The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-06-19

sion. At tnIs time the region where the parties
were was greatly disturbed Oy the war, anu the
cotton was In danger or being burned Dy the Con-
lederate forces and OF being captured by the
United states. Under these circumstances what
ought At 70 be concluded was intended by the con-
tract netween Gordon and LODdellf Was IL IN
tended TO pass the properly IN the cotton 10 the
purchaser or WAS II ia legal effect only an agree
ment 10 SELF
II must be admitted there is often great aim.
Guilty in determining whether q contract Is itself
q sale OF personal property, so 10 pass the
ownership 10 the venice. or whether IL is a sale
en- condition. to take effect or be eonsummaJed
only when the condition shall be performed. or
whether IL is q mere agreement 20 sell. IL is,
true nat wne.a , une pIopefsy passes
Ties TO the contract, and mat intention must ne
gathered from the language Of the instrument
There are however. certain rules for the
construction or sucn contracts whlcn are
weil settled IN England, ana we think
his work on sales pages l5l and 1872, states two
OF them, and Mr.. Benjamin. In DIS treatise (second
edition. page 1891 adds third. Taey are as fol-
lows:-FIrst, when, by the agreement, the VEN
dor is to 40 any thing TO the goods for the purpose
Of putting them into That state In which the pur-
chaser Is bound 10 accept them or, az lt IS some
times worded, into deliverable state, the per-
Torrance OF those things shall. IN the absence OF
circumstances indicating q contrary lntentlOn. De
TAKEN 10 DC condition preceuenI 70 the Nesting
OF the property Second, where anything re-
purpose OF ascertaining the price, as by
Weighing, measuring or testing the goods
wnere the price is 10 depend on the quantity or
quality OIL the goods, the performance Of these
things shall also De condition precedent 70 tue
transfer VI the property although the individual
goods be ascertalned aud they are IN the state in
which they ought 10 be accepted. Thrd-"When
the buyer is By contract bound 10 do ans thing as
a consideration, either precedent or concurrent,
OH wnIcn the passing OF the property depends,
the property Will not pass until the conuitlon be
fulfilled, even though the goods may have been
actually delivered into the possession OF the
buyer"
These may be regarded as rules for ascertaining
the intention OF the parties. They are In most
cases held to conclusive tests. Though not
supported BY all the decisions they certainly are
generally accepted in England and by most OF The
courts in this country. And they are the rules
which are applicable TO contracts Tor the sale OF
specific chattels. contracts winch define the
articles which are the subjects OF agreement,
eitaer single artlcies or aggregates separated
rom others, as the grain III a BIN. tue hides
case as tue present, all the cotton at
a designated place. considerable number OF
the numerous authorities which Justify THESE
rules are collected by Mr. Benjamin ia MS
treatise on Saiesn tsecoEd edition. pages pa ct
seq.) Applying them to the contract now under
consid Ell alton, we think 1t cannot be maintained
that the parties intended the contract should
pass the ownership of the cotton al once co the
buyer without any ascertalnment of the whole
price by weighing: without Its complete prepa-
ration Tor delivery; without any delivery and
without payment This Is not the case OF an I'M
conditional sale OF a specified chattel FOR an ascer-
tanned price. Its subject was the crops Of cotton
lying IN Wllkinson county, Inc contract was
talnment OF the prlce by weighing was con tem-
plated, though it is not stated where the weighing
should be done. Tue vendor undertook 10 de-
liver at Fort Adams. he was TO deliver
1t in bales. Yet all the property was IN
a deliverable state. Parr was unginned, un-
baled and unba2ged. The vendor was to
prepare It Tor delivery, by ginning, Daing
alh ,oe necessary ha0cng rome and irvine
This was 10 put the cotton into the condition In
when he was bound TO receive II, Tor he was not
bound to receive any unless the whole was glnned,
baled and bagged. The contract was entire and
the vendor was not bound to put the cotton into a
deliverable state unless Loodell furnished tue
necessary material Besides, IL was stipulated
That the cotton should be received by Da silva Il
our conclusion does not rest merely on the
ground that the cotton was not weighed or deliv-
cred. 1t is unnecessary 70 decide tnat Weighing
the cotton was in this case prerequisite 10 the
transmission Of the property, though that appears
To be the law In England, wDen by the contract
the goods are TO DE weighed by the vendor, or by
him concurrently with the yendee.
The Court mere considered tue English and
American cases, and proceeded tnus:-
We come next TO the claim OF Mrs. Mutt exc
cutrx OF Halter Mutt, deceased. very vigorous
argument has beeu made TO US in support OF tnis
CLAIM but we think Ii cannot he sustained. As
sumlng tnat Nuts contract with Egee, made in
October, 1868. was not Illegal that it was not in
violation oil the non-iniercourse laws IL still
not such contract as passed the property in the
cotton. The finding OF the Court IS that In Octo-
Der. 1868, Truman Holmes, as agent or DR.. Nutt,
contracted with Elgee Tor the sale from ann OF 50
mucn OF the 9, 100 bales OF cotton slowed atFeter'S
plantation, as he tholmesl should get out in
safety 10 market for the price OF Els per bale, TO
be paid IN Liverpool, the FISK OF the cotton till got
out 10 be on MT. Egee. Iuat this Was but an eX-
/ ecutory contract Is very plain. Its subject was
indednite il was not necessarily the 2 100 bales !;
not certainly any OF them. IL was simply 50 mucn
OF them as Holmes should get out IN SAFETY TO q
market The agreement contemplated that he
might never get out any. Ii SO. nothing was
agreed 70 be sold. In TACT, he never did get
out a bale. Whatever else may be dispensed
with II Is certain there can De no sale or
personal chattels without specific Identification
bales could the purchaser say were MS = For
which Of them could he have been compelled to
pay And there Is no eviaence tnat Holmes ever
received the cotton, or any part OF ", or asserted
any possession, though the sale was on credit,
anc II the property was his principals he was en-
titled To move it at once 10 market. Our atten-
ton has been called TO the letter addressed by
Elgee To Holmes afterwards, winch, it Is argued
was itself sale. IL was dated October 5, 1858, and
was as foll0ws:-
DEAR SIR-It having been agreed on between you and
myself that sell you all the cotton 81 Egee Cham
Der hale ow payaoe in verpoo You viii cause the same
10 be placed to my credit with James A. jackson Co.
Captain TnuRxAS HOLMES. present
This was not found by the court TO have been
per contract between the parties. IL refers to the
former agreement and evidently II was intended
as direction where TO pay the price OF the cotton,
shonIa became dine IL aau no other purpose
1t was not even delivery order, mucn less can It
be regarded as blIl Of sale And there IS no ind
ing that 1t was accepted. the only contract,
therefore, respecting the sale or the cotton to
Holmes upon which The executrix OF DR.. Mutt can
rely Is that found by the Court to nave been maze,
q contract Tor the sale OF SO much oil the 2, 100
bales as Holmes should get out an safety 10 mar
ket, and that contract passed no property In the
cotton.
This disposes OF the whole case. The property
In the cotton was In Egee, and neither Of the con-
tracts proved Invested ntm VI his ownership. the
result Is that has personal representatives are en-
titled Go judgment Tor the entire proceeds OF the
cotton neld In trust for the owner.
The Judgment OF the Court OF Claims Is reversed
and tue record II RENTED, with instruction 10
dismiss the petitions oI woodruff and Bouchard,
and Julia A. Mutt, executrix, ana 70 enter a
Judgment in favor OF the personal representatives
Of Jonn K. Elgee, Tor the sum found in the
treasury, the net proceeds oil the sale OF the
cotton.
Dissenting. Mr.. Justice Bradley and Mr.. Justice
Hunt