Brewer v. Smith , 3 Me. 44 ( 1824 )

Weston J.

delivered the opinion of the Court.

The validity of the defence in this case will depend upon the question whether Benjamin Thornes, at the time of the attach>ment of the bricks as his property, had therein a vested interest. The kiln originally belonged to the plaintiffs, who also furnished the wood to burn it. Thornes was to burn the.bricks, for which service the plaintiffs agreed to deliver him ten thousand of the same bricks, after they should be burnt. Thornes performed the service ; but it,does not appear that the bricks have been delivered to him, as hy the plaintiffs’ contract they engaged to do ; nor did they assent to the attachment, but forbade it. Until ■delivery, actual or constructive, the claim of Thornes rested in' contract, for the breach of which his remedy was by action. There is no evidence in the case from which a constructive delivery can.be inferred. The plaintiffs have done no act, except that of entering into the contract. It was not agreed that upon the performance of the service, Thornes was to take thebricks;— but they were to b.e delivered to him by the plaintiffs.

' If, after the bricks were burnt, Thornes had demanded his ten thousand, and had been told by the plaintiffs to take them ; or if any thing’had been said or done by the plaintiffs, expressive of their assent that he should take them ; that might have been sufficient, in an article of this description, to have vested the property in Thornes, so as to have rendered it liable to be taken at the suit of his creditor. But nothing of this kind appears.

We have examined the cases cited by the counsel for the ■defendant, and find them to have been cases of sale, supported by a diversity of propf as to delivery, actual or constructive. But this is not a case of sale ; but of a contract to deliver, unattended with the circumstances from which a delivery can be presumed. The exceptions to the opinion of the Court below >are overruled, and the

Judgment affirmed.