Smart v. Batchelder

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 *Page 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,24 N.H. 336; and so long as anything remains to be done between the parties, according to the terms of the sale, to ascertain the quantity or price of the goods sold, or to distinguish the goods sold from others, the sale and delivery will not be complete. Messer v. Woodman, 22 N.H. 172; Zagury v. Furnell, 2 Campb. 240; Rugg v. Minett, 11 East. 210; Wallace v. Breeds, 13 East. 522. 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, 45 N.H. 339, and authorities cited. My conclusion is, that according to the provisions of the case there should be judgment for the plaintiff for one dollar.