#### Lawrence Van Buskirk *versus*Ezekiel Purinton, Israel G. Collins and Edward K. Collins.

A conditional sale of goods, accompanied by a delivery thereof to a third person, who is to hold the same, as the agent of the contracting parties, until the terms of sale are complied with, will not vest the properly in the purchaser, until the condition precedent is fulfilled.

And where goods purchased conditionally, were put on board a vessel by such agent, with the intent, that when the condition precedent was complied with, the title thereto should vest in the purchaser, who had, by a charter-party, agreed to furnish a cargo for the vessel to proceed to a foreign port; the seller was permitted to reclaim the property out of the hands of the ship owner and master, upon a failure, bythe purchaser, to fulfil the precedent condition; although the defendants claimed to have a *lien*upon the goods for the *freight*specified in their charter-party. [See *the*caption to *the neat*case.]

Trover for 385 barrels of turpentine. Plea, the general issue. Upon the trial of this cause, it appeared that on the 18th of December, 1828, the defendants, by a charter-party, bearing date on that day, entered into a contract of affreightment with *562one D. H. Robertson and Samuel Candler, whereby they chaptered to R. & C. the whole tonnage of the ship Mary, (except so much as might be necessary for the accommodation' of the crew, &c.,) for a voyage from New-York to London and back to New-York. Robertson and Candler, by the terms of the charter-party, were to provide a cargo for the vessel in New-York, together With a return cargo at London; and for the freight thereof were to pay 4000 dollars ; “of this sum, *as much*“ *as might be wanted*by the defendants, was to be paid in London, “ and the *balance*on the *termination*of the voyage in New-York.”

Purinton was the master of the vessel, and the other defendants were the agents of the owners, and as such, separately entered into the contract with Robertson and Candler, in their own several names, under seal; whereby they covenanted in the usual form, at their own proper cost and charges, to keep the vessel “ tight, stanch and strong, sufficiently manned, and provided'with all things necessary for such a voyage,” &c.

Robertson and Candler, it appeared, supposed themselves to be, by the contract of affreightment, *the owners of the vessel for the voyage*described' in the charter-party; and being unable to' *purchase-*the cargo they were to provide, they entered into an arrangement with one Harris Blood, (who was acting as an-agent or broker for a Mr. Faber, one of the partners in the house of Coliman, Lambert & Co., of London,) whereby it was stipulated that Faber should make an advance of money to Robertson and Candler, sufficient to enable them to pay for a quantity of turpentine to be put on board the vessel as a part of her cargo, upon condition that the turpentine, when purchased, should be consigned to the house of Coliman, Lambert & Co., for sale, and Faber furnished with bills of lading therefor, stipulating for its delivery in Londo*n, freight free.”*When these bills of lading were furnished, the turpentine was to become the property of Robertson and Candler, but not before.

Robertson, for the purpose of accomplishing the foregoing objects, made application to the *plaintiff*for the purchase of a part of the turpentine necessary for the cargo, and promised that-it should be'paid for in cash, whenever it was delivered to Blood *563at the same time referring the plaintiff to him for the particulars of the arrangement. The plaintiff thereupon contracted for the sale of a quantity of turpentine to Robertson and Candler; and it was agreed that the same should become their property *whenever it was paid for by Blood;*and the plaintiff accordingly delivered to Blood 332 barrels, which were paid for by him, with money received of Faber, and put on board the ship.

Afterwards the plaintiff delivered to Blood 385 barrels more, (the same for which this suit was brought,) and at the time of the delivery, demanded payment. Blood thereupon called upon Robertson for the bills of lading, stipulating for the delivery of the turpentine, to Coliman, Lambert & Co., “freight free,” according to the conditions of the agreement. Robertson immediately prepared the bills of lading in the prescribed form, and presented them to Purinton, the master, for his signature ; but the master contended that he had a lien upon the turpentine for the freight expressed in his contract, and refused to sign the bills of lading in any way, except as “ subject to the conditions of the “ charter-party.” Robertson communicated this result to Blood, who, by direction of Faber, refused to advance the money to pay for the 385 barrels last mentioned, which had also been put on board the vessel.

The plaintiff thereupon, as Robertson and Candler neglected to pay him, demanded the turpentine of Blood, alleging that it was placed in his hands upon a condition that had not been complied with, and declaring the contract to be rescinded. Robertson and Candler acceded to this claim of the plaintiff; agreed to rescind the contract, and consented that he should receive the turpentine back again. The plaintiff then made a formal demand upon all the defendants for the turpentine, offering at the same time, to pay them the expenses of lading and unlading it; but did not offer to pay the freight or any part of it. The defendants however refused to deliver it up, alleging that they had a lien upon the turpentine for the freight money mentioned in the charter-party. The plaintiff thereupon brought this action to recover the value of the 385 barrels last delivered, and which had not been paid for by Blood.

*564At the trial of the cause, the plaintiff, for the purpose of maintaining the issue on his part, called Robertson as a witness, but he was objected to on the part of the defendants, as interested in the event of the suit. The counsel for the plaintiff then stated, that it would appear that the contract between him and Robertson and Candler had been rescinded, whereby R. was exonerated from all responsibility to the plaintiff; and that the interest of the witness was balanced.

The Chief Justice, before whom the cause was tried, decided that Robertson was a competent witness, if it should appear that his contract with the plaintiff had been rescinded; but if it should not so appear, then, that he would not be competent.

The counsel for the defendants excepted to this opinion, and Robertson being sworn, stated the facts which have already been set forth.

Blood was also examined, and he testified, that ,when the turpentine was put on board the vessel, he *took receipts for each parcel in his own*name, as it was put on board : and he corroborated the testimony given by Robertson in all its essential particulars.

The counsel for the defendants offered no evidence on their part to support their defence, but insisted that the plaintiff' was not entitled to recover; first, because the proof did not show a conversion by *all*the defendants; and secondly, because the defendants had a lien on the turpentine for their freight, and were not bound to surrender up the cargo until their contract had been satisfied.

Upon this state of the case, the Chief Justice being of opinion, that the plaintiff’s right of recovery depended entirely upon questions of law, a verdict was taken in his favor of for 920 dollars, subject to the opinion of the court upon a case.

The cause was afterwards argued by *J. Prescott Hall*for the plaintiff, and by *G. Clark*and *W. Slosson*for the defendants.

For the plaintiff it was contended, I. That Robertson was a competent witness.

*565II. That the proof was sufficient to show a conversion by *all*the defendants ; but if not, that that objection was not a sufficient ground of nonsuit. *[2 Phil. Evi. 125. 1 M. & S. 588. Nicoll*v. *Glennie and others. Com. Dig. Abatement F.*86.]

III. That the sale of the turpentine to Robertson and Candler, and the delivery thereof to Blood, were entirely conditional; and the conditions of sale and delivery not having been complied with, the right of property in the turpentine, never vested in Robertson and Candler, but remained in the plaintiff. He had a right, therefore, to resume the possession of his goods. *[Kent’s Com. vol. 2.*391. *Palmer v. Hand,*13 *John.*434. *Hussey v. Thornton,*4 *Mass. R.*405. *Barrett v. Pritchard, 2 Pick. R. 512. Haggerty v. Palmer,*6 *J. C. R.*437. *Marston v. Baldwin,*17 *Mass.*606. *Barrow v. Coles, 3 Camp. R.*92.]

IV. That there never was any delivery of the turpentine to Robertson and Candler, either actual or constructive. But if *by*the *contract*of sale, any right of property vested in them, they relinquished it, and the contract of sale was entirely rescinded, whereby the plaintiff’s right to the possession of his goods reverted to him. *[Richardson v. Goss,*3 *B. & P.*119. *Mills v. Ball, 2 Ib. 457. Salte v. Field, 5 T. R. 211. Atkin v. Barwicke,*1 *Stran. R.*165. *Craven v. Ryder,*1 *Holt’s R.*100. *2 Mar. R. 127.]*

V. That the defendants had no lien whatever upon the turpentine ; but that if they had, it was not sufficient to overreach the plaintiff’s claim, nor sufficient to defeat his right to have his . goods restored to him. *[Birley v. Gladstone,*3 *M. & Sel. 205. Philips v. Rodie,*15 *East.*546. *Curling v. Long, 1 B. & P.*634. *Holt’s Law of Shipping, vol.*2, 173. *Lawes on Charter-Parties,*117. 139. *Kent’s Com. vol.*3, 173, 174. 177. *Montague on Lien, p. 54.]*

For the defendants it was contended, I. That the defendants were improperly joined in the action, there being no joint con*566version proved. That the Collins’ were mere commission mer< chants, acting as agents for the owners of the ship. That they had no control over the property when shipped, and could not be liable for a conversion where they had no possession, or right to dictate to the master. That if there was default anywhere, the master alone was liable, and he alone should have been sued. [1 *Com. Dig.*78. 3 *Sel.*N. *P.*1176.]

II. That the freight *money agreed*upon by the charter-party, was a lien on the goods, and they could not be legally demanded, without a tender of the freight. *[Palmer v. Lorillard,*16 *J. R. p.*348. *Clarkson v. Edes,*4 *Cow. R. p.*470. *Saville v. Campion, 2 B. & A.*503. *Detouches v. Peck,*9 *J. R.*210. 15 *Ib.*332. *Sansom v. Ball,*4 *Dall. p.*459.]

III. That no person having goods on board a vessel ready for sea, can reclaim them, or unlade the vessel without paying the freight. That in this case, as the defendants were to receive a large sum in London, they had a lien for that sum on all goods laden on board; and that where freight is payable in advance, it cannot be recovered back. [De *Silvale v. Kendall,*4 *M. & S. p.*37.] That where there is no default on the part of the shipowner or his agents, he cannot be deprived of his freight after the goods are once taken on board.

IV. That in this case the goods were laden with the consent of Robertson and Candler. As between them and the plaintiff, the title of the property passed to the purchasers by the delivery ; and the defendants’ lien stood as it would if Robertson and Candler were the plaintiffs. And that if they had instituted the suit, the defendants’ claim would have been clear and undoubted. [*Chapman v. Lathrop,*6 *Cowen’s Rep.*110*. Mowrey v. Walsh,*8 *Ib.*238. 5 *D. & E.*231. 5 *J. R.*395. *Long on Sales,*153.]

*Per Curiam.*

The proof in this case shows a conversion by all the defendants. They were all personally bound by the *567charter-party. Though the Collins’ describe themselves as *agents,*yet they stipulated personally, and are therefore personally bound for the performance of their contract. The defendants all claimed a right to detain the goods, as subject to the chartei-party, and they all united in the refusal to deliver them up. The property was as much under the control of the merchants as the master, and they are responsible with him for the act of withholding it, if that would not be justifiable on his part. The action, therefore, is not misconceived in point of form, and if well founded in other respects, may be maintained against all the defendants jointly.

If this were not so, there would be no ground of *nonsuit*in this branch of the defence. In suits *ex delicto,*the joinder of too many defendants is never objectionable, where the defect is not apparent orí the record. One may be acquitted and another found guilty; for a failure of proof against one, does not show that the cause of action, established in evidence, is different from that comprised in the declaration. *[Com. Dig. vol. 1.*78.]

If the decision of the cause depended upon a particular examination of the second ground of defence assumed by the counsel for the defendants,we should be inclined to say, that under the charter-party, no lien attached upon the turpentine, even if it were considered as the property of Robinson and Candler. The freight, as such, did not become due until the termination of the voyage at New-York, except so much as might be actually wanted for the expenses of the ship in London; and the lien, in any event, could not exist, exception a due proportion of the freight. The outward cargo could not be bound for the whole amount of the charter money, for it was to be delivered long before the entire sum became due.

But without examining more particularly the questions raised on the argument, as to the *lien*of the owners of the vessel on the goods put on board under the charty-party, or when such right of lien commenced, we think that the evidence shows that the turpentine in question was never put on board *under the charter-party at all.*The sale and delivery by the plaintiff were clearly conditional, and the property was not to vest in Robertson and Candler until the condition was complied with. The *568delivery was to *Blood,*and it is evident that he did not act in the purchase as the agent of Robinson and Candler, but as the agent of. *Faber.*The goods were not put on board as the property of Robinson and Candler; Blood took a receipt for them in his own name. The whole sale, by the plaintiff to *Blood,*and by him to Robinson and Candler, depended on the performance of the condition stipulated for by the latter as to the bills of lading, and on the payment of the money by Blood.

The sale and delivery being thus conditional, it is well settled, that the property never passed out of the plaintiff unless the condition was performed. [13 *J. R.*434. 6 *J. C. R.*437.] It is immaterial therefore, to consider what may have been the rights of the defendants, to retain property put on board by Robinson and Candler, under the charter-party. It is quite clear, that they had no such right as against the plaintiff, who never intended that his property should go on board the ship at all, unless he received payment for it.

On the supposition that by the delivery, the property vested in *Blood,*without payment for it, it is very clear, that it did not pass from Blood to Robinson and Candler. The sale as *to them,*was strickly conditional, and whatever interest may have vested in Blood, was restored to the plaintiff, by the agreement to rescind the whole contract of sale.

*Judgment for the plaintiff.*

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