Copland v. Bosquet

WASHINGTON, Circuit Justice. The first question in this cause is, whether the sale by Amory to the plaintiff, as the agent of Beylle ■& Co. was absolute, or conditional? If the former, then the right of property was im■mediately changed, and became vested in Beylle & Co.; if the latter, it was not divi st-•ed out of Amory until the terms of the contract were complied with; unless those terms were afterwards waived by Amory, by an unconditional delivery of the property. Some of the general principles of law applicable to sales of personal property, may be briefly stated as follows. Upon the completion of the contract of sale, and before delivery, the property of the thing sold is changed, and passes to the vendee. But if the sale be for money to be immediately paid, or to be paid upon delivery, payment of the price is a precedent condition of the sale, which suspends the completion of the contract until the condition is performed, and prevents the right of property from passing to the vendee, unless the vendor chooses to trust to the personal credit of the -vendee. If credit be not given, this bargain is considered nothing more than a communication. This principle however is available to the vendor only where the goods remain in his possession after the sale, and are not delivered; for if they be delivered unconditionally, that fact is evidence of the agreement of the vendor to trust to the personal responsibility of the vendee, and operates in the same manner as if the sale had been on credit If credit be given, the property immediately changes, and the vendee may bring trover for it, without paying, or tendering the price. The memorandum made of the contract in this case, though very short, is very significant of the intention of the parties to it. It admits, we think, but of this construction, that the wine was to be paid for in one of two ways, at the option of the vendee, viz. with cash at the stipulated discount, or by paper to be perfectly satisfactory to the vendor. It is most apparent from the correspondence, as well as from the testimony of Mr. Blanchard; who, as clerk of Mr. Amory, made the contract; that it was so construed and understood by all the parties concerned in it Although the names of the prmc’pals, from whom the purchase vras made, were disclosed to Mr. Amory; he was nevertheless an entire stranger to them, as well as to their standing and solidity; as appears from the inquiries which he caused to be made in Boston, and in Philadelphia. It is highly improbable, therefore, that he would have agreed to sell .them on any other terms than cash, or approved paper. If we have rightly construed the contract, it would seem to fo'.low conclusively, that the sale was conditional, that is, for cash, or approved paper, and that this condition, whichever of the alternatives was elected by the vendee, was precedent of the sale. For if a sale for cash does, from the nature of the contract, imply a condition precedent, so as to prevent a change of the property until the money is paid, it is very difficult to perceive upon what, ground a sale for approved paper should not equally imply a precedent condition. There are not many cases to be found directly upon this particular subject; although the following seem to have a strong bearing [516] upon 'it In the case of Payne v. Shadbolt, 1 Camp. 427, the defendant sold a parcel of -wood to the plaintiff, to be paid for on delivery, by a bill at two months. The defendant permitted part of the wood to be removed without receiving any bill, but refused to part with the remainder until the terms of the contract should be complied with. In an action of assumpsit against the vendor for the non-delivery of the remainder of the wood, Lord Bllenborough held, that the delivery of a part of the wood was only a dispensation with the terms of the contract pro tanto, and that the vendor was entitled, at any time to stand on his rights, as they were originally established by the contract of sale. This is certainly a strong case. Bor .what were the rights of the vendor on which he was entitled to stand, and which this decision maintained? To retain the thing sold till the terms of sale were complied with, by the vendee’s delivering a bill at two months. But if this were a credit sale, and the stipulation to deliver such' a bill did not amount to a condition precedent, the vendor had no right to retain possession of the wood, or of •any part of it, but the vendee would have been entitled, as soon as the contract was made, to bring trover. So, in the case of Harris v. Smith, 3 Serg. & R. 20, which was replevin for goods sold at auction and purchased by the defendant, the terms of the sqle being “approved indorsed notes at sixty days.” After the sale the defendant offered to give a person whom he named, as hi's in-dorser, and promised to send immediately a note so indorsed to the auctioneer, upon ■which the goods were delivered. It was decided the delivery did not change the property. If, say the court, the vendor rely on the promise of the vendee to comply with the terms of the sale, and deliver the goods absolutely, the property is changed, though the condition be not performed. But where performance and delivery are understood to be simultaneous, possession obtained by artifice will not avail. Now here the contract -for .approved notes was considered to imply a condition precedent for the reason above mentioned. For if it did not, then it was a credit sale, and the property was changed by the sale without delivery. But -the court call it a conditional sale, in so many words. The cases of Hussey v. Thornton, 4 Mass. 405, and Haggerty v. Palmer, 6 Johns. Ch. 437, have also a strong applica.ioa to this part of the subject. We conclude, therefore, upon this point, that the sale was conditional. But although the sale was of that character, still it was competent to the vendor to dispense with the condition; and if the subsequent delivery of the wine was unconditional, that circumstance is evidence of such dispensation, and that the vendor looked not to the wine, but to the personal security of the vendee. It becomes necessary, therefore, to inquire, 2. Whether the delivery to the vendee's agent was absolute or conditional? Blanchard. who made the contract on the part of Amory, and who delivered the wine, swears that upon the plaintiff’s first application for the delivery, it was refused, and that he was told that it would be first necessary for Mr. Amory to be satisfied of the goodness of the paper, as he had not received satisfactory information from those to whom application had been made. That, becoming impatient, the plaintiff again applied for the wine, when it was delivered, expressly on condition that he should cause to be produced a satisfactory acceptance, or cash interest off, agreeably to the terms of sale; and that he pledged his personal responsibility to this effect, which was considered a sufficient guarantee for the fulfilment of the terms of the sale. Here then was a delivery to the agent upon his promise, which, in the view of the law, was the promise of his principal, to fulfil the terms of the contract, as the express condition of the delivery; and to which was added the personal responsibility of the agent, by way of collateral security, and not with a view to a dispensation with the conditions of the sale; as was contended for by the defendant’s counsel. Such a construction of the language of the witness would be in direct hostility with the terms of the engagement, as he has related them. If presumptive evidence • was required to fortify the testimony of the witness, the cautious conduct of Amory throughout the whole of this transaction, and his previous refusal tc deliver the wine until the terms of the co; • tract were complied with, most abundantly furnishes it These forbid the belief for one moment that Amory would, so soon after, make an absolute delivery. The cases of Leedom v. Philips, Hussey v. Thornton, Hag-gerty v. Palmer, before referred to, and Palmer v. Hand, are, particularly the three first, stronger cases than the present in fa-vour of the vendor. 3. The only remaining question is, whether the defendant stands in any better situation than Beylle & Cj., from whom he purchased? The general rule of law is, that a purchaser of chattels from a person in possession, who has no title, can acquire l.one against the real owner, unless he b->uglit in market overt, notwithstanding he bought bona fide, and without notice of the manner in which the vendor became possessed of the properly. I have met with no Eng'ish case, in which, at common law, a contrary doctrine has been held. Ncr were any American cases, at common law, cited, which seem to look that way, except such as were decided in those states, where, for the want of a court of chancery, a kind of mixed jurisdiction of law and equity is exercised by the courts of common law. The ease of Haggerty v. Palmer was in chancery. If the possession be delivered by the real owner, together with the usual in-dicia of property, or under circumstances which may enable the vendor to impose him [517] self upon the world as the real owner; this might be a ease of constructive fraud, which would postpone, even at law, the right of the •real owner in favour of a fair purchaser, without notice, and for a valuable consider- ■ ation. It was contended by the defendant’s counsel that that is the present case, the delivery by the plaintiff to Beylle & Co. being unconditional, and the invoice stating on the face of it no other term of sale but six months credit. We are of a different opinion. In the first place, it is to be. remarked, that there is no evidence to prove the defendant was a purchaser without notice of the terms upon which this wine was purchased and delivered. For as to the testimony of the partner of Beylle, that the defendant knew nothing of' those circumstances, he manifestly spoke in regard to his belief; it Is very difficult indeed to perceive how this fact can be got at at law, and yet, forming a part of the defendant’s case, it behooves him to prove it The defendant, being the son-in-law of Beylle, and his anxiety to remove the wine, at an unusually high price payed to the dray-men in consequence of the day being the 4th of July, when it was difficult to employ la-bourers, presents some grounds of suspicion, unfavourable to this defence. But we do not form our opinion upon those circumstances; because the conclusive answer to the whole of the argument of the defendant’s counsel upon this part of the case is, that the plaintiff acted throughout, until, by the conduct of Beylle & Co. he was compelled to take the wine to himself and pay for it, as the authorised agent of Beylle & Co. The plaintiff might, no doubt, on account of his personal guarantee, have made a conditional delivery to Beylle & Co. so as to retain a lien on the property, or in some other way have provided for his own security. But if he chose not to do so, it does not render that an absolute delivery to Beylle & Co. by the vendor, which was most clearly a conditional one. Upon the whole, we are of opinion, that the judgment must be entered in favour of the plaintiff for the sum of $210S.10 cents, with interest from the 9th of July, 1825.