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in a mill pond at the termination of a canal, under the charge of the superintendent of the canal, entered into a contract with C. for the sale thereof, in pursuance of which C. signed the following writing: “Received of R. four shots of white oak plank, &c. for which I promise to pay him twenty-six dollars per thousand, board measure. The above timber delivered in the mill pond,” &c.; and R., at the same time, executed a writing in the following words; “Received of C. two hundred dollars in part pay for” the timber in question. “Remainder to be paid in ninety days from surveying. The canallage to be paid by C., when he takes the plank and timber from the pond.” R. further agreed, that C. might procure the timber to be measured by the superintendent of the canal, and that he would abide by the measurement. Before the timber was measured, C. became insolvent, and it was attached by one of his creditors. It was held, that if there was a delivery to C., and if it was the intention of the parties to make the sale complete before the measure of the timber was ascertained, the property was vested in C. at the time of the attachment. Ib.
SALE OF CHATTELS. (Sale by sample.) In a sale by sam
ple of cotton, the law implies a warranty that the bulk of the article corresponds in quality with the sample exhibited; where, therefore, cotton was sold in bales, and the sample exhibited was of cotton of good quality, and on opening the bales it was found that they were packed in the interior with masses of damaged cotton, it was held, that the purchaser was entitled to recover the damages sustained by him. Waring v. Mason, 18 Wend. 425.
2. (Same.) The mere exhibition, however, of samples at the time
of sale is not of itself evidence of an agreement to sell by sample; it is for a jury to say, under all the circumstances of the case, whether the sale was intended by the parties as a sale by sample. Ib.
3. (Same.) Parol evidence of a sale by sample is admissible,
although the broker who effected the sale made an entry thereof in his books without mentioning that it was a sale by sample; it not having been signed by the broker, and a bought and sold note not having been delivered by him to either of the parties. Ib. 4. (Warranty.) In a case of breach of warranty in the sale of chattels, it is not necessary to entitle the purchaser to recover the damages sustained by him, that he return or offer to return the article sold. If he wishes to rescind the sale and to recover back the whole price paid, he must return or offer to return the property within a reasonable time; but not otherwise. Ib. 5. (Same.) In a general sale of merchandise for a sound price, where there is no express warranty or fraud, an action will not lie against the vendor on an implied warranty that the article is merchantable, although it be not fit for all the purposes to which it is ordinarily applied; so held, where the article sold was flour, made of grown wheat, which rendered it unfit for ordinary bread and unprofitable made into starch. Wright v. Hart, 18 Wend. 449. SHIPPING. (Authority of master.) Although it may be otherwise in England, in this country, the master of a vessel has a lien on the cargo for money expended, or debts necessarily incurred, in that character. Newhall v. Dunlap, 2 Shepley, 180. 2. (Same.) The power usually incident to the office of master of a vessel does not authorize him to purchase a cargo. Ib. 3. (Same.) But if his instructions constitute him an agent for that purpose, and he draw a bill making himself personally liable, and invest the proceeds in the purchase of a cargo, he has a lien thereon for his indemnification. Ib. 4. (Same.) The death of the principal does not deprive the agent of his lien. Ib. . 5. (Same.) The master of a vessel is not the agent of the owners to settle any claims against the vessel, or against them, except such as accrue during the time he is master. Kelley v. Merrill, 2 Shepley, 228. SURETIES. (Liability of each of several.) Where several sureties pay the debt of their principal, and there is no evidence of a partnership, or joint interest, or of payment from a joint fund, the presumption of law is, that each paid his proportion of the same and a joint action cannot be maintained. Lom. bard v. Cobb, 2 Shepley, 222. TENANT FOR LIFE. (Cutting of timber.) Tenant for life has no right to cut and carry away timber trees for sale; and if they be thus cut, they become the personal property of the reversioner, and he may maintain replevin for them. Richardson v. York, 2 Shepley, 216. TENANT AT WILL. (Trespass.) A tenant at will, in actual possession of the land, may maintain an action of trespass, quare clausum, against a stranger to the title, for cutting and carrying away trees. Howard v. Sedgley, 2 Shepley, 439. TIME. (Reasonable—to rescind contract.) What is or is not a reasonable time, within which a party may rescind a contract, where no time is fixed by its terms, is a question of law. Kingsley v. Wallis, 2 Shepley, 57. 2. (Same.) In the absence of all testimony, tending to show that so long a period was necessary, it was held, that a delay of two and a half months was beyond a reasonable time. Ib. 3. (Reasonable demand.) When an act is to be performed upon reasonable demand, the party on whom the demand is made, is entitled to such time as is necessary to prepare himself to perform the act. Sewall v. Wilkins, 2 Shepley, 168. 4. (Same.) And as it was necessary for the party, on whom such demand was made, to travel to a place two hundred miles distant, in the months of March and April, to transact business with persons there, and to procure and to make papers, before the act could be performed; it was held, that he was entitled to a longer time than ten days. Ib. TITLE. (Expenses incurred under mistake of) If one knowingly, though passively, suffers another to purchase and spend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. Carr v. Wallace, 7 Watts, 394. TRESPASS. (Assent to act of) If one in the act of commit
ting a trespass, by taking the personal property of another, receive his assent thereto, upon an agreement that the right to the property shall be determined by reference to a third person, trespass vi et armis will not afterwards lie to recover the value of the property, although the right clearly be in the plaintiff. Patterson v. Peironnet, 7 Watts, 337. TROVER. (Estray.) A neglect by one who takes charge of an estray for the owner, to pursue the course prescribed by the statute, does not make him liable to an action of trover, unless he uses the estray or refuses to deliver it up on demand. Henry v. Richardson, 7 Watts, 557. 2. (Same.) Riding a horse taken up as an estray for the purpose of discovering the owner, is not such an act of conversion, as will support an action of trover. Ib. 3. (Conversion.) After a mortgage of goods had been put on record, the mortgager, who remained in possession, assigned the goods and aided the assignee in clandestinely removing them out of the state. Introver by the mortgagee against the assignee and one B, who at the request of the mortgager carried away a portion of the goods and delivered them to the assignee, it was held, that if B did not act in concert with the assignee, or with intent to deprive the plaintiff of his property, the mere removal of a portion of the goods, from one place to another, at the request of the mortgager, was not of itself a conversion, because the mortgager, having rightful possession, might lawfully direct such removal, if it was not done with an intent to injure the mortgagee and deprive him of his property; or if the mortgager had such intent and was confederate with the assignee, yet if B did not know it or assent to it, his act done at the request of the mortgager would not be a conversion. Strickland v. Barrett, 20 Pick. 415. TRUST. (For the benefit of one who is insolvent.) A benefactor may provide for a friend the means of subsistence for himself and family without exposing his bounty to the debts or improvidence of the beneficiary. He has an individual right of property in the execution of the trust, of which he cannot be deprived by an execution against the trustee. Holdship v. Patterson, 7 Watts, 547.
WENDORS AND PURCHASERS. (Transfer of property.) Where L. made a bill of sale, not under seal, of a horse to W. and F., warranting it from all incumbrances, and acknowledging the receipt of payment therefor by notes, and at the same time took back from them a writing, stating that the horse was purchased by them of L., and was to remain his property until the notes were paid, but that W. and F. were to have possession of the horse until the notes became due ; and W. and F. took possession of the horse, and before the notes were due sold him to B., (exhibiting the bill of sale from L. as evidence of their title.) who was thereby induced to make the purchase, and who had no notice of any claim of L. The notes not being paid, L. demanded the horse, and on refusal to give it up, brought an action of trover. It was held, that L. was entitled to recover, either because he had not parted with his original title, or because he had acquired a new one by way of mortgage. Lane v. Borland, 2 Shepley, 77.
2. (Delivery.) Where a bill of sale was made of a quantity of boards to secure a debt due, and the vendor, pointing towards the boards then lying in several piles in a lumber-yard at a distance but within sight, said to the vendee, there are your boards, take care of them, and make the most of them ; and the vendee thereupon went away, and suffered them to remain in the same place, without any other act on his part, for two months, when they were attached as the property of the vendor; it was held, that there was no such delivery, as would enable the vendee to hold the boards against the attaching officer. Cobb v. Haskell, 2 Shepley, 303.
WITNESS. (Promisor.) By St. 1799, c. 57, upon the death of one of two makers of a joint promissory note, the promise becomes several, and in an action upon such a note against the executor of the deceased promisor, the survivor is a competent witness for the executor, being first released by him. Reed v. Boardman, 20 Pick. 441.