
    NOVEMBER TERM, 1844.
    James Hunter v. Joseph H. Talbot.
    As a general rule, when personal property is sold on a credit, the vendee acquires the right of property and the right of possession, unless there he some stipulation to the contrary. But if before the possession is delivered the ven-dee becomes insolvent, the vendor may protect himself, if payment has not been made when the credit expired, by refusing to deliver possession.
    And the fact that the vendee had deposited notes as collateral to secure the purchase-money, if no money had in fact been realized from such notes, will not change the rule.
    This was an action of detinue brought in the Circuit Court of Marshall county, by Joseph H. Talbot against Janies Hunter, to recover two slaves, named John Williams (blacksmith), and John Oliver (striker). The declaration contained only one count, and that was in the ordinary form. The defendant pleaded non detinet. The case was argued and submitted without any instruction being asked by either party. The jury found for the plaintiff, and the defendant entered a motion for a new trial, on the grounds of surprise in ruling out the deposition of T. S. Henderson, and that the verdict was contrary to. the evidence. Which motion the Court overruled ; and the defendant filed a bill of exceptions, setting out all the evidence adduced on the trial. From which it appears, that the plaintiff read to the jury a deed of trust, dated 28th day of August, 1839, from John G. Chalmers and others to him, conveying the slaves in controversy, together with a large amount of property, to secure the debts of the said John G. Chalmers. The plaintiff also read to the jury a bill of sale or receipt, which was in the following words, to wit: “Received of John G. Chalmers, five thousand dollars in full payment for the two following slaves, to wit: John Williams, blacksmith, aged about thirty years ; also John Oliver, striker, aged about twenty-one years ; the titles of which said negroes I will warrant and forever defend against the right, title, claim, interest, or demand of all and every person or persons whatsoever. I also warrant them sound in body and mind, and to be slaves for life. February 26, 1839. Jas. Hunter.” The plaintiff then called McWilliams, who being sworn, testified that at the request of John G. Chalmers, he called on the defendant in March, 1839, for the negroes, John Williams and John Oliver, when the defendant declined delivering them up, stating he had some work for them to do, and he could not then spare them. Shortly afterwards witness called on defendant again for the ne-groes, when defendant said they would not leave him ; but he would send them to witness at Holly Springs, under pretence that they still belonged to him, defendant, and that he and witness were going to carry on a blacksmith shop in partnership. When witness next met defendant, he said he, defendant, understood thafChalmers had let down and could not pay his liabilities. The negroes were in Tennessee, where the parties lived when the contract was made. The defendant never pretended to witness that the negroes belonged to him, defendant, or any other person than Chalmers. The plaintiff also called several other witnesses, who proved in substance, that in 1840, shortly before or after the sale by Chalmers to the plaintiff, the defendant was negotiating with the plaintiff about said slaves ; he offered plaintiff a note signed in blank by Pleasant Henderson and Rivers for thirty-five hundred dollars for them, which the plaintiff refused to take ; that defendant went from Mississippi to Tennessee to see plaintiff on the subject; the slaves were not present at the time of the negotiation, but were then in the possession of the defendant ; that just before the commencement of this suit the plaintiff demanded the negroes of the defendant, and he refused to give them up ; the negroes were not present when the demand was made ; that the negroes were worth 0800 each, and their hire was worth $300 a year. The plaintiff having closed his testimony, the defendant read several depositions to the jury, which proved that the sale of the negroes to Chalmers was made in Tennessee, and the consideration was that Chalmers was to take up certain bills drawn on him by the defendant; that Chalmers never did take up the bills, nor pay any part of them ; that Chalmers had deposited certain notes as collateral security for the payment of the bills, but nothing had. been collected from the notes ; that on the 25th day of 'February, 1839, Chalmers was insolvent, though his insolvency was not then generally known ; that Chalmers, however, must have known he was insolvent, and that he could not pay for the said slaves ; that the defendant had always retained the possession of the slaves, and brought them with him to Mississippi when he moved to this State ; that Chalmers said the’ defendant would never deliver the possession, of the slaves to him, because he had never paid the bills, which were the consideration of the sale. The defendant also offered tp read the deposition of T. S. Henderson, which was objected to by the plaintiff and ruled out by the Court, because it had been taken without giving the opposite party legal notice.
    
      George S. Ye?'ger, for plaintiff in error.
    1st. There was no delivery of the possession of the slaves. Hunter always retained their possession after he made the bills of sale, and finding out or ascertaining that the bills he had drawn on Chalmers, and which were the consideration of the negroes, were not paid, and that he himself was responsible as drawer, and that Chalmers was totally insolvent, he refused to deliver them. And the question is whether he had not this right. We maintain he had.
    It is true that a bargain and sale of personalty vests without delivery the title, so far as to throw the risk upon the buyer.; but until the property is consummated by delivery, the vendor, if the goods are sold on a credit, may at any time before delivery stop or retain them, if he ascertains the purchaser is insolvent.
    This rule apples to the sale of chattels'of all descriptions. 2 Kent’s Com. 493, 494; Ross on Sales, 12 Law Library, 113, 114. e
    The title passes, where the sale is on a credit, subject to the vendor’s right.to retain the goods, if before actual delivery to the purchaser he discovers the insolvency of the purchasee. The title vests subject to this right. 2 Kent’s Com. 540, et seq.
    
    The property by the stoppage, a refusal to deliver, revests in the vendor. 2 Kent, 540, 541, and authorities cited.
    But this question’is put at rest by the princples of the Common Law. The right of stoppage in transitu exists when the sale is on credit, and the goods are forwarded, and whilst on their way the vendor finds out the party is insolvent. But when he never has parted with possession, he may on the discovery of the insolvency of the buyer refuse to deliver them, and thus defeat his right to possession until the price be paid.
    The rule is settled, that if chattels are sold on a credit, the ven-dee is entitled to immediate possession, and the right of possession and right of property vest in him at once, though the right of possession is not absolute, but is liable to be defeated, if he become's insolvent before he obtains possession.' 2 Kent’s Com. 493 ; Hanson v. Meyer, 6 East, Rep. 614 ; 4 Barn. & Cresswell, 941.
    In the case of Mew v. Swain, (Daniel and Lloyd’s cases), cited 2 Kent, 494, note (b), it was decided “ that if the buyer of goods, sold on credit, dqes not pay for them when time of payment arrives, the vendor has the right to retain possession ; and the right to retain possession defeats the action of trover or detinue, for unless entitled to possession, the plaintiff cannot recover.
    In the case of Bloxarn v. Sanders, 4 Barn. & Cress. 941 ; 10 Com. Law Rep. 477, it was held that goods sold on credit vested a right of property in the vendee by the contract of sale, yet he does not acquire a right to possession until he pays or tenders the price. See Tooke v. Hollingworth, 5 Term Rep. 215.
    2d. It might be urged, that it was a fraud in law on the part of Chalmers, to conceal his insolvency, or his inability to meet the bills.
    If he had represented that he was able when he was not, this would be a fraud, and the title to the property would not be changed. Buffingham v. Gerrish, 15 Mass. Rep. 156, and authorities cited; Willson v. Foree, 6 Johns. Rep. 110.
    The concealment or suppression of a. material fact is in law as fraudulent as the affirmance of the fact. Swppressio veri, or sug-gestio falsi, either vitiates the contract.
    In this case the slaves were sold, and Chalmers agreed to pay for them by taking up certain bills drawn on him by the vendee and accepted by Chalmers. This he did not do. The bills are in the hands of the holders, or have been paid by the defendant, the drawer. He discovered, before he delivered possession, that they would not be paid, and in fact were not paid. And in such case, whether Chalmers were insolvent or not, according to the recent decisions, particularly Mew v. Swain, cited 2 Kent, 494, n. (b), he is entitled to retain possession until the price is paid.
    The plaintiff took them as trustee to secure debts, when Chalmers had not the possession or control of them. He of course took them subject to the vendor’s right to retain, the vendor having possession at the time.
    
      Hughes, for defendant in error.
    The property was bargained and sold by Hunter to Chalmers. They had a settlement, and Chalmers agreed to pay the bills drawn by Hunter on him, in consideration of cotton which he had received, and of the negroes, and Hunter receipted for the purchase-money. Hunter now wishes to hold on. to the negroes, because the purchase-money has not been paid ; in other words, that Chal-mers has left unpaid (being insolvent) three of the bills agreed to be paid, amounting to $3500, or thereabouts. Hunter, however, has not paid those bills, or been sued for them. Gasquet and Whiting, who are the holders of them, say in their testimony, that said bills have not been paid, and that they look to Hunter & Co. They say, at the same time, that they have notes deposited as collateral security. It is then true, that Chalmers has parted with his property to pay the debts, and, until it be ascertained that those collaterals are worthless, the purchase-money will not be considered unpaid, although Messrs. Gasquet and Whiting may say, as they do, that they have not received the money on thoáe collaterals. No reason is given why the money has not been collected; it must therefore be presumed, that, although not collected, it will be.
    Hunter took the agreement of Chalmers to pay the bills, and, in consideration thereof, receipted for the purchase-money. The property was left in the possession of Hunter, but as the property of Chalmers,' and so Hunter considered it; for he promised to deliver the negroes from time to time, and tried to buy them from Talbot, the plaintiff in this action. This made the property absolutely the property of Chalmers.
    “ Blackstone, in his Commentaries, lays down the rule, generally, that a bargain struck, and the payment of the purchase-money, vests the property of the chattel in the vendee. To illustrate this rule, he.puts the case of a horse dying in the possession of the vendor after payment of the consideration, — and the loss, he says, must fall on the vendee. This I apprehend to be the rule in all cases, on the sale of a specific chattel, where the identity of the article cannot be controverted ; the .inference of the law being, that the vendor is a mere bailee, retaining the possession at the request of the^vendee. The sale is not executed so as to vest the property in the vendee, without an actual or presumed delivery, and the latter is to be presumed from circumstances ; as, when there is a designation of the goods by the vendor to the use of the vendee, the marking them, or making them up for delivery, the removing them for the purpose of being delivered, and the like.” Opinion of Thompson, J., in the case of Lansing v. Turner, 2 John. R. 15, 16. See also Comyn on Contracts, Part II. ch. i. 130, 131 ; Hunn et al. v. Bourne, 2 Caines’s Rep. 38.
    True, the witnesses testify that Chalmers never had possession of the negroes. By this is meant, that the negroes remained with Hunter. His conduct', however, shows that he considered the agreement for the sale of the negroes completely executed. He considered them as belonging to Chalmers, and promised to deliver them when he had done work which he had for them to do, and tried to buy them from the plaintiff, after they had been conveyed to him. He therefore at the time delivered them to Chalmers, and they remained with him as bailee.
    2. The question of retaining them under the lien for the purchase-money cannot arise ; they could not be stopped in transitu, because they were sold, the agreement was executed. Nothing remained in Hunter. He had been paid. This doctrine of lien only applies to sales of chattels where the money is not paid ; and, when the party becomes insolvent, the agreement is executed by delivery. See Comyn on Contracts, Part II. ch. i. 132.
    The property was then absolutely in Chalmers, and his conveyance of it in trust vested the property in Talbot, to whom it was transferred by deed, in trust, &c. ; and, having demanded the possession before suit, he has a right to recover.
    
      3. The Court did right in overruling the motion for a new trial. The plaintiff in error should have come prepared to prove notice of the taking the deposition. He says he believed he had given notice, and was surprised when he could not prove notice of the taking of the deposition of Tippo S. Henderson. This was his fault, and not that of plaintiff below, or of the Court. He was negligent in attending to his rights, and must suffer the consequences of his own neglect. “ The law is for the vigilant, and not for the slothful.”
    4. The only ground upon which a new trial was asked, was the surprise in excluding the testimony of Henderson, and because the jury found contrary to the testimony. But no instruction was asked as to the law, and of course the defendant below cannot complain, except that the verdict was against testimony. The motion for a new trial was a waiver of all other questions arising at the trial, unless they were saved. 2 Pirtle’s Digest, 120.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

This was an action of detinue instituted by Talbot, in May, 1840, to recover of Hunter two slaves. In February, 1839, Hunter sold the slaves in question to John G. Chalmers, giving no other title than a receipt in writing, by which he acknowledged that he had received the sum of five thousand dollars in payment. In August, 1839, Chalmers conveyed a large quantity of property to Talbot intrust, including the two negroes.. These contracts all took place in Tennessee. Hunter never delivered possession, but removed with the slaves to Mississippi, and still held possession at the time the suit was brought. The negr.oes were demanded by Chalmers through an agent, on two occasions. Hunter refused to deliver them, giving as a reason, on the first demand, that he had some work which he-wished them first to finish, but did not deny Chal-mers’s right. The witness afterwards saw Hunter, who said that he understood Chalmers had failed, and would not be able to pay his liabilities. About the time the property of Chalmers was to be sold under the deed of trust, Hunter endeavored to negotiate for the purchase of the negroes, but'failed. It appears that there were many business transactions between Hunter and Chalmers, and it was proven with all reasonable certainty, that in payment for the slaves, Chalmers undertook to pay certain bills of exchange which he had accepted, and which had been drawn on him by Hunter. And it was also in proof, that the bills still remain unpaid, and that the holders look to Hunter for payment. A witness stated that at the time of this contract Chalmers must have known that he would not be able to pay the amount, being then in a failing condition, but that his condition was not then generally known. Chalmers himself stated to a witness, that Hunter’s pretext for failing to deliver, was that he had failed to pay the bills. On this state of facts the jury found a verdict for the plaintiff below, and the defendant moved for a new trial, which the Court refused to grant him ; in which we think the Court erred.

The sale made by Hunter, although he acknowledged the receipt of so much money, was no doubt a sale upon a credit. The receipt is not so conclusive in its chara'cter 'as to preclude testimony to explain the transaction. If Hunter had received the money, there would be an end of the question, but the consideration was the amount which Chalmers agreed to pay. As a general rule, when personal property is sold on a credit, the vendee acquires the right of property and the right of possession, unless there be some stipulation to the contrary. But in justice to the vendor, the law qualifies the general rule. If before delivery the vendee become insolvent, the vendor may protect himself by refusing to deliver, if payment has not been made when the credit expires. 2 Kent’s Com. 493, 494, and authorities cited, 5th ed. The case of Bloxam v. Sanders, 4 Barn. & Cress. 941, was decided on this, principle. A quantity of hops had been sold and nothing said as to the time of payment, but on such contracts there was a customary credit. The hops were not delivered, but remained for some time in the store-house of the vendor, and in the meantime the vendee became a bankrupt. On trover by his assignees, it was held, that they could not recover ; that the right of possession was defeated by the intervening bankruptcy of the vendee. Regarding this as a sale upon a credit, it seems to differ in no essential particular from the case of New v. Swain, cited by Chancellor Kent. The only point on which a doubt could rest, is as to the time at wbich Chalmers became insolvent, and whether the plaintiff in error contracted in ignorance of such insolvency ; and this we think is sufficiently explained by a careful review of'the evidence. Hunter sold on the 26th of February, 1839, and it is in proof that Chal-mers'was then much embarrassed, and must have known that he could not pay ; and it is also in proof,' that his embarrassed condition- was not generally known. The presumption is that Hunter knew nothing of it, and this presumption-is strengthened by the conversation which occurred between Hunter and the agent who demanded the negroes ; which conversation was after March, 1839, that being the month in which the demand was first made. In Aur gust following, Chalmers conveyed his property in trust for the benefit of his creditors. These circumstances lead almost irresistibly to- the conclusion that Hunter contracted in ignorance of Chalmers’s failing condition, but that he was informed of it sometime afterward, and on that ground refused to deliver. His condition does not differ from that of a vendor, whose® vendee had become insolvent after sale and before delivery. But the transaction is also accompanied by the aggravating circumstance that Chalmers, knowing his inability to pay, contracted in bad faith.

But it is insisted that Chalmers is still liable, and that he has deposited notes as collateral security, which we are to presume will be paid. He was liable before he purchased, so that his mere liability was not the consideration. The agreement was to pay ; not to deposit collateral security. The bills have not been paid, and Chalmers is insolvent ; nor has anything been realized from the collateral security ; so that this position does not alter the case. The judgment must be reversed, and a new trial granted.

Judge Clayton gave no opinion, having been of counsel.  