Chapman v. Searle

Putnam J. delivered the opinion of the Court. By the bill of parcels which the plaintiff produces, it appears that Ludlow purchased the goods of Whiting, and Whiting by his certificate acknowledges that he has the same on storage for Ludlow. These papers, unexplained and unimpeached, would leave no question but that the property was in Ludlow, and by his assignment it would pass to the plaintiffs upon the trusts therein contained. The defendant has offered to prove that the papers do not exhibit the real transaction ; that it was merely a paper arrangernent; that no goods were sold and delivered, or held by Whiting on storage for Ludlow; and he would draw the inference, that therefore Ludlow could not sell and transfer, what he never had in possession either actually or constructively The great question is, whether such parol testimony is admissible. We have been referred to Austin v. Craven et al., 4 Taunt. 644, by the counsel for the defendant, and it Is the strongest case we have seen on that side. The defendants had made a contract with one K, to sell him 200 hogsheads of sugar ; K assigned the contract to the plaintiff, who inquired of the defendants if they had 50 hogsheads of sugar belonging to K, which they would deliver to the plaintiff, and they said they had, and thereupon the plaintiff paid K. for the sugar; and it was held, that the plaintiff could not recover in trover, because the 50 hogsheads of sugar were not in esse. This case at first view seems very like the case at bar, but upon more examination there will appear to be a great difference. In the case cited there was only a contract to sell, and not an actual sale of the sugar. In the case at bar there was an absolute sale, proved in the usual manner, and an acknowledgment of an executed delivery. It is true that the defendants, in the case cited, told the plaintiff they had the sugar beonging to K, and would deliver it, but that verbal acknowledgment might, as Gibbs J. observed, be explained by other [43] evidence, referable, it is presumed, to the contract of sale. In the case at bar, Whiting subscribed a writing acknowledging that he had the goods to keep for Ludlow on storage. As between him and Ludlow the writing must be taken to be conclusive evidence of the fact. Whiting was estopped to say that he had not these goods. Thus in Hurry v. Mangles, 1 Campb. 452, it was held by Lord Ellenborough, that if, after goods are sold, they remain in the warehouse of the vendor and he receives warehouse rent for them, the acceptance of the warehouse rent is a complete transfer of the goods to the purchaser ; that it is an executed delivery by the seller to the buyer, and the transitus is at an end.1 So in the case at bar, Whiting, after giving Ludlow those papers, had no lien for the price of the goods. But a case more like that at bar, upon the point now under consideration, is that of Stonard v. Dunkin et al., 2 Campb. 344. There the plaintiff advanced £7500 to one Knight, who as collateral security gave an order on the defendants for some malt. They gave a written acknowledgment that they held the malt for the account of the plaintiff, and Lord Ellen-borough held that the defendants were estopped to say that the malt was not the plaintiff’s, after acknowledging that they held it for the account of the plaintiff. The case of Harding v. Carter, at the sittings in Guildhall, Easter T. 1781, cited by Park on Ins. (7th ed.) 4, has a strong bearing upon the point of the estoppel. It was trover for two policies of insurance. The defendants were brokers and had written to the plaintiff, that they had got two policies [44] effected, one on account of the plaintiff’s clothes and wages, and the other on account of the owners, and that Mr. N. was the underwriter. A loss happened, and the defendant produced a policy underwritten by one I. S. upon the ship only, in which the plaintiff had no interest. Lord Mansfield held the defendants as the actual insurers. The defence set up was, that the letter was written by the defendants’ clerk through mistake, and it was said that trover would not lie for that which never existed ; but his Lordship would not suffer the defendants to contradict .their own representations. There the representation was by an authorized agent, but in the case at bar by the party himself. We are satisfied that the parol testimony was not admissible. It was in direct con tradiction to the writing, which Whiting could not be admitted *o deny.1 It was contended on the part of the defendant, that the contract was rescinded by the original parties before the plaintiff’s title accrued. If our view of the case is correct, the contract was executed, and was not merely executory, and so it could not be considered as rescinded ; which must be understood as a discharging or cancelling of it while it remained to be performed.2 The case, stripped of the parol testimony, proves a sale and delivery 'by Whiting to Ludlow, an assignment by Ludlow to the plaintiffs, and a demand of the property of the defendant, who represents Whiting, with a tender of the price of the storage. It has been contended however, that Ludlow paid for the [45] property by his note, which is still due, and that the defendant should be permitted to retain until the note shall be paid. The reasoning before stated, if correct, is an answer to that argument. The transitus was at an end.1 Whiting had no other lien but for the storage, and that has been tendered. Finally, it has been contended for the defendant, that there was a re-sale of the property by Ludlow to Whiting before the plaintiffs’ title accrued. But upon a careful review of the evidence, we can perceive only an agreement to reconvey at some future time, and upon certain conditions, which were never complied with before Ludlow was obliged to assign all his property to the -plaintiffs. The original parties were willing to have the note given up and the contract of sale can-celled ; but when that agreement was made, on the 8th of June or soon after, the note was in the bank, having been placed there by Whiting, and the assignment was made to the plaintiffs before the 4th of July, when Whiting brought the note and offered to give it up to Ludlow. It was then too late ; the necessities of Ludlow had compelled him to transfer all his property to the plaintiffs for the use of his creditors, and this property had not been divested from him. The original parties might have adopted a different mode. 1 Ludlow might have re-sold the goods to Whiting unconditionally, taking an indemnity from him against the note ; and the property would have vested in Whiting, in virtue of the agreement, without any re-delivery, the goods being already in his possession. Such is the provision of the civil law. “ Interdum tliam sine traditions nuda voluntas domini sufficit ad rem transferendam; veluti si rem, quam tibi aliquis commodaverit, aut locaverit, aut apud te deposuerit, postea aut vendiderit tibi, aut donaverit, aut dotis nomine dederit. Quamvis enim ex ea. causa tibi earn non tradiderit, eo tamen ipso, quod patitur tuam esse, statim tibi acquiritur proprietas, perinde ac si eo nomine tibi tradita fuisset.” Just. Inst. lib. 2, tit. 1, § 43. But that was not done. There was at most only an agreement to re-convey the property when the note should be delivered up. And that agreement was void by the statute of frauds. When it was made, Ludlow was the owner, and Whiting was the purchaser ; the value was more than £ 10 ; nothing was given or received with intent to bind the bargain, or on account of the goods to be sold, and there was no note or memorandum in writing concerning the contract. So that the property legally remained in Ludlow when he assigned all his effects to the plaintiffs. There is no objection to the form of the action, which, by St. 1822, c. 90, may be maintained against an administrator. The defendant must therefore be defaulted, and the judgment is to be for the plaintiffs. Footnotes [1] Noble v. Adams, 7 Taunt. 59; Hawes v. Watson, 2 Barn. & Cressw. 540; Cuming v. Brown, 9 East, 506; Rowley v. Bigelow, 12 Pick. 307; Lucas v. Dorrien, 7 Taunt. 278; S. C. 1 B. Moore, 29; Proctor v. Jones, 2 Carr. & Payne, 532; Chitty on Contr. (3d Amer edit.) 115; Manton v. Moore, 7 T. R. 67; Stoveld v. Hughes, 14 East, 308; Hollingsworth v. Napier, 3 Caines's.R. 182; Pleasants v. Pendleton, 6 Randolph, 473; Bentall v. Burn, 3 Barn. & Cressw. 423; S. C. 5 Dowl. & Ryl. 284; Barney v. Brown, 2 Vermont R. 374; Tarling v. Baxter, 6 Barn. & Cressw. 360; Fletcher v. Howard, 2 Aiken’s (Vermont) R. 115; Bloxam v. Sanders, 4 Barn. & Cressw. 941 Smith v. Surman, 9 Barn. & Cressw. 561; Harris v. Smith, 3 Serg. & Rawle 20; Chapman v. Lathrop, 6 Cowen, 110; Barrett v. Goddard, 3 Mason, 107 Foster v. Frampton, 6 Barn. & Cressw. 107; Poth. De Propriété, no. 200 Dig. 41.1. 9 6. [1] As to the operation, by way of estoppel, of admissions and representa tions by parties, see Russell v. De Grand, 15 Mass. R. 35; Hemmenway v. Bradford, 14 Mass. R. 121; Jewett v. Torrey, 11 Mass. R. 219; East India Co. v. Atkins, Com. 346; S. C. 1 Str. 168; South Sea Co. v. Bumstead, 1 Eq. Ca. Abr. 76; Stow v. Wyse, 7 Connect. R. 214. By agents, see 2 Stark. Ev. 57, 58; Biggs v. Lawrence, 3 T. R. 454; Fairlie v. Hastings, 10 Ves. 123; Kahl v. Jansen, 4 Taunt. 565; Bentham v. Benson, Gow, 45; Langhornv. Allnutt. 4 Taunt. 511. [2] Perrine v. Cheeseman, 6 Halst. 174; Buel v. Miller, 4 N. Hamp. R. 196; Smith v Haynes, 9 Greenl. 128; Munroe v. Perkins, 9 Pick. 298; Lattimore v. Harsen, 14 Johns. R. 330; Dearborn v. Cross, 7 Cowen, 48; Fleming v. Gilbert, 3 Johns. R. 528; Keating v. Price, 1 Johns. Cas. 22; Erwin v. Saunders, 1 Cowen, 250; Le Fevre v, Le Fevre, 4 Serg. & Rawle, 241 [1] As there was nothing in the case to rebut the presumption of an absolute payment by the negotiable promissory note given by Ludlow, the doctrine ot transitus seems inapplicable to the case, even supposing the beef to have been in a situation in which without such payment the right of stoppage would have continued. Whitcomb v. Williams, 4 Pick. 229; Van Cleef v. Therasson, ante, 14, note 3. See Reed v. Upton, 10 Pick. 522. In this last case a promissory note was given for the property purchased, but in the contract of sale it was stipulated, that the money should be paid on the delivery of the property, and this was held to be sufficient to rebut the presumption of absolute payment by the note. Our courts seem disinclined to take advantage of the doctrine they have established, touching the presumption of an absolute payment from the taking of a negotiable promissory note, and perhaps it may be found inconvenient to extend the doctrine beyond the cases to which it has already besn applied.