ment of the price, unless the goods were sold on a credit. (c) The risk of the goods was, nevertheless, thrown on the buyer before delivery, and as soon as the contract of sale was completed, even though the title was still in the vendor. Periculum rei vendita, nondum traditæ, est emptoris. (d) Pothier endeavors to vindicate this principle of the civil law, in answer to the objections of Puffendorf, Barbeyrac, and others, who insisted that the civil law in this respect was not founded on principles of natural justice. (e) We think the common law very reasonably fixes the risk where the title resides; and when the bargain is made * 499 and rendered binding by giving earnest, or by part payment, or part delivery, or by a compliance with the requisitions of the statute of frauds, the property, and with it the risk, attach to the purchaser. But though the seller has parted with the title, he may retain possession until payment; and he has even the (c) Inst. 2, 1, 41. Ibid. 3, 24, 3. Cole, lib. 2, tit. 3, 1, 20. Did. 18, 1, 19. Bynk. Quæst. Jur. Priv. lib. 3, ch. 15. Pothier, Traité du Contrat de Vente, n. 322. Idem, Traité de la Propriété, part prem. c. 2, art. 232, 242. Domat. b. 4, tit. 5 sec. 2, art. 3. This is also the rule in the Scots law. Bell's Principles of the Laws of Scotland, 3d edit. p. 28. Before delivery, the vendee has only the jus ad rem. and not the jus in re. (d) Inst. 3, 24, 3, but the seller was nevertheless bound to protect the property until the delivery. Ibid. 3, 24, 3. Pothier, Traité du Contrat de Vente, part 2, ch. 1, sec. 1, art. 3. (e) Heineccius, in his excellent treatise on the law of nature, says, that the risk of the thing purchased, after the bargain is completed, though without delivery, ought to fall on the buyer, in cases free from fault or delay on the part of the seller, quia emptor jure naturæ sine traditione sit dominus. Jur. Nat. et Gentium, b. 1, ch. 13, sec. 353. The Code Napoleon, No. 1583, has dropped the rule of the civil, and followed that of the English common law; and it holds, that the property passes to the buyer as soon as the sale is perfected, without either delivery or payment. The Civil Code of Louisiana, art. 2431, follows the words of the Code Napoleon. In the case of Meade v. Smith, 16 Conn. 356-366, Mr. Justice Storrs has given a succinct, correct, and learned view of the common and civil law on the subject of the delivery or non-delivery of the article sold, or the efficacy of the contract of sale. The contract of sale, as regulated by the civil law, is examined and discussed at large, with sound judgment and extensive and accurate learning, in the American Jurist, No. 26, for April, 1835, (vol. xiii.) Pothier's elaborate and excellent treatise on the contract of sale, (Traité du Contrat de Vente,) is founded on the civil law, as illustrated by the French civilians, and adopted and regulated by the French law. Toullier has also written largely on the law of contracts (Droit Civil, vols. vi. and vii.) as existing under the new civil code, and these two distinguished civilians are equally admirable for their logic and simplicity. Terry v. Wheeler, 25 N. Y. 520. equitable right of stoppage in transitu, in the case of the insolvency of the purchaser; and that right assumes that the vendor has divested himself of the legal title, and that the property has passed to the vendee, while the actual possession is in some third person in its transit to the vendee. (5.) Delivery of goods to a servant or agent of the purchaser, (a) or to a carrier or master of a vessel, when they are to be sent by a carrier or by water, is equivalent to delivery to the purchaser; and the property, with the correspondent risk, immediately vests in the purchaser, subject to the vendor's right of stoppage in transitu. (b)1 A delivery by the consignor of goods on board of a ship, chartered by the consignee, is a delivery to the consignee; (c) and the rule is the same, if they were put on board a general ship for the consignee. (d) The effect of a consignment of goods by a bill of lading is to vest the property in the consignee. A delivery to any general carrier, where there are no specific directions out of the ordinary usage, is a constructive delivery to the vendee; and the rule is the same whether the goods be sent from one inland place to another, or beyond sea. But if there be no particular mode of carriage specified, and no particular course of dealing between the par * ties, the property and the risk remain with the vendor 500 while in the hands of the common carrier. (e) 2 *The delivery to the agent must be so perfect as to create a responsibility on the part of the agent to the buyer; (a) and if the Dixon v. Baldwin, 5 East, 175. (a) Leeds v. Wright, 3 Bos. & Pull. 320. (b) Evans v. Marlett, 1 Lord Raym. 271. Dutton v. Solomonson, 3 Bos. & Pull, 582. Dawes v. Peck, 8 Term Rep. 330. Ludlows v. Bowne & Eddy, 1 Johns. 15. Summeril v. Elder, 1 Binney, 106. Griffith v. Ingledew, 6 Serg. & Rawle, 429. King v. Meredith, 2 Campb. 639. Copeland v. Lewis, 2 Starkie N. P. 33. Hatch v. Bayley, 12 Cush. 27; Hatch v. Lincoln, Idem, 31; Hall v. Richardson, 16 Md. 396. (c) Inglis v. Usherwood, 1 East, 515. Fowler v. M'Taggart, cited in 7 Term Rep. 442, Bohtlingk v. Inglis, 3 East, 395. (d) Coxe v. Harding, 4 East, 211. Brown v. Hodgson, 2 Campb. 36. Groning v. Mendham, 5 Maule & Selw, 189. (e) Coates v. Chaplin, 2 Gale & Davison, 552. (a) Buckman v. Levi, 3 Campb. 414. If the vendor takes upon himself actually to 1 But delivery to a carrier is held not to satisfy the statute of frauds, unless the carrier was the agent of the vendee, with power to accept the goods. Meredith v. Meigh, 22 E. L. & Eq. 91. Hart v. Bush, 1 El., B. & El., 494. Frostburg Mining Co. v. N. E. Glass Co. 9 Cush. 115. Lloyd v. Wight, 20 Geo. 574. Post, *545. * Jones v. Bradner, 10 Barb. (N. Y.) 193. goods be forwarded by water, the vendor ought to cause them to be insured, if such has been the usage; (b) and he ought, in all cases, to inform the buyer, with due diligence, of the consignment and delivery. (c) Until the party, receiving a consignment or remittance made on account of the consignor, has done some act recognizing the appropriation of it to a particular specified purpose, and the party claiming under the appropriation has signified his acceptance of it, so as to create a privity, the property and its proceeds remain at the risk and on the account of the remitter or owner. (d) (6.) Symbolical delivery will, in many cases, be sufficient and equivalent in its legal effects, to actual delivery. The delivery of the key of the warehouse in which goods sold are deposited, or transferring them on the warehouseman's or wharfinger's book to the name of the buyer, is a delivery sufficient to transfer the property. (e) So, the delivery of the receipt of the storekeeper for the goods, being the documentary evidence of the title, has been held to be a constructive delivery of the goods. (f) There may be a symbolical delivery when the thing does not admit of actual delivery. The delivery must be such as the nature of the case admits. (g) We have a striking instance of this in the Pandects, (h) where the delivery of wine is held to be made by the delivery of the keys of the wine-cellar; and the consent of the deliver the goods to the vendee, he stands to the risk; but if the vendee orders a particular mode of conveyance, the vendor is excused. Lord Mansfield, in Vale v. Bayle, Cowp. 294. Goodwyn v. Douglas, 1 Cheves Law & Eq. (S. C.) 174. (b) Cothay v. Tute, 3 Camp. 129. (c) Bell on the Contract of sale, Edin. 1844, p. 89. (d) Tiernan v. Jackson, 5 Peters U. S. 580. Williams v. Everett, 14 East, 582. Grant v. Austen, 3 Price, 58, S. P. (e) Lord Hardwicke, 1 Atk. 171. Harman v. Anderson, 2 Campb. 243. Dig. 41, 1, 9, 6. Lord Kenyon, 7 Term Rep. 71. 1 East, 194. (f) Wilkes & Fontaine v. Ferris, 5 Johns. 335. (g) Lord Kenyon, 1 East, 194. (h) Dig. 41, 2, 1, 21. 1 Packard v. Dunsmore, 11 Cush. 282. In Vining v. Gilbreth, 39 Maine, 496, delivery of the key was held sufficient to pass a shop built on the land of another, and therefore, under the circumstances, personal property. It was held in Stevens v. Stewart, 3 Cal. 140, that when delivery is essential to the contract, a symbolic delivery is effectual only when it can be immediately followed by actual delivery. party upon the spot is sufficient possession of a column of granite, which, by its weight and magnitude, was not sus*501 ceptible of any other delivery; and possession * was taken by the eyes and the declared intention. In the sale of a ship, or goods at sea, the delivery must be symbolical, by the delivery of the documentary proofs of the title; and the delivery of the grand bill of sale is a delivery of the ship itself. (a) 2 A bill of sale of timber, and materials of great bulk lying on the banks of a canal, or marking the timber, has been held to be a delivery sufficient to make the possession follow the right. It was as complete a delivery and possession as the subject-matter reasonably admitted. (b) Taking a bill of parcels and an order from the vendor on the storekeeper for the goods, and going and marking them with the initials of one's name, has been held a delivery. (c) Taking a bill of parcels, and the order on the warehouseman, and paying the price has been held to be a complete and executed contract, so as to pass the property and the risk of the articles sold. (d) The mere communication of the vendor's order on a wharfinger or warehouseman for delivery, and assented to by him, (a) Atkinson v. Maling, 2 Term Rep. 462. Videri (b) Manton v. Moore, 7 Term Rep. 67. Stoveld v. Hughes, 14 East, 308. trabes traditas quas emptor signasset. Dig. 18, 6, 14, 1. If the vendee be already in possession of the goods, the sale to him by agreement of the parties is complete by the assent of the vendor, without any other than constructive delivery; for he has possession, in fact, already. Inst. 2, 1, 43. Carter v. Willard, 19 Pick. 6, 7. Shurtleff v. Willard, Ibid. 210; and if the goods sold be in the custody of a third party for the vendor, a notice to him by the parties is a good constructive delivery. Tuxworth v. Moore, 9 Pick. 347. Carter v. Willard, 19 Idem, 1. (c) Hollingsworth v. Napier, 3 Caines, 182. A mere delivery of a bill of parcels, without more, is not a sufficient delivery of the goods to prevent the attachment of them at the instance of a creditor of vendor. Lanfear v. Sumner, 17 Mass. 110. Carter v. Willard, 19 Pick. 1. (d) Pleasants v. Pendleton, 6 Rand. 473. 1 This illustration was noticed in the nearly parallel case of Shindler v. Houston, 1 Comst. 261, in which it was held, that a naked verbal agreement, though the property was designated by the parties at the time, was not a sufficient delivery and acceptance within the statute of frauds. Some act of acceptance was held to be necessary to satisfy the statute. 2 So where personal property at the time of sale is, from its situation, incapable of delivery, the delivery of the bill of sale or other evidence of title, is sufficient to transfer the property and the possession. Gibson v. Stevens, 8 How. U. S. 384. Stanton v. Small, 8 Sandf. (N. Y.) 230. 3 Montgomery v. Hunt, 5 Cal. 226. 4 passes the property to the vendee. (e) Even the change of mark on bales of goods in a warehouse, by direction of the parties, has been held to operate as an actual delivery of the goods. (ƒ) A delivery of part of a parcel of articles selected and purchased without any objection at the time as to the delivery of the residue, takes the case out of the statute of frauds as to the whole of the goods so purchased. (g) The case would be different if the purchaser paid for the articles delivered, and left the residue undelivered and wholly unpaid for. (h) If the vendor takes the vendee within sight of ponderous articles, such as logs lying within a boom, and shows them to him, it amounts to a delivery, though the vendee should suffer them to lie within the boom, as is usual with such property, * until he have occasion to use them. (a) Delivery of a sample has been sufficient to 6 *502 (e) Lucas v. Dorrien, 7 Taunt. 278. Searle v. Keeves, 2 Esp. 598. Bentall v. Burn, 3 Barn. & Cress. 423. (f) Lord Ellenborough, 14 East, 312. The selecting and marking of sheep, in the possession of B., who is desired to retain possession of them for the vendee, was held to be a sufficient delivery to complete the sale and pass the property. Barney v. Brown, 2 Vermont, 374. 1 Bell Com. 176. Campbell v. Barry, Ibid. The Vermont and the Scotch decisions were founded on the same circumstances. (g) Slubey v. Heyward, 2 H. Blacks. 509. Baldey v. Parker, 2 Barn. & Cress. 37. Elliott v. Thomas, 3 Mees. & W. 170. Mills v. Hunt, 20 Wendell, 431. Delivery of part of goods, sold for the whole, applies to all the goods embraced by the contract of sale, although they happen to be scattered in different and distant places. Shurtleff v. Willard, 19 Pick. 202, 210, 211. (h) Walworth Ch., in Mills v. Hunt, 20 Wendell, 434. ' (a) Jewett v. Warren, 12 Mass. 300, S. P. Shindler v. Houston, 1 Denio, 49.1 But the delivery and acceptance of an order is not an acceptance of the goods within the statute of frauds. There must be a selection and acceptance of the goods, and the assent of the wharfinger to hold them for the vendee. Farina v. Home, 16 Mees. & W. 119. Stevens v. Stewart, 3 Cal. 140. See, also, Godts v. Rose, 33 E. L. & Eq. 268, and note. Squires v. Payne, 6 Cal. 654. • But the rule will be otherwise, if the contract be for the sale of separate and distinct parcels to be delivered at distinct periods of time. Seymour v. Davis, 2 Sandf. (N. Y.) 239. Where contracts for the sale of several parcels are reduced into one, of which a memorandum is signed by the vendor, a delivery of any part to the vendee takes the whole out of the statute of frauds. Biggs v. Whisking, 25 E. L. & Eq. 257. If several owners make a joint sale, and one of them delivers a portion of his parcel, this is a part delivery to satisfy the statute of frauds. Field v. Runk, 2 Zabr. 525. But the question, whether the delivery of a part was intended for the whole must be left to the jury. Pratt v. Chase 40 Maine, '269, and cases cited. 1 But the judgment in this case was reversed in the Court of Appeals. S. C. 1 Comst. 261. See the decision in the Court of Appeals, cited supra, p. [* 501,] and Leonard v. Davis, 1 Black. (U. S.) 476. |