#### Leonard Coleman, *Joseph*Lambert, Conrad W. Faber and Herman Stolterfoht *versus*Israel G. Collins and Edward K. Collins.

A mistake in the declaration, as to the Christian name of a *plaintiff,*is not a ground of nonsuit at the trial; and such mistake cannot be taken advantage of, except by a plea in abatement.

A conditional sale of property, accompanied by a delivery of it to a *third person,*who is to hold.the same, as the common agent of the contractmg'parties, until the terms of sale are complied with, will not vest the title to the property in the purchaser, until the condition precedent is fulfilled.

The plaintiffs, through B., an agent, agreed with R. & C., to advance a sum of money sufficient to cover the first cost of a quantity of turpentine, upon condition, that the turpentine, when purchased, should be shipped and consigned to them at London, “freight free,” by the bills of lading: R. & C. acceded to the terms, and a quantity of turpentine was purchased by B., the agent, and R., one of the contracting parties, and put on board a ship which R. & C. had chartered of the *defendants*for a voyage to London and back. It was agreed between B,, the agent, andR. & C., that the turpentine should not become the property of the latter, until they had produced bills of lading therefor, signed *“*freight free;” and upon these conditions, B., the agent, paid for the turpentine, with money received of the plaintiffs; put it on board the ship, taking receipts therefor in his own name. The master of the vessel, with the approbation of the defendants, refused to sign bills of lading for the turpentine, “freight free,” contending that they had a lien on it for the freight money mentioned in the charter-party. The contemplated voyage was, by this means, broken up, and the *defendants*took the turpentine out of the vessel and sold it.

Held, that R.&C., not having complied with the condition upon which the turpentine was to become theirs, had no title to the property; and as the plaintiffs had *paid*for the turpentine and received possession of it through B., the agent, they were entitled to maintain frnier for the conversion of it by the defendants.

Held, also, that the turpentine, under the circumstances of the case, was not put on board the ship under the charter-party, and that the defendants, therefore, had no *lien*on the property for their *freight.*

Trover, to recover of the defendants the value of 332 barrels of turpentine. This cause, and the preceding one of *Van Bus-kirk v. Purinton*and these defendants, originated in the same transaction; and to avoid unnecessary repetition, as well as *570for a more correct understanding of the facts connected there- . with, reference may be had to that case.

The cause was tried before Mr. Justice Oakley, and at the trial, Blood was called as a witness by the plaintiffs. He testified, that in the early part of the month of December, 1829, he was informed by D. H. Robertson, that he was negotiating for the charter of *the*ship Mary, for a voyage from New-York to London and back, and his assistance in procuring a cargo for her was desired. That he suggested to Robertson the plan of shipping a quantity of turpentine to London, and told him that he (the witness) could, as he thought, procure an advance of money *upon certain terms,*by which the cargo might be purchased. Robertson yielded to the suggestion, and agreed to purchase 1500 barrels upon the terms proposed.

Blood then called' upon Faber, one of the plaintiffs in this cause, who resided in New-York, and one of the firm of Coliman, Lambert & Co., of London, to know whether he would advance the funds necessary for the purchase; and Faber finally agreed to make such advance, upon condition that the turpentine should be shipped, when procured, to C. L. & Co., at London, and consigned to them *“*freight free,” by the bills of lading. This proposition being communicated to R., was assented to by him, and he then informed Blood that he had already contracted with Van Buskirk, and with Mitchell &. Bleecker, of New-York, for 'the purchase of two parcels of turpentine, which they were expecting to receive from North Carolina, and that he had referred them to him (Blood) as the *broker*in the transaction, who would pay for the turpentine on *its*delivery.

When the turpentine was received, Mitchell & Bleecker gave notice of its arrival to Blood, and afterwards delivered to him the 332 barrels in question, he having agreed to pay for them on *delivery.*Blood put the turpentine on board the ship, and took receipts therefor in his own name.

As soon as the turpentine was delivered, M. & B. sent their bill for it to Blood, who paid- the amount with money received by him of Faber for that purpose.

*571Blood further testified, that he acted in the transaction as the agent both for Faber and Robertson: that he was to receive keep possession of the turpentine in *Ms own name,*until Robertson’s agreement was complied with; and the turpentine was not to become the property of Robertson until the bills of lading stipulating for its delivery, “ freight free,” to C. L. & Co. were procured.

After the turpentine was put on board the ship, Blood called upon the defendants, and upon Purinton, the master, for the bills of lading, which had been stipulated for with Robertson ; but the master, with the approbation of the defendants, refused to sign any, *unless made subject to the charter-party.*Blood then made various propositions to the defendants and the master, and finally offered to accept bills of lading, filled up at the current rate of freight between New-York and London. All these propositions were rejected, and Blood then, by the direction of Faber and in the name of the plaintifls, demanded of the defendants, and also of the master, the 838 barrels of turpentine in question; but they refused to deliver them up, insisting *that they had a lien upon them for the freight specified in the charter-party.*

The *defendants*afterwards took the turpentine out of the ship and sold it, without the consent of any of the other parties having a claim upon it, or an interest therein.

It also appeared from the testimony of Mitchell, (who was called as a witness by the defendants,) that Blood had communicated to him, before the turpentine arrived from North Carolina, the fact that Faber was to advance the money for it, under an arrangement made with Robertson for that purpose. But the *agreement*as to the *purchase*was made with Robertson, and the bills for the turpentine were made out in *his*name, and sent to Blood for payment. All the circumstances, however, relating to the manner in which the turpentine was to be paid for, were understood by Mitchell & Bleecker, while it was in the possession of Blood, and before payment was received by them.

The plaintiffs, in the course of the trial, for the purpose of *572showing who composed the house of Coliman, Lambert & Co., and for the purpose of showing a joint interest in themselves, called one of their clerks as a witness: and it appeared by his testimony, that the individuals associated in that firm, were Leonard Coliman, *John*Lambert, Conrad William Faber and Herman Stolterfoht. The witness also stated that there were several brothers bearing the name of *Lambert,*but no person by the name of *Joseph*Lambert was known to him.

The counsel for the defendants, upon these facts, moved for a nonsuit, upon the ground, first, that the house of Coliman, Lambert & Co., was not composed of *these*plaintiffs ; *Joseph*Lambert, being the person named in the declaration, whereas *John*was the actual partner.

Secondly, because the plaintiffs had failed to show any title to the property in themselves. This motion was overruled by the presiding Judge, and the counsel for the defendants excepted to his opinion.

The defendants on their part then gave the charter-party in evidence, for the purpose of showing their right to detain the turpentine, and called the mate of the ship as a witness. He testified that after the turpentine was sent on board, Robertson and Candler came to the vessel and gave several directions relative to it, and appeared to be, so far as the witness observed, its real owners ; no other person seemed to have any interest in it, and he supposed the turpentine had been sent on board by them. The master refused to sign the bills of lading because they contained the clause “ freight free,” and the captain intimated to the person who presented them, that, if he signed such bills, *he*might be prevented from receiving his freight. No other cargo, except the turpentine and a small quantity of peppermint, was put on board the ship, although she continued ready to receive it until the 23d of January ; when the witness understood that Robertson and Candler had refused to furnish any more cargo, and had abandoned the voyage. The turpentine was then taken out of the ship by the defendants.

The witness signed the receipts for the turpentine in the name *573of Blood, who delivered the turpentine to him, but he did not know that Blood was the agent of the plaintiffs, or that he had any interest in the transaction of any kind.

After the value of the turpentine had been shown, and all the facts were ascertained, the counsel for the defendants again moved for a nonsuit; but the motion was denied by the presiding Judge, who recommended that a verdict should be taken in favor of the plaintiffs, subject to the opinion of the court upon a case to be made. This being assented to by the counsel for both parties, the jury returned a verdict in favor of the plaintiffs for seven hundred and ninety dollars and sixty-one cents damages, and six cents costs.

The cause was now argued by *J. Prescott Hall,*for the plaintiffs, and by *Mr. G. Clark*and *Mr. Slosson,*for the defendants.

For the plaintiffs it was contended, I. That the mistake in the Christian name of the plaintiff, Lambert, was no ground of non-suit, and that such mistake could only be taken advantage of by plea in abatement. [6. *Mau. & Sel.*45. 2 *Brod. & Bing.*34. 1 *Bos. & Pul. p.*40, 645. 1 *Saunders on Plead. & Ev. p.*11. 1 *Chit. Plead.*441. *Com. Dig. vol.*1, *p.*61. *Abatement, c.*19. *f.*18. 4 *Cow. R.*157. *Arch. Prac.*305. 1 *Tidd’s Prac.*452. The counsel for the defendants assented to the correctness of this proposition, on the argument, and all objections upon this point were waived by them.]

II. That the turpentine in question having been paid for by the plaintiffs, and delivered to their agent, Blood, under an express condition that it should not become the property of Robertson and Candler until they produced the bills of lading, stipulating for its delivery to the plaintiffs at London, “ freight free neither Robertson and Candler, nor the defendants, could have any claim to hold the property against the rights of the plaintiffs, until the condition precedent on the part of Robertson and Candler was fulfilled. [Kent’s *Com. vol.*2, 391. *Hussey v. Thorn**574*ton,*4 *Mass. R. 405. Barrett v. Pritchard,*2 *Pick. R.*512. *Hag*g*erty v. Palmer,*6 *J. C. R.*437. *Marston v. Baldwin,*17 *Mass.*R. 606. *Barrow v. Coles,*3 *Camp. Rep.*92. 19 *Vesey,*235.]

III. That the plaintiffs having paid for the turpentine under the conditions aforesaid, and having taken the same into their own possession by their agent, Blood, acquired either a general" or a special property in the turpentine, which was not divested by putting the same on board the ship.

IT. That as between the plaintiffs and Robertson and Candler, the latter could have no right to the turpentine, until they produced the bills of lading signed “ freight freeno right of property or possession, therefore, ever vested in Robertson and Candler, but the same remained in the plaintiffs.

That the plaintiffs, at all events, were entitled to the possession of the property in pursuance of the agreement between Robertson and Blood, the agent of the plaintiffs. Until the bills of lading were produced signed “ freight free,” the property was not to'vest in Robertson and Candler, and being out of Mitchell & Bleecher, it of course remained in the plaintiffs. Robertson and Candler being wholly unable to comply with the terms of their contract with the plaintiffs, the latter were entitled to retain *the*possession of the property against Robertson and Candler, and all other persons.

V. That the plaintiffs never contracted with the defendants, nor with the master of the ship, for the conveyance of the goods to London. When,'therefore, the voyage was broken up, the plaintiffs had a right to reclaim the turpentine; and at most, were only chargeable with the expenses of loading and unloading the same. They were not bound to *tender*any thing to the defendants, both because the latter claimed to hold the turpentine as an indemnity for their charter-party with Robertson and Candler, and because the plaintiffs offered to pay the defendants and the master of the vessel, the customary freight on the goods to London.

*575VI. That the selling of the turpentine on the part of the defendants, without notice to any of the parties in interest, was a conversion thereof. The plaintiffs never parted with the possession of the property. When it was delivered on board the ship, and receipts therefor were taken in the name of Blood, it was but a delivery to themselves, or their order, Blood being the agent of the plaintiffs for this purpose.

VII. Robertson and Candler never interposed any claim to the turpentine, and did not pretend that they had any interest therein, or that there ever was any delivery of it to them, either actual or constructive. If they ever had any interest in the property, they relinquished it in favor of the plaintiffs, who became entitled to the possession. *[Richardson v. Goss,*3 *B. &*P. *p.*119. *Mills v. Ball, 2 B. & P. p.*457. *Salte v. Field,*5 *T. R. p.*211. *Atkins v. Barwicke,*1 *Str. Rep.*165. 1 *Holt's Ni. Pri. Rep. p.*100. *Craven v. Ryder, 2 Marshall’s Rep. p.*127.]

VIII. That the purposes for which the turpentine was put on board the vessel having been defeated by the acts of the defendants, or the acts of the defendants and the master, the plaintiffs had a right to the possession of the property. *That*being refused by the defendants, they were liable to the *plaintiffs in*this action for the value of the property.

IX. That the defendants had no lien whatever upon the turpentine ; but if they had, it was not sufficient to overreach the claims of the plaintiffs, nor to defeat their right to have the property restored to them. *[Birley v. Gladstone,*3 *M. & S.*205. *Philips v. Rodie,*15 *East.*546. *Curling v. Long,*1 *B. & P.*634. *Holt's Law of Shipping, vol.*2, 178. *Laws on Charter-Party,*117, 139. *Kent's Com. vol.*3. *p.*173, 174. 177. *Montague on Lien, p.*54.]

*Mr. G. Clark*and *Mr. Slosson,*for the defendants.

I. The plaintiffs never purchased the goods in question, arid have no *576property therein, which will enable them to sustain the action of trover. The circumstances of this case differ from those of the previous one, in which Van Buskirk was plaintiff. There the property was originally in Van Buskirk, and he made a conditional sale of it; but here Robertson himself was the purchaser; he made the contract with Mitchell & Bleecker, who made out the bill of parcels in his name. That the money to pay the amount of the bill was to be advanced by Faber, could make no difference as to the question of *title,*for the property was never, under any circumstances, to become his. He made but one condition at the time of the advance, namely, that the turpentine should be consigned to his house; but the money was to be a loan to Robertson, for which security was to be given by him, on property which he was to purchase in his own behalf.

The plaintiffs in order to sustain their action must show either a general or a special property in the turpentine; but all the testimony shows the general title to be in Robertson and Candler ; while the special property, (if any there was,) vested in Blood. He was not authorized to advance the money of the plaintiffs, until the proper bills of lading were produced, and if he exceeded his authority, that might be the plaintiffs’ misfortune, but it conferred upon them no title.

There were two contracts in this case, one between Robertson and Mitchell & Bleecker, the other between Robertson and Faber, through Blood. By the former, the turpentine was sold to Robertson and Candler, to be paid for on delivery. That condition was complied with, the money was paid, and the title to the property, therefore, vested in Robertson and Candler. It passed out of Mitchell '& Bleecker, whose claims were satisfied ; it did not vest in the plaintiffs, for they made no contract for it, and were not purchasers ; it must, therefore, have become vested in Robertson and Candler. If the property had been destroyed by fire or other accident, the loss would have been theirs; they had a right to insure it, and were to all intents the legal owners. The plaintiffs were merely commission merchants, making an advance of money, upon the faith of a consignment, which was to have been made to them, but which had *577never reached their hands. For their disappointment they can have an action against Robertson and Candler, but have no claim upon the property.

II. The goods were put on board the ship with full knowledge by all the parties, of the existence of the charter-party, and the owners had a lien for freight.

III. Robertson and Candler, by the terms of the charter-party, became so far interested in the vessel, that a delivery on board of her was a delivery to them. By such delivery the whole title vested in the purchasers, and could not be divested to the prejudice of any third person having a claim upon the property. [6 *Cow. R.*110. *2 Mason’s Rep.*236.]

Faber had a full knowledge of the charter-party, and so had Mitchell & Bleecker. The latter knew of no condition as between Blood and the purchasers, that the property was not to become theirs, until the bills of lading were produced “ freight free.” The delivery was absolute, the contract of sale was unconditional, except that it was to be a cash sale ; and if the money had not been advanced by Faber, Mitchell & Bleecker could not have reclaimed their property. The reason is obvious, they had delivered it to the purchasers on board of their ship, and had delivered it without condition, although they expected to receive the money from Blood. Where the delivery is absolute the property passes to the purchaser, and the only remedy of the vendor is personal against the purchaser.

The *plaintiffs*at all events have no title. If the delivery was conditional to Blood, then the special property vested in him, while the general property remained in Robertson and Candler. Under no aspect of the case can the plaintiffs claim title, and they cannot, therefore, maintain this suit. [Upon the question of lien, the counsel for the defendants relied upon their former propositions and arguments.]

Oakley, J.

The point raised at the trial, on the ground of a *578mistake in the Christian name of one of the plaintiffs, was abandoned on the argument. The cases clearly show, that such a mistake can be taken advantage of, only by a plea in abatement. [1 *Chit. Plead.*460. 2 *Brod. & Bing.*34.]

The principal question involved in the cause is, whether the plaintiffs have shown property in themselves, so as to be enabled to maintain the action of trover.

It is quite clear, that the property in the turpentine, was not vested in Robertson and Candler. The proof is explicit, that it was not to become theirs, except on the condition that they furnished,bills of lading to the plaintiffs, “ freight free,” and in the meantime the possession was to remain with *Blood.*This condition not having been performed, nothing passed to them by the delivery of the articles on board of the ship. The delivery, in fact, was not to them, even nominally. The receipts taken in the name of *Blood,*preserved the possession in him, and the owners of the vessel were bound to account to him, according to the *tenor*of those receipts. *Blood*still retained the control of the property. *[Craven v. Ryder, 6 Taun.*433.]

The property having passed out of Mitchell & Bleecker, the former owners, vestéd either in the plaintiffs, or in Blood. Now it is clearly proved that Blood acted as the agent of the plaintiffs, who advanced the money for the purchase. It is, I presume, well settled, that when a purchase is made by an agent, the property vests, by the act of purchase in the principal, and this, even when the agent does not disclose his agency; and in such a case, the principal may always maintain an action in his own name. *[Wallis v. Murray, decided in this*court.] The possession of *Blood*was, therefore, the possession of the plaintiffs—the receipts taken by him, on the delivery of the turpentine on board, will enure to their benefit; and if *Blood,*under the circumstances, could maintain the action of trover, I can see no reason why the plaintiffs cannot.

The other questions involved in this cause were considered in the previous case of Van Buskirk v. these defendants. The property here, as in that case, was never intended to be put on board the ship as the property of Robertson and Candler, or *579under the charter-party. We then held, that a conditional delivery of the property on board did not vest it in Robertson and Candler, or subject it to any lien of the ship’s owners. The principle of that case, seems to me, to apply fully to the present.

*Judgment for the plaintiffs.*

[D. P. Hall, *Att'y for the plff.*G. Clark, *Att'y for the defts.]*