Fuller v. Bean, 34 N.H. 290 (1857) - Opinion

Fuller v. Bean.

A sale is not complete, so as to pass the property, while any thing remains to be done to ascertain the price, nor until the price is paid or secured, unless it may be inferred from the evidence that the parties intended the property should pass at once, and the price be fixed, or payment made at a future time.

If material facts are left in doubt upon the evidence, the question as to the intention of tho parties, as to the effect of the sale, should be left to the jury.

An agreement was made at C., in this State, for the sale of certain goods, then stored there, for seventy-five per cent, of the amount at which they should be appraised by a third person, to be paid, half by the buyer’s note, and half by the note of another person, and cash. There was no direct evidence of any delivery of the goods at C., or that the terms of the agreement should not be at once complied with. The appraisal of the goods was made the next day, and the goods were taken and removed by an agent of the buyer. The payment by notes and money, and the bill of the goods, were made on a subsequent day atB., in Massachusetts. — Held, it could not be assumed that the sale was complete at C., but the evidence, relative to that question, should be submitted to the jury.

Trespass de bonis asportatis. Plea, the general issue, with a brief statement, that the defendant, being a deputy sheriff, &c., took the goods as the property of one D. G. Fuller, on a writ against him in favor of John Felton, and that the goods were, at the time of taking, the property of said D. G. Fuller.

To prove that Felton was a creditor of D. G. Fuller, the defendant introduced a copy of the judgment in Felton v. Fuller, in the suit in which the goods were attached, and the note on which it was founded.

This note the plaintiff contended was void, having been given by said D. Gr. Fuller to Felton for spirituous liquors sold by Felton to Fuller, in New-Hampshire, contrary to law, he having no license to sell the same. The defendant contended that the sale of the liquors took place in Massachusutts.

It appeared in evidence that the liquors for which the note was given belonged to said Felton, and were kept in a store in Concord, N. H., and were in the care of one S. P. Hoyt, who was selling them on commission for Felton, till they were sold by Felton, either to said D. Gr. Fuller or to one F. Walker, in the spring of 1852. The plaintiff contended that the liquors were sold to Fuller in New-Hampshire. The defendant contended that they were sold to Walker in Boston. It appeared in evidence that the bill for the goods was made out in the name of Walker, and that the goods were taken to his store in Bow. To prove that the goods were sold to Fuller in New-Hampshire, the plaintiff introduced, as a witness, said D. H. Fuller, who testified “ that some time in May, Felton came to Concord, and he and Felton went down to Bowr, to see Walker. They came back to Concord, and Felton asked him (Fuller) what he had made up his mind to do on the goods, and asked him what was the best he would do. He told him he would give him 75 per cent, on the appraisal. Felton asked him how he would pay. He told him one half in his note, and the other half in plaintiff’s note and money. Felton said he would accept the offer. We agreed on Mr. Neal to appraise the property. I had previously spoken to Walker to have the bill made out in his name, which he did not object to. Mr. Felton then went to Boston. It was two or three days before I brought things round. Felton wrote me to come to Boston and settle up. I did so, and had the bills made in Walker’s name. The trade for the goods was made in my house in Concord, after we returned from Bow. The agreement was that I should have the goods by paying 75 per cent, on the dollar, payment as before stated. We agreed on Mr. Neal to appraise the goods. Neal made the invoice next day, as I think. Felton wanted the goods to go in the name of Walker. Walker got the goods, a part of them, that day. He sold some of the goods before they were taken to Bow. This was before I closed up the business in Boston. I call closing up the business paying for the goods. There was no understanding that I should not have the goods till the matter was closed up in Boston. The goods were taken to Bow, at Felton’s suggestion, made before the trade. Fuller testified that he paid for the goods in Boston about the 3d day of June following, and took a bill of them in Walker’s name. The bill amounted to over $800.

The defendant introduced said Walker and one Jaques, whose testimony tended to prove that the goods were sold by Felton to Walker, and that the sale took place in Boston.

Upon the testimony upon this branch of the case the court instructed the jury that the question was whether the sale was made to Fuller in this State, or to Walker in Boston, and that if they believed the testimony of Fuller, they would find that the sale took place in this State and was made to Fuller; otherwise, if they believed the testimony of Walker and Jaques.

The defendant asked the court to instruct the jury that “ a verbal bargain in New-Hampshire, without delivery, would not pass the property till payment. If payment was made in Boston, in such a state of facts, the sale would be in Boston.

“ Also, if the purchaser was to have the goods if he paid for them, and there was no written agreement, although the purchaser should take them before payment, unless it was done by the consent of the seller, no property would pass until the payment.

“ Also, unless the act by which the property passed took place in this State, there was no sale in this State.”

The court being of opinion that the evidence did not call for any such instructions, declined, and the defendant excepted and moves for a new trial. The jury found a verdict for the plaintiff.

W. AT. Bartlett, for the defendant.

By directing the jury to find the sale in New-Hampshire, if they believed Fuller, the court in effect instructed them that as matter of law the facts stated by him amounted to a sale in New-Hampshire, and that upon those facts they could not legally find otherwise.

In the refusal of instructions, the court in effect ruled that the jury were bound on these facts to find a delivery in New-Hampshire, and could not legally find the contrary, or that the bargain was conditional; that as matter of law they must find that Felton consented to the taking of the goods, and that the act by which the title passed took place in New-Hampshire.

I. It was erroneous to instruct the jury that if they believed Fuller they must find a sale in New-Hampshire; especially as his testimony consisted not of a single fact explicitly stated, but of a long narration, complicated, and not altogether consistent. Nor should the jury have been directed to receive or reject Fuller’s testimony in this wholesale way. They should have been left to believe the whole, part or none of his testimony, as they saw fit; and should have been directed, if they found certain facts proved, then, &c. Tufts v. Seabury, 11 Pick. 140; Morton v. Fairbanks, 11 Pick. 368.

II. Fuller’s testimony, if true, did not show a state of facts on which the jury were bound by law to find a sale in New-Hampshire. No matter how the weight of evidence was, or that the verdict was warranted by it, or was in fact right. If it was competent for the jury upon these facts to find for the defendant, on any point material to such sale, the rulings and instructions were erroneous.

1. Fuller’s testimony show3 a contract to sell, and not an executed sale in New-Hampshire. It was not executed, for there being no memorandum, payment, or formal delivery, the property could not be deemed delivered unless the vendee had the right to take it. Means v. Willkinson, 37 Me. 556; DeFonclear v. Shottenkirk, 3 Johns. 174; Story Contracts 780; 2 Pars. Con. 327; Story Sales, secs. 231, 2, 255, 260, 279; 2 Black. Com. 446. And he could not take them without payment, as no credit was shown. Clarkson v. Carter, 3 Cow. 84; Story Sales, secs. 5, 225, 274; 2 Kent. Com. 492, 495; Story Con., secs. 796, 803.

The transaction in New-Hampshire then was a mere bargain, which would not transfer the property without delivery. Head v. Goodwin, 37 Me. 181; May v. Gentry, 4 Dev. & Bat. 117; Penniman v. Hartshorn, 13 Mass. 87; McDonald v. Huestis, 15 Johns. 351; Seger v. Bonaffe, 2 Barb. S. C. 495; (9 Big. Con., 389, 4.)

And the delivery must be such as divests the vendor of his lien, and absolutely appropriates the goods to the vendee. — Means v. Wilkinson, 37 Maine 556; Story on Sales 276; Messer v. Woodman, 2 Foster 181; Story on Con., secs. 790, 792.

It is said that where the bargain is struck, and nothing remains to be done by the vendor, as between him and the vendee, the property passes without delivery; but this is ónly where the bargain is binding under the statute of frauds by reason of payment, &c. Story Sales, secs. 279, 280; Chitty Con. (9 Am. Ed.) 394, 5, and n.; 2 Pars. Con. 321, and n.; 2 Black. 44, 7, 8, and n.; 2 Kent 498, 4, 9; Tempest v. Fitzgerald, 3 Barn. & Ald. 684; Felton v. Fuller, 9 Foster 128; Ricker v. Cross, 5 N. H. 570; Hind v. Whitehouse, 7 East 571, 2; Shumway v. Rutter, 7 Pick. 57; Wing v. Clark, 11 Shepley 372; Story Con., sec. 780.

This bargain was invalid under the statute of frauds, unless there was a delivery, for there was no payment or memorandum. Comp. Stat. 549, sec. 10.

2. If there was no credit expressly given, or delivery, the payment was a condition precedent to the vesting of the property. Phillips v. Hunnewell, 4 Greenl. 379; Mires v. Solebay, 2 Mod. 243; Conway v. Bush, 4 Barb. 564; Tempest v. Fitzgerald, 3 B. & Ald. 684; Powers v. Bradlee, 9 G. & J. 220; Wood v. Shaw, 7 Wend. 406; Hanson v. May, 6 East 625; Russell v. Messer, 22 Wend. 659; Smith v. Levin, 1 Denio 571; Acker v. Campbell, 23 Wend. 372; Palmer v. Hand, 13 Johns. 434; Houdlette v. Tallman, 2 Step. 400; Chapman v. Lathrop, 6 Cow. 110; Hilliard on Sales 3; Com. Dig., Agreement, B, 3;

Eor else it is no valid contract. It is immaterial “ that there was no understanding that Fuller was not to have the goods till payment,” for unless there was an express understanding that he was to have them without payment, it would still be a condition precedent.

Also, the terms of the bargain expressly made payment in the agreed mode a condition precedent, for Fuller was to have the goods by paying, &c. Mires v. Solebay, 2 Mod. 243; Sands v. McLellan, 6 Cowen 582; Thayer v. Thayer, 7 Pick. 213; Walter v. Willis, 1 Dall. 354; Burris v. Gooch, 5 Rich. 1; (14 D. 458, 18;) Fairbanks v. Dow, 6 N. H. 266; Dana v. King, 2 Pick. 155; Hunt v. Livermore, 5 Pick. 395; 1 Saund. Pl. and Ev. 122, 3, 7.

And till performance of such a condition the property does not pass. Story Sales, sec. 313; Story Con., sec. 804; Pettis v. Kellogg, 7 Cush. 461; 2 Kent. Com. 496, 7; Whitwell v. Vincent, 4 Pick. 449; Messer v. Woodman, 2 Foster 181; Barrett v. Pritchard, 2 Pick. 516; Luey v. Bundy, 9 N. H. 298; Riddle v. Varnum, 20 Pick. 284; Draper v. Jones, 11 Barb. 263; Reed v. Upton, 10 Pick. 525; Marston v. Baldwin, 17 Mass. 610.

If any part of Fuller’s testimony was inconsistent with this, it should have been left to the jury to say what the bargain was. Titus v. Ash, 4 Foster 329.

3. Upon the facts stated by Fuller the jury were not bound to find a delivery. Fuller testifies to no delivery or assent of Felton to the removal, but merely says that the terms of the sale were agreed on by the parties, and Neal selected to make the appraisal, which was to determine the price; that Felton then went to Boston; that Neal took the invoice next day, and after that the goods were taken to Bow. These are all the material facts he stated, and so far from amounting to a delivery, they are at most but evidence, and from them the fair inference is that there was no delivery, for Felton appears to have been absent, and is not shown to have known of the removal, or to have assented to it; and, so far from the condition being performed, the price was not even ascertained when he left. Hoyt does not appear to have had authority to make delivery. On the contrary, his agency was for a different purpose; nor does he appear to have made delivery, or to have known any thing of the matter.

It is no answer to say that a trespass is not to be presumed. If A. shows B. carrying away A’s goods from his possession, it is no answer that a trespass is not to be presumed, for it is shown. So here, the goods were Felton’s and in his possession, and they did not pass by the bargain, and Fuller had no right to take them unless there was a delivery. His taking them, then, was wrongful, and the trespass yi&s proved; unless it be answered there was a delivery, which is a manifest begging of the question, for that is the very matter on trial. No presumption, then, is required,, for the fact is shown; and if Fuller had a justification, it is for Mm to show it..

The selection of Neal as appraiser was no delivery, nor was his appraisal, which was only to ascertain the price. Felton v. Fuller, 9 Foster 128. Although it might ascertain the price and the goods, yet a bargain, valid under the statute of frauds, was also essential to pass the property, and no such bargain then existed. Until the transaction in Boston, neither was bound. Comp. Stat., p. 459, sec. 10.

Felton’s suggestion, made before the trade, was not part of the trade, and of no efficacy. It had no reference to this or any particular removal of the goods, and was but mere advice to Fuller to take the goods to Bow, in case they should be sold to him. When it was made, there was no bargain between them, and it was not again referred to. Fuller was not bound by it to take the goods there, nor could he do so lawfully till he complied with the express terms of the subsequent bargain by paying, &c. It was as much a consent to take them then, before the bargain was made, as it was to take them before it was executed. And the absurdity of this is its own answer. Fuller himself seems to have understood that payment was a condition precedent, and that there had been no delivery; for, speaking of “ the trade,” he says, “ that it was some days before he closed up the business;” that is, “ paid for the goods at Boston.” He could not have meant the closing of the whole transaction, for that has not yet been done, as one note is still unpaid. He could only have meant the completion of the sale, and at that time in Boston he first received a bill of the goods.

Upon the evidence, then, it was clearly competent for the jury to have found that there was no delivery prior to the payment; and if the intent of the parties, as to the delivery, had been doubtful, the question should have been left to a jury. Handlette v. Tallman, 2 Shep. 403. Then the question is not if the finding of the jury was proper, but whether, in law, they were bound to find a delivery, and whether it was incompetent for them to find^otherwise.

The burden of proof was on the plaintiff to show a delivery, as necessary to pass the property under the statute of frauds, and also as a waiver of the condition precedent; yet the court refused to direct the attention of the jury to the question, whether there was a delivery in New-Hampshire, or to allow them to pass upon it.

If, then, the jury had been allowed, as they should have been, to find that there was no delivery in New-Hampshire, and had so found, as was competent for them to do upon the evidence, it would then follow that the property passed by the payment in the agreed mode in Boston. Anon., 12 Mod. 334; Barrett v. Goddard, 3 Mason 111; or by the giving the bill of sale there, either of which would give to the verbal bargain the validity it lacked till then, and the property being ascertained, nothing would have remained to be done by Felton, and the title would pass by the transactions in Boston. Felton v. Fuller, 9 Foster 128.

The transactions in New-Hampshire not passing the property, *298•would not have amounted to a sale, but would have been a mere contract to sell, (and that invalid,) which is not prohibited. Woolsey v. Bailey, 7 Foster 217; Sartwell v. Hughes, 1 Curtis 244; Smith v. Smith, 7 Foster 252.

Indeed, to fall within the prohibition, the transaction must have been a valid sale under the statute of frauds. Sartwell v. Hughes, 1 Curtis 244; Story on Sales, sec. 502; Story on Con., sec. 793; 2 Saund. Pl. & Ev. 536-8; Oliver Prec. 114, 115; Newmarket Co. v. Harvey, 3 Foster 395.

H. A. Bellows, for the plaintiff.

The charge of the judge that if they believed the testimony of Fuller, they would find that the sale took place in this State, and was made to Fuller, and otherwise if they believed the testimony of Walker and Jaques, was correct.

The statements of Fuller were sufficiently explicit to establish a sale, perfected by a delivery; and, if true, the jury could not find otherwise.

In the case in 11 Pick., cited by the defendant’s counsel, the statements might all be true and still no sale on six months credit, and the jury might properly have found the other way. But not so here. Fuller states distinctly a contract of sale, the terms of payment, that he took possession of the goods, and that soon after he was called upon by Felton to settle up, and that he went to Boston and paid and closed up the business. This constituted a sale in New-Hampshire, perfected by delivery.

Fuller took possession in pursuance of the suggestion of Felton, made before the trade was closed, received the possession from Felton’s agent, and it is to be presumed that it was with the assent of Felton. And, besides, Felton afterwards assented to it by receiving the pay, the goods then being in Fuller’s possession. The goods were in Concord, the contract of sale made there, the goods to be delivered there, and were delivered there. And although the price was paid in Massachusetts, yet the sale was made in New-Hampshire, and came within the prohibition of our statute.

In Smith v. Godfrey, 8 Foster 383, it is held that if goods are sold, to be delivered in the place where the sale is prohibited, the purchaser will not be held liable, the sale would not be complete in the foreign State, and the contract, being repugnant to the law of the country which made the prohibition, could not there be enforced.

It appeared also that the case went upon the ground that the goods were sold either to Fuller in New-Hampshire, or to Walker in Boston, and upon that point, which was the great point, there was conflicting evidence, and the charge of the judge was made in that view, and was rather a statement of the position of the case than instructions as to the law.

As to the first branch of the instructions requested, we say that there was no occasion for it, because there was in fact a delivery; and, besides a verbal bargain might pass the property •without delivery; and before payment. Nor would payment in Boston make the sale in Boston.