
    Ernest Zachrisson v. Gustavus A. Poppe et al.
    
    1. Where the owner of property authorizes a broker to sell it, and the property (logwood) is at the time in bond and afloat, and such broker contracts to sell it for cash at a specified price per ton, “ to be delivered alongside the ship,” it is essential to a legal delivery of it that such entries be made by the vendor at the custom-house; and that such documents be furnished by him as will confer upon the purchaser the power to control it.
    2. Where in such a case, such vendor, though requested to do so, wholly neglects to make such entries, or furnish such documents, and by reason thereof the property is not placed within the actual and legal control of the purchaser, the vendor cannot recover from the purchaser the contract price.
    (Before Woodruff and Pierrepont, J. J.)
    Argued, March 1;
    decided, June 12, 1858.
    The plaintiff in this action is Ernest Zachrisson, and the defendants are Gustavus A. Poppe, William Poppe & Henry Schultz, composing the firm of Poppe & Co. It comes before the Court on an appeal by the defendants, from a judgment against them, for the amount of the plaintiff’s claim, entered on the report of a referee.
    The complaint alleges a sale and delivery by the plaintiff to the defendants, on the 29th of August, 1855, of 51 tons, 18 cwt. 2 qrs. and 18 lbs. of St. Domingo Logwood; and on the thirtieth of the same month, of 33 tons, 3 cwt. 2 qrs. and 4 lbs. of St. Domingo Logwood, of the value and at the price of $20 per ton, “ which the defendants then and there undertook and promised to pay in cash,” but have neglected to do, although often requested to do so; and prays judgment for $1,702.11, with interest from the 30th of August, 1855.
    The answer denies, formally, the several allegations of the complaint.
    On the trial before the referee it appeared, that in August, 1855, the plaintiff was the owner of the logwood in question; when he bought (as well as when he contracted to sell it to the defendants), it was afloat; proper entries having been made at the custom-house, to put it in bond. The plaintiff purchased it with the intention of exporting it to Stockholm, in the ship St. Andrew, and had caused the proper withdrawal entries, to enable him to do so, to be made at the custom-house.
    The St. Andrew not being of sufficient capacity to take all of it, he authorized Herman Manny, a broker, to sell what she could not carry (viz.: the logwood in question).
    Under this authority the 'broker contracted to sell it to the defendants, part on the twenty-ninth, and the residue on the thirtieth of August. The broker executed and delivered to the plaintiff a memorandum of each sale, which two memorandums read thus:
    “Few York, August 29th, 1855.
    “Mr. E. Zachrisson,
    “ Sold for your account to Messrs. Poppe & Co., 50 tons of Domingo logwood ex J. Jex, from Port au Prince, at $20 per ton S. P. cash, quality to be good, merchantable, and to be delivered alongside the ship.
    “Herman Manny,
    “ Broker in Dyewoods, Faval Stores, &c."
    “Few York, August 80, 1855.
    “ Mr. E. Zachrisson,
    “ Sold for your account to Mr. Poppe & Co., ab. 80 tons Dgo. logwood ex J. Jex, from Port au Prince, at $20 per ton S. P. cash, delivered alongside the vessel, quality to be good, merchantable.
    Herman Manny,
    “ Broker in Dyewoods, Faval Stores, &c.”
    “The defendants’ counsel objected to their admissibility, because they were not subscribed by the party to be bound or by his authorized agent, within the Statute of Frauds.
    “The referee admitted the same in evidence, reserving the question on the objection until the final decision of the cause; in making which final decision, the referee, without expressing any opinion on this objection, held that inasmuch as the plaintiff had alleged a sale and delivery, and must prove such allegation to be true to enable him to recover, the Statute of Frauds had no application. To which ruling of the referee, admitting the same in evidence, the defendants’ counsel excepted.”
    
      The signature of “Herman Manny” to them, is printed, not written.
    He testified, that he delivered contracts to each party, those “delivered to defendants were counterparts” of the above, “ except the word bought, in place of the word sold; and that these notes expressed the contract agreed upon between the parties.”
    It further appeared that the defendants, expecting a delivery of the logwood, had engaged the “ Augusta and Emma,” and the “ Fosca Helena,” then lying at pier 8, North River, to take, the former fifty, and the latter thirty tons, and ordered the log-wood to be sent alongside of those vessels, or to the pier at which they lay.
    A custom-house order was delivered to the defendants, with a view to enable them to obtain a withdrawal of the logwood from bond. The custom-house officers refused to act upon it, on the ground that no logwood then appeared on its books, as belonging to the plaintiff. The plaintiff was notified of the difficulty, and personally or through his clerks promised to obviate it, but did not do so, although he was frequently urged to do it, and as frequently renewed his promise.
    By the thirtieth, all the logwood had been sent to pier 8 and weighed, and some part of it put on board the Augusta and Emma, and the Fosca Helena. On that day, the plaintiff sent to the defendants, a bill as follows:
    “New York, August 30th, 1855.
    “Messrs. Poppe & Co., Bought of E. Zachrisson, 87 Wall st. “ Delivered alongside Augusta and Emma.
    Tons 51, 18, 2, 8, Sdgo. logwood,............... 1038 57
    “ “ “ “ “ Fosca Helena,................ 653 54
    “ 33, 3, 2, 4, D.
    Tons 85, 2,0,12, a $20, $1,702 11”
    The evidence tends to show that the defendants refused to pay the bill, on the ground that the logwood had not been placed within their control, but expressed a willingness to pay for the quantity actually on board, on being advised of its weight; and that on the morning of the thirtieth they notified the captains of these two vessels, to take no more on board without further orders.
    On the third of September, the defendants sent to the plaintiff, the following notice, viz.:
    “ New York, Sept. 3, 1855.
    “ Sir—Please take notice that your warehouse entry per Josiah Jex, from Port au Prince is not in proper order, so that it is impossible for us to withdraw the eighty tons of logwood you sold to us on said entry.
    “ If said warehouse entry is not fixed to-morrow before two o’clock, we shall deem the contract between you and us dissolved, and look upon you for all the damages that may arise out of this transaction.
    “Respectfully yours.
    “ Signed by Gr. Poppe,
    “ in the name of the firm.”
    From this time, both parties seem to have abandoned the log-wood to its fate, and that portion which had not been taken on board the two vessels, was carried to the corporation yard and there sold.
    The testimony, as to the efforts to withdraw the wood from the custom-house, and the interviews in relation thereto, between the agents of the plaintiff and the defendants and their clerks, was objected to by the plaintiffs. The referee admitted the evidence, “reserving” (as the case states) “the question on the objection.”
    The referee found and reported as facts:
    “That in August, 1855, the plaintiff was the owner of the logwood in question, and authorized his broker Herman Manny, to sell it.
    “ That under this authority the wood was sold to the defendants, in two lots, on the twenty-ninth and thirtieth of August, it then being afloat.
    “ That after the sale had been made, the plaintiff’s agent, by direction of the defendants, caused the logwood to be landed on the pier No. 8 North River, alongside of two vessels called the Augusta and Emma, and the Fosca Helena, and it was then delivered to the defendants.
    
      “ That freight for the logwood was engaged by defendants on these vessels, a portion of the wood was carried on board the vessels, and a part of it actually taken to Europe in each.”
    His conclusions of law were:
    1. “That the delivery of the logwood in question by the plaintiff to the defendants was actual and complete so as to vest the title in defendants, and make them liable in this action for goods sold and delivered.
    2. “ That the-testimony relating to the efforts to withdraw the wood from the custom-house is immaterial and should be excluded.
    3. That the plaintiff is entitled to judgment against the defendants for the price of the wood.”
    To which conclusions of fact and of law the said defendants duly, severally and separately excepted.
    The referee, in an opinion accompanying his report, after stating summarily the facts and that the logwood was lost, proceeds to say, “ and the question now is, upon which party shall this loss fall? And the answer to this question turns upon the point whether there was in fact a delivery of this wood to the defendants, and an acceptance of it by them ?
    Without attempting any review of the many adjudications bearing upon this mooted question, I think enough is shown by the testimony taken before me, to warrant the conclusion that both parties regarded the delivery as actual and treated it as complete. At the time of the sale the wood was afloat. The bulky and heavy character of the article precluded the idea of a manual delivery, and the sale note stipulates that the delivery was to be made alongside the vessel. The vendor naturally inquired where the purchaser desired the wood should be sent. The defendants gave the proper direction, and it was sent there accordingly; and it was then I think delivered to the defendants so as to become their properly.” . .... “What more could be required in the way of delivery? If A sells a horse to B and B directs that he shall be sent to C’s stable and he is sent there, is not the delivery complete ? So in this case, if the defendants direct the place to which they wish the wood sent, and it is sent, it is delivered to them and becomes absolutely their property. The vendor when he parts with the thing sold cannot repossess himself of it again, nor can the vendee when his own directions are complied with set up a non-delivery, although he may ever so much desire to be rid of his bargain. I do not see any reason for the assertion that the plaintiff, when the sale was made, undertook to enable the defendant to withdraw this logwood from the bonded warehouse, so that the defendants might have the benefit of the drawback on its exportation. There is no agreement to that effect in the sale note; no allegations are contained in the answer to -which any such proof could be pertinent, and the testimony so far as it relates to the efforts to withdraw the wood from the custom-house, and which testimony was objected to by the plaintiff's counsel, is immaterial and should be excluded. It is a hardship doubtless to the defendants to require them to pay for wood they never had any benefit from, but the hardship to the plaintiff would be still greater to compel him to bear the loss he was in no wise instrumental in occasioning. He sold the wood and delivered it at the place indicated by the defendants, thenceforth it became their property and was at their risk. An inundation that swept it from the pier, or a fire that consumed it, or any other of the many casualties by which it might be destroyed, could not in any way affect the purchaser’s obligation to pay for it.
    “I think the plaintiff is entitled to judgment for the value of the wood, with interest from the commencement of the action.”
    Judgment was entered on the report, and from that judgment the present appeal is taken.
    
      Mortimer Porter, for appellants.
    I. The referee erred in finding as matter of fact that “after the sale, the plaintiff’s agent, by direction of the defendants, caused' the logwood to be landed on pier 8 North River alongside of the two vessels, and that it was then delivered to the defendants."
    1st. The logwood had already been landed on the pier when the contract of sale was made.
    2d. There is no evidence that the defendants ever directed plaintiff to deliver the wood alongside these vessels. The only evidence on the subject is that of Mr. Maas, who says, “he thinks Mr: Manny gave him the names.
    
      3d. Mr. Manny was agent for making the sale, and nothing more. He had no authority to direct about the delivery.
    4th. Although the defendants engaged freight for logwood by the two vessels, they never directed the vessels to take in this wood; and none of it would have been taken on board, except for the interference and orders of plaintiff’s agents.
    5th. Defendants never accepted the delivery or exercised any acts of ownership over the wood. From beginning to end, they declined to receive it until the custom-house papers were fixed so that they could legally export it.
    6th. The plaintiff retained the possession, custody and control of the wood.
    7th. The wood was not weighed off to defendants. Maas says it was weighed after it was landed on the pier, and a bill sent to defendants, but the weighmaster is not produced, and. there is no proof of what the weight was. ' , ,; -
    II. There was no delivery to the defendants, actual and complete, so as to vest the title in them. There must be an", acceptance by the buyer, as well as a delivery by the seller. (2 R. S., 136, § 3; Outwater v. Dodge, 6 Wend., 397; Schindler v. Houston, 1 Comst., 261; Evans v. Harris, 19 Barb., 416; Dutihl v. Ritchie, 1 Dallas, 171; Baldey v. Parker, 2 Barn. & Cres., 37; Phillips v. Bristolli, id., 511; Story on Sales, §§ 276 to 279; Addison on Contracts, 2d Am. Ed., 1857, pp. 240 to 245; Maberly v. Sheppard, 3 Moore and Scott’s Rep., 443; Tempest v. Fitzgerald, 3 Barn. and Alderson, 681; Ives v. Polak, 14 How. Pr. R., 411.)
    III. The referee erred in admitting the sale notes in evidence. The exception to its admission was well taken. (2 R. S., 136, § 3; Davis v. Shields, 26 Wend., 341; James v. Patten, 2 Seld., 9, 12, 15.)
    IV. If the sale notes are excluded, then there is no evidence of any agreement to sell.
    V. The referee erred in excluding the testimony relating to the efforts to withdraw the wood from the custom-house. This evidence was pertinent to the question of delivery. It shows that both parties at the time acted upon the understanding that something more was to be done before the sale would be complete. No goods intended to be re-exported shall be reladen before an entry is made, with bond and affidavits, &c., and permit given. (1 U. S. Statutes at large, p. 45, §§ 32, 34, 35; p. 182, § 5; p. 413, § 6, vol. 3, 486; vol. 4, 410 to 442 ; Gillespie v. Durand, 3 E. D. Smith, 531.)
    VI. The referee cannot on the trial admit evidence de lene esse, and then reject it in his decision. (Allen v. Way, 3 Code Reporter, 243.)
    While he says that the sale notes are of no importance, they in fact contain all the evidence of the terms of the bargain to be found in the case. •
    VII. The judgment founded on the report of the referee should be reversed, and the case sent to a new referee.
    
      J. G.. Vose, for respondent.
    I. The contracts of sale were clearly proved by the testimony in the cause, and the referee was justified in his conclusion of fact in regard to such contracts.
    1. The witness Manny testified that he was a broker, and employed by the plaintiff to sell the logwood in question, and • that he did sell the same to the defendants upon the terms mentioned in the “ bought and sold notes ” which he delivered to the parties respectively.
    2. The bought and sold notes state clearly the terms of the contracts, and furnish the best evidence thereof. - ■
    Whether they were “subscribed” in the way and manner required by the Statute of Frauds is not material, as that question does not arise in this case. They were signed or executed in sufficient form and manner to bind the parties.
    3. The acts of the defendants prove that they regarded themselves as purchasers of the logwood under the above contracts.
    H. The testimony shows a delivery to and acceptance of the goods by the defendants.
    I. By the terms of the contract, the logwood was to be delivered alongside of certain vessels, to be named by the defendants. The vessels were -afterwards named and designated, and the logwood was delivered alongside of them, according to the contract. (Dawes v. Peck, 8 Term R., 330; Dutton v. Solomonson, 3 Bos. and P., 582.)
    • 2. .The defendants engaged freight in those vessels for the logwood, and in pursuance of such engagements or contracts of affreightment, part of the logwood was actually taken on board with their knowledge and approbation, and was carried away in them. This was a virtual acceptance of the goods. (Vincent v. Germond, 11 Johns., 313 (283); Outwater v. Dodge, 6 Wend., 397; Sprague v. Blake, 20 id., 61; McKnight v. Dunlop, 1 Seld., 537).
    3. The plaintiff also, at the defendants’ request, gave them the usual order for the goods at the custom-house, which was accepted and acted upon by the defendants.
    4. Nothing remained to be done by the plaintiff to render the delivery complete.
    
      a. It was not necessary, nor did the parties contemplate, that the wood should be again weighed. It had been weighed by the proper weighmaster, and his returns of the parcels separately delivered to the defendants with the bill for the logwood, and no objection was then made that it should be reweighed. There was no ground for the subsequent demand to have it weighed.
    
      b. The pretended difficulty in clearing the goods was not substantial or material. It was merely a neglect of the customhouse officer to report that all the wood had not been shipped, as previously intended. It was not a breach of any duty which the plaintiff owed. It did not interfere with the defendants’ possession of the wood. There was no proof of any damage occasioned by it.
    III. By the acceptance of the logwood the contract was so far executed that the defendants could not rescind the same. Certainly not without first returning and delivering back to the plaintiff that part of the logwood which had been taken aboard of the vessels, which they never did nor in any manner offered to do.
    If the plaintiff neglected to do what the contract required of him, the damages, if any, might perhaps be the subject of recoupment, but no such duty or damage is alleged or claimed in the answer.
    IV. The referee decided correctly in admitting the “ bought and sold notes ” in evidence.
    They were the best evidence of the terms of the contract, and were sufficiently executed to entitle them to be read. It is not ■necessary that a written contract should be actually “subscribed by the party to be bound thereby ” to make it valid, except in cases where the question arises under the Statute of Frauds, and even in those cases the contract must be received in evidence, in order that the Court may determine the question whether it is or is not properly subscribed.
    It is not a question of the admissibility but of the effect of evidence.
    V. The judgment of the referee should be affirmed, with costs.
   By the Court.

Pierrepoht,

J.—The sale note, in this case, was not subscribed by the parties to be charged thereby,” and the contract for the sale of the logwood is void by the Statute of Frauds (2 R. S., 136, § 3), unless it appears that the defendants accepted and received part of the goods “ or the evidences,” or some of them at least.

It is claimed by the plaintiff- that the delivery of his order upon the custom-house was a delivery of the goods, and that when the defendants received the order they accepted that as a delivery of the goods; and furthermore, that as some of the logwood actually went on board the vessels in which the defendants had engaged freight for.it, and as the rest of it was placed upon the dock where the defendants might have taken possession of it, and shipped it, that the delivery was complete and bound the defendants to pay for the wood.

The evidence would perhaps warrant the conclusion that the defendants might have taken actual possession of the logwood; and that they might have shipped it, provided there had been no interference on the part of the government; but it is entirely clear that until the plaintiff changed his entry, the defendants could not withdraw the wood or ship it without violating the laws of the United States. (1 U. S. Statutes at large, pp. 45, 182, 413; vol. 3, p. 486; vol. 4, pp. 410 to 442.)

A delivery by the plaintiff of an order, which did not give the defendants any legal control over the property mentioned in the , order, is not, in contemplation of law,- a delivery of such property. If the defendants had agreed to accept the plaintiff’s order upon the custom-house as a delivery of the goods named in the order, and to take their own risk of getting them withdrawn from the custom-house or of shipping them without any formal withdrawal, then' the defendants might be bound; but the evidence warrants no such conclusion, and it is plain that no acceptance of such delivery was contemplated.

We think the report of the referee erroneous, and that the judgment must be set aside, with costs to abide the event, and that the order of reference should be discharged.

Ordered accordingly.  