#### Alanson Bennett, Administrator, *versus*Abiel Platt.

The plaintiff’s intestate contracted to make a wagon for the defendant, to be delivered in the spring of 1827, and to be paid for in mutton; which the defendant furnished according to the contract. Wheels were selected by the defendant at the inteiLdLs’s shop, but it was not proved that they were used for the wagon. Before , if>3 ¿¡estate’s death, which was in May 1828, the wagon was set up in the yard by his dwellinghouse, and his son, who attended to his business during his last illness, painted it once before and once after his death. A few days before his death, the intestate gave the defendant notice that the wagon was ready, and that he could take it away when he pleased. In November 1827, the defendant put his account, for the mutton into the hands of an attorney for collection, with directions to receive the wagon. The wagon not being, ready when the attorney demanded it, he commenced an action on the account, which he told the intestate should be discontinued if he would deliver the wagon. The intestate’s estate was insolvent, and in November 1828, the attorney, without any directions from the defendant, and not knowing that he had taken the wagon, presented the account for the mutton to the commissioners of insolvency and it was allowed by them. The suit against the intestate was discontinued in 1829. It was held, that the property m the wagon had not vested in the defendant, and that he was liable to the administrator in trover.

Trover for a wagon. It was admitted that the wagon was made by Brown, the plaintiff’s intestate, and that it was taken by the defendant about a fortnight after Brown’s decease, and converted to the defendant’s own use.

H. Baker testified,

that as the agent of the defendant he contracted with Brown for a wagon, which was to be finished and ready for delivery in the spring of 1827, and for which the defendant was to pay Brown 1600 pounds of mutton. Baker went to Brown’s shop and selected wheels for the wagon, and marked them with the defendant’s name. Brown was to have the wagon ironed by J. Keep. Baker delivered to Brown a greater quantity of mutton than was stipulated for, and he supposed that the wagon was to be delivered at Brown’s in Lee. He did not know whether the wheels selected by him were used for the wagon taken by the defendant.

S. Walker testified,

that in April 1828, at the request of Brown’s son, who attended to Brown’s business during his last sickness, he brought the wagon from Keep’s shop, where it had been ironed, to Brown’s dwellinghouse, and that it was set up in the yard. Brown’s son painted the wagon once *569before his father’s death and once afterwards. A few days before the father’s death, which was on May 9th, 1828, the son called on the witness to take notice that he turned out wagon to the defendant, and that it was the defendant’s property ; but no person was present on behalf of the defendant to receive it. Before this the witness had frequently heard the intestate say it was intended for the defendant. When it was taken by the defendant, it was in the yard where it had been set up.

R. Hinman testified,

that three or four days before Brown’s death, after the wagon had been painted once, he wrote, by the direction of Brown, to the defendant, informing him that the wagon was ready and that he could take it away when he pleased.

W. Porter junior testified,

that in November 1827 the defendant left with him the account against Brown for mutton, for collection, and i0directed him to receive the wagon. Porter called upon Brown for the wagon, but it not being ready, he commenced an action on the account. The action „was entered at February term 1828, and continued in court until June term 1829, when it was discontinued. After the action was commenced, he told Brown it should be discontinued, if he would deliver the wagon. Brown’s estate was insolvent, and when the commissioners on the estate met in November 1828, Porter presented the defendant’s account for the mutton, together with the bdl of costs in the action against Brown, which were both allowed. The administrator then informed Porter that the defendant had taken the wagon. Porter then said if the administrator would relinquish all claim to the wagon, he would not present the defendant’s claim before the commissioners ; which offer the administrator refused to accept. Porter had no directions from the defendant to present the account, and he did not know that the defendant had taken the wagon until informed of it by the administrator.

The defendant was defaulted, but if on the foregoing facts he had a right to take and retain the wagon, the default was to oe taken o.ff; otherwise judgment was to be entered for the plaintiff.

48 *

*570*Briggs*and *Porter,*for the defendant,

cited Long on Sales, 148, 149, 168 [see Rand’s ed. 3, 75, 287] ; *Bach*v. Owen, 5 T. R. 409 ; 2 Bl. Com. 448, 449 ; 2 Com. Contr. 210, 230 ; *Langfort v. Tiler's*Administratrix, 1 Salk. 113; Dunmore v. Taylor, Peake’s R. 41 ; 3 Stark. Ev. 1494, note 2, cites *Fonville*v. Casey, 1 Murph. 389 ; 2 Kent’s Comm. 389,400, 401.

Jones and *Byington, contra,*

cited *Young*v. *Austin,*6 Pick. 280 ; *Mucklow*v. *Mangles,*1 Taunt. 318 ; *M'Donald v.*Hewett, 15 Johns. R. 349 ; 3 Stark. Ev. 1640 ; M’Culloch v. *Eagle Ins. Co.*1 Pick. 278 ; *Cooke*v. *Oxley,*3 T. R. 653.

Wilde J.

afterward drew up the opinion of the Court. It appears by the report of the case, that the wagon in question was built by the plaintiff’s intestate for the defendant, in pursuance of a contract, but was not completely finished at the time of the intestate’s death. It had been then painted once, whereas it was to have been painted a second time ; and it was so painted after the intestate’s death. According to the case of *Mucklow v. Mangles,*1 Taunt. 318, the property in the wagon did not vest in the defendent, but remained in the intestate, and on his death passed to the administrator. *Lawrence*J, says, “ that no property, in such a case, vests until the thing is finished and delivered.”1 It is not, however, necessary to discuss the question, whether a delivery in this case was necessary, or whether the wagon was so far finished as that the defendent might have brought trover if the intestate had sold it to another.

By the contract, the wagon was to have been finished in the spring of 1827. It was not done within the time stipulated, and the defendant was not bound to receive it. In the November following the defendant left his account for mutton delivered to pay for the wagon, with an attorney, for collection, authorizing him, however, to receive the wagon. The attorney called on Brown and demanded the wagon, but it not *571being ready, he commenced a suit against Brown, which was discontinued in 1829 ; and after the death of Brown the defendant’s claim was proved before the commissioners of insolvency and was allowed. After these proceedings it is impossible to uphold the defendant’s claim on the wagon. He was bound by the proceedings of his attorney. He had an undoubted right to rescind the contract, and it was rescinded.

The contract was broken by the failure of the intestate to build the wagon within the time stipulated by the parties. This was an executory contract, and not a contract of sale. The defendant’s remedy was an action on the promise for the breach of the contract. It was optional with the defendant afterwards to waive his right of action, and accept the wagon, but not to take it without the plaintiff’s consent. The property in the wagon was clearly in the plaintiff and could not pass to the defendant except by a new agreement or an actual delivery. The taking therefore was tortious and the default must stand.

*Judgment for plaintiff.*

1

 See *Oldfield*v. *Lowe,*9 Barn. & Cressw. 73 ; *Goode*v. *Langley, 7*Barn. & Cressw. 96; *Atkinson*v. *Bell,*8 Barn. & Cressw. 277 ; *Maberley*v. *Sheppard,*10 Bingh. 99; *Sumner*v. *Hamlet,*12 Pick. 82, 83; *Glover r. Austin, (*Pick. 209 ; *Johnson*v. *Hunt,*11 Wendell, 135.