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Coit v. Houston.

equivalent to an actual performance, and entitle the vendor to the price, and the vendee to the possession, of the article which was the subject of the contract. An omission or neglect to accept the article when duly tendered, is also equivalent to a refusal, and will subject the party in default to the like consequences. These appear to me to be plain principles, founded in equity, and supported both by the civil law and the authorities in our own law. But on the acts in this case, two other questions arise :

1st. Whether there was a competent or legal tender of the coal by the defendant ? and

2d. Whether, if the tender was sufficient, he has not abandoned his right to demand the price for which they were sold, and is entitled only to an indemnity for the diminution of value?

With regard to the first question, it appears that the coal, at the time of the tender, remained in the defendant's coal yard, mixed with other coal, and not separated from them. If they had been separated, he would have done every thing he could to effect a delivery. I have no doubt, that in relation to a cumbrous article, it was sufficient on his part, to offer to deliver, as the plaintiffs should direct; for, from its nature, it was not susceptible of any other tender. But still, it may be questioned, whether the defendant did all that was necessary, and in his power to do. He was to deliver a precise quantity, and of a certain quality, according to the agreement. I am inclined to think that he ought, in strictness, to have separated the quantity sold, in order to make a specific tender, and to ascertain that it corresponded with the quality contracted for. For want of this, it was left to calculation, and subject to conjecture and uncertainty, whether a sufficient quantity of the like quality was to be found in a promiscuous heap, and the purchaser was not bound to submit to the risk of that *uncertainty. He was [*254) entitled to receive a particular quantity, of a specified nature, and unmixed with other coal. Although we have no direct authority in our own or the English courts, to this

Coit v. Houston.

point, it appears to me to consist with reason; and by the civil law it is established, that when provisions or other commodities are sold by the bulk, for a gross price, the sale is perfect, for it is known with certainty what is sold; but if the price is regulated at the rate of so much for every piece, pound or measure, (as in the present case,) the sale is not perfect, except as to so much only as is actually counted, weighed or measured; for, till then, it is not known with certainty what is sold. (Domat, b. 1, tit. 2, s. 4, art. 7.)(c) The like principle is adopted in the Scotch law, (2 Ersk. 481,) and the reason on which it is founded appears to me correct. If, therefore, the tender be insufficient, it follows that the defendant's plea cannot, on any ground be maintained.

2. But admitting the tender to be sufficient, the second question is, whether the defendant has not waived his title to demand the full price of the coal ? This proceeds on the idea, that he had an undoubted right to deliver the coal, at the stipulated price, and that the plaintiffs were bound to accept them. In good faith they could not refuse, nor could they, by their own act, in any way deprive him of the full benefit of his contract.

Without stating the evidence under this head more at large, it unequivocally appears, that no part of the coal, was, in fact, at any time, delivered ; that they remained in the defendant's coal yard, mixed with other coal, from which

they were never separated, and that finally, the [*255] *defendant removed from the yard all the coal that

remained amounting to upwards of 100 chaldrons, which were either sold or disposed of by him, since it is not pretended that any of them were kept for the plaintiffs. I

(c) (Old note.] Though it is true, in such cases, that the contract of sale is not perfect or complete, until the goods are counted, weighed or measured, so as to change the property, and put the goods at the risk of the vendee, yet the contract of sale is so far complete and existing, as to give the vendee an action for the delivery of the thing, on tendering the price, and the vendor his action for the price, on tendering the delivery of the thing sold. (See Pothier, Contrat du Vente, part 4, No. 308, and 6 East, 625.)

Coit v. Houston.

think the circumstance of the plaintiffs' having previously, on the 1st February, offered to sell to Mr. Dodge the coal of the cargo of the ship New York, saying, that they were obliged to take them back, cannot, in opposition to this evidence, be considered as any proof of their having actually been delivered or received by the plaintiff's. Allowing that circumstance its utmost weight, it is evidence only of a constructive, and not an actual delivery.

It is therefore certain, that the contract was never carried into effect ; that the accord was never, in fact, executed, and, of course, that the defence is not maintained, unless it be on the ground of the tender, and refusal to accept. I consider it as equally clear, that by force of the contract alone, which was merely executory, the property was not changed; but on making the tender, if that was competent, the defendant had an election to consider it changed, and to become the bailee for the plaintiffs, or to affirm the property to continue in himself, and demand the difference between its actual value and the price agreed upon. If he elected to consider the property changed, it would remain in his possession at the charge and risk of the plaintiffs, and subject to their direction. He could not, in the character of bailee, dispose of it for his own benefit. The moment he did so, he treated it as his own, and affirmed the property to continue in himself, and could only demand the difference between the value and the price which was stipulated. The same rule prevails in the civil law, (1 Domat, tit. 2, s. 4, art. 7,) by which it is declared, " that if, in default of payment of the price, the seller finds himself obliged to detain or take back the thing sold, and its value be diminished, the buyer will be bound to indemnify the seller for this diminution, as far as the price which was agreed on amounts *to.” “And this rule,” [*256) it is added, " is a consequence of the nature of the contract of sale, for the sale being perfected, the full price is due, whatever change inay happen to the thing sold." I consider this doctrine as recognized in our own courts, in the case of contracts for stock, and particularly in the case of VOL. III.

42

Coit v. Houston.

Radcliff f. Heermance v. Yeomans, and it appears to me to prescribe the just and rational rule on the subject.

I therefore think that the defendant, by the sale or disposition of the coal subsequent to the tender, determined his election to consider the property as his own, and cannot afterwards demand the full price for which they were sold to the plaintiffs. He cannot retain the whole property, and at the same time demand the whole price. He is entitled to recover, in damages, a sum equal to the difference in value only, and, of course, the verdict which allows him the whole price, ought, in my opinion, to be set aside. It is unnecessary to say whether such damages could be set off in the present action.

Kent, J. Without examining particularly all the questions raised, I think this case may be decided upon this, single point, whether there was evidence of a satisfaction received, or performance tendered, sufficient to warrant a verdict.

There can be no doubt of the law, that an accord executory is no bar, and, on the other hand, that an accord executed is a satisfaction. (2 Hen. Black. 318, 319.) So if a contract be to pay money, and by an accord there be given other things, as a horse, or gold ring, in satisfaction, it will be good. (9 Co. 79, a. b.) Again, if an accord be executory, in the first instance, and be afterwards executed at a future day, it is then good. The case in Roll. Abr. (tit. Accord, 129, pl. 14,) is to this effect: “ If, as the case states, an accord be, that the defendant will do a certain thing at a future

day, in satisfaction of the action, and he does it at [*257] the day, this is a good bar 10 *the action, although it

was executory at the time of the accord made, since he hath accepted it in satisfaction."

In the present case, there was evidence that the coal, was ready to be delivered to the plaintiffs, in pursuance of the agreement which they had accepted; that it was generally of the quality specified, and that there was a sufficient quantity ready; that between the 25th and 30th December, 1800,

Coit v. Houston.

that is, immediately after the agreement was made, the defendants repeatedly offered the coal to the plaintiffs, and they said, at one time, they would call the next morning and look at the coal, and at another time, that they would call and bring away the coal, and send a person to examine it; that, afterwards, on the first of February following, they offered for sale the coal of the cargo of the ship New York, saying they were obliged to take it back.(d) From these facts, the jury might inser that the defendant had performed the agreement upon his part, by an acceptance on the part of the plaintiffs; and it may be held that the plaintiffs were properly concluded or estopped by their own declarations made at the time of the offer, and their act in pursuance thereof, from denying an acceptance of the coal.

Upon this ground alone, the verdict may be permitted to rest. The justice of the case is clearly with the defendant. The case shows the many uniform and sincere efforts on the part of the defendant, to fulfil the agreement which he had made with the plaintiffs, and it shows also efforts on the past of the plaintiffs, to avoid a performance of the agreement they had accepted from the defendants.

If, therefore, we find declarations and acts of the plaintiff's, at one time, sufficient to form a basis for a conclusion against them, a jury were well warranted to lay hold of *those declarations and acts, and bind the [*258] plaintiffs to them.

It is unnecessary, perhaps, to discuss the rights of the parties as to the coal, in consequence of subsequent waste or loss of them, as they lay in the yard, or in consequence of the subsequent sale of the residue of them by the defendant after the suit was bronght. In the view I have taken of the case, the defendant became trustee to the plaintiffs, for the sase keeping of the coal.(e) The modification and contingencies under which the plaintiffs accepted of the coal,

(d) (Old note.) See Chaplin v. Rogers, 1 East, 192.
(e) (Old note.) See Pothier, Contrat de Vente, p. 2, c. 1, s 3.

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