Fearing v. Cheeseman.

had refused to furnish the cargo and employed another vessel for the voyage. In that view the defendants are clearly liable, unless they can show that the master, in failing to report the vessel within a reasonable time, violated some condition precedent in the charter-party, or that the delay was so great as to frustrate the voyage.

The explanations already made show that the first ground of defence fails, and it is equally clear that the second cannot be sustained. When the Star of Hope was reported as ready to receive cargo, it is true that the defendants had employed and loaded another vessel with the cargo of ice intended for the plaintiff's vessel, but on the arrival of the latter vessel they changed the destination of the former, and sent her to another port, in fulfilment of another contract, which they had with the government. But the evidence that the voyage was not frustrated is, that it was fully performed, and the uncontradicted testimony is, that the cargo was duly delivered to the consignees at the port of original destination, and received without any complaint. No particular notice is taken of the causes of delay, as it is agreed that they arose from the perils of the seas, and not from any negligence or wilful default of the master or owners. Suffice it to say that the vessel encountered rough weather in her trip from Boston to Farmingdale, and having sprung a leak before she reached Bath, she was obliged to put back to Portland for repairs. Competent persons were called to determine what repairs were necessary, and they were completed with reasonable despatch.

Decree affirmed, with costs.

Audenreid v. Randall et al.

APRIL TERM, 1868.

LEWIS AUDENREID v. JOHN T. RANDALL et als.

It is a general principle that if parties have contracted to sell and buy a specific article of personal property, of which weight, price, measure, and fitness are definitely prescribed, or if the terms of the contract provide suitable means by which those qualities, or conditions may be ascertained, and the articles are in the state, for which the parties contracted, the property passes eo instanti, by virtue of the contract, without delivery. Where the terms of an executory contract of sale are agreed, and everything the seller has to do is complete, the buyer is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said as to the time of delivery or payment.

If the goods are sold on credit, and the contract silent as to time of delivery, the vendee is entitled to immediate possession, and the right of property vests at once in the buyer, subject to the vendor's right of stoppage in transitu, if exercised before possession by the buyer.

As between parties, when the contract is complete, the property vests in the buyer; as to every one except the vendor, delivery of possession is necessary to every valid conveyance of personal property.

Where actual delivery is impracticable or impossible, symbolical delivery will be equivalent in its legal effect.

Mere words, however, in case of the impracticability of actual delivery, will not suffice to constitute delivery and acceptance of goods. Added to the language of the contract, there must be some act of the parties tantamount to a transfer and acceptance, as where by some act dominion over the goods is relinquished by the vendor, and they are put in the power of the vendee.

As against subsequent purchasers or judgment creditors, delivery is necessary, but where actual manual occupation is impossible, from the character or situation of the goods, it cannot be admitted that no legal delivery can be made.

Under such circumstances valid sale is sufficient to take the case out of the operation of the Statute of Frauds if it appear that the title becomes absolute in the buyer discharged of all liens of the vendor.

The right of stoppage in transitu attaches to goods sold on credit, where nothing is agreed as to time of delivery. Then the vendee is immediately entitled to the property and the right of possession, but the latter is not absolute, being liable to be defeated if he becomes insolvent before he obtains absolute control.

Where there has been a sale by the consignee, which would, independently of the indorsement of the bill of lading, as against the consignor, give title to the vendee, the effect of the indorsement would be to take away the right of stoppage in trausitu, in cases where otherwise it would exist.

Parties in Philadelphia consigned a cargo of coal to parties residing in Boston, to be delivered at Portland, and the consignees named in the bill of lading indorsed and delivered the same to the defendants, at their request, at a certain price per ton for the coal, with

Audenreid v. Randall et als.

the right in the plaintiffs to draw for the amount at any time. Held, the terms of the sale were absolute, as also was the indorsement and delivery of the bill of lading, and defeated the right of stoppage in transitu, as against the purchaser.

It would make no difference in this case, if the consignees named in the bill of lading were only agents of the shippers of the coal, because two days after the arrival of the vessel, and after the master notified the defendants that he was ready to deliver, the plaintiff approved the sale, and insisted that defendants were bound by the contract.

It makes no difference in such case whether the consignee be the buyer of the goods or a factor. His transfer is equally capable of divesting the property of the owner, and vesting it in the indorsee of the bill of lading.

Where there is no actual delivery, a sale of goods may be valid at common law, and the contract be within the Statute of Frauds; but if there be a delivery, though symbolical, sufficient to transfer the property even as against the creditors of the seller and subsequent purchasers, and to the exclusion of the right of stoppage in transitu, there need not be anything more than would be sufficient to constitute a delivery, and to change the property at common law.

Mere delivery of a bill of lading is not enough, without a distinct acceptance of the same by the purchaser, but anything which was intended to be so, and received as such, which actually puts the goods within the reach and power of the buyer; and among the instances of such delivery cited by legal writers, is that of the indorsement of a bill of lading.

This case is wholly different from that of the holder of an ordinary order, as the consignee of a bill of lading has such a property that he can assign it over, and acceptance in such a case is acceptance of the goods, takes the case out of the operation of the Statute of Frauds, and vests the absolute dominion of the goods in the buyer. If it were otherwise, still in this case, the plaintiff would be entitled to judgment, because the delivery of the bill of lading and the bill of coal were made at the date of the contract, and the defendants subsequently offered to pay the plaintiffs a certain sum per ton to take back the goods, and release them from the contract, after which the defendants still retained the bill of lading and the bill of goods.

SPECIAL assumpsit, together with the common counts for goods sold and delivered, and for money had and received.

The substantial charge of the special counts was, that the plaintiff at the request of the defendants, on the 16th of March, 1865, bargained and sold to the defendants a certain quantity of coal called Broad Top Coal, being the cargo of the brig Russian, then on her voyage from Philadelphia to Portland, as per bill of lading of the 30th of the same month, amounting to 289 tons, and that the defendants subsequently, when the vessel arrived with the coal on board, refused to receive it and pay for the same, as they had agreed to do.

The contract price of the coal was $11.50 per ton, and the freight $6.50 per ton.

The plea was the general issue, but the parties, after the evi

Audenreid v. Randall et als.

dence was introduced on both sides, withdrew the case from the jury by consent, and submitted the same to the court, under the act of Congress in such case made and provided. Most of the material facts were undisputed, and they may be stated in a very few words.

Plaintiff was a merchant doing business in Boston, and the defendants were citizens of Maine doing business in Portland. Wanting to purchase coal, the defendants, on the 16th of March, 1865, called on the plaintiff at his place of business, and inquired if he, the plaintiff, had any soft coal on the way from. Philadelphia, or, if not, whether he would not ship them a cargo of such coal; and being told that the plaintiff had just received a bill of lading for a shipment of such a cargo, bound to Portland, the defendants inquired if it was for sale, and if so, at what price the plaintiff would sell the coal.

The price asked was $12 per ton for the coal, and the freight was $6.50 per ton; but, as finally agreed, the price including freight was $18.

Defendants agreed to purchase at that price, and the consignees -named in the bill of lading, A. C. Morse & Co. - indorsed and delivered to the defendants the bill of lading, which was introduced as evidence by the plaintiff. The bill of lading bore date on the 13th of March, 1865, and appeared to have been duly executed at Philadelphia on that day; and the bill of coal given by the plaintiff bore the same date, but the proof showed that it was written and delivered at Boston at the time the bill of lading was indorsed and delivered by the consignees, and that it was a part of that transaction.

Payment was to be made in cash, and the plaintiff proved that he had a right to draw for the amount at any time.

Freights immediately declined, and the agent of the plaintiff, one of the consignees, about a week after the indorsement and delivery of the bill of lading, being in Portland where the defendants resided, they requested him to sell the cargo to some other party, and offered to give him one dollar per ton if he would take the coal off their hands; the reason assigned for the request by the defendants was, that they should make a loss if they took

Audenreid v. Randall et als.

the coal, but the agent of the plaintiff declined to accept the proposition.

The proofs also showed that the vessel arrived at Portland, March 29, 1865, with the coal on board, in good condition, and that the master notified the plaintiff by telegraph of her arrival, and that the defendants refused to receive the coal. On the last day of March, one of the defendants called at the plaintiff's place of business and informed him, or one of the consignees, that the vessel had arrived, and requested him to come to Portland and take care of the coal or to sell it, and at the same time stated that if the plaintiff would do so, they would bear a part of the loss, and that they would make up the residue in other purchases of him in the course of the year.

The plaintiff refused the proposition, and the defendants informed him that they, the defendants, would have nothing to do with the coal. The response of the plaintiff to that suggestion was, that if the defendants refused to receive the coal, he would sell it on their account, and charge them the difference. He also wrote them to that effect on the same day, in consequence of a telegram from the master that the defendants still refused to receive the coal. Some other correspondence between the parties was also introduced in evidence, but it contained nothing which is very material. The letter of the plaintiff to the defendants, dated March 31, of the same year, showed that they received the telegram from the master; and a telegram from the defendants to the plaintiff, dated the 1st of April following, showed that the defendants on that day enclosed to the plaintiff the bill of lading of the cargo, and the bill of the coal which they received at the time the contract was made. The defendants refused to receive the coal, and thereupon the plaintiff advertised and sold the coal at public auction.

Davis and Drummond, for plaintiff.

Rand and Rand, for defendants.

The course of the arguments is sufficiently indicated in the opinion.

CLIFFORD, J. The principal defence is, that the contract was within the Statute of Frauds, and void. The contract was made