Kelsea v. Haines

In an action o£ trespass for carrying away the plaintiff’s lumber, the defendant justified the taking, as an officer attaching the lumber as the property of one Clark. It appeared that the plaintiff had purchased certain lumber of Clark, a portion of which had been delivered on his land, and some of it used by him; another part of it had been marked by himself, before it was attached by the defendant. It was held, that it was proper matter of fact for the jury to determine whether the lumber had been delivered and accepted by the plaintiff, according to the original contract and intent of the parties, or whether the contract remained incomplete, the lumber not having been measured, or the amount thereof fully ascertained before the attachment.

Trespass, by Jonathan K. Kelsea against Milo E. Haines, for carrying away the plaintiff’s lumber. Plea, not guilty, with a brief statement that the defendant, being a deputy-sheriff, took the lumber as the property of J. L. Clark, on writs in favor of Webster and Blaisdell against said Clark, and, at the time of the taking, the lumber was the property of Clark, and the defendant afterward sold and applied the same on executions issued on judgments recovered in those suits. To prove the lumber in question to be his property, the plaintiff testified, in substance, that he and his partner agreed to do and did a job of joiner work for Clark, for which they were to receive and he to pay such lumber as they wanted. It was understood that the plaintiff was about to erect a house and barn, and that he should want certain dimension timber to be used in them. It was agreed Kelsea should have the lumber on account of the firm, at the going price. Some time afterward Kelsea gave Clark a schedule of lumber for a barn, and another for a house. Clark was to deliver the lumber on Kelsea’s building lot, in Warren village, and he hauled several loads of dimension timber, which, so far as he examined, were got out agreeably to the schedules furnished him by the plaintiff, between June and October 25th. Kelsea was present, and helped unload the first and fourth loads, and also the three last loads, and measured some of the sticks, found them to correspond with the schedule, and told Clark they were good lumber, and he should take them! The plaintiff testified that he understood it was agreed that when Clark had delivered the full schedules, the quantity was to be ascertained and the price fixed, and the amount applied upon Clark’s debt to the plaintiff and his partuer. Their bargain had not been changed. The quantity hauled by Clark had never been ascertained, nor the price fixed, nor any application made upon Clark’s debt. At a time when he desired to build his barn for immediate use, Clark told him to use the timber as he hauled it. He did not use it in buildings, but used some of the boards for covering shingles, &c. He assisted Clark in piling part of the timber as it was delivered, and a part he piled over in Clark’s absence to keep it straight, and to have it where he wanted to use it, and to separate the house lumber from the barn. Clark did not haul the whole schedules, and at the time of the attachment Kelsea did not knowT how much he had hauled, but, by comparing the sticks checked upon the schedules by Clark, he computed the quantity, being 8,947 feet; but the defendant did not take away the whole of it. He had not credited the lumber to Clark, or in any way settled with him for it. He also testified that, at the time of the delivery on his land, he considered the lumber all his, and intended to use all of it. Clark stated in substance the same, and that he supposed that Kelsea, by right, could take and use the lumber as soon as he had hauled it; that as he hauled the lumber, he checked the sticks upon his schedule. He supposed Kelsea was to take his measurement of the lumber, and they might agree upon the price at any time. Kelsea was to use this lumber that season. He wished to use the lumber for the barn before haying, and to have it drawn so that he could use it for that purpose. The understanding he had was that he might use the lumber as fast as it was drawn. He testified that he considered he had no claim on the lumber after it was delivered ; knew Kelsea put some of the boards into his fence, and made no objection, because he considered. Kelsea bad a right to use them. He saw some of tbe boards over Kelsea’s shingles. He understood Kelsea might use the lumber. He did not know that he said so to him in so many words, but it was his impression he told him he might go on and use it. He had not computed the amount at the time of the attachment, and no part of the lumber had been measured by a sworn surveyor. There was other testimony corroborating the testimony of these witnesses. The defendant testified that the plaintiff told him before and on the day of the attachment, that he did not know how much lumber Clark had hauled upon his building spot, he had not examined its quality, he should not take it unless it was according to contract, nor a part, unless the whole was delivered; that no price was agreed upon ; that he should like to hold it, for Clark was owing him and his partner, and had agreed to get out a schedule of lumber in part payment. The plaintiff told him his contract with Clark, but he did not understand the plaintiff that he claimed the lumber as his. The plaintiff denied that he had made to the defendant any such statements, and testified that he told the defendant, upon the occasion of the conversation mentioned by him, that he had bought the lumber and had paid for it, and supposed it to be his. It was admitted the defendant was a deputy sheriff. Evidence relating to the value of the lumber was introduced on both sides, the plaintiff showing it above forty dollars. The defendant asked the court to instruct the jury: (1) That, under the statute of frauds, there was not sufficient evidence to constitute a delivery by Clark, or an acceptance by Kelsea; (2) If, in accordance with the contract, the value of the lumber, after the full schedule had been delivered, the quantity learned, and the price fixed, should have been applied upon Clark’s debt to Kelsea and his partner, the property did not pass until that application was made, and Clark did not waive Ms right to have the application made by neglecting to exact its performance ; (3) The agreement that the value of the lumber should be applied upon the preexisting debt of Clark, cannot be regarded as a payment to Clark, answering the requirements of the statute of frauds; (4) If the plaintiff had said that certain parts of this.lumber were according to the schedule, and he would take them, it was language looking to acts to be done in future, for the purpose of carrying out the contract, and does not constitute an acceptance, much less the actual receipt, which the statute requires. The court did not charge as requested, but instructed the jury that, to constitute a sale, which shall immediately pass the property, it is necessary that the articles should be ascertained, and there should be a price ascertained or ascertainable ; yet that the parties may agree that the property shall pass at once upon delivery, though the quantity or the price is not settled, or the whole quantity is not delivered, or though no settlement or adjustment be made relative to the payment of the price. If the terms of the contract are not agreed, or are in dispute between the parties, the question must always be what was the intention and agreement of the parties in this respect. The jury would, therefore, consider the evidence, and find whether, by the intention and understanding of the parties, there remained any act or acts to be done in order to make a complete and perfect sale; in which case they should return their verdict for the defendant; or whether it was the understanding and intention of the parties that the property of the lumber in question should pass to and vest in the plaintiff, notwithstanding certain things remained to be done to determine the quantity and price of the property, and the settlement of the price; in which case they should find their verdict for the plaintiff. The jury returned a verdict for tbe plaintiff, and the defendant moved that it might be set aside, by reason of said omission to charge as requested, and of the instructions given to the jury. to show that the contract was incomplete, and that no property had legally vested in the plaintiff in the property attached, cited as authorities : Davis v. Hill, 3 N. H. 381; Messer v. Woodman, 22 N. H. 172; Ward v. Shaw, 7 Wend. 404; Ch. on Con. 375, 380, 390 ; Fuller v. Fuller, 29 N. II. 128; Shumway v. Rutter, 7 Pick. 56 ; Lanfear v. Sumner, 17 Mass. 110 ; Macombér v. Darker, 13 Pick. 183; 2 Kent Com., 496; Barrett v. Frichard, 2 Pick. 512 ; Fuller v. Bean, 34 N. H. 290 ; Shepherd v. Pressey, 32 N. H. 49 ; Whitwell v. Vincent, 4 Pick. 449; Chaplin v. Rogers, 1 East 192; Hambleth v. Tollman, 14 Me. 403; Burrows v. Stebbins, 26 Yt. 659. argued that there was a delivery of the lumber into the plaintiff’s hands and possession, upon his own land, in the place stipulated in the previous bargain ; and the jury found there was such an acceptance of the whole or a part of the lumber, as would take the ease out of the statute of frauds. The question now arises as to the correctness of the instructions given by the court to the jury, involving the question of the competency of the evidence, for the purpose of showing an acceptance. We submit they were correct. Macomber v. Parker, 13 Pick. 175 ; Messer v. Woodman, 22 N. H. 180; Oilman v. Hill, 36 N. H. 311; Riddle v. Varnum, 20 Pick. 280; Shepherd v. Pressey, 32 N. H. 49; Chaplin v. Rogers, 1 East 192; Ch. on Con. 390; 2 Pars, on Con. 324.