Hussey v. Thornton

If A contracta to sell certain goods to B on a credit, with condition that B shall furnish a surety for the price, and delivers the goods without such surety furnished, but declaring that he should not consider them as sold until the security should be given, the property remains in A notwithstanding the delivery.

Replevin for seventy-seven boxes of candles, which the defendants, as officers, had attached as the property of Todd and Worthley, at the suit of certain of their creditors.- Upon trial at the last October term in this county, before Thatcher, J., it was agreed that the demands of the said attaching creditors were just, and existed before the making the after-mentioned contract between the plaintiffs and the said Todd and Worthley. It appeared in evidence that, in the month of February, 1807, the plaintiffs, then being the undisputed owners of the said candles, agreed to sell them to Todd and Worthley on credit, at a price fixed on by them; but, doubting their responsibility, said they would not deliver them the candles without having an endorser or security. A short time after this conversation or contract, Captain Howard, master of the said Todd and Worthley’s vessel, then lying in Portland, on board of which the said candles were intended to be laden, called at the plaintiff’s store in said Portland, and inquired if said Todd and Worthley had any candles there designed to be put on board said vessel; and being answered in the affirmative, and told that they were ready whenever he wanted them, said he should send for them immediately. He accordingly sent a dray-man, to whom the plaintiffs delivered the candles, and who carried them to the wharf by the side of said vessel. The plaintiffs said nothing to Hoioard, when he was at the store, nor to the drayman when he took the candles, respecting any condition attached to the contract. After the candles had been carried to the wharf, and a part of them received on board the vessel, jV. Winslow, one of the plaintiffs, came upon the wharf, and informed Captain Howard that he should not let the candles be put on board the vessel, unless he had an endorser or security. Upon the captain’s answering that he had no concern in that particular, but presumed that an endorser would be furnished, Winsloiv said that he would deliver the candles, but that he should consider them as the property of himself and his * partner, until they should have security. He [ * 406 ] then left the wharf, and the candles were afterwards laden on board the vessel. About four days after this transaction, they were attached by the defendants, as the property of Todd and Worthley. There was no evidence that the defendants knew any of the preceding circumstances relative to the contract for and delivery of the candles. There was some evidence, tending to show a confession of the plaintiffs that they had obtained security for the candles previously to their delivery. Upon this evidence, the judge directed the jury that, if they believed the plaintiffs to have obtained security before the delivery of the candles, the verdict ought to be for the defendants; but if they did not find that fact, then the plaintiffs were entitled to a verdict in their favor. A verdict being accordingly found for the plaintiffs, the counsel for the defendants filed exceptions to the said direction of the judge, and moved for a new trial on the ground of those exceptions; which motion came on now to be argued.