M'Donald v. Hewett

Spencer, J. delivered the opinion of the court. The only point is, whether the plaintiff was the owner of the timber for which the suit is brought. In construing the agreement, we must look at all its provisions. • The contract was executory, not executed, and the property did not pass. The agreement, to be sure, says, that the plaintiff bought" of the defendant the timber lying in Washington and Sara-toga counties ; but how ? The plaintiff was to pay for the same at the measurement in New-York, when it was delivered and inspected, and at a fair market price, when delivered. Neilson contracted to deliver it by a particular day, and the amount was to be endorsed on notes which M‘Donald held ; and if the timber amounted to more than the notes, the residue was to be paid for. The distinction between executory and executed contracts is well defined ; the former conveys a chose in action, the latter a chose in possession. In 2 Bl. Com. 443. 1 Com. on Con. 3. 3 Johns. Rep. 388. 424. 3 Johns. Rep. 44. 5 Johns. Rep. 74. 10 Johns. Rep. 336. this distinction is stated and illustrated. The usual and decisive test in cases of this kind, is to consider at whose risk the subject of the contract was, and certainly this timber was at the risk of Neilson. He was to transport it to New-York; it was not to be delivered until inspected; and Neilson had the right to withhold a delivery until the amount was endorsed on his notes; and if the fair value, which was yet to be ascertained, exceeded the notes, Neilson had a right to insist on payment before he part [352] ed with his timber, for by the contract these were depend-en£ and simultaneous acts. The case of Busk and another y. Davis and another, (2 Maule & Selwyn, 397.) and Shipley v. Davis, (5 Taunt. Rep. 621.) are full to the point, that if any act remains to he done by the vendor before delivery, the property dpes not pass. Judgment for the defendant. \