Anderson v. . Read

Peckham, J. Prior to and at the time of the transactions in question in this action, the firm of Rasin & Co. was engaged in business in the city of Baltimore as manufacturers and sellers of fertilizers, and the defendants as partners, and one Perry M. De Leon, individually, were engaged in the same business in the city of ETew York. On or about the 7th day of December, 1881, one of the members of the defendants’ firm and an agent or member of the firm of Rasin & Co., met in the city of Atlanta, in the State of Georgia, and signed a contract, of which what follows is a copy : *338 “ Markham House, l “W. A. Huee, Propr%etor. S “ Atlanta, Ga., December 7, 1881. “We have to-day sold to Messrs. R. W. L. Rasin & Co., of Baltimore, Md., one thousand tons ammoniated superphosphates, at twenty-four ($24) dollars per ton (2,000 lbs.), on a cash basis, goods to be delivered free on board buyers’ vessels, and by us in bulk. We guarantee the analysis of the goods to be not less than two per cent of ammonia, and not less than eight per cent of available phosphoric acid; sampling and analysis of each shipment to be made by A. R. D. Dane & Co., of New York, or by Prof. White, of Georgia. Settlements are to be made on delivery to buyers of bills of lading by their notes, with six per cent interest added. Por the convenience of sellers, buyers agree to make their notes at four months, with the understanding that they are to be renewed so as to mature finally not later than December 10 and December 20, 1882, say one-half each date. Shipment to be made as early as possible during this month. “READ & CO., of New Porlc.” “We accept the above. “R. W. L. RASIN & CO., Baltimore, MdP “Messrs. Read & Co. have the option of furnishing an additional one thousand tons on above terms, within twenty days from this date.” This contract, or a duplicate, was received by the respective firms, through the mail, by the ninth of December following its execution in Atlanta. After the execution of the contract, one of the members of the firm of Rasin & Co. came to New York. He had heard of its execution through a telegram, but the contract had not arrived by mail before he left. On Friday, December ninth, he went to see De Leon in New York. His firm had, in the previous September, contracted to deliver to De Leon two thousand tons of this same general kind of fertilizer *339 deliverable in November and December, 1881, and January, 1882, and they had delivered but three hundred tons, and were unable to deliver more, owing, as Basin said, to the burning of his factory, but probably because of the pecuniary condition of the firm. At his interview with De Leon on the ninth, he says that he then offered to make a delivery to De Leon! on their contract by delivering to him the one thousand tons which he was to obtain from the defendants under his contract with them; that De Leon objected, but finally consented on his promising to substitute, if possible, before the actual delivery of the goods, those which were of his (Basin’s) own manufacture. Basin was to give an order on defendants, which was to be accepted by them. The next day Basin called on defendants and had an interview with one of the firm at their office. Basin testified that he asked Bead if he knew of the contract made at Atlanta for the 1,000 tons ; he said he did. He was then asked if he knew why they (Rasin & Co.) had made that purchase; he said yes, he understood Rasin & Co. were in a hole and that they had purchased the 1,000 tons to get out. Basin said that was a fact; that De Leon was pressing them for a delivery of goods to him at once, and he, Basin, was ready to comply with his agreement with them (defendants); that they should have the notes drawn up to suit themselves, such time as would best suit their convenience to have them discounted. Bead said it was all satisfactory, and he had the notes drawn. Basin also said to Bead that as these- goods were purchased to relieve them to some extent on their outstanding contract, and, as he proposed to deliver those goods to De Leon, he would request Bead’s firm to accept an order in favor of De Leon to that effect; and, as there had been more or less trouble about the delivery and shipment of goods, which, in this case, he wished to avoid, he also requested Bead & Co. to give him a memorandum of the time it would be convenient for them to deliver him these goods, that he might take it to De Leon. Basin then produced a paper as follows: *340 “ Baltimore, December 9, 1881. “ Mess. Read & Co., 34 Beaver street, N. Y. “ Gentlemen.— Please deliver to P. M. De Leon one thousand tons of ammoniated superphosphates sold to us, and oblige, “ Very respectfully, “R. W. L. RASH & CO.” “ Accepted. “READ & CO.” This whole paper is in the handwriting of Rasin, with the exception of the signature “ Read & Co.” which is written after the word “ Accepted ” and across the face of the order. After Read & Co. had signed this order, and upon the request, as above stated of Rasin, the following memorandum was signed by Read & Go: “ Memorandum. “ To Messrs. R. W. L. Rasin & Co., Baltimore, Md. “ From Read & Co., “34 Bearer street, New York, December 10, 1881. “Dear Sir.—We will deliver to Mr. P. M. De Leon on your order, dated Dec. 7th, accepted by us to-day, one cargo, say 500 tons to vessel, to begin loading about the 19th December, and the remainder of the 1,000 tons to a vessel to load the latter part of December or early in January, 1882, vessels to be furnished by Mr. De Leon. “READ & CO.” The date of December seventh in above memorandum refers to the order of Rasin & Co. on defendants, and which is really dated December ninth as stated, though the figure in the original is said to look like a figure seven. The account of this interview given by Mr. Read does not materially differ from Mr. Rasin’s. Mr. Read said that Mr. Rasin called upon him at his office and told him he had sold more goods than he could deliver, and that he wanted this 1,000 tons to deliver to De Leon. Read said he saw no objection to his doing so and Rasin then pulled out of his pocket the order above set forth, handed it to Read and asked *341 him to sign it. Read read it, and in the end signed it by writing the name of the firm across the face thereof as accepted. Read says Rasin said nothing about what was to be done with it. In response to a request from Rasin for a prompt delivery Read said he saw no reason why they should not deliver them early, that they had not got the goods made but they had the stock in the factory and it would take them but a few days to make up the goods. (On the tidal Read testified that they had no such goods on hand when the Atlanta contract was executed.) Rasin then asked for the memorandum as to delivery, which Read then wrote out, signed and gave to him. He supposed that Rasin would give them (the order and memorandum) to De Leon if he did not change his mind. Read also says he accepted this order and signed the memorandum in order to carry out his contract with Rasin & Go. Rasin then took the order and memorandum to De Leon, who thereupon gave him his own notes for about $12,000, and the acceptances of third parties for about the same amount in payment for the goods which he thus purchased from Rasin & Co. The acceptances were subsequently paid, but the notes given by De Leon were not. On Monday, December twelfth, Rasin went back to Baltimore, and about the fifteenth of December, a clerk of De Leon called at Read’s office, as he says, to learn where the boat should be sent when the goods were manufactured, to be delivered on this accepted order. Read & Co., in the meantime had learned some things which caused them to look with suspicion on the whole transaction, and the result was that they refused to deliver the goods, and notified De Leon of their determination and told him not to attempt to negotiate the order. The ground alleged was that the sale to Rasin & Co. was procured by fraud, and that De Leon was a party to it, and the order and writing on it was a part of the fraud. This notification was subsequently served on plaintiff, the assignee of De Leon, who made an assignment for the benefit of his creditors soon after this transaction. On Thursday, December fifteenth, Rasin & Co. stopped payment, *342 and on the following day made an assignment for the benefit of their.creditors. The defendants refused to deliver the goods to the assignee of De Leon under the order above mentioned unless they were paid the purchase-price of the same, and offered to surrender the notes of Basin & Co., which they had given pursuant to the terms of sale of the Atlanta contract, upon such payment. The assignee of De Leon commenced this action against defendants, claiming to recover from them the value of the goods which the defendants had refused to deliver, with the costs of the action. The answer of defendants denied any knowledge or information, etc., as to any of the transactions between Rasin & Co. and De Leon, and also set up fraud in the making of the orignal contract of sale on the part of Basin & Co. in representations as to their pecuniary condition, etc., and alleged that they had received no consideration for the order accepted by them, and that they had never been paid for the goods; also that De Leon knew Rasin & Co. were insolvent when they made the Atlanta agreement, and that he was himself in an insolvent condition and knew the fact when this order was obtained, and that he failed within six days thereafter. Upon the trial evidence was given upon the subjects above set forth. It was there much mooted as to the character of the Atlanta contract, whether it was an executed or an executory one; whether, in other words, title to 1,000 tons of fertilizer passed from defendants to Rasin & Co. by the execution of that contract. The learned judge who tried the case charged the jury that- this is an executed contract of sale.” He further said: In the' dealing between Rasin and De Leon this, I think, appears, to which I will call your attention. That De Leon said he would give the notes on condition of getting the delivery order signed by Read & Co. What did De Leon mean by that? If you find, gentlemen, any aid in the evidence to guide you to a conclusion on that subject, ascer *343 tain if you can whether De Leon expected that he would get the actual possession and delivery of these goods, or did he expect that he would receive a paper giving him the right to the delivery, subject to the vendor’s lien ? That question, gentlemen, is for you, and is one of the questions that specially lead up to the conclusion.” Again: “ If you believe, gentlemen, that Mr. Read thought when that paper was signed by him for the purpose of being delivered to Mr. De Leon that it would lead Mr. De Leon to the opinion that he was to have the ownership of these goods on the day mentioned in that paper, in the letter for the delivery of them-, and that that possession was not to be interfered with by any claim on the part of Messrs. Read for their vendor’s lien, why then, gentlemen, you will say so by your verdict. If you believe that that paper was meant to convey the effect on Mr. De Leon’s, mind that he was to have the possession of the articles in question free from the vendor’s lien, and that Messrs. Read, in signing that paper, intended to convey that fact upon De Leon’s mind, you will find a verdict for the plaintiff. If, on the other hand, you believe that Messrs. Read, in signing that paper, intended to reserve their vendor’s lien, and had no intention whatever to convey any other idea to Mr. De Leon, then, gentlemen, .you will find for the defense.” Exceptions were duly taken to the charge as above given. The court also charged that if entitled to anything the plaintiff was entitled to receive the full value of the property at the time it should have been delivered under the contract. The defendants also duly excepted to such charge. The jury returned a verdict of $27,337.90 for the plaintiff upon which judgment was entered, which was affirmed at the General Term of the Superior Court, and from which judgment of affirmance the defendants have appeáled here. In the argument here the learned counsel for the plaintiff sought to maintain his right to recover upon two different and distinct propositions, the first being that the Atlanta contract was an executed one after payment had been made by the delivery of the notes of Rasin & Co. to the defendants *344 and accepted by them, as (he claimed), nothing remained to be done but to deliver the goods of the quality and at the time agreed upon, and that the delivery order accepted by Read & Co., and transferred to Be Leon by Basin & Co. for a valuable consideration paid at the time by Be Leon divested Read & Co. of the ownership in the goods and vested the right of property in De Leon, the same as if a regular bill of lading had been given by Read & Co. to Rasin & Co., and had been assigned by them to De Leon in good faith for value paid at the time of the assignment. The second proposition is that whether the contract was an executed or simply an executory one, was immaterial, as the defendants are estopped from setting up any claim for a vendor’s lien as against Be Leon, by reason of the facts already stated herein. I. As to the first ground of recovery. We are quite clear that the contract in question was executory, and in that respect we differ from the learned trial judge. It is true that the contract uses the words “ we have to-day sold to Messrs. R. W. L. Rasin,” etc. But that language must be construed in connection with the rest of the contract, which must be taken as a whole, and such construction placed upon it as the language used in the entire instrument calls for. Looking at the contract in this light, it will bo seen there are two facts which render it entirely clear that it is in its nature a purely executory one. One fact is, that there was to be an analysis of the super-phosphates by a New York or a Georgia chemist before delivery or payment, as provided for by the contract, could be insisted upon. Perhaps the vendee might, if he chose, waive the analysis and trust entirely to the guarantee and thus accept delivery without it. But the vendor could not compel an acceptance or claim payment without an analysis, and, therefore, no title passed upon the signing of the agreement. In this respect there is no material distinction between this case and Russell v. Nicoll (3 Wend. 112.) The language there used was “sold by Baniel Bapelyej” etc. *345 But because upon a perusal of the whole contract it was clear that the property sold was to arrive in Hew York before a certain date as a condition of the sale, the court said that such arrival must precede the change of title, and that the contract was executory ; that the word sold used in the contract meant contracted to sell. It is the same here. The word used means the same — “ contracted to sell,” because some material act had yet to be performed by the vendor before he could insist upon making delivery or claim payment for the goods, and that act was to make an analysis of each cargo or shipment which analysis must show the cargo to have reached a certain stipulated standard before his contract would be complied with. The other fact is that there is in the contract no specification, identification or description of the particular property sold. It was simply 1,000 pounds of superphosphates. Where the goods were is in no way designated or intimated. They might have been in Europe, Hew York, Georgia, or (as was the truth), not in esse, and still every word of the contract have full significance. How is it possible to say that the title to any particular superphosphate passed to the vendee when there is no description or identification of it to be found in the contract, or any reference to it therein made ? Suppose the vendors had had 1,000 tons of the goods in their factory in Hew York, and that after the signing of the contract, a fire had totally destroyed the factory and its contents, who would have had to sustain the loss of such goods % Is there the least ground for claiming that the vendees must suffer it ? Make the same supposition, but place the goods at Atlanta, and the same question arises and the same answer must be given. As is said by Comstock, J., in Kimberly v. Patchin (19 N. Y. 330, at 333): “ It is not only legally but logically impossible to hold property in such things unless they are ascertained and distinguished from all other things, and this, I apprehend, is the foundation of the rule that, on a sale of chattels, in order to pass the title, the articles must, if not delivered, be desig *346 nated so that possession can be taken by the purchaser without any further act on the part of the seller.” This was said in a case where the question arose as to the transfer of title to a quantity of grain, a part of a larger quantity in a warehouse, which was designated and identified, and this court held the title passed on the execution of the contract. But when a quantity of oil was sold out of a stock consisting of different large quantities in different cisterns, and at various warehouses, and the note of sale did not express the quality or kind of oil sold, or the cistern or warehouse from which it was to be taken, and the purchaser did not even know where the particular oil lay which was to satisfy the contract, the court held the title did not pass (White, Assignee v. Wilks, 5 Taunt. 176), and that case is cited with approval in Kimberly v. Pcutehin (supra). The contract being executory when entered into, did not become an executed one by the acts of the parties in Hew York when the defendants took the notes of Basin & Co. as provided for in the contract. The most that could be plausibly argued therefrom is that Basin & Go. waived their right to demand an analysis before giving their notes for the goods: but nothing then done cures in any way the difficulty in the contract in its failure to designate or identify the goods which were sold, and in regard to which it was claimed title had passed to Basin & Go. This fatal defect in the contract, which precludes all possibility of claiming it to be an executed contract under which title passed to any specific or designated 1,000 tons of super-phosphate, attends it at all times and renders further discussion of its character, useless. The question is not whether Basin & Go. supposed the goods •were in existence, but whether from that contract the title to 1,000 tons of designated and identified phosphates passed to them. It did not pass, notwithstanding all their suppositions, unless there were some designation or identification of some certain 1,000 tons, even though out of a larger mass, and that there was no such designation or identification, *347 the contract conclusively proves. It is clear, then, that the execution of this contract transferred no title to any particular goods to Rasin & Co., and that there was a mere agreement to sell and deliver in the future on the terms and conditions mentioned in the contract. This so-called delivery order, signed, by Rasin & Co. and addressed to the defendants, is not a bill of lading or a ware - house receipt, and has no properties in common with them. It requests defendants to deliver to De Leon 1,000 tons of ammoniated super-phosphate sold to us, and is signed by Rasin & Co. It identifies no goods, designates none, and does not state where they are deposited or with whom. It is simply a direction to the defendants, justifying them in delivering to De Leon 1,000 tons of the goods, and in calling such a delivery a delivery to Rasin & Co. It is no more than an assignment of the r'ghts of Rasin & Co., under the contract to De Leon, who takes it and stands in the shoes of his assignors. The acceptance of the order, which was signed by defendants, has no further effect (aside from the possible estoppel, of which I shall speak later), than to place defendants in a position where they might be compelled to deliver to De Leon, all other things being equal, unless Rasin & Co., in demanding a delivery to them, should produce the accepted order signed by the defendants. In other words, the effect of the transaction is to put De Leon in the place of Rasin & Co., with no other or greater rights in the matter than they had. The American authorities, cited by the learned counsel for the plaintiff as to the rights arising from the issuing or indorsement of bills of lading and warehouse receipts by custodians of the property, do not touch the case in hand. It is said that the defendants, by the acceptance of the order, stood in the position of a warehouseman who has attorned, and their acceptance passed the property to De Leon. This assumes the whole question, and is, we think, wholly unwarranted. The nature of the transaction between Rasin & Co. *348 and the defendants is completely lost sight of. The truth, it must be remembered, is that defendants have agreed to sell to Rasin & Co. certain goods, unidentified and undesignated (and in truth not in existence), deliverable at a future day after an analysis should disclose the fact that the goods fulfilled the terms of the contract. All that this order does is to direct this delivery to be made to De Leon in fulfillment of defendants’ contract with Rasin & Co. ; and this the defendants by accepting the order agree to do. De Leon, therefore, takes a paper which is in no sense a warehouse receipt or bill of lading, but which simply asks that the goods sold Basin & Co. shall be delivered by defendants to De Leon; and where those goods are, and the terms of the contract, it behooves De Leon to know. After acceptance the defendants were no more their own warehousemen than before. They entered into no other or different relations with De Leon than they had with Basin & Co., and their only obligation to the former was to deliver to him, as they would have delivered to Basin & Co., the 1,000 tons of the described goods upon the contract terms. A delivery order merely, transfers no title to the goods mentioned in it. Considerable stress was laid on the argument upon the case of Briggs v. Sizer (30 N. Y. 647). In that case the order upon the drawee was not accepted, and for that reason the court held there was no cause of action against him. The opinion of the learned judge seems to assume that if there had been an acceptance of the order the plaintiff would have been entitled to recover. There was no question made of the right of the drawee (the defendant) to retain the goods until payment by the vendee (on his becoming insolvent), or by the assignee of the vendee, because the court held there was no liability on the ground of a lack of acceptance. Therefore, whether in case the acceptance had been proved the judgment of the court would have been the same, if the right of the defendant to retain the goods until payment had been asserted because of the insolvency of the vendee, is matter of mere conjecture. That question has not been *349 decided and the case is no authority against the view which a majority of the court now takes of the questions involved in this case. We think, therefore, that upon the first ground discussed the plaintiff fails to make out a case for judgment in his favor. He has shown no title to the goods by virtue of the Atlanta contract and the alleged delivery order accepted by the defendants. II. The other ground for the recovery is that the defendants are estopped from denying the legal right of the plaintiff to a delivery of goods of the same character and quality as described in the Atlanta contract, because of all the facts, the Atlanta contract, the so-called delivery order, the letter and the acts of the defendants and the change of position of De Leon in reliance on them. The question is raised by the exception to the charge of the learned trial judge in which he submitted to the jury the matters quoted above. After a careful examination of the alleged delivery order, its acceptance and the letter written by one of the defendants, and in the light of the testimony of both parties as to what occurred at the meeting between Rasin and Read in New York on the tenth of December, we think there was nothing which authorized the submission of any such question to the jury. The most that can be extracted from a perusal of all, including the oral evidence given on the trial, is that Basin had contracted to deliver to De Leon goods which he did not have, and could not get in sutiicient quantity; that he told this to Bead and said that he had purchased the 1,000 tons from him in order to deliver them to De Leon on his contract. This Bead knew, and he supposed when he accepted the order and signed the statement as to when he would deliver on the contract, that Basin would give it to De Leon, unless he thereafter changed his mind, which there is no evidence to show he could not legally and properly at any time have done. It is not pretended that defendants had any design to mislead De Leon in the slightest degree. Such design may not, perhaps, be necessary, but it *350 does not exist here. There is not a word of evidence that Rasin said to defendants he intended to try and procure money or notes from De Leon on the faith of this order, nor was there any evidence but that this 1,000 tons, so far as defendants knew, were to be delivered in fulfillment of an obligation of Rasin to De Leon for the delivery of goods which had already been fully paid for. Indeed there was no evidence whatever of any further knowledge on the part of Read than that Rasin was under obligations to De Leon which he was endeavoring to partly fulfill by having defendants deliver to De Leon the 1,000 tons m fulfillment of defendants’ contract with Ra'sin & Co. It is not pretended that Rasin said to Read he had been to see De Leon, and that he had finally consented to pay $25,000 for this 1,000 tons, provided he got an accepted order with this written statement from defendants, or that it would be upon the faith of this order and acceptance that he would advance the $25,000'. This whole transaction, it must be remembered, is with Rasm. The order is drawn, signed and produced by him at the store, and the letter or statement signed by defendants is addressed to Rasin & Co., and is plainly a document showing a consent to deliver to De Leon in fulfillment of defendant’s executory contract with Rasin & Co. Ror is there anything in the form or contents of the order which prevents the defendants from withholding delivery. In the first place the order is not what is strictly and technically known as a delivery order. Such an instrument purports to order the delivery of goods then in existence and described, and in a known and designated place, so that possession could be at once taken thereof without further orders or permits from the owner. This is no such instrument. It describes no goods other than a mere statement or their kind, gives no designation as to where they are, or whether they are yet in existence. The word “ soid ” as has been already seen does not in and of itself necessarily imply either the existence of or the change of title in the goods. In other words, whether the contract changed the title to *351 existing goods, or only agreed to sell goods thereafter, is not to be decided solely by reference to the word sold as found in the contract. Whether there has been this change of title depends upon the whole of the language used in the contract, and the circumstances of the transaction, and unless a party has done some act which estops him he may always show what those facts are in order to see whether the title has or has not changed. There is no act of defendants proved here which should estop them from showing the truth that no title had passed, and that the words “ sold to us ” as used in the accepted order meant the same as when used in the contract, viz., “ contracted to be sold.” De Leon, therefore, took such an order at his peril, and received from defendants no representation, whatever, tending in any way to show that any title to any specific property had ever passed to Rasin & Co. He occupies, therefore, simply the position of Rasin & Co. in regard to the property. The right remains with the vendors to refuse delivery to the vendees on their becoming insolvent, unless they pay for the property on delivery. A tender of notes' of the insolvent as payment of the property is no payment within the meaning of this rule, even though agreed to be so received in the contract. By the insolvency which happens subsequent to the making of the contract, the right to refuse delivery springs up unless payment m cash is made. All that is seen by the accepted order, therefore, is that the defendants acknowledged that they have sold (which expression may mean simply contracted to sell), certain goods mentioned therein to Rasin & Co., which they agree, with Rasin & Co., to deliver to De Leon. If. the latter desired accurate information from the vendors in order to bind them as to the meaning in this instance of language which is susceptible of different meanings, he should have asked them, and if the defendants then made any false representations, or were guilty of acts which were equivalent thereto, they might thereafter be estopped from showing the truth as against one who, on the faith of such representations or acts, had altered his posh *352 tion to Ms detriment if the truth shouM be proved. Here is no such case. When the order is produced by Rasin and accepted by defendants, the implication which accompanies it on these facts, is that defendants will deliver to De Leon under the same circumstances which they would deliver to Rasin & Co., and if circumstances should arise prior to the delivery which would absolve the defendants from their obligation to deliver to Rasin & Co., by reason of their insolvency, the same right would remain with defendants when a delivery should be demanded by De Leon. The written statement is but an amplification of the order and its acceptance, and creates no other or greater rights in He Leon than he would have had under the order alone. It makes the time of delivery a little later than the original Atlanta contract, but no new obligation is thereby entered into by defendants. To give the jury, upon the evidence in this case, the right to say what the intentions of the defendants were as to a waiver of their right to refuse delivery on the insolvency of their vendee until payment should be made, is to submit a question of law to that body, and is, therefore, error. What we say is that there is no evidence in the case authorizing the submission of this question of intent on the part of the defendants. Taking it altogether, the evidence shows that it is simply a promise on the part of defendants, made to Rasin & Co., to deliver goods (unidentified and undesignated) to He Leon, which they had contracted to sell to Rasin & Co., and such delivery was to be in fulfillment of such contract, with the same right to refuse delivery to He Leon which they would have had to refuse it on demand of Rasin & Co. This case is quite as strong for the defendant as that of Farmeloe v. Bain, (1 C. P. Div. 445). In that case defendants sold 100 tons of zinc to B. & Co., and gave them an order, in which defendants undertook to deliver to their order, indorsed thereon, twenty-five tons, etc., “ off your contract of this datef and signed it. Upon the faith of this docu *353 ment the plaintiffs bought of B. & Co. and paid for fifty tons of zinc, and B. & Co. having failed without having paid the defendants, they refused to deliver the zinc to the plaintiffs. The jury found that the defendants, in signing the order, intended the same as a representation to all persons to whom it should be shown that the goods therein mentioned were the property of B. & Co. The court, however, held that this document, thus signed by defendants, was not a known document among merchants and was to be looked at as any other instrument in writing, and as thus looked at it contained no representation of any fact, and the plaintiffs had no right to rely upon it as such a representation, and consequently could not claim an estoppel. In the documents before the court in this case, there are no representations of any fact which the defendants now seek to deny. They simply claim the right to refuse to deliver to an insolvent vendee, or his assignee, goods which they had contracted to sell and deliver to one whom they supposed solvent when the contract was made. They deny no fact stated in their writings, and they take no new or different position and claim no other or further right than they have at all times had. The case of Knights v. Wiffen (L. R. 5 Q. B. 660) is in no respect adverse to these views. It was decided in 1870, and the case of Farmeloe v. Bain (supra) in 1876. If the latter case were antagonistic in any way to the earlier it would at least have been mentioned. This later one is much more like the case at bar than is that of Knights v. Wiffen. There is, however, a clear distinction between Knights v. Wiffen and the case under discussion. In that case the defendant had a quantity of barley in sacks lying in his granary, which adjoined a railway station, and he sold eighty quarters of it to M. No particular sacks were appropriated to M., though the barley remained at the granary subject to the orders of M., but in the possession of defendant, who was an unpaid vendor. M. afterwards sold sixty sacks to the plaintiff Knights, who paid him therefor. M. gave plaintiff *354 a delivery order on the station master, as agent of defendant, to deliver to plaintiff the sixty sacks, and the defendant accepted it and said “all right,” etc. It was held that -defendant was estopped from denying that upon the receipt of the order he had appropriated out of the greater bulk the sixty sacks in question, and that so the title had passed to the plaintiff, who was entitled to its possession; that the -other party had altered or changed his position by virtue of defendant’s acceptance of this delivery order, and the acceptance substantially acknowledged that defendant had made such appropriation, and consequently he must be treated as if he had, in which case the title and right to the possession of the barley would have passed to the plaintiff. These facts stand out in that case. The property was in esse, known and described,- being a part of a larger quantity in the actual possession of the defendant. The delivery order for a part of the barley is shown him and he accepts it. He thereby, in -effect, acknowledges that he has the barley in his possession ; that an appropriation has been made of the proper amount and placed in the possession or under the control of the purchaser, and that acknowledgment is the statement of an existing fact which the plaintiff relied on and acted accordingly. Ho such case exists here. This is an executory contract between defendants and Basin & Co., by which defendants are to deliver, at a future time, property of a certain kind, neither designated, identified or appropriated, and as matter of fact not then in existence. The vendees ask defendants to deliver to De Leon the property sold to them, and the defendants accept the order and state in writing when they will be able to deliver. Here is no transfer of the title to any property to De Leon, nor is there any representation by act or speech of the existence of any fact from which such inference might be drawn by a reasonable man. The other English and American cases, cited by plaintiffs’ counsel upon the question of estoppel, were decided upon the same principle as Knights v. Wiffen (supra). In that case, as well as in the other cases, it must be always borne in mind *355 that the title and the right to the possession of certain specific property (which was in esse, described and its whereabouts known and stated) would have passed to the claimant if the things had actually been done by the warehousemen, wharfingers, etc., which by their acts the court held they acknowledged that they had done, and upon the faith of which acknowledgment and representations the claimants had acted. Under such circumstances the courts decided that these same warehousemen, wharfingers, etc., could not turn around and, after the claimant had altered his position on the faith of their acts and representations showing that title had actually passed to him, undertake to deny the same and claim the property. The claim of plaintiffs’ counsel that many of the American cases hold the doctrine that delivery orders transfer the title to the property the same as a bill of lading, even without acceptance, is not material here. No delivery order, nor any other document, can transfer the title to property not in existence or unidentified and undistinguishable from a larger mass, not itself designated and from which no appropriation has been made. We are thus, in this case, brought back to the one material question of estoppel, and upon that we think the counsel for the plaintiff necessarily fails. He does not claim to be able to maintain his recovery on the principles applied in Lawrence v. Fox (20 N. Y. 268), and other like cases. In this we think he is correct. After carefully examining the facts in this case in all their bearings, as presented by this record, we think no title passed to any goods by virtue of the papers mentioned herein, and that there was no estoppel, and that the only effect of the transaction proved was to substitute De Leon for Rasin & Co., subject to defendants’ right to refuse delivery to either on the insolvency of the vendees, Rasin & Co. The judgment should, therefore, be reversed and a new trial ordered, costs to abide event.