
    THE ELGEE COTTON CASE.
    (7 Court of Claims R., 605;
    — Wallace R., —.)
    Cornelius V. Woodruff et al., appellees, v. The United States, appellants. Bessie Elgee Gaussen, executrix, appellant, v. The United States, appellees. Julia A. Nutt, executrix, appellant, v. The United States, appellees.
    
      On the appeal of all Hie Parties.
    
    
      Elgee ‡ Chambers, by their agent, execute, in July, 1863, a contract, which says in substance : We have this day sold unto L. “.our crops of cotton now lying in the county aforesaid, numbering about 2,100 bales,” at 10 cents a pound, “ to be ■delivered” at A., “ to be paid for when weighed,” L. to furnish the bagging, ¿fe., for the portion now unginned, the ootton “ to be received and shipped” by D. S.<f Co., “ and from this date is at the risk of L.,” and @30 is acknowledged as received from the vendee “ to confirm this contract.” Subsequently B. Sf C., in person, agree to sell one N. só much of the cotton as he can get out through the military lines. In April, 18G4¡ three-fourths of the cotton (still inpossession of the vendors) is captured and the remainder destroyed. Various parties claiming interests under the above contracts, and likewise the representatives of the vendors, bring their several suits to recover the proceeds in the 'Treasury. The suits are consolidated, and the adverse claimants interplead. The court below holds to the common-law rule anterior to the decision of Lord Bllenborough, in Hanson v. Myer, vis:, that when the whole of a quantity is the subject of sale, the property passes, though it has to be weighed to ascertain the price; also that the intent of the parties in this ease, that the property should pass, was shown by their adopting the distinctive consequence of ownership, viz, that ii should be at the risk of the purchaser. Judgment accordingly. The vendors and other of the claimants, and, also the defendants, appeal.
    
    I. Whore a contract declares that the vendors have “sold” the whole of a crop of cotton in their possession, baled and unbalorl, at a specified price per pound, tobe subsequently by the vendors weighed and delivered, to be paid for on delivory, the unbaled portion to be baled by the vendors, the whole of the cotton to be at the risk of the purchaser, it must be held to have been the purpose of the parties that the property in the cotton should not be changed until the weighing, delivery, receipt, and payment take place. Hence, under such a contract, the purchaser did not become the owner within the meaning of the Abandoned or captured property Act, where the cotton was captured before delivery.
    II. Where a contract for the sale of personal piroperty does not expressly declare that the title shall vest, before delivery, in the purchaser, no such intent can be inferred from a provision in the agreement that henceforth the thing sold shall be at the risk of the purchaser, though that risk is a distinctive consequence of ownership.
    III. A small payment made'at the time of entering into an executory agreement “ to confirm the contract” cau have no bearing upon the question whether the title to jmrsonal property passed under the contract. The legal effect of earnest-money is simply to afford conclusive evidence that a bargain has been actually completed.
    IV. An agreement for the sale of so much of a specified mass of cotton as the • purchaser can bring out through the military lines is an executory contract, and does not make him the owner(within the meaning of tho Abandoned or captured property Act) of any portion of the mass not brought out.
    
      The Reporters'1 statement of the case:
    The decision of the Supreme Court iu this case turns entirely upon the construction of two contracts, and they, with all other material facts, axe fully stated in the opinion.
    
      
      Mr. W. 17. McFarland and Messrs. Carlisle & McPherson for the Eglee heirs :
    It is submitted that the contract with Lobdell did not divest the title of Eglee to the cotton at the time of its execution, and that it was not at any time subsequent thereto divested in pursuance of that contract.
    The following is the contract in question :
    “ Mississippi, Willdnson County.
    
    “ We have, this 31st day of July, 1863, gold 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 of Fort Adams, and to be paid for when weighed, Mr. Lobdell 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 confirm this contract, the sunCof thirty dollars. This cotton will be received and shipped by the house of Dasilva & Oo., New Orleans, and from this date is at the risk of Mr. Lobdell.”
    It is important to observe that the sale is of about 2,100 bales, and is an entire contract for about that quantity; that it is to be paid for by weight,'and the weight is not ascertained; that part of it is not baled, and the purchaser is to furnish the materials for baling at his own expense; that it is to be delivered at Fort Adams and paid for when weighed. What effect, if any, 'is due to the words “ from this date is at the risk of Mr. Lobdell” will be considered a little later. There are certain rules, now well established and quite universally recognized, for determining when the contract of sale is complete and executed, and the title transferred from the seller to the buyer. Among them are the following, cited from Mr. Benjamin’s Treatise on the Law of Sales:
    “ Where 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.
    
      “ Where anything remained 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 also shall 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.” (Benj. on Sales, Am. ed., §§ 31S, 319, and notes ; Loqan v. Lemesurier 6 Moo. P. Ü. 0., 116.)
    “ The owner must intend to part with his property and the purchaser to become the immediate owner. Their two minds must have met on this point.” (Morton, judge, in Mason v. Thomson, 18 Pick., 305.)
    In Foster v. Ropes, decided in the supremecourt of Massachusetts in 1872, not yet reported, but referred to in the edition of Benjamin on Sales last cited, at page 249, the court say, in referring to the subject: “In all cases, however, the intention of the parties as to the time when the title is to pass can be ascertained only from the terms of the agreement as expressed in the language and conduct of the parties and as applied to known usage and the subject-matter. It must be manifested at the time the bargain is made. The rights of the parties under the contract cannot be affected by their undisclosed purposes or by their understanding of its legal effect.”
    •In Gihhs v. Benjamin, (45 Vermont, 124,) Judge Redfield says: “ The principle is well settled and uniform in all cases that when anything remains to be done by either or both of the parties precedent to delivery, the title does not pass; and so inflexible is the rule, that when the property has been delivered, if anything remains to be done by the terms of the contract before the sale is completed, the property still remains in the vendor. The contract must be executed to effect a complete sale, and nothing further to be done to ascertain the quantity, quality, or value of the property.” To the same point' are Hutchins v. Gilchrist, (23 Vermont, 88;) Hale v. Huntley, (21 Vermont, 147.)
    In Fuller v. Bean, (34 New Hampshire,) Bell, judge, says : “If the goods are sold by number, weight, or measure, the sale is prima facie not complete till their quantity is ascertained, and if they are mixed with others, not until they are separated and designated.”
    
      The same rule was stringently applied in Prescott v. Lode, (51 N. H,, 94.)
    The English courts admit even less latitude of construction than the American, and allow less scope for presumption as to the intentions of the parties, adhering more closely to the letter of the contract. In Sanson v. Meyer, (6 East, 614,) the defendant sold a parcel of starch at £6 per cwt., and directed the warehouseman to weigh and deliver it. Part was weighed and delivered, and then the purchaser became bankrupt; whereupon the vendor countermanded the order for delivery of the remainder, and took it away. In an action for trover brought by the assignees of the bankrupt purchaser, Lord Ellenborough said that the act of weighing was in the nature of a condition-precedent to the passing of the property by the terms of the contract, because the price is made to depend upon the weight.’* (Benj. on Sales, Am. ed., § 321.) To the same point and equally strong are Zeagimj v. Parnell, (2 Camp., 240;) Simmons v. Sicift, (5 B. & C., 857,) cited in Benjamin on Sales, Am. ed., § 323. In this edition the authorities on the subject, both English and American, are brought down to a very late period and fully commented upon in the text and notes, rendering a more detailed reference to them unnecessary. (See chap. Ill, p. 245.)
    “ 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.” The authorities in support of this proposition are exceedingly numerous. (Benj., on Sales, Am. ed., § 320 and notes.) Again: “Where goods are sold at a fixed price to be paid on a certain day, and delivery is made upon condition, express or implied, that until the price is paid the title is to remain in the vendor, payment is a condition-precedent, and until performance the property is not vested in the purchaser.” This of course is a necessary deduction from the general propositions before cited from Mr. Benjamin, and by him taken from the English authorities. ' There is no conflict on this point between the English and American authorities. Yery many of each áre cited in the notes to §§ 320 and 321. “ Where payment and delivery are agreed to be simultaneous, and payment is omitted, evaded, or refused by the purchaser, upou getting' possession of the goods, the seller may immediately reclaim them. (Leedom v. Phillips, 1 Yates, 529; Harris v. Smith, 3 8. & It., 20; Palmer v. Hood, 13 Johns., 434; Marston v. Baldwin, 17 Mass., 606; Levin v. Smith, 1 Denio, 571; Conway v. Bush, 4 Barb., 564; Henderson v. Lauolc, 21 Penn. St., 359; Deshonv. Bigelow, 8 Gray, 159; Ferguson v. Clifford, 37 N. H., 86; Paul v. Reed, 52 N. H., 136; Adams v. O’Conner, 100 Mass., 515, 518; Tyler v. Freeman, 3 Cush., 261.) And where nothing is said about payment at the time of the purchase, the law presumes that the sqle is for cash; and in such case payment and delivery are concurrent acts. (Southwestern Freight, <&o., Company v. Plant, 46 Mo., 517; Seudder v. Bradley, 106 Mass., 422 ; Goldsmith v. Bryant, 26 Wis., 34.) * * * And the title to the goods will not vest unless such payment is made or waived, (Whiting v. Faton, 15 Gray, 225; Farlow v. Filis, 15 Gray, 229; Stone v. Perry, 60 Maine, 48; Paul v. Reed, 52 N. H., 136, 138;- Russell v. Minor, 22 Wend., 659; Hirsohorn v. Canney, 98 Mass., 149.)” (Benj. on Sales, § 321 and notes.) In the case at bar it is not necessary to rely on this legal implication from silence. It is clearly expressed that payment is a condition-precedent to any change of title.
    Whatever meaning is assigned to the following words in this agreement, “from this date is at the risk of Mr. Lobdell,” it must not be inconsistent with the general intention of the parties ascertained by the application of the foregoing rules of construction. This general intent manifestly is that neither possession nor title shall pass until after delivery, weighing, and payment at Fort Adams. It is quite possible to assign an appropriate meaning not at all inconsistent with this general intent. We may, without stretch of imagination, suppose one reason to have been that for political or other reasons the cotton might be regarded as more secure if nominally at the risk of Lobdell. But it is not necessary to rely upon supposition. That an agreement of this character has no necessary connection with the transfer of title or property from a vendor to a vendee is settled by very recent authority: Castle v. Playford, 7 Law Bep., Exchequer, 98; Martineau v. Kitchen, 7 Law Bep., Queen’s Bench, 436. ‘ Id the latter case the clause in the contract which gave rise to the action, and had to be construed. was this: “Prompt at one month, goods at sellers’ risk for two mouths.” The court held that no title passed to the sugar, which was the subject of the contract, on the expiration of the two njonths, and that nevertheless the risk after that period was on the buyer. Blackburn, judge, speaking of the risk being in one and the property in another, says: “But the two are not inseparable. It may be very well that the property may be in one and the risk in the other. In the present case I think that all that is necessary to decide is that the risk was in the sellers. * * * If the agreement between the parties was, ‘1 contract that when you pay the price I will deliver the goods to you, but the property shall not be yours; they shall still be my property, so that I may have dominion over them; but though they shall not be yours, I stipulate and agree that if I keep them beyond the .month the risk shall be upon you’ — and then the goods perish. To say that the buyer could then set up this defense, and say, ‘ Although I stipulated that the risk should be- mine, yet inasmuch as an -accident happened which has destroyed them, I will have no part of that risk, but will throw it entirely upon you, because the property did not pass to me,’ is a proposition which, stated in that way, appears to be absolutely a reducíio ad absurdum; and that is really what the argument amounts to.” It will not escape notice that in this case there was a very good reason for such a stipulation growing out of the ridiculously low price at which the cotton was agreed to be sold. There is nothing, therefore, in this provision of the agreement which militates against the argument that the property, possession, and right of possession was in the seller at the time of the seizure. Suppose, for example, the property had been insured, which vras the case in the first of the English cases last cited: would any one pretend that the insurance company could defend an action on the ground that the cotton was at the risk of Lobdell? Indeed, the fact that Elgee might possibly have had a right of action against Lobdell in virtue of this particular clause in the contract does not affect the question before the' conrt at. all. A vendor in possession, with only a lien for the purchase-money, is the owner of the property, in the eye of the law, for the purpose of enforcing any right of action growing out of disturbance of the possession to the extent of the full value of that property. So that tlie Court of Claims, having decided that such was at least the status of Mr. Elgee at the time of the seizure, from its own point of view,came to a manifestly erroneous judgment. In concluding this point, it is with great confidence submitted^that Elgee, according to the well-settled rules of law on the subject, was the owner of this cotton at the time of its seizure, according to the true construction of the terms of the agreement.
    But if this supposed contract with Lobdell was at any time regarded by him or his assigns as possessing any legal validity, which is more than doubtful, it was distinctly abandoned, and by a course of conduct of the most unequivocal and decisive character on the part of all parties. It was, upon its face, an entire contract for the sale of a certain lot of cotton. (Story on Sales, § 240 and following.) Hence, but for the clause imposing the risk upon Lobdell, the mere destruction of the greater part of the subject-matter would have annulled the contract, whatever meaning may be assigned to that eiause. It is not necessary, however, to dwell upon this at length. Chancellor Kent says: “ Earnest is only one mode of binding the bargain and giving to the buyer a right to the goods upon payment; and if he does not come in a reasonable time after request, and pay and take the goods, the contract is dissolved, and the vendor is at liberty to sell the goods to another person ” (2 Kent’s Com., 496.)
    The facts being established, the question whether a contract has been abandoned or rescinded is one of law for the court. Thus in Jleafly v. TJtley, (1 Cow., 345,) the court say: “ Whether a contract of sale is rescinded or released by the acts of the parties .is a question of law, where the evidence establishing the acts and declarations from which such an effect is claimed is clear and undisputed.” In this case the court held that a contract between the plaintiff and defendant for a quantity of ores, as a legal consequence of the conduct of the parties, established by the evidence, had been abandoned and rescinded. To the same point is Conway v. Bush, supra.
    
    In this case at bar the facts showing an abandonment are of the most decisive character.
    The alleged contract with Lobdell was made on the 31st July, 1863. From that day to this no communication on the subject of it appears to have been had between Lobdell and the alleged vendors or their legal representatives, and no act of any kind in the premises was done or performed by Lobdell (except the alleged employment of Morris to watch the cotton, to which, for the reasons before assigned, no effectis to be attributed) looking to a performance of the contract.
    Eight months and a half, afterward, namely, March 15, 1804, a few days before the seizure, ‘one V. Hebert, pretending to act as agent for Lobdell, assigns the contract to Woodruff & Co. No communication of any kind appears to have been had between these pretended assignees and Elgee & Chambers, or either of them. No steps of any kind were at any time taken by them looking to the execution of the contract. As has been before stated, (and it is a fact necessary to be borne in mind,) Lobdell does not pretend to sell to these people any cotton ; he does not pretend to be in possession of any cotton; but says expressly that he sells a contract for the delivery of 2,100 bales, and it is expressly provided in this contract that no interest in the property shall pass to the assignees until the cotton shall have been paid for at the rate of 80 cents a pound. When the cotton is seized by the Government agent, neither Lobdell nor his pretended assignees assert any right to it whatever, If they had any possession of any kind through the man Morris, they of course had in fact, as well as by legal imputation, actual knowledge of the state of affairs in relation to the cotton and of its seizure. They not only forbear to assert any right or title to it themselves, but by their whole course of conduct they recognize and assent to the justice and propriety of the claim of Mr. Elgee to it.
    By the express terms of the assignment, as well as by the findings and legal conclusions of the court below, it appears that at the time of the seizure of the cotton C. Y. Woodruff & Co. had no property in it. It is unnecessary to refer again to the assignment at length. It is sufficient to say that by its express terms the assignees took no interest in the premises except such as Lobdell had, and none at any time except on condition of paying 30 cents a pound for the cotton, which condition was never performed or attempted to be performed. Hence the Court of Claims, as a proposition of law, decided “ that the contract made March 15, 1864, between Lobdell and C. Y. Woodruff & Co., was executory only, so that the property in the cotton therein specified remained in Lobdell after said contract.” Having come to this'conclusion, there would seem to have been an end to tbe question of tbe right of C. Y. Wood-ruff & Co. to maintain their action. But, directly, the court came to another and most extraordinary conclusion, namely :
    “That the parties to and those interested in said contract made 15th March, 1883, (1804- it should be,) between said Lob-dell and C. Y. Woodruff & Co., are entitled to the specific performance of said contract.” - .
    An action is brought against the United States to recover the proceeds of cotton by a plaintiff who, as the court decides, had no title to it at the time of the seizure or subsequently. The party before the court, therefore, as plaintiff is one who is decided to have no title, seeking to recover as owner against the defendant. Such being the state of the case and the parties, the court decrees in favor of the plaintiff a specific performance of an antecedent executory contract, between the plaintiff and a party not in court at all, and for the benefit of ■whom it may concern, by this process making the plaintiff owner nunc pro tunc, and giving him judgment. Again, while there are certain rare cases in which a court of equity will, in a suit properly brought for that purpose, decree the specific performance of contracts relating to personal property, a decree for the specific performance of a contract for the sale of corn or cotton would be a decided novelty in equity jurisprudence. (Fry on Specific Performance, p. 48, §12; 3 Leak. Oas. in Bq.)
    But even assuming every necessary formal requisite, such as a proper suit, proper subject-matter and parties, every one of which are absent, a plaintiff in the situation of these people would stand before the court in a very ludicrous attitude. He could not invoke one single principle'of the doctrine of specific performance in their favor. Every one of them would cry out against him.
    As to the claim of Nutt, but little needs to be said. All the foregoing propositions in respect to the case of Lobdell and Woodruff & Co. apply to this case. Nutt never obtained a shadow of title to the cotton on general principles, and never for a moment imagined that he had, or sought in any way to assert it. Beyond all this, it is a decisive answer to his claim that the pretended contract was, according to the authorities above cited and the decision below, a contract across tbe lines, and therefore illegal and Amid.
    
      jlir. Benjamin F. Butler and Mr. John A. Grow for O. V. Woodruff & Go.:
    If the parties were competent to contract in regard to the property, the validity and effect of that contract must be determined by the law which governs the person of the owner with respect to the disposition of it 5 that is, athe laws of the' owners domicile should in all cases determine the validity of every transfer, alienation, or disposition made by the owners, whether it be inter vivos, or be post mortem.” (Story’s Conti, of Laws, § 383, et seq.)
    
    The domicile of both buyer and seller, Elgee and Lobdell, is found to have been in Louisiana, and therefore their acts are to be tested by the laws of that State.
    Did the contract between Elgee and Lobdell, and the acts done in pursuance of it, pass the title in the cotton to Lobdell according to the laws of Louisiana?
    This question must be determined by her Code and the adj u-dications as to its interpretation by its highest court, which are ' to be respected and enforced as law by this court.
    By articles 2414, 2431, 2433, 2434 of the Civil Code it is provided as follows:
    “Art. 2414. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself. Three circumstances concur to the perfection of- the contract, to wit, the thing sold, the price, and the consent.
    “Art. 2431. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered nor the payment made.
    “Art. 2433. When goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller until they are weighed, counted, and measured; but the buyer may require either the delivery of them or damages, if any be, for the same, in case of non-execution of the contract.
    “Art. 2434, If, on the contrary, the goods, produce, or other objects have been sold in a lump, the sale is perfect, though these objects may not have been weighed, counted, or measured.”
    
      It will be observed that this is the rule inter partes. By articles 2417 and 2442 provisions are made where the rights of third parties intervene. And these articles have been interpreted in Copley v. Daniell, (1 Bob., 26;) Sloeomb v. Bank of Arkansas, (2 Bob., 92;) Cook v. West, (3 Bob., 331;) Adams, Executor, v. Mylne, (11 Bob., 349.) In case at bar there are no intervening rights of third parties, the United States holding simply as trustee for the party that has “ the right to the proceeds.” By article 2433 the sale is complete when the merchandise is to be measured or weighed, in everything, until the weight is determined, except that it is at the risk of the seller; but it is competent for the buyer in the contract to take that risk upon himself from the date of the purchase, and thus to make the sale coinplete in all its parts. This was decided in Kilham v. Carroll, (20 La. Ann., Ill,) which isa case that stands on “all fours” in every essential particular with the case at bar, in which the contract declares that the cotton is “at the risk of Mr. Lobdell from this date.” By article 2434 of the Code, in cases of sale of “ produce in a lump,” sale is complete without weighing or measuring, and in case of a sale by parcels the intent of the parties as expressed in the contract must govern.
    By the contract under consideration, the object, “our crops,” i. e., the entire produce of our plantations for a year, in solido, is agreed for; the price, “10 cents per pound, currency,” stated; the proximate amount, 2,100 bales, “ said to have weighed an average of 500 pounds when baled,” arrived at; the receipt of the earnest-money, $30 “to confirm this contract,” acknowledged; an agreement that the purchaser should furnish at his own cost the material necessary to bale the unginned cotton is made; the time at which it is to be paid for determined upon; the. amount then to be fixed by the weight, the risk in the seller from date, stipulated for; the commercial house who shall receive and ship the same named, and the place where it shall be received for the purpose of being weighed determined, and an agreement that the cotton shall be “ delivered,” i. e., “ transported,” at the landing at Fort Adams, a post-office in the State of Mississippi, on the river, duly established by the laws of the United States, in Wilkinson County, of which post-office the court will take judicial note, if important. Is not every requirement of the Code, and every manifestation of the intent of the parties that the property shall pass, found in this contract; especially when case finds the additional fact that the property was put in possession of the purchaser? By article 2453 of the Code “the tradition or delivery of movable effects takes place, * , * '* even by the bare consent of the parties, if the things cannot be transported at the time of sale.” But it is objected that this contract was executory, and did not pass the property, because the words “to be delivered at Fort Adams” show that within the intent of the parties no delivery had been made, although the facts find that the possession was transferred on the spot by Gordon, the agent of Elgee, to Morris, the agent of Lobdell.
    The words “to be delivered at Fort Adams” constitute an agreement that Elgee will deliver the cotton at that place, and that agreement, being for work to be performed in Wilkinson County, Miss., must be construed and its effect determined by the laws of that State. The meaning of that provision has received judicial construction in McKay v. Hamblin, (40 Miss., 472,) which decides “ that a sale is complete when the purchase-money is paid and the property is placed in the possession or under the control of the purchaser and out of the a'ctual possession of the seller, notwithstanding, an agreement on the part of the latter to deliver the property at a certain place when requested by the vendee. In such case the agreement to deliver will be construed to mean an agreement to transport merely, and the vendor will not be liable for the loss of the property after sale and before transportation.”
    It will be observed that in our contract the phrase is to be delivered at the landing of Fort Adams; not to be delivered to anybody there. It is also objected that, the weighing of the cotton remaining to be done, the property did not pass to the vendee, and numerous authorities at common law have been cited establishing the familiar principle that where the counting, weighing, or measuring of property sold in parcels remains to be done, the property does not pass to the vendee, but remains at the risk of the vendor. To this objection two answers may be made: First, as we have seen, this contract of sale is not to be construed according to the rules of the common law, as modified by the statute of frauds of Charles II, bat according to the rules of the civil code.
    Attention should be called to another point, that article 2470 of the Code provides, among other things, that the purchaser can “ claim no diminution of the price on a deficiency of the measure, unless the real measure comes short of that expressed in the contract by one-twentieth part, regard being had to the totality of the object sold, provided there be no stipulation to the contrary.’7
    The parties here were Louisiana planters, contracting according to the laws of Louisiana, with which they were familiar, it being probably such a contract as was made every year by them. IC Paid for when weighed ” is the “ stipulation to the contrary” to prevent the operation of the 5 per cent, or “ one-twentieth part ” rule of the Code.
    The common-law rules have always been invoked to determine at whose risk is the property, in case of loss, while it is being counted, measured, and weighed; but it has never been held that, where a contract of sale of an entirety has been made b5r a memorandum in writing, the price agreed upon, and the purchaser put in constructive or actual possession, the property did not pass so as to give the immediate right of possession to the purchaser, so that he could maintain either tro-ver or replevin as against a wrong-doer; and this court has decided that a title sufficient to maintain trover or replevin by the purchaser is such ownership as is contemplated by the Act March 3, 18G3. (Carroll v. The United States, 13 Wall., 151,153.) We should, however, reach the same result by the common law. The common-law rule, as laid down in Gilmore v. Sample, (11 Moo. P. C. 0., 566, 1858,) is now expressed as follows:
    “ By the law of England, by contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and the right would be in the seller, unless it can be shown that such was not the intention of the parties.”
    And in the Calcutta Company v. Be Multas, (32 L. P. Q. B., 222,228,) Blackman, J., pronounces this “ to be a very accurate statement of the law.” (Benj. on Sales, 220.)
    So is the law of this country.
    The American rule is well stated in Grofut v. Bennet, (2 Comst., N. Y., 258.)
    
      Mr. Montgomery Blair.¶as heard on behalf of C. Y. Woodruff & Co., for the use of Charles S. Lobdell.
    
      
      Mr. Joseph Casey for Julia A. Nutt, executrix :
    I)kl Nutt’s contract convey to him the property in the cotton 2 Was he the owner of it when seized? It was a present sale, at a stipulated price, of a designated lot of cotton, payable at a future time. It was a completed, perfected, unconditional sale. Ohitty, in his work on Contracts, .page 336, says:
    “As to the change of property effected by such a contract, it is clear that by the law of England the sale of a specific chattel passes the property without delivery.”
    Benjamin on Sales, Am. ed., §§ 313 to 317, and authorities cited. In § 315 it is shown from citations both in the text and American editor’s notes, that Noy’s maxim, “unless the money be paid presently, unless day be expressly given,” is not the modern law, either in England or America. In Cilmour v. Supple, (11 Moo. P. O. 0., 566,) Sir Cresswell Creswell says:
    “By the law of England, by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown such was not the intention of the parties.”
    And in the Calcutta Company v. Be Mattos, (32 L. J. Q. B., 322-323.) Mr. Justice Blackburn adopts this as a correct statement of the law.
    And also per Shaw, C. J., Arnold v. Delano, (4 Cush., 40.) Chapman, 3., Ropes v. Lane, (9 Allen, 502;) Gale v. Burnell, (7 Q. B., 850;) Cortland v. Morrison, (32 Maine, 190;) Poth. Oont. of Sale, by Cush., §§ 308-313; 2 Kent, 5th, ed., 522. Contract may be executory, and yet the property pass. It is a question of intention. This was evidently a present sale of the 2,100 bales, at 875 per bale, payable in Liverpool, because nothing remained to be done either by the seller or buyer, and the property was designated and specified. {Austiri v. Craven, 4 Taunt., 644; Cutwater v. Dodge, 7 Cow., 86; Woods v. MeGee, 7 Ohio, 128; Riddle v. Varnum, 20 Pick., 280; Hunter v. Hutchinson, 7 Barr, 140; Wing v. Stark, 11 Shep., 366; Shindler v. Houston, 3 Denio, 48; Chit, on Oont., 9th Am. ed., 336, 337, and notes.) In such case it is a question of intention under all the facts. This has not been found by the Court of Claims. (Riddle v. Varnum, 20 Pick., 283; Hatees v.'Watson, 2 B. & C., 540; Downer v. Thompson, 6 Hill, 208; Dennis v. Alexander, 3 Barr, 50.)
   Mr. Justice Strong

delivered tbe opinion of the court:

These eases 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 determine whether the contracts were or were not forbidden by the Non-intercourse Acts of Congress. It is sufficient to examine the contracts themselves, and to determine what is their true meaning.

From the findings of the Court of Claims it appears that the cotton, which is the subject of controversy, was raised upon three plantations in Wilkinson County, Mississippi, worked by John J. Elgee and Josiah Chambers. The interest of the latter, whatever it may have been, was, however, abandoned to his co-partner, and before the seizure, under the Abandoned or captured property Ae^ the whole right of Chambers to the cotton had become vested in Elgee exclusively. This has not been controverted. The fundamental question, therefore, is, in all the cases, 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 Abandoned or captured property Act. In regard to such property, only such suits can be .brought as are authorized by the statute. That statute (Act March 12, 1863) 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 maj-assert against the Government. According to the well-known 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 is that 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, to 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.”

Thus, it is 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 hare been paid into the Treasury of the United States.

We are, then, to inquire whether Woodruff & Bouchard 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, 186-1; 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 who 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' & Bouchard 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. What, then, was that contract ?

On the 31st day of July, 1863, W. C. Gordon, an. authorized agent of Elgee & Chambers, entered into the following agreement with Lobdell:

“Mississippi; WiUcinson County.

“ We have, this 31st of July, 1863, sold unto Mr. C. S. Lob-dell our crops of cotton now lying in the county aforesaid, numbering about 2,100 bales, at the price of 10 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 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 $30. This cotton will be received and shipped by the house of Da Silva & Go., 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..O. GOEDON,

“Agent for Messrs. JElgee & 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 Books,” or “Felter7s Plantation,” about ten miles from the Mississippi Eiver. 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 J. M. 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 burned 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 Lob-dell ? 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, pages 151,152, states two of them, and Mr. Benjamin, in his treatise, 2d edition, page 236, adds a third. They are as follows:

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 the 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 of 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, &e., or such a case as the present, all the cotton at a designated pilace. A considerable number of the numerous authorities which justify these rules are collected by Mr. Benjamin in his Treatise on Sales, 2d edition, pages 234, et- seq. Applying them to tbe contract now under consideration, we think that it cannot be maintained that the parties intended the contract 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 ven-dee. In the leading case of Hanson v. Myer, (6 East, 114,) 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 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, (5 B. & C., 857,) where the contract was, “ I have this day sold the bark stacked at Bedbrook, at £9 os. per ton of twenty-one hundred-weight, to Hezekiah Swift, which he agrees to take and pay for on the 30th of November, October 23d,” 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 (6 Moo. P. C. C., 116) the sale was by the following contract; “Hart, Logan & Co., of Montreal, sell, and Le Mesurier, Bouth & 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, Ottawa Biver, 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 nest, and payable by the purchasers’ promissory notes, at ninety days from this date, at the rate of 9-3rd. per foot, measured off. Should the quantity turn out more than above stated, the surplus to be paid for by the purchaser at 9per.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 deliverj-. Here the timber was fully specified by the description and by the place where it lay. A statement of the estimated quantity was given; the time and place of delivery were 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. (See Lagury v. Furnell, 2 Camp., 240; Rugg v. Minett, 11 East, 210; Gilmour v. Supple, 11 Privy Council, 551.) 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 (2 H. & C., 200) 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 2s. 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 Kershard v. Ogden (3 H. & C.r 717) is in substance the same. In each of these eases 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 (2 Comst., 258) 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 by weighing or measuring before delivery. And in Kimberly v. Patchin, (19 N. Y., 330,) and Russell v. Carrington, (42 N. Y., 118,),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 or 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 (52 N. Y., 553) 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 further, 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 parties that the property was not intended to be changed until the weighing, delivery, receipt, and payment took place. So it was regarded in Logcm v. Le Mesurier, (supra.) 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, in an unfinished condition and acquire the right of 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 unbalod 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, that 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 introduc-tiou of a similar clause in a contract considered in Martineau v. Kitching, (7 Law Rep. Q. B., 436.) There it was stipulated that the goods should remain at the risk of the sellers ; and Lord Cockburn asked, “If the property in the goods had not passed to the'buyers, why was it 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 couutry. 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 830, “ in ¡I 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, 2d | edition; pages 2G0-262, and the conclusion is reached that the) true legal effect of earnest is simply to afford conclusive evi-f dence that a bargain has been actually completed, with mutual , intention that it should be binding on both; and that the inquiry i whether the property has passed in such cases is to be tested, ¡ not by the fact that earnest is given, but by the true nature of 1 the contract concluded by giving the earnest. The author says , further, “No case has been found in the books in which the giv-! ing 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, 1S64. 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 iior Woodruff & Bouchard, 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 non-intercourse 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 £16 per bale, to be paid in Liverpool, 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 addressed by Elgee to Holmes afterwards, which it is argued was itself a sale. It was dated October 8, 1863, and was as follows:

“Dear Sir : It having been agreed on between you and myself that I sell to you all the cotton-of Elgee and Chambers now baled and under shed, for the price of fifteen pounds sterling per bale, payable in Liverpool, you will cause the same to be placed to my credit with James A. Jackson & Co., of Liverpool.

“ J. K. ELGEE.

“Capt. Truman Holmes, Present.”

This 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 representatives are entitled to a judgment for the entire proceeds of the cotton held in trust for the owner.

The judgment of the Court of Claims is reversed, and the record is remitted, with instructions to dismiss the petition of Woodruff & Bouchard, and Julia A. Nutt, executrix, and to-enter a judgment, in favor of the personal representatives of John K. Elgee, for the sum found in the Treasury, the net proceeds of the sale of the cotton.

Bradley and Hint, JJ., dissented.  