54 N.H. 474 | N.H. | 1874
In Pinkham v. Mattox, 53 N. H. 600, there was a special count founded on a contract similar to the one in this case. In its main features it was parallel to this, so far as we can see, and it was held that assumpsit might be maintained upon the special contract in that case. But in the case before us, assumpsit is brought upon two general counts, one for goods sold and delivered, and the other for goods bai’gained and sold.
Where goods are sold and delivered, tbe vendor lias no lien upon them unless it may be tbe right of stoppage in transitu for certain reasons. If the goods are sold and delivered, they do not and cannot remain tbe property of the vendor till paid for. So with goods bargained
Now, in a contract of this kind, the goods or the property, whatever it may be, that is the subject of the contract, is delivered and received; it is bargained, also, but it is not technically sold. The peculiarity of this class of contracts is, that the property is bargained for and delivered, but the property remains in the vendor awaiting some contingency. The absolute right of property does not pass witli the delivery. It is neither sold and delivered, nor bargained and sold. It is bargained for and delivered but not sold, and a contract of this kind will not therefore support a count for goods sold and delivered, or one for goods bargained and sold. This action cannot be maintained in its present form, but the writ might be amended by adding a count upon the special contract. Bailey v. Smith, supra.
If the plaintiff should obtain such an amendment of his writ in the trial term, we see no reason why he may not, on the authority oí Pink-ham, v. Mattox, ante, recover upon that, but he cannot as his declaration now stands. There is no agreement for judgment in the case; the facts are agreed only for the purpose of raising and determining questions of law. These questions being disposed of,
The case is discharged.
