purchasers." In several of the States the presumption is conclusive.2 1 § 986. What delivery suffices.-The question of the character of the delivery which shall suffice to save the rights of the first purchaser is substantially the same as that involved in the cases in which creditors are concerned. In a recent case in New Hampshire where there had been a sale of the same wagon to two persons, the latter of whom first obtained possession, the court said: "Admitting the good faith of the parties, and that they stand on equal grounds as to notice of each other's rights, the defendant [the first purchaser] neglected the very obvious duty of taking possession of the property; and the plaintiffs [the second purchasers], finding it in the control of the vendor, should not be made to suffer for the defendant's neglect. None of the circumstances which the law makes an exception to the rule requiring delivery of possession exist in this case. The property was not bulky nor immovable. It was not at such a distance from the place of the trade [two and a half miles] that the defendant could not, by ordinary diligence, have asserted his title and taken possession before the plaintiffs. Under such circumstances the plaintiffs' title is the better one." § 987. Illustrations.- As indicating what are the circumstances which will excuse a delivery, the following, taken from an earlier New Hampshire case cited in the one last quoted from, will be instructive: "The general rule is that the delivery of possession is necessary in a conveyance of personal 1 Comp. Laws 1897, § 9520. So also, in effect, Arizona, Rev. Stat. 1887, § 2034; Indiana, Rev. Stat. 1897, 6945; Kansas, Gen. Stats. 1897, ch. 112, § 3; Minnesota, Gen. Stats. 1894, § 4219; New York, Rev. Stats. 1896, part II, ch. 7, title 2, § 5; Oregon, Ann. Laws 1892, ch. 8, title 7, § 776; Wisconsin, Stats. 1898, § 2310. 2 In California, Civ. Code, § 3440; Colorado, Gen. Stats., ch. 43, § 14; Kentucky, Stats. 1894, § 1908; Missouri, Stats. 1899, §3410; Nevada, Gen. Stats. 1885, § 2633; Oklahoma, Stats. 1893, § 2663; Utah, Rev. Stats. 1898, § 2473. 3 Crawford v. Forristall (1877), 58 N. H. 114. 4 Ricker v. Cross (1832), 5 N. H. 570, 22 Am. Dec. 480. chattels as against every one except the vendor. But between the vendor and the vendee the property will pass without delivery; but not with respect to third persons who may afterwards, without notice, acquire a title to the goods under the vendor. An actual delivery by the vendor to the vendee is not in all cases necessary. It is enough if the delivery be such as the situation of the property admits. Thus, where the goods sold are in a warehouse, a delivery of the key is sufficient." And where the goods are so situated as to admit of no delivery, the sale will be valid without any delivery, as in the case of a sale of goods already in the possession of the vendee.' When the chattels sold are so situated that there can be no delivery at the time of the sale, the case forms an exception to the general rule, and it is sufficient if the vendee, without any gross laches, takes possession and asserts his title in a reasonable time after he has an opportunity to take possession. The sale of a ship and of goods at sea is a common case which comes within this exception. It is well settled that if possession be taken in a reasonable time after their arrival, the vendee is entitled to hold them, even against a creditor of the vendor who had attached them before the vendee could obtain possession."4 $988. Further illustrations.-"When two own a chattel and one has possession," it was further said in the same case, "the other may convey his interest to a third person without delivery, because the possession of him who has it may be reasonably considered as the possession of the vendee after the sale. And a sale of a ship in a distant port has been held to stand on the same ground as the sale of a ship at sea. And Citing Shumway v. Rutter, 7 Pick. (Mass.) 56; Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74. 2 Citing Hollingsworth v. Napier, 3 Caines (N. Y.), 182, 2 Am. Dec. 268. 3 Citing Mamton v. Moore, 7 T. R. 67. 4 Citing Wheeler v. Sumner, 4 Mason, 183, 1 Pet. S. C. R. 449; Port land Bank v. Stacey, 4 Mass. 661, 3 Am. Dec. 253; Portland Bank v. Stubbs, 6 Mass. 422, 4 Am. Dec. 151; Meeker v. Wilson, 1 Gall. 419. 5 Citing Beaumont v. Crane, 14 Mass. 400. 6 Citing Putnam v. Dutch, 8 Mass. 287; Portland Bank v. Stacey, supra. In Stephens v. Gifford (1890), 137 we are of opinion that all cases of sales of chattels which are so situated that there can be no delivery at the time of the sale are within the exception to the general rule, whether the chattels be upon the land or upon the water. Negligence on the Pa. St. 219, 20 Atl. R. 542, 21 Am. St. R. 868, the court said: "It is, as we have seen, well settled in this State that it is the duty of the purchaser of personal property to take possession of the goods purchased; but the question remains, What is a sufficient taking of possession to protect the purchaser? This question has been answered in a line of cases which begins with Eagle v. Eichelberger, 6 Watts, 29, 31 Am. Dec. 449. In that case this court said that the duty of the purchaser was affected by the nature of the transaction, and that a delivery in accordance with the usages of the trade or business in which the sale was made was a sufficient delivery. In Hugus v. Robinson, 24 Pa. St. 9, it was further said that the delivery must be such as usually and naturally attends such a transaction, and that the purchaser taking such possession has fully discharged his duty to the public. Barr v. Reitz, 53 Pa. St. 256, presented this question on a new state of facts. The owner of household goods sold them, moved out of the house in which they were, and delivered the keys to the purchaser. We held, on these facts, that the previous visible relation between the owner and his goods was broken. Whether the goods were removed from the house in which the owner remained, or the owner removed from the house in which the goods remained, the visible relation between them was broken, and the public was put on the duty to in quire. McMarlan v. English, 74 Pa St. 296, was the case of the sale of a stock of goods in a store, of which possession was taken in bulk. This was held sufficient, and it was said that, in fixing upon the duty of the purchaser, the nature of the property, the relation of the parties to it and to each other must be considered, and the possession taken of the stock must be such as was usual in such cases and consistent with the nature and situation of the goods, looked at in connection with the business for which they were held. In Evans v. Scott, 89 Pa. St. 136, it appeared that two brothers lived together in the same house. One owned all the furniture. The other bought a carpet on credit, which was laid in the house. When the credit expired he did not pay for it. The other then went to the seller, paid the price, and had a bill of sale made to himself. This was held to give him a title, and it was said that, in considering the question of possession, his relation to the house and its furniture must be taken into account. The results of these cases were summarized in Crawford v. Davis, 99 Pa. St. 576, where it was said that the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties, and the usages of the trade or business, are all to be considered in deciding the sufficiency of the possession taken by the purchaser. This was repeated in McClure v. Forney, 107 Pa. St. 414, and part of the vendee to take possession may invalidate his claim as against creditors or subsequent purchasers without notice; but if there be no laches on the part of the vendee, if he take possession in a reasonable time, his title can in no case be impeached for want of possession." $989. By delivery of document.- In a leading case1 in Massachusetts the court said: "But the delivery required by the rule in Lanfear v. Sumner is delivery in its natural sense, that is, a change of possession." And speaking of the effect of the delivery of a warehouse receipt as a delivery of the goods, where the receipt did not make the goods deliverable to order, the court further said: "It cannot be borne in mind too carefully that the only matter now under discussion is whether there has been a delivery in this sense, or dealings having the legal effect of such delivery, of the goods referred to in the warehouse receipt. Cases which turn on a question of property only, or in which delivery or its equivalent was not essential, whether because the question arose between the parties to the sale or mortgage, or because delivery was not necessary in that jurisdiction to complete the transaction as against third persons, or for any other reason, are not precedents in point. Many such cases will be found which speak of documents as in Renninger v. Spatz, 128 Pa. St. 210. All these cases recognize the 524, 15 Am. St. R. 692. rule, while they qualify it as the circumstances require in order to make its application just. The general rule undoubtedly is that the purchaser of goods must, for the protection of the public, take such possession as is usual and reasonable in view of all the circumstances of his purchase. If he neglects this obvious duty, then, as between himself and subsequent vendees or creditors. he must bear the loss resulting from his neglect." "Another line of cases began with Linton v. Butz, 7 Pa. St. 89, 47 Am. Dec. 501, in which it was held that the purchaser was not bound to take actual possession, where the vendor was not in possession at the time of the sale. In that case the article sold was in the hands of a bailee, and the delivery of an order on him for it was held to be a sufficient delivery of the article. So goods in the hands of a carrier, or stored in a warehouse, may be delivered by delivery of the 1 Hallgarten v. Oldham (1883), 135 bill of lading or the warehouseman's. Mass. 1, 46 Am. R. 433. receipt. Bond v. Bunting, 28 Pa. St. symbols of the goods. But that expression will not help us, unless it means that a transfer of the documents has the effect of a delivery of the goods as against an attaching creditor, who would be preferred unless the goods had changed hands.” Without deciding whether the result would have been different if the form of the receipt had been such as to include an obligation to deliver to order or to bearer, the court held that the transfer of the receipt did not constitute an actual delivery until the warehouseman had consented to become the purchaser's bailee. § 990. Seller as bailee of buyer. On the other hand, in Arkansas, where retention of possession by the seller is only prima facie evidence of fraud, the court distinguishing the cases which "are either from jurisdictions where the fact of retention of possession is conclusive of fraud, or are traceable to the authority of Lanfear v. Sumner," which the court refused to follow, said: "An examination of the cases will show that a legal delivery, and not a visible change of possession, is all that is demanded to protect the vendee's title." The court further said: "Constructive delivery being enough to satisfy the law, it is an easy transition to constitute the vendor a bailee for the vendee, and so work out a delivery. And it is held that such a delivery is sufficient against creditors. Whenever there is a completed contract of sale and an agreement by the vendor to hold as bailee for the vendee in lieu of an actual delivery, the sale is complete against creditors if it is not otherwise fraudulent.”1 § 991. This was, it is true, a case involving the rights of creditors, but in a later case, involving the rights of two conflicting purchasers of the same chattel, this rule was applied, and it was held that if, at the time of the sale to the first purchaser, it was understood that the chattel was then delivered, but was permitted to remain in the possession of the seller as bailee for the first purchaser, this was sufficient to protect his title 1 Shaul v. Harrington (1891), 54 Ark. 305, 15 S. W. R. 835. |
