Sect. 20. per, band, reel, ticket, label, or other thing together with which such chattel or article shall be sold or contracted to be sold, the sale or contract to sell shall in every such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee that every trade-mark upon such chattel, or article, or upon any such cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing as aforesaid, was genuine and true, and not forged or counterfeit, and not wrongfully used, unless the contrary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee. In every case in which at any time after the thirty-first day of December, one thousand eight hundred and sixty-three, any person shall sell or contract to sell (whether by writing or not) to any other person any chattel or article upon which, or upon any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing together with which such chattel or article shall be sold, or contracted to be sold, any description, statement, or other indication of or respecting the number, quantity, measure, or weight of such chattel or article, or the place or country in which such chattel or article shall have been made, manufactured, or produced, the sale or contract to sell shall in every such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee that no such description, statement, or other indication was in any material respect false or untrue, unless the contrary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee." Vendor's first duty § 674. AFTER the contract of sale has been completed, the chief and immediate duty of the vendor, in the absence of is delivery. contrary stipulations, is to deliver the goods to the purDifferent chaser as soon as the latter has complied with the conditions precedent, if any, incumbent on him. There is word "de- no branch of the law of sale more confusing to the stulivery" is used. dent than that of delivery. This results from the fact that the word is unfortunately used in very different senses, and senses in which the in putting goods sold by weight, 698 Usage may bind vendor to deliver 698 unless these different significations are carefully borne in mind, the decisions would furnish no clue to a clear perception of principles. § 675. First. The word delivery is sometimes used with reference to the passing of the property in the chattel, (a) sometimes to the change of the possession of the chattel: in a word, it is used in turn to denote transfer of title, or transfer of possession. (b) Secondly. Even where "delivery" is used to signify the transfer of possession, it will be found that it is employed in two distinct classes of cases; one having reference to the formation of the contract, the other to the performance of the contract. When questions arise as to the "actual receipt " which is necessary to give validity to a parol contract for the sale of chattels exceeding 107. in value, the judges constantly use the word "delivery" as the correlative of that "actual receipt." (c) After the sale has been proven to exist, by delivery and actual receipt, there may arise a second and distinct controversy upon the point whether the vendor has performed his completed bargain by delivery of possession of the bulk to the purchaser. Thirdly. Even when the subject under consideration is the vendor's delivery of possession in performance of his contract, there arises a fresh source of confusion in the different meanings attached to the word "possession." In general it would be perfectly proper, and even technical, to speak of the buyer of goods on credit as being in possession of them, although the actual custody may have been left with the vendor. The buyer owns the goods, has the right of possession, may take them away, sell or dispose of them at his pleasure, and maintain trover for them. (c) Yet, if he become insolvent, the vendor is said to have retained possession. (d) Again, if the vendor has delivered (a) As, for instance, in the opinion of Park J. in Dixon v. Yates, 5 B. & Ad. 340. (b) [Colt J. in Morse v. Sherman, 106 Mass. 433. "Delivery," as applied to a Delivery as change of possession in purapplied to suance of a sale, ordinarily change of possession. includes both the act of the vendor in transferring the property and that of the vendee in receiving it. If unaccompanied by any word, or act, or circumstance to indicate that it is qualified or made subject to a condition, the vendee has a right to understand it to be abso lute. Wells J. in Upton v. Sturbridge Cotton Mills, 111 Mass. 453.] (c) [See the language of Bigelow J. in Marsh v. Hyde, 3 Gray, 331, 333, 334. In Boardman v. Spooner, 13 Allen, 357, Foster J. said: "The statute is silent as to the delivery of goods sold, which is the act of the seller. It requires the acceptance and receipt of some part thereof, which are subsequent acts of the buyer."] (c) [Newcomb v. Cabell, 10 Bush (Ky.), 460; Taylor v. Twenty-five Bales of Cotton, 26 La. An. 247.] (d) [Although, as between vendor and the goods to a carrier for conveyance to the purchaser, he is said to have lost his lien, because the goods are in the buyer's posses sons. purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery, the same rule does not operate against subsequent purchasers, attaching creditors, and others Delivery as standing in like relation. To to third per- render a sale valid against these there must be a delivery, actual or constructive, of the property sold. Packard v. Wood, 4 Gray, 307; Vining v. Gilbreth, 39 Maine, 496; Ludwig v. Fuller, 17 Ib. 162; Shumway v. Rutter, 7 Pick. 56; Carter v. Willard, 19 Ib. 1; Parsons v. Dickinson, 11 Ib. 352; Green v. Rowland, 16 Gray, 58; Mt. Hope Iron Co. v. Buffington, 103 Mass. 62; Morgan v. Taylor, 32 Texas, 363; Conway r. Edwards, 6 Nev. 190; Haak v. Linderman, 64 Penn. St. 499; Thorndike v. Bath, 114 Mass. 116; Fairfield Bridge Co. v. Nye, 60 Maine, 372; Webster v. Granger, 78 Ill. 230; Williams v. M'Donald, 7 U. C. Q. B. 381; Allen v. Carr, 85 Ill. 388; Thornton v. Davenport, 1 Scam. (Ill.) 296; Thompson v. Yeck, 21 Ill. 73; Lefaver v. Mires, 81 Ib. 456; Sut ton v. Ballou, 46 Iowa, 517; Crawford v. Forristall, 58 N. H. 114; and in connection with it, Crawford v. Forristall, 57 Ib. 102; Mosher v. Smith, 67 Me. 172; Burnham v. Waddell, 28 U. C. C. P. 263, affirmed in 3 Ont. App. 288; Seymour v. O'Keefe, 44 Conn. 128; Meade v. Smith, 16 Ib. 346; Wilson v. Paulsen, 57 Ga. 596; Richardson v. Rardin, 88 Ill. 124; Chase v. Snow, 48 Vt. 436; Pettengill v. Elkins, 50 Ib. 431; Uhl v. Robinson, 8 Neb. 272. In Nesbitt v. Bank of Montreal, 9 Low. Can. 193, the appellant had purchased certain articles from one Maguire, and had caused them to be weighed and measured, and had also paid for them. By a memorandum at the foot of a receipted bill it was agreed that the goods were to remain in vendor's store till the appellant should send a carter with an order for them. Maguire had caused the goods to be set apart in his cellar, and had given instructions to his clerk to deliver them to appellant whenever he should send for them. These goods were seized by creditors of Maguire, and it was held that there had not been sufficient delivery as against them, although the officer had been told before he seized the goods that they were the appellant's. In Doyle . Lasher, 16 U. C. C. P. 263, A. bought a number of sheep from B., paying him a part of the purchase money then and the remainder a few days later. When the first payment was made, A. marked the sheep with red paint as his property, and they were then placed apart from the rest of B.'s sheep in a separate field on the lat ter's farm, where they were to remain until wanted by A. A. was a butcher, and it appeared to be the custom among butchers thus to leave stock purchased from farmers. Such had been the course of dealing between A. and B. The sheep remained on B.'s farm under the above circumstances until seized by the sheriff under an attachment against B. Held, that the above marking and setting apart did not constitute such a delivery or change of possession as is required by Con. St. U. C. ch. 45, § 4, which is as follows: “. .. Every sale of goods, not accompanied by an immediate delivery and followed by an actual and continued change of possession, &c. shall be in writing, &c. otherwise the sale shall be absolutely void as against the creditors of the bargainors and as against subsequent purchasers or mortgagees in good faith." Williams v. Rapelje, 8 U. C. C. P. 186. In Dempsey v. Gardner, 127 Mass. 381, tort was brought for the conversion of a horse. The defendant, a constable, justified under a writ against the mother of the plaintiff. It appeared that the plaintiff had from time to time advanced sums of money to his mother, equal to or greater than the value of the horse, and about three months prior to the attachment, in consideration of the payment of fifteen dollars additional, the mother executed a bill of sale When bill of sale alone is not good against third persons. sion, the carrier being the agent of the buyer; but if the vendor claim to exercise the right of stoppage in transitu, while the carof the horse to the plaintiff. The horse sale. Quincy v. Tilton, 5 Greenl. 277 ; was kept in the barn of the mother before State v. Intoxicating Liquors, 61 Maine, and after the sale. She did not live with 520; Kennedy v. Jones, 67 Ib. 538. In her son, but he frequently went to see her Quincy v. Tilton, supra, Mellen C. J. and often saw the horse. It was held said: "When a sale or exchange of artithat the title had not passed as against the cles is legally rescinded on account of fraud creditor of the mother. Gray C. J. said: in one of the parties, the whole thereby "But by the law as established in this com- becomes nullified ab initio; and, of course, monwealth, it was necessary, as against the property sold or exchanged is considsubsequent purchasers or attaching cred- ered as having never been changed, in reitors, that there should be a delivery of spect to the parties themselves or their the property. No such delivery, actual creditors. This principle is not contested. or symbolical, was proved. The buyer On the contrary, where the sale or exdid no act by way of taking possession or change is fairly and honestly made and exercising ownership, and the seller did perfected by delivery, the property is comnot agree to hold or keep the horse for pletely changed in the articles which are him. . . . There was no evidence of de- the subject of the sale or exchange; and livery for the consideration of the jury, if, after this, the parties agree to give up except such as might, be implied from the the bargain. . . . and place things as they execution and delivery of the bill of sale. stood before it was made, this object can That was not enough." In Solomons v. only be effected by what, in legal contemChesley, 58 N. H. 238, trover was brought plation, amounts to a resale or reëxchange; for certain chattels. It appeared that the and whatever was necessary to constitute defendant executed a bill of sale of the the original sale or exchange a legal transproperty to J. Y. & Co. as security for a fer of the property from one of the parties debt due them for liquors illegally sold. to the other is equally necessary to constiSubsequently the plaintiffs, in good faith, tute a legal resale or reëxchange." Beecher in payment of a debt due them, took a v. Myall, 16 Gray, 376; Gleason v. Drew, bill of sale of the same property from J. 9 Greenl. 79; Miller v. Smith, 1 Mason, Y. & Co. having no notice of any defect in 437; Spring v. Coffin, 10 Mass. 31; Warthe vendor's title. The vendees in both den v. Marshall, 99 Ib. 305; Tripp v. cases went through the form of taking Tripp, Rice, 84; Hotchkiss v. Hunt, 49 possession, but the property always re- Me. 213. In Boston Music Hall Ass. v. mained in the custody of the defendant. Cory, 129 Mass. 435, it was held that The jury found that the defendant was "it is not necessary that a Transfer of not estopped to claim the property by as- transfer of stock should be stock. senting to the sale to the plaintiffs. A made on the books of the corporation to verdict was entered for defendant. Fos- be valid against an attaching creditor, ter J. said: Where personal property when not required to be so made by posiis capable of convenient manual delivery tive provision of the statutes or of the charupon sale, a mere bill of sale is not suffi ter." Colt J. said: "It requires a clear cient evidence of title to protect a pur- provision of the charter itself, or of some chaser, as against a vendor, who is not es- statute, to take from the owner of such topped to deny the validity of his sale." property the right to transfer it in accordWhere a sale has been perfected bonâ ance with known rules of the common Formalities fide, if the parties wish to re- law. And by those rules the delivering of upon rescis- scind the contract and revest a stock certificate, with a written transfer sion of bona, fide sale. the property in the vendor, the of the same, to a bona fide purchaser, is same formalities are necessary as in any a sufficient delivery to transfer the title |