Gilman v. Hill

Eastman, J. The contract between the plaintiffs and Samuel F. Gilman, as we understand it, was this : that the plaintiffs were to have all the pelts that Gilman should take off between the first days of July and October, 1855, at fifty cents apiece; and that they might take them from time to time, as they should become dry and fit for use. This contract, being a verbal one, was within the statute of frauds ; for at the time of the bargain eighty pelts had been taken off, amounting to $40, which exceeded, of course, the statute limit of $33, and the goods to that amount were then fit for delivery, acceptance and use. There is a class of cases which hold that, where the thing contracted for at the time of the sale is not in esse, or is incapable of delivery and of part acceptance, the contract is not within the statute. Thus in Groves v. Buck, 3 Maule & Sel. 178, where it appeared that a contract had been made for the sale of a quantity of oak pins, which at the time of the sale were not cut out of the slabs, Lord Ellenborough, C. J., held that such a contract was not within the statute, upon the ground that the subject matter of the contract, at the time of making it, did not — 318 — exist in rerum natura ; and that it was incapable of delivery and of part acceptance. See, also, Sewall v. Fitch, 8 Cowen 215. And so with a contract to sell the improvements on land ; such improvements being held to be work and labor. Lower v. Winters, 7 Cowen 263 ; Frear v. Hardenburgh, 5 Johns. 275. But in Qarbutt v. Watson, 5 Barn. & Alderson 613, where a contract was made for the sale of flour, to be prepared by the sellers, who were millers, and to he afterward shipped to the buyer, it was decided to be within the statute; and Mr. Justice Bailey observed, that this was substantially a contract for the sale of flour, and that it seemed to him immaterial whether the flour was at the time ground or not: That the question was whether the contract was for goods, or for work and labor and materials found, and that in his opinion it was the former. And so it has been determined that standing crops, not severed from the land, but ripe and fit to be gathered, when sold upon the terms of their being taken immediately, are to be deemed goods within the meaning of the statute. Parker v. Stainland, 11 East 362; Warwick v. Bruce, 2 Maule & Sel. 205 ; Carter v. Jarvis, 9 Johns. 143. It appears to be now well settled, although some of the earlier cases held a different doctrine, that the statute applies equally to executory and executed contracts. Rondeau v. Wyatt, 2 H. Black. 63 ; Cooper v. Elston, 7 Term 14; Bennett v. Hall, 10 Johns. 364; Crookshank v. Burrell, 18 Johns. 58 ; Sewall v. Fitch, 8 Cowen 215. So that where the contract can be correctly said to be for a sale of goods, and not merely for work and labor, the statute applies. If the sale be of a number of articles at the same time, neither of which is of the price of $33, but which in gross exceed that sum, the contract is deemed to he entire, and to fall within the statute. Baldey v. Parker, 2 Barn. & Cress. 37 ; Comyn on Contracts 85. At the time of the contract between Gilman and the plaintiffs, eighty of the pelts had been taken off, and were dry and fit for use. They were therefore goods in esse; and, understanding — 319 — the contract as we do, that the plaintiffs might take the pelts as they became suitable for use, and as they might wish, there is no embarrassment in the case arising from the position that the property in question was not at the time of the sale in a situation to be the subject of delivery and acceptance. And upon the doctrine of Garbutt v. Watson, and Rondeau v. Wyatt, and Cooper v. Elston, there would seem to be no doubt that the statute would apply to all that might be taken off during the season. It was not a contract for work and labor to be performed, but for the goods — the pelts themselves. Neither is there any doubt of the application of the statute, arising from the terms of the sale, it being by the piece; for the contract was for all that had been taken off, and for those that might be. The payment being by the piece was only the man- . ner of ascertaining the value of all that should be taken. The contract, then, being within the statute of frauds, the goods, or a part of them, must have been accepted by the plaintiffs, and have been actually received by them, or payment must have been made so as to bind the bargain, otherwise the property did not pass from Oilman to the plaintiffs ; and if it did not pass, then the plaintiffs must fail in their action. The instructions given by the court to the jury were plain and explicit, and appear to have been correct; that in order to give the plaintiffs a property in the articles, they must have been “ delivered, accepted and received.” The fact that, at the time of the bargain, it was agreed between the parties that the $50 for the cow, and money previously received, should be allowed towards the pelts, seems not to have been regarded by the court as a payment answering the requirements of the statute, and thus was not alluded to. And this we think was the right view of the matter. It was not an act done, a payment actually made, but simply an agreement that the sum should be allowed; a matter resting in contract only. Upon the instructions given the jury found a verdict for the ninety-three pelts ; and if there was evidence competent to be — 320 — submitted to tbe jury, and to warrant the finding, the verdict, if not objectionable upon other grounds, must stand. We have in our own Reports several cases where the question of the sufficiency of the delivery and acceptance of goods has been considered, and the authorities collected. If upon a sale of chattels anything remains to be done, as between the vendor and vendee, before the goods are to be delivered, a present right of property does not attach in the vendee. And where the sale is by number, weight or measure, it is incomplete until the specific property is separated and identified. Davis v. Hill, 3 N. H. 382 ; Messer v. Woodman, 22 N. H. (2 Foster) 172; Warren v. Buckminster, 24 N. H. (4 Foster) 336. And to take a case out of the statute of frauds, acceptance and actual receipt by the buyer of goods verbally bargained for, must be shown. Shepherd v. Pressey, 32 N. H. 49; Messer v. Woodman, 22 N. H. (2 Foster) 172. These positions are sustained by the following among other authorities: Simmons v. Swift, 5 Barn. & Cress. 857; Hanson v. Meyer, 6 East 614; Macomber v. Parker, 13 Pick. 183 ; Ward v. Shaw, 7 Wendell 404 ; 2 Kent’s Com. 495, 96; Austin v. Graven, 4 Taunton 644 ; Hunt v. Hecht, 20 E. L. & Eq. 524 ; Phillips v. Bistolli, 2 Barn. & Cress. 513 ; Chitty on Contracts 375. In Macomber v. Parker, 13 Pick. 183, the court' lay down the rule upon the first position thus: “ The general principle is, that where any operation of weight, measurement, counting, or the like, remains to be performed, in order to ascertain the price, the quantity, or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete until such operation is performed. But where the goods or commodities are actually delivered, that shows the intent of the parties to complete the sale by the delivery; and the weighing, measuring, or counting, afterwards, would not be considered as any part of the contract of sale, but could be taken to refer to the adjustment of the final settlement as to the price.” To satisfy the statute of frauds there must be not only a deliv — 321 — ery by the seller, but an actual acceptance by the buyer. And there is no acceptance unless the purchaser has exercised his option to receive the goods or not, or done something that has deprived him of his option. Upon these principles we think the evidence was competent to be submitted to the jury, and from which they might find a delivery and actual acceptance of the eighty pelts on hand at the time of the contract. These were counted over by Gilman and one of the plaintiffs, on the day after the sale, and laid up in piles in the shed belonging to the other plaintiff. This shed was occupied chiefly by the plaintiff; and the witness Gilman appears not to have had any possession either of the shed or the slaughter-house except a partial one, by sufferance, and without paying rent; and especially not of the shed where the skins were piled. When these pelts were counted over and piled up, nothing was said or done by the parties indicating that they were not accepted. They were left quite as much in the possession of the plaintiffs as of Gilman. And when we take into consideration the further fact, that money and property had been received by Gilman from the plaintiffs, to an amount exceeding the $40, which was agreed at the time of the contract should be allowed towards the pelts, it appears to us that the intent of the parties was plain, and that the evidence taken together was competent to show a delivery and actual acceptance of the eighty pelts. But as to the thirteen we think the evidence was not' competent to show a transfer of the property. The most that can be made of it is this, that Gilman took off the pelts, counted theni himself, and put them into the plaintiffs’ possession. The plain-, tiffs had never seen or examined them. They had never counted them, or exercised the option of receiving them. Moreover, Gilman did not attempt to deliver them. He simply put them into the plaintiffs’ shed, without any notice that they were there ; and we do not see how the transaction can be distinguished in ■principle from the cases of Shepherd v. Pressey, Davis v. Hill, Warren v. Buckminster, and Messer v. Woodman, already cited. So far, therefore, as the thirteen pelts are to be considered, — 322 — the property in them never passed to the plaintiffs ; and the defendant, having a valid suit of attachment against Gilman, the owner, could take them. These thirteen were put upon the pile with the eighty, which the jury have found, upon competent evidence, had been delivered to the plaintiffs and been accepted by them, and that they were taken by the defendant out of the possession of the plaintiffs. Upon this finding, had the thirteen not been mixed with the eighty, there could be no doubt that an action of trover would lie against the defendant for the eighty, without demand, for he had-no right to take the plaintiffs’ property from their possession with a process against another, and it is only where a party obtains the possession of property lawfully that it is necessary to show a demand and refusal. Hyde v. Noble & al., 13 N. H. 494 ; Woodbury v. Long, 8 Pick. 543 ; Bates v. Conkling, 10 Wendell 389; Tompkins v. Haile, 3 Wend. 406; Galvin v. Bacon, 2 Fairfield 28 ; Lovejoy v. Jones, 30 N. H. (10 Foster) 164. Evidence of acts at any time before the commencement of the suit, which are inconsistent with the plaintiffs’ rights and property in the goods, is competent to maintain the allegation of a conversion. The general principle is that assuming to one’s self the property and right of disposing of another man’s goods, is a conversion.' Parker, C. J., in White v. Phelps, 12 N. H. 385. But the authorities show that the thirteen, being mixed with the eighty, the defendant, as sheriff, had the right in the first instance to take the whole, and. that in so doing he would not be a trespasser; that the act of taking merely was not tortious. Lewis v. Whittemore, 5 N. H. 364; Bond v. Ward, 7 Mass. 123 ; Shumway v. Rutter, 8 Pick. 443 ; Sawyer v. Merrill, 6 Pick. 478. The same authorities also show that, upon a demand and refusal, an action of trover could be maintained against the defendant for the eighty ; for although, having a legal process against Gil-man, the law would justify his taking the whole, still he could not unreasonably detain what did not belong to Gilman. But in the present suit no demand and refusal were shown, and the question — 323 — is presented whether the action can he maintained upon the evidence stated and the finding of the jury, without showing a demand and refusal — the original taking being justifiable. It is said by Mr. Justice Morton, in Ryder v. Hathaway, 21 Pick. 304, that few subjects in the law are less familiar, or more obscure, than that which relates to the confusion of property; and this remark is quoted in Barron v. Cobleigh, 11 N. H. 561, where the question is approached but not discussed, it being unnecessary to be determined in the view which the court took of that case. Where the goods of two persons are so intermixed that they can no longer be distinguished, each of them has an interest in the subject as tenants in common, if the intermixture was by consent. Rut if A. willfully intermix his goods with those of B., so that it becomes impossible to distinguish what belonged to A. from what belonged to B., the whole belongs to B. This rule, however, is carried no further than necessity requires; and if the goods can be easily distinguished and separated, then no change of property takes place. And if the goods mixed together are of equal value, then the injured party takes his given quantity and not the whole. But if the articles are of different value or quantity, and the original value cannot be distinguished, the party injured takes the whole. It is for the party guilty of the fraud to distinguish his own property satisfactorily, or lose it. 2 Kent’s Com. 364 ; Lupton v. White, 19 Vesey 432; Hart v. Ten Hyck, 2 Johns. Ch. 108; 15 Vesey 442 ; Ryder v. Hathaway, 21 Pick. 298 ; Seavey v. Dearborn, 19 N. H. 351. Such are the general rules upon the subject, and the present case does not require a more minute examination. These pelts were mixed by no direction or fault of the plaintiffs. They were of equal value, and as between the plaintiffs and Gilman each party would take his given quantity. The plaintiffs should therefore suffer no prejudice from the intermingling, nor be put to any inconvenience beyond what the rights of others require. In the cases to which we have referred, showing that trespass — 324 — against the officer will not lie for the taking, and that a demand and refusal is necessary before trover can be maintained, the property in dispute was all in the possession of the debtors, against whom the writs were made, and had become mixed with their goods by the indirect if not direct acts of the claimants themselves. Here, the goods were in the shed of one of the plaintiffs, and the jury have found that they were in his possession when taken ; so that the facts upon this finding are these: On the 22d of August the plaintiffs .had in their possession eighty pelts, which were their property. With them were mixed thirteen others, belonging to Gilman, the debtor. This intermixture was without their fault. On that day the defendant took the actual number, the ninety-three, by virtue of a writ against Gilman, from the plaintiffs’ possession. Soon after he took them, he was informed that they belonged to the plaintiffs, but, so far as the case shows, without making any inquiry as to the facts, he removed them to another place, and kept them until the next Hall, when he sold them at auction. Were these facts competent evidence from which a jury might find a conversion ? It appears that this action was commenced on the 31st day of August, after the defendant had removed the goods, but before they were sold. If the suit had not been brought till after the sale by the defendant, the evidence would have been competent; for the defendant, having been informed that the property belonged to the plaintiffs, could not excuse himself in selling it till he had made due inquiry as to the ownership, although he might be justified in the taking. A demand and refusal are not of themselves a conversion, but only evidence of a conversion. The assumption of authority over property, and an actual sale, constitutes a conversion. White v. Phelps, 12 N. H. 385 ; Stevens v. Eames, 22 N. H. (2 Foster) 568 ; Tompkins v. Haile, 3 Wendell 406 ; Woodbury v. Long, 8 Pick. 543. In Lewis v. Whittemore, 5 N. H. 366, the court say, “ If the plaintiff gave the officer notice of what interest he had in the corn, and demanded a return, trover may be maintained. If the — 325 — officer has sold the whole, after notice of the plaintiff’s claim, that may be a conversion.” But the sale in this case was not made till after the suit was brought, and the plaintiffs must recover upon the facts as they existed at the commencement of the action. .The act of selling, therefore, which of itself would show a conversion at the time it was made, would not be a conversion at the time of the commencement of the suit. It would, however, be evidence of the quo animo with which the property was held by the officer from the time of the taking. It would have a tendency to show that the defendant was assuming to hold the property for the credit- or whose writ he had, in opposition to the rights of the plaintiffs, with the intention of selling it as soon as execution should be obtained against Gilman, the debtor; and that if a demand had been made before the suit against him, it would have been mere matter of form. The defendant had the right to demand an indemnity, and probably received one, and his acts are not to be censured. It was a question of property which the parties interested have chosen to litigate through him, and to this course there can be no objection. Add to the fact of the sale that the property was attached in the possession of the plaintiffs, that the defendant was notified that it belonged to them, that it was removed without inquiry, to ascertain the plaintiffs’ rights, and we think the evidence was competent to bring the case within the general rule laid down in White v. Phelps, already cited, and which is said, in Moulton & Ladd v. Robinson, 27 N. H. (7 Foster) 567, to furnish the true rule of the law, that here was an “ assuming to one’s self the property and right of disposing of another man’s goods,” which is a conversion. The verdict was for the ninety-three pelts. To the extent of the eighty it was correct, but beyond that it was wrong. The case is brought here by exceptions, under the statute of 1855, and the result is, that the judgment must be affirmed for $40, with interest and costs of the court below, and reversed to the amount of $6.50, with interest and costs of this court.