Pratt v. Chase

40 Me. 269 | Me. | 1885

Appleton, J.

On Sept. 6, 1853, Henry C. Wainwright gave the plaintiffs the following contract of sale: —

“Sold Pratt & Townsend ten thousand full inch shooks of usual dimensions and regular thickness, to be bright and newly made, at 50cts., 6 mo’s, with interest added. Shooks to be delivered at Calais, Maine.

“Henry C. Wainwright.

“Boston, Sept. 6, 1853.”

At the same time, he gave the plaintiff a bill of the shooks, as follows: —

“Boston, September 6, 1853.

. “ Messrs. Pratt & Townsend,

“Bought of II. O. Wainwright, 10,000 sugar box shooks, first' quality; equal to

cash, at 50cts., $5000-

“Received of Pratt & Townsend, their note at six months, from November 7th, 1853, for five thousand dollars, being on account of the above bill, the interest to be settled on the delivery of-the shooks, and shooks to remain at my risk during the month of November, 1853.

“Henry C. Wainwright.”

At the time when these papers were executed, Wainwright was not the owner of any shooks.

Nothing is better settled by the authorities, than that no personal property can pass by a grant, save that which belongs to the grantor at the time of the execution of the conveyance purporting to pass the title. Lunn v. Thornton, 1 Man. Gran. & Scott, 380; 50 E. C. L. 379. The doctrine of this case was recognized as unquestioned by the. Supreme Court of Massachusetts, in Jones v. Richardson, 10 Met. 481, and by this Court, in Head v. Goodwin, 37 Maine, 181.

There were no particular shooks which could pass to the plaintiffs on the sixth of September, for there were none to which Wainwright, or Wight, if he was acting for him, had any title, or upon which the contracts between the parties, could in any way operate. It would not be enough that the vendor should subsequently acquire a valid title to an amount of shooks greater or less than the quantity stipulated in the conveyance as sold, but some new act must be done, indicating that they were to pass under the previous bill of sale. Lunn v. Thornton, 50 E. C. L. 379. The plaintiffs rely upoira delivery as the act by which the title to the shooks, which were manufactured’ after the date of-their bill of sale, became vested in them.

It was for the jury to determine whether there was a delivery or not. It was equally for them to decide whether the delivery made, was of part or of all the shooks which had been manufactured, or was symbolical, as of a part for all. If of part, no more than those thus delivered to the plaintiff, would pass. If of part, for the whole, then, as between the parties, all might vest in the plaintiffs. These distinctions are fully recognized in the cases cited by the counsel for the defendant. “ It is said,” remarks Mr. Justice Litterdale, in Dixon v. Yates, 5 Barn. & Ad. 313, “there was a part delivery hero, and that that, in point of law, operated as a constructive delivery of the whole. But that rule is confined to cases where the delivery of part is intended to be a delivery of the whole.” Bunney v. Poyntz, 4 Barn. & Ad. 568; Simmons v. Swift, 5 B. & C. 857. In Shurtlef v. Willard, 19 .Pick. 202, Mr. Justice Morton says, “ a part only was delivered; but this the jury have found was delivered for the whole. That a contract of sale of numerous and various chattels may be executed without an actual transmission of the whole into the occupation of the purchaser, is familiar and unquestioned law. This may be done by a mere symbolical delivery, or by a delivery of a part for the whole.” A raft of lumber may bo used to make a delivery of the whole lumber having the same mark. Boynton v. Veazie, 24 Maine, 286.

The Court instructed the jury “that a sale of the whole and receipt of payment and delivery of part, as between the vendor and vendee, would be a delivery of the whole, which were then manufactured, towards the contract,” &c.

By this instruction a delivery of part would convey the title to all the shooks sold, irrespective of the intention of the parties. Whether the delivery was of a part for all, was a fact for the jury. The purpose and character of the delivery proved was withdrawn from their consideration, and was determined by the Court.

Exceptions sustained. — New trial granted.