all the delivery or change of nature of his holding had changed. possession practicable has taken In Barrett v. Goddard, 3 Mason, 107, place, the goods may be left in the goods lying in a warehouse were sold possession of the seller as bailee for by marks and numbers, and paid for the buyer, without necessarily ren- by a promissory note on six months' dering the sale voidable by creditors. credit, it being part of the bargain Ingalls v. Herrick (1871), 108 Mass. that the goods should remain at the 351, 11 Am. R. 360. As said in Thorn- option and for the benefit of the dike v. Bath (1873), 114 Mass. 116, 19 buyer at the seller's warehouse, rent Am. R. 318, “it often happens, espe- free, for the time being. It was held cially in the case of bulky articles, by Mr. Justice Story that the delivthat an effectual delivery is made. ery was sufficient against subsequent although it does not appear that the purchasers, and that the continuance thing sold was removed by the buyer of possession by the seller did not or came literally into his personal prevent the delivery from being efcustody. The books are full of cases in fectual, if the sale was otherwise which constructive or symbolic deliv- complete and nothing remained to ery is held to be equivalent to actual be done on the part of the buyer, and delivery, without a visible change of if it was a part of the bargain that possession. The thing sold may re- they should remain with the seller. main in the hands of the seller, and In Beecher v. Mayall, 16 Gray, 376, yet the title may pass effectually to it was held that where steam boilers the buyer. This has repeatedly been were left in the possession of the decided in the case of the sale of a seller to be repaired for the buyer, no horse which the buyer leaves in the further evidence of delivery was neccustody of the seller. Tuxworth v. essary, for the seller's possession Moore, 9 Pick. 347; Bullard v. Wait would be in that case the buyer's 16 Gray, 55; Elmore v. Stone, 1 Taunt. possession.” 458. In the last of these cases the In this case of Thorndike v. Bath, horse had been removed into another a person saw an unfinished piano in stable, but the court say that that the maker's shop, and offered to purfact was wholly immaterial. It is chase it of him if he would finish it. sufficient if the parties agree that the The offer was then and there acseller is to retain the possession, not cepted, a bill of sale was at once under his lien for the price, but as made, and the price was paid at a the agent or bailee of the buyer. In subsequent day, but the piano reMarvin v. Wallis, 6 E. & B. 726, the mained in the shop to be finished. It

must, however, in general terms, be the most complete and un

was held that this evidence would (quoted in a following note); Goodauthorize a jury in finding a delivery win v. Goodwin (1897), 90 Me. 23, 37 of the piano sufficient to pass the Atl. R. 352, 60 Am. St. R. 231. title as against a subsequent pur- Many other cases will be found chaser.

cited in the following notes. In Ropes v. Lane (1865), 9 Allen Delivery on rescission or resale. (Mass.), 502, (1866) 11 Allen, 591, Won. In general, on rescission or resale son & Bros. contracted to sell to there must be the same delivery as plaintiffs all the mackerel they against creditors as required on origshould pack that year; the mackerel inal sale. Folsom v. Cornell (1889), so packed were stored under plaint- 150 Mass. 115, 22 N. E. R. 705 (citing iffs' supervision, before November Miller v. Smith, 1 Mason, 437; Quincy 21st, in certain warehouses of the v. Tilton, 5 Greenl. (Me.) 277; State sellers until they were filled, and v. Intoxicating Liquors, 61 Me. 520); the residue was piled up on their Colcord v. Dryfus (1893), 1 Okla, 228, wharves. “On the 19th of Decem- 32 Pac. R. 329. “But where, by the ber the plaintiffs settled their ac- terms of the agreement, or by a fair count with Wonson & Bros., have implication therefrom, the article ing overpaid the bills. The parties thus sold or resold is to remain in then went upon the wharf; one of the possession of the vendor for a the Wonsons opened the doors of specific time or for a specific purpose, the warehouses; one of the plaintiffs as part of the consideration, and the saw the condition of the warehouses sale is otherwise complete, the posand the barrels on the wharf not session of the vendor will be consid. housed or covered, and it was agreed ered the possession of the vendee, that the mackerel should be stored and the delivery will be complete during the winter in the warehouses and sufficient.” Hotchkiss v. Hunt and on the wharves for a certain (1860), 49 Me. 213. price agreed. All the barrels had Delivery of growing crops.— The then been inspected and branded, delivery required in the case of a and were ready for immediate ship growing crop is involved in some disment.” On November 21st Wonson pute. According to the prevailing & Bros. had contracted for the sale rule such a crop, while growing, and of mackerel to others, whose agent until ready for harvest – not being on that day visited the warehouses, capable without destruction of a saw the mackerel already stored physical removal from the land on there under the supervision of plaint- which it grows,— can only be actiffs, supposed it to belong to Wonson ually delivered by a delivery of the & Bros., and took, for his principals, land; and where that is impracti. a warehouse receipt for it. It was cable the best practical delivery will held that there had been a sufficient suffice. In some States such crops delivery to perfect the title of the are held not to be goods and chattels plaintiffs. See also Shaul v. Harring- in the possession or under the conton (1891), 54 Ark. 305, 15 S. W. R. trol of the vendor, within the mean835; Hotchkiss v. Hunt, 49 Me. 213 ing of the statutes requiring an act


equivocal delivery of which the circumstances will reasonably admit.

ual and continued change of posses- of hay which the buyer paid for and sion. See Davis v. McFarlane (1869), took away in part, but left the resi37 Cal. 634, 99 Am. Dec. 340; Robbins due in the seller's barn as before, it v. Oldham (1863), 1 Duvall (Ky.), 28; was held not enough. Merrill r. Morton v. Ragan (1869), 5 Bush (Ky.), Hurlburt, 63 Cal. 494. And where 334. In Illinois actual change of pos- after the sale of hogs they were left session is not necessary.

Graff v. with the seller on his farm to be fed, Fitch (1871), 58 Ill. 373, 11 Am. R. 85; instead of being taken to the buyer's Thompson v. Wilhite (1876), 81 111. farm not far away, it was held not a 356; Ticknor v. McClelland (1877), 84 sufficient change of delivery. ThompIII. 471; also Bellows v. Wells (1864), son v. Wilhite, 81 Ill. 356. And so 36 Vt. 599.

where on a sale of lumber the seller But in Iowa actual and visible and buyer went in sight of the piles change is required. Smith v. Champ- in the seller's lumber-yard, and the ney (1878), 50 Iowa, 174.

seller said, “There is the lumber," In the case of crops, not emble- and that the buyer could do what he ments, like growing grass, see Lam- pleased with it, but the buyer left it son v. Patch (1863), 5 Allen (Mass.), where it was, made no account of 586, 81 Am. Dec. 765. See also Stone the piles and exercised no other conv. Peacock (1853), 35 Me. 385.

trol over them than to request a 1 Illustrations of insufficient de. third person to “ keep his eye on livery.—Thus, where two ladies, who them,” it was beld not enough. Cobb had been carrying on the millinery v. Haskell, 14 Me. 303, 31 Am. Dec. business, became insolvent and sold 56. The mere marking of goods their stock without invoicing and (Stewart v. Nelson, 79 Mo. 522), or upon long credit without security to changing the name on a store (Klee their brother-in-law, a lawyer of an- v. Reitzenberger, 23 W. Va. 749), is other town, who left them in posses- not enough where everything else sion, and made no change in signs or remains as before. Where a master outward indications of ownership, sold his servant a horse to be paid the sale was held void as to cred- for in work, and the servant kept the itors. Roberts v. Radcliff, 35 Kan. horse on his master's farm where he 502. And so, where the seller of a was at work, feeding out of the maslot of wood took the buyer to the ter's hay and grain, and training and open place where it was piled and caring for it with the horses of the said, “There is the wood. I deliver master, it was held not enough as it to you,” and the buyer walked against the master's creditors. Hull around the pile and went once or v. Sigsworth, 48 Conn. 258, 40 Am. R. twice a week to see if it was undis- 167 (contra, Webster v. Anderson, 43 turbed, but put no mark on it and Mich. 554, 4 N. W. R. 288, 36 Am. R. did not repile or otherwise deal with 452, post). Where a team of horses, it, it was held not enough. Wilson harness and wagon were sold, but rev. Hill, 17 Nev. 401, 30 Pac. R. 1076. mained, by arrangement, in seller's And where there was a sale of a lot barn in charge of former employee


$ 965.

6 Continued.”—The change of possession must also be “continued.” This requirement, like the others, is to


[ocr errors]



of seller, it was held not enough. She made a bill of sale of the market Stephens v. Gifford, 137 Pa. St. 219, to the defendant and was afterwards 20 Atl. R. 542, 21 Am. St. R. 868. in and about the market as before. Where a proprietor sold out to his Defendant told several persons he clerk, but both continued as before, had “ bought her out,” and that she signs were unchanged and old li- was at work for him. No new sign censes remained posted, it was held was put up, and no notice of the sale not enough. Wolf v. Kahn, 62 Miss. was published in the local newspa814. So three hundred and twenty. per. After the alleged sale, F., when four cords of wood were piled along asked if she had sold out, replied, roadside. M. and plaintiff walked to "They say I have,” and finally said, place where wood was piled, and M. “I sold out to that man," pointing to pointed it out and said, “There is the defendant. Held, no sufficient change wood; I deliver it to you as security of possession. Donovan v. Gathe for the money loaned.” The two per- (1893), 3 Colo. App. 151, 32 Pac. R. 436. sons walked around the pile and re- Plaintiff, a member of the A. Co., turned home. No mark or sign of and its creditor for moneys advanced, any kind was put upon the wood. took up draft and paid demurrage Plaintiff visited the pile every day charges on goods consigned to A. for a week to see that it was not in- Co., but held by the railroad comterfered with, and after the first pany for charges. W., the A. Co.'s week from two to three times a week. manager, placed the goods in a wareHe sold seven cords and gave M. house, in the plaintiff's name, as he credit therefor and employed M.'s testified, but the warehouse books father-in-law to deliver the wood credited them to A. Co. Later the sold. Held, an insufficient delivery A. Co. sold plaintiff all its property and change of possession as against in these goods. Plaintiff notified a attaching creditor. Wilson v. Hill clerk at the warehouse that he would (1883), 17 Nev. 401, 30 Pac. R. 1076. soon want the goods shipped to his W. sold plaintiff a quantity of corn factory and would pay charges on in cribs on his (W.'s) farm, and re- them. Held, he had failed to show ceived part payment. W. continued any delivery of the goods followed in possession of farm and in appar- by an actual and continued change ent possession of the corn, and fed of possession. Springer v. Kreeger some three hundred or four hundred (1893), 3 Colo. App. 487, 34 Pac. R. 269. bushels of it to his stock. There was Purchaser of four barrels of whisky, nothing to indicate to general public having at the time no room for them that there had been a sale of the in his own store, rolled them apart corn. Held, no sufficient delivery. from the rest of the stock in the sellHewett v. Griswold (1891), 43 Ill. App. er's store, and marked them with 43. F. owned a meat market and purchaser's brand and agreed to re. spent most of her time looking after move them in a few days. Held, no the business of the market, and was change of possession. Burchinell v. assisted therein by the defendant. Weinberger (1893), 4 Colo. App. 6, 34

be interpreted in view of the purposes to be subserved. It is designed to prevent mere temporary, formal and colorable


Pac. R. 911. Claimant offered to buy tract B. was to feed the corn to R.'s horses then in pasture of a third cattle that winter. Held, that there party, and owner next day sent his had been no delivery. State ex rel. hired man to accept offer. Claimant Redmon v. Durant (1893), 53 Mo. App. agreed with hired man that latter 493. should deliver the horses and that One Hamel sold a horse to Will. claimant would pay for the service iam Doucet for $145, to be paid in upon receiving the horses. Hired one year. Doucet paid $47.90 during man took the horses from the pas- the year, but was unable to pay ture, but on the way to deliver them At end of year Hamel went stopped at the house of the owner to Doucet's house to collect the balfor the night, and while there they ance. Doucet said he had not the were taken on attachment. Held, no money, but would sell the horse to sufficient delivery. Watkins v. Pete- get it. Hamel said that Doucet need fish (1892), 49 Ill. App. 80. Man sold not sell the horse, as he, Hamel, horses to his wife, but managed them would take it back, to which Doucet after the sale just as he had done agreed. At this point, and before before, except that after the sale he anything further had been done, acted as her agent. Held, no suffi- Simeon W. Doucet, William's son, cient change of possession. Murphy came up and offered to buy the v. Mulgrew (1894), 102 Cal. 547, 36 horse. It was then agreed by all Pac. R. 857. Plaintiff's son-in-law, three that Hamel should keep the with whom she lived part of the time, $17.90 already paid by William, and gave her a bill of sale of eight horses that Simeon should pay Hamel and forty tons of hay then on his $103 more in monthly instalments. ranch. The goods remained on the Hamel did not take possession of ranch, and he used the horses as be the horse, or deliver possession to fore giving the bill of sale. At or Simeon, nor did Simeon receive poswithin two days after the giving of session from William; but it was the bill of sale the son-in-law deeded agreed between William and Simeon the plaintiff an undivided half inter- that William should keep and use est in the ranch and the deed was the horse for his keeping so long as immediately recorded. Held, no suf- Simeon boarded with William. The ficient delivery and change of pos- horse remained in William's stable session of the goods. Dorman v. Soto as before and was used by William (Cal., 1894), 36 Pac. R. 588. R. met B. in his business. Simeon paid Hanel on the road in the latter part of Au- in full and received a bill of sale, but gust, and bargained for corn then afterwards the horse was attached not cut; nothing else was said or as the property of William. Held, done until about the first of October, no sufficient change of possession when R. visited the farm on which and creditors could hold. Doucet v. the corn was growing and walked Richardson (1892), 67 N. H. 186, 29 through it. No further possession Atl. R. 635. W. sold certain goods to was ever taken, and under the con- R., who took possession, but never

« 이전계속 »