Towsley v. Dana

The opinion of the Court was delivered by Skinner, Ch. J. After reciting the above facts, he said, upon these facts the amount of the instructions given by the Court to the jury, in charge, was, if the plaintiff agreed to submit to the decision of Strong, the parties were bound by his decision. This charge was manifestly erroneous, .and calculated to mislead the jury. Admitting that the contract would have been obligatory upon the defendant, on the plaintiff’s transmitting to him the cloth according to the terms proposed, and although it may not have been the duty of the Court to have charged as requested, (upon which it is unnecessary to express an opinion) the law upon the important point in the case, and upon which the Court did charge, was misapprehended. To constitute a valid sale of chattels, it is necessary there should be a transfer and change of property ; though' it may [346] n°t be necessary (the parties having themselves agreed upon the price, or a third person agreed upon for that purpose, having determined the price) that there should be any actual delivery by the vendor, and possession taken by the vendee, to make the saie complete, so that the goods may be said to be bound by the contract, the price having been paid at the time, or perhaps earnest given. The law is well settled that without a delivery of the goods by the vendor, the price not having been paid, the property is not divested, and the vendee cannot seize it, or main, tain trover for it. An undertaking to pay at any other time, accepted and relied upon by the vendor, may have the same effect as payment at the time. — 2 Com. Dig. Biens D. 3. — 1 ib. Agreementf, B. 3 — 2 Bl. Com. 447. — 3 Com. Law R. 373-4. — 1 Sal. 112, 113___Noys 87. Reuben R. Thrall, Moses Strong and Rodney C. Royce, for the plaintiff. Ambrose L. Brown and Jonas Clark, for the defendant. In this case, the agreement upon which the defendant relies, was made on the 10th December, at which time the goods were not delivered, nor was any price agreed upon. It was left optional with the plaintiff to submit to the appraisal of Strong and deliver the goods, or not. If the goods had afterwards been delivered by the plaintiff or his agent, according to his directions, ’ and received by the defendant, the property would have been changed, whether the defendant had endorsed the value upon the note or not; but the case shows, that the plaintiff directed Baker, his agent, not to deliver, but to return the cloth to him, unless the defendant would allow a certain price, which he refused to do. The agent, without authority, for aught appears, (though that is not material in the case) procured Strong’s appraisal, informing hita of the plaintiff’s directions, and then took the cloth home. The defendant, having no notice from the plaintiff of his intention to comply with the terms of the agreement, had no claim to the cloth, and was a trespasser for taking it, and it was the duty of the Court, from the facts they have sent to us in the record, to have instructed the jury there was no sale, and that the defendant was liable for taking the cloth. There is, therefore, error, &c. Judgment of the county court reversed.