Ockington v. Richey , 41 N.H. 275 ( 1860 )

Bellows, J.

The. case, we think, comes within the principle of Davis v. Hill, 3 N. H. 382; Messer v. Woodman, 22 N. H. 172 ; Warren v. Buckminster, 24 N. H. 337 ; Fuller v. Bean, 34 N. H. 290; and the same doctrine is laid down in 2 Kent Com. 496, 675, and notes. As between the buyer and seller something remained to be done; the lumber was to be separated from a lax-ger quantity; selected so as to make an average lot, and measured, before the sale was complete. It is true that the parties may make a contract of sale by which a present right of property shall pass, before the price, weight or measure is determined; as if the goods are actually delivered, with the purpose of vesting the property, and suitable provision made for determining, afterward, the price, weight or measure. But in this case no specific lumber was designated, and therefore it was in no condition to be delivered. The selection and measuring remained to be done, until which the vendee acquired no title to any specific portion of the entire bulk; nor does the delivery of a part affect the vendee’s title to the residue, although in questions arising under the statute of frauds it would be otherwise. The cases of Hanson v. Meyer, 6 East 614, and Simmons v. Swift, 5 B. & Cr. 857, are decisive on this point.

The case of Hanson v. Meyer was a sale of an entire lot of starch lying at a warehouse of a third person, at a price agreed per one hundred weight, and an order to the warehouseman to weigh and deliver the entire lot. The order was presented, and part weighed and delivered, but before the whole was delivered the vendee became bankrupt. In a suit by the assignees, it was held that the weighing of the starch preceded the vesting of the property, and that the assignees could not recover. So in the case of Simmons v. Swift, where an entire lot of bark was sold, and a written agreement made as follows : “ I have this day sold the bark stacked at Redbrook at ¿£9 5s. per ton of twenty-one hundred weight, to Hezekiah Swift, which he agrees to take and pay for on the 30th of November and both parties signed it, and part of the bark was weighed, and delivered and taken away. Afterward the remainder was injured by au unusual flood, which overflowed the bank on which it was deposited, and the vendee refused to pay for it. In an action by the vendor for the price, it was held that the property in the residue did not vest until the weight was ascertained. In both these cases the subject matter of the sale was clearly designated, and nothing remained to be done but to determine the weight.

The same general doctrine is held in Fuller v. Bean, 84 N. H. 290, where it is said by Bell, J., that if the goods are sold by number, weight or measure, or the like, the sale is prima facie not complete till their quantity is ascertained, and if they are mixed with others, not until they are separated and designated. It is held in that case, that when something remains to be done before •the sale is complete, it is immaterial whether it is to be done by the buyer or seller. There is, doubtless, some conflict of authority as to the application of the principle, but we consider the doctrine we have stated as well settled in this State.

Upon these principles the contract of sale must, in the case before us, be regarded as executory, and as vesting no present right of property in the vendee. Nor is there any thing in the evidence reported that will sustain the nonsuit upon the ground, of a license. Undoubtedly a license to come and take the lumber would be a good defence to an action of trespass; but the statement of the plaintiff that “Richey was to have it when he would come and measure it out,” with the other circumstances stated by the witness, could not, we think, be regarded as conclusive evidence of such license, but, at most, only evidence for the consideration of the jury. It does not appear whether this was said to Richey at the time of the sale, or afterward; whether it was a mere naked license, or part of the contract of sale. However that may have been, it appears that the parcels of fifteen hundred feet and one hundred and fifty-four feet were delivered personally by the plaintiff to Richey, and we think the jmy might have been warranted in finding on the evidence that, in the act of separating, measuring and delivering the lumber, the plaintiff was at least to take part; beside, if it were a mere license, and made after the contract of sale, as the jury might legally have found, it appears to have been- revoked by the plaintiff’s general agent, who forbid the taking of the lumber; his authority to act in behalf of the plaintiff does not seem to be questioned, and this is a sufficient revocation of a mere unexecuted license. Sampson v. Burnside, 18 N. H. 264; Marston v. Gale, 24 N. H. 176.

It is unnecessary to examine the other point, as the nonsuit must be set aside; although it would seem to be quite clear that, if the proceedings in the foreign attachment were regular, the lumber was properly taken from the plaintiff, as the trustee of Richey, one of the principal defendants in that process. It would be no objection that the suit was to recover a debt of the firm of which Richey was a member, for, so far as the defendant Richey is concerned, his private property might be taken for the partnership debts in this mode as well as any other. Stone v. Dean, 5 N. H. 502; Parker v. Guillon, 10 N. H. 103. So the lumber might be taken from the plaintiff, whether the contract of sale be regarded as executed, or merely executory; and being taken by lawful process, and applied to the payment of Richey’s debt, and therefore coming to his use, it must be regarded the same as if he had personally received the lumber. It is objected that the judgment, being between other parties, is not admissible as evidence here : but we think this objection cannot be maintained. By the process of foreign attachment, the credits and effects of a debtor, in the hands of a third person, may by law be taken, and if the proceedings are regular, such third person cannot, at the suit of the debtor, be compelled to account for the same effects or credits. Beside, as respects the principal debtor, he cannot be regarded as a stranger to the suit, being necessarily a party, and having an opportunity to contest the claim against him. These cases, like a judgment to show the amount that a surety has been compelled to pay for his principal, or a principal for the default of his agent, are exceptions to the general rule. 1 Gr. Ev., sec. 527. The nonsuit must, therefore, be set aside.