text:
    Allen and another against Jarvis.
    Where the plaintiff alleged, in the declaration, that the defendant, in consideration that the plaintiff would make for the defendant twelve adjusters, [surgical instruments,] the defendant promised to pay the plaintiff, 21 dollars for each; and the evidence was verbal and confused; no specific instructions were requested by the defendant; and the cause was submitted to the jury upon the evidence; after a verdict for the plaintiff, it was held, that a new trial would not be granted, on the ground of a variance.
    Where it was alleged, as the consideration of the defendant’s promise, that the plaintiff agreed to make and deliver certain adjusters, which were small portable instruments, composed of different parts already prepared, and wanting for their completion little more than to be put together; and the evidence was, of an agreement to finish such instruments; it was held, that there was no material variance.
    The courts have been disposed, for some time past, to abolish the refinements which once prevailed on the subject of variances; and much less strictness of proof is now tolerated than formerly.
    An agreement to manufacture certain articles and furnish materials, is not a contract for the sale of goods, wares and merchandize, within the 2nd section of our statute of frauds and perjuries.
    Where the plaintiff had obtained a verdict against the defendant, in an action for refusing to receive and pay for certain articles, made by the plaintiff, pursuant to a contract between the parties, specifying the number and price of the articles ; the defendant moved for a new trial, on the ground that the verdict was against the evidence, as to the existence of the alleged contract, as to any particular price being agreed on, and as to its being the price alleged ; and it appeared, that the testimony of the plaintiffs witness showed, that the defendant engaged the plaintiff to make the articles, and agreed to receive and pay for them, which was corroborated by incidental circumstances, and was impaired only by the testimony of a witness for the defendant, who said, that he understood from the plaintiff that there was no contract respecting the articles; and as to the question whether any particular price was agreed on, and what it was, the testimony was more loose, but it was properly submitted to the jury; it was held, that the verdict ought not to be set aside on this ground.

      New-London,

    July, 1849.
    The rule of damages in an action for the non-acceptance of property sold or contracted for, is the amount of the actual injury sustained by the plaintiff, in consequence of such non-acceptance; which is, ordinarily, the difference between the price agreed to be paid for it and its value, where such price exceeds the value.
    But where the property in question is utterly worthless in the hands of the plaintiff, the whole price agreed to be paid should be recovered.
    If A employs B to make a particular article for A, out of materials furnished by B, and during the progress of the work, and before it has assumed the character contracted for, or has been accepted by A, or appropriated to his use, the work is stopped by him ; B cannot maintain against A a general action of indebitatus assumpsit for work and labour done and materials furnished ; the proper remedy for B, in such case, being a special action for refusing to accept the article, or for preventing its completion.
    This was an action of assumpsit, in several counts.
    In the first, the plaintiffs alleged, that the defendant engaged them to make for him 100 surgical instruments, called surgical adjusters, for each of which he promised to pay them 20 dollars, within a reasonable time; that the plaintiffs afterwards, from the 9th of July, 1844, to the 31st of March, 1845, continued to work, in performance of this contract, on their part, and to make and manufacture said surgical adjusters, and parts and portions thereof, according to said contract; that on the 31st of March, 1845, the defendant notified the plaintiffs to discontinue any further work upon said instruments, under said contract, by means whereof the plaintiffs had on hand a large amount of parts or portions of said instruments, in different stages of manufacture, which were wholly useless to them, and had also on hand 20 of said instruments, which the defendant refused to accept and pay for, although they had been offered to him, and he had been often requested, &c.
    In the second count, the plaintiffs alleged, that on the 19th
      of February, 1846, in consideration that the plaintiffs, at the special instance and request of the defendant, would make for him twelve other surgical adjusters, he promised to pay to them 21 dollars for each, viz., 252 dollars for said twelve instruments, on the delivery thereof; that the plaintiffs, on the 1st of April, 1846, made and finished said twelve surgical adjusters, and requested the defendant to receive and pay for the same ; yet the defendant refused to accept the same, and also refused to pay the plaintiffs said sum of money.
    In the third count, the plaintiffs declared, that on the 1st of April, 1846, the defendant was indebted to the plaintiffs in the sum of 600 dollars, for the work and labour, care and diligence of the plaintiffs, before that time performed and bestowed in and about the business of the defendant, and at his special instance and request; and also for divers materials by them found and provided in and about said work and labour for the defendant; and being so indebted, &c.
    In addition to these counts, there was a general one for work and labour performed and materials furnished, by the plaintiffs, for the defendant.
    The cause was tried, on the general issue, at New-London, September term, 1848.
    The plaintiffs having exhibited a bill of particulars, claimed to recover for the two following items embraced therein, with interest:

      “April, 1846. To making 12 surgical adjusters, $252.
    ” ” To making parts of do. ordered, 300.”
    In support of their claim, the plaintiffs read in evidence the following contract: “This agreement, made this 6th day of November, 1844, between George O. Jarvis, of Portland, Conn., on the one part, and Allen & Thurber, of Norwich, Conn., on the other part, witnesseth,-That whereas said Jarvis has, this day, paid in cash 250 dollars to said Allen Thurber, and has also executed his note of hand, for 750 dollars, bearing date this 6th day of November, 1844, and payable eight months from date, at the Quinebaug Bank; now therefore, said Allen & Thurber agree to manufacture for said Jarvis, 50 of his adjusters, including 19 already made and delivered to him and his agents, for the above cash and note of hand: said Allen & Thurber agree, that said instruments shall be perfect, in every respect, and that they shall be made in a good and workmanlike manner, highly finished, and all the parts to be of the best materials for such purposes, and agreeably to instructions this day given by said Jarvis; said Jarvis reserving to himself the right to have varied the form or manner of making, as he shall direct. The said Alien & Thurber further agree, that they will furnish and send to Hubbel B. Cone, within one week of the date above, four entire set of said instruments, agreeably to said Cone's order now on hand; and that thereafter, they will supply orders for said instruments from said Jarvis' agents, not exceeding six in number at aiiv one time, within one week of the time of receiving said order or orders; and all orders for more than six of said instruments, at one time on hand, they are to supply, within the same ratio of time, to the number of 150 instruments in all, should so many be ordered, by said Jarvis, or his agents; but if from orders received, the number does not amount to 50, (including those already delivered,) by the 1st day of April, 1845, then in that case, they are to have made and ready for delivery, that number which will complete the number of 50, including those already delivered on orders previous to that time. Hubbel B. Cone, of Harrie-Hill, of the state of New-York, and Q. G. Bolen, of the city of New-York, and the Rev, William Jarvis, of Portland, Conn., agents of said Jarvis, are to remit to said Allen & Thurber 20 dollars for each instrument so ordered by them, to be paid for, on or before their subsequent orders are satisfied, to such agent or agents, from John Keigh, of New-Bedford, E. & J. Kelley, of Nantucket, and Charles Hogan, of New-London. The said Allen & Thurber are to receive the whole avails of the sales of said instruments, sold by them ; and their said orders are to be duly honoured by said Allen & Thurber, and said moneys are to be remitted, by said agents, to said Allen & Thurber, as before specified. The said Allen & Thurber are to keep an accurate account of all instruments sent to or sold by them, and of all moneys received by them for the sale of said instruments, and to account to said Jarvis, or to his proper attorney, for the same. The interest on all accounts, notes, &c., between said Jarvis and said Allen & Thurber, to be amicably adjusted hereafter between the parties. All moneys received by said Allen 4. Thurber, on account of sales of said : adjusters, previous to the falling due of said Jarvis’ note, aforesaid, are to be paid by said Allen & Thurber, in liquidation of said note. Allen & Thurber.

      George O. Jarvis.”

    The plaintiffs introduced Thomas G. Wheelock, as a witness, who was in their employment, and had charge of their works in their manufacturing establishment. He testified as follows. He was present when the contract was made. When the defendant came to the plaintiffs’ shop, he said, he altered his mind as to the contract for 150 adjusters;-he would agree to take 50 ; he wanted the plaintiffs to go on, and get the other along as fast as they liked ; so that they could be got ready on short notice. He would take them, as fast as they were wanted. The contract was then written and signed. After it was executed, and as he took his hat to leave, he said to the plaintiffs, they might go on and make the other hundred, and he would take them as fast as he could sell them. The plaintiffs commenced working upon the fifty, and after having got them partly made, commenced working upon the hundred, and continued to work thereon, until they received word, in a letter from the Rev. William Jarvis, that an alteration had been made in the adjusters, and the plaintiffs were requested to stop, which they accordingly did. At that time, the plaintiffs had made most of the parts for the 100 adjusters. In February, 1846, the defendant, after his return from Europe, came to the plaintiffs’ shop again. They had then completed the fifty adjusters. The defendant wished them to alter a dozen of them, which they did ; and he paid for them, and for the alteration. Allen, one of the plaintiffs, then informed the defendant, that they had twelve more adjusters under way, and nearly completed. There was some conversation about the price of completing them, upon the improved plan. Allen said, the price would be 21 dollars, each; but no price was agreed upon. The defendant told Allen to go on, and finish them, and he would take them;-that he would send his stamp, that they might be stamped. In that conversation, there was something said about the price with the alteration. They could not agree as to the price. The defendant proposed to get some one else to make them; to which Allen agreed, provided he would take the parts already made. The defendant said, he would go home, and see some one about it ;-he did not know that he could do any better than to give Allen's price. The twelve were nearly finished. The defendant told Allen to go on, and finish them, and he would take them. As to the remainder, he did not know about them-would go home and see some one, and write him whether he would give his price. He afterwards sent the stamp by Mr. Cone; and the twelve were stamped by the plaintiffs.
    The defendant, on his part, introduced Hubbel B. Cone, as a witness, who testified as follows : "I was employed, by the defendant, as agent, to sell the surgical adjusters, and was authorized to order the instruments, from time to time, as they were wanted, and received about 20 or 25 of them, all of which, I think, I sold. After the 19th of February, I carried, by direction of the defendant, a stamp, to stamp the twelve instruments which were over and above the fifty, and which were then in the works, to be finished at some future day. As I understood, there was no contract for the twelve, but they were to he forwarded. They could not be used by any one, unless samped. I afterwards went again, to get the twelve instruments, and offered a draft of 240 dollars for them. The plaintilfs said, the pay was satisfactory ; but they wanted more price I cannot recollect what was said but the plaintiffs would iiot sell at the price named in the written contract. I offered them 10 dollars more out of my own pocket. They wanted me to give 23 dollars each, for them. As I understood it from Allen, there was no contract for them ; but it would be a damage to them."
    The witness further stated, that he was sent by the defendant to get the twelve adjusters, and was authorized by him to pay 20 dollars each for them.
    The defendant also called the Rev. William Jarvis, who testified, that he acted as the agent of the defendant.
    The defendant then read in evidence, sundry letters to and from the plaintiffs, which are not of sufficient importance to require or justify their insertion here.
    This was all the evidence relating to any contract respecting the items for which the plaintiffs claimed to recover.
    The defendant claimed, that he never made any contract for these things other than the aforesaid written contract, and that he was not liable to pay the plaintiffs' demand, nor any part thereof.
    The plaintiffs, abandoning the first count in their declaration, insisted, that they were entitled to recover upon the second and third counts.
    The defendant claimed, that they could not recover upon the second count, because of a variance between the contract proved and the one declared upon; and because the plaintiffs had not proved, that the defendant had ever agreed to pay the price therein stated, or any specific price. He also claimed, that they could not recover upon the third and fourth counts, or on either of them; because there had been no delivery of the property, nor memorandum in writing made, nor any earnest money paid. He further claimed, that no recovery could be had for the work upon the unfinished instruments, upon either count, because the instruments were not finished, and were never delivered to, nor received by him; and because the plaintiffs had not declared upon any special agreement. And he requested the court to instruct the jury, in conformity with his claims.
    Such instructions were not given ; and the cause was submitted to the jury, for them to determine, whether, upon the evidence, the plaintiffs were entitled to recover upon the three last counts, or either of them.
    The jury returned a verdict in favour of the plaintiffs, for the sum of 400 dollars, damages, and costs of suit.
    The defendant thereupon moved for a new trial, on the ground that the court erred in omitting to charge the jury as requested by him; and because the verdict was against the evidence in the cause, and especially for greater damages than the evidence would warrant.
    McCurdy and G. W. Goddard, in support of the motion,
    contended, 1. That there could be no recovery on the second count, for variance. In the first place, if the written contract was relied on, the terms and conditions, number of instruments, price, and mode of payment, stated in this count, are all different from those specified in the contract. Secondly, if the conversation in February, 1846, is relied on, that does not sustain the count. The averment is, of an agreement to make twelve instruments for the agreed price of 21 dollars, each. The proof was of a proposition to change and complete the twelve then nearly finished ; but no price was agreed on, and no contract completed. Kellogg v. Denslow, 14 Conn. R. 41. Smith v. Parker, 3 Day, 312.
    2. That there can be no recovery on the third count; because there was an open special agreement. Vanden-heuvel v. Storrs, 3 Conn. R. 203. Curley v. Dean, 4 Conn. R. 259. Londregon v, Crowley, 12 Conn. R. 558. 1 U. S. Dig. 275. pl. 185. & seq. 1 U. S. Dig. Sup. 180. pl. 146. & seq. The distinction is this ; where the plaintiff incorporates his materials or his work with the defendant’s property so that the defendant has the benefit of it, and the work is completed, the plaintiff may sue on the common counts ; otherwise not. Minot's Dig. 60.
    3. That there can be no recovery on the fourth count ; because there was no meeting of the minds of the parties. The price was not agreed upon ; the plaintiffs offering at first to take 21 dollars, and afterwards demanding 23, and the defendant refusing to give either.
    4. That the contract was invalid, as being within the statute of frauds. Stat. 406. §2. 1 Sw. Dig. 376, 7. Cal-kins v. Lockwood, 16 Conn. R. 289. per Waite, J. Minot’s Dig. 61.
    5. That if there was any one count on which there could be no recovery, the court should have said so; otherwise, the verdict might have been on that count. The consequences would be, first, the rule of damages is very different under the different counts ; and secondly, the effect of the verdict would be very different, whether given on one count or another ; as in one case, the instruments, materials, &c., would belong to the defendant, and in the other, not.
    6. That the verdict is against the evidence. In the first place, the conversation, at the time of executing the written contract, could not vary it. 3 Stark. Ev. 1002. By that contract, the defendant was bound to take only fifty instruments, unless he ordered more ; and this he never did ; so that he is not liable under that contract. Secondly, he is not liable on account of any thing said or done in February, 1846 ; because no contract was then completed, and because the plaintiffs refused to deliver the instruments, except for a price never before asked.

      Strong and Foster, contra,
    contended, I. That a recovery may be had, in this action, for work and materials, under the general counts. The defendant being the patentee of a surgical instrument, called an adjuster, entered into a written contract with the plaintiffs, to manufacture a certain number of those instruments, according to a prescribed model; the number being to be completed and delivered as the defendant should want them. After the written contract was executed, the defendant requested the plaintiffs to go on and prepare the parts of the instruments, to be in readiness when he should require them. This the plaintiff did, at his request ; and after a large portion of the work was done, the defendant, having made some alteration in the construction of his instrument, directed the plaintiffs to suspend the work. Having thus, by his own act, put an end to the work under the contract, he is liable to the plaintiffs for the work and materials, so far as done, and furnished at his request. If the plaintiffs, under these circumstances, consent to waive any claim for the breach of the entire contract, the defendant cannot justly or legally refuse to pay the plaintiffs a reasonable compensation for their labour and materials. Such a refusal would be peculiarly unjust, in this case, as the plaintiffs, by reason of the defendant’s monopoly, can neither use nor sell the instruments.
    2. That there was no material variance between the claims of the plaintiffs, as stated in the second and third counts, and the evidence.
    3. That the defendant cannot resist the claim of the plaintiffs, on the ground of its being within the statute of frauds'; this not being a contract for the sale of goods, wares and merchandise, but for work and labour done and materials furnished by the plaintiffs, at the defendant’s request. Gar-butt v. Watson, 5 B. & Ald. 613. (7 E. C. L. 209.) Towers v. Osborne, 1 Stra. 506. Clayton v. Andrews, 4 Burr. 2101. Spencer v. Cone, 1 Metc. 283. Mixer v. Howarth, 21 Pick. 205.
    4. That the verdict was fully supported by the evidence : but if otherwise, the cause was properly submitted to the jury upon the evidence, and their verdict, doing justice only, will not be set aside.
   Storrs, J.

The various questions in this case, arise under the second and third counts of the declaration, the first having been abandoned, and the fourth not distinctly relied upon, by the plaintiffs, on the trial.

The questions of variance under the second count, were properly disposed of, by the court below. As to the price agreed to be paid by the defendant for the adjusters, no specific instructions were requested ; the testimony was verbal and confused; and it was properly left to the jury, to determine its weight, and whether, in that respect, it proved the contract as alleged.

The other claim of variance, which respected the consideration of the defendant’s promise, was, we think, unfounded. The adjusters, which were the subject of the contract, were comparatively small, portable instruments, of which all or most of the parts composing them had been already prepared, and very little, if any thing, remained to be done, but to unite them so as to form them into those instruments. The instruments could not properly be said to be made,-that is, formed into adjusters, so as to constitute them such,-until these parts should be so united ; and they might be indifferently said to be made or finished, when the parts were so formed or put together. However a contract merely to finish such a structure as a house or ship partly built, might be viewed, on an allegation of a contract to build them, considering the detached situation of the different parts of these articles when the contract was entered into, what remained to be done with them in order to form them into these instruments, and the character of the articles when finished, we do not perceive any such substantial difference between an agreement to make and one to finish them, that, on a question of variance, they should be distinguished. There has been, for some time past, a disposition on the part of courts, and one which we are not disposed to check, to abolish the refinements which once prevailed on the subject of variances ; and much less strictness of proof is now tolerated than formerly. We feel no inclination to retrograde, in this respect, as we should, if we allowed an objection bordering so much on subtilty as the one here made.

The defendant claims, that the verdict on this count, was, in several respects, manifestly against the evidence. He insists, 1. that the evidence was insufficient to prove that any contract was made between the parties for the making of the twelve adjusters : 2. that, if any was proved, the evidence was insufficient to show that any particular price was agreed on for them: and 3. that if any such price was agreed on, it was not the one stated in that count. It is not necessary to consider these topics separately, nor to repeat the testimony respecting them. The testimony of Wheelock, if unimpaired, showed satisfactorily, that the defendant engaged the plaintiffs to finish these twelve instruments for him, and agreed to receive and pay for them. He states, twice, that in the negotiation between the parties respecting them, while the plaintiffs were making them, the defendant told one of the plaintiffs to go on and finish them, and he would take them, and send his stamps that they might be stamped. The stamps here refered to, were those used by the defendant to indicate that instruments of this description were patented by the defendant. He also stated, that the defendant afterwards sent his stamps for that purpose to the plaintiff's, and that the adjusters were stamped by them. The testimony of Wheelock was not impaired, unless by that of Cone, who confirms Wheelock in regard to the sending of the stamps, but states, that he understood from one of the plaintiffs, that there was no contract respecting the twelve adjusters. We do not think, that this latter part of his testimony is sufficient to outweigh the clear proof of a contract derived from the testimony of Wheelock, and the circumstances to which both he and Cone testified. As to the question whether any particular price was agreed on, and what it was, the testimony is more loose ; but it was properly submitted to the jury, and we do not feel warranted in saying, that they have palpably erred in finding the declaration proved, in this respect. The plaintiffs, therefore, were entitled to recover on the second count.

But the defendant claims, that the damages given on this count, which were the whole value of the articles contracted for, were excessive. The rule of damages, in an action for the non-acccptance of property sold or contracted for, is the amount of the actual injury sustained by the plaintiff, incon-sequence of such non-acceptance. This is, ordinarily, the difference between the price agreed to be paid for it and its value, where such price exceeds the value. If it is worth that price, the damages are only nominal. But there may be cases where the property is utterly worthless in the hands of the plaintiff, and there the whole price agreed to be paid should be recovered. The present appears to us to be a case of this description. The articles contracted for were those for the exclusive right of making and vending which the defendant has obtained a patent. They could not be lawfully sold, by the plaintiffs; and were therefore worthless to them, in the form in which they were, when they were to be received by the defendant. And there is no evidence to show, that the materials of which they were made, could be converted to any other useful purpose. We do not think, that, under these circumstances, the defendant can justly require us to set aside the verdict, because the jury have given the full amount which he agreed to pay.

The plaintiffs claimed, on the trial, that in pursuance, either of the written contract of November 6, 1844, adduced by them in evidence, or a subsequent verbal contract made between them and the defendant, on the same day, they had made the parts of one hundred adjusters, (other than the fifty first mentioned in said written contract, and for which the defendant paid the plaintiffs, in cash and by note,) and were proceeding to complete them, when they were directed, by the defendant, to stop working on them, which they accordingly did ; but it was not claimed, that these parts were ever accepted by the defendant. For the value of their labour bestowed on these parts and the materials of which they were composed, the plaintiffs claimed to recover under the third count, which was a general count in indebitatus assumpsit for work and labour done, and materials found and provided about that work, by the plaintiffs for the defendant. The verdict shows, that a part of this claim was allowed by the jury. The defendant insists, that, so far as this claim was embraced in the verdict, it was against the evidence.

Assuming, that, in respect to the unfinished instruments, there was a fulfillment by the plaintiffs of the contract, so far as they had proceeded with them, when he was stopped by the defendant, the question presented by the facts, as thus claimed to be proved by the plaintiffs, is, whether, if one employs another to make a particular chattel out of the materials of the latter, and during the progress of the work, and before it has assumed the character bargained for, it is stopped by the employer, by whom it has not been accepted, and to whose use it has not been in any manner appropriated, the party employed may maintain an action for work and labour generally against the employer. The court are of opinion, that, whether this question be considered on authority or principle, that action, in such a case, cannot be maintained ; but that a special action on the case against the employer, is the appropriate remedy. In Atkinson & al. v. Bell & al., 8 Barn. & Cress. 277. (15 E. C. L. 216.) S. C. 2 M. & R. 292. A, having a patent for certain spinning machinery, received an order from B to have some spinning frames made for him. A employed C to make the machines for B, and informed the latter, that he had so done. After the machines had been completed, A ordered them to be altered. They were afterwards completed according to this new order, and packed up in boxes for B; and C informed B, that they were ready, but he refused to accept them. It was held, that C could not recover the price from B, in an action for goods bargained and sold, or for work and labour done and materials. This case is decisive of the one before us, and differs from it in no essential particular. The ground of that decision was, that the labour was bestowed on the materials of C, the property in which never having vested in B, such labour was bestowed for the benefit of C, and not of B, and was never appropriated to the use of B. The principle is thus stated in the conclusion of the judgment of Bayley, J., in which he says : “ As to the count for work and labour, if you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labour and your materials to any other person. Having bestowed his labour, at your request, on your materials, he may maintain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labour and material to any other person. No right to maintain any actions vests in him, during the progress of the work ; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered, or (if the employer refuses it,) a special action on the case for such refusal ; but he cannot maintain an action for work and labour; because the labour was bestowed on his own materials, and for himself, and not for the person who employed him.” Holroyd, J. says: "As to work and labour, the work was done and the labour bestowed on the materials of the maker, in manufacturing an article which never became the property of the defendant. I am of opinion, therefore, that the work was done for the bankrupt, (C,) and not the defendant.” And Littledale, J. also says: "The work and labour and materials were for the benefit of the machine maker, and not for the defendants.”

The principle that work and labour, for which there may be a recovery on the general indebitatus count, must be for the benefit of the defendant and therefore appropriated to his use, is one which does not exclusively apply to labour bestowed on an article contracted to be made by one, out of his own materials, for another. It is a universal principle applicable to all claims on the count for work and labour. And we find no case in which that count has been sustained, where the defendant has not received the benefit of the labour. The difficulty experienced by the courts, has been, to apply the rule, and to determine in what cases the labour should be deemed to have been appropriated to his benefit; examples of which may be seen in Wilkins v. Bromhead & al., 6 Mann. & Gran. 963. (46 E. C. L. 963.,) and the cases there referred to. It is unnecessary to review the eases on that subject, since, in the one now before us, it is very clear, and indeed is conceded, that the defendant never received the benefit of the labour claimed to be bestowed by the plaintiffs.

The reason is very obvious, why, in order to sustain a general count for work and labour, the labour must be bestowed for the benefit of the defendant, or, in other words, come to his use, or be appropriated to him, and with his consent. This action proceeds on the ground of a promise, by the defendant, implied by law, to pay for the value of the plaintiff’s labour. But, on what principle, would the law imply a promise by him, to pay for labour, of which he never had the benefit or use ? The implication of a promise, in all such cases, is derived from the fact, that the labour has been beneficial to him. If there is a liabilty to pay for it, where it has not been thus beneficial to him, it would not be on the ground of any promise which the law would imply, but must be founded solely on a special contract between the parties. The implication of a promise, in these cases, is founded on the principle, that justice requires that the defendant should pay the plaintiff the value of his labour, and therefore the law presumes, that he promised to do so; but how does justice require him to pay such value, when he has not been benefited by the plaintiffs’ labour ? He would, indeed, where he had employed the plaintiff to furnish the materials and make an article from them, be liable for a violation of his duty in refusing to accept it, when completed, or preventing him from finishing it, to pay him, not the value of the labour bestowed by him, but the damages which he had sustained, in consequence of such breach of duty; or, if the article was to be made from the defendant’s own materials, the defendant might not be allowed to say, that he had not received the benefit of the plaintiff’s labour: but, in the former case, he would be liable, on the ground of a violation of duty growing out of an express contract; and in such cases, the declaration must state such contract, in order that the rights of the plaintiff, and the violation of it, may appear. This is the character of the plaintiffs’ claim, in the present case. To allow the plaintiff, in such cases, to recover under a general count for work and labour, would be unjust in most cases, and indeed in all, except the unusual one where the injury to the plaintiff in consequence of a non-acceptance of the work, would amount to its full value, (as was the case here under the second count,) because under that general count the plaintiff would recover the whole value of his labour, while he would retain the benefit of it; whereas in an action for not accepting the work, or preventing its execution, he would recover only the amount of the damage to him in consequence of such acts, which would be an exact indemnity to him for the injury he had sustained.

We find no case, which, properly considered, impugns the principles adopted in Atkinson & al. v. Bell & al.; on the contrary, those are numerous in which they have been approved. The cases relied on by the plaintiffs, will be found to be either those where the claim was for work and labour merely of the plaintiff, done for the defendant, and of which the latter had received the benefit, by its being appropriated to his use, and where it was not bestowed on an article which was contracted to be made by the plaintiff from his own materials, and it was contemplated that the defendant was to have the benefit of the plaintiff's labour, by receiving the article which was to be thus made ;-or where the labour was bestowed on an article contracted to be made by the plaintiff from his own materials, which, either when completed, or previously, had been accepted by the defendant, or appropriated to his use, by his consent ;-or where the labour was bestowed on the materials of the defendant.

So far, therefore, as the verdict embraces damages on the third count, it is against the evidence.

The authorities cited by the plaintiffs, are decisive against the claim of the defendant, that the contract between the parties in this case, was within the statute of frauds.

The result is, that a new trial should be granted, unless the plaintiffs remit all the damages recovered over the sum of two hundred and fifty-two dollars, and interest, to which they are entitled under the second count.

In this opinion the other Judges concurred.

New trial to be granted, nisi.


source: Caselaw Access Project

author: Storrs, J. Waite, J.

license: Public Domain

text:
    Rogers and another against Thomas.
    Goods were sold by A to B, to be forwarded by railway to a certain place, and A sent them to the nearest depot to be thus forwarded. No fraud was practised by B in the purchase of the goods; nor did A claim to retain them for a non-compliance with the terms of sale. While the goods remained at such depot, they were attached by C, a creditor of B, as B’s property. A thereupon claimed the goods, by virtue of his right of stoppage in transitu. B was insolvent when the goods were stopped, but did not become so after the sale; there having been no change in his circumstances, for several years prior thereto. Still A had no knowledge of B’s insolvency at the time of the sale, notwithstanding the use of ordinary diligence on the part of A, to ascertain B’s circumstances. In an action of trover brought by A against C, it was held, 1. that neither the want of such knowledge, nor the use of such diligence, affected the right claimed by A; 2. that an essential requisite of such right is the insolvency of the vendee, consisting not merely of a general inability to pay his debts, but in his having taken the benefit of an insolvent law, or a stoppage of payment, or a failure in his circumstances, evinced by some overt act; 3. that in order to confer this right, it is not sufficient that the requisite insolvency exists at the time of the sale, but it must intervene between that time and the exercise of the right; consequently, that the right did not exist in this case. [One judge dissenting.]

      New-London,

    July, 1849.
    This was an action of trover, for a quantity of lumber; tried at New-London, on the general issue, September term, 1849.
    The plaintiffs claimed to have proved, that they sold the lumber described in the declaration, to Edward C. Moulton, a house carpenter and builder, who purchased it to be used in the construction of an academy at Danielsonville, on which he was engaged ; that the lumber was to be transported thither on the Norwich and Worcester Rail-road, and was taken from the lumber-yard of the plaintiffs in Norwich to the rail-road depot in that city, by a carman employed by the plaintiffs, for the purpose of being so forwarded ; that while it remained there for this purpose, the defendant, being a deputy sheriff, attached it as the property of Moulton, by virtue of a lawful writ of attachment against him, and proceeded to dispose of it according to law. The plaintiffs further claimed to have proved, that at the time of such attachment by the defendant, Moulton was a bankrupt and insolvent; and théy insisted, that not having been paid for the lumber, they had a right to stop it in its transit to Dan-ielsonville, where, as they claimed, they were to deliver it.
    The defendant denied the bankruptcy and insolvency of Moulton, and that the delivery of the lumber was to be at Danielsonville, claiming that it was to be delivered at Norwich.

    The court submitted these questions as to the bankruptcy and insolvency of Moulton, and as to the place of delivery, to the jury, as questions of fact.
    It was not claimed by the plaintiffs, that Moulton became bankrupt or insolvent after the sale of the property to him and prior to the attachment; nor was there any evidence that there had been any known change in his pecuniary condition or circumstances, for several years; or that the plaintiffs had any knowledge of his insolvency, at the time of the sale to him. The defendant claimed, and prayed the court to charge the jury, that if the purchase of the lumber by Moulton, was fairly made, and there was no change in his circumstances, after the sale and before the attachment, the plaintiffs had no right to stop the property in transitu, and the verdict should be for the defendant.
    The court did not so charge the jury.
    The defendant further claimed, and prayed the court to charge the jury, that if they should find, that Moulton was a bankrupt and insolvent, at the time of the sale, the plaintiffs were bound to prove, that they made some enquiry, either of Moulton, or of some other person, in regard to his pecuniary responsibility, and that these enquiries were answered favourably to his responsibility ; or that some representations were made to them, inducing the belief that Moulton was of ability to pay for the lumber; or else, that it would be taken as against the plaintiffs, that they sold the lumber, knowing Moulton's circumstances, and so they would have no right to stop the property in transitu,
    The court did not so charge the jury; but charged them, that if Moulton was a bankrupt or insolvent when the lumber was sold to him, and the plaintiffs had no knowledge of any such bankruptcy or insolvency, they would have the right to stop the property, at any time before it reached Moulton's hands; and though the plaintiffs were bound to exercise ordinary care and diligence, yet they were not bound to shew, that they made any enquiry as to the circumstances of Moulton, or that any representations were made to them touching his responsibility, in order to rebut any presumption that they had knowledge of his circumstances, at the time of the sale.
    The jury returned a verdict for the plaintiffs; and the defendant moved for a new trial for a misdirection.
    Foster and Judson, in support of the motion,
    contended, 1. That in the absence of any fraud or misrepresentation, by which credit is obtained, on the sale of personal property, the insolvency of the vendee, accruing after the sale, is an essential requisite to the right of stopping in transitu. 2 Kent's Corn. 540. 543. 493. Abbott on Ship. 411. 155. Chitt. Cont. 125. Cross on Lien, 1. 363. 365. Long on Sales, 168. 170. Dutton v. Solomonson, 3 Bos. & Pul. 582. King & al. v. Meredith, 2 Campb. 639. Stephens v. Wil- kinson, 2 B. & Adol. 320. (22 E. C. L. 86.) Bloxam & al. v. Sanders & al., 4 B. & Cress, 941. (10 E. C. L. 477.) 2 Selw. N. P. 1285. (Wheat. ed.) Kinloch v. Craig, 3 Term R. 122. Ellis v. Hunt, Id. 467. 450. Stubbs v. Lund, 7 Mass. R. 453. Bromley v. Bigelow, 12 Pick. 313. The People v. Haynes, 14 Wend. 562, 3. Vertue v. Jewell, 4 Campb. 31. 1 Smith's Lead, Cas. 270. 2.
    That where no change occurs in the circumstances of the vendee after the sale, it is incumbent upon the vendor to show, that some representations were made, which induced him to give the credit ; or at least, that he used ordinary dil~ igence in making the sale ; otherwise, the presumption will be, that he was aware of the circumstances of the vendee; and he cannot stop the goods in transitu. Strong
    and E. Perkins, contra, contended,
    1. That the vendor's right to stop the goods in transitu, depends on the fact of the vendee's insolvency when the right is exercised- not upon whether that insolvency occurred after or before the purchase. Chitt. Cont. 431. Cross on Lien, 231. Buckley v. Furness & al. 15 Wend. 137. 141. S. C. 17 Wend. 504. In the first place, any rule defeating this right, where the insolvency existed prior to the purchase, would change this great equitable right into a convenient shield for fraud. Secondly, the concealment, in this case, by Moulton, of his insolvency, was a fraud on the plaintiffs, which cer- tainly cannot give to him, or his creditors, any greater equi- ties than existed when the sale was made, under an honest mistake as to the ability of the purchaser. 2.
    That the charge of the court, that the plaintiffs were not bound to prove that they made some enquiry as to the circumstances of Moulton, was correct. In the first place, there is no rule of law requiring the vendor, in a case like this, to prove his ignorance of the insolvency of the vendee at the time of sale. Secondly, the presumption of common

      sense and the law alike would be, that the vendor parted with his property, in the belief that the vendee was of ability to pay for it. Thirdly, the facts found by the motion in this case to have been in evidence to the jury. are abundantly sufficient to rebut any presumption of knowledge in the plaintiffs of the insolvency of Moulton, without further evidence.
   Storrs, J.

The question here presented, is, whether the plaintiffs had a right to exercise the right of stoppage in tran-as to the goods for the conversion of which this action is brought: if they had, there is no doubt that, by doing so, they acquired a title to the property, which would prevail against the attachment of it, by the defendant, on behalf of a creditor of the vendee.

It is material to observe, that this case is quite distinguishable from those cases in which a vendor of goods retains them, in consequence of a fraud having been practised by the vendee, in the purchase of them; and also from those, where he detains them, by reason of a non-compliance by the vendee with some stipulation in the contract of sale, the performance of which constituted a condition precedent to the consummation of it. In the first of these cases, the delivery of the goods is refused or countermanded, on the ground that the vendor rescinds the contract of sale, as he undoubtedly may, for that cause : he retains or resumes it, on the sole ground of his original ownership, the vendee never having acquired any rights whatever in it. In the other of these cases, also, the property in the goods, remains in the vendor until the performance of the stipulated condition, on which he was to be divested of it: and consequently, he is, in this respect, in the same situation as the vendor in the other case, after he has rescinded the sale. Neither the right of property nor of possession, has ever been trans. ferred, absolutely or quahifiedly, in either of these cases and nothing has taken place to affect, in any respect, the original rights of the vendor. In the last case, the vendee may have a right, by a performance, on his part, of the condition on which his title was to depend, to compel the vendor to execute the contract, the effect of which would be, to vest the title in the vendee ; but until that is done, the title remains in the vendor, and is unaffected, by anything which has taken place. In the other, the right of the vendor to rescind the contract and reclaim the goods, does not cease when the vendee has obtained even actual possession of them, but may be exercised at any time after the vendor has parted with the possession, and whether they are in the hands of the vendee or of any other person, excepting one to whom they have been transferred by the vendee, bona fide, and for a valuable consideration, advanced or given on the strength of them. The right of stoppage in transitu, however, never applies to any cases, excepting those, where by a sale, the right of property passes to the vendee, and also the right of possession, (subject to be defeated only by the exercise of that right,) and can never be exercised after the property has come to the actual possession of the vendee. In this case, it would not have been competent for the plaintiffs to countermand the goods in question, while they were on their way to the vendee, on the ground that any fraud had been practised in the purchase, or that anything remained to be done by the vendee, in order to entitle him to them ; since there is nothing in the case to shew, nor was it claimed, when they were stopped, or on the trial, that such was the case. There is also this essential difference between the effect of a stoppage in transitu, and a reclamation of property after a sale, on the ground of fraud. The effect of the former is, merely to retain it in the hands of the vendor, as the property of the vendee, as security for the price for which it was sold : in which case, the latter may put an end to the right of the former, by payment or a tender of the price. It does not indeed appear to be precisely settled, whether the exercise of the right of stoppage in transitu operates as a rescission of the contract of sale, although the better opinion in England and this country undoubtedly is, that it does not, but only to give to the vendor an equitable lien on the property. But, however this may be, it appears to be clear, that the vendee may, on payment or tender of the price, claim the possession of the property. But the effect of reclaiming the property for a fraud in the sale, is wholly to rescind the contract, and put an end to all the rights of the purchaser under it. The plaintiffs have made no claim that the property in question did not pass to the vendee, by the contract of sale; and they have placed their right to recover, on the sole ground that the law of - stoppage in transitu applied in favour of their right to re-possess themselves of it, after it had left their possession and while it was on its way to the vendee. Independent of the principle, which prevails under that branch of the law, by which the vendor of goods may, in case of the bankruptcy or insolvency of the vendee, reclaim the possession of them, there is no principle, by which, after a sale of property, by which the title to it and right of possession have been transferred to another, the vendor may resume the possession of it ; and under the law of stoppage in transitu, such right of resumption is limited to cases of the vendee’s bankruptcy or insolvency.

In this case, the facts, as found, are, that the vendee was insolvent when the goods were stopped by the plaintiffs, but that he did not become insolvent after the sale ; and that there had not been any actual or apparent change in his pecuniary condition, for several years prior thereto, although the plaintiffs had no knowledge of such insolvency until after the sale, notwithstanding the use of ordinary care and diligence on their part in ascertaining the circumstances of the vendee ; and the question is, whether the right of stopping the goods attached in favour of the plaintiffs, while they were on their way to the latter.

We do not think that the want of such knowledge, or the use of such diligence, has any material bearing on this question. We find no case where the right of reclaiming property after a sale, by reason of the insolvency of the vendee, has been claimed or held to attach, on the ground that the vendor was ignorant of such insolvency when the sale took place; or where such right has been held to depend on the degree of diligence used by the vendor, in ascertaining the vendee’s pecuniary condition. But in every case which has fallen under our notice, it has been made to depend on the existence of the fact of bankruptcy or insolvency in the vendee, irrespective of these circumstances. In the text-books, where principles are often stated very loosely, we sometimes find expressions, which, if understood literally, and without being collated with the cases to which they refer, seem to intimate, that the mere discovery of the bankruptcy or insolvency is the circumstance which confers the right of reclaiming goods sold ; but when those cases are examined, it is obvious, that they support no such idea, and that nothing more was intended than that, when such bankruptcy or insolvency had taken place, and it was discovered by the vendor, he had a right to seize the goods. Common prudence would naturally induce a person to enquire respecting the circumstances and character of one whom he was called on to trust; but if by the answers to such enquiries, he should be led to place a false confidence in the person who was the subject of the enquiry, and thereby suffers, the consequence must be borne by himself, unless a fraud has been practiced on him. The rights of the vendee, to whom he had given credit on the strength of such information, such vendee having been guilty himself of no fraud, would not be varied, by the circumstance that the vendor had been misled, whether innocently or fraudulently, by a third person. The plaintiffs’ ignorance of Moulton’s situation, and their diligence in ascertaining it, should therefore be laid out of this case. Nor is it claimed, that the attachment of this property, in a suit against the vendee, by one claiming to be his creditor, previous to the seizure of it by the plaintiffs, constituted any such change in the situation of the vendee as to confer the right of stoppage in transitu, if such right did not otherwise exist.

This case, thus disembarrassed from facts which are unimportant, presents two enquiries : 1. What is to be understood by the term, insolvency, when it is used to denote the situation of a vendee of goods, which confers on the vendor the right of stopping them in transitu ? 2. At what time must such insolvency occur, in order to authorize the exercise of such right ?

Although we think that a solution of these questions is involved in several of the reported cases on this subject, we have been not a little surprised at finding none in which they are directly or pointedly answered ; which confirms the remark of Lord Abinger, in Gibson v. Caruthers, 8 M. & W. 337. that “ although the question of stoppage in transitu has been as frequently raised as any other mercantile question, within the last hundred years, the principle on which it depends (and, he might have added, the exigency on which the right may be exercised,) has never been either settled, or stated in a satisfactory manner." Considering it, according to the best opinions, as a part of the law merchant, introduced, in comparatively modern times, into and now forming a part of the common law, we are, therefore, in determining the questions before us, left to rely on the course and effect of the decisions on this branch of the law, which were presumably intended to follow the practice of the mercantile community, rather than on any abstract reasonings.

The cases on this subject generally mention insolvency as one of the conditions on which the right of stoppage in tran-situ accrues ; but they are wholly silent as to what constitutes such insolvency ; and therefore its sense, as thus used, is to be gathered from the circumstances of the cases. For it is a term which is used with various meanings. In a technical sense, it denotes the having taken the benefit of an insolvent law ; in the popular sense, a general inability to pay debts ; and in a mercantile sense, a stoppage of payment, or failure in one’s circumstances, as evinced by some overt act. That a technical insolvency is sufficient to authorize the exercise of the right of stoppage in transitu, has always been conceded. That it. is not indispensable for that purpose, is equally clear. Mr. Smith, in his Compendium of Mercantile Law, p. 549. n. expresses his belief, that merchants have very generally acted as if the right to stop goods was not postponed till the occurrence of insolvency in the technical sense, and pertinently adds, “ The law of stoppage in transitu is as old, it must be recollected, as 1670, on the 21st of March, in which year, Wiseman v. Vandeput was decided ; so that, if insolvency is to be taken in a technical sense, the law of stoppage in transitu has been varying with the varied enactments of the legislature regarding it."

That stoppage of payment amounts to insolvency for this purpose, is assumed in many of the cases. Lord Ellen-borough, in Newson v. Thornton, 6 East, 17. places the right of the vendor to stop the property, on the “ insolvency” of the consignee, where there had been only a stoppage of payment by the vendee, when notice was given to the carrier, by the vendor, to retain the goods. In Vertue v. Jewell, 4 Campb. 31. the terms used, were “ stopped payment.” See also Dixon v. Yates, 5 B. Ad. 313. We have been able to find no case in which the right of stoppage in transitu has been either sanctioned or attempted to be justified on the ground of the insolvency of the vendee, where there was not a technical insolvency, or a stoppage of payment, or failure in circumstances, evidenced by some overt act ; and Mr. Blackburn, in his Treatise on the Com-tract of Sale, p. 130. where this subject is very minutely examined, says, that there seems to have been no such case; and adds, that although the text-books and dicta of the judges do not restrict the use of the term, " insolvent," or failed in his circumstances," to one who has stopped payment, there must be great practical difficulty in establishing the actual insolvency of one who still continues to pay his way; and as the carrier obeys the stoppage in transitu at his peril, if the consignee be in fact solvent, it would seem no unreasonable rule to require, that at the time the consignee was refused the goods, he should have evidenced his insolvency by sonic overt act. Mr. Smith, in his work which has been mentioned, clearly favours the same view. Comp. Merc. Law, 130. n. Hence it appears, that the authorities and text-writers furnish no support to the claim, that a mere general inability to pay debts, unaccompanied with any visible change in the circumstances of the debtor, constitutes insolvency, in such a sense as to confer the right of stoppage in transitu.

The argument from this source, against such a claim, is much stronger than a merely negative one derived from a want of authority in its support. When it is considered that this branch of the law is founded on the custom of the mercantile world, and that during the last 170 years, during which the right of stoppage in transitu has been recognized, numberless sales on credit must have taken place, where there would have been occasion to exercise it, if it would have been allowed where there was merely a general inability, on the part of the vendee, to pay his debts when the sale was made ; the fact that it does not appear even to have been attempted, shews almost conclusively, the universal sense of the mercantile community and of the legal profession, that it would not be permitted in such cases. It cannot be believed, that the question would have been, at this day, one of the first impression. To say nothing of the incon- venience that would ensue from permitting the right to rest upon the result of an enquiry, perhaps very complicated, into the whole state of the vendee’s circumstances, including the amount of his liabilities on the one hand, of his assets on the other, in which not only the ordinary evidence to shew his situation might be introduced, but he might be required to disclose the whole state of his affairs, and this only for the purpose of justifying a detention of his property, we are, by no means satisfied, that justice to himself, or the general interests of commerce would be promoted, by allowing such an enquiry for this purpose. His credit might stand entirely fair ; and by means of that credit, he might, in the regular course of business, have a reasonable prospect of retrieving himself from embarrassment; while such an investigation, whatever might be its result, would necessarily have the effect, in many, if not in most cases, to cripple, if not to ruin him in his business, and oftentimes would render one insolvent, who was not so before. We think, therefore, that in order to authorize a stoppage in transitu, there should be some ostensible and certain criterion, by which the insolvency of the vendee may be ascertained ; and that it should consist of some visible change in his pecuniary situation,some open, notorious act on his part, calculated to affect his credit,-some change in his apparent circumstances, which would operate as a surprise on the vendor, and which, if he had known, he would not have given credit to the vendee.

The remaining enquiry respects the time when such insolvency must occur, in order to confer this right. On this point, we are of opinion, that it is not sufficient it exists when the sale takes place, but that it must intervene between the sale and the exercise of such right. It is well settled, that after the sale and before the vendor has taken any steps to forward the property to the vendee, the former has a lien upon it, by virtue of which he may, on the occurrence of the insolvency of the latter, retain the goods in his possession, as a security for the price. This is a strictly analogous right to that of stopping them after they have been forwarded, and while they are on their way to the vendee, and depends on the same principles. And it may be here remarked, that the cases decided on the subject of that right of lien, confirm the views which we have expressed as to the meaning of insolvency as applied to the right of stoppage, after the transitus has commenced. The same equitable principle, which authorizes a retention of the possession, in the one case, and a recovery of it, in the other, would seem to authorize the latter, where the insolvency occurred after the sale and before the forwarding of the property. The right of stopping it after the transitus has commenced, may not, therefore, be limited to the case where insolvency occurs after it has left the possession of the vendor, but may extend to cases, where it occurred at any time after the sale. However that may be, we are clear that it must occur after the sale. In favour of this position, there is the same argument from an entire absence of authority against it, as was derived from that source, on the point which we have just considered ; and it applies with equal force. We find no decided case, in which the right in question has been sanctioned, excepting where the insolvency occurred subsequent to the sale. And although the language of the courts may sometimes seem to import, that the right exists, irrespective of the time when the insolvency took place, it is quite plain, that applying their expressions to the cases they were considering and which did not involve this point, they were not intended to have that construction. But in most of the decided cases on this subject, it will be seen, that their language is most unequivocal, and in terms limits the right of stoppage to cases of bankruptcy or insolvency, occurring while the goods are in transitu, and of course after the sale.

But little aid is derived from the text writers on the point now before us. They usually merely transcribe the language of the judge giving the opinion of the court in the case to which they refer, without reciting the facts on which it was pronounced; and precision is not to be expected where the question has not directly arisen. We discover in their works no instance, in which it is stated in terms, that the insolvency of the vendee may happen previous to the sale ; in several, it is laid down in terms, that it must occur while the goods are in transitu; in most of them, the most natural and obvious import of their language is, that it must take place before the sale ; and in all of them, it is consistent with this construction. Mr, Smith, one of the most learned, exact and authoritative expositors of law, is, however, very explicit on this subject, and states the doctrine on this point, with a precision that admits of no doubt as to his opinion upon it. He, in terms, limits the exercise of the right of stoppage in transitu to those cases, where “goods are consigned on credit, by one merchant to another, and it happens that the consignee becomes bankrupt or insolvent, while the goods are on their way to him, and before they are delivered.” Comp. Merc. Law, 547. Oliver’s Law Sum. 116.

The extension of the right of stoppage in transitu to cases where the vendee was insolvent at the time of the sale, has been urged, by arguments drawn from the effects of restricting it, and also from the reasons on which it was originally allowed. It is said, that, to restrict it, would operate as a fraud on the vendor. That the purchase of property, by one insolvent at the time, without his informing the vendor of that fact, and the latter being ignorant of it, would, of itself, necessarily constitute a fraud, will not be claimed. The purchaser might not be aware of the fact: and if he were, the case of Cross & al. v. Peters, 1 Greenl. R. 376., is a very respectable authority to show, that a mere omission to reveal it to the vendor, would not be a sufficient ground for the latter to avoid the sale, on the ground of fraud. The court there say, that in the commerce and intercourse of mankind, an implication that the purchaser is sound in his pecuniary concerns, was never understood to exist. While the law already amply protects the vendor against any fraud by the purchaser, it seems to us, that, in the absence of it, it is more safe and expedient to leave the vendor to the ordinary means of acquiring the requisite information as to the vendee’s circumstances, and to the securities which it is in the power of the vendor to require, than to protect him, to the extent claimed by the plaintiffs, against the consequences of his own indiscretion.

It is further said, that credit is always presumably given under a belief of the solvency of the purchaser. Other considerations, however, frequently influence the vendor; and it is by no means unusual to give credit to those who are known to be unable to pay the debt, unless from the avails of the property sold to them, under a reliance on their integrity and skill in business.

But, as already suggested, the right of stoppage in tran-situ does not proceed on the ground of fraud in the vendee, but, on the contrary, supposes the title to the property to be fairly vested in him; and the exercise of that right affirms that title, and only sets up a right to retain the possession of it as a security for the price.

It is urged, that the reasons which give this equitable right, apply equally, whether the insolvency occurs before or after the sale. This argument, however, goes too far, unless the rule, as established, is to be entirely disregarded. On the same ground, it might be claimed, that the right should not cease after the vendee had obtained actual possession of the property. But the subject which we are considering, is not one with which we are at liberty to deal on such general considerations. Stoppage in transitu, as has been justly remarked, stands alone in our law, and is founded in strict justice. Per Gurney, B. Gibson v. Caruthers. It was introduced and adopted into the common law, of which it originally formed no part, not in analogy to any of its principles, but for the benefit of trade, as a part of the lex mercatoria, and therefore founded on the custom of merchants, and was designed to be co-extensive with that custom. It is applicable only to an isolated class of cases, and although highly favoured as to them, was not designed to be extended, as a general doctrine, applicable to others. We have no evidence that the practice of the mercantile community in regard to detaining or arresting goods bought on credit, ever extended to a case like the one before us ; and no such custom is recognized, by the adjudications on the subject. Whether the principle on which this branch of the law rests, might not be beneficially and safely extended, we do not feel called on to enquire. We are content to take the law on this particular subject as we find it, without assuming the responsibility of applying the anomalous principle on which it is founded, to cases which must have frequently arisen, but to which it has never been heretofore considered applicable, or of introducing it now, for the first time, as a universal principle of the common law.

The charge below, not being in accordance with these views, we think that a new trial should be granted.

In this opinion, Church, Ch. J., and Hinman and Ells-worth, Js. concurred.

Waite, J.

On the trial of this cause in the court below, the defendant claimed, that if the purchase was fairly made by Moulton, and there was no change in his circumstances, between the sale and the attachment, the plaintiffs had no right to stop the goods in transitu. This claim was not sanctioned by the court; and the jury were instructed, that if the vendee was insolvent, at the time of the purchase, and the vendors had no knowledge of such insolvency, they had a right to stop the goods, at any time, before they reached the hands of the vendee.

This part of the case presents the single question, whether it is necessary for the vendor, before he can legally exercise the right of stopping the goods, to prove a change in the circumstances of the vendee, between the time of sale and the stoppage of the goods ; or whether it is sufficient for him to show, that he sold in good faith, relying upon the ability of the vendee to pay, and that before the goods got into his possession, he discovered that the vendee was insolvent, and thereupon stopped the goods.

My brethren are of opinion, that this claim of the defendant is well founded, and the charge wrong, and, upon this point alone, grant a new trial. After a careful examination of all the cases within my reach, I find myself unable to concur in that opinion; and as the question involved is one of great practical importance in the mercantile community, I feel it to be my duty briefly to assign the reasons for thus differing from them.

Not a case have I been able to find in the books, which, either directly or indirectly, militates against the charge; but, on the contrary, as it seems to me, it is both in harmony with the whole current of authorities, and in strict accordance with the equity of the case.

The right of stopping goods in transitu, as has been often said, was originally introduced into the common law, from courts of equity, and has become so firmly established, by such a variety of decisions, that it is now no longer regarded, by courts of law, as a mere equitable right, but is justly considered as coming within the spirit and principles of the common law, as a kind of equitable lien, adopted for the purpose of substantial justice. Tucker & al. v. Humphrey, 4 Bing. 516. (15 E. C. L. 64.) Hodgson v. Loy, 7 Term R. 440. 445. Hammond & al. v. Anderson, 1 Bos. & Pul. N. R. 69. It is, says Chief Justice Shaw, " nothing more than an extension of the right of lien, which by the common law the vendor has upon goods for the price, originally allowed, and subsequently adopted, as a rule of law.” Row-ley v. Bigelow, 12 Pick. 313. And so favourably has the rule been viewed, that eminent judges, instead of manifesting a desire to narrow its operation, have expressed their regret, that it was not in their power to give it a more extended application, and authorize the vendor of goods, in case of the bankruptcy of the vendee, to follow them even into the hands of the bankrupt and his assignees. Inglis & al. v. Usherwood, 1 East, 515. Scott & al. v. Pettit, 3 Bos. & Pul. 469. These cases are alluded to, for the purpose of showing the present leaning of courts of justice upon this subject-“a leaning,” says Lord Kenyon, “to the furtherance of justice.” Northey & al. v. Field, 2 Esp. R. 614.

The rule to be extracted from all the cases, I take to be this :-If the vendee becomes insolvent before the goods are actually received by him, the vendor may stop them in tran-situ. And it is immaterial at what time the insolvency commenced, or how long it existed, provided it was unknown to the vendor, at the time of sale. If indeed a man sell goods to another, knowing him to be insolvent, the fact of insolvency will give him no right to rescind or vary a contract which he has understandingly made. But the case is altogether different, when the vendor has no knowledge of that insolvency. “Every man,” says Lord Kenyon, “contracting to supply another with goods, acts on the presumption that that other is in a situation to pay for them ; and therefore, when the condition of the consignee is altered, at the time of delivery, and he is insolvent, and no longer capable of performing the contract himself, honesty and good faith require that the contract should be rescinded.” Inglis & al. v. Usherwood, 1 East, 523. And for myself, it is difficult to see, why the requirements of honesty and good faith should not operate as powerfully, where a purchaser conceals from the vendor his insolvency, and thereby obtains his property, as where he subsequently becomes insolvent. And if, in the latter case, the vendor can retake his goods, I am unable to understand, why he may not do it, in the former. It is true, in the sale of his property, he is required to exercise ordinary care and diligence in ascertaining the solvency of the vendee ; otherwise, he will be considered as standing in the situation of a person selling with a knowledge of the vendee’s insolvency. And so the jury were, in effect, instructed, in the present case.

The word, “insolvent,” as used in the law upon this subject, means nothing more than a general inability to pay, and not the taking the benefit of any act for the relief of insolvent debtors. Biddlecombe v. Bond, 4 Adol. & Ell. 332. (31 E. C. L. 80.) Abbott on Ship. 511. n.

This insolvency often steals upon a man so gradually as to be unnoticed by his neighbours, and sometimes by himself; and it frequently may be impossible to determine, at what precise time he passed from a state of solvency to that of insolvency. He may, by an erroneous valuation of his property, deem himself able to meet all his engagements, when, in truth, it would be impossible for him to sell that property for a sum sufficient to pay his debts.

To require the vendor, in such cases, to prove a change in the vendee’s circumstances, between the sale and the stopping of the goods, usually a very short period, would often entirely defeat the operation of a highly equitable rule of law.

The rule, as laid down by Chief Justice Gibbs, in the case of Litt v. Cowley, seems to be directly in point, and fully sustains the charge of the court below. 1 Holt’s, N. P. Ca. 238. (3 E. C. L. 122.) S. C. 7 Taun. 169. (2 E. C. L. 64.) There, in November, 1815, goods were ordered from the plaintiffs, who, on the 9th day of December following, delivered them to carriers, to be conveyed from Manchester, to the vendees in London. Two days afterwards, they were informed that the vendees were insolvent; and thereupon they sent an order to the carriers to stop the goods, and not deliver them to the vendee. This order was disregarded, and the goods delivered on the 23rd day of December. On the 19th day of January following, a commission of bankruptcy issued against the vendees, and their assignees took possession of the goods. In an action of trover brought by the vendors, Gibbs, Ch. J. said, "It has never been doubted but that the goods vested in the vendee, as soon as they left the original owner's possession; but it has always been equally certain, that the owner might retake them in their passage, by any means short of felony, if lie had subsequent grounds for believing, that the purchaser would not perform his part of the contract, by paying for them."

Here there was no pretence of any change in the circumstances of the vendees, between the time of sale and the stoppage of the goods-certainly, none between the delivery to the carriers and the order to stop them, a period of only two days. And yet the learned judge placed the plaintiffs’ right of stoppage solely upon the ground of their subsequently discovering that the purchasers were unable to pay for the goods&emdash;a fact sufficiently evinced, by the circumstance, that in less than two months afterwards, a commission of bankruptcy was issued against them. It is true, the precise question made in this case, was not raised in that; but it is hardly possible to believe, that if it were entitled to any consideration, it should have escaped the notice of so able a lawyer as Best, who argued the cause both on the circuit and in the court above, and who was himself afterwards Chief Justice of that court; or that the able judge before whom the cause was tried, should have laid down the rule in so broad and comprehensive terms.

And in a more recent case, when the right of stoppage was set up, by way of defence, it appeared, that the goods were invoiced on the third of April, shipped on the 5th, and an order issued to stop them on the 19th of the same month. To prove the insolvency of the purchaser, a letter written by him, dated the 5th of April, was put in, in which he expressed himself to be insolvent in pretty plain terms. A clerk of certain bankers was called, to prove, that the bankers began to dishonour his bills as early as the 20th of March, and dishonoured twenty-five of them in a few days. And finally, it was proved, that a commission of bankruptcy issued against him, in the month of November following. The defence was conducted, by Vaughan, Serj.; and who will believe that he would have pursued so suicidal a course as to call a witness to prove the insolvency of the purchaser~ previous to the purchase, had he believed, for a moment, that such evidence would have been fatal to his clients’ cause 1 The whole course of proceeding, in that case, shows the views of the court and counsel. They deemed it necessary to prove the condition of the vendee, when the goods were stopped :-and for that purpose, evidence was introduced, showing his condition, both before the purchase and subsequent to the stoppage, for the mere purpose of enabling the jury to determine his condition at the latter period.

The same view seems to have been taken of this subject, by the supreme court of Massachusetts. “ It is,” says Chief Justice Parker, “objected to the exercise of this right, that the consignee did not become insolvent until after the arrival of the goods ; by which is supposed to be meant, that his insolvency was not known or declared. But we do not see how this can affect the question. We do not find, that the right of stopping depends upon a declared insolvency, or open bankruptcy, before the arrival of the goods. It is enough that the affairs of the consignee are so involved, that he is unable to pay for the goods, if he was to pay on delivery, or that he has become actually insolvent before he shall have taken possession. Naylor & al. v. Dennie, 8 Pick. 198. 205. And again, says Chief Justice Shaw, “the consignees have a right to judge for themselves of the danger of such insolvency, and to take measures to guard against it, by stopping the goods in transitu, should the insolvency occur before the goods came into the possession of the consignees.” Stanton v. Eager, 16 Pick. 474.

So in Patten & al. v. Thompson, 5 Mau. & Selw. 368., Holroyd, J., said, he thought it clear, that the plaintiffs had a right, upon hearing of the insolvency of the Dublin house-the consignees in that case-to take measures for stopping the consignment in transitu.

In all these cases, this right is considered as depending upon the insolvency, at the time of the stoppage, without any reference whatever to the time of its commencement, or the manner in which it is to be proved ; and the vendors are entitled to the exercise of that right, upon discovering that insolvency. One mode of showing that, among mercantile men, is, by proving that the purchaser stopped payment. Dodson v. Wentworth, 4 Man. Gran. 1080. (43 E. C. L. 555.) Jackson v. Nichol, 5 Bing. N. C. 508. (35 E. C. L. 202.) But that is not the only mode, as a reference to the cases will abundantly show ; nor is it always conclusive, because it may have arisen from a mere temporary embarrassment, or disappointment, and not from a general inability to pay.

How then stands the present case ? The plaintiffs, without any want of care or diligence on their part, sold a quantity of lumber to Moulton, believing, at the time, that he was solvent. While the lumber was on its way to the vendee, it was attached, by the defendant, upon writs in favour of other creditors of Moulton. The plaintiffs, discovering the insolvency of Moulton, retake the goods, and while in their possession, they are again taken by the defendant, and applied in payment of the debts due the creditors in those suits.

The question now is, which has the superior equity, these plaintiffs, or the attaching creditors of Moulton ? It is conceded, on all hands, that if Moulton was solvent, at the time of the purchase, and became insolvent before the goods were stopped, by the plaintiffs, their title would be perfect; and the attachment would not avail the other creditors. So far as the equity of the case is concerned, it is just as strong in favour of these plaintiffs, whether the purchaser was solvent or insolvent, at the time of the purchase, provided that insolvency was concealed from them. If, as Chief Justice Shaw says, “the right of stoppage in transitu, is but an extension of the lien of the vendor, for the price,” it may apply, as well in the one case, as in the other. If, as other judges have repeatedly said, there is a disposition on the part of courts to extend rather than narrow the application of this rule, why not apply it to a case like the present, coming so manifestly within the equity and spirit of the rule ; especially, when such an application, if not clearly supported by the authority of adjudged cases, is opposed to no decision, nor, as far as nay researches have extended, to any dicta of any judge ? For myself, I am unable to see any reason for the distinction ; and therefore, cannot advise a new trial.

New trial to be granted.