23 N.H. 271 | Superior Court of New Hampshire | 1851
The blinds in question were furnished by Brandon, and were his property at the time when they were taken, unless they had been delivered to the plaintiffs and had been annexed to the house, which Brandon was building for them. The contract required Brandon to paint the blinds, and they were in his hands unfinished; the plaintiffs had no possession, nor any right of possession; the fitting of the blinds to the windows did not complete the work to be done on them; it was not a surrender of the possession and control of them to the plaintiff ; it did not annex them to the house and make them part of it. The fitting of the blinds was done by way of trial, in the progress of the manufacture of the blinds,' and cannot be regarded as having any more effect to transfer the possession and property to the plaintiffs, than a measurement which would have answered the same purpose.
The contract required Brandon to make, paint, and hang the blinds by the sixteenth of November. If he had destroyed or sold these blinds after they were fitted to the windows, but had procured and hung others before the sixteenth of November, this would have been a complete performance of his contract; and the blinds so annexed to the house would be a part of it,
The blinds were indeed designed by Brandon to be put on the house, but they were designed for that purpose from the time when they were purchased; and if the intention of using them in the performance of the contract can give the property to the plaintiffs, the act of fitting them to the house would be immaterial. No point can be fixed in the course of the manufacture of the blinds when they would pass to the plaintiffs and become their’s. Till they were finally completed and hung on the house to remain as part of it, there was no delivery to the plaintiffs, nor any annexation to the house.
If the state of the account shows that Brandon had been paid in advance of his work on the house, it would not affect the question. Bennett v. Platt, 9 Pick. Rep., 558; Young v. Austin, 6 Pick. Rep., 280.
The furnishing of these blinds, for the house which Brandon had contracted to build, cannot, perhaps, in strictness, be considered as a separate sale and delivery of the blinds. But as to a creditor of Brandon, who takes them for his debt, the analogy is very close between this, and the case of a contract to make and sell a carriage, or boat, or other chattel of the kind. In that case, until the article contracted for is finished and delivered, no property passes, though paid for in advance. Mucklow's Assignee v. Mangles, 1 Taunt., 318; Phelps v. Willard, 16 Pick. Rep., 29; Story on Bailments, 285.
Verdict set aside and judgment entered for the defendant.