The Portland daily press., 1870-09-10

This case was tried before Judge Goddard
whose decision was for the defendant. The
following is the rescript from tho Supreme
| Court:
APPLETON, C. j.
The plaintiff, being the owner of one hun
dred and seventy barrels and six half barrels
OF mackerel. stored the same in No. 10, Long
Wharf, building belonging to ID. L. Chase
On April 30, 1868. ID. I. Chase, as agent for
the plaintiff, who resided in Baltimore, nego-
tiated verbally with the defendant tor the sale
of all said mackerel, being all the fish in said
building. at specified price.
On May /, 1868, the defendant paid d. T..
Chase 500, aud received from him the fol-
lowing paper:
PORTLAND, May /, 1868.
Received from L. G. Willard six hundred
dollars on account Of mackerel in store No.
10 Long Wharf. At the purchasers risk, as
regards file. ID. Z. CHASE"
On May I'd the defendant sent cooper to
the baildiDg where the fish were stored, who
examined each barrel, refied with pickle
such as needed it, and found two barrels In
which the fish bad rusteJ, which the plain
tiff's agent subsequently agreed to except from
the sale, and which be carried away from
the building in which they we're deposited.
On May 9Th the defendant sent an order on
ID. q. Chase Tor tour barrels, which were ac-
cordlngly delivered.
On aud before May 9th, the defendant had
made payments 10 the amount of 50 0OO. on
account of the mackerel.
During the night between May 9th and
10th, fifty barrels and two halt barrels were
taken from the store house OF ID. 4. Chase by
some persons then and ever since unknown.
After this, and at different times, the re-
naming barrels have been taken away by the
defendant.
Upon whom does the loss OF the fifty bar
rels ard the two halt barrels, which were
stolen, fall?
The evidence shows perfected sale. The
goods to be sold were agreed upon. The pur-
ch iser removed a portion. He examined and
lefiled with pickle the barrels as Tar az was
necessary. This involves the idea Of possess
sion. He paid the agent of the vender a
large portion of the price as agreed upon.
The plaintiff had nothing to do with store
No. 10. He did not own it. He merely
stored the fish there. When sold they re-
manned there at the purchasers risk, or at
that OF the depositary. As between the de-
was assumed by the latter. So lar as relates
TO the storage, ID. 7. Chase was acting for
himself, in guarding against the risk OF fire,
not for the vender. Indeed, the receipt pre-
supposes a change of title, that the fish had
been sold and purchased. Nothing indicates
that either party intended that there should
be any risk remaining on the vender IN re,
gard to the mackerel, after some body else nad
purchased them.
After NAV list. th., Dailee or depositary OF
the yender-bccame the bailee or deposftary or
ths-vendee. Hutch v. Lincoln, IL Cush. II,
Brydns v. MIN, NJ. d. w. 975.
In Tuxwith v. Moore Pick, 34S, the prop
erty sold was with an inpkeeper, who mad q
lien upon the same Tor keeping. ane SAFE
,I,a i,,En
the seller and the purchaser OF the sale, and
was requested by the latter TO keep the ware
on his account. at is objected" says Parker, c.
I. .ihat there wasno delivery, and there was
none in point OF folm but if the contract of
sale was bona tide, and Tor valuable cousid-
Grafton, which we take to have been settled
by the jury, then il there was symbolical de-
livery, or if the plaintiff came to the possess
sion IN virtue Of the contract, the property
passed, not only between vender and vendee,
but against everybody"
The law considers it sufficient delivery
by vender OF a chattel to purchaser, If he
regards the holder of it to be bailee, IL such
purchaser and parties all assent" Lane v.
Sleeper, Is N. H.2lL
when the terms of sale are agreed on,
and The bargain is struck, and everything the
seller has to do with the goods IS compete,
the contract of sale becomes absolute without
actual paynent or delivery, and the property
and the risk of accident to the goods rest in
tbe buyern 2 Kent's Com. 92. All these
elements are found in this case as iuy ex-
;Sting pr,or TO the time when the barrels in
controversy we're stolen. Indeed, here, there
was removal of part of the barrels, part
payment, the assumption of control over all,
every requirement OF the statute of frauds has
been complied with,-much more, then,
should the risk of the loss be on the purchas-
er, as between him and his vsnder.
Exceptions Sustained,