Wing v. Clark

The opinion of the Court was drawn up by Whitman C. J. By the statement of the evidence agreed lipón by the parties, the conclusion, as to the matter of fact, as well as of law, is submitted to the consideration of the Court. By two lettefs, copied into the statement, it appears, that the defendants, who were clothiers, as early as the sixteenth of November, 1840, had contracted with the plaintiff to buy of him a shearing machine, at the price of sixty dollars, payable in one year; and, by the note of hand sent by them to him, for the consideration, and in suit in this action, that it was to be given therefor payable with interest. The machine was to be delivered at Bangor, when the defendants should find it convenient to send for it. The contract, therefore, seems to be sufficiently evidenced by writing, so as to be unaffected by the statute of frauds. Independent of any actual delivery of the article, here was a binding contract of sale. And it is laid down in Black, Com. vol. 2, p. 488, that, “ as soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods till he tenders the price agreed upon.” It is then laid down further, on the same page, that the goods, so under a contract of sale, are at the risk of the vendee till paid for and taken away; and if destroyed by accident, in the mean time, the vendor may recover the price. And in the Institutes, 1, 24, 3, it is said “ cum autem emptio et venditio contracta s.it periculum rei venditce statim ad emptorem pertinet tam¡etsi ad ■ hue ea res emptori tradita non sit.” The shearing machine, to recover the price of which, this action was insti-. tuted, was in March, next after the contract, accidentally destroyed by fire. Here, then, if the evidence in the case went no further, there would seem to be no reason why the plaintiff should not recover, [373] But the evidence does go further. In February next after the contract, the defendants, in pursuance of it, made the promissory note declared on, dated the first day of January, 1841; and sent it to the plaintiff by a teamster, who was directed by them to leave it on receiving the machine, and to transport it to them. The teamster proceeded to Bangor, and delivered the note on receiving an order upon one Muzzey, with whom the machine had been deposited in Bangor, to deliver it to him. This teamster, whose testimony is given at length in the case, says, that, upon examination of it, he concluded he could not carry it safely and therefore left it where he found it. Another witness in the case, Moses Sanders, says he was at Muzzey’s shop when the teamster came with his order, and that he helped him lade the machine on board of his sled or cart; after which the teamster, thinking that he could not carry it safely, concluded not to carry it, and it was unladed, and left in the shop, which, with the machine, on the night of the fourth of March next following, was burned. Though the teamster does not state, that he got the machine on to his sled or cart, yet he in nowise contradicts Sanders as to this fact, but is merely silent about it. It must be regarded as true, therefore, that the teamster did receive and lade it; and afterwards thought proper, for his own accommodation, to unlade and leave it. Here, then, there was not only a contract of sale, but a delivery of the article sold. The cases are numerous, which show that, a delivery of an article sold, to a person appointed by the vendee to receive it, is a delivery to the vendee. Dutton v. Solomonson, 3 B. & P. 582; Harwood v. Lester, ib. 617; Dawes v. Peck, 3 Esp. 14; Cooke v. Ludlow, 2 New R. 119; Huxam v. Smith, 2 Campb. 19. And it has been held even, that the giving of an order, by the vendor, to the vendee, on a person, in whose custody the goods were, to deliver them to the vendee, was a good symbolical delivery, Searle v. Keeves, 2 Esp. R. 598. The sale, therefore, in the case at bar, had become complete. The machine had become absolutely the property of [374] the defendants. The promissory note, declared on was properly given, and retained, notwithstanding what was testified to by the teamster, in reference to his orders not to leave the note without he brought the machine. And, if the plaintiff could not recover on the count upon the note, his action would well lie upon his other count. Judgment for sixty dollars with interest from Jan. 1, 1841.