| N.H. | Mar 22, 1876
Lead Opinion
FROM COOS CIRCUIT COURT. It appears than when the plaintiffs and James Forristall were negotiating, on March 12, before sunrise, the wagon was not present with them. The plaintiffs told James that they would go and see the wagon, and if it was worth $70 they would buy it. Here was no bargain closed. Independently of the statute of frauds, either party was at liberty to stop the negotiation. James had a perfect right to sell the wagon to anybody else, if he chose to do so. When the plaintiffs had examined the wagon, if they had seen fit to conclude the negotiation, and had gone to James for that purpose, it was open for him to tell them it was too late; that he had sold the buggy to another purchaser. The plaintiffs had not possession of the buggy by James's consent; i. e., there had been no delivery. The $70 had not been paid to James; i. e., the endorsement had not been made on the note with James's knowledge and assent.
The case does not find an agreement that the plaintiffs might go and examine the wagon, and, if they were satisfied, might take possession of it. If that had been so, it might have been necessary for James to notify the plaintiffs of his revoking the permission to take the buggy, and, as between the plaintiffs and James, if the rights of no innocent party intervened, the sale might have been complete. But such are not the facts found. There was no agreement by which the plaintiffs were authorized to take possession of the buggy. As it was not lawfully in their possession, any person authorized by James might take it away. The plaintiffs, therefore, having no right to the buggy, or to its possession, clearly cannot maintain the action.
The facts stated in this case are very meagre. But the law does not authorize the court to add any facts to those reported. The case finding that James sold the wagon to the defendant, as he clearly had a right to do, the defendant had a right to take it out of the possession of the plaintiffs' agent. It seems proper to suggest, in confirmation of my understanding of the facts found by the report, that it is hardly reasonable to suppose that James Forristall would have sold the wagon to the plaintiffs without providing for the payment of Norris's claim, just in the same way that he provided for it in the sale to his brother.
There must, therefore, be judgment for the defendant on the report, unless the plaintiff can cause the report to be recommitted in the court below for a more full statement of the facts.
Concurrence Opinion
I agree that as the case stands there must be judgment on the report for the defendant.
It has been suggested by the plaintiffs' counsel, in argument, that *104 at the negotiation between James Forristall and the plaintiffs, March 12, it was in fact agreed that the plaintiffs might go and see the wagon the next day, and take it, if they chose to, at the price of $70. If that fact was so, I do not now see why the familiar doctrine would not apply, that where the owner of a chattel sells it to two purchasers, neither having knowledge of the sale to the other, the one who first gets possession will hold it.
The facts found by the referee are, as suggested by the chief-justice, quite meagre, and I am, on the whole, inclined to think the plaintiffs should have leave to move in the circuit court for a rehearing before the referee on this point. Unless such motion is granted, there must be judgment on the report for the defendant.
SMITH J., concurred.
Unless the plaintiff obtains leave in the circuit court for a rehearing, the defendant is entitled to
Judgment on the report.