Mr. Chief Justice Sharkey
delivered the opinion of the court.
Bush brought this action on a bill of exchange, and Stamps pleaded payment. On the first trial the jury could not agree, and there was a mistrial. A second trial was had, and the plaintiff below obtained a verdict. A new trial was granted, and the plaintiff obtained a second verdict, and the defendant moved for another new trial, which was refused; whereupon he excepted to the decision of the court.
The two verdicts may operate as a persuasive reason for refusing a third trial; but they are not a bar to the defendant’s right to another trial. The statute declares that no more than two new trials shall be granted to the same party. We are not called on to say whether this statute would or would not, under all circumstances, compel the party to abide by the verdict on the second new trial, as there was but one new trial granted. On a complicated state of facts, a second verdict is justly entitled to great weight, and should stand, unless manifestly contrary to law. But in this case there is no dispute about facts, and we have only therefore to apply the law to the undisputed facts.
Before we proceed to determine whether the verdict is justified by this evidence, we must dispose of a preliminary question. Counsel for the defendant in error have insisted that as the bill of exceptions does not say this was all the evidence, we should presume that there was sufficient evidence to sustain the verdict, on the principle that a judgment must be presumed to be correct, unless the error is shown. We find this point already settled. In the case of Pickett v. Ford, 4 Howard, 246, the court said, “ The statute requires that the substance of all the testimony given shall be incorporated in a bill of exceptions, which we must presume has been done. It was the right of the plaintiff, as well as the defendant, and also the duty of the court, to see that at least the [267]*267substance of all that was proved on the trial was inserted; and a question of this kind covering all the grounds urged in support of the motion below, could never be decided properly by the appellate court, on an imperfect or garbled statement of the evidence.” This is also a bill of exceptions taken under the statute to the refusal to grant a new trial; and what was there said will apply here, and we must consequently suppose that at least the substance of the evidence is before us. It is not probable that either party would leave out any thing favorable, or that the court would be willing to have its judgment tried on a partial statement of the case. Supposing then that we have all the evidence, does it sustain the verdict?
In all cases of this description, in which the object is to ascertain who shall bear the loss of a chattel, the main point is to ascertain whether there has been an absolute and unconditional change of property? whether the entire right in the thing has passed from the vendor to the vendee? If it has, the vendee being the true owner, must bear the loss, unless there be a stipulation in the contract to the contrary. The question as to what will constitute such an actual unconditional change of property, has been the subject of many adjudged cases, as well as the subject of comment by elementary writers. Chancellor Kent gives us a correct understanding of what will constitute an absolute sale, in these words: “ Where the terms of the sale are agreed on, and the bargain is struck, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer. 2 Kent’s Com. 492. This question was well considered in the case of Pleasants v. Pendleton, 6 Rand. 473. It was a contract for a certain quantity of flour, then in a warehouse. A bill of parcels or list specifying the mill brands, and the number of barrels of each brand, the total number of barrels, and the price per barrel, was exhibited to the purchaser, who agreed to buy. An order was given on the owner of the warehouse for the flour, and a bill was rendered for the amount purchased, and a receipt given for the money, which was paid by delivering a check on the bank. The seller had a large quantity of flour in the same warehouse. The flour sold was not separated from other flour. [268]*268It was not delivered; and that night the warehouse was burned. It will be seen that the two cases are very similar in their prominent facts, and the decision in the one case furnishes a precedent for the other. In deciding the case referred to, the court recognised these principles. That a constructive delivery was sufficient to put the risk on the buyer; that if the sale be complete, though the goods continue in the warehouse under an agreement to be free of storage, the vendee must bear the loss; that where the vendor has no further act to do, to ascertain the quantity, quality, or price of the article sold, the vendee must bear a loss occurring by fire. The court distinguished it from cases of a like kind, where something remained to be done by the vendor, and held that as nothing remained to be done by him, the sale was complete, and the purchaser must bear the loss.
It is no doubt a correct position, that such a delivery as will vest the property absolutely in the vendee, would also be a sufficient delivery within the statute of frauds; we may therefore refer to some of the English decisions under that statute, as authorities on the present question. In the case of Hodgson v. Le Bret, 1 Campbell, 233, the defendant agreed to purchase a piece of Irish linen, and wrote her name on it, but left it with the shopkeeper without any directions, and this was held to be a sufficient delivery. In the case of Anderson v. Scott, id. 235, note, the action was for the non-delivery of wine. The plaintiff went into defendant’s wine cellar and selected several pipes of wine, for which he agreed by parol to pay a certain price; the spills or pegs by which the wine is tasted, were then cut off, and the plaintiff’s initials marked on the casks by the clerk, and the plaintiff took the numbers. Lord Ellenborough held this a sufficient delivery to change the property. When goods are ponderous, and incapable of being handed over, there need not be an actual delivery, but any thing which is tantamount will answer, id. 236, note. In the case of Elmore v. Stone, 1 Taunton, 458, the defendant went to the plaintiff’s stable for the purpose of purchasing two horses ; the plaintiff fixed a price, which defendant refused to give, but afterwards sent word that he would take them, but the plaintiff must keep them at livery for him, and this was held by Lord Mansfield to be a sufficient constructive delivery to pass the property. The [269]*269case of Smith v. Nevett, Walker’s Rep. 370, is an authority in point. The subject of the suit was a cotton gin, for which the money had been paid, and it was held that a constructive delivery was sufficient. The property was held to have passed, because nothing remained to be done by the vendor.
When we apply the principles of these decisions to the facts of this case, we find that an unqualified change of property in the cotton took place. Bush came to Stamps’ house for the purpose of collecting the amount of a bill of exchange. Stamps agreed to pay it in cotton, which Bush agreed to receive. They went to the gin and had seventy-three bales of cotton rolled out and separated from other bales.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Chief Justice Sharkey
delivered the opinion of the court.
Bush brought this action on a bill of exchange, and Stamps pleaded payment. On the first trial the jury could not agree, and there was a mistrial. A second trial was had, and the plaintiff below obtained a verdict. A new trial was granted, and the plaintiff obtained a second verdict, and the defendant moved for another new trial, which was refused; whereupon he excepted to the decision of the court.
The two verdicts may operate as a persuasive reason for refusing a third trial; but they are not a bar to the defendant’s right to another trial. The statute declares that no more than two new trials shall be granted to the same party. We are not called on to say whether this statute would or would not, under all circumstances, compel the party to abide by the verdict on the second new trial, as there was but one new trial granted. On a complicated state of facts, a second verdict is justly entitled to great weight, and should stand, unless manifestly contrary to law. But in this case there is no dispute about facts, and we have only therefore to apply the law to the undisputed facts.
Before we proceed to determine whether the verdict is justified by this evidence, we must dispose of a preliminary question. Counsel for the defendant in error have insisted that as the bill of exceptions does not say this was all the evidence, we should presume that there was sufficient evidence to sustain the verdict, on the principle that a judgment must be presumed to be correct, unless the error is shown. We find this point already settled. In the case of Pickett v. Ford, 4 Howard, 246, the court said, “ The statute requires that the substance of all the testimony given shall be incorporated in a bill of exceptions, which we must presume has been done. It was the right of the plaintiff, as well as the defendant, and also the duty of the court, to see that at least the [267]*267substance of all that was proved on the trial was inserted; and a question of this kind covering all the grounds urged in support of the motion below, could never be decided properly by the appellate court, on an imperfect or garbled statement of the evidence.” This is also a bill of exceptions taken under the statute to the refusal to grant a new trial; and what was there said will apply here, and we must consequently suppose that at least the substance of the evidence is before us. It is not probable that either party would leave out any thing favorable, or that the court would be willing to have its judgment tried on a partial statement of the case. Supposing then that we have all the evidence, does it sustain the verdict?
In all cases of this description, in which the object is to ascertain who shall bear the loss of a chattel, the main point is to ascertain whether there has been an absolute and unconditional change of property? whether the entire right in the thing has passed from the vendor to the vendee? If it has, the vendee being the true owner, must bear the loss, unless there be a stipulation in the contract to the contrary. The question as to what will constitute such an actual unconditional change of property, has been the subject of many adjudged cases, as well as the subject of comment by elementary writers. Chancellor Kent gives us a correct understanding of what will constitute an absolute sale, in these words: “ Where the terms of the sale are agreed on, and the bargain is struck, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer. 2 Kent’s Com. 492. This question was well considered in the case of Pleasants v. Pendleton, 6 Rand. 473. It was a contract for a certain quantity of flour, then in a warehouse. A bill of parcels or list specifying the mill brands, and the number of barrels of each brand, the total number of barrels, and the price per barrel, was exhibited to the purchaser, who agreed to buy. An order was given on the owner of the warehouse for the flour, and a bill was rendered for the amount purchased, and a receipt given for the money, which was paid by delivering a check on the bank. The seller had a large quantity of flour in the same warehouse. The flour sold was not separated from other flour. [268]*268It was not delivered; and that night the warehouse was burned. It will be seen that the two cases are very similar in their prominent facts, and the decision in the one case furnishes a precedent for the other. In deciding the case referred to, the court recognised these principles. That a constructive delivery was sufficient to put the risk on the buyer; that if the sale be complete, though the goods continue in the warehouse under an agreement to be free of storage, the vendee must bear the loss; that where the vendor has no further act to do, to ascertain the quantity, quality, or price of the article sold, the vendee must bear a loss occurring by fire. The court distinguished it from cases of a like kind, where something remained to be done by the vendor, and held that as nothing remained to be done by him, the sale was complete, and the purchaser must bear the loss.
It is no doubt a correct position, that such a delivery as will vest the property absolutely in the vendee, would also be a sufficient delivery within the statute of frauds; we may therefore refer to some of the English decisions under that statute, as authorities on the present question. In the case of Hodgson v. Le Bret, 1 Campbell, 233, the defendant agreed to purchase a piece of Irish linen, and wrote her name on it, but left it with the shopkeeper without any directions, and this was held to be a sufficient delivery. In the case of Anderson v. Scott, id. 235, note, the action was for the non-delivery of wine. The plaintiff went into defendant’s wine cellar and selected several pipes of wine, for which he agreed by parol to pay a certain price; the spills or pegs by which the wine is tasted, were then cut off, and the plaintiff’s initials marked on the casks by the clerk, and the plaintiff took the numbers. Lord Ellenborough held this a sufficient delivery to change the property. When goods are ponderous, and incapable of being handed over, there need not be an actual delivery, but any thing which is tantamount will answer, id. 236, note. In the case of Elmore v. Stone, 1 Taunton, 458, the defendant went to the plaintiff’s stable for the purpose of purchasing two horses ; the plaintiff fixed a price, which defendant refused to give, but afterwards sent word that he would take them, but the plaintiff must keep them at livery for him, and this was held by Lord Mansfield to be a sufficient constructive delivery to pass the property. The [269]*269case of Smith v. Nevett, Walker’s Rep. 370, is an authority in point. The subject of the suit was a cotton gin, for which the money had been paid, and it was held that a constructive delivery was sufficient. The property was held to have passed, because nothing remained to be done by the vendor.
When we apply the principles of these decisions to the facts of this case, we find that an unqualified change of property in the cotton took place. Bush came to Stamps’ house for the purpose of collecting the amount of a bill of exchange. Stamps agreed to pay it in cotton, which Bush agreed to receive. They went to the gin and had seventy-three bales of cotton rolled out and separated from other bales. The seventy-three bales were weighed, and their value calculated at thirteen cents per pound, and the amount was within a few dollars of the amount of the bill, and the overseer was directed to have it hauled to the river bank, (the plantation being on the river,) for Mr. Bush. No money was paid, because the cotton itself was but a payment. In principle it js precisely the same as if the money had been paid by Bush. The cotton was weighed, and set apart, and the calculation made, and Bush acknowledged that he was'paid, except a few dollars. Nothing then remained to be done by Stamps. The terms of the sale had been agreed on, and the bargain struck, and the thing identified and removed from its place of deposit. The only circumstance which is in the least calculated to create any doubt, is that Stamps directed his overseer to have it hauled to the river bank. This seems to have been a mere gratuitous offer. The contract contained no stipulation of this sort, and we cannot presume that it was a part of the contract, and therefore a thing to be performed by Stamps. The previous acts of themselves amounted to at least a constructive delivery; perhaps to an actual delivery. Cotton in bale is a cumbrous article, incapable of being handed over. In contracting to sell cotton, it would be understood to be deliverable at the seller’s gin, unless otherwise agreed. No presumption can therefore arise that a delivery elsewhere was a part of this contract. This was probably regarded by both parties as an immaterial matter, as th'e plantation is on the river, and at all events it can have no weight. The contract was complete without it.
The subsequent declarations of the parties, could not alter the [270]*270legal effect of their contract, unless they had been sufficient to amount to a new obligation, or a discharge of a previous one. Their rights, however, in this respect are balanced; each having acknowledged the loss to be his. Altogether, as the case is presented to us, the law seems to be sufficiently with the plaintiff in error to entitle him to a new trial. On another trial the case may be susceptible of such an explanation as will induce the jury to give another verdict in the same way, and if so, it will no doubt be more satisfactory to the parties.
New trial granted.