also of which it is a part: Davis v. McFarlane, 37 Cal. 634. Growing crops are not unlike ships and cargoes at sea in respect to their delivery, of which delivery cannot be made until they reach port. If delivery be made within a reasonable time after reaching port, the sale is good as against creditors and subsequent purchasers: Joy v. Sears, 9 Pick. 4; Portland Bank v. Stacey, 4 Mass. 661; Buffington v. Curtis, 15 Id. 528. 6. Growing Crops, Delivery of. They are not subject to manual delivery until they are harvested, and therefore until harvested they are not in the possession or under the control of the vendor, within the meaning of the Statute of Frauds: Bours v. Webster, 6 Cal. 660; Visher v. Webster, 13 Id. 58; Pacheco v. Hunsaker, 14 Id. 120; Bernal v. Hovious, 17 Id. 541; Robbins v. Olahan, 5 Duval (Ky.) 28; cited in Davis v. McFarlane, 37 Cal. 634. 7. Growing Crops not Affected by Statute.-A growing crop, while growing, and until ready for the harvest, is also unaffected by the fifteenth section of the statute in relation to the sale of goods and chattels in the possession and under the control of the vendor: Davis v. McFarlane, 37 Cal. 634. 8. Growing Crops, Sale of.--Contracts for the sale of growing periodical crops are not within the Statute of Frauds, and therefore need not be made in writing: Davis v. McFarlane, 37 Cal. 634; citing Marshall v. Ferguson, 23 Cal. 66. So, a contract to deliver corn not yet gathered or husked, as it requires labor to be expended on the subject matter to prepare it for delivery, is not within the Statute of Frauds: Rentch v. Long, 27 Md. 188; see Stephens v. Santee, 51 Barb. 532. It is not the policy of the law to interdict sales of growing crops by declaring them absolutely fraudulent, on the mere ground that the seller retains, as he must necessarily do, the possession of the property until it shall become susceptible of actual delivery: Davis v. Mc Farlane, 37 Cal. 634; citing Whipple v. Foot, 2 Johns. 418. 9. Liability of Carrier.-Upon demand by the vendor, while the right of stoppage in transitu continues, the carrier will become liable for a conversion of the goods, if he decline to re-deliver them to the vendor, or delivers them to the vendee: Reynolds v. Railroad, 43 N. H. 580; Markwald v. His Creditors, 7 Cal. 213; Blackman v. Pierce, 23 Id. 508; O'Neil v. Garrett, 6 Iowa, 480; Jones v. Earl, 47 Cal. 630. And a notice, without demand, to re-deliver, is sufficient to charge the carrier, if he is clearly informed that it is the intention and desire of the vendor to exercise his right of stoppage in transitu: Reynolds v. Railroad, 43 N. H. 580; Litt v. Cowley, 7 Taunt. 169; Whitehead v. Anderson, 9 M. & W. 518; Bell v. Moss, 5 Whart. 189. And notice to the agent of the carrier, who in the regular course of his agency is in the actual custody of the goods at the time the notice is given, is notice to the carrier: Brier v. Red Bluff Hotel Co., 31 Cal. 160; cited in Jones v. Earl, 37 Cal. 630. 10. Measure of Damages. In an action against a purchaser for not receiving goods according to contract, the rule of damages is the difference between the contract price and the market value at the time of the breach of the contract: Haskell v. Henry, 4 Cal. 411. 11. Partial Rescission.-M. sold B. eight bags of wool, separately marked and kept as one lot of a particular kind, at one dollar a pound, by one bill of parcels, B. having first opened some of the bags. Part of the wool in one bag was of a different kind, and B. without returning the bag, sent back the contents, which M. refused to receive: Held, that B. could not partially rescind the contract, and that a custom in such cases to return the bale found different was inadmissible, the bag not having been returned. But that B., on proving a warranty and breach, could recoup the difference between the actual value and the value if it had corresponded to the warranty: Morse v. Brakett, 98 Mass. 205. 12. Rescission of Contract. chattel, the property must be returned, unless it be valueless to both parties: 23 Pick. 283; Christy v. Cummins, 3 McLean, 386; Henckley v. Hendrickson, 5 Id. 170; Garland v. Bowling, Hempst. 710. To constitute an actual rescission of the contract, a re-delivering of the goods is necessary: Miller v. Smith, 1 Mason, 437. To rescind a contract for the sale of a 13. Ship and Cargo, Delivery of. If the delivery of a ship and cargo be make within a reasonable time after reaching port, the sale is good as against creditors and subsequent purchasers: Joy v. Sears, 9 Pick. 4; Portland Blc. v. Stacy, 4 Mass. 661; Buffington v. Curtis, 15 Id. 528. 14. Sales Defined.-A contract to deliver twenty sheep in four years for ten delivered now, is a sale, and not a bailment: Bartlett v. Wheeler, 44 Barb. 162. The distinction between a sale and an exchange explained: Preston v. Keene, 14 Pet. 133. The delivery, by a debtor to his creditor, of property, the value of which was to be applied upon the debt in good faith, is a sale. If a standard or criterion is agreed upon by which the value should be fixed, and the amount realized by that criterion was the amount to be applied in part satisfaction of the debt, that is fixing the price sufficiently to make the sale valid: Dixon v. Buck, 42 Barb. 70. 15. Statute of Frauds.-A contract for the sale of goods, chattels, or things in action at a price not less than two hundred dollars, is invalid unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent, or unless the buyer accept or receive part of such goods or chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of his sale, of the kind of property sold, the terms of sale, the price, and the names of the purchaser, and the person on whose account the sale is made, is a sufficient memorandum: Civil Code, sec. 1624. In determining whether the Statute of Frauds applied to a sale of goods, delivered to one person at the request of another, the true test is whether there is any liability of the vendee to the vendor; for if there is, then the promise of the guarantor is collateral, and must be in writing. Where the sale was entered on the vendor's book, as "sold A. B.; C. D. security," and the bill was made out thus: "A. B. (through C. D.) bought," etc., and it was shown that the vendors had urged C. D. to get security from A. B., and offered to pay him for so doing: Held, that C. D. could not be regarded as the principal debtor: Read v. Ladd, 1 Edm. 100. 16. Stoppage in Transitu-This is a right which the vendor, in goods sold upon credit, has to recall them or retake them upon the discovery of the insolvency of the vendee, before the goods have come into his possession, or any third party has acquired bona fide rights in them. And it continues so long as the carrier remains in the possession and control of the goods, or until there has been an actual or constructive delivery to the ven dee, or some third person has acquired a bona fide right to them: Jones v. Earl, 37 Cal. 630. A consignor of property in transitu has a right to direct a change in its destination, and its delivery to a different consignee: Strahorn v. Union Stock Yard, etc., Co., 43 Ill. 424. A vendor who had constructively delivered iron lying at his furnace, by pointing it out to the vendee and charging it to him in his books, receiving the vendee's notes for the same, may retain the same for the price, if, while it is still in his custody, and said notes are unpaid, the vendee becomes insolvent: Thompson v. Baltimore and Ohio R. R. Co., 28 Md. 396. 17. Tender. The refusal of a buyer to take the goods which he has contracted to buy, dispenses with any necessity on the part of the seller to make a tender of them: Calhoun v. Vechio, 3 Wash. C. Ct. 165. Under a contract for the sale and delivery of oats " within thirty days," the obligation to receive is as strong as the obligation to deliver. And the contractor is not bound to deliver after the contract has expired, but if he does it will be at the contract price: Gibbons v. United States, 2 Ct. of Cla. R. (Nott & H.) 421. A complaint on a contract in which the defendant agrees to purchase a given quantity of hay, then in a stack, from the plaintiff, and pay a fixed sum therefor at a fixed time, and the hay to be weighed at the stack, should aver, if the hay has not all been delivered, a readiness or offer on the part of the plaintiff to deliver: Barron v. Frink, 30 Cal. 486. Before an action can be maintained for defendant's failure to accept and pay for property which he agreed to purchase at a future time, a tender of the property and demand of payment must be made: Hagar v. King, 38 Barb. 200. A tender of warehouse receipts for grain issued by responsible parties is a sufficient tender of the grain, in Chicago, unless objected to by the other party at the time: McPherson v. Gale, 40 Ill. 368. 18. Tender Waived.—After a sale at buyer's option, within a certain time, notice by the buyer before the time has expired that he will not accept goods within or at the end of such time, waives a tender by the seller: McPherson v. Walker, 40 Ill. 371; see White v. Dobson, 17 Grat. (Va.) 262; Millingar v. Daly, 56 Penn. St. 245. 19. Tender and Demand.—Under a contract for the purchase of goods, where the right of property is not passed by the contract, the buyer is not bound to accept the articles when tendered, unless they correspond in quantity with what was bargained for: Add. on Contr. 238; Reimers v. Ridner, 17 Abb. Pr. 292. The contract is entire, and calls for an entire performance: 17 N. Y. 173; Catlin v. Tobias, 26 N. Y. 217; see, also, Polhemus v. Heiman, 45 Cal. 573. 20. Valid Sale.-To constitute a valid sale of a chattel, so as to change the property therein, an agreement as to price and delivery of the chattel is requisite, except in case of a vessel at sea, when the transfer is effected by the bill of sale: Harper v. Dougherty, 2 Cranch C. Ct. 284. And also of growing crops: Sec ante, notes 5-8. A valid sale may be made of personal goods which are out of possession, and the sale will be of the thing itself, and not of a chose in action: The "Sarah Ann," 2 Sumn. 206. 21. Void Sale.—A sale in violation of a statutory prohibition, is void, and no action can be maintained upon it. So of a sale contravening a license law: Best v. Bauder, 29 How. Pr. 489. When the substance of the thing sold is not in existence at the time of the sale, such sale is void: Bertram v. Lyon, 1 McAll. 53: affirmed 20 How. U. S. 150. No. 288. [TITLE.] ii. The Same-on Contract made by Broker. The plaintiff complains, and alleges: I. That on the ... day of...... day of........, 187., the plaintiffs and defendants entered into an agreement, by the hand of A. B., a broker duly authorized to make the same, both on behalf of the plaintiffs and of the defendants, of which the following is a copy [copy it]. II. That at the time of making said contract, the defendants paid to the plaintiffs the sum of........dollars stated therein. III. That the plaintiffs were at all times, within said.......... days, ready and willing to comply with the terms of said contract on their part, and within the........days mentioned in said contract, to wit, on the.... day of........ 187., at.... they tendered the said property to the defendants, and demanded payment of the balance of the price thereof. ........ IV. That the defendants refused to receive said property, or pay the balance of the price therefor. V. That they have not paid the same. [Demand of Judgment.] 22. Acceptance.—There must be an acceptance, as well as a delivery, to take the thing out of the statute; but the acceptance may be by agent of the buyer: Outwater v. Dodge, 6 Wend. 397. But the acceptance of a mere shopboy is not sufficient: Smith v. Mason, Anth. N. P. 225. An acceptance of goods bearing a name different from the one used in the sale note, by a subvendee of part of goods sold, does not conclude the vendee as to the whole contract: Flint v. Lyon, 4 Cal. 17. No. 289. iii. The Same-On Promise to Pay by a Good Bill of Exchange. The plaintiff complains, and alleges: I. That on the .... day of ..... 187., at the plaintiff and defendant mutually agreed with each other as follows: The plaintiff agreed to sell and deliver to the defendant forty tons of iron, at the price of .per ....... hundred weight, on the....day of... . . . . ., 187., at.. and the defendant then promised the plaintiff to pay him for said iron, by a bill of exchange at three months' date, on delivery of said iron, and that such bill should be satisfactory to the plaintiff. at II. That afterwards, on the ... day of 187., .., the plaintiff delivered the said quantity of iron to the defendant, upon the terms aforesaid, amounting to .... dollars. III. That the plaintiff, on the .. day of... 187., at demanded of the defendant payment said iron, by such bill of exchange, and been since, always ready and willing to IV. That the defendant has not paid the plaintiff the price of the iron, by a bill of exchange payable in three months from the date thereof, which was satisfactory to the plaintiff, or otherwise, according to said agreement. [Demand of Judgment.] No. 290. iv. The Same-For not Returning Goods, or Paying for them in a [TITLE.] The plaintiff complains, and alleges: I. That on the....... day of... 187., at.. the plaintiff, at the request of the defendant, delivered to him [describe the property], of the value of .... dollars, upon the condition and consideration that the defendant would purchase the same for ...... .... dollars, or return the same to the plaintiff within a reasonable time, which the defendant then and there agreed to do. II. That the plaintiff duly performed all the conditions of said agreement on his part. III. That a reasonable time for the defendant to purchase and pay for said goods, or to return the same to the plaintiff, has elapsed before the commencement of this action. IV. That the defendant has not purchased said goods or paid for them, nor has he returned the same to the plaintiff. [Demand of Judgment.] 23. Alternative.-A contract in the alternative should be so set forth: Hatch v. Adams, 8 Cow. 35; Stone v. Knowlton, 3 Wend. 374; People v. Tilton, 13 Id. 597. And an averment of demand of one of two things, when the option of the defendant was in the alternative, is not sufficient: Lutweller v. Linnell, 12 Barb. 512. |