1. On the 31st of July, 1863, during the late rebellion, E. and
C., owning certain crops of cotton in Wilkinson County,
Mississippi, executed a paper thus:
"We
have, this 31st of July, 1863,
sold unto
Mr. L. our crops of cotton, now lying in the county aforesaid,
numbering about 2,100 bales, at the price of ten cents per pound,
currency, the said cotton to be delivered at the landing of Fort
Adams, and to be paid for when weighed. Mr. L. agreeing to furnish
at his cost the bagging, rope, and twine necessary to bale the
cotton unginned,
and we do acknowledge to have received, in
order to conform this contract, the sum of thirty dollars.
This cotton will be received and shipped by the house of D. &
Co., New Orleans, and
from this date is at the risk of Mr.
L. This cotton is said to have weighed an average of 500 lbs.
when baled."
At the time of making the contract, the cotton baled was stored
under a covering of boards, and a small part of the cotton (about
twenty bales) not baled was in the gin house on the Buffalo Bayou,
about ten miles from the Mississippi River, at a place known as
"The Rocks," or "Felter's Plantation," then without the federal
military lines, and G. and L. were together there. Immediately
after the sale, L. employed a person living near where the cotton
was stored to watch and take care of the same and paid him
therefor, and this person continued his care of it till it was
taken possession of in the name of the United States.
Held
that notwithstanding, the words above italicized, the paper of the
31st of July, 1863, was executory only, and had not divested E and
C. of their property in the cotton, no money but the thirty dollars
having been paid and nothing else dune in execution of the
contract, and that, in a suit for the proceeds of it under the
Captured and Abandoned Property Act, which gives to the "owner" a
right to recover, under certain circumstances, property captured or
abandoned during the late civil war, they alone could sue.
2. The same E. and C. (or rather E. alone, who had now become
sole owner of the cotton) subsequently to the above-quoted contract
with L., made another contract with N. (he not having notice of the
first contract) by which E. contracted for the sale to N.
"for so much of the 2,100 bales as N. should get out in safety
to a market, for the price of �15 per bale, to be paid at
Liverpool. The risk of the cotton to be on the vendors."
Held, equally but as a matter even more plain than in
the former case that no property passed by the contract, no cotton
ever having been got out.
Held further that this was not
altered by a letter in these words from the owners of the
cotton,
"It having been agreed on between you and myself that I sell to
you all the cotton of E. and C. now baled and under shed, for the
price of �15 sterling per bale, payable in Liverpool, you
will cause the same to be placed to my credit with J.A.J. &
Co., of Liverpool. "
Page 89 U. S. 181
Appeals from the Court of Claims in which court the
representatives of one Elgee claimed the net proceeds in the
Treasury of the United States of the sale of certain cotton under
what is known as the Captured and Abandoned Property Act, the right
of the said Elgee being disputed by a firm of Woodruff & Co.
and also by a certain Mrs. Nutt, executrix of one Haller Nutt,
M.D., both of which parties claimed adversely to Elgee and to one
another, the United States at the same time denying the rights of
all of them, or at least denying them in the way in which the
parties asserted them. The case was thus:
The act "to provide for the collection of abandoned property"
&c. passed March 12, 1863, after providing for the sale of such
property by the government, thus enacts:
"Any person claiming to have been the
owner of any such
abandoned or captured property may at any time within two years
after the suppression of the rebellion prefer his claim to the
proceeds thereof in the Court of Claims, and on proof to the
satisfaction of said court of his ownership of said property, of
his right to the proceeds thereof, and that he has never given any
aid or support to the present rebellion, receive the residue of
such proceeds, after the deduction of any purchase money which may
have been paid, together with the expense of transportation and
sale of said property, and other lawful expenses attending the
disposition thereof."
On the 31st day of July, 1863, J. K. Elgee and R. Chambers (the
right of which last was immediately afterwards vested in Elgee
alone), being the owners of a quantity of cotton in Wilkinson
County, Mississippi, W. C. Gordon, their agent, entered, as
appeared by the findings of the Court of Claims, into an agreement
with C. S. Lobdell, thus:
"MISSISSIPPI, WILKINSON COUNTY"
"We
have, this 31st of July, 1863,
sold unto
Mr. C. S. Lobdell our crops of cotton now lying in the county
aforesaid, numbering about 2,100 bales, at the price of ten cents
per pound, currency, the said cotton
to be delivered at the
landing at Fort Adams, and to be paid for when weighed, Mr. Lobdell
agreeing to furnish at
Page 89 U. S. 182
his cost the bagging, rope, and twine to bale the cotton
unginned, and we do acknowledge to have received, in order to
confirm this contract, the sum of thirty dollars. This cotton
will be received and shipped by the house of Da Silva &
Co., New Orleans, and from this date is
at the risk of Mr.
Lobdell. This cotton is said to have weighed an average of
five hundred pounds when baled."
"W. C. GORDON"
"Agent for Messrs. Elgee & Chambers"
"C. S. LOBDELL"
At the time when the contract was made the baled cotton was
stored under a covering of boards, at some place not certainly
designated. A portion, equal to about twenty bales unbaled, was in
a gin house on Buffalo Bayou, at a place known as "The Rocks," or
"Felter's Plantation," about ten miles from the Mississippi River.
At this latter place, Lobdell and Gordon, the agent of Elgee &
Chambers, met. Whether it was the same place where the bulk of the
cotton was lying did not distinctly appear. Immediately after the
contract, Lobdell employed a certain J. Morris, living near where
the cotton was stored, "to watch and take care" of it, and paid him
therefor, and Morris continued his care until the 2d of April,
1864, on which day the cotton was seized by the agent of the United
States.
Lobdell sold his rights under the contract to Woodruff &
Co.
So far as respects Elgee, on the one side, and Woodruff &
Co. on the other.
The claim of Mrs. Nutt rested on certain facts found as follows,
by the Court of Claims:
In the month of October, 1863, Haller Nutt, M.D., a citizen of
Mississippi, employed as his agent Truman Holmes, to go from
Natchez, then in possession of the military forces of the Union,
into the Territory of the Confederacy to purchase cotton.
At this time, Dr. Nutt resided in the immediate vicinity of
Natchez, and within the military lines and control of the Union
forces, and he procured from the military authorities
Page 89 U. S. 183
their permits for Holmes to pass out of and into said lines on
said agency.
In October, 1863, Holmes, as the agent of Dr. Nutt, contracted
with Elgee for the sale from him of so much of the 2,100 bales of
cotton stored at Felter's plantation as he (Holmes) should get out
in safety to a market, for the price of �15 per bale, to be
paid at Liverpool. The risk of the cotton till got out to be on Mr.
Elgee.
On the 8th of October, 1863, Mr. Elgee made and delivered to
Holmes a writing in these words:
"ALEXANDRIA, October 8th, 1863"
"DEAR SIR: It having been agreed on between you and myself that
I sell to you all the cotton of Elgee & Chambers, now baled and
under shed, for the price of �15 sterling per bale, payable
in Liverpool, you will cause the same to be placed to my credit
with J. A. Jackson & Co., of Liverpool."
"Yours,"
"J. K. ELGEE"
"Captain TRUMAN HOLMES present"
The position, of course, of Elgee now was that no ownership of
the property had passed out of him to anybody:
1st. That, as respected Lobdell or his assignees, Woodruff &
Co., the sale was one for cash, and that no cash had been paid;
that the amount to be paid was to be ascertained by weighing, and
that no weighing had been had; that the contract was entire, and
that the property was yet to be delivered; but that part of it was
incapable of being delivered until it should be ginned and baled, a
matter which had never been done; Lobdell, who was bound to furnish
them having never furnished the prerequisite bagging, rope, and
twine.
2d. That as respected Mrs. Nutt, executrix of Dr. Nutt, she had
plainly no case on the contract found by the Court of Claims, a
contract of which Elgee's above-quoted letter of October 8th, 1863,
made no part, and which was but "for the sale from him of so much
of the 2,100 bales stored at Felter's plantation as Holmes should
get out in safety to
Page 89 U. S. 184
a market;" that this was plainly executory, and had never been
reduced into certainty by any cotton at all being got out, it
having all been seized by the federal government previously.
On the other hand, and as respected the opposing claimants.
Mrs. Nutt, agreeing that no property had ever passed from Elgee
to Lobdell or through him to Woodruff & Co., but on the
contrary so far as regarded those parties, remained in Elgee,
contended, as respected her husband, Dr. Nutt, that to him it had
passed, and she relied strongly on the letter of Elgee of October
8, 1863, to Holmes, the agent of her husband, as showing this and
as putting an interpretation by Elgee himself which could not now
be controverted on the matter, while:
Lobdell and Woodruff & Co. (the latter-named of whom claimed
under the former), treating the contract with Holmes for Nutt, and
the letter of October 8th, 1863, as of no importance, contended
that prior to either, the cotton had passed to Lobdell, of which
conclusive evidence appeared in the expressions in the
contract:
"We have sold to Mr. C. S. Lobdell our crops of cotton, and we
do acknowledge to have received in order to confirm the contract
the sum of $30. The cotton from this date is at the risk of Mr.
Lobdell."
As to the United States. Their presence in the matter was
apparently that the government might assist the court in doing
justice between the individuals interpleading, so that in finally
paying money out of the Treasury, the government might do to each
that which, upon the showing by all, seemed to be right.
The Court of Claims in deciding the case, made what it deemed an
equitable division of the funds, appropriating a part to Elgee as
payment for the cotton, at the price named in the contract with
Lobdell, and appropriating parts to Lobdell and to Woodruff &
Co. From its decree all the parties
Page 89 U. S. 185
appealed, Elgee himself having died during the suit and his
representatives now taking his place.
A question was made and in this Court learnedly argued as to
whether both the contracts which were the subjects of
consideration, were not forbidden by the nonintercourse acts of
Congress, and whether, on that ground, the claims of all the
parties claiming under them did not fall. Any report of that part
of the case or of argument on it is, however, unnecessary in view
of the fact that the property in the cotton was admitted by all
parties to have been originally in Elgee and that the judgment of
this Court was that even conceding the contracts to have been
lawful, no property passed under either out of Elgee.
MR. JUSTICE STRONG delivered the opinion of the Court.
These cases have been elaborately and very ably argued touching
both the legality and the construction of the contracts under which
the different parties claim. But in the view which we take of the
merits of the controversy, it is unnecessary to do more than to
examine the contracts themselves and to determine what is their
true meaning.
The fundamental question in all the cases is whether Elgee
parted with the ownership by either of the contracts found by the
Court of Claims to have been made by him or for him by his agent
Gordon. It is the owner alone who has any standing in the Court of
Claims under the Captured and Abandoned Property Act. In regard to
such property, only such suits can be brought as are authorized by
the statute. That statute furnishes a complete system for the
prosecution of claims under it, and defines the extent of the
rights which those who claim an interest in the proceeds of
property captured or abandoned during the civil war, may assert
against the government. According to the well known
Page 89 U. S. 186
rules of statutory construction, the system is exclusive of all
others, and the rights defined are the only ones which can be
enforced in any judicial proceeding. The language of the act makes
it plain that no one is allowed to sue in the Court of Claims for
the proceeds of captured or abandoned property unless he can prove
to the satisfaction of the court three things: first, his ownership
of the property seized; secondly, his right to the proceeds
thereof; and thirdly that he never gave aid or comfort to the
rebellion. The third, it is true, has been ruled by this Court to
be no longer necessary since the amnesty proclamations, but the
ownership of the property at the time of the seizure, and the right
to the proceeds thereof, are still indispensable to any standing in
court as a claimant for the proceeds of property captured, which
have been paid into the Treasury of the United States.
We are, then, to inquire whether either Woodruff & Co. or
Haller Nutt had acquired the ownership of the cotton prior to its
seizure by the agent of the United States, on the 2d of April,
1864, for if either of these parties had become the owner and
entitled to the proceeds of its sale before that date, that party
is entitled to a judgment for the sum remaining in the Treasury
after the deductions are made provided by the statute. If, on the
other hand, neither of those parties has shown that Elgee parted
with his title, if the ownership remained in Elgee until after the
seizure and until his death, his representatives are the only
persons that are authorized to sue for the proceeds of the cotton
in the Court of Claims, for they only are the owners, whatever
equities may exist in favor of the parties who contracted to
buy.
We come, then, at once to the question whether Woodruff &
Co. acquired the ownership of Elgee. If they did, it was mediately
through C. S. Lobdell. They made no contract with Elgee, but
Lobdell did, and they purchased Lobdell's contract. The contract
between Lobdell and Elgee appears in the findings of the Court of
Claims. [
Footnote 1]
Page 89 U. S. 187
At the time when the contract was made, the baled cotton was
stored under a covering of boards at some place not certainly
designated. A portion equal to about twenty bales unabaled was in a
gin house on Buffalo Bayou, at a place known as "The Rocks," or
"Felter's Plantation," about ten miles from the Mississippi River.
At this latter place, Lobdell and the agent of Elgee met. Whether
it was the same place where the bulk of the cotton was lying does
not distinctly appear. Immediately after the contract, Lobdell
employed Morris, living near where the cotton was stored, "to watch
and take care" of it, and paid him therefor, and Morris continued
his care until the cotton was seized by the agent of the United
States. But it does not appear that the possession was surrendered
to Morris or that there was any change of possession. At this time,
the region where the parties were was greatly disturbed by the war,
and the cotton was in danger of being burnt by the Confederate
forces and of being captured by the United States. Under these
circumstances, what ought it to be concluded was intended by the
contract between Gordon and Lobdell? Was it intended to pass the
property in the cotton to the purchaser, or was it in legal effect
only an agreement to sell?
It must be admitted there is often great difficulty in
determining whether a contract is itself a sale of personal
property so as to pass the ownership to the vendee, or whether it
is a sale on condition, to take effect or be consummated only when
the condition shall be performed, or whether it is a mere agreement
to sell. It is doubtless true that whether the property passes or
not is dependent upon the intention of the parties to the contract,
and that intention must be gathered from the language of the
instrument. There are, however, certain rules for the construction
of such contracts which are well settled in England and, we think,
also in this country. Mr. Justice Blackburn, in his work on sales,
[
Footnote 2] states two of
them, and Mr. Benjamin, in his treatise, [
Footnote 3] adds a third. They are as follows:
Page 89 U. S. 188
First.
"When, by the agreement, the vendor is to do anything to the
goods for the purpose of putting them into that state in which the
purchaser is bound to accept them, or, as it is sometimes worded,
into a deliverable state, the performance of those things shall, in
the absence of circumstances indicating a contrary intention, be
taken to be a condition precedent to the vesting of the
property."
Second.
"Where anything remains to be done to the goods for the purpose
of ascertaining the price, as by weighing, measuring, or testing
the goods, where the price is to depend on the quantity or quality
of the goods, the performance of these things shall also be a
condition precedent to the transfer of the property, although the
individual goods be ascertained and they are in the state in which
they ought to be accepted."
Third.
"Where the buyer is by the contract bound to do anything as a
consideration, either precedent or concurrent, on which the passing
of the property depends, the property will not pass until the
condition 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 be 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
for the sale of specific chattels, contracts which define the
articles which are the subjects of agreement, either single
articles or aggregates separated from others, as the grain in a
bin, the hides in a specified vat &c., or such a case as the
present, all the cotton at a designated place. A considerable
number of the numerous authorities which justify these rules are
collected by Mr. Benjamin in his Treatise on Sales. [
Footnote 4] Applying them to the contract now
under consideration, we think it cannot be maintained that the
parties intended the contract
Page 89 U. S. 189
should pass the ownership of the cotton at once to the buyer,
without any ascertainment of the whole price by weighing, without
its complete preparation for delivery, without any delivery, and
without payment. This is not the case of an unconditional sale of a
specific chattel for an ascertained price. Its subject was the
crops of cotton then lying in Wilkinson County. The contract was a
cash contract. No credit was intended. An ascertainment of the
price by weighing was contemplated, though it is not stated where
the weighing should be done. The vendor undertook to deliver at
Fort Adams. He was to deliver it in bales. Yet all the property was
not in a deliverable state. Part was unginned, unbaled, and
unbagged. The vendor was to prepare it for delivery by ginning,
baling, and bagging it, and Lobdell was to furnish the necessary
bagging, rope, and twine. This was to put the cotton into the
condition in which he was bound to receive it, for he was not bound
to receive any unless the whole was ginned, baled, and bagged. The
contract was entire. And the vendor was not bound to put the cotton
into a deliverable state unless Lobdell furnished the necessary
materials. Besides, it was stipulated that the cotton should be
received by Da Silva & Co.
Our conclusion does not rest merely on the ground that the
cotton was not weighed or delivered. It is unnecessary to decide
that weighing the cotton was in this case a prerequisite to the
transmission of the property, though that appears to be the law in
England, when by the contract the goods are to be weighed by the
vendor, or by him concurrently with the vendee. In the leading case
of
Hanson v. Meyer, [
Footnote 5] where it appeared that under a contract of
sale a vendee agreed to purchase all the starch of the vendor, then
lying at the warehouse of a third person, at so much per hundred
weight, by bill at two months, and the starch was in papers, but
the exact weight was not then ascertained, and was to be
ascertained afterwards, and fourteen days
Page 89 U. S. 190
were to be allowed for the delivery, and where the vendor gave a
note to the vendee, addressed to the warehouse keeper, directing
him to weigh and deliver to the vendee all his starch, it was
decided that the absolute property in the starch did not pass to
the vendee before the weighing, which was to precede the delivery
and to ascertain the price. And this though a part had been weighed
and delivered and though a credit was given. Nothing was wanting to
specify the subject of the contract. It was all the vendor's starch
in the warehouse. So in
Simmons v. Swift, [
Footnote 6] where the contract was,
"I have this day, October 23d, sold the bark stacked at
Redbrook, at �9 5
s. per ton of twenty-one hundred
weight, to Hezekiah Swift, which he agrees to take and pay for on
the 30th of November,"
and some of the bark was weighed and delivered, it was held that
the property in the residue did not vest in the purchaser until it
had been weighed. In
Logan v. Le Mesurier, [
Footnote 7] the sale was by the following
contract:
"Hart, Logan & Co., of Montreal, sell, and Le Mesurier,
Routh & Co., of the same place, buy a quantity of red-pine
timber, the property of Thomas Durell, of Hull, L.C., but under the
control of the sellers, now lying above the rapids, near the
Chaudiere Falls, Ottowa River, and stated by the said Thomas Durell
to consist of 1,391 pieces, measuring 50,000 feet, more or less,
deliverable at Quebec on or before the 15th of June next, and
payable by the purchasers' promissory notes, at ninety days from
this date, at the rate of 9 1/2
d. per foot, measured off.
Should the quantity turn out more than above stated, the surplus to
be paid for by the purchaser at 9 1/2
d. per foot on
delivery, and should it fall short, the difference to be refunded
by the sellers."
It was held that by the terms of the contract the sale was not
complete until the measurement and delivery of the timber was made,
and that the transfer of the property was postponed until the
measurement at the delivery. Here, the timber was fully specified
by the description, and by the place where it lay. A statement of
the estimated
Page 89 U. S. 191
quantity was given; the time and place of delivery was
designated, as was the price per foot, measured off. Credit was
also stipulated for. It was the case of selling ascertained
chattels for an ascertainable sum. If this stood alone, the
contract would have passed the property, but it was controlled by
the provisions for the possession, carriage, and delivery, as well
as the measurement and readjustment of the price. Many other
English cases to the same effect might be cited. [
Footnote 8] We do not understand that there
is any disposition to depart from the doctrine of these cases or
that of Mr. Blackburn's first and second rules. Of course, when
nothing remains for the seller to do, when the weighing or
measurement stipulated for is incumbent upon the buyer, or when the
parties have provisionally agreed that a certain sum shall be taken
for the price, subject to future correction, the contract is not
within the rules.
Turley v. Bates [
Footnote 9] has sometimes been thought a departure from
the earlier cases, but we think without reason. It was the case of
the sale of an entire heap of fire clay at two shillings per ton.
The buyer was to cart it away and weigh it. He weighed, removed,
and paid for a part, and refused the rest. It was held the property
of the whole heap had passed to him. But here the seller had
nothing to do with the weighing or delivery. He had performed all
he was required to do, either for ascertaining the quantity or the
price. Besides, the jury had found as a fact that the sale was of
the whole heap. The case of
Kershaw v. Ogden [
Footnote 10] is in substance the
same. In each of these cases, the contract was in parol, and what
it was necessarily for a jury.
It is true there are some American decisions, especially in New
York, that are not in entire harmony with those we have cited.
There are at least some dicta in
Crofoot v. Bennett
[
Footnote 11] tending to
show that specification of the subject in a contract for sale is
sufficient to pass the property, though the vendor has the duty
still of ascertaining the entire price
Page 89 U. S. 192
by weighing or measuring before delivery. And in
Kimberly v.
Patchin, [
Footnote 12]
and
Russell v. Carrington, [
Footnote 13] it seems to have been ruled that the sale of
a specified quantity of grain, part of a larger bulk, with a
receipted bill of sale and an order for the grain, passed the title
without any actual separation of delivery of the property. These
decisions, we think, are not in accordance with the authorities
generally in this country. They are in conflict with later
decisions in New York. In
Kein v. Tupper, [
Footnote 14] the English rule was strictly
accepted. There it was said by Chief Justice Church that when
anything remains to be done by the vendor to ascertain the
identity, quantity, or quality of the property, no title passes.
That was the case of a sale of a certain number of bales of cotton,
described by marks, at so much per pound, and the court said, as
the cotton was to be weighed by the vendors to ascertain the
quantity, and sampled by both parties to ascertain the quality, no
title passed until these acts were done. We do not care, however,
to review the decisions on this subject farther, for the
stipulation in the contract now under consideration that the cotton
should be paid for when weighed was only one of several provisions
tending to the conclusion that the intention of the parties was not
to effect an immediate passing of the property.
We have already noticed that no sale upon credit was intended.
There was therefore no reason why the vendor should part with
anything before the purchase money was paid or tendered. The
possession was certainly retained. The vendors undertook to deliver
at Fort Adams. To enable them to carry, and thus deliver,
possession was indispensable. The contract also provided that the
cotton should be received by Da Silva & Co. This agreement to
carry and deliver at Fort Adams on the Mississippi, where it was
obviously intended the contract should be consummated by the
receipt of the cotton and the payment of its price, concurs with
other circumstances in indicating a purpose of the
Page 89 U. S. 193
parties that the property was not intended to be changed until
the weighing, delivery, receipt, and payment took place. So it was
regarded in
Logan v. Le Mesurier. [
Footnote 15] Indeed, assuming, as the contract
warrants, that the sellers were to carry the cotton to a designated
place, and to ascertain its quantity and aggregate price by weight
before delivery, and assuming that it was then to be received, and
that payment for the whole was to be concurrent with the delivery,
it is hard to find any intention that the owners intended to part
with their ownership while the cotton lay at Felter's
plantation.
Added to this is, we think, a very significant circumstance. The
contract shows that a portion of the cotton was not in a condition
for delivery. True, it was relatively but a small portion,
sufficient, as found by the court, to make about twenty bales. But,
as we have noticed, the contract was entire. It was for all the
crops. The purchaser was under no obligation to take less than the
whole. The subject of the contract was baled cotton, and Lobdell
bargained for that. Nothing in the contract, indeed, shows clearly
how much of the cotton was unginned and how much was unbaled, but
it reveals that a portion was, and certain it is it was considered
essential that all which had not been ginned and baled and bagged,
should be put into that condition before the vendee was required to
accept it. And this the sellers were required to do. So much is
clearly implied in the contract. If, then, it be, as asserted in
Mr. Blackburn's first rule, that when anything remains to be done
by the seller for the purpose of putting the goods into that state
in which the purchaser is bound to accept them, or, in other words,
into a deliverable condition, the property does not pass, it cannot
be held that there was any intention of Gordon, or his principals,
to transmit to Lobdell the ownership of the cotton before its
delivery and before the payment of its stipulated price. We do not
deny that a person may buy chattels is an unfinished condition and
acquire the right of
Page 89 U. S. 194
property in them, though possession be retained by the vendor,
in order that he may fit them for delivery. But in such a case, the
intention to pass the ownership by the contract cannot be left in
doubt. The presumption is against such an intention.
It should also be noticed that Lobdell undertook by the contract
to furnish the necessary bagging, rope, and twine to put the
unginned and unbaled cotton in a deliverable state. Obviously this
was to be done before the sellers were bound to deliver. It was
therefore a condition precedent upon which the vendee's right
depended. With this condition there was no compliance, and thus
neither the vendors nor the vendee did all that it was contemplated
and agreed they should do preparatory to the acceptance of the
goods or to bring the cotton to the condition in which it was
understood it should be to entitle the sellers to the price
stipulated.
On the other side, it has been argued with much earnestness that
the provision in the contract the cotton from the date thereof
should be at the risk of Lobdell exhibits an intention of the
parties that the property should pass. It must be admitted that
when a contract of sale has transmitted the property in its subject
to the buyer, the law determines, in the absence of agreement to
the contrary, that the risk of loss belongs to him. This is a
consequence of his ownership, though undoubtedly the property may
be in one and the risk in another. But it needs no agreement that
the buyer shall take the risk if it is intended the ownership shall
pass to him. Hence the stipulation that the cotton should be at the
risk of Lobdell after the date of the contract, instead of showing
an intention of the parties that the right of property should pass
to him, seems rather to indicate a purpose that the ownership
should remain unchanged. Else why introduce a provision totally
unnecessary? Such was the inference drawn from the introduction of
a similar clause in a contract considered in
Martineau v.
Kitching. [
Footnote 16]
There it was stipulated that the goods should
Page 89 U. S. 195
remain at the risk of the sellers, and Lord Cockburn asked "if
the property in the goods had not passed to the buyers, why it was
said the goods should remain at the risk of the sellers?", adding
further,
"what would be the necessity, what would be the object and
purpose of such a stipulation if the property still remained in
them? Of course it would be at their risk."
It may be asked what then was the object of stipulating that the
cotton should be at Lobdell's risk if it was not intended to
evidence a transmission of the title? No doubt some purpose
existed, and we think it may be found in the circumstances in which
the parties stood when they contracted. The cotton was in a
disturbed region of the country. It was in danger of destruction by
the Confederate forces and of capture by the United States forces.
The sellers undertook to carry and deliver it at the landing at
Fort Adams. Such a delivery might be rendered impossible by the
vicissitudes of the war, and hence it was a reasonable provision
that Lobdell should bear the risk, that the sellers should not be
answerable in damages in case of Confederate burning or federal
capture. To us this is a sufficient explanation of the assumption
of the risk by Lobdell, without regarding it as a mutual
recognition of a change of ownership.
It is hardly necessary to add that the receipt of $30 "in order
to confirm the contract" can have no bearing upon the question
whether the property passed. The confirmation of the contract and
its effect are distinct matters. Whatever may have been thought by
some old writers respecting the effect in the transmission of
property, of giving and receiving earnest money, it is now
considered of no importance, or of the smallest importance. The
subject is discussed in Benjamin on Sales, [
Footnote 17] and the conclusion is reached that
the true legal effect of earnest is simply to afford conclusive
evidence that a bargain has been actually completed, with mutual
intention that it should be binding on both, and that the inquiry
whether the property has passed in
Page 89 U. S. 196
such cases is to be tested not by the fact that earnest is
given, but by the true nature of the contract concluded by giving
the earnest. The author says further,
"No case has been found in the books in which the giving of
earnest has been held to pass the property in the subject matter of
the sale, where the completed bargain, if proved in writing or in
any other sufficient manner, would not equally have altered the
property."
In our judgment, therefore, the contract of July 31, 1863, must
be regarded as only an agreement to sell, and not as effecting a
transfer of the ownership. It left the property in Elgee, where it
was before.
We are the better satisfied with this conclusion because it
works substantial justice and because it accords with what appears
to have been the subsequent understanding of the parties. The
bargain was for cash, yet no steps were taken to consummate it
until after the cotton was seized in April, 1864. Never, indeed. No
tender of the price was made, the cotton was neither weighed,
delivered, nor received, and throughout both parties appear to have
treated the agreement as merely executory.
The result of what we have said is that neither Lobdell nor
Woodruff & Co., who claim under him, had any such ownership of
the cotton as to entitle them or either of them to sue in the Court
of Claims for its proceeds.
We come next to the claim of Mrs. Nutt, executrix of Haller
Nutt, deceased. A very vigorous argument has been made to us in
support of this claim, but we think it cannot be sustained.
Assuming that Nutt's contract with Elgee, made in October, 1863,
was not illegal, that it was not in violation of the nonintercourse
laws, it still was not such a contract as passed the property in
the cotton. The finding of the court is that in October, 1863,
Truman Holmes, as the agent of Dr. Nutt, contracted with Elgee for
the sale from him of so much of the 2,100 bales of cotton stowed at
Felter's plantation as he (Holmes) should get out in safety to a
market, for the price of �15 per bale, to be paid in
Liverpool.
Page 89 U. S. 197
The risk of the cotton till got out to be on Mr. Elgee. That
this was but an executory contract is very plain. Its subject was
indefinite. It was not necessarily the 2,100 bales; not certainly
any of them. It was simply so much of them as Holmes should get out
in safety to a market. The agreement contemplated that he might
never get out any. If so, nothing was agreed to be sold. In fact,
he never did get out a bale. Whatever else may be dispensed with,
it is certain that there can be no sale of personal chattels
without a specific identification of the thing sold. Which of the
whole number of bales could the purchaser say was his? For which of
them could he have been compelled to pay? And there is no evidence
that Holmes ever received the cotton or any part of it, or asserted
any possession, though the sale was on credit, and if the property
was his principal's he was entitled to remove it at once to a
market.
Our attention has been called to the letter dated October 8,
1863, and addressed by Elgee to Holmes afterwards, which it is
argued was itself a sale. [
Footnote 18] This letter was not found by the court to
have been the contract between the parties. It refers to the former
agreement, and evidently it was intended as a direction where to
pay the price of the cotton, if any should be got out and if any
purchase money should become due. It had no other purpose. It was
not even a delivery order. Much less can it be regarded as a bill
of sale. And there is no finding that it was accepted. The only
contract, therefore, respecting the sale of the cotton to Holmes
upon which the executrix of Dr. Nutt can rely is that found by the
court to have been made -- a contract for the sale of so much of
the 2,100 bales as Holmes should get out in safety to a market, and
that contract passed no property in the cotton.
This disposes of the whole case. The property in the cotton was
in Elgee, and neither of the contracts proved divested him of his
ownership. The result is that his personal
Page 89 U. S. 198
representatives are entitled to a judgment for the entire
proceeds of the cotton held in trust for the owner.
Judgment reversed and the record is remitted with
instructions to dismiss the petitions of Woodruff & Co., and
Mrs. Nutt, executrix, and to enter a judgment in favor of the
personal representatives of Elgee for the sum found in the
Treasury, the net proceeds of the sale of cotton.
Dissenting, JUSTICES BRADLEY and HUNT.
[
Footnote 1]
See it set out,
supra, foot of p.
89 U. S. 181
and top of p.
89 U. S. 182 --
REP.
[
Footnote 2]
Pages 151-152.
[
Footnote 3]
Second edition, p. 236.
[
Footnote 4]
Same edition, p. 234,
et seq.
[
Footnote 5]
6 East 614.
[
Footnote 6]
5 Barnewall & Cresswell 857.
[
Footnote 7]
6 Moore's Privy Council 116.
[
Footnote 8]
See Zagury v. Furnell, 2 Campbell 240;
Rugg v.
Minett, 11 East 210;
Gilmour v. Supple, 11 Moore's
Privy Council 551.
[
Footnote 9]
2 Hurlstone & Coltman 200.
[
Footnote 10]
3
id. 717.
[
Footnote 11]
2 Comstock 258.
[
Footnote 12]
19 N.Y. 330.
[
Footnote 13]
42
id. 118.
[
Footnote 14]
52
id. 553.
[
Footnote 15]
15
supra.
[
Footnote 16]
Law Reports, 7 Q.B. 436.
[
Footnote 17]
Second edition, pages 260-262.
[
Footnote 18]
See the letter,
supra, p.
89 U. S. 183 --
REP.
