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The King's Bench held that the plaintiffs must be taken to have kept possession in their character of vendors until something showed an abandonment of their lien, and that so long as there was nothing to divest them of their possession in the character of vendors, there could be no receipt by the purchaser within the Statute of Frauds. The Court made some attempt to distinguish the case from Elmore v. Stone, on the ground that in that case there was a change of stables, but that fact the Common Pleas had expressly declared to be immaterial. The two cases are agreed in this, that there could not be a receipt till the vendor's lien was divested, but they differ as to what is sufficient to devest the lien.
In Baldey v. Parker (a), in 1823, the defendant bargained in the plaintiff's shop for goods above the value of 10/., some of the articles were measured in his presence, some he marked in pencil, some he assisted in cutting from a larger piece. The King's Bench decided that there was no evidence that the bargain was bound, the ground of their decision is concisely stated by Holroyd, J. "Upon a sale of "specific goods for a specific price, by parting with "the possession the seller parts with his lien. The "statute contemplates such a parting with the pos"session, and therefore as long as the seller preserves "his control over the goods so as to retain his lien, he "prevents the vendee from accepting and receiving "them as his own within the meaning of the statute."
(a) Baldey v. Parker, 2 B. & C. 37.
This case very closely resembles Anderson v. Scott, (1 Camp. 235, n.) and Hodgson v. Le Bret, (1 Camp. 233) in the facts. It seems that the difference between the decisions is rather on the practical application of the law than its nature; Lord Ellenborough seems to have thought that the vendors had abandoned their lien under circumstances which in Baldey v. Parker were held not to be any evidence of such abandonment.
In Smithy. Surman (a), in 1829, the King's Bench, of which Littledale, J. and Parke, J. had become members, acted on the principle laid down in Baldey v. Parker.
In Maberley v. Shepherd (b), in 1833, the plaintiff, under a verbal contract, was building a waggon for the defendant; the defendant furnished a tilt and ironwork, which he fixed on the waggon whilst it was building. The plaintiff brought an action for goods sold and delivered, and was nonsuited. The Court of Common Pleas refused to set aside the nonsuit. It is difficult to see how any question on the Statute of Frauds could arise, as according to the report there was not the shadow of proof that the goods were delivered, and there was no count for goods bargained and sold, or for not accepting goods. But the report probably is in some respect inaccurate, for the Court did consider the question of whether the bargain was bound, and they decided it was not. "The plaintiff," said Tindal, C. J. "retained his lien upon the waggon, and there was "nothing in the facts that denoted any intention "either to deliver or accept. The circumstances of
"the case certainly leave it open to doubt whether "the statute has been complied with or not, but we "think it the duty of the plaintiff to free the case from "all doubt, and where any remains, that it is safer to "adhere to the plain intelligible words of the statute, "which point as clearly as words can to an actual "delivery and an actual receiving of part or the whole "of the goods sold."
In Bill v. Bament (a), in 1841, the defendant having bargained for a quantity of brushes from the plaintiff, saw them at the warehouse of the plaintiff's agent, Hervey (by name), and directed a boy to alter the mark on them, and to send them to St. Catherine's Wharf. There was a signature obtained by a trick after action commenced to a receipt for the goods. The Exchequer set aside a verdict which the plaintiff had obtained for goods sold and delivered and entered a nonsuit. Parke, B. said, "To take the case out of the 17th section there "must be both delivery and acceptance, and the question "is, whether they have been proved in the present case. "I think they have not; I agree that there was evidence "forthe jury of acceptance, or rather of intended accept^ "ance. The direction to mark the goods was evidence "to go to the jury quo animo, the defendant took pos* "session of them, so also the receipt" (i. e. the receipt in writing, signed by the defendant) "was some evidence "of an acceptance; but there must also be a delivery, "and to constitute that, the possession must have been "parted with by the owner, so as to deprive him of the "right of lien; Harvey might have agreed to hold the
"goods as the warehouseman of the defendant, so as "to deprive himself of the right to refuse to deliver "them without payment of the price, but of that there "was no proof."
In Edan v. Dudfield (a), in 1841, the case was reversed: the vendor sold the goods to his factor, who had the goods in his possession at the time of sale. The Queen's Bench held, that if the jury thought he had taken to them as purchaser, it was sufficient to satisfy the statute.
There are some expressions used in the judgment of the Queen's Bench in Dodsley v. Varley (b), in 1840, which are apparently at variance with the principle of the other modern cases, but the expressions there used when construed with reference to the point before the Court do not necessarily shew that the Queen's Bench took a different view of the law from that taken in the other cases. It seems better to insert the report at length (so far as it bears on this point) rather than run the risk of omitting something material in abridging it. The plaintiff had obtained a verdict on a count for goods bargained and sold, and an application was made to the Court to set aside this verdict. Lord Denman delivered the judgment of the Court: "It was con"tended," said he, "that there was no contract com"pleted by delivery and acceptance, so as to satisfy the "Statute of Frauds. The facts were, that the wool was "bought while at the plaintiff's; the price was agreed "on, but it would have to be weighed: it was then
"removed to the warehouse of a third person, where "Bamford collected the wools which he purchased for "the defendant from various persons, and to which "place the defendant sent sheeting for the packing up of "such wools. There it was weighed, together with the "other wools, and packed, but it was not paid for; it "was the usual course for the wool to remain at this "place till paid for. No wish was expressed to take the "opinion of the jury on the fact of Bamford's agency, "the defendant's counsel acquiescing in that of the "Judge, provided the circumstances would amount to "it in point of law; we agree that they might, therefore "all these must be taken to be the acts of the defendant. "Then he has removed the plaintiff's wool to a place "of deposit for his own wools; he has weighed it with "his other purchases of wools; he has packed it in "his own sheeting; everything is complete but the "payment of the price. It was argued, that because "by the course of dealing he was not to remove the "wool to a distance before payment of the price, the "property had not passed to him, or that the plaintiff "retained such a lien upon it as was inconsistent with "the notion of an actual delivery. We think that, "upon this evidence, the place to which the wools "were removed must be considered as the defendant's "warehouse, and that he was in actual possession of "it there as soon as it was weighed and packed; that "it was thenceforward at his risk, and if burnt must "have been paid for by him. Consistently with this, "however the plaintiff had, not what is commonly "called a lien determinable on the loss of possession, "but a special interest sometimes but improperly