Walter B. Mason et al. versus Thomas W. Thompson and Trustee, 18 Pick. 305

Morton J. delivered the opinion of the Court. The liability of the trustee depends entirely upon the construction of the agreement entered into between him and the defendant on the ISth of September, 1834. If the trustee is chargeable only with what he had actually received, the balance is in his favor. But if he is accountable for all the chattels mentioned in that agreement, then there is property in his hands for which he must be adjudged trustee. Was this a present sale of the property ? Or was it an executory contract, by which the trustee prospectively agreed to become the purchaser ?

If the former, then the property changed owners immediately ; if the latter, it was uncertain, and, like all other executory contracts, liable to be defeated by innumerable contingencies. Some of the language favors the one construction, and some the other. “ I agree to purchase,” seems to look to future action ; “ and do hereby purchase,” strongly implies a present bargain ; and both together, doubtless, favor the latter construction. But the meaning of E.n instrument is not to be determined by an adherence to the literal import of detached phrases, but by the fair construction of all the language together.

This is the safest mode of ascertaining the intentions of the parties. And in reading over the whole agreement, we entertain no doubt of its meaning. The parties could not have intended a present sale. Something remained to be done to transfer the property, and if it had perished in that state, the loss must have fallen upon the defendant. It is contended by the plaintiff’s counsel, that, as between the buyer and seller, no delivery is necessary. But there must at any rate be a perfect contract of sale. The owner must intend to part with his property, and the purchaser to become the immediate owner.

Their two minds must meet on this point; and if any thing remains to be done before either assents, it may be an inchoate contract, but it is not a perfect sale. The general rule is, that where any operation, as surveying, weighing, measuring, counting, or the like, remains to be performed, in order to ascertain the price, or the quantity, or the parcel to be delivered, the contract is incomplete and the property does not pass. This is laid down by Brown on Sales, 44, and is supported by numerous authorities, many of which were cited in the argument.

The stock had not been delivered, and could not be till a time subsequent to the service cf the writ, because it was a part of the contract, that the former owner should support it. The cheese had not been delivered, and some of it had not been made, and it was uncertain whether it would be. It was not paid for, nor was there any indebtedness for the price, for by the contract it was not to be credited till delivered. The same construction of the contract must apply to all the articles named in it.

How could it be deemed a present sale of the cheese, when neither that nor the material of which it was to be made were then in existence, or, as far as could ne known, ever would be ? Nor is here any delivery which will give the slighest aid to the plaintiff’s claim. The articles w'ere, by the agreement, to be delivered from time to time, and as fast as they were delivered the contract was pro tanto executed, and the property vested in the trustee, and he became accountable for the price. But there is no pretence that the cow, or the quantity of cheese, was delivered for or as representing the whole.

And we cannot perceive how the principle with which the plaintiffs’ counsel started can apply. Although a contract of sale may be good between the parties to it, yet here were assignees ; and property will not pass against the just rights of creditors or purchasers without a delivery. But it is not necessary to rely on this ground, because we think it is abundantly evident that the parties themselves never intended .to pass this property any sooner or farther than it was delivered. Trustee discharged.