#### Samuel Flagg *versus*Artemas Dryden Junior.

Where D contracted to build certain machinery for S and to deliver it at a certain time, and F contracted with D to build the machinery and deliver it to S at the time agreed, for which D contracted to pay F a certain price, and the machinery was delivered by F to S after the time stipulated, the delivery having been delayed at S’s request; it was held, that D was liable to F for the price, if D assented to the delay of delivery, or if, knowing S’s request to have it delayed, D did not signify his dissent.

Where in such a case F liad given a bill of parcels of the machinery, to one of his creditors, as security for his debt, but did not deliver the machinery, it was held, that no property in it passed to the creditor ; and therefore that the bill of parcels did not impair F’s claim for the price against D, after the machinery was delivered to S.

The machinery, after the delivery to S, having been levied or sold on execution as the property of F by his creditors, it was held, that the levy and sale did not impair F’s right to recover the price on his contract against D.

A mortgage made by S of the machinery before it was all actually delivered to him, was *held*not to be evidence of his acceptance thereof.

This was an action of assumpsit on a spécial contract between the parties, dated March 9, 1826, by which Flagg agreed “ to build and furnish Dryden, at Southwick’s factory” in Holden, “ twelve power looms for weaving satinet cloth, to be . completed by the first of August next; ” and Dryden agreed to pay Flagg “ for said looms the sum of thirteen hundred and eighty dollars,” and the expense of transportation, one third when the looms were completed, one third in one year after, and one third in two years after, with interest on the two last payments.

The case was tried before *Parker*C. J. At the trial the defendant offered in evidence a similar contract made between him and Southwick, which was an exact transcript of Flagg’s contract with Dryden, and dated the same day.

William Flagg, a witness for the plaintiff, testified that -the delivery of the looms was completed November 18, 1826, at Southwick’s factory ; that he transported them and agreed with Southwick for the transportation. The looms were put up in the factory and used there. This witness afterwards called with the plaintiff, his brother, on the defendant, for payment for the looms. The defendant, on being asked by the plaintiff whether he had done right in delivering the looms at Soutli*56wick’s factory, replied that he had ; but refused to settle, requested the plaintiff to call on Southwick. The plaintiff answered that he had no claim on Southwick. The defendant then proposed to go to Mention and get South wick’s partners to give security-for the price of the looms. The defendant made some objections on account of the looms not being finished and delivered according to contract.

From the evidence in the case it appeared that the looms were made for Southwick, that the defendant had procured the contract, and that he expected to receive a share of the profits, and that he objected to paying the plaintiff, on the ground that the looms were not delivered at the time specified in the contract. It also appeared, that the, defendant admitted that he had carried a message from Southwick to Flagg, stating that he was not ready for the looms.

On the part of the defendant it was proved, that the plaintiff went to Mention for the purpose before mentioned, and that he applied to the persons there with whom Southwick was connected in business, to give their notes for the amount of the contract; which they refused. The defendant’s counsel insisted, from this and other evidence in the case, that the defendant went to Mendon only as a friend of the plaintiff, and also that from the conduct and declarations of Flagg it was apparent that he did not consider the contract with Dryden in force.

Francis Davis testified, that on the 1st of August, 1826, Flagg, who then owed him 700 or 800 dollars, gave him a bill of parcels of the looms, then unfinished, but made no delivery of them ; that in December, 1826, the witness attached the looms in a suit against Flagg, they being then in South wick’s factory ; that other creditors afterwards attached ; the looms however were not removed, but Southwick gave a receipt for them. They were sold on execution in July, 1827, and brought 1200 dollars, which was paid over to the attaching creditors, after deducting the expenses. When the witness took the bill of parcels, he knew that the looms were making for Dryden and Southwick, and expected when they were delivered, to rece’ve his money from them. It was also testified *57that the plaintiff knew that the looms were attached as his propertD

ert Tabitha Dryden testified that she was present at the view mentioned by William Flagg ; that the defendant denied being. accountable, because the looms were not finished in season ; that when the plaintiff asked him if he had done right in delivering them at South wick’s, the defendant answered it was an affair between the plaintiff and Southwick ; that the defendant said, if he did any thing about the looms he would buy them, and that he offered 1200 dollars, which the plaintiff refused to accept.

A mortgage of the looms by Southwick, dated November 13,1826, was admitted as evidence of his acceptance of them; which was objected to by the defendant’s counsel.

The judge instructed the jury, that Dryden’s contract was original and direct with the plaintiff, and that he was not a mere surety for Southwick : That the delivery of the looms, though after the time stipulated, was a sufficient performance on the part of the plaintiff, if received by Southwick, and Dryden assented to the postponement, or, knowing it to be at South-wick’s request, did not dissent: That the bill of parcels to Francis Davis did not transfer the property in the looms to him, or give him any lien on them, as there was no delivery ; and as he considered it only as a means of obtaining his debt through Dryden and Southwick, it formed no impediment to the fulfilment of the plaintiff’s contract by delivering the looms:

That the attachment and proceedings under it did not affect the plaintiff’s right to recover, unless the jury were satisfied that Flagg had consented to rescind the bargain and take back the property in the looms, in which case they would find for the defendant, and that Flagg’s knowing the looms to be attached would not alone constitute a rescindment: That if the property was vested in Dryden or Southwick by a delivery according to agreement, then the officer was a trespasser in attaching the looms as the plaintiff’s.

The jury found a verdict for the plaintiff.

If any of the instructions were wrong, or if the verdict was against the weight of evidence, or if the mortgage of South-wick ought not to have been admitted, the verdict was to be *58set aside and a new trial granted, otherwise judgment to be entered on the verdict.

*Oct. 3d.*

*April term*1828.

*Hoar, Merrick,*and *J. Davis,*for the defendant,

contended that there was not sufficient evidence of an assent on the part of Dryden to the postponement of the delivery. *Garland*v. *Salem Bank,*9 Mass. R. 408. The sale to Davis by Flagg was valid without a delivery, as between the parties. It is unreasonable that Flagg should recover the price of these looms, when they have already gone to pay his debts. He ought, at the utmost, only to recover the difference between the amount realized on the executions and the stipulated price. *Prescott*v. *Wright,*6 Mass. R. 20. The mortgage made by South-wick ought not to have been admitted. Stark, on Ev. 1300.

*J. Davis*and *Mien,*for the plaintiff,

as to the assent ol Dryden to the postponement of delivery, cited *Ward*v. *Winship,*12 Mass. R. 481 ; *Baker*v. *Mair,*12 Mass. R. 121 ; as to the non-vesting of the property in Davis for want of delivery, *Penniman*v. *Hartshorn,*13 Mass. R. 87.

*Per Curiam.*

A majority of the Court are of opinion that the admission of the mortgage deed mentioned in the report, as evidence to prove the acceptance of the looms by Southwick, was incorrect, and for that cause only there must be a new trial. The making of a mortgage by Southwick, it being dated before the actual delivery to him of all the looms, is considered only as his declaration, and does not amount to proof of a fact tending to show an acceptance.

There was sufficient legal evidence for the jury to find Dry den’s assent to the delay of the delivery; and the instruction on that point was right; as also on the effect of the bill of parcels to Davis.1

The Court are also of opinion that the levy of executions on the looms to satisfy debts of Flagg, does not impair his right to full damages for the breach of contract, because the property being in Southwick, he may have his action of trespass against the officer, and the officer his suit for indemnity against the *59creditors, if they agreed to indemnify him ; and they will have a right to *scire facias*against Flagg for new executions upon their judgments.

1

 Between the vendor and the vendee, the mere sale, with the payment of the price, is sufficient to vest the property. *Gardner*v. *Howland,*8 Pick. (2nd ea.) 602, and note 2; *Shumway*v. *Rutter, post,*56. See also as to the sale of unSnished articles, 2 Kent, (3d ed.) 503, and note (g).