Quincy v. Tilton , 5 Me. 277 ( 1828 )

Mellen, C. J.

delivered the opinion of the Court.

The statement of a few general principles and the application of them to the case before us, we apprehend will conduct us directly to a satisfactory result. When a sale or exchange of articles is legally rescinded on account of fraud in one of the parties, the whole thereby becomes nullified ah initio ; and, of course, the property sold or exchanged is considered as having never been changed, in respect to the parties themselves, or their creditors. This principle is not contested. On the contrary when the sale or exchange is fairly and honestly made and perfected by delivery, the property is completely changed in the articles which are the subject of the sale or exchange ; and if, after this, the parties agree to give up the bargain, as it is often expressed, and place things as they stood before it was made, this object can only he effected by what, in legal contemplation, amounts to are-sale or re-exchange ; and whatever was necessary to constitute the original sale or exchange a legal transfer of the property from one of the parties to the other, is equally necessary to constitute a legal re-sale or re-exchange. The legal requisites of a perfect sale or exchange of personal property was a subject of critical examination in the case of Lanfear v. Sumner 17. Mass. 100 ; in which principles and authorities were carefully examined by Mr. Justice Jackson. He observes, in giving the opinion of the court, that the general rule is perfectly settled and established, that “ the delivery of possession is necessary in a conveyance of personal chattels, as against every one but the vendor. In that case certain goods were sold, hut before they came to the possession of the vendee, they were attached as the property of the vendor ; and the creditor who was considered as a purchaser, by the judgment of the court, was considered as entitled to hold the goods. That case was similar to this in many respects.

Let us now apply these principles to the present case. • The report states that there was no fraud in the contract of exchange, and there was an actual delivery of the soap to Minchin & Willis, and a constructive possession of the wine by the plaintiff?; and there was therefore, by the exchange, a transfer of the property of the, soap to Minchin & Willis. In this postura of affairs, for the reasons mentioned in the report, there was some dissatisfaction on the part of the plaintiffs, which led to the submission and the award; and this award was agreed to by the parties. We must construe its effect upon legal principles. The award, though agreed to by the parties, did not, in law, amount to a rescinding of the original contract, but only to an agreement to make a re-exchange. But if it amounted to a re-exchange, it was never perfected by a delivery of the soap to the plaintiffs, and of course, it did not re-transfer the property of it to them. We do not perceive that the cause stands on a better or different ground in respect to the plaintiffs, in consequence of that part of the award which gave an election to Minchin & Willis to return the soap or pay for it at the market price. By returning it before any attachment, they would have perfected the plaintiffs’ title; but they did not return it; and by omitting so to do, as they immediately should have done, they elected to consider themselves as purchasers of it, and as such to pay for it at the market price. The attaching creditors found the soap in the possession of Minchin & Willis, and were strangers to the transactions between them and the plaintiffs, and had a good right to attach the soap to secure themselves.

Some proceedings on the part of the plaintiffs,in sueing for the price of the soap, in their action against Minchin & Willis, on the same day on which the present action was commenced,have been relied on as confessions of the Messrs. Quincy, that they considered the soap as belonging to Minchin & Willis. It was certainly competent proof for the jury to examine, and is in aid of the construction we have given ; but we do not rely particularly on this circumstance j because, for the other reasons which have been stated, we are all of opinion that the verdict is against evidence, on the law applicable to the case.

Verdict set aside and a new trial granted.