
    Seth Spring and Others versus Peter Coffin.
    A agrees to sell certain merchandise to B. Before any bill of parcels was made by A, and before he had received any payment, B caused the merchandise to be removed to the store of C, a commission merchant, to whom B was at the time indebted. Afterwards the bargain between A and B was rescinded, of which C had notice; notwithstanding which he sold it to D, a stranger, tailing his promissory note for the value. It was holden, that, by the rescinding of the bargain between A and B, the property was revested in A, wholly discharged from any supposed lien on the part of C, and that the sale to D was wholly void.
    Replevin of twenty-four hogsheads of rum. Issue being joined on the property of the plaintiffs, the same ws tried at the last November term in this county, before Parker, J., and a verdict found for the plaintiffs, subject to the opinion of the Court upon the following facts reported by the judge, who sat at the trial.
    In February, 1810, the plaintiffs were the owners of the rum replevied, it being in the store of Ammi Cutter; when one Phineas Cole agreed to purchase it of Spring, and to pay for it by his note payable in-days, endorsed by William F. Salter, who was a commission merchant in Boston, but was then absent on business at Portland. About the 22d of February, while the rum remained in Cutter’s store, before the note was made, Cutter, wishing to have it removed, informed Cole, who desired Samuel Blake, then occupying a part of Salter’s store, to remove it to that store. Blake called on Cutter for the rum, but he refused to deliver it without an order. Blake, having met Spring and Cole in State Street, told them an order was necessary; and Spring immediately wrote and signed one in the following words: “ Please deliver the bearer 24 hogsheads of rum sold Cole.” — Blake took the rum, and placed eight hogsheads in Salter’s store, eleven in a cellar occupied by Blake himself, and five were sent to some other store. Blake considered himself as acting for Salter, who was absent; and having other rum, which he was about advertising, for sale, asked Cole whether he wished to have this sold; to which he assented, if a cer- [ *32 ] tain price could be obtained; * but it was not sold. Salter returned to Boston about the last of February, and Cole (who had forwarded to him at Portland a note or notes to be endorsed, pursuant to his agreement with Spring, but which had not been received,) informed him of his purchase, and that he had agreed to procure his, Salter’s, endorsement; to which Salter assented. On the 1st of March, Spring came to Salter’s store, and observed to Cole that he had never received a bill of parcels of the mm, and that it would be better to bring the business to a close, and requested Cole to call at his lodgings that evening. Cole procured the endorsement of Salter to his note, and carried it to Spring, who expressed doubts of the security, which Cole attempted to remove, suggesting that the endorser was sufficient, if he himself should be unable to pay. Spring said that he had rather give up the bargain, and take the rum again, unless Cole would procure the endorsement of a Mr. Coffin, of Newbwryport. Cole then agreed that, unless he brought the note endorsed by said Coffin that evening, the bargain should be at an end. On returning to his lodgings, having heard of a failure in Salem which would much affect him, he concluded not to ask Coffin to endorse his note, and did not return to Spring. On the next day, Salter called at the lodgings of Cole, who then informed him of the conversation with Spring held the evening before, and gave back to him the. note which he had endorsed, as the consideration for the rum. Salter expressed some regret that Cole had given up the bargain, to which Cole replied by asking whether his note was not worth as much as the rum. Salter, in his business of a commission merchant, had done business to a considerable amount for Cole, and at the time of this transaction was endorser upon his notes for 5000 dollars; but the notes were not then due. There was an unsettled account between them, on which it is now found that a balance of 56 dollars was due from Cole to Salter on the 7th of March. On the day last mentioned, it being ascertained that Cole had failed, Salter caused the rum to be attached as Cole’s property. Spring * came into the store and said the rum was his, that the [ * 33 J bargain between him and Cole was not complete, and that he should replevy it; of which Salter and Mr. Townsend, his attorney, were informed; and Salter said that he knew all about it. The attachment was relinquished, and the officer was desired to leave his man there for an hour or two; when the defendant having come into the store, Salter made a bill of parcels of the rum to him, and received his note for the amount, without an endorser, payable to Salter in ninety days. Salter then procured several trucks to remove the rum to the defendant’s store, and the plaintiffs replevied it, after part of it was in the store, and part was on its passage.
    The judge instructed the jury, that if they were satisfied from the evidence that Spring and Cole had agreed to rescind the bargain respecting the rum, and that Salter knew this fact on the day after it took place, he could not convey any title to the rum, by selling it as Cole’s property; that the rescinding of the bargain revested the property in Spring, and that Salter had no control over it, having had no directions or authority from Spring to dispose of it.
    
      Prescott and Townsend, for the defendant,
    argued that, by the sale from Spring to Cole, the property was vested in the latter, and, when placed by him in Salter’s hands for sale, Salter had a lien upon it for the moneys due him from Cole. Salter never assented to the rescinding of the bargain, and therefore never gave up his lien. The defendant, ignorant of all these transactions, found the rum for sale in the hands of a commission merchant, and made a bona fide purchase of it, in which the law will protect him.
    
      The Solicitor-General, and Munroe, for the plaintiffs, were stopped by the Court.
   Curia.

When the contract between Spring and Cole was rescinded, its whole effect ceased; it was annihilated. The property remained the plaintiffs’ absolutely, and was discharged from any supposed lien on the part of Salter. As he knew all the [ * 34 ] facts, the sale by him to the * defendant was fraudulent, and nothing passed by it. If the defendant has paid the note, which was the consideration for the sale, he has his remedy against Salter for the money, as paid for a consideration which has failed. The plaintiffs may enter judgment on the verdict.

ADDITIONAL NOTE.

[As to the possession and claim of title necessary to a lien, see Wheeler vs. M'Farland, 10 Wend. 318.— Saltus vs. Everett, 20 Wend. 267. — M'Farland vs. Wheeler, 26 Wend. 467. — Bryce vs. Brooks, Ibid. 367. — Lloyd vs. Holly, 8 Conn. 491. — Townsend vs. Newell, 14 Pick. 332. — Buxton vs. Baughan, 6 C. P. 674.

The rescinding of a contract restores the parties to their former rights, and places them as they were before the contract was made. — Griffith vs. Fred. Co. &c., 6 Gill & J. 424. — F. H.]  