
    Healy against Utly.
    Whether a contract of sale is rescinded or [jf^ctfofthe parties, is liwfwhercf the ^evidence the acts and such an effect eiear^amf’undisputed. where t7™?oid °ars chased by delivered to s, after deiared tiiat he for them; that th'em “andado the best he them-'and L, took. them ac-. delivered’ ^ the,m SeTz nclc, who sold them, and u. gave a receipt and order to Herrick, in which he called them his (XT’s) oars, and thereby appropriated a part of the proceeds thereof, when the same should be sold ; held, that the contract of sale was rescinded by tírese declarations and acts of the parties ; that the property in the oars was thereby - revested in XJ. and that he could not be considered as the mere agent of H. either in fact, or from necessity; that consequently H. was not liable to XJ. for the difference between the contract price and the sale price, as he would have been, had the relation of vendor and. vendee still continued to subsist between him and H. '
    
    
      Held, also, that in an action in the Court of Common Pleas, by XJ. against H. for the difference between the contract and sale price, the court, upon the above tacts, should have non-suited the plaintiff; and that their refusing to do so, was error.
    Error from the Court of Common Pleas of Franklin . . County. The action in the Court below, was assumpsit, by Utly against Healy, upon a special agreement by Healy, to purchase certain ash oars of Utly. Plea, the general issue. The cause was tried on the 10th day of October, 1322, and a verdict found for the plaintiff below, for $63,69, upon which the Court below rendered judgment with costs, A bill of exceptions was taken at the trial, which was in substance as follows :
    On the trial, Samuel P. Nims was sworn, as a witness for the plaintiff, and testified that, in August, 1819, one Spots-wood made a contract with Utly, to purchase all the oars wdiich he, Utly, could procure before Spotswood’s raft, then lying in Salmon River, should arrive at the Coteau de Lac, about thirty miles below ; that the price agreed upon per foot he did not recollect; that the oars were to be delivercd at the Coteau de Lac, in time not to impede the progress of the raft; that the witness and Utly started immediately, and went down the river St. Lawrence, and procured and brought to the Coteau de Lac, the next day, at night, Utly’s oars ; that Spoiswood then objected to receive them, on account of their not coming in time; that Spotswood’s raft then lay at the Coteau de Lac, and lay there all the next day, as the witness thinks; that it was hindered from going, on ac'count of adverse winds ; that the next day, after the witness J and Utly had arrived with the oars, Spoiswood agreed to receivc them at the culling of the witness, if they were delivered by a given hour that day, alleging that he wanted to go down the river, liimself, before the raft went; that the witness cu^e^ fbe oars, and presented the culling bill to Spots-wood, not far from the time agreed upon, the witness thinks a few minutes after the hour, but those who assisted in the culling thought it was before the hour agreed upon ; that Spolswood, on the presentation of the bill, evaded saying whether he would take them or not, but observed he would see about it at the Cedars, a place still further down the river ; that the, number of feet of oars was 4614, as appears by the bill df culling ; that the witness went down to Montreal on the raft; that the oars also went there on the raft; that, at Montreal, Utly took the oars from Spolswood1 s raft, and delivered them to a Mr. Herrick, to take to Quebec, to deliver to Doctor Man, to be sold for U%’s benefit; that the witness does not know that Utly made any claim upon Spots-wood or Healy, at Montreal, or elsewhere, for the pay for the oars. In answer to the question whether Spotswood was Healy1 s agent, the witness answered, that Healy told him, in Montreal, that he had sent Spotswood to Salmon River, to arrange and collect a debt he had against Erwin, and also one against Gove, and that he was his agent for that purpose ; that Spolswood received boards and planks of Erwin and Gove, of which the raft was composed; that he, the witness, had about $100 worth o lumber on the raft, which he had agreed to sell to Spotswood. The witness further testK fied, that, on the same day that the contract was made, Utly delivered oars, to the value of between ten and twenty dollars, to Spotswood, which were taken on the raft before it left Salmon River. The witness. further testified, that Utly took the oars which he had put upon the raft, and delivered them to Herrick, at Montreal ; and that, if all were not so taken by Utly, Spotswood had paid him for such as were not so- taken, and the witness had no doubt that they were all taken, except the small quantity of between ten and twenty dollars, above mentioned.
    
      Henry Bagly, sworn on the part of the plaintiff,
    testified, that, in August, 1819, Spotswood hired him to take down to 
      Montreal, from Salmon River, five cribs of boards and planks, which he, Spotswood, had received from Erwin and Gove, for Healy ; that the cribs were ready made, in the Salmon River, and the witness was to run them to Montreal, for $80 per crib ; that, after the witness had started from Salmon River, with the five cribs, Spotswood told him he had bought a quantity of oars of Utly, at a penny half penny per foot, to be delivered at the Coteau de Lac ; and, after the arrival of Utly’s oars at the Coteau de Lac, and after Spotswood had agreed to take the bars upon the culling of Samuel P. Mims, Spotswood came upon the raft, and directed the witness to haul them upon the raft, (which he did as fast as they were culled) and that he, the witness, should be paid for taking them to Montreal; that, at the Coteau de Lac, the raft was wind bound a few days ; that, as Utly’s oars were culled by Samuel P. Mims, he, the witness, pulled them on the raft; that, at the Cedars, or below, before the raft arrived in Montreal, Spotswood came on the raft. He told Utly that he had been disappointed about receiving money; that he could not pay for the oars ; and that he, Utly, must do the best he could with them; that, at Montreal, he delivered the five cribs to Spotswood, at the cross, about three miles below town, and that Healy paid him for taking them down, as an honest man should ; that Spotswood had agreed to find all the oars necessary to propel the raft; that he did not find them, nor procure them ; and that the witness was obliged to find such oars: that the witness, after he had received his pay, claimed a further sum of Spotswood, for finding such oars, and also taking the Utly oars to Montreal; that Spots-, wood agreed to submit the amount of this bill to some lum- • berman; and that he and Spotswood did go down-to the cross, and there submitted the bill to a Mr. Herrick, who decided it to be reasonable; that it amounted to $64, which sum Spotswood agreed to pay . the witness, on going up to Healy’s store, in town ; that he and Spotszvood went to the store, and Spotswood and Healy had a private conversation, which the witness did not hear ; and, soon after, Spotszvood came to the witness, and refused to pay the $64, alleging that he, the witness, must get it out of Erwin' and Gove, who ought to have furnished the oars forpropelling the raft; that the witness sold to Spotswood about eleven hundred feet of oars, which went down on the raft, and which Healy paid the witness for, in Montreal; and which oars he, the witness,understood Healy sent to Quebec, by Mr. Herrick. This witness also stated that, in a conversation with Healy, he understood from him, that Spotszoood was his {Ilealy’’s')' agent, so far as it related to all lumber contracts, which he {Spotszoood) had made at Salmon River, of"near there.
    
      Samuel Sanborn, Jun.
    
    sworn on the part of the plaintiff, testified, that it was worth $10 to take 100 oars, averaging eighteen feet long, from Salmon River to Quebec ; and that it was worth ■ about as much to take them from the Coicau do Lac.
    
    
      Charles H. Wheeler,
    sworn on the part of the plaintiff, testified that, the next season after Spoiswood took down the raft, he, the witness, had a conversation with Healy, relative to Spotszoood; that the witness informed Healy that there was great dissatisfaction at Spots-wood’s conduct at Salmon River ; that, particularly, Spotswood had made a contract with Utly, relative to oars, and that Utly was greatly dissatisfied with Spotswood’s conduct; upon which Healy observed, he had the greatest confidence in Spotszoood, and should ratify all lumber contracts made by him, when at Salmon River.
    
    
      Ebenezer Curtis,
    
    sworn on the part of plaintiff, testified, that he sold a few oars in Quebec, in the autumn of 1819, at one penny per foot, being the highest price that he could obtain for Doctor Man ; that the Doctor told him he wished he had sold them all at that price, if he could have effected such sale immediately; that oars were very low at that time in Quebec.
    
    Here the plaintiff rested his cause. The defendant then moved for a nonsuit, on the ground that the contract was rescinded by Utly; and that the oars were the property of Utly, when delivered by him to Herrick; which motion was denied.
    
      The defendant then introduced, in evidence, a receipt and order, of which the following are copies : '
    “ Received, Montreal, August lUth, 1819, of Martin Herrick, ten dollars, which he is to take, when he sells my oars. Henry TJtly.”
    “ Montreal, August 12, 1819. Mr. Herrick, Sir, please to pay the bearer, Samuel P. J'fims, forty dollars, if you get so much for my oars, above what is paid.
    
      Henry UtlyM
    
    After the introduction of the receipt and order, the defendant renewed his motion for a nonsuit, on the ground before taken; which motion was again overruled by the Court.
    To these decisions, the defendant below took the bill of exceptions.
    J. Parkhurst, for the plaintiff in error.
    The contract was rescinded. Spotswood informed Utly, that he could not pay for the oars, that he must do the best he could with them ; and Utly received them back, and delivered them over to Herrick. Suppose the oars had sold for more than the penny half penny per foot, will it be pretended that Healy could have recovered the excess of Utly ? It is plain, that the latter might have received the entire avails, without being at all accountable to the former.
    It is good cause for error, that the Court below refused to nonsuit the plaintiff, if the law is against the plaintiff’s action.
    
    This case bears no analogy to that of Sands & Crump v. Taylor Lovett,
      
       upon the principle of which the Court
    below refused the nonsuit. In that case, the wheat remained in the hands of the vendors. In this, the oars were in possession of the vendee. There notice was given by the vendors, to take away, and pay for the wheat, or it would be sold for the account of the vendors. Here the oars were finally re-delivered to, and in possession of the vendors, and no notice was given of the intention of Utly, to take- and' sell them for the account of Healy, and hold him responsible for any difference in price. 'tUis contract was at an end, by the consent of both parties. Spolswood, the agent of Healy, and, of course, with his implied assent, directed Tilly to do the best he could with the oars, to which Utly assented by re-taking the possession, and converting them to his own use.
    
    
      A. Wheelerr contra.
    The only point stated in the bill of exceptions, in which the plaintiff in error was overruled, is the refusal of the Court below to nonsuit on his motion. He must be confined to this single point. A bill of exceptions is not designed to draw the whole matter into examination again, but only the points to which it is taken ; and the party must lay his finger on those points. Whether a verdict is against evidence or not, is a question which cannot arise in this form. The motion for a nonsuit, was on the sole ground that the contract had been rescinded, by the plaintiff’s own showing.
    The contract, the agency of Spolswood, and the delivery of the oars at the Coteau, with their value, were clearly proved. Upon their delivery, and the presentment of the culler’s bill, the price became due, This was done at the Coteau, before the raft started for Montreal ; and a right of action accrued, the moment Spolswood refused to pay. Nothing huta release, or a contract for a valuable consideration, could defeat the claim.  True, Spotswood, the agent of Healy, refused to pay for the oafs after their arrival at the Cedars, saying he had been disappointed about receiving money, and that Utly must take the oars, and do the best be could with them. It is true, that this operated to rescind the contract on the part of Healy ; and authorized Utly to take and sell the oars for the best price that could he obtained, holding Ilealy responsible for the difference between the market and contract prices. The declaration of Spolswood, that Utly must do the best he could with the oars, was equivalent to an appointment of agency. Even without such an appointment, the law constituted Utly an agent to sell, which was no waiver of his right to damages
    
      for breach of the contract. The whole law, on this question, is considered in Sands et al. v. Taylor et al.
      
    
    
      TJtly’s taking the oars from the raft at Montreal, and sending them to Quebec, to be sold for his benefit, standing alone and unexplained, is not even prima facie evidence, that he had rescinded the contract. It was a circumstance affording ground for presumption and conjecture only. At all events, whether the declaration of Spotswood, and the subsequent conduct of Uily. rescinded the contract, was a pure, unmixed question of fact, appertaining exclusively to the province of the jury to determine. If a mixed question of law and fact, the rule would be the same. A variety of evidence had been given to the jury, without any objection to its admissibility. It was clearly proved, that a cause of action once existed. Whether this had been waived, released, abandoned or. destroyed by the act of Ully, was the only question in the cause, and was a question of fact. Had the defendant below intended to withdraw the evidence from the jury altogether, and so refer the whole matter to the determination of the Court, he should have tendered a demurrer to the evidence, upon which the jury would have been discharged ; or assessed the damages contingently. The Court should refuse a new trial upon this evidence, on the ground that it belonged to the jury. The admissibility of the evidence being established, how far it conduces to the proof of the fact, which is to be ascertained, is not for the Judge to decide, but for the jury exclusively,  The Court below could not, therefore, have nonsuited the plaintiff, without a manifest invasion of the province of the jury. They were bound to submit the cause to the jury. Formerly it was held, that the Court could, in no case, compel the plaintiff to be nonsuited : and the farthest this Court have gone is, to say, that a Court of Common Pleas ought to nonsuit, when the evidence is so clearly again st the plaintiff, that there is no dispute about the facts, or any weighing of testimony, falling within the province of the jury,
      
       or where the evidence of the plaintiff entirely fails to maintain his casc. In the last case cited, the plaintiff failed to prove the note against all the defendants, and there Xva's no evidence properly before the jury. This case presents the true point of distinction ; for the Court are the exclusive; judges of the admissibility of evidence ; and of its legal effect, when referred to them by demurrer and joinder. The matter here urged, as a ground of non-suit, if entitled to any weight at all, went merely in discharge of the action; and there is no complaint, that the whole case was not fairly sub-mitted to the jury.
    
      
      
         Foot V. Sabin, 19 John. 157.
    
    
      
       5 John. 395.
    
    
      
      
        Gillet v. Maynard, 5 John. 85. Towers v. Barret, 1 T. B. 133.
    
    
      
      1 Bac. Abr. Bill of Exceptions, 529. Van Gorden v. Jackson, 8 John. 467. Frier v. Jackson, 8 id. 507.
    
    
      
       2 Caines' Rep. 169. 14 John. 307.
    
    
      
       Sweet v. Palmer, 16 John. 183. 2 id. 450.
    
    
      
       5 John. 404, et seq.
      
    
    
      
      
        Foot v. Wiswall, 14 John. 307-8. 2 Tidd’s Pr. 791,2,3. Lewis v. Few, 5 John. 28. 2 H. Bl. 205, 8.
    
    
      
      
         12 John. 298.13 id. 335.
    
    
      
       2 Tidd's Pr. 785. 5 John. 28. 2 Wash. Rep. 203,110.
    
    
      
      
         2 Tidd's Pr. 768. 2 T. R. 281, Watkins v. Towers.
      
    
    
      
      
        Pratt v. Hull, 13 John. 335.
    
    
      
      
        Foot v. Sabin, 19 John. 157.
    
   Savage, Ch. J.

The boundary, which separates the powers and duties of Courts and Juries, has long been well defined. The jury are to ascertain and determine any facts which are disputed ; the Court are to pronounce the law upon those facts. The facts established in this case, beyond dispute, are the contract between Utly and Spotswood for the oars, the agency of Spotswood, the delivery of the oars by Utly, and the receipt of them by Spotswood, at Coteau de Lac. Had the evidence closed here, there would be no doubt about the plaintiff’s right of recovery. The important question then is, has he divested himself of that right ? Spotswood told Utly, at the Cedars, that he had been disappointed in procuring money, and could not pay for the oars ; and that he (Utly) must do the best he could with them. What reply Utly made does not appear; but, at Montreal, he took the oars in question from Spotswood’s raft, and sent them by Mr. Herrick to Dr, Man, at Quebec, to be sold for his (Uthfs) benefit. He calls them his oars, in the receipt and order on Herrick, for the proceeds of the sale. These facts are equally undisputed. A question of law, then, arises for the Court to decide, viz. whether the declaration of Spotswood, and the subsequent taking the oars from the raft, and disposing of them for Utly's benefit, he treating them distinctly as his own, are not full evidence of a re-sale of the oars by Spots-wood to Utly. In my opinion they are, even independent of the receipt and order ; and that the plaintiff shewed no right to recover : that it was the duty of the Court below so to have decided : and that, of course, the plaintiff should have been nonsuited. I think this case clearly distinguishable from Sands & Crump v. Taylor & Lovett, relied upon by the defendant’s counsel. In that case, the defendants, after receiving part only, of the wheat sold, refused to take the residue, and the plaintiffs were, of necessity, compelled to dispose of it. But in this case, the entire subject of the contract roas delivered. It was perfectly optional with Utly, whether he would take back the oars or not; and his doing so can be accounted for, upon no other principle, than the intention to re-purchase them in payment of his debt, or to rescind the contract, upon the alledged inability of Spotszoood to pay for them.

I am accordingly of opinion, that the judgment must be reversed, and a venire de novo awarded.

Sutherland, J.

It was in evidence, .¿bat after the oars were delivered to Spotszoood, and were on their way to Montreal, and when Utly was entitled to his pay for them, Spots-•mood told him he could not pay him, and that he must take the oars, and do the best he could with them. He, accordingly, accompanied the raft and oars to Montreal, and there delivered them to Herrick, to take to Quebec, to Dr. Man, to be sold on Utly^s account. There was no evidence of payment being demanded for the oars, at Montreal, either of Healy or Spotszoood, or of any notice, to either of them, that the plaintiff would sell the oars on their account, and hold them responsible for the difference between the price agreed to be given by Spotszoood, and that at which they might sell.

Upon this evidence, the defendant moved for a non-suit, on the ground of its being apparent that Utly con-" sidered the contract with Spotszoood rescinded, and treated, and disposed of the oars, as his own.

I think the nonsuit ought to have been granted. It is perfectly clear that Utly, on his arrival at Montreal, considered the contract at an end, and the oars as his own. And, on the authority of the cases of Pratt v. Hull, (13 John. Rep. 334) and Foot v. Sabin, (19 John. 154) the refusal to grant the nonsuit was error, for which the judgment must be reversed, and a vemire de novo awarded, returnable in this Court.

Woodworth, J. dissented.

He said, the purchase of the oarsi a stipulated price, was fully proved, as well as the subsequent delivery. Healy admitted that Spotswood was his agent, so far as related to all lumber contracts made by him at or near Salmon River. From this state of facts, Utly was entitled to recover, unless the defendant has shewn that the contract was rescinded. The only evidence applicable to this part of the case is, that soon after the delivery of the oars, and before the raft arrived at Montreal, Spotswood informed Utly he could not malee payment, and that he, Utly, must do the best he could with them. It docs not appear that any reply was made, nor explanation given, as to the terms upon which the oars were to be taken. At Montreal, Utly took the oars from Spotswood1 s raft, and delivered them to Herrick, to take to Quebec, to be sold for his benefit. The highest price for oars, at Quebec, was one penny per foot: Spotswood1 s contract was one and a half.

The defendant gave, in evidence, a receipt, from Utly to Herrick, in the words following : “ Rec’d. of Martin Herrick, ten dollars, which he is to take when he sells my oars also, a draft for $40. A motion was then made for a nonsuit, on the ground that the contract was rescinded, which was overruled, and the defendant excepted. There was no question of fact to be submitted to the jury. It is a mistaken view of the case, to say that the jury were to decide whether the contract was released or rescinded. The right to recover depends oh the legal effect of Spotswood1 s direction to the plaintiff, to do the best he could with the property, and his subsequent acts. In the case of Sands & Crump v. Taylor & Lovett, (5 John. 395) the plaintiffs sold to the defendants a cargo of wheat, who received a part, but refused to receive the remainder. The plaintiffs made a tender of the residue, and gave notice that, unless the defendants received and paid for the whole, the residue would be sold at auction and they held responsible for any deficiency. The Court held, that the contract between the parties, and its part execution, produced a change of property; that the defendants became entitled to the wheat, and the plaintiffs to the price; that they became agents for the defendants, from necessity. and their exercise of the right to sell ought not to be viewed as a waiver of their rights on the contract.

The principle of this case, I consider decisive of the present. The sale, by TJtly, was not, per se, a waiver. The vendor having a right to sell, where the possession is thrown on him, although the vendee does' not consent, I do not perceive how any well founded objection can be raised, after the vendee, by his act, restored possession to the vendor, and requested him to sell to the best advantage. By this act, the vendee appointed the vendor his agent.

It may be farther remarked, that the plaintiff, having a clear right to recover the contract price, the defendant ought to have shewn that the plaintiff agreed to accept the oars, in full satisfaction. But there is no such proof. The plaintiff merely sells at the request of the defendant. This is perfectly consistent with the claim he now sets up. He credits what he received, and demands the balance. If he had received more than the contract price, he was liable to refund the excess. In as much, then, as the plaintiff has not released, nor received payment, in full, nor given his assent to rescind, it would be consistent neither with law or justice, to deprive him of his remedy. I cannot conceive that the ease would be altered, if the defendant had delivered any other property to the plaintiff, and directed him to sell it. It would hardly be contended that it extinguished the debt. There must be proof it was so agreed, before we can arrive at that conclusion. The expressions used, shew that no such thing was intended. If, in truth, the plaintiff had received back the property, in satisfaction of the contract, it was immaterial to the defendant what disposition was made of it; but if it was delivered to an agent, to be applied, then the direct .ons, as to the sale, are pertinent, and accord with the inter . I am of opinion, that the Court below decided corr- „ly, there being no evidence that the contract was rescinrd ; and, consequently, the judgme t should be affirmed.

Judgment reversed.  