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[BOOK III. surroundings is necessarily uncertain, and conflicting results may be worked out from apparently similar cases. There

to a common carrier, consigned to the vendee, is a sufficient delivery. Hope Lumber Co. v. Foster & Logan Hardware Co. (1890), 53 Ark. 196, 13 S. W. R. 731.

Goods remaining in hands of seller as bailee of buyer. But where all the delivery or change of possession practicable has taken place, the goods may be left in the possession of the seller as bailee for the buyer, without necessarily rendering the sale voidable by creditors. Ingalls v. Herrick (1871), 108 Mass. 351, 11 Am. R. 360. As said in Thorndike v. Bath (1873), 114 Mass. 116, 19 Am. R. 318, "it often happens, especially in the case of bulky articles, that an effectual delivery is made. although it does not appear that the thing sold was removed by the buyer or came literally into his personal custody. The books are full of cases in which constructive or symbolic delivery is held to be equivalent to actual delivery, without a visible change of possession. The thing sold may re main in the hands of the seller, and yet the title may pass effectually to the buyer. This has repeatedly been decided in the case of the sale of a horse which the buyer leaves in the custody of the seller. Tuxworth v. Moore, 9 Pick. 347; Bullard v. Wait, 16 Gray, 55; Elmore v. Stone, 1 Taunt. 458. In the last of these cases the horse had been removed into another stable, but the court say that that fact was wholly immaterial. It is sufficient if the parties agree that the seller is to retain the possession, not under his lien for the price, but as the agent or bailee of the buyer. In Marvin v. Wallis, 6 E. & B. 726, the

seller retained the horse in his possession for his own use, by consent. or, in other words, as a borrower, and it was held that he was a bailee of the buyer, and that the delivery was sufficient. The possession of the seller continued uninterrupted, but the nature of his holding had changed. In Barrett v. Goddard, 3 Mason, 107, goods lying in a warehouse were sold by marks and numbers, and paid for by a promissory note on six months' credit, it being part of the bargain that the goods should remain at the option and for the benefit of the buyer at the seller's warehouse, rent free, for the time being. It was held by Mr. Justice Story that the delivery was sufficient against subsequent purchasers, and that the continuance of possession by the seller did not prevent the delivery from being effectual, if the sale was otherwise complete and nothing remained to be done on the part of the buyer, and if it was a part of the bargain that they should remain with the seller. In Beecher v. Mayall, 16 Gray, 376, it was held that where steam boilers were left in the possession of the seller to be repaired for the buyer, no further evidence of delivery was necessary, for the seller's possession would be in that case the buyer's possession."

In this case of Thorndike v. Bath, a person saw an unfinished piano in the maker's shop, and offered to purchase it of him if he would finish it. The offer was then and there accepted, a bill of sale was at once made, and the price was paid at a subsequent day, but the piano remained in the shop to be finished. It

must, however, in general terms, be the most complete and un

was held that this evidence would authorize a jury in finding a delivery of the piano sufficient to pass the title as against a subsequent purchaser.

In Ropes v. Lane (1865), 9 Allen (Mass.), 502, (1866) 11 Allen, 591, Wonson & Bros. contracted to sell to plaintiffs all the mackerel they should pack that year; the mackerel so packed were stored under plaintiffs' supervision, before November 21st, in certain warehouses of the sellers until they were filled, and the residue was piled up on their wharves. "On the 19th of December the plaintiffs settled their account with Wonson & Bros., having overpaid the bills. The parties then went upon the wharf; one of the Wonsons opened the doors of the warehouses; one of the plaintiffs saw the condition of the warehouses and the barrels on the wharf not housed or covered, and it was agreed that the mackerel should be stored during the winter in the warehouses and on the wharves for a certain price agreed. All the barrels had then been inspected and branded, and were ready for immediate ship ment." On November 21st Wonson & Bros. had contracted for the sale of mackerel to others, whose agent on that day visited the warehouses, saw the mackerel already stored there under the supervision of plaintiffs, supposed it to belong to Wonson & Bros., and took, for his principals, a warehouse receipt for it. It was held that there had been a sufficient delivery to perfect the title of the plaintiffs. See also Shaul v. Harring ton (1891), 54 Ark. 305, 15 S. W. R. 835; Hotchkiss v. Hunt, 49 Me. 213

(quoted in a following note); Goodwin v. Goodwin (1897), 90 Me. 23, 37 Atl. R. 352, 60 Am. St. R. 231.

Many other cases will be found cited in the following notes.

Delivery on rescission or resale. In general, on rescission or resale there must be the same delivery as against creditors as required on original sale. Folsom v. Cornell (1889), 150 Mass. 115, 22 N. E. R. 705 (citing Miller v. Smith, 1 Mason, 437; Quincy v. Tilton, 5 Greenl. (Me.) 277; State v. Intoxicating Liquors, 61 Me. 520); Colcord v. Dryfus (1893), 1 Okla. 228, 32 Pac. R. 329. "But where, by the terms of the agreement, or by a fair implication therefrom, the article thus sold or resold is to remain in the possession of the vendor for a specific time or for a specific purpose, as part of the consideration, and the sale is otherwise complete, the possession of the vendor will be considered the possession of the vendee, and the delivery will be complete and sufficient." Hotchkiss v. Hunt (1860), 49 Me. 213.

Delivery of growing crops.-The delivery required in the case of a growing crop is involved in some dispute. According to the prevailing rule such a crop, while growing, and until ready for harvest — not being capable without destruction of a physical removal from the land on which it grows,-can only be actually delivered by a delivery of the land; and where that is impracti cable the best practical delivery will suffice. In some States such crops are held not to be goods and chattels in the possession or under the control of the vendor, within the meaning of the statutes requiring an act

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equivocal delivery of which the circumstances will reasonably admit.1

ual and continued change of possession. See Davis v. McFarlane (1869), 37 Cal. 634, 99 Am. Dec. 340; Robbins v. Oldham (1863), 1 Duvall (Ky.), 28; Morton v. Ragan (1869), 5 Bush (Ky.), 334. In Illinois actual change of possession is not necessary. Graff v. Fitch (1871), 58 Ill. 373, 11 Am. R. 85; Thompson v. Wilhite (1876), 81 Ill. 356; Ticknor v. McClelland (1877), 84 Ill. 471; also Bellows v. Wells (1864), 36 Vt. 599.

But in Iowa actual and visible change is required. Smith v. Champney (1878), 50 Iowa, 174.

In the case of crops, not emblements, like growing grass, see Lamson v. Patch (1863), 5 Allen (Mass.), 586, 81 Am. Dec. 765. See also Stone v. Peacock (1853), 35 Me. 385.

1 Illustrations of insufficient delivery. Thus, where two ladies, who had been carrying on the millinery business, became insolvent and sold their stock without invoicing and upon long credit without security to their brother-in-law, a lawyer of another town, who left them in possession, and made no change in signs or outward indications of ownership, the sale was held void as to creditors. Roberts v. Radcliff, 35 Kan. 502. And so, where the seller of a lot of wood took the buyer to the open place where it was piled and said, "There is the wood. I deliver it to you," and the buyer walked around the pile and went once or twice a week to see if it was undisturbed, but put no mark on it and did not repile or otherwise deal with it, it was held not enough. Wilson v. Hill, 17 Nev. 401, 30 Pac. R. 1076. And where there was a sale of a lot

And where

of hay which the buyer paid for and took away in part, but left the resi due in the seller's barn as before, it was held not enough. Merrill v. Hurlburt, 63 Cal. 494. after the sale of hogs they were left with the seller on his farm to be fed, instead of being taken to the buyer's farm not far away, it was held not a sufficient change of delivery. Thompson v. Wilhite, 81 Ill. 356. And so where on a sale of lumber the seller and buyer went in sight of the piles in the seller's lumber-yard, and the seller said, "There is the lumber," and that the buyer could do what he pleased with it, but the buyer left it where it was, made no account of the piles and exercised no other control over them than to request a third person to "keep his eye on them," it was held not enough. Cobb v. Haskell, 14 Me. 303, 31 Am. Dec. 56. The mere marking of goods (Stewart v. Nelson, 79 Mo. 522), or changing the name on a store (Klee v. Reitzenberger, 23 W. Va. 749), is not enough where everything else remains as before. Where a master sold his servant a horse to be paid for in work, and the servant kept the horse on his master's farm where he was at work, feeding out of the master's hay and grain, and training and caring for it with the horses of the master, it was held not enough as against the master's creditors. Hull v. Sigsworth, 48 Conn. 258, 40 Am. R. 167 (contra, Webster v. Anderson, 42 Mich. 554, 4 N. W. R. 288, 36 Am. R 452, post). Where a team of horses, harness and wagon were sold, but remained, by arrangement, in seller's barn in charge of former employee

$965.

"Continued."-The change of possession must

also be "continued." This requirement, like the others, is to

of seller, it was held not enough. Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. R. 542, 21 Am. St. R. 868. Where a proprietor sold out to his clerk, but both continued as before, signs were unchanged and old licenses remained posted, it was held not enough. Wolf v. Kahn, 62 Miss. 814. So three hundred and twentyfour cords of wood were piled along roadside. M. and plaintiff walked to place where wood was piled, and M. pointed it out and said, "There is the wood; I deliver it to you as security for the money loaned." The two persons walked around the pile and returned home. No mark or sign of any kind was put upon the wood. Plaintiff visited the pile every day for a week to see that it was not interfered with, and after the first week from two to three times a week. He sold seven cords and gave M. credit therefor and employed M.'s father-in-law to deliver the wood sold. Held, an insufficient delivery and change of possession as against attaching creditor. Wilson v. Hill (1883), 17 Nev. 401, 30 Pac. R. 1076. W. sold plaintiff a quantity of corn in cribs on his (W.'s) farm, and received part payment. W. continued in possession of farm and in apparent possession of the corn, and fed some three hundred or four hundred bushels of it to his stock. There was nothing to indicate to general public that there had been a sale of the corn. Held, no sufficient delivery. Hewett v. Griswold (1891), 43 Ill. App. 43. F. owned a meat market and spent most of her time looking after the business of the market, and was assisted therein by the defendant.

She made a bill of sale of the market to the defendant and was afterwards in and about the market as before. Defendant told several persons he had "bought her out," and that she was at work for him. No new sign was put up, and no notice of the sale was published in the local newspaper. After the alleged sale, F., when asked if she had sold out, replied, "They say I have," and finally said, "I sold out to that man," pointing to defendant. Held, no sufficient change of possession. Donovan v. Gathe (1893), 3 Colo. App. 151, 32 Pac. R. 436. Plaintiff, a member of the A. Co., and its creditor for moneys advanced, took up draft and paid demurrage charges on goods consigned to A. Co., but held by the railroad company for charges. W., the A. Co.'s manager, placed the goods in a warehouse, in the plaintiff's name, as he testified, but the warehouse books credited them to A. Co. Later the A. Co. sold plaintiff all its property in these goods. Plaintiff notified a clerk at the warehouse that he would soon want the goods shipped to his factory and would pay charges on them. Held, he had failed to show any delivery of the goods followed by an actual and continued change of possession. Springer v. Kreeger (1893), 3 Colo. App. 487,34 Pac. R. 269. Purchaser of four barrels of whisky, having at the time no room for them in his own store, rolled them apart from the rest of the stock in the seller's store, and marked them with purchaser's brand and agreed to remove them in a few days. Held, no change of possession. Burchinell v. Weinberger (1893), 4 Colo. App. 6, 34

be interpreted in view of the purposes to be subserved. It is designed to prevent mere temporary, formal and colorable

Pac. R. 911. Claimant offered to buy horses then in pasture of a third party, and owner next day sent his hired man to accept offer. Claimant agreed with hired man that latter should deliver the horses and that claimant would pay for the service upon receiving the horses. Hired man took the horses from the pasture, but on the way to deliver them stopped at the house of the owner for the night, and while there they were taken on attachment. Held, no sufficient delivery. Watkins v. Petefish (1892), 49 Ill. App. 80. Man sold horses to his wife, but managed them after the sale just as he had done before, except that after the sale he acted as her agent. Held, no sufficient change of possession. Murphy v. Mulgrew (1894), 102 Cal. 547, 36 Pac. R. 857. Plaintiff's son-in-law, with whom she lived part of the time, gave her a bill of sale of eight horses and forty tons of hay then on his ranch. The goods remained on the ranch, and he used the horses as before giving the bill of sale. At or within two days after the giving of the bill of sale the son-in-law deeded the plaintiff an undivided half interest in the ranch and the deed was immediately recorded. Held, no sufficient delivery and change of possession of the goods. Dorman v. Soto (Cal., 1894), 36 Pac. R. 588. R. met B. on the road in the latter part of August, and bargained for corn then not cut; nothing else was said or done until about the first of October, when R. visited the farm on which the corn was growing and walked through it. No further possession was ever taken, and under the con

tract B. was to feed the corn to R.'s cattle that winter. Held, that there had been no delivery. State ex rel. Redmon v. Durant (1893), 53 Mo. App. 493.

One Hamel sold a horse to William Doucet for $145, to be paid in one year. Doucet paid $47.90 during the year, but was unable to pay more. At end of year Hamel went to Doucet's house to collect the balance. Doucet said he had not the money, but would sell the horse to get it. Hamel said that Doucet need not sell the horse, as he, Hamel, would take it back, to which Doucet agreed. At this point, and before anything further had been done, Simeon W. Doucet, William's son, came up and offered to buy the horse. It was then agreed by all three that Hamel should keep the $47.90 already paid by William, and that Simeon should pay Hamel $103 more in monthly instalments. Hamel did not take possession of the horse, or deliver possession to Simeon, nor did Simeon receive possession from William; but it was agreed between William and Simeon that William should keep and use the horse for his keeping so long as Simeon boarded with William. The horse remained in William's stable as before and was used by William in his business. Simeon paid Hamel in full and received a bill of sale, but afterwards the horse was attached as the property of William. Held, no sufficient change of possession and creditors could hold. Doucet v. Richardson (1892), 67 N. H. 186, 29 Atl. R. 635. W. sold certain goods to R., who took possession, but never

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