#### *V.*R. Bartlett *&*Co. *v.*T. C. Newcomb.

Contracts — Delivery of Personal Property — Possession Passes With Title — Resumption of Possession — Tortious.

The possession was to pass with the title, and that when the tobacco was received and weighed by January & Son, the right of Newcomb to control it ceased. Held, That in such a state of case, the resumption of the possession of tobacco was a tortious seizure by Newcomb, and the value of the same at the time of the seizure constituted the amount of the set-off against the .contract price.

Same — Violation of Contract.

In as much as .Newcomb was the first to violate the contract, he ought not to be allowed to recover damages against Bartlett & Co., because they afterwards declined to carry it out.

APPEAL EROM JEEEERSON CIRCUIT COURT. C. P. DIVISION. .

February 8, 1872.

*700Opinion oe the Court by

Judge Lindsay:

We hold that according to the terms of the contract between Newcomb and Bartlett & Co., tbe title to tbe tobacco was to vest in tbe latter, upon its being delivered to ■ and weighed by January & Son, and tbat Newcomb bad tbe right to demand tbe contract price for tbe same as soon as tbe bills of lading should be received by tbe appellants.

We further bold tbat the possession was to pass with the title, and tbat when tbe tobacco was received and weighed by January & S'on, tbe right of Newcomb to control it ceased.

It follows, therefore, tbat if Newcomb bad in point of fact surrendered to January & Son tbe possession of tbe last lot of tbe tobacco, when it was weighed, bis right to demand from Bartlett & Co. tbe contract price therefor when he presented to them tbe bills of -lading would have been perfect, and upon their refusal to pay, be might have instituted suit against them at once. In such a state of case tbe presumption of tbe possession of tbe tobacco, at Cincinnati, would have been a tortious seizure by Newcomb, and tbe value of tbe same, at tbe time of tbe seizure, would constitute tbe amount which Bartlett might have set off in this action against tbe contract price.

But tbe evidence as presented by tbe record conduces to show tbat Newcomb never did surrender to January & Son the thirty-two hogsheads of tobacco shipped on tbe 26th of September, 1861, and leaves no doubt tbat be retained tbe possession of tbe four hogsheads on tbe following day. January swears tbat be shipped tbe first lot by tbe directions of Newcomb, who it seems either accompanied it to Cincinnati or bad preceded it to tbat city, and tbe last lot was consigned to him at tbat place. It further appears tbat under some arrangement not explained by tbe record, Newcomb was enabled, without tbe aid of legal process, to detain at Cincinnati, for ten or twelve days, tbe thirty-two hogsheads consigned to Bartlett & Go1.

Tbe failure of Newcomb to surrender to January & Co., as agents for appellants, tbe tobacco in question as be was required by bis contract to do, we may assume grew out of tbe fact tbat tbe latter were setting up some claim against him on account of tbe damage to certain other tobacco thereto received and paid for by them. Tbat Newcomb was detaining tbe lot shipped on *701tbe 26th of September for some such reason, is made to appear by the fact that Smith was sent to Louisville with the bills of lading to demand payment of the contract price, and the further fact that when such payment was refused the information was • sent to Newcomb, at Cincinnati, by telegram. The result of this failure upon the part of Newcomb to comply with the terms of his contract by surrendering the control of the tobacco to the agents of Bartlett & Co., was to delay its arrival at Louisville for ten or twelve days, during which time its market price was steadily declining.

*Gazlay, Yewman, Reineclee, for appellant.*

*J. P. Parbeson, for appellee.*

If these conclusions be correct, it seems to us that inasmuch as Newcomb was the first to violate' the contract, he ought not to be allowed to recover damages against Bartlett & Company, because they afterwards declined to carry it out. The more especially as they could not do so without great loss to themselves, which loss was the proximate and necessary result of Newcomb’s failure to abandon the possession and control of the produce to January & Son as he had agreed to do. For these reasons we are constrained to reverse the judgment of the court below, and remand the cause for a new trial upon principles not inconsistent with this opinion.