Shaw v. Smith

Park, C. J. One Corbett agreed with the plaintiffs to make for them a complete set of special tools adapted to the manufacture of the War dwell sewing machine, for a specified sum, to be paid as the work progressed. When Corbett had completed a part of the set of tools, and another part was partially completed, and still another part was in the rough, he became insolvent and made an assignment of all his property to the defendant for the benefit of his creditors. [311] At tlie time of the assignment the plaintiffs had paid hirq the entire contract price for the tools, although none of them had been delivered to them. The last payment of $500 was procured from them by fraudulent representations made by Corbett that the set of tools was substantially completed. These are the principal facts, and the question is, do they make out a case for the plaintiffs ? We think it is clear that the title to none of the tools ever became vested in the plaintiffs. None of them had been delivered, accepted, or inspected by them. The tools were required by the contract to be of a certain quality, and capable of manufacturing fifty sewing machines per day. If-they should not answer the contract the plaintiffs were not bound to receive them. Hence they required inspection and acceptance under the contract before title to them would pass to the plaintiffs. Indeed the plaintiffs had the right to insist that the entire set of tools should be put to the test in order to ascertain whether they were capable of manufacturing fifty sewing machines per day, before they were bound to accept any of them. The set of tools was an entirety. When completed, each tool would perform its particular function, like the different wheels and movements of a complicated machine. There is nothing in the case which tends to show that up to the time of the assignment the plaintiffs did not insist upon all their rights under the contract. Indeed it is to be presumed that they did until the contrary appears; the finding in this case therefore shows no title in the plaintiffs to any of the tools, even as between themselves and Corbett. This is clearly the proper view of the case on principle, and it is supported by the decided cases on the subject. What the court said in the case of Clarke et al. v. Spence et al., 4 Adol. & El., 448, is applicable here: “ On the part of the plaintiffs it was not denied in argument, nor could be according to decided cases and known principles of law, that in general under a contract for the building a vessel or making any other thing not existing in specie at the time of the contract, no property vests in the party, whom for distinc [312] tion we will call the purchaser", during the progress of the work, nor until the vessel or other thing is finished and delivered, or at least ready for delivery, and approved by the purchaser; and that, even where the contract contains a specification of the dimensions and other particulars of the vessel or thing, and fixes the precise mode and time of payment by months and days. The builder or maker is not bound to deliver to the purchaser the identical vessel or thing which is in progress, but may if he pleases dispose of that to some other person and deliver to the purchaser another vessel or thing, provided it answers to the specifications contained in the contract.” . Judge Swift, in his Digest (1 Swift Dig., 379), says: “If a person contracts with another for a chattel not in existence, but to be made for him, though he pays him the whole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel till it is finished and delivered to him.” In the case of Williams et al. v. Jackman et al., 16 Gray, 514, Bigelow, C. J., says: “ Under a contract for supplying labor and materials and making a chattel, no property passes to the vendee till the chattel is completed and delivered or ready to be delivered. This is the general rule of law. It must prevail in all cases, unless a contrary intent is expressed or clearly implied from the terms of the contract.” In the case of McConihe v. The N. York & Erie R. R. Co., 20 N. York, 495, the plaintiff agreed, for a specified price, to build and deliver certain cars to the defendant, who was to furnish iron boxes necessary to their completion. They were completed, except so far as prevented by the default of the defendant in not furnishing the boxes, when they were destroyed by fire, in the possession of the plaintiff, and without his fault. Judge Grover, in giving the opinion of the court, says: “ This was in effect an agreement for the sale of the cars, thereafter to be constructed by Mallory [the plaintiff’s assignor], to the defendant, and did not vest any property in the defendant until the cars were completed and delivered.” This was a case of extreme hardship, but still the court rigidly adhered to the rule of law on the subject. [313] See also the case of Andrews v. Durant, 1 Kernan, 35, where all the authorities on this point are cited and very ably reviewed. Again, the tools manufactured were never taken possession of by the plaintiffs, neither does the contract contemplate that possession should be delivered to them until after certain machines should be manufactured by Corbett for them; hence a sale of these tools would be void so far as creditors were concerned, even if there had been a sale of them to the plaintiffs and title to them had passed between the parties. The assignee represents the creditors, and could make void such sale as effectually as creditors could have done had they attached the property. The assignment in this case was a statutory sequestration of the property for the benefit of all the creditors of Corbett. This doctrine has been repeatedly declared in this state, and it is-too well established for controversy. Shipman, Trustee, v. Etna Ins. Co. et al., 29 Conn., 245; Swift v. Thompson, 9 Conn., 63; Chamberlain v. Thompson, 10 Conn., 243; Root v. Welch, 28 Conn., 157 ; Hall v. Gaylor, 37 Conn., 550. And many other cases to the same effect might be cited. The plaintiffs insist that the fraud by which Corbett procured the last payment of $500 from the plaintiffs, by falsely representing that the set of tools was substantially manufactured, estops him from denying the truth of those representations, and also estops the defendant, who is his assignee, from making a like denial, on the ground that the latter could take no greater rights than Corbett himself had at the. time of the assignment. Hence, it is claimed, it must be taken as true that at the time the last payment was made the set of tools was substantially completed. But would such fact in the case alter its character ? Even then the set of tools would not be constructed and ready for delivery; much less would they be actually delivered, or inspected and approved as finished articles, as the cases which we have cited require. Nor would such fact in the case an [314] swer the law, which requires a change of possession in order to make a sale of chattels good as against creditors. We advise judgment for the defendant. In this opinion the other judges concurred.