Amos Clary and Henry Clary vs. Jacob Frayer, 8 G. & J. 398

StepheN, Judge, delivered the opinion of the court. The question involved in this case has been argued with considerable ingenuity, by the counsel for the respective parties, and has received the attentive consideration of the court; and upon the most careful examination of the authorities which we have been able to make, we have come to the conclusion, that there is error in the opinion delivered by the court below, and that the same ought to be reversed. The bill of sale from John E.

Clary to Poole, being executed, acknowledged and recorded, according to law, was valid, and effectual to pass the legal title to him, notwithstanding the actual possession of the property conveyed, did not accompany the transfer of the right. 4 Har. and John. 446. The interest which a vendee takes under such a bill of sale, is the same in legal effect and operation, as if there had been an actual delivery of the property transferred.

The ven-dee by the execution, enrolment, and delivery of the deed, is clothed, and invested with the constructive possession of the property, and is legally competent to convey it to any third person, to whom he may think proper to dispose of it. The enrolment is a substitute for, and takes the place of actual delivery, and repels all those imputations of fraud which would arise from the retention of possession by the grantor.

Such being the character of the title acquired by Poole, the question next arises as to the legal effect and operation of his assignment to the plaintiffs in the court below, and the appellants in this court. His assignment and sale of the property was, it appears, endorsed in writing upon the bill of sale from Clary to him; the purchase money was paid, and a part of the property sold was delivered. Such at least was the evidence offered to the jury, upon which the opinion and direction of the court to them, was prayed by the plaintiffs.

Not only was there an actual delivery of the property in part, but an ineffectual effort was also made to deliver the horse, the subject matter of the present controversy. This attempt to deliver, which was made by going to the house of John E. Clary, on the day following the execution of the assignment from Poole to the plaintiffs, failed of its execution in consequence of the absence of the horse, in the possession of Clary, who had then rode him from home.

Finding the attempts to make an actual delivery at that time abortive, the plaintiffs were assured that they would certainly get the horse, and were told by Poole to go and get him wherever he might be found. Considering the light and transitory nature of personal property, how deeply and extensively it enters in commerce, and how incessantly it circulates from hand to hand, in the ordinary transactions of man with man, less ceremony is required by the law, and more facility is given in the transfer of it, than is observed in the disposition of real estate.

In accordance with this view of its character, it is said in Ross on Vendors, 34, that in the infinite number of transitions from hand to hand, of which property is susceptible, in the mercantile world, very few sales are perfected by actual delivery of the thing sold ; hence it is, that the law recognizes in many instances as valid and effectual, a constructive, instead of an actual delivery, where such a delivery cannot readily or conveniently be made.

In this case there was not only a sale, in writing, of the horse, but the purchase money was paid, the property of the chattel was therefore vested in the vendee by the bargain and payment of the purchase money. In 2 John. Rep. 16, Thompson, Justice, in delivering the opinion of the court, says: c< Blackstone in his commentaries lays down the rule generally, that a bargain struck, and payment of the purchase money, vests the property of the chattel in the vendee.

To illustrate his rule he puts the case of a horse dying in the possession of the vendor after payment of the consideration, and the loss he says must fall on the vendee. This I apprehend to be the rule in all cases, on the sale of a specific chattel, where the identity of the

article cannot be controverted. The inference of law being, that the vendor is a mere bailee retaining the possession at the request of the vendee. The sale is not executed, so as to vest the property in the vendee, without an actual or a presumed delivery, and the latter is to be inferred from circumstances, as where there is a designation of the goods by the vendor to the use of the vendee — marking them, or making them up for delivery — the removing ■ them for the purpose of being delivered, and the like. In support of which doctrine, he refers to 1 Henry, Black. 363.

In the same cáse, he says, “ In the present case there is no controversy respecting the identity or designation of the beef sold, nor does it appear, but that the plaintiffs purchased the’ whole, which the defendants had' in their store-house. The only testimony respecting the delivery, was that of James Giles, who swore, that at the time the money was paid for the beef, he understood it was to remain in the defendant’s slaughter-house, until it was shipped to JYew York.

Under these circumstances I should suppose, that the inference of law would be, that it was at the risk of the vendee, with respect to future damage, unless occasioned by the gross negligence of the vendor. If theré was a delivery, the present- action is not maintainable, it being founded on a supposed breach of contract, for .non-delivery. But we are not authorized by the case to direct a non-suit to be entered.

We can, therefore, only award a new trial, with costs, to abide the event of the suit.” — “In this case there was' nothing from which to infer a delivery of the property, but the payment of the purchase money, and the understanding that it was to remain with the vendor until it was shipped to JYeto York. In a note to be found in Com. on Cont. 137, this case is referred to as establishing the principle, that if, on the sale of goods, the purchase money be paid, though the goods are suffered to remain in the possession of the vendor, by agreement or otherwise, this will be deemed a constructive delivery.

There can be no doubt that a delivery of property sold, may be presumed from circumstances, and that an actual delivery is not in all cases necessary to pass the property. Instances have been already mentioned where a delivery may be presumed. So if the vendor gives to the vendee an order on a third person, in whose possession the goods are, for their delivery, it is sufficient to take the case out of the statute of frauds. In 3 Caines’ JVew York Term Rep. 186, Mr.

Justice Spencer, in delivering the opinion of the court says, when speaking of such an order, “ The order itself is a delivery so as to prevent the operation of the statute,” and for this principle refers to the case of Searle vs. Keener, 2 Esp. Rep. 598.

The facts of that case were as follows, in an action for not delivering a quantity of rice, it appeared that the defendant had informed the plaintiff, that defendant had a quantity of rice to sell: there was no evidence to prove any contract made, but the plaintiff produced an order on Bennet 4* Co. to deliver to him twenty barrels of rice, which was signed by defendant, and a witness proved, that defendant had told him, that he had sold twenty barrels of rice to the plaintiff, at 17s. per hundred. The plaintiff then proved the delivery of the order for the rice, to the warehouseman of Bennet & Co.

The rice not having been taken away immediately, the defendant afterwards countermanded the delivery, in consequence of which Bennet & Co. refused to deliver the rice to the plaintiff, who sent for it some days after the order had been countermanded. Eyre, Ch. J. was of opinion, that the order for delivery, directed to the person in whose possession the rice was, amounted to a delivery, so as to take the case out of the statute. Upon the execution and en-rolment of the bill of sale in this case, made by John E. Clary to William II.

Poole, and upon the payment of the purchase money which is admitted by the deed offered in evidence to the jury, there can we think be no doubt, that the property passed to Poole, and that the actual possession being retained by Clary, he must be considered as holding the same merely as the bailee of Poole, and subject to his disposal.

This being the character and capacity in which he held the property, the transfer and sale by Poole of all his right and title to the appellants in this case, by the execution and delivery of his written assignment for the same to them, operated as an order from him upon Clary, for the delivery of the horse then in his possession, and being considered in that respect, was sufficient evidence to go to the jury to prove a delivery in this case. If this view of the law be correct, the court below were in error in their refusal of the plaintiffs’ .prayer, for their opinion and instruction to the jury. .

But there is another aspect under which this case may be considered, which entitled the plaintiffs to the instruction solicited from the court below.. 'We have assumed that the ground upon which the prayer of the plaintiffs wras refused, was the want of sufficient proof of a -delivery of the horse sold by Poole to the appellants.

If they acquired the legal title and property of the horse by the purchase, in.legal construction, the legal title drew after it the constructive possession, which we think might well operate in law as a constructive delivery, it being a rule of law that the general property of personal chattels, prima facie, draws to it the possession. 2 Philips’ Evid. 133, in a note and the cases there cited. So in 2 Wheat.

Sel. 524, we find the same principle established, where in trover .the plaintiff as executor declared upon the possession of his testator, it was holden to be sufficient, because the personal property of the testator was vested in the executor, and no other person having a right to the possession, the property drew after it the possession in law.

It moreover appears that a part of the goods sold, were delivered by the vendor to the vendees,, and accepted by them, and the horse being absent in the possession of John E, Clary, the original vendor, they were assured by their vendor, that they would surely get him, and they must go and get him wherever he might be. On the following day they went'in pursuit of the horse, and found him in the possession of a constable by whom he was sold to the defendant as the property of John E. Clary, the original owner of him.

Although there was no proof of an actual delivery of the horse by Poole to his vendees, yet as the horse was' in the possession of John E. Clary, as the bailee of Poole at the time he made his sale to the plaintiffs, and at the time he went to his house to make an actual delivery of him to them, and when the direction was given to go and take possession of him wherever he might be found. We think the proof was sufficient to pass the property and right of possession, which alone are sufficient to support the action of replevin, and that the plaintiffs’ prayer to the court below, ought to have been granted.

The judgment of the court below is therefore reversed. JUDGMENT REVERSED AND PROCEDENDO AWARDED.