author: Leonard, Judge,

text:
    Bidault et al., Respondents, vs. Wales & Sons, Appellants.
    1. To avoid a sale of goods on credit, it is not sufficient that the purchaser did not intend to pay for them at the time agreed upon. He must, when he buys, intend never to pay for them, to prevent the title from passing; and this is a question for a jury.

      2. Although a vendor may avoid a sale as against the purchaser, yet this cannot he done when the rights of third parties have intervened. This exception however does not embrace creditors of the purchaser seizing the property by attachment or under execution, or taking it by assignment as a security for pre-existing debts.
    Whether it would extend to the protection of the lien of a factor of the purchaser for a general balance, or a lien in relation to the specific property, left open.

      Appeal from St. Louis Circuit Court.

    This was an action by Bidault & Co. to recover sixteen hogsheads of sugar, or the value, consigned to defendants as the factors of one Whiting, who claimed the sugar under an alleged sale to him by the plaintiffs, which, as the latter insisted, did not pass the title, by reason of his fraud. The allegations of the original petition are stated in the opinion of the court when the cause was -formerly here. (19 Mo. Rep. 36.) After it was remanded, the plaintiffs amended their petition, by stating that “Whiting purchased and received the possession of the sugar: without any intention of paying for the same, and with the purpose of cheating and defrauding the plaintiffs out of their property.” The defendants took issue upon this additional averment. They further alleged that when the' sugar was consigned to them, Whiting was indebted to them, and that this indebtedness had not been paid, and that they had been summoned as garnishees in a suit against Whiting, brought by a party to whom he was indebted in a larger amount than the balance which would remain in their hands after payment of their demand. The cause was tried before a jury. There was evidence that the sugar was bought of plaintiffs in New Orleans on a credit of ten days by an agent of Whiting for him and under his instructions, and was shipped to defendants at St. Louis to be sold on his account; that he was insolvent at the time of giving the instructions, and at the time of the purchase, and was aware of his insolvency; that for some time previous he had been making purchases of sugar and with the proceeds paying for preceding purchases ; that his agent had made a previous purchase of plaintiffs which had been paid for with the proceeds of sugar subsequently bought of another party ; that he was not in New Orleans at the time of the last purchase from plaintiffs, but arrived four or five days after-wards, and drew drafts against the sugar in favor of other parties, to whom he was indebted for previous purchases, for one third of the amount of his indebtedness to them respectively, and offered to give plaintiffs a draft for one third of the amount of his indebtedness to them, they granting an extension for the balance, which they refused to accept.
    The defendants offered to show the state of accounts between them and Whiting when they received the sugar, but this evidence was excluded, and an exception taken. They also offered to read in evidence the judgment in the suit against Whiting and the proceedings against them as garnishees in that suit. This evidence was likewise excluded. All the instructions asked by the defendants were refused, and the court, of its own motion, gave one which is set out in the opinion of the court, under which there was a verdict for the plaintiffs. The defendants appealed.

      Knox & Kellogg, for appellants.
    1. The instruction given by the court is erroneous, as it asserts the doctrine that a man who does an honest act with a worthy motive is guilty of fraud because he was insolvent and knew of his inability to meet his engagements, and pay his debts as they matured. 2. The court erred in rejecting the evidence of the state of accounts between Whiting and the appellants.

      Glover § Richardson, for respondents.
    1. The principle is well established that if a vendee, at the time of a sale, knows of his inability to pay, and purchases on credit with the preconceived design not to pay, the title to the property does not pass. (Bidault v. Wales, 19 Mo. Rep. 3T. Karl of Bristol v. Wilsmore, 1 Barn. & Cress. 520. JYohle v. Mams, 7 Taunt. 59. 12 Pick. 312.) 2.- The question of intent being one for the jury, this court will not look'into the evidence, to see if it supports the verdict. 3. The evidence as to the state of accounts between the defendants and Whiting was properly ex-eluded, because, if no title passed by the sale to Whiting, the defendants had no right to make their debt against Whiting out of plaintiffs’ property. For the same reason, the judgment against Whiting and the garnishment of the defendants in that suit were immaterial. 4. The instruction given was more favorable to the defendants than the law required. It required the jury to find, not only that Whiting did not intend to pay when he made the purchase, but to find the further fact that the purchase was but a contrivance on his part to sustain his credit.
   Leonard, Judge,

delivered the opinion of the court.

1. This judgment must be reversed on account of the instruction given to the jury as to the law of the case.

When it was here before (19 Mo. Rep. 86,) this court held in substance, that a purchaser did not acquire a valid title to property if he got it under the mere form of a purchase, made with a preconceived design of never paying for it; but that mere inability to pay, even if known to the purchaser at the time of the purchase and concealed from the seller, did not avoid the sale ; and we think the law was correctly laid down ; but however that may be, it was the judgment of this court, and must be submitted to as the law of the case.

The plaintiff amended by inserting afa averment to the effect that the party “purchased and received the property without any intention of paying for the same, and with the purpose of cheating and defrauding the plaintiffs out of their property,” and upon a jury trial the court instructed that “ if Whiting (the purchaser) at the time of the purchase of the sugar in question, was in good or ordinary credit, on a sale of ten or twenty days, but in fact was unable, to pay at the time agreed upon between the parties, and was aware of his inability in this respect, and the jury shall further find that he did not, at the time of said purchase, intend to meet his engagements, but that said purchase was but a contrivance on his part to sustain his credit, the plaintiffs are entitled to a verdict; otherwise the jury will find for defendants.”

Under this direction, the jury would of course find for the plaintiffs, if they thought the purchaser was unable to pay when he bought, and that he knew this and concealed it from the plaintiffs, and bought for the purpose of sustaining his own credit, and without any expectation or intention of meeting the payment on the day it fell due, although hoping and intending ultimately to pay.

And it has been argued here, that this instruction contains every element necessary to constitute a fraudulent purchase according to the law laid down upon the former occasion, and indeed that it even goes in favor of the purchaser beyond what we deemed to be the law, in directing the jury that they must also be satisfied that the purchase was but a contrivance on. the part of the buyer to sustain his own credit. We think quite otherwise, and that the instruction was very unfortunately expressed, if the purpose of it were (as we must presume it was) to convey to the jury the rule of law prescribed here as applicable to the case.

There is a very broad line of distinction, both in morals and law, between the conduct of one who gets property into his possession with a preconceived design never to pay for it, under color of a formal sale induced by a sham promise to pay which the party never infends to comply with, and the conduct of a man deeply involved in debt, far perhaps beyond his means of payment, and who, struggling it may be, and frequently is, against all rational hope, to sustain his credit and maintain his position in business, buys property to-day, under a promise (which he can hardly hope and most probably does not intend to keep) to pay for it on short time, in order to.raise money from day to day to meet immediate and more pressing demands. Yet, under this instruction, the jury may well have supposed, and no doubt did suppose, that the law made no distinction, but visited both classes of cases with the same legal consequences. The difference between not intending to pay on the day fixed by the contract and intending never to pay — between getting property for nothing, under the mere color of a purchase, and getting it upon a longer credit than was agreed upon by the parties, but with an expectation ultimately to pay, is entirely lost sight of, or rather indeed, as it seems to us, the jury are in effect instructed that there is no difference, and that it is enough in this particular to avoid the sale as a fraudulent purchase, that the purchaser was unable to pay “ at the time agreed upon,” and aware of his inability “ in this respect,” and did not intend to meet “ his engagements” in point of time.

It was said before and is repeated now, that this is a question for a jury under proper instructions from the court. Although it may be improper in morals for one to buy property upon a promise to pay on a given day, when the party is conscious of his inability to meet his engagements at the time, and so may be said to buy with an intention not to meet his engagements, yet this is not, in point of law, such a sale as the vendor can avoid, and it was the duty of the court, in its directions to the jury, to have made the distinction in unmistakable language, and not to have employed general expressions, capable of being argued one way before the jury and another way before the court, and which the jury could construe to mean one thing or the other, according to the caprice of the moment, or their own peculiar views of the conduct of the parties in other respects.

We have been referred by the counsel for the plaintiffs to the case of Noble v. Adams, (7 Taunt. 59,) as a case similar in its circumstances to the present one. That case was tried before the Chief Justice of the Common Pleas, and the instructions he gave the jury were approved of by the whole court, upon a motion for a new trial, and an examination of that ruling will show that we are justified in the opinion of that court in all we have said here.

The purchaser there, a trader in London, being in embarrassed circumstances, went down to Glasgow and bought the goods, paying for them with his own acceptance, and with bills of a third person whom he knew to be insolvent, and the suit was by the purchaser against a wharfinger in London who defended for the benefit of the former owner, and the question made upon the trial was, whether the plaintiff purchased the goods under such circumstances as vitiated the sale for fraud. The Chief Justice directed the jury that “ If they thought the purchaser went to Scotland, having formed a deliberate design to put off bad bills for valuable merchandise, knowing the goods would never be paid for, and intending then to abscond with the goods, or to throw them into immediate bankruptcy, or to pass them over to a particularly favored creditor, the purchaser was guilty of a fraud, and the sale would not change the property ; but if the purchaser only meant to give these bills, and himself by these bills, more credit than they deserved, and intended to continue to carry on his business and to try to pay for the goods at some time or other, if he could, that was not such a fraud as would vitiate the sale.”

Here, the distinction to which we have referred is broadly marked, and the attention of the jury called directly to it, so that they tried the case with a clear understanding of the rule of law they were bound to apply to it.

With the fact's of the case now before us, we have nothing to •do. Our duty is discharged when we see that the court trying the cause has properly instructed the jury as to the law that ought to govern them in deciding it. The responsibility of rightly determining the facts is upon the court and jury below.

2. The other point made in the cause may be disposed of in a few words. This property appears to be in the hands of the defendants as Whiting’s factors, and they allege that when it came there, a large balance was due to them on general account from their principal, and that they have since been summoned upon an execution against their principal, as garnishees, in respect to this property. When it is said, in the case of a fraudulent purchase, that the property is not changed, it is to be understood that, although the party injured may avoid the sale against the fraudulent purchaser, this cannot be done when the rights of third persons have intervened. This exception, however, does not embrace the general creditors of the purchaser seizing the property by attachment or execution, or taking it by assignment as a security for pre-existing debts.

It may extend, however, to the protection of a factor’s lien, even for a general balance, and it would seem, ought certainly to protect any lien he may have in relation to the specific property ; and whether the proceedings in the garnishment had progressed so far as to fix any personal liability upon him in respect to the attached property, is not disclosed; and we leave these questions for future consideration, if they shall arise in the cause. The judgment is reversed, and the cause remanded for further proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    Cunningham, Plaintiff in Error, vs. Ashbrook & others, Defendants in Error.
    1. As a general rule, goods existing separately and ready for immediate delivery, are tbe only proper subjects of a common law sale, which is, strictly speaking, a transaction operating as a present transfer of title, and does not include executory contracts for the sale and delivery of goods to be separated from a larger mass, or to be afterwards procured or manufactured for the buyer.
    3. To constitute a delivery, within the meaning of the statute of frauds, there must be not only a change of the actual possession, but a change of the civil possession, which is a holding of the thing, with the design of keeping it as owner; and this is a question of fact for a jury.
    3. The principle that, in a sale of goods, no title passes, while any act, such as counting, weighing or measuring, remains to be done by the seller, is only applicable when such act is necessary to separate the goods from a larger mass; and does not apply to the sale upon fixed terms, by weight to be subsequently ascertained, of goods already separated, in which case the title passes by delivery; and as a consequence, the loss by a destruction of the goods, after they are delivered and before they are weighed, will fall upon the buyer.
    4. Although there is no sale until the price is settled, yet it is settled, within the meaning of this rule, where the terms are so fixed that the sum to be paid can be ascertained by weighing, without further reference to the parties themselves.

      5. As in the sale of an entire drove of hogs, upon fixed terms, hy net weight, a jury would he at liberty to infer delivery from change of possession, an instruction which would he understood to assert, as a matter of law, that this inference would be repelled by the fact that the hogs were to he subse-sequently weighed, is erroneous.

      Error to St. Louis Court of Common Pleas.

    This was an action to recover the price of a drove of hogs, alleged in the petition and denied in the answer to have been sold and delivered.
    At the trial before a jury, it appeared in evidence that the defendants were engaged in the business of slaughtering and packing hogs for themselves, and also slaughtering for other packers. They had an arrangement with McAllister and also with Whitaker, who were packers, that each should have one third of all the hogs slaughtered by them, they to attend to the buying, and do the slaughtering, for the sake of the offal. There was an agent employed to buy, who testified that he bought sometimes for the defendants, and sometimes for Mc-Allister and Whitaker, but principally for the defendants. This agent engaged all the plaintiff’s hogs, 148 in number, at $4 15 per hundred, net weight, to be delivered at the slaughter house of the defendants, and hilled and weighed by the buyer. He did not state for whom he was buying, but the seller supposed it was for the defendants, as he was known to be their agent. The agent testified that when he bought the hogs, he did not know whether the defendants, Mc-Allister or Whitaker would get them. The hogs were taken to the slaughter house of the defendants the same day, and the next morning killed. The defendants then notified the seller to call next day at the packing house of McAllister, who would take the hogs, and see them weighed and get his pay. That night, however, the slaughter house burned down, and the hogs were destroyed. It was in evidence that it was customary for hogs to be weighed at the packing house, in the presence of the seller, who then received his pay from the packer; and one witness undertook to testify that, by the custom, the ownership of the seller continued until the hogs were weighed.
    The Court of Common Pleas gave the following instruction: “If the hogs were sold by net .weight, to be ascertained by weighing the hogs after they were slaughtered and cleaned, and not to be paid for until so weighed, and the hogs were destroyed by an accidental fire before they were weighed, then the loss falls upon the seller, unless he shows that the parties intended the sale to be absolute and complete before the weighing.”
    The plaintiffs submitted to a nonsuit, and afterwards sued out this writ of error. r

      Glover & Richardson, (with whom was D C. Woods,) for plaintiff in error.
    The instruction given was erroneous. It attributes an undue importance to the matter of weighing, which is only essential when it is necessary to the act of delivery. So Kent says, (2 vol. 496,) “if the goods be sold by number, weight or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified.” The reason of this is plain. If ten hogs are sold out of a lot of 100, the particular ten sold must be counted out and separated before they can be delivered. Eut we maintain that 148 hogs in a pen are a lot of goods and chattels, designated, set apart, separated, identified, and certain, so as to be the subject of a complete sale, and in a deliverable condition; and having been delivered to the defendants according to the contract, the stipulation to weigh was intended, not to suspend the passing of the title, but only to enable the parties to settle their accounts. [Damon v. Osborn, 1 Pick. 476. Parks v. Hall, 2 Pick. 212. 6 Pick. 280. 12 Pick. 76. 4 Pick. 516. 18 Pick. 175. 6 Watts & Serg. 857. 20 Pick. 280.) The instruction of the court ought to have rested the evidence of title upon the question of delivery made by the pleadings. The error consisted in supposing that the title ever passes by an act of weighing as such. Again, the instruction was erroneous because the defendants had dealt with the hogs as their own. (2 Kent, 501.) Again, it was erroneous, because, at the time of the destruction of the property, the defendants were not in a condition to object either to the quantity or quality of the goods. (2 Kent, 495. 14 Maine, 502. 7 Cow. 86.)

      J. Ji. Kasson, for defendants in error.
    It is contended that the instruction was correct. The hogs being sold by net weight and not to be paid for till this was ascertained by weighing, how can the contrary be contended? If some act remains to be done, in orddr to ascertain the quantity, or quality or or price, until this is done, the property remains at the risk of the vendor. Thus if weighing remains, (Hanson v. Meyer, 6 East, 625,) or the contents of bales are to be counted, (2 Camp. 240,) or cash sale, and price not paid, (3 Barn. & Aid. 680.) In this case, delivery, acceptance and price were all to be by net weight. (See further, 2 B. & Cress. 511. 3 B. & Aid. 325. 5 Taunt. 621-2 and note. 14 Wend. 35-6. 20 Pick. 283-4.) It is to be remembered that the thing sold was not the hog, but the pork. Hence, the slaughterers were the bailees of the sellers for killing and reducing the hog to the condition in which it was to be delivered, to-wit, net weight, after being cleaned. The plaintiff seeks to recover in the face of a stipulation that the price was not to be paid until the hogs were weighed.
   Leonard, Judge,

delivered the opinion of the court.

The only things essential to a valid sale of personal property at common law were, a proper subject, a price, and the consent of the contracting parties, and when these concurred, the sale was complete, and the title passed without any thing more. (2 Black. Com. 447. Bloxom v. Sanders, 4 Barn. & Cres. 941.) The term sale, however, in its largest sense, may include every agreement for the transferring of ownership, whether immediate or to be completed afterwards, and goods, in reference to the disposition of them by sale, may be considered as existing separately and ready for immediate delivery, or as a part of a larger mass- from which they must be separated by counting, weighing or measuring, or as goods to be hereafter procured and supplied to the buyer, or to be manufactured for his use. Groods of the first sort are -the only proper subjects of a common law sale, which is strictly a transaction operating as a present transfer of ownership, and does not include executory contracts for the future sale and delivery of personal property, although there are some apparently anomalous cases in our books in which transactions in reference to goods to be separated from a mass seem to have been treated, where there had been a constructive delivery, as valid sales, producing a present change of property.

The general rule, however, is otherwise, and all. the different sorts of goods to which we have referred, except the first, are, under our law, the proper subjects only of executory agreements — contracts for the future sale and delivery of them.

The Roman law, however, it is said, dealt differently with, this subject. In that system of jurisprudence (Bell on Contract of Sale, 9,) “a sale was not an immediate transmutation-of property, but a contract of mutual and personal engagements for the transference of the thing on the one hand and the-payment of the price on the other, without regard to the time of performance on either part, that being left to be regulated by the agreement of fhe parties, the seller being bound to deliver the thing in property to the buyer at the time agreed on,, and the buyer to pay the price in the manner settled between, them. The distinction was carefully observed between the direct right of property (jus in re) conferred by delivery, and the-indirect right (jus ad rem) to demand of the seller delivery of the thing sold. There thus arose out of the contract the double relation of debtor and creditor, as to the thing sold and the price to be paid for it. Corresponding with these relations, two actions were given, both personal and direct; one for the thing sold, the other for the price due. The claim for the price being absolute on delivery or tender of the thing and the demand for the thing conditional, provided it had not in the mean, time perished without fault of the seller.” Thus it is se.en, a Roman sale was applicable to all the possible circumstances in which goods to be transferred could be found, and the respective engagements of buyer and seller (under such a transaction,) were specifically enforced by the appropriate actions.

Although at common law consent alone was sufficient to constitute a valid sale, the statute of frauds has now intervened, and other formalities are prescribed, which must be observed, or what was before a valid transfer of property is now of no validity. The statute, beginning where the common law stopped, requires some one of these solemnities to be added to the transaction before it shall be considered as complete, so as to effect a change of ownership ; and the matter here relied upon, as the statute evidence of the completion of the contract, was the change of possession. This provision of the statute implies, it is said, a delivery of the thing sold on the part of the debtor, and an acceptance of it by the buyer, with an intention on the one side to part with, and on the other to accept the ownership of it; and it is not enough that the mere natural, actual, corporeal possession should be changed, but there must be a change of the civil possession, which is a holding of the thing with the design of keeping it as owner ; aud this brings us to an examination of the instruction complained of, and which resulted in nonsuiting the plaintiff.

The proof given shows (or, at least, conduces to show, which, ¡'for the present purpose, is the same thing,) that the thing sold ¡had been delivered in point of fact to the buyer, and the true question in the cause, (indeed the only one that could be raised,) was, whether this change of actual possession was also a (change of the civil possession; or, in other words, whether (the hogs were delivered and received by the parties respectively, with the intention of changing the ownership. If the facts were so, the sale was perfect, the title passed, and the loss fell upon the new owner.

It is to be remarked that this is the sale of a specific commodity., the whole drove, and not of a part, to be ascertained by counting out the required number, and therefore, the title passed ■ as soon as the bargain was completed by the delivery. It was not a transaction in relation to tbe sale of part of a mass, Avhich could not take effect as a present sale, immediately changing the property, until the separation was actually made ; and it is possible some confusion may have arisen here by not clearly distinguishing between the sale of a specific commodity, clearly separated and distinguished from all others, as a specific drove of stock, and of an indefinite commodity, as a hundred barrels of corn out of the party’s crib, or a hundred mules out of his drove, when the seller is bound to separate and identify the particular part sold, before it can pass in property to the purchaser.

Nor is there any objection to the validity of this transaction as a present sale, growing out of the supposed uncertainty as to the price. Although there is no sale until the price is settled between the parties, yet it is settled, within the meaning of this rule, when the terms of it are so fixed that the sum to be paid can be ascertained without further reference to the parties themselves ; and, indeed, by the common law, the price is fixed within this rule, even when it appears that the parties have agreed that it shall be the reasonable worth of the thing sold, leaving it to the tribunals to ascertain the amount, if they cannot agree upon it themselves. (Bell on Sales, 18-20. Acebol v. Levy, 10 Bing. 382.)

This, then, was a present agreement between these parties for the sale of a specific commodity for a pifice settled between them, so as to be capable of future ascertainment, without further reference to themselves, and, we repeat, immediately passed the title to the buyer, if the ceremony of delivery required by the statute of frauds was complied with, and there having been a delivery in fact, the whole question was, as before remarked, with what intention that delivery was made, whether merely that the hogs might be weighed, neither party being bound in the mean time by what had passed between them, or as the formal completion of the bargain to bind the parties and vest the ownership in the purchaser.

We come now to an examination of the instruction complained of, the substance of which is, that if the hogs were sold by net weight, to be ascertained by weighing after they were slaughtered and cleaned, then the presumption that the sale was completed by the delivery is met and repelled, and the loss falls on the plaintiff, as owner, unless he shows that the parties intended the sale to be complete upon the delivery. The jury would, no no doubt, have so understood the direction, when they came to apply it to the case, and such, too, we suppose, was the meaning of the court; but we do not concur in this view of the law. Certainly, this circumstance was proper for the jury upon the question of the intention of the parties in changing the actual possession, and might have afforded a very proper topic of comment to counsel, in arguing the question of fact before them ; but we do not think any well considered case has gone the length of declaring that it changed the strong natural presumption to be derived from the actual delivery of the property, and imposed upon the other party the necessity of showing that “the parties intended the sale to be absolute and complete before the weighing,” and we feel well assured that there is no principle upon which this position can be maintained. We find it frequently repeated in the books, that when any thing remains to be done by the seller, such as counting, weighing or measuring, the title does not pass ; and this is certainly correct, when this operation is necessary in order to separate the goods from a larger mass, of which they are part; but that is not this case, and we think that by keeping the distinction between a specific and an indefinite commodity in view, most of the cases upon this subject can be explained, and their apparent conflict reconciled. It is also certainly true that, in determining the question as to the purpose of the parties in changing the actual possession, the fact that the price is to be subsequently ascertained by reference to the net weight, and then paid, is proper to go to the jury ; but possession is so much of the essence of property, as it is that alone which enables us to enjoy a thing as property, and the natural connection between property and possession, especially in movables, is so strong, that the presumption arising from a change of actual possession, that it was intended also as a change of the property, is not, in our view, overcome, as a matter of law, by the fact here relied upon, that the thing bargained for was to be paid for by weight, to be ascertained after the delivery.

We shall content ourselves by a reference to a few cases which we consider directly in point, in support of the position we have taken. Scott v. Wills, (6 Watts & Serg. 868,) was a case of the sale of a raft of lumber at twelve dollars per thousand feet, to be ascertained by measurement. There had been a delivery, and the raft being lost by a freshet, the question was, whether the property passed so as to cast the loss upon the buyer. The court below instructed the jury that “ parties may make a sale of goods so as to pass the property by the actual delivery thereof, without first fixing the.quantity upon which the price is to be computed,” and the Supreme Court approved of the direction, Judge Gibson remarking, “ that a sale is imperfect only when it is left open for the addition of terms necessary to complete it, or where it is defective in some indispensable ingredient, which cannot be supplied from extrinsic sources. But when possession is delivered pursuant to a contract which contains no provision for additional terms, the parties evince, in a way not to be mistaken, that they suppose the bargain to be consummated.”

Macomber v. Parker, (18 Pick. Rep. 182,) was a sale of a quantity of brick in a kiln at a certain rate per thousand, to be ascertained by counting, and the court, in delivering its opinion says : " It is true the bricks were to be counted, but that was to be done to enable the parties to come to a settlement of their accounts, and not for the purpose of completing the sale. Taking the whole of Hunting’s testimony together, this we think is the reasonable inference to be drawn from it. If the bricks had been actually delivered, there could have been no question that the sale would have been complete, notwithstanding the bricks were to be afterwards counted. The general principle is, that when an operation of weight, measurement, counting or the like, remains to be performed in order to ascertain the price, the quantity or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete, until such operation is performed. (Brown on Sales, 44.) But where the goods or commodities are actually delivered, that shows the intent of the parties to complete the sale by the delivery, and the weighing, or measuring or counting afterwards would not be considered as any part of the contract of sale, but would be taken to refer to the adjustment of the final settlement as to the price. The sale would be as complete as a sale upon credit before the actual payment of the price. Nothing can be found in any of the numerous cases on this point, which militates against this position.”

The remarks of the same court in Riddle v. Varnum, (20 Pick. 283-4,) to which we have been reared by the counsel for the respondents are not intended to conflict with what had been previously determined, but expressly affirm that decision.

It is true the court say that “the party affirming the sale must satisfy the jury that it was intended to be an absolute transfer, and all that remained to be done was merely for the purpose of ascertaining the price of the articles sold at the sale agreed upon.” And of this there can be no doubt, but yet that is a matter for the jury, and it is not intimated in this case that when there is an actual delivery, the jury cannot be allowed to infer such intention without some additional evidence.

These questions generally arise when the thing sold has perished, and the contest is upon whom the loss shall fall, and it may not be improper here to remark that, notwithstanding the marked difference between a Boman and a common law sale, in other particulars, when a loss occurs, it falls upon the same person under either system. Under our law, the maxim is that the owner bears the loss, a rule, it would seem, of universal application, res perit domino. Under the Roman law, the debtor of a specific thing was not answerable for its loss, when it perished in his hands without fault, and when there had been a purchase of a specific commodity, although the property was not changed until delivery, the seller, by the bargain, became debtor to the buyer of the particular thing bought, and so not liable if it perished without fault.

We repeat what we have before said, it is a question for the jury. If the delivery were for the purpose of passing the property, it had that effect, although the price was to be afterwards ascertained and paid according to the net weight, and there is no rule of law that, under such circumstances, the presumption arising from the delivery is met and repelled, and that other evidence becomes necessary in order to make out a prima facie case of a present sale. The seller has a right, notwithstanding the bargain, to retain his property till he is paid, unless he agrees to allow the purchaser a credit (the bargain for an immediate transfer of property implying a present payment of the price,) and hence, when there is no understanding as to the time of payment other than what is implied in the postponement of it until the quantity of the thing sold is ascertained in the manner indicated in the contract, this circumstance is certainly entitled to consideration with the jury, in determining the character of the delivery, which, if intended to pass the thing in property, deprives the seller of his security upon it for the price, at the same time that it throws upon the buyer the future risk. The judgment is reversed, and the cause remanded.


author: Scott, Judge,

text:
    Houghtaling, Plaintiff in Error, vs. Ball & Chapin, Defendants in Error.
    1. A contract for the sale and delivery of goods, which is so completed as to he valid in the state where it is made, will he enforced in this state, unaffected hy the sixth section of our statute of frauds.

      Error to St. Louis Circuit Court.

    This was an action brought to recover the price of wheat, alleged in the petition to have been sold and delivered at Chicago, Illinois, to be paid for upon its arrival in St. Louis* The case was once before in this court. (19 Mo. Rep. 84.) At the trial before a jury, there was evidence tending to show that the defendants contracted with the plaintiff at Chicago for the purchase of about 2,900 bushels of wheat, at a stipulated price, to be paid upon its arrival in St. Louis, to which place, as appeared, the plaintiff had previously made a bargain with G\ W. Shepard, a carrier, to ship it. After making the purchase, one of the defendants went and made arrangements with Shepard about the shipping. There was an understanding between them as to when and on what boat the wheat was to be shipped. The defendants wore to furnish sacks at Lasalle to lighten the boat, on account of the low water. The freight was to be paid by the plaintiff. The wheat was shipped at Chicago at the time agreed upon, consigned to Matteson & Preston, St. Louis, for Ball & Chapin. Other wheat bought by defendants was shipped at the same time, and some portions of the two lots were mixed together. Matteson & Preston were instructed to deliver the wheat upon payment of the stipulated price. By reason of the failure of the defendants to furnish sacks at La-Salle, the wheat was delayed, and when it reached St. Louis, they refused to receive it. It was sold, and the proceeds applied upon the draft drawn against it. This suit is brought for the balance of the price. At the trial, the plaintiff asked leave to amend his petition by striking out the word “ delivered,” which was refused.
    The following instruction was given at the instance of the defendant:
    “If the jury shall find from the evidence that O. W. Shepard had possession of the wheat, and shipped the same to St. Louis to Matteson & Preston, to be delivered by them to the said defendants when said defendants should pay therefor one dollar and five cents per bushel, and that said Matteson & Preston never delivered said wheat to said defendants, they will find for the defendants.”
    Several instructions asked by the plaintiff were refused. There was a verdict for the defendants.

      Mi*. Kasson, for appellant,
    cited 12 Ad. & Ell. 634. Story on Sales, §277. 2 Kent’s Comm. 499. 19 Mo. Rep. 84. 3 P. W’ms, 185. 1 Atk. 248. Cowp. 294. 8 D. & E. 330. 1 J. R. 215. 2 Camp. 36. 1 H. Black. 363-4. 2 Camp. 639. 7 East, 558. 3 J. R. 40. 3 J. R, 420.

      Knox & Kellogg, for respondents,
    that there was no delivery, cited Story on Sales, §266-7-8-9-80. 5 Wendell, 189. 1 Comst. 261. 6 Geo. 555. 4 Cushing, 497. 12 Barbour, 570. 1 Dow. & Ryl. 128. 2H. Black. 316. Smith on Contracts, 428 ; that the contract was within the statute of frauds, 10 Bing. Rep. 384. Story on Contracts, §276. Leroux v. Brown, 74 Eng. Com. Law Rep. 801.
   Scott, Judge,

delivered the opinion of the court.

This case is here a second time, and on the same question that was determined when it was here before. The real question is one of fact, and the aim of the plaintiff is, to have that fact tried by a jury, viz : whether the contract set out in the petition was not so completed in the state of Illinois by a delivery of the wheat, as to avoid the objection to it arising from the statute of frauds, as it does not appear from the record that there is any statute in that state which affects the contract Stated 'in the plaintiff’s petition.

When this case was formerly here, we expressed the opinion that there was such evidence in the record as would warrant the court in submitting this view of it to the consideration of the jury. If the point of the instruction given for the defendant (and it was the only one given,) does not involve the statute of frauds, it is not easy to see its application to the case. On any other supposition, it would be clearly erroneous, as it would make the refusal of the defendants to receive the wheat from their own agent fatal to the plaintiff’s action, although the contract had been long before completed on their part.

Without determining whether the case of Leroux v. Brown, (74 Eng. C. L. Rep. 801,) would be recognized as law here, it is sufficient to say in relation to it, that it is founded on the fourth section of the English statute of frauds, which enacts, “that no action shall be brought,” &c. These words are made to control the judgment rendered in that suit. But the contract sued on here is not under the fourth section of the English statute, nor under the fifth section of our law, which corresponds with the fourth section of the English statute. But the action is under the sixth section of our statute, which corresponds with the seventeenth section of the English statute. The words of these corresponding sections are different from those of the fourth, in the English, and the fifth section in the Missouri statute. They are, ‘ ‘ that no contract shall be good,” &c. So they leave application for the rule of law that a contract, valid at the place where made, shall be valid everywhere, except when it contravenes the policy, or is in derogation of the rights of the country where it is sought to be enforced. In the case referred to, it was held that a contract made in France, which was not to be performed within one year, came within the words of the fourth section of the statute of frauds, which declares that no action shall be brought upon a contract not to be performed within one yearthat these words relate to the procedure, to the lex fori, and are tantamount to a prohibition to entertain jurisdiction of suits on such contracts, wherever they may be made ; that they operate on the suit like the statute of limitations ; that, though the contract be good by the law of France, yet, inasmuch as the act forbids a suit upon such contract, no action can be maintained upon it. But at the same time, the judges say that a suit might be maintained on a contract void under the seventeenth section of the act, because that section does not prohibit the entertaining jurisdiction of actions on such contracts, but merely declares that the contract shall not be good; that, though not good by the English law, yet, being good in the country where made, it will be enforced.

The plaintiff’s instructions should be in the language of the contract, as stated in his petition. The words of the first instruction, delivered to a common carrier designated by the defendants, do not state the delivery as it is stated in the petition. Such a delivery may or may not be a delivery to the defendants, according to circumstances.

The court should instruct the jury on the case as now made, that if the contract stated in the plaintiff’s petition is proved, they should find for him.

We do not see that the plaintiff was prejudiced by the refusal of the court to allow the amendment prayed for.

As to the law of delivery, and what constitutes it, no ques^ tion as yet has been made concerning it. It can only come up, when the court below will let the plaintiff go before the jury on his contract as alleged; it will then be declared by instructions, as arising from the facts in the case. Until the law has thus been given to the jury, we do not consider ourselves warranted in declaring that a plaintiff cannot recover.

The other judges concurring, the judgment .will be reversed, and the cause remanded.


author: Ryland, Judge.

text:
    Barth, Respondent, vs. Merritt, Appellant.
    1. A case where the supreme court refused to reverse a judgment for excessive damages.

      Appeal from .St. Louis Circuit Court.

      E. Casselberry, for appellant.

      Blennerhassetl & Shreve, for respondent.
   Ryland, Judge.

This was a suit for assaulting and beating the plaintiff. The jury found the defendant guilty, and assessed the plaintiff’s damages at the sum of $200.

Plaintiff moved for a new trial, because the damages were •excessive. This motion being overruled, he brings the case here. The judgment below must be affirmed. This court cannot see that the damages in this ease are so excessive as to have made it error in tbe court below to have refused to set aside the verdict and grant a new trial. (Woodson v. Scott, ante, p. 272.) The other judges concurring, the judgment is affirmed.


author: Ryland, Judge,

text:
    Busch & Weissmann, Appellants, vs. Diepenbrock, Respondent.
    X. In a suit commenced hefox-e a justice, an account was filed, the first item of which was “balance from 1851, $97 90.” Held, the generality of this item was no sufficient ground for dismissing the suit in the appellate court.

      Jlppealfrom St. Louis Law Commissioner’s Court.

    Action upon an account, begun before a justice, (where there was a judgment for the defendant upon a trial, a motion to dismiss having previously been overruled,) and appealed to the law commissioner’s court, where, on defendant’s motion, the suit was dismissed on account of the insufficiency of the account filed. The first item in the account was, as stated, “ balance from 1851, $97 90.” The other items were specific, making the whole amount of the account $196 85, upon which there was a credit of $148 75, leaving the balance sued for $48 10. The plaintiffs appealed.

      Cline & Jamison, for appellants.

      Hart & Jecko, for respondent.
   Ryland, Judge,

delivered the opinion of the court.

There was no ground, as appears by the transcript of the record, for sustaining this motion by the law commissioner. The plaintiffs had filed their account before the justice.

From the brief of the defendant’s counsel, the objection taken was to the generality of the first item of the plaintiff’s account. This item is thus stated : " Balance from 1851, $97 90.” The account then continues, with proper dates and items, containing a long list, and footing up with $196 85, giving also a list of credits amounting to $148 75, leaving a balance due plaintiffs of $48 10.

1. In the opinion of this court, this general item of $97 90, balance of account from 1851,” was no sufficient ground to authorize the court to dismiss this suit, more especially after there had been a trial in the justice’s court. If the item was too general to be understood by the defendant, his'remedy was to move the court to compel the plaintiffs to furnish the items from the account of the year 1851, not to dismiss. His motion for a more particular account might have furnished him with all he wanted, or with all he had a right to require. The law commissioner should not have dismissed because a more particular account was not filed.

The legislation of our state, for many years past, has a strong tendency to do away with formal objections and technical defects in our judicial proceedings. It has been to this court a matter of surprise, of regret, to observe the great facility with which technical and mere formal objections have found a hearing in our inferior courts. How much better for the courts and the parties, that the causes be determined as speedily as possible, as right and justice may require, with as little regard to mere formal defects as the law will allow.

The judgment of the law commissioner is reversed, and the cause remanded ; the other judges concurring.


text:
    Helweg, Plaintiff in Error, vs. Heitcamp, Defendant in Error.
    1. Where there are three successive deeds of trust on real estate, the surplus proceeds of a sale under the second must be applied in payment of the third, and not of the first.

      Error to St. Louis Circuit Court.

      C. Gibson, for plaintiff in error,
    submitted the case upon the record.

      J. E. & R. T. Barret, for defendant in error.
   Ryland, Judge,

delivered tbe opinion o£ the court.

The property in this case was incumbered by three deeds of trust regularly made and recorded in succession, in order to secure the payment of three distinct debts.

The trustee in the second deed advertised and sold the property, and there remained in his hands, after payment of the debt for which he was acting as trustee, some two or three hundred dollars surplus.

This action is brought to recover from the trustee this surplus fund, that it may be applied to the extinguishment, as far as it goes, of the debt mentioned and secured by the third deed of trust; and the only question is, how shall the surplus be applied, to the payment of the debt mentioned in the first deed of trust, or to the payment of the debt in the last or third deed of trust ? The court below decided that the money must be paid over on the debt secured by the first deed. The plaintiff excepted to that decision, and brings the case here by writ of error.

1. This court is of the opinion that the surplus money in the hands of the trustee must be paid over to the plaintiff on the debt secured by the third deed. The sale of the property, under and by virtue of the second deed of trust, did not exonerate the property from the lien theretofore on it by virtue of the first or oldest deed of trust; it was sold liable to that debt, and the parties interested can still pursue it for that debt, so far as the facts appear from the record now before us.

The surplus, therefore, must be applied, after payment of the debt and cost of sale by trustee under the second deed of trust, towards the payment of the debt mentioned and secured by the last deed of trust, the creditor in the first deed being left to his remedy.

It cannot be pretended that the sale of the property under the junior lien extinguishes a prior lien in full existence at the date of the sale. It must be taken, then, for granted that the purchaser had this prior lien in his mind, and was willing to give, in addition to the amount of that lien, the amount of his present bid. The judgment of the court below is reversed, and the cause remanded for further proceedings ; the other judges concurring.


author: LEONARD, Judge,

text:
    Schneider, Appellant, vs. Schiffman, Respondent.
    1, A party who puts his name upon the hack of a negotiable note, to which, at the time, he is not a party, is prima facie liable as maker; and although, as between parties entitled to look into the real transaction, it may be shown that he signed as endorser, this cannot he shown against a party who took the note in the usual course of business, before it was due, without notice and for value.

      Appeal from St. Louis Court of Common Pleas.

    Action upon a note negotiable under the statute, given by Mochel, payable to Philip Burg or order, and by Burg endorsed to the plaintiff before maturity. The name of the defendant, Schiffman, was written upon the back of the note prior to the endorsement. Evidence was offered that he put his name on the note as endorser, and the court below found such to be the fact, and declared that the plaintiff could not recover against him, though it was further found that the plaintiff, when he took the no.te, had no knowledge of the character in which Schiffman signed it, other than could be gathered from the position of his name.

      Hill, Grover & Hill, for appellant.

      T. C. Reynolds, for respondent.
   LEONARD, Judge,

delivered the opinion of the court.

It is the settled doctrine of this court (Powell v. Thomas, 7 Mo. Rep. 440 ; Lewis & Brothers v. Harvey, 18 Mo. Rep. 74,) and cannot now be disturbed, that a party putting his name on the back of a negotiable note to which, at the time, he is not a party, either as maker or payee, is liable prima facie as maker ; but that, as between parties entitled to look into the real transaction that resulted in his signature, it may be shown that he signed as endorser, and so incurred a conditional liability only. The question in the present case is, whether this may also be shown against a party who took the note before it was due, in the usual course of business, and for yalue, and without notice ; and we are of opinion that it cannot, and that such a decision would be contrary to the principles and policy of the law in relation to negotiable paper, and generally result in throwing the loss from the party who occasioned it by his own act, upon a stranger, who relied upon what he found upon the note.

Negotiable paper, it is said, carries its own history upon its face, so that nothing can be alleged against it, while it continues in circulation undishonored, as against an innocent purchaser, other than what is there apparent. This defendant has placed his name upon the note in such position as, under our law, to impose upon himself the obligations of a maker, and he is irrevocably bound as such to all who take the note for yalue and without notice, upon the faith of what they find upon it, although it is otherwise with reference to those who are bound by the real transaction between the parties. It is no answer to this to say that it was the duty of the holder, when he saw the position of the defendant’s name upon the note, to have en-quired into the matter and satisfied himself before he took it, whether the party was to be considered chargeable as maker, or only as endorser. The policy of the law, in reference to negotiable paper, requires that it shall tell its own story, and have effect in the hands of innocent holders for yalue, according to what appears upon it. The result is, the judgment must be reversed, and the facts found by the court being such as, under the pleadings, show that the defendant is liable to this plaintiff for the amount of the note, this court, proceeding to render such judgment as ought to have been given below, judgment for the amount of the note and interest, with costs, will be entered here, instead of remanding the cause.


author: Ryland, Judge, Sooxx, Judge.

text:
    Wheeler, Defendant in Error, vs. Barret, Plaintiff in Error.
    1. A. executed and delivered his note to B., who was to negotiate the same, and with the proceeds pay a note about to become due from A. to C. B. retained the note •until after it purported to be due, and then negotiated the same to an innocent party for value, and converted the proceeds to his own use. A. was relieved against the payment of the note. (Scott, J., dissenting.)

      Error to St. Louis Court of Common Pleas.

    This was a proceeding instituted by Wheeler to restrain the collection of a note, and to compel the holder to deliver the same up to be cancelled. The facts appear in the opinion of the court.

      A. Buckner, for plaintiff in error,
    insisted-that Barber was to be regarded merely as Wheeler’s agent for negotiating the note, and so the maxim that, of two innocent parties, he whose act has been the cause of the loss must bear it, was applicable.

      Krum & Harding, for defendant in error.
    1. The note in question, being overdue when it was transferred to Barret, was taken by*him subject to all defences and equities connected with it,, (Story on Prom. Notes, §178. 15 Mo. Rep. 899. 3 D. & E. 80. 2 Caines, 369. 5 Pick. 312. 5 N. H. 159.) 2. The rights and liabilities of the parties are not changed by Barber’s agency, which ceased when the note to Smith, or at farthest, when the note in question became due.
   Ryland, Judge,

delivered the opinion of the court.

From the statement agreed upon by the parties in this case, the question here is, upon whom shall the loss fall, on Wheeler or Barret ? It seems that Wheeler owed Solomon Smith a sum of money, $1200, which was to be paid on the 2d of June, 1850. The payment was secured by deed of trust on real.es-estate of Wheeler. On the 15th of March, 1850, Wheeler made and delivered to R. Barber his negotiable promissory note for $1375, payable twelve months after date to R. Barber or order, vrith. six per cent, interest from date. Barber was to have this note discounted, and apply the proceeds thereof to the payment of the note to said Smith, becoming due in June. The payment of this note to Barber was also secured by deed of trust on the same property on which the deed of trust in favor of Smith had been given. Barber gave to Wheeler the following receipt for this note:

“Received, St. Louis, March 15th, 1850, of Jonathan Wheeler, his note at twelve months, for thirteen hundred and seventy-five dollars, to be negotiated, and the proceeds of said note to he appropriated in payment of a certain note executed by him to Solomon Smith for twelve hundred dollars, secured by deed of trust, and falls due on the 2d day of June next, as can be seen by referring to the records. R. BARBEE,.”

It appears that this note of $1375 was given alone for the purpose of getting it discounted, in order to pay the note to Smith; that Barber did not pay the note to Smith at maturity, nor did he ever pay it, nor has it been paid ; that Barber did not negotiate the said note for $1375 until some six months after it purported to be due ; that is, some time in September, 1851; that he then endorsed the note and delivered the deed of trust to Barret, who took the same in good faith, without knowing the facts relative to the making thereof, for a valuable consideration; that the plaintiff, Wheeler, had no knowledge of this assignment to Bar-ret, nor had he any advantage therefrom; that Barber is dead and his estate insolvent.

This is a proceeding by Wheeler to have the collection of this $1375 note enjoined, the note cancelled, and the deed of trust removed from his property, and for general relief.

Upon the agreed case, the court below declared the law for the plaintiff, and decreed that Barret be perpetually enjoined from negotiating and transferring the said $1375 note, and that he and all persons be enjoined from attempting, by action at law or otherwise, to collect the same, and that defendant deliver up the note for cancellation, &c.

1. Now, upon whom shall this loss fall? The note being overdue when Barret got it from Barber was, of itself, a sufficient fact to make Barret enquire and ascertain the reason of its dishonor, and although the agreed case shows that he took it in good faith and for value, yet he must stand and can only stand in Barber’s place. He must be considered as giving credit and faith to Barber only, and to become willing to take the note as Barber held it. The note is payable to Barber, or order, twelve months after date. Eighteen months after date, Barber sells it to Barret. What principle is there which can be invoked to take this case out of the general' rule applicable to such transactions? It seems on its face to be merely a promissory note in a negotiable form, payable to Barber or his order,, for a large sum of money, at long credit. What can make us-consider the payee in this note as the mere agent of the maker,, with unlimited power to dispose of the note, unrestrained as to time or other circumstances ? If Barber be the agent of Wheeler at all, he must be considered so to a special intent and for a specified object, with special and limited authority.

There is, in our opinion, nothing in the record which takes-this case out of the ordinary course of adjudication in promissory notes and bills which come into the hands of third persons after dishonor. It must therefore be controlled by such.

Judge Story says : “If the transfer is after maturity of the-note, the holder takes it as a dishonored note, and is affected by-all the equities between the original parties, whether he has any notice thereof or not. The equities here meant are such as-attach to the particular note, or such as grow out of the transaction which gave rise to the note.” (Story on Prom. Notes, §178.) In Emerson v. Crocker, (5 N. Hamp. 163,) the-Supreme Court of New Hampshire held that the rule that,. whenever one of two innocent persons must suffer by the acts-of a third, he who has enabled such third person to occasion the-loss, must sustain it, holds only in cases of innocent holders,, into whose hands the note came in regular course of business-, before it became payable. If the note be overdue at the time the agent so transfers it, the person who takes it must stand in the situation of the agent.” In Gulletl v. Hoy & Orton, (15 Mo. Rep. 400,) it was said, This note being endorsed after due, the endorser took it subject to all the equities attached to it in the hands of the payee.”

In Furman v. Hasken, (2 Caines Rep. 372,) Kent, Chief Justice, says : “ The note was payable on demand ; it was not negotiated to the plaintiff until nearly eighteen months from the period when it was given.” The Chief Justice said : “ The lapse of time must clearly be considered as placing the note in the situation of one due and dishonored, and as imposing on the endorsee the same risk. No person of common prudence will take such a note, without inquiry concerning the occasion of its being so long outstanding, and it is incumbent on him to satisfy himself that it is good. He takes it on the credit of the person from whom he receives it.”

In Brown v. Davies, (3 Term Rep. 80,) it was held that, where a promissory note has been indorsed to the plaintiff after it became due, who sues the maker upon it, the latter is entitled to go into evidence to show that the note was paid, as between him and the original payee from whom the plaintiff received it.

It is needless to multiply authorities upon this point. It is now the settled rule that the person receiving a note over due takes it with all its equities between maker and payee. In this case, then, we consider that Barret stands in the same situation as his endorser, Barber, did, and that being so, the plaintiff, Wheeler, is entitled to have relief against the note.

The judgment of the Court of Common Pleas must therefore ,be affirmed ;

Judge Leonard concurring herein.

Sooxx, Judge.

In my opinion, this judgment should not ■stand. Admitting that Barret’s taking the note after it was overdue gave a right to Wheeler to insist on all equities he .might have against it, in an action by Barret, yet he has no equity and shows none. His only defence is, that he has been defrauded by Ms own agent. It is a rule that, when one of two innocent men must sustain a loss caused by a third person, he who has enabled that person to commit the wrong must bear the loss.

A motion for a rehearing of the above cause was overruled.


text:
    Kimball, vs. Donald & others, Appellants, and Benoist & another, Respondents.
    1. A bill of exchange drawn by a merchant upon his factor cannot, before acceptance, take effect as an equitable assignment of the fund, so as to defeat attaching creditors, although there may be a direction at the foot of the bill to charge to a particular account, and although the drawee may 'have promised to apply any balance in his hands belonging to the drawer, in , payment of the bill.

      Jlppeal from St. Louis Court of Common Pleas.

    This was a petition in the nature of a bill of interpleader, filed by Kimball, to compel the defendants to litigate among themselves their respective claims to a fund in his hands, as the factor of Stone & Walworth, of New Orleans. The defendants Donald and others claimed as attaching creditors of Stone & Walworth, the plaintiff having been summoned as garnishee in suits brought by them. The defendants Benoist & Co. claimed under a bill of exchange drawn in their favor by Stone & Walworth upon Kimball, prior to the attachments, which, as they contended, amounted to an equitable assignment of the fund. The cause was tried by the court without a jury, and substantially the following facts found:
    Stone & Walworth were partners in business in New Orleans,- and Kimball was their factor in St. Louis. They were i'n the habit of making consignments to him, and drawing bills upon him, which he accepted and paid. On the 5th of May, they shipped to him fifty-six tierces of rice on the steamboat John Simonds, and ten hogsheads of sugar on the steamboat' Charles Belcher, there being then an unadjusted balance due from him on acpount of previous consignments. On the 13th of May, they drew upon him a bill of exchange, of which the following is a duplicate :
    “ Exchange for $2500.
    “New Orleans, May 13th, 1853.
    “ Twenty days after sight of this second of exchange (first unpaid,) pay to the order of L. A. Benoist & Go., twenty-five hundred dollars, value received, and charge the same to account sugar, Belcher, rice, Simonds, and account sales.

    “ StoNE & Walworth.
    “ To Mr. E. B. Kimball, St. Louis.”
    On the 14th of May, Stone & Walworth notified Kimball by telegraph of the drawing of the bill, and requested him to pay it to Benoist & Oo.
    On the same day, Benoist & Oo., having been notified by telegraph by their firm in New Orleans of the drawing of the bill, called upon Kimball, who then ‘promised to pay to them on the Mil whatever amount might he found in his hands due to Stone & Walworth. Subsequently, Kimball was summoned as garnishee in the attachment suits brought by the other defendants, and when the bill reached St. Louis, he refused to accept it.
    Upon these facts, the Court of Common Pleas awarded the fund to Benoist & Oo., and from this judgment, the attaching creditors appealed.

      Shepley and Kasson, for appellants.
    1. The bill of exchange did not operate as an assignment of any funds of the drawers in the hands of Kimball. (3 Sandf. S. 0. R. 257. 1 Id. 416. 3 Comstock, 243. 1 Curtis U. S. R. 133. Luff v. Pope, 5 Hill (N. Y.) 413, 417. Same case on appeal, 7 Hill. 2 Am. Lead. Cases, (H. & W.’s notes,) ed. 1852, p. 141. 1 Seld. (N. Y.) 525. 2 Id. 412. 15 La. Rep. 255. 3 Kent’s Com. 76. Story on Bills, §46, §47.) 2. The verbal promise of Kimball to Benoist & Co. cannot defeat the right .of the attaching creditors to recover. It was not binding as an acceptance of tbe bill, which must be in writing, nor as an original undertaking, because it is an undertaking to pay the debt of another and without consideration.

      C. C. Whittelsey, for respondents.
    1. Benoist & Co. had a direct action against Kimball on his promise to pay them whatever balance might be in his hands. (Chitty on Bills, 8, 9, 350, 351, n, z and a, 14 East, 598, n. Curtis v. JYorr ris, 8 Pick. 280, 282. 12 Mass. 206, 211. 5 Peters, 580. 1 Wash. C. C. R. 424. 10 Mo. Rep. 525-38. Chitty on Contracts, 45. 12 Mo. Rep. 430-33. 5 Peters, 580.) 2. Benoist k Co. are entitled to the fund in preference to the attaching creditors, as being the assignees of the debt due by Kimball to Stone & Walworth. (Chitty on Bills, 9 and 8, n. 1 and 2. Cutter v. Perkins, 12 Mass. 206, 211. Correr V. Craig, 1 Wash. C. C. R. 424. Stephens v. Stephens, 1 Askmead, 190. IT Mass. 32T. 11 Mass. 385. 2 Jones, 167. 4 Dallas, 379. Searg. on Attachment, 80-84. Cush-ing’s Trustee Process, 171. Drake on Attachment, §498, 501, 510-13, 611, 615, 617, 621. 20 Pick. 132. 3 Swanst. 392. 4 Mylne & Craig, 690. 21 Eng. Law & Eq. Rep. 566. 15 Eng. Law & Eq. 27. 5 Wheat. 277. 1 Peters, 264, 288. 8 Binney, 394.)
   Leonard, Judge,

delivered the opinion of the court.

This is a bill of exchange, and not a mere order to pay over a particular fund; and the direction at the foot of the bill, to charge to the particular account there indicated, does not change the character of the instrument, (Story on Bills, §66;) and we think that, after being refused acceptance, it cannot take effect as an equitable assignment of the fund, even connected as it is with an express promise on the part of the drawee to pay whatever balance may be found in his hands.

It is true that any thing amounting to a present transfer of a specific fund for value is a valid assignment in equity, which changes the property as against the assignor, and cuts off subsequent attaching creditors. No form is required; it is sufficient that the transaction is, in the contemplation of the parties, a present sale of the subject matter assigned, vesting a present interest in the assignee, and not resting merely in agreement to he executed thereafter. In a word, any thing that shows an intention on the one side to make a present irrevocable transfer of the fund, and from which an assent to receive it may be inferred on the other, will operate in equity as an assignment, if supported by a sufficient consideration.

Upon this principle, courts allow an order payable out of a particular fund belonging to the drawer, and which has been delivered to the payee for value, to take effect as a present transfer of the debt; and Lord Chancellor Truro, in a recent case, 1852, (Rodeck v. Gandell, 15 Eng. Law and Eq. Rep. 30,) stated it as the result of all the cases that “ an agreement between a debtor and a creditor that the debt owing should be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor, upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid, equitable charge upon such fund; in other words, will operate as an equitable assignment of the debt or fund to which the order refers.”

This construction of such transactions generally executes the real intention of the parties, and is adopted for that reason, and. therefore, if there be any thing from which a different intention ought to he inferred, as where the fund is to pass at a future day, the matter resting for the time being in agreement, (Rogers v. Hosack’s Rx’r, 18 Wend. 334, and Hoyt v. Story, 3 Barb. Sup. Ct. Rep. 265,) or where the party retains the subject under his own control, by giving the order not to the assignee, but to his own agent, (Rodeck v. Gandell, 15 Eng. Law and Eq. Rep. 30,) the transaction is not allowed to have the effect of a present transfer. And so we think, in the present case, we cannot give to this transaction this effect, without defeating, in all probability, the real intention of these parties, and adopting a rule of decision that would not only have that effect in a majority of the cases to which it would be applicable, but also of introducing into commercial transactions of this character great confusion.

We are reminded that a bill of exchange is the transfer of a debt due to the drawer from the drawee, and so it undoubtedly is, as between drawer and drawee, when the latter accepts ; but what is proposed here is, to make a bill that the drawee refuses to accept operate as a transfer of the fund, without any reference to the intentions of the drawer, under the circumstances that have occurred. The object of drawing a bill is to convert a debt, in theory supposed to be due from the drawee to the drawer, into a transferable chattel that may pass from one to another by endorsement or delivery, and this- object is consummated by the acceptance, which binds the acceptor to whoever becomes the holder, to pay as the original debtor, absolutely and without any reference to the state of the account between himself and the drawer, leaving the latter still liable under his original conditional obligation to pay in default of payment of the primary debtor. These are the engagements created between the parties, (drawer and drawee,) and when acceptance is refused, the object the parties had in view 'being defeated, the only obligation upon the bill is against the drawer, who is remitted to his original rights in respect to the fund in the hands of his supposed debtor, and liable to pay according to his original undertaking. No piie supposes that it was the intention of the parties, at the time this bill was drawn, that, if it could not take effect as a'bill, on account of the refusal of the drawee to accept, that then it should operate as an equitable assignment of whatever funds the drawee might have in .his hands belonging to the drawer. That event was already provided for by the drawer’s undertaking to pay himself upon such refusal. What authority, then, 'have we, under these circumstances, to put into the transaction a stipulation'which the-parties never thought of, and would have.rejected at once, had it been suggested to them, and then give effect to the transaction.as an equitabl.e assignment, in order to carry out this supposed intention. Looking to the probable intention of parties, and to the interest of business, we cannot but think such a decision would be very mischievous in its practical operation, not only defeating the real intention of the -parties in a majority of the cases to which it would be applied, but also greatly complicating the business affairs of men.

This seems, too, to be the view taken of this question in the most commercial state in the Union, the decision of whose tribunals, in questions of this character, must certainly command our respect, and when approved by our own reason, may be very safely followed as guides in determining commercial questions ; and we refer to the following cases in the New York courts, where the doctrine is expressly declared and applied, that a bill of exchange does not operate as a transfer of the fund, so as to protect it from third parties claiming subsequently 'from the drawer. (Pope v. Luff, 5 Hill, 417, and 7 Hill, 578. Cowperthwaite v. Sheffield, 3 Comst. 243. Winter v. Drury, 1 Selden’s Rep. 525.)

The same doctrine seems to have been acted upon in Wilson and others v. Lorard and others, (15 La. Rep. 255,) which, although decided under a different system of law from our own, may yet be referred to upon a commercial question, (a matter rather of general than of local law,) at least to show how this question is dealt with practically in a highly commercial community.

It is further to be remarked that the case of Corser v. Craig, (1 Wash. Cir. Ct. Rep. 424,) to which we have been referred as a conflicting authority, (even if it must be so understood,) is but a nisi prius judgment, made in the hurry of a circuit trial, and many years ago, when the law upon the subject was certainly not as well settled as it is at present; and highly respectable as the judge certainly was who delivered the opinion, yet the ground of it failing to satisfy our judgments, and the case itself being of no obligatory authority upon us, we cannot allow it to control our decision.

The result is, that the payees of the bill acquired, under the circumstances of tbe present case, no specific lien upon the fund in the hands 'of the drawee, so as to cut out subsequently attaching creditors, and the judgment must therefore be reversed, and a judgment entered here, distributing the fund among these creditors according to the priorities of their attachments; and the other judges concurring, it is ordered accordingly.

Note. — A petition for a re-hearing of the above cause was overruled. The point relied upon was, that the telegraphic order and the promise to pay to Benoist & Co. gave the latter a direct action at law against Kimball for whatever sum might be in his hands, the bill of exchange cutting no figure in the transaction, except as showing a good consideration for the promise.


author: Leonard, Judge.

text:
    Engler, vs. Rice & others, Respondents, and Benoist & another, Appellants.
    1. See Kimball v. Donald, ante.

      Appeal from St. Louis Circuit Court.

    This was a petition in the nature of a bill of interpleader, filed by Engler, having in his possession, as factor of Stone & Walworth, a fund claimed by Benoist & Co. by virtue of a bill of exchange drawn in their favor, and by the other defendants as plaintiffs in attachment suits, in which they had summoned Engler as garnishee.
    The facts found by the Circuit Court are substantially the same as those of the preceding case of Kimball v. Donald, except that in this case there was no verbal promise to pay.
    The bill drawn in favor of Benoist & Co. appears from the finding to have been an ordinary bill of exchange. On the day after it was drawn, Stone & Walworth advised Engler of it by telegraph, and requested him to protect it.
    Mr. Whittelsey, for Benoist & Co.
    Mr. Shepley, for Rice and others.
   Leonard, Judge.

This case is in all material respects similar to the case of Kimball against Donald and others, determined at the present term, and the result of that opinion is to affirm the present judgment. And the other judges concurring, it is accordingly affirmed.


text:
    Hill, Defendant in Error, vs. The City of St. Louis, Plaintiff in Error.
    1. A circuit court has no power to insert a clause in a judgment, authorizing the party against whom it is rendered to move to set it aside at the next term; and where, upon motion made in pursuance of such leave, a judgment was set aside at the next term, and a new judgment rendered, it was treated as a nullity by the supreme court, and the first judgment reinstated.

      Error to St. Louis Circuit Court.

    The case is sufficiently stated in the opinion of the court.

      T. T. Gantt, for plaintiff in error.

      S. H. Holmes, for defendant in error.
   Ryland, Judge,

delivered the opinion of the court.

This was a petition for an injunction, restraining the collection of taxes by the city of St. Louis for the year 1850, which had been assessed upon certain property of the petitioner.

The points relied on for the granting of the injunction were the same that were shown in the case of Benoist et al., v. The City of St. Louis, reported in 19 Mo. Rep. 179. The city filed her answer, and the case was continued from time to time until at the November term, 1853, it was, on the motion of the petitioner, by her counsel, dismissed. The order of dismissal was on the 21st day of February, 1854, still being the November term, 1853. The dismissal was at the costs of the petitioner. It was agreed at the same time, and was so embodied in the order, that the petitioner pay within ten days the said costs and taxes assessed, with interest from the date of the injunction, into the court, and in default thereof, that execution issue therefor.- Afterwards, at the same term, to-wit, on the 11th day of March, 1854, the petitioner having failed to pay the taxes, costs and interest, within the ten days, the Circuit Court, on motion of the city by her counsel, rendered a judgment against the petitioner for the amount of said taxes, costs and interest from the 22d day of January, 1851, and for execution therefor, which judgment was for the sum of $231 60, being the amount of taxes and costs and the interest thereon, together with the costs of this suit. After the formal entry of this judgment in favor of the defendant against the petitioner, an order in the following terms is entered : “ And it is further ordered, that said plaintiff have leave to file her motion to set aside this judgment, and to present and file her bill of exceptions to the proceedings herein, on or before the first day of the next term of this court.”

The plaintiff afterwards, at the April term, 1854, made her motion as follows, after naming the parties :

“Now at this day, in pursuance of leave heretofore given, comes the plaintiff by her attorney, and moves the court to set aside the assessment of damages and the judgment therefor, upon the dismissal of this suit, for the following reasons : 1. Because the court erred in giving judgment upon said dismissal for the amount enjoined, and six per cent, damages on such amount. 2. Because the court, upon such dismissal, erroneously proceeded to assess the damages of its own accord, without giving the plaintiff an opportunity to be heard upon such assessment.”

This motion was sustained by the court, so far as it relates to the assessment of damages, and the judgment heretofore rendered was, as regards the 'damages on the dissolution of the injunction, set aside. On the 29th of May, at the said April' term, the parties appear again in court, and submit to the court the question of damages to which the defendant is entitled by reason of the dissolution of the injunction sued out in the case. It is then considered bydhe court that the defendant recover of the plaintiff the sum of $194 90 as and for the said damages, together with the costs of suit, and that execution issue therefor, giving no damages on the dissolution of the injunction. The city moved the court to review and reconsider the judgment in this cause, and to amend and correct the assessment of damages by adding thereto interest at the rate of six per cent, per annum from the date of the injunction to the present time. This motion was overruled and excepted to, and the city brings the case here by writ of error.

The points raised by the city counsellor on this record question the power of the Circuit Court to set aside the judgment given at the November term, 1853, by any order which that court could make at the April term, 1854 ; also, the ruling of the Circuit Court in refusing to allow damages on the dissolution of the injunction.

1. In the consideration of this case, should this court be of the opinion that the court below had no power or authority at the April term over a judgment rendered by it at a preceding term, then it will do away with the necessity of examining and deciding upon the second question, that is, the one in relation to the damages upon the dissolution of the injunction, for all the proceedings and orders taken in the case at the April term, in that event, will be regarded as of no force or effect — mere nullities.

Were it not for that most extraordinary order, after the rendition of the final judgment in March, 1854, in favor of the city against the petitioner, by which the court gave leave to the plaintiff, whose petition had been dismissed at her own motion, to appear on the first day of the next term, and move to set aside this judgment and to file her bill of exceptions, there would not be a doubt on this question. All control over the judgment ceased at the end of the term at which it was rendered, except mere formal emendations or corrections allowed by the statutes of jeofails.

In the case of Ashby v. Glasgow et al., (7 Mo. Rep. 320,) this court held the following language : “ When a final judgment is rendered in a canse, and that judgment is erroneous, it may, during the term at which it was rendered, be set aside; for, during the term, all the proceedings are in the breast of the court, and they may be altered or vacated as justice requires. But when the term is past, then the control of the court ceases, and no alteration or amendment can be made, but such as is authorized by the statute of jeofails and amendments.” Blackstone says, in his Commentaries, book III, ch. 25, side p. 406-7 : “ But when once the record is made up, it was formerly.held that, by the common law, no amendment could be permitted unless within the very terms in which the judicial act so recorded was done ; for, during the term, the record is in the breast of the court, but afterwards it admitted of no alteration. But now the courts are become more liberal, and where justice requires it, will allow of amendments at any time, while the suit is pending, notwithstanding the record be made up and the term be past; for they at present consider the proceedings as in fieri till judgment is given, and therefore that till then they have power to permit amendments by the common law; but when judgment is once given and enrolled, no amendment is permitted in any subsequent term.”

“ But yet, during the term wherein any judicial act is done, the record remaineth in the breast of the judges of the court and in their remembrance, and therefore the roll is alterable during that time, as the judges shall direct; but when that term is past, then the record is in the roll, and admitteth no alteration, averment or proof to the contrary.” (Coke’s Litt. sec. 488, lib. 3, p. 260.) The question now occurs, had the Circuit Court authority to make that order granting leave to file exceptions and make motions to set aside the judgment at a future term. If it had power to grant leave to a party to make such motions at one future term, what deprives it of the power to grant similar leave to a party a second or third or fourth term ? We say it has no such power, and it is right and just that it should have no such power. There could never be an end to the proceedings of a controversy between parties where such power be placed in the hands of a doubting and irresolute judge ; there might he no telling when a judgment is to become final. 0,ne party is allowed, by leave entered on record at one term, to move to set aside the judgment at the next succeeding term : and then the other is allowed the same privilege at a still succeeding term, toties quoties} and when will the matter end ? It will not do to say that this power lies in the discretion of - the judges. This is the fruitful source of judicial error, of judicial abuse. Such a .power is withheld from the courts; it is not found in the field of discretion, as widely extended even as some would have it.

The record in this case shows this singular state of facts, that after judgment entered on the dissolution of an injunction for the amount of taxes, costs, &c., and interest at six per cent, from the time of the injunction granted up to the dissolution, and an order for execution on said judgment to issue; that, without any motion therefor, the Circuit Court, of its own accord, made the order granting leave to the petitioner to file her motion at next term to set aside this judgment, and to file her bill of exceptions ; this done without any consent or understanding of the opposite party. This order was improperly made, nay, it was without authority, and must be treated and regarded as a nullity.

This being the case, all the proceedings and orders made at the April term of the court are considered irregular and void. The judgment given then at the April term, in which no damages for and on account of the dissolution of the injunction were allowed, is set aside, as well as the order setting aside the judgment of the former term ; and the judgment given by the court at the November term, 3853, for the sum of $231 60, is reinstated and affirmed. This judgment must bear interest at six per cent, from the time it was ‘rendered.

This view disposes of the case, so far as regards the second question. The judgment, then, given below by the Circuit Court at April term, 1854, is reversed, and the judgment of the November term, 1853, is affirmed, and is ordered to be carried into effect by the court below;

Judge Scott concurring herein.


text:
    Shepard, Defendant in Error, vs. The City of St. Louis, Plaintiff in Error.
    1.See Hill v. The City of St. Lo%is, ante.

      Error to St. Louis Circuit Court.

      T. T. Gantt, city counsellor.

      S. H. Holmes, for defendant in error.
   Ryland, Judge.

This case was submitted to the court on the briefs and statements made by counsel in the case of Hill v. The City of St. Louis. The opinion in the case of Hill v. The City will therefore answer for this, as the points are the same in each.

The judgment, then, at the April term, 1854, is reversed and set aside, and the judgment at November term, 1853, is reinstated and affirmed ;

Judge Scott concurring.