11 F. Cas. 574 | U.S. Circuit Court for the District of District of Columbia | 1822
delivered the opinion of the Court.
The questions arising in this case are, —
1. Was there a complete sale of the leather, so as to change the property, and west it in the plaintiff? If not, then
2. Was there such a contract for the sale and delivery of the leather as a court of equity will enforce ? If not, then
3. Whether there was any contract which gave the plaintiff a specific lien on any, and what quantity of leather.
4. If there was any such sale or contract with Daniel McPherson, or with J. M. & Son, then the title of J. McPherson, Jr. must be examined, because he dates his title in April, 1818, one year before the plaintiff’s.
5. If the plaintiff is entitled to any decree in his favor, shall it be for a specific delivery of the leather, or for as much money in Dougherty’s hands as will satisfy the plaintiff’s claim ?
1. To constitute a valid sale of a chattel, so as to change the property, there must be a certain price agreed upon, and the thing must be delivered; except in the ease of a vessel at sea, when the transfer is made by the grand bill of sale.
In the present case the sale is expressly denied by the answer, which is evidence, and conclusive, unless contradicted by two witnesses to the same point. And it is contended that this answer is contradicted by two witnesses; but this will be considered hereafter, if necessary.
2. Was there such a contract for the sale and delivery of the leather as a court of equity will enforce ?
This question may be divided. 1st. Was there a contract for the sale and delivery of the leather ? and 2d. If there was, can a court of equity decree a specific performance ?
First; was there a contract for the sale and delivery of the leather ? The bill states the affirmative. The answer positively denies it; and the plaintiff has produced no evidence of such a contract. It is true that Mr. ¿inker and Mr. Litle testify that Daniel McPherson admitted that the hides which J.M., Jr. claimed were the identical hides which he (D. M.) had sold to the plaintiff; and Mr. Pinker adds, that he understood D. M. as admitting distinctly that he had sold the hides as charged by the plaintiff, and as denying that they were actually transferred to J. M., Jr. The latter circumstance is not noticed by Mr. Litle; but he says that D. M. “ added that he did not, at the time, intend to deliver them to said Harper.”
It may be observed, that these affidavits appear to have been taken ex parte, and without notice to the defendants. There was no cross-examination. The point of the question, which appears to have been put to D. M. in the presence of the committee of the monthly meeting, was respecting the identity of the hides, and not the sale, or the terms of the sale. Neither the price nor the quantity of the leather was mentioned; nor is there the least evidence on that subject. The sale which was spoken of at the meeting might have been the sale which is stated in the defendant D. M.’s answer, which was abandoned, and which is admitted in the plaintiff’s affidavit. Admitting, however, that the answer of D. M. is contradicted by two witnesses, yet the plaintiff has failed to prove the terms of the contract. There is no evidence of the quantity of leather sold, nor of the price; nor of the amount due- to the plaintiff. What is there, then, for the Court to enforce ? It cannot make contracts for the partie ; nor can it enforce contracts not proved.
3. There is no evidence of any other contract, which gave the plaintiff any specific lien on any quantity of leather. The plaintiff having failed to show any contract which would enitle him to relief in a court of equity, it becomes unnecessary to inquire into the validity of the title of John McPherson, Jr. or of Daniel Dough-erty ; or to consider the question whether a court of equity can, or ought, in any case, to decree the specific execution of a contract for the sale of personal goods. Bill dismissed, with costs.
