Selected cases on the law of sales of personal property. Arranged to accompany Burdick's Law of Sales
Burdick, Francis M. (Francis Marion), 1845-1920
kF ""^ "'A<fjmmmmmi9 (^xtvmii Slam ^rlyool ICihtatg Cornell University Library Selected cases on the law of sales of pe 3 1924 018 854 301 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018854301 SELECTED CASES ON THE LAW OF SALES OF PERSONAL PROPERTY. ARRANGED TO ACCOMPANY BURDICK'S LAW OF SALES. BY FRANCIS M. BURDICK, DWIGHT PBOFESSOR OF LAW IN COLUMBIA UNIVBR8ITT SOBOOL OF LAW. BOSTON: LITTLE, BROWN, AND COMPANY. 1897. Kniberaitg ?3tKW: JoHK Wilson amd Son, Cambkidge, U. S. A. SELECTED CASES ON THE LAW OF SALES OF PERSONAL PROPERTY. CONTEITTS. CHAPTER I. The Nature and Formalities of the Contract. PAOEB § 1. Sale and Contract to Sell 1-8 § 3. The Subject Matter of a Sale 9-11 § 4. Existing and Future Goods 12-26 § 5. Contract for Sale, or for Labor 26-37 § 6. Goods or an Interest in Land 38-45 § 7. The Property 46-51 § 8. The Price 52-53 § 9. Part Payment under the Statute of Frauds .... 53-60 § 10. The Form of the Contract 60-97 CHAPTER II. Bargain and Sale. § 2. Specific Goods 98-112 § 3. Contract to Sell may become a Sale 112-118 § ,4. Contract must be Unconditional 118-129 CHAPTER IIL Contract to Sell. , 1. Existing or Specific Goods 180-143 2. Unascertained or Future Goods 143-177 3. Reservation of Jus Disponendi 178-205 4. The Kise op the Loss 206-208 CHAPTER rV. Acceptance and Receipt. 1. At Common Law 209-213 2. Under Statute of Frauds , . 214r-264 VI CONTENTS. CHAPTER V. Seller's Duties : Butek's Rights. PAGES § 2. Conditions 265-278 § 3. ^. Seller's Engagement to Confer Title .... 279-294 § 3. B. To Furnish the Agreed Article 295-362 " Vendor of Provisions 863-367 " Quantity, as an Essential Term 368-371 " Goods not to be Mingled with Others .... 872-379 " Seller Engages for Inspection 380-388 § 4. Warranty 389-400 § 5. Buyer's Rights: Promissory Conditions .... 401-434 § 6. Buyer's Rights: Warranty 435-444 § 7. Seller's Duty to Give Possession 445-471 § 7. 4. Delivery Without Change of Location .... 471-478 " B. Delivery to a Carrier . 479 " C. Change of Location without Delivery . . . 479-483 § 8. Buyer's Rights against Third Parties 484-539 " Fraudulent Possession by Vendor 540-554 § 10. Damages for Breach of Essential Term .... 555-559 § 11. Damages for Breach of Warranty 560-563 CHAPTER VI. Buyer's Duties: Seller's Rights. § 1. Buyer's Duty to Take Title 564-569 § 2. Damages for Non-Acceptance 570-577 § 3. Buyer's Duty to Take Possession 578 § 4. The Seller's Lien 579-589 § 5. Stoppage in Transitu 590-623 § 6. Right of Resale 624 § 7. Right to Rescind 625-631 APPENDIX. Cases under American Factors Acts 632-639 Proposed Redraft of § 17 op Statute of Frauds .... 640-646 English Sale of Goods Act 647-660 INDEX 661 TABLE OF CASES. PAQB Aeraman v. Morrice 130 Alden w. Hart 385 Aldridge v. Johnson. .... 109 AUard v. Greasert. 24B Andrews v. Cheney. 149 Atherton «. Newliall 253 Bagby v. "Walker ... 29 Bailey v. Sweeting 88 Baldey v. Parker 53 Barker v. Dinsmore. 494 Barnard v. Campbell 500 Bartholomew v. Freeman .... 578 Beals V. Olmstead. 331 Beaumont v. Brengeri ... 215 Becker v. Hallgarten. 609 Bement v. Smith 164 Bent V. Hoxie 42 Bentnall v. Burn 242 Bergan v. Magnus 124 Berndtson v. Strang 593 Bethell & Co. v. Clark & Co. 606 Bianchi v. Nash 112 Bierman v. City Mills Co. 341 Bird V. Munroe 60 Bishop V. Shillito 125 Blaokraore v. Fairbank ... 399 Bloxam v. Sanders 579 Blumeuthal v. Stable 559 Bolton V. The Lancashire, &c. By. 616 BootUby V. Plaisted 388 Bradford v. Manly 315 Brand v. Foeht 248 Brawley v. United States .... 368 Bridgford v. Crocker 629 Briggs V. Hunton .... .297 Brigham w, Hibbard 167 Brown v. Whipple ... ... 77 Brownfleld v. Johnson 375 Bi»yant v. Isburg 488 Burnby v. BoUett .... .863 Buswell V. Bicknell. .142 Butler V. Butler 566 Buxton V. Bust 89 Campbell Printing-Press Co. v. Thorp 274 Carleton v. Lombard, Ayers, & Co. 355 Castle V. Sworder 471 Chalmers v. MoAuley 207 Chaplin v. Rogers 214 Chapman v. Murcli 392 V. Partridge 92 PAOE Clarke. Pey 70 Clason w. Bailey 73 Cleveland v. Shoeman. 634 Cole V. Bryant 169 Columbus Buggy Co. v. Turley. 538 Commercial Bank of Selma v. Hurt 518 Commercial National Bank v. Gil- lette 105 Copley Iron Co., Limited, v. Pope. 410 Corbett v. Wolford 230 Coyle V. Baum .... ... 560 Cresswell Ranch Co. v. Martindale. 464 Crookshank v. Burrell 82 Cundy v. Lindsay 495 Cunliffe v. Harrison 372 Cunningham v. AsUbrook .... 1 Currie v. Anderson 256 Cusack V. Robinson 219 Davis V. Gilliam 445 V. Russell 477 Dexter v. Norton 24 Diem v. Koblitz 617 Dorr V. Fisher 389 Dorsey v. Pike 238 Downs V. Ross 88 Dows V. Nat. Bxch. Bank of Mil- waukee 182 Drummond v. Van Ingen. 311 Drury v. Young 86 Dunlop V. Grote 569 Dunne v. Ferguson 38 Dustan v. McAndrew 629 Edan v. Dudfield 235 Edgerton v. Hodge 56 Edwards v. Harben 550 Eichholz V. Bannister 279 Elliott V. Thomas 251 Empire State Foundry Co. v. Grant 125 Engelborot v- Clanton 339 Evans v. Fragano v. Long Frank & Co. v. Eltringham .. French v. Osmer Frostburg Mining Co. v. New Eng- land Glass Co Gannell v. Gunby and Company Garbarron v. Kreeft .... Garfield v. Paris Gaylord Manuf . Co. v. Alien. Gerli v. Poidebard Silk Mfg. Co. Gillett V. Hill Giroux I). Stedman . .. Glyn, Mills, Currie Co. v. E. & W, I. Dock Co Goddard u. Binney .. Colder v. Ogden ... Goom V. Aflalo Goss Printing Press Co. u. Jordan Gould V. Bourgeois V. Stein GrafE v. Osborne Co. ... Grantham v. Hawley. Grebert-Borgnls v. Nugent. Greenwood v. Law ... Groat I). Gile .. Grose v. Hennessy .... Hague V. Porter Hanks v. Palling .. Hanson v. Busse .. Harkness o. Russell Harman v. Reeve. Hayden v. Demets .. Hight V. Bacon .. Hillstead v. Hostetter Hinchman v. Lincoln. Holmes v. Hoskins Hudson V. Stewart. Humble v. Mitchell. HurfE V. Hires .. Hutchinson v. Hunter Ingalls V. Herrick Ingraham v. Union Co. Iron Cliir Co. v. Buhl. PAGE 113 85 536 243 350 432 253 415 461 98 365 508 34 108 93 47 285 308 143 12 555 11 5 282 163 21 332 524 55 166 330 448 225 231 90 9 99 107 473 392  V. Padgett 327 Johnson v. Credit Lyonnais Co. . . 543  Kirven v. Pinckney Laidler v. Burlinson. Lanfear v. Sumner. Lansing v. Turner .. Leask v. Scott. Lee V. Griffin . .. Lincoln v. Gallagher. Lingham v. Eggleston Loeb V. Peters. Low V. Pew . .. Lyon V. Bertram McCarty v. Blevlns . . .. McConnell v. Hughes . . .. McElwee v. Metropolitan Lumber Co . .. M'Lean v. NicoU McNeal v. Braun Manly v. Bitzer . . , Marshall v. Green .. Martin v. Marshall .. Martindale v. Booth .. V. Smith .... .. Martineau v. Kitching. Marvin v. Wallis .. Miller v. Seaman. Mitchell V. Le Clair Moody V. Brown Moore v. Campbell V. McKinlay. Moors V. Wyman .. Morley v. Attenborough .. Morris v. Winn Murchie v. Cornell Murphy v. Boese ... Neis V. O'Brien . ... Newell V. Radford ....... N. Y. Biscuit Co. v. City of Cam- bridge .... . . .. Nicholson v. Taylor . . .. Nightingale v. Eiseman . .. Norrington v. Wright Northwestern Cordage Co. v. Eice. PAQE 613 171 153 640 206 507 26 380' 118 591 22 423 13 52 583 69 479 14 42 499 562 682 132 217 381 144 168 73 353 204 291 171 334 91 630 83 11 140 449 451 407 O'Connor's Adm'x v. Clark . . 523 Ogg V. Shuter 192 Oliver v. Hunting .... . . 80 Parsons Page V. Morgan. Pape V. Eoniey Parry v. Libbey Parton v. Crofts Pecord v. Same , Pembroke Iron Company v. Philadelphia and Reading E'y Wireman .. Phillips I;. Eeitz Pickering v. Busk Pitkin V. Noyes. Platter v. Acker Pope V. Allis .. Porter v. Blight. 223 263 477 95 365 371 158 653 621 r IK 805 290 TABLE OF CASES. IX Eorter v. Wormser 66 Prentice (H. A.) Co. ... Page . . 638 Providence Goal Co. f. Coxe . . . 470 Randall v. Newson 321 Restal V. Bngemoen 131 Ridgley v. Mooney 670 Rieff V. RiefE 39 Rochester Distilling Co. o. Rasey 15 Rodgers v. Niles 335 Roper V. Johnson 675 Ryan v. Watson 127 SafEord v. McDonough 233 St. Anthony Lumber Co. v. Bard- well-Robinsou Co 387 Salisbury v. Stainer 295 Saltus V. Everett 486 Sanger v. Waterbury 138 Sawyer v. Strong 18 Schloss V. Feltus 504 Schofield V. National Elevator Co. . 46 Scott ('. Eastern Counties Railway Co 260 Seitz V. Brewers' Refrigerating Co. 343 Shaw V. Railroad Company . . . 514 Shepard v. King . 258 Shields v. Pettee 265 Simmonds v. Humble 240 Sinclair v. Hathaway 367 Smith V. Edwards 161 Snider v. Thrall 236 Snow V. Terrett 476 Soltau V. Gerdau 635 State V. Stockman . . .... 50 Stevens v. Wilson 632 Stewart v. Eddowes 90 Stone V. Browning . . . 226 Straus V. Weasel 192 Street v. Blay 435 PAGE Stuart V. Pennis 40 Sturtevant v. Orser 625 Summers v. Hibbard 267 Syms V. Schotten 604 Talbot Paving Co. v. Gorman . . 412 Tempest v. Fitzgerald . ... 249 Tenn. River Compress Co. v. Leeds & Co 339 Terry v. Wheeler 121 Thompson v. Gardiner 96 Tisdale v. Harris 9 Tufts V. Griffin 568 V. Sylvester 612 Tyler v. City of Augusta .... 439 Underwood v. Wolf 401 Unexcelled Eire-works Co. v. Polites 173 Upson V. Holmes 141 Vickers v. Vickers 272 Vincent v. Germond 222 Wait V. Baker 154 Walker v. Davis 374 Watson V. Roode 395 Weir V. Hudnut 69 Wheelhouse v. Parr 176 Whitcomb v. Whitney 115 White V. Gordon .493 t'. Cakes 348 Whitlock ». Hay 256 Wieler v. Schihzzi 299 Wigton V. Bowley 159 Williams v. Burgess . . ... 260 Windmuller v. Pope 677 Winslow V. Leonard . . ... 146 Winsor v. Lombard .... . 351 Wiseman v. Vandeputt 590 Wolcott V. Mount 300 Wood V. Manley 444 CASES ON SALES. CHAPTEE I. § 1. Sale and Conteact to Sell. CUNNINGHAM v. ASHBROOK et al. 20 Mo. 553. 1855. Action for the price of a drove of hogs alleged to have been sold and delivered to defendants. The defendants slaughtered and packed hogs for themselves, and also slaughtered for others. They had an arrangement with McAllister and with Whittaker, packers, that each should have one third of all the hogs slaughtered bj^ them for the sale of the offal. Plaintiffs drove of hogs, 148 in number, was engaged at $4.15 per hundred, net weight, to be delivered at defendants' slaughter-house, and killed and weighed by the buyer, by a man who bought principally for the defendants, but at times for McAllister and "Whittaker. On this occasion he did not say for whom he was buying, but the seller supposed he was buying for defendants. The hogs were delivered at defendants' slaughter-house, apd were killed the next morning. Defendants then notified plaintiff to call at McAllister's packing-house the following day and see the hogs weighed, and get his pay. That night the slaughter-house and hogs were burned. The plaintiff was nonsuited, and sued out a writ of error. Glover & Richardson, (with whom was D. G. Woods,) for plaintiff in error. J] A. Kasson, for defendants in error. Leonard, J. The only things essential to a valid sale of personal property at common law were a proper subject, a price, and the consent of the contracting parties, and when these concurred the sale was com- plete, and the title passed without anything more. (2 Black. Com. 447; Bloxam v. Sanders, 4 Barn. & Cres. 941.) The term "sale," however, in its largest sense, may include every agreement for the transferring of ownership, whether immediate or to be completed afterwards ; and goods, in reference to the disposition of them hy sale, may be considered as existing separately, and ready for immediate 1 2 CUNNINGHAM V. ASHBROOK. [CHAP. I. delivery, or as a part of a larger mass from which they must be separated by counting, weighing, or measuring, or as goods to be hereafter pro- cured and supplied to the buyer, or to be manufactured for his use. Goods of the first sort are the only proper subjects of a common law sale, which is strictly a transaction operating as a present transfer of ownership, and does not include executorj' contracts for the future sale and delivery of personal property, although there are some apparently anomalous cases in our books in which transactions in reference to goods to be separated from a mass seem to have been treated, where there had been a constructive deliver}-, as valid sales, producing a present change of property. The general rule, however, is otherwise, and all the different sorts of goods to which we have referred, except the first, are, under our law, the proper subjects only of executory agreements, — contracts for the future sale and delivery of them. . .. Although at common law consent alone was sufficient to constitute a valid sale, the statute of frauds has now intervened, and other formalities are prescribed which must be observed, or what was before a valid transfer of property is now of no validity. The statute, beginning where the common law stopped, requires some one of these solemnities to be added to the transaction before it shall be considered as complete, so as to effect a change of ownership ; and the matter here relied upon as the statute evidence of the completion of the contract was the change of possession. This provision of the statute implies, it is said, a de- livery of the thing sold on the part of the debtor, and an acceptance of it by the buyer, with an intention on the one side to part with, and on the other to accept, the ownership of it ; and it is not enough that the mere natural, actual, corporeal possession should be changed, but ther^ must be a change of the civil possession, which is a holding of the thing with the design of keeping it as owner ; and this brings us to an examination of the instruction complained of, and which resulted in nonsuiting the plaintiff. . .. It is to be remarked that this is the sale of a specific commoditj-, — the whole drove, and not of a part, to be ascertained by counting out the required number, — and therefore the title passed as soon as the bargain was completed by the delivery. It was not a transaction in relation to the sale of part of a mass, which could not take efl'ect as a present sale, immediately changing the property, until the separation was actuallj' made ; and it is possible some confusion may have arisen here by not clearly distinguishing between the sale of a specific com- modity, clearly separated and distinguished from all others, as a specific drove of stock, and of an indefinite coramoditj', as a hundred barrels of corn out of the party's crib, or a hundred mules out of his drove, when the seller is bound to separate and identify the particular part sold, before it can pass in propertj' to the purchaser. ... This, then, was a present agreement between these parties for the sale of a specific commodity for a price settled between them, so as to § 1.] SALE AND CONTRACT TO SELL. 3 be capable of future ascertainment, without further reference to them- selves, immediately passed the title to the buj-er, if the ceremony of delivery required by the statute of frauds was complied with, and there having been a delivery in fact, the whole question was with what intention that delivery was made, — whether merely that the hogs might be weighed, neither party being bound in the mean time by what had passed between them, or as the formal completion of the bargain to bind the parties and vest the ownership in the purchaser. We come now to an examination of the instruction complained of, the substance of which is, that if the hogs were sold by net weight, to be ascertained by weighing after they were slaughtered and cleaned, then the presumption that the sale was completed by the delivery is met and repelled, and the loss falls on the plaintiff, as owner, unless he shows that the parties intended the sale to be complete upon the deliverj-. The jury would, no doubt, have so understood the direction when they came to apply it to the case, and such too, we suppose, was the meaning of the court ; but we do not concur in this view of the law. Certainl}- this circumstance was proper for the jury upon the question of the intention of the parties in changing the actual possession, and might have afforded a very proper topic of comment to counsel in arguing the question of fact before them ; but we do not think any well considered case has gone the length of declaring that it changed the strong natural presump- tion to be derived from the actual delivery of the property, and imposed upon the other party the necessity of showing that " the parties intended the sale to be absolute and complete before the weighing," and we feel well assured that there is no principle upon which this position can be maintained. "We find it frequently repeated in the books, that when > anything remains to be done by the seller, sueli as counting, weighing, or measuring, the title does not pass ; and this is certainly correct when this operation is necessar}' in order to separate the goads from a larger mass of which they are a part ; but that is not this case, and we think that, by keeping the distinction between a specific and an indefinite commodity in view, most of the cases upon this subject can be explained, and their apparent conflict reconciled. We repeat what we have before said, it is a question for the jury. If the delivery were for the purpose of passing the property, it had that 4 FLETCHER V. LIVINGSTON. [CHAP. I. effect although the price was to be afterwards ascertained and paid according to net weight ; and there is no rule of law that, under such circumstances, the presumption arising from the delivery is met and repelled, and that other evidence becomes necessary in order to make out a prima facie case of a present sale. The seller has a right, not- withstanding his bargain, to retain his property till he is paid, unless he agrees to allow the purchaser a credit, (the bargain for an immediate transfer of property implying a present payment of the price,) and hence, when there is no understanding as to the time of payment other than what is implied in the postponement of it until the quantity of the thing sold is ascertained in the manner indicated in the contract, this circumstance is certainly entitled to consideration with the jury in de- termining the character of the delivery, which, if intended to pass the thing in property, deprives the seller of his security upon it for the price, at the same time that it throws upon the buyer the future risk. The judgment is reversed, and the cause remanded. \/ FLETCHER v. LIVINGSTON et al. 153 Mass. 388. 1891. In March, 1886, Louisa Fletcher contracted in writing to sell to the plaintiff, her daughter, all the wood and timber standing on a certain piece of land, with one year's time to get it off, and afterwards orally agreed to give to the plaintiff a reasonable time longer within which to remove the wood. Mrs. Fletcher died in December, 1886. The defendant, Crawford, having qualified as administrator of her estate, agreed in writing, with the consent of the other heirs, to extend the time for removal of the wood by the plantiff to Sept. 1, 1887. On Nov. 12, 1887, Crawford, under license of the court and pursuant to statutory provisions, sold and conve3'ed the land in question to defend- ant Livingston. None of the wood or timber was ever severed by the plaintiff. The judge, who tried the case without a jury, ruled that the plaintiff's right to take off wood or timber expired on Sept. 1, 1887; that the original contract was a sale of onl}- so much of the wood or timber as the vendee might take off in one year ; and found for the defendants. The plaintiff alleged exceptions. J. W. PettengiU, for the defendants. C. Robinson <& Q. A. Blaney, for the plaintiff. Knowlton, J. It is well settled that a contract like that relied on by the plaintiff does not immediately pass a title to property, and is not a sale or a contract for a sale of an interest in land, but an executory § l.J SALE AND CONTRACT TO SELL. 5 agreement for the sale of chattels, to take effect when the wood and timber are severed from the land, with a license to enter and cut the trees and remove them. Such a contract, if oral, is not within the statute of frauds, and its construction is the same as if it were in writing: Claflin v. Carpenter, 4 Met. 580 ; Giles v. Simonds, 15 Gray, 441 ; Drake v. Wells, 11 Allen, 141 ; Hill v. Hill, 113 Mass. 103, 105 ; United Society v. Brooks, 145 id. 410. The subject was fully con- sidered by Chief Justice Bigelow, in Drake v. Wells, ubi supra, and was discussed in the earlier case of Giles v. Simonds, and it was held that a purchaser of standing wood and timber, after severing the trees from the land, has an irrevocable license to enter and remove them, but that before they are cut his license may at any time be revoked by the landowner, leaving him no remedy but an action to recover damages for the breach of the contract. In the present case the declaration contains three counts. The first two are founded on the plaintiff's alleged ownership of the wood and timber as chattels. But she had no ownership so long as the trees remained attached to the realtj', and her action cannot be maintained on either of these two counts. The third is for trespass quare clausum. The plaintiff by her contract acquired no interest in the land, and she was not in possession, and she cannot maintain an action of trespass. It does not appear that there was any breach of contract on the part of either of the defendants ; but if there were, the plaintiff's remedy would be in another form of action. • ■•••.. i Exceptions overruled. GKOAT ET Ai,. V. GILE. 51 N. Y. 431. 1873. Plaintiffs' appeal from order of General Term, setting aside a ver- dict for plaintiffs and. granting a new trial in an action to recover for wool which the defendant had shorn from sheep, to which the plaintiffs claimed title. eTohn H. Reynolds, for appellants. John Gaul, Jr., for respondent. LoTT, C. C. As the verdict of the circuit in favor of the plaintiffs was ordered by the judge who tried the action on the version given by the defendant of the contract or agreement between the parties, it be- comes necessary to refer to it with particularity for the purpose of ascer- taining whether his conclusion of law based thereon was correct. The defendant, on his direct examination, after stating that the plaintiffs called on him about the 20th of May, 1864, and that he and the plaintiff Groat had some conversation about the purchase of his sheep and lambs, iu which he said that he wanted to sell the old sheep GROAT V. GILE. [chap. It is clear that the plaintiffs intended to buy of the defendant, and that it was his intention to sell to them all of the sheep and lambs that were running in the two lots of land referred to by him (except two bucks § 1.] SALE AND CONTRACT TO SELL. 7 and a lame ewe, as to the identity of which there was no question), at $4 per head, and that no further or other designation or selection was contemplated. All the parties understood what particular sheep and lambs were intended to be sold, and there is no doubt that these were sufficiently identified. Indeed, that fact does not appear to have been disputed on the trial. Under such circumstances, when the terms of the sale were agreed on, and the payment of $25 was made to the defendant ' on account of the purchase money by the plaintiffs, their liability became fixed for the balance, which was ascertainable by a simple arithmetical calculation based upon a count of the sheep and lambs and the price to be paid per head for them. No delivery of them or other act whatever in] relation to them by the defendant was required or intended. The plain- tiffs were to take them without any agency in delivering them on the part of the defendant, and thej', from the time the agreement was made, became the owners thereof. The defendant subsequently kept them at ■ the risk of the plaintiffs. Chancellor Kent, in his Commentaries, vol. 2, p. 492, in stating the rule governing sales at common law, says : " When the terms of sale are agreed on and the bargain is struck, and everything that the seller has to do with the goods is complete, the con- tract of sale becomes absolute as between the parties without actual payment or delivery, and the propertj' and the risk of accident to the goods vest in the buyer." This rule is modified by our statute of frauds so far as to require in certain cases that a note or memorandum of the contract shall be made in writing and subscribed by the parties to be charged, or that the buj'er shall accept and receive a part of the prop- erty sold, or at the time pay some part of the purchase money ; and in such cases he saj's, at p. 499 : " When the bargain is made and is ren- dered binding by giving earnest, or by part payment, or part delivery, or by a compliance with the requisition of the statute of frauds, the property, and with it the risk, attach to the purchaser ; but though the seller has parted with the title, he may retain possession until payment." The fact that the number of the sheep and lambs sold was not ascer- tained at the time the terms of sale were agreed on did not prevent. the application of the rule referred to in this case. It is true that the same learned jurist, after stating that "it is a fundamental principle, pervading everywhere the doctrine of sales of chattels, that if goods of different values be sold in bulk and not separately and for a single price, or per aversionem, in the language of the civilians, the sale is perfect and the risk with the buj^er," adds, "but if they be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified." The present case is not one of the latter class. That rule has reference to a sale, not of specific property clearly ascertained, but of such as is to be separated from a larger quantitj', and is necessary to be identified before it is susceptible of delivery. The rule or principle does not i*«t apply where the number of the particular articles sold is to be ascertained for the sole purpose of ascertaining the total value thereof 8 GEOAT V. GILE. [CHAP. I. at certain specified rates or a designated fixed price. This distinction is recognized in Crofoot v. Bennett, 2 N. Y. 258 ; Kimberly v. Patchin, 19 id. 330 ; Bradley v. Wheeler, 44 id. 496. The sale in question was in fact of a particular lot of sheep and Iambs, and not of a certain undesignated number to be selected and delivered at a future, time, and the postponement of the time for taking them away did not prevent the title passing to the plaintiffs. A sale of a specified chattel may pass the property therein to the ven- dee and vests the title in him without delivery. See Chitty on Contracts (8th Am. ed.), 332, and Terry v. Wheeler, 25 N. Y. 520. All the parties appear to have understood the transaction, at the time it took place, as a present absolute sale and change of title. What was said about cutting the lambs' tails oif and doctoring the sheep, if they needed it, is evidence of such understanding, and there is nothing in what is said to have been the agreement about taking them away inconsistent with it. That gave the plaintiffs the privilege of leaving them in the defendant's pasture till the time specified for taking them away, but did not deprive them of the right to take them before, if they chose so to do. . .. It follows, from what has been said, that there was no error in the ruling of the judge that the title to the sheep passed to the plaintiffs immediately upon the completion of the contract and the payment of the $25 by them. That necessarily carried with it the right to the wool on them, it being shown that there was no reservation thereof, or anything said about it during the negotiation or at the time the contract was made. It is not a mere presumption, as stated in the prevailing opinion in the Supreme Court, that the parties " intended, in the ab- sence of evidence to the contrary, that the title to the wool should follow the title to the sheep." As was well said by Justice Ingalls in his dis- senting opinion, " When the sheep were sold the wool was grown and was a part of the sheep, adding to their value," and there is no reason or principle for saying that such particular part did not pass to the purchaser with the rest of the animals. The sale was of the entire animal, and not of different parts or portions constituting it, or of what it was formed. Assuming then that the legal effect of the agreement of the parties, as testified to by the defendant himself, was to vest the title to the wool in the plaintiffs, it was clearly incompetent to show a custom in Columbia County, where the transaction took place, that the wool of sheep sold, under the circumstances disclosed, does not go to the pur- chaser. See Wheeler v. Newbould, 16 N. Y. 392, 401. •••■••at All concur. Order reversed. § 3.] the subject matter of a sale. 9 § 3. The Subject Matter of a Sale. HUMBLE V. MITCHELL. 11 Adol. & E. 205. 1839. Assumpsit by the purchaser of shares in a joint stock company, called the Northern and Central Bank of England, against the vendor for refusing to sign a notice of transfer tendered to him for signature, and to deliver the certificates of the shares, without which the shares could not be transferred. The jury found a verdict for the plaintiff on both issues, subject to a motion to enter a verdict for the defendant. Lord Dbnman, C. J. With respect to the question arising on the second plea, we have already disposed of it. The other point is whether the shares in this company are goods, wares, or merchandises, within the meaning of § 17 of the statute of frauds. It appears that no case has been found directly in point ; but it is contended that the decisions upon reputed ownership are applicable, and that there is no material distinction between the words used in the statute of frauds and in the bankrupt act. I think that both the language and the intention of the two acts are distinguishable, and that the decisions upon the latter act cannot be reasonably extended to the statute of frauds. Shares in a joint stock company like this are mere choses in action, incapable of delivery, and not within the scope of the 17th section. A contract in writing was therefore unnecessary.^ Patteson, Williams, and Colekidge, JJ., concurred. Mule discharged. TISDALE V. HAREIS. 20 Pick. (Mass.) 9. 1837. Action to recover three hundred dollars, a dividend on two nundred shares of stock of the Collins Manufacturing Company, alleged to have been sold by defendant to plaintiff. The principal defence was the statute of frauds. Shaw, C. J., delivered the opinion of the court. . . . This statute, which is copied precisely from the English statute, is as follows : " No contract for the sale of goods, wares, or merchandise, for the price of ten pounds ($33.33) or more, shall be allowed to be good, except the 1 In Evans v. Davies (1893), 2 Ch. 216, shares in a limited company were lield to be goods, within the meaning of that term in the Rules of the Supreme Court of 1883, giving the court power to sell goods during the pendency of an action involv- ing them. 10 TISDALE V. HAEEIS. [CEAP. I. purchaser shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said bar- gain be made and signed by the parties to be charged by such contract, or their agent thereunto lawfully authorized." This beiug a contract for the sale of shares in an incorporated com- pany in a neighboring State for the price of more than ten pounds, and no part having been delivered, and no purchase money or earnest paid, the question is whether it can be allowed to be good without a note or memorandum in writing, signed by the party to be charged with it. This depends upon the question whether such shares are goods, wares, or merchandise, within the true meaning of the statute. . .. There are many cases indeed in which it has been held in England that buying and selling stocks did not subject a person to the operation of the bankrupt laws, and thence it has been argued that they cannot be considered as merchandise, because bankruptcy extends to persons using the trade of merchandise. But it must be recollected that the bankrupt acts were deemed to be highly penal and coercive, and tended to deprive a man in trade of all his property. But most joint stock companies were founded on the hypothesis at least that most of the shareholders took shares as an investment, and not as an object of traffic ; and the construction in question only decided that, by taking and holding such shares merely as an investment, a man should not be deemed a merchant so as to subject himself to the highly coercive pro- cess of the bankrupt laws. These cases therefore do not bear much on the general question. The main argument relied upon by those who contend that shares are not within the statute is this. That statute provides that such con- tract shall not be good, &c. , among other things, except the purchaser shall accept part of the goods. From this it is argued that, by neces- sary implication, the statute applies only to goods of which part may be delivered. This seems, however, to be rather a narrow and forced construction. The provision is general that no contract for the sale of goods, &c., shall be allowed to be good. The exception is when part are delivered ; but if part cannot be delivered, then the exception can- not exist to take the case out of the general prohibition. The provision extended to a great variety of objects, and the exception may well be construed to apply only to such of those objects to which it is applicable, without affecting others to which from their nature it cannot apply. There is nothing in the nature of stocks or shares in companies which in reason or sound policy should exempt contracts in respect to them from those reasonable restrictions designed hy the statute to pre- vent frauds in the sale of other commodities. On the contrary, these companies have become so numerous, so large an amount of the prop- erty of the community is now invested in them, and as the ordinary indicia of property arising from delivery and possession cannot take place, there seems to be peculiar reason for extending the provisions of § 3.] THE SUBJECT MATTER OF A SALE. 11 this statute to them. As they may properly be included under the term " goods/' as they are within the reason and policy of the act, the court are of opinion that a contract for the sale of shares, in the absence of the other requisites, must be proved by some note or memorandum in writing ; and as there was no such memorandum in writing in the present case, the plaintiff is not entitled to maintain this action. As to the argument that here was a part performance by a payment of the nioney on one side, and the delivery of the certificate on the other, these acts took place after this action was brought, and cannot therefore be relied upon to show a cause of action when the action was commenced. Verdict set aside, and plaintiff nonsuit.^ GREENWOOD v. LAW. 55 N. J. L. 168. 1892. Van Stckel, J. Law, the plaintiff below, gave to Greenwood, the defendant, a mortgage upon lands in this State for the sum of P,700. Law alleged that Greenwood entered into a parol agreement with him, to assign him this mortgage for the sum of $3,000, and brought this suit to recover damages for the refusal of Greenwood to execute said parol agreement. On the trial below, a motion was made to nonsuit the plaintiff, on the ground that the alleged agreement was within the statute of frauds. Tlie refusal of the trial court to grant this motion is assigned for error. . .. In Baldwin v. Williams, 3 Met. 865, a parol contract for the sale of a promissory note was held to be within the statute. In Connecticut and Maine a contract for the sale of shares in a joint stock company is required to be in writing. North v. Forest, 15 Conn. 400 ; Pray v. Mitchell, 60 Me. 430. . .. Bonds and mortgages were expressly held to be goods and chattels in Terhune v. Executors of Braj', 1 Harr. 53. That was an action of trover for a bond and mortgage. Chief Justice Hornblower, in decid- ing the case, said that, although the attachment act and letters of administration seem to distinguish between rights and credits and goods and chattels, and although an execution against the latter will 1 In N. Y. Biseuit Co. v. City of Cambridge, 161 Mass. 326, 37 N. E. 438 (1894), it is said : " Debts due to a person are certainly not goods, wares, or merchandise. The latter words occur in the statute of frauds, and though it is held in this State that shares in corporations are goods, wares, and merchandise within the meaning of that statute, it is said that ' the words of that statute have never been . . . ex- tended . . . beyond securities which are subjects of common barter and sale, and which have a visible and palpable form.' Somerbj' v. Buntin, 118 Mass. 285. There is no reason why a wider meaning should be given to them when applied to taxable property." 12 GEANTHAM V. HAWLEY. [CHAP. I. not reach bonds and notes, yet there is a sense in which upon sound legal principles such securities are goods and chattels. This sense ought to be applied to these words in this case. Reason and sound policy require that contracts in respect to securi- ties for money should be subject to the reasonable restrictions provided by the statute to prevent frauds in the sale of other personal property. The words "goods, wares, and merchandise" in the sixth section of the statute are equivalent to the term "personal property," and are intended to include whatever is not embraced by the phrase " lands, tenements, and hereditaments " in the preceding section. In my judg- ment, the contract sued upon is within the statute of frauds, and it was error in the court below to refuse to nonsuit. All concur. Judgment reversed. § 4. Existing and Future Goods. GRANTHAM v. HAWLET. Hobart, 132. 1616. Robert Grantham brought an action of debt upon an obligation of £40 against Edward Hawley, the condition whereof was that, if a cer- tain crop of corn growing upon a certain piece of ground, l^e in the occupation of Richard Sankee, did of right belong to thejMKff, then the defendant should pay him for it £20. Now the c^H^n plead- ing and demurrer fell out thus. That one Sutton was seised of the land, and 30 Eliz. in April made a lease of it to Richard Sankee for twenty-one years by indenture, and did thereby covenant, grant to and with Sankee, his executors and assigns, that it shall be lawful for him to take, and carry away to his own use, such corn as should be grow- ing upon the ground at the end of the term. Then Sutton conveyed the reversion to the plaintiff, and John Sankee, executor to Richard, having sowed the corn, and that being growing upon the ground at the end of the term, sold it to the defendant. And it was argued by Hut- ton for the plaintiff that it was merely contingent whether there should be corn growing upon the ground at the end of the term or not. Also the lessor never had property in the corn, and therefore could not give nor grant it, but it sounded properly in covenant ; for the right of the corn standing in the end of the term being certain, accrues with the land to the lessor, and it was said to be adjudged. And it was agreed by the court that if A seised of land sow it with corn, and then convey it away to B for life, remainder to C for life, and then B die before the corn reaped, now C shall have it and not the executors of B though his estate was uncertain. Note, the reason of industry and charge in B fails, yet judgment in this case was given against the plaintiff ; that § 4.] EXISTING AND FUTURE GOODS. 