57 N.H. 140 | N.H. | 1876
Lead Opinion
FROM ROCKINGHAM CIRCUIT COURT.
I think the property in the boards had not passed to Waldron at the time of the attachment. It was only the merchantable *142
boards in the pile that were to be taken by him. One act to be done, then, before delivery, was the selection and separation of the merchantable boards from the rest: they were to be surveyed. Then they were also to be transported by the seller to the mill of the Cocheco company in Dover. Further, the price was so much per thousand, and the quantity had not been ascertained. This brings the case far within the authorities. When goods are sold by number, weight, or measure, the sale is incomplete until the specified property be separated and identified — Warren v. Buckminster,
The question then comes, whether the defendant had, as against the officer, a right to remove the property for the purpose of fulfilling his contract with Waldron; and I think he had not. There can be no doubt but a valid attachment was made in the outset, when the officer took possession of the boards and put a keeper over them until he lodged a copy of the writ and return with the town-clerk. It is said that in his return he did not describe the boards with sufficient accuracy. He described them as lying on the land of one man, when in fact they were on the land of another. I think it is not necessary to inquire whether that return would be sufficient to hold the property under all circumstances against a subsequent attaching creditor, either with or without notice of the former attachment; for there is no question but that the defendant knew of the attachment, and his acquiescence in the claim of the officer that it had not been abandoned or lost is shown by his conduct in procuring a receiptor. Under these circumstances I think he was liable in trespass for removing them. Cooper v. Newman,
Concurrence Opinion
The first question is, whether here had been a valid sale to Waldron as against the creditors of the defendant. There is no evidence of any actual delivery to or possession by Waldron, or any explanation of the absence of possession. It seems hardly necessary to cite authorities to show that under such circumstances the sale was not complete as against the defendant's creditors, and the property was therefore open to attachment.
According to the cases of Brown v. Davis,
The lumber, being open to attachment, and the officer's return of the attachment being conclusive, the defence fails, and there must be judgment on the verdict according to the agreement.
SMITH, J. I think that, not only as against Batchelder, but as against Waldron, here was a valid attachment. I infer that it is intended to be understood that neither Head nor Cilley owned any land on the west side of the road leading from Lee to Northwood. Rejecting, then, that part of the return, the boards would be described as lying on the west side of the road leading from Lee to Northwood, near the saw-mill of George B. Cilley, estimated at about sixty thousand. The quantity proved to be eighty thousand, but the estimate as to quantity was only an additional description of the boards for the purpose of further identifying them. Any one examining the return in the office of the town-clerk would have been informed that the plaintiff had attached as the property of the defendant all the boards lying on the west side of the above named road, near the defendant's saw-mill, estimated at sixty thousand. The further information, that they were on land of Cilley and Head, would not have misled one making the examination, because there were no boards piled on their land; and the defendant himself even if he had not had personal information of the attachment, knew that the land on which the boards were piled did not belong to him or Head.
At the time of the attachment the property the boards had not passed to Waldron. The contract with him provided for a delivery by the defendant of the boards at the mills of the Cocheco company in in Dover, to be there measured by the surveyor of the company, and to be paid for when the whole should be delivered. The property in the boards would thus clearly remain in the defendant until delivered and surveyed, according to the well established rule that when some act remains to be done in relation to the articles which are the subject of the sale, as that of measuring or weighing, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, the performance of such act is a prerequisite to the consummation of the contract, and, until it is performed, the property does not pass to the vendee. Riddle v. Varnum, 20 Pick. 280; Foster v. Ropes,
The exceptions are overruled, and there must be
Judgment on the verdict. *144
