#### Alexander Meldrum *et al. versus*Prince Snow.

By a custom among brewers and retailers of beer, as beer cannot be removed in warm weather without injury, the brewer, in the spring, delivers to the retailer such quantity of beer as lie expects to retail in the ensuing season. The barrels belong to the brewer, and are to be returned to him when emptied. The retailer pays for all the beer that he vends in the course of the season, at the price at which it was originally furnished. If any of the beer becomes sour or stale, or is lost by fire or other casualty, the loss falls on the brewer. If any remains unsold at the end of the season, the retailer has a right to return it to the brewer, but the brewer has no right to take it without his consent. Payment is never made in advance. The profits of retailing belong to the retailer, and he bears all losses by bad debts. The brewer’s price of beer never varies. Held, that beer so delivered was not liable to attachment as the property of the retailer.

If the sale of the beer is stopped by the acts of the retailer, his right to retain ceases; and where the beer was attached as the property of the retailer, and the retailer assigned all his special property in it to the brewer, it was *held,*that the brewer had such right of possession as would enable him to bring replevin against the attaching officer.

Replevin brought by the plaintiffs, who are brewers in the city of Boston, to recover of the defendant, a deputy of the sheriff of Suffolk, eighteen beer barrels, each containing about thirty gallons of beer, with their contents, being in the cellar recently occupied by one Klein, in Market street; which the plaintiffs aver to be their property, and that the defendant took and unlawful’y detained the same on the first day of August, 1828.

*449The defendant pleaded as to the beer, that it was the property of Klein, and that he, the defendant, had attached it as such at the suit of Klein’s creditors ; to which the plaintiffs replied property in themselves, traversing Klein’s ownership, and issue was joined thereon.

At the trial, before *Wilde*J., the plaintiffs proved that the beer was sent to Klein in the spring, he being a retailer of beer, and carrying on his business in the cellar where the beer was wnen it was attached by the defendant.

The plaintiffs also proved, that according to the universal usage of trade here, and in other places in this country, the following are the terms upon which retailers are supplied by the brewers. In the spring, the brewer sends the retailer such quantity as the retailer expects to vend, and at a stipulated price, and in barrels belonging to the brewer, which are returned to him when emptied. The retailer pays for all that he vends in the course of the season, at the price at which it was originally furnished. If the beer becomes sour or stale, or is lost by the bursting of the casks, or by fire or other casualty, the loss falls on the brewer. If any beer remains unsold at the end of the season, the retailer has a right to return it to the brewer, but the brewer has no right to take it without his consent. Payment is never made by the retailer in advance, but usually in annual or semiannual settlements, when what has been sold is paid for and the residue is returned or remains a subject for future adjustment. The profits of retailing belong exclusively to the retailer and all losses by bad debts fall upon him. The brewer’s price of beer never varies. Beer cannot be drawn off nor removed in warm weather without injury and great danger of destroying it.

Sowden, a brewer in Boston, who has carried on the business for twenty-two years, testified, that he never considered the sale absolute till the barrel was emptied.

It was testified that the custom was observed by the plaintiffs n their dealings, and that Klein was one of their customers.

The plaintiffs also produced an instrument made and delivered to them by Klein on the first day of August, previously to the service of the writ, as follows : —“ Whereas I have always holden the beer, now in the cellar recently occupied by me in *450the casks furnished by Meldrum & Co., as being of their prop erty unless paid for, and the same being now attached by nn creditors, ought of right, according to our contract, to be de livered up to them ; therefore and for good and valuable con siderations me thereto moving, I do hereby assign and trans fer all my right, title and property therein, unto the said Mel drum & Co., they crediting me in account for what they thus receive.”

Horton, the attesting witness to the assignment, testified that he went with the plaintiffs’ clerk to the defendant, and that the clerk produced this instrument and demanded the beer and barrels, but the defendant refused to give them up.

As to the question, whether the property in the beer was in Klein, the jury were instructed, that if they believed that he took the beer of the plaintiffs on the terms of the custom above stated, the property became vested in him ; that this was in fact a conditional sale, and the beer could be attached as belonging to him, and the only remedy of the plaintiffs would be to re cover of him the price.

The jury found a verdict for the defendant.

The plaintiffs moved for a new trial, because the judge instructed the jury, that the delivery of the beer, upon the terms of the custom proved, constituted a conditional sale to Klein and vested in him the property in the beer, subject to attachment for his debts ; whereas the plaintiffs contended, that such delivery vested only a special property in Klein for certain purposes ; and that the general property remained in the plaintiffs ; so that the beer could not be attached as the property of Klein ; and that by virtue of the assignment to them of his spec al property, they became entitled to the immediate possession, am acquired the whole title, so that the detention defendant, after demand made, was unlawful.

*C. G. Loring*and *E. G.*Loring, insisted on the grounds taken for the plaintiffs at the trial;

and to show that the property in the beer always remained in the plaintiffs, they cited *The Packet de*Bilboa, 2 Rob. Adm. R. 133 ; *The*Venus, 8 Cranch, 253 ; *Delauney*v. Barker, 2 Stark. R. 539 ; *Bayley*v. Gouldsmith, Peake’s R. 56 ; *Hall*v. *Daggett,*6 Cowen, 653; Long on Sales, 109 ; *Troit*v. Wood, 1 Gallison, 443 , *451*Tooke*v. Hollingworth, 5 T. R. 215 ; *Harrison*v. *Alen,*1 Carr. & Payne, 236 ; *Livesay*v. flood, 2 Campb. 83. In regard to third persons, the custom gives notice that the property is not in the retailer. *Ayer*v. *Bartlett,*6 Pick. 71 ; *Barrett*v. *Pritchard,*2 Pick. 512 ; *Patten*v. *Clark,*5 Pick. 5.

S. D. *Ward,*for the defendant.

The plaintiffs and Klein probably intended to make a contract of sale or return, but their contract is essentially different. In a contract of sale or return, the retailer is to return what shall not be sold by him ; here he has the option to return it or not. Until he dissents, the property is in him. The agreement of the brewer to be answerable for casualties, does not prevent a change of the property. *Marsh*v. *Wickham,*14 Johns. R. 167 ; *Atkin*v. *Barwick,*1 Str. 165. The beer could not have been attached as the property of the plaintiffs ; it was therefore attachable as the property of Klein. If Klein was bailee merely and was entitled to retain the beer until the end of the season, the plaintiff had not an immediate right to it, so as to maintain this action. *Gordon*v. *Harper,*7 T. R. 9 ; *Gates*v. *Gates,*15 Mass. R. 310; *Badger*v. *Phinney,*ibid. 359 ; Story’s Pl. 444, note; *Wheeler*v. *Train,*3 Pick. 255.

*Per Curiam.*

The principal question in the case regards the ownership of the beer. Evidence was given at the trial, of a custom among brewers to supply retailers with beer in the manner stated in the report of the judge. It is argued that this mode of dealing is necessary, and it should seem to be so ; for in general the retailer would not be able to purchase a large quantity of beer at once, and it appears that beer must be supplied to him in cold weather, as it cannot be removed in warm weather without injury. The question is, whether the beer is liable to attachment as the property of the retailer. The contract is very similar to that of sale or return in England ; and in the case of some kinds of manufactures such a contract is required, owing to particular circumstances which take them out of the rules of ordinary sales. It is on this ground that contracts of sale or return are held valid ; and it is uniformly considered that in such contracts the property continues in the *452original owner; except in cases under the statute of James, °f bankruptcy, which is not in force in this Commónwealth.

It is objected, that in the contract of sale or return, the article is to be returned, unless sold, but that by the custom under consideration, it may or may not be returned, at the election of the retailer. We are not clear that there is any such distinction ;• nor is there good reason for it. It is consistent with the English law, that the beer shall remain the property of the brewer until the election of the retailer shall be made.1

We place this contract on the same ground as that of sale or return in England, and we are glad to find authorities which sustain us ; but without authorities we should deem it proper to uphold such a contract. Retailers who take beer to sell are often persons of very small property, and the custom appears to be so general and well known, that the retailer would not be supposed to be the owner of the beer ; no injury therefore can arise to creditors of the retailer. And it being beneficial to the community to introduce the use of beer, public policy would justify us in favoring the custom.

It is asked, how shall the beer be attached ; whether as the property of the brewer, or of the retailer. It is not necessary for us to answer this question. There are many cases where chattels cannot be attached as the property either of the general or of the special owner.

An objection is raised in regard to the possession of the plaintiffs in replevin, the possession and the right of possession being here in the retailer. It is sufficient to remark, that when the sale of the beer is stopped by the acts of the retailer, his right to retain ceases ; and further, in the case before us, the general property being in the brewer, and the retailer having assigned all his right in the beer to him, the action may well lie.2

JVeio *trial granted.*

1

 See *Blood*v. *Palmer,*2 Fairfield, 414; *Whitwell*v. Vincent, 4 Pick. (2d ed.) 452, note 1; Long on Sales, (Rand’s ed.) 181, 199, 200; *Sargent*v *Gile,*8 N. Hamp. R. 325; *ante,*159, note 1.

2

 See *Phelps*v. *Willard,*16 Pick. 32.