Watts vs. Hendry-Opinion of Court.

was between the vendor and vendee, where the vendee became bankrupt before payment of delivery, and it seems to have given the general rule, both in England and the United States, for determining when and under what circumstances as between buyer and seller, where the price was not paid, a present right of property and possession attaches, so as to maintain trover. There is a great difference, however, between cases of this character, where no price has been paid, and where, upon principles of equity in cases of incomplete sales, a seller's lien, or a right of stoppage in transitu is permitted to operate for the protection of the vendor in cases of insolvency or bankruptcy of the vendee, and this case. In the case just referred to, Lord Ellenborough held that it was essential under the terms of the agreement that the chattel should be weighed before the price could be ascertained or a delivery be made, and no such complete right of property had vested in the vendee as to enable him to maintain trover. Most of the cases cited by appellee are between the vendor and vendee, or the creditors of the vendee, where the price had not been paid, and the vendor remaining in possession availed himself of the omission to weigh, measure or select, or of his right of stoppage on account of the insolvency of the vendee and non-payment of the price. In this case the price had been paid, and the vendor, by giving a delivery order, acknowledged upon his part that he held the cattle subject to vendee's order. If the property remained in the vendor or he was entitled to the possession in his own right, after payment of the price and the execution of the delivery order, it would present the strange case of a party having property in a chattel after he had been paid for it, and after he had acknowledged the right of possession to it in another. Here the vendor and vendee plainly show their intention to pass the property, and the subsequent dealings of the defendant with these parties show that that was his understanding of the matter. As remarked by the Court of Appeals of New York, we may safely say that while many of the au

Watts vs. Hendry-Opinion of Court.

thorities may suggest a doubt whether a title passes upon a mere sale of a part from a mass without a separation or identification of that part, yet if it be clear that it was the intention and design of the parties that the title should pass, no decision announces the extreme doctrine that there is a legal impossibility in the way of accomplishing that design. These views are fully sustained by the decision of the Supreme Court of Massachusetts in 20 Pick., 284, and in 13 Pick. 182, by the court of appeals of New York, in 19 New York,' 330, by the Supreme Court of Maine, in 37 Maine, 418, and by the court of appeals of Virginia, in 6 Rand., 473. In the last case there was a sale of a portion of a lot of flour; the vendor took the draft of the vendee in payment for the flour, gave a receipt for the price and an order to the vendee upon the keeper of the warehouse where it was stored. Say the court, "the vendee would hardly have paid his money without getting what he considered equal to an actual delivery; he got the order directing the warehouseman to deliver him one hundred and nineteen barrels of flour of specified brands. Looking at this contract as the parties did at the moment of making it, can we doubt for an instant that they considered it complete, that each party had done all that he had to do with it? And the intention of the parties we know is of the essence of contracts. This seems the common sense practical view of the subject, and it is fully supported by the law." These remarks may well be applied to this case. In reference to the subject of delivery in this case, we deem it proper to remark that upon a sale of cattle upon the ranges, wandering hither and thither in immense herds, and often remaining for a term of years in inaccessible swamps, it may not be the custom to immediately separate the number sold from a large herd or stock, but to wait until some particular season when they are driven up. If there be such a custom, it would have great weight in determining the intentions of the parties in contracts of this character. In such a case, we would not be inclined to apply with rigid

Watts vs. Hendry-Opinion of Court.

strictness this rule of the common law, applicable for the most part to inanimate chattels, or to animate chattels capable of easy identification, and which it was always the custom to weigh,measure, separate or identify, before the sale was considered complete. We regard this case as much stronger than most of the cases last cited, because defendant here admitted the property and right of possession of the plaintiff. It falls more clearly within the principle of the cases reported in 2 Camp, 344, 2 Barn. & Cress., 540, and the like cases alluded to in the subsequent portion of this opinion.

In this case the defendant purchased the entire "Lester stock" knowing that plaintiff had purchased and paid for a certain number of a certain age of this stock, and with this knowledge defendant addresses plaintiff a notice advising him that he knew that he, plaintiff, had purchased the cattle several months before, complaining that plaintiff has not moved the cattle, (thereby admitting his right so to do,) and notifying him to drive them out by a given time, or in the event he failed, that the notice should be a bar, &c. Here is a clear admission by defendant that he was at this time possessed of the cattle which are the subject of this action, and here is an express acknowledgment of property in the plaintiff in the cattle, and an invitation to come and take his (plaintiff's) property thus acknowledged to be in his (defendant's) possession.

In the case of Gillet vs. Hill, 2 Crompton & Meeson, 2, it appeared that plaintiff had purchased flour of one Orbell, taking an order upon defendants for the delivery of twenty sacks of flour. This order was presented to defendants' foreman, who said they had not more than five sacks to spare, and they might have that. Defendant's clerk took the order and filed it The defendants delivered to plaintiff five sacks upon another order the same day, and on the next day upon application for the balance, they said that plaintiff should have it as soon as they got any. Shortly after this another application was made, and defendants replied that they had

Watts vs. Hendry-Opinion of Court.

no flour of Orbell's to deliver. It was objected for the defendant that no specific sacks of flour had been selected or appropriated so as to vest a property in the vendee, and that trover was not maintainable. Plaintiff contended that the acceptance of the delivery order for twenty sacks was a virtual appropriation of that quantity to the plaintiff's use.

The question of acceptance was left to the jury, and there was a verdict for plaintiff. There was a rule for new trial upon which Vaughn B. said, "The defendants having accepted the order, admit the plaintiff's right to call upon them to deliver twenty sacks of flour. If they were not in a condition to comply with the order, they should have communicated that fact when the order was delivered. But then it is said that the defendants have not appropriated any particular sacks, and several cases have been cited to this effect. In all those cases, however, if they are examined, it will appear that it was held essential that certain acts should be done, as weighing, &c., before the property vested, and as these acts had not been done, the plaintiff failed to prove an absolute property in himself. Here, however, the defendants admitted that they had twenty sacks in their possession, (the property of Orbell,) and they afterwards refuse to deliver fifteen of the number. I think there is sufficient evidence of property possession and conversion to sustain this form of action."

So we think in this case defendant cannot set up that certain acts were necessary to pass the property as between vendor and vendee, when he has admitted generally the property of the plaintiff in the cattle.

The value of cattle is as frequently estimated by age as in any other way. A conversion of a given number of a certain age is here established, and we see no difficulty in the case. On the other hand, a judgment for the defendant gives him a property in the cattle, and the plaintiff is deprived of his property without a remedy, for if trover is not

Dorman vs. The City of Jacksonville-Syllabus.

maintainable here, it is our opinion, as at present advised, that the plaintiff is remediless, and that a party who ac quired possession of property with full knowledge that it had been purchased and paid for by another, and who had admitted the general property of that other, will be permitted to convert that property to his own use at the expense and loss of the true owner.

The judgment of the court below is in conflict with the law as applicable to the true state of facts in this case, and no one can doubt that its consequence is to give one man the property of another without any the least compensation.

The judgment is reversed and a new trial is awarded.

RODNEY DORMAN, Appellant, VS. THE CITY OF JACKSONVILLE, APPELLEE.

1.

2.

3.

If the council of a municipal corporation act within the scope of their authority in the grading and improving of streets, they are not liable at common law to an action of trespass or case by the owner of an adjoin ing lot, who may be injured by such improvement.

Nor does a provision in the act of incorporation that the council must "make to the party injured by an improvement a just compensation," to be ascertained in such manner as is provided in the act, make the corporation liable to an action for such injury. There being no right of action at common law, the remedy created by the Legislature must be pursued.

A declaration alleging that a city council, "contriving and unjustly intending to injure, prejudice and aggrieve the plaintiff, and to incommode and annoy him in the occupation and enjoyment of his property," dug away his sidewalk, destroyed his shade trees, and created a nuisance in front of his premises, shows a cause of action at common law, the acts thus charged being in violation of law, and is not demurrable under the city charter which authorizes the grading and improvement of streets.