
    David Chappel, appellee, vs. Squire Marvin, appellant.
    
      Franklin,
    
    January, 1827.
    On a salo of chattels, a delivery of a part, and on agreement to deliver tho levy of a shop containing tho residuo to a third person, and an actual delivery of tho key to such third person, for tho uso of tho vendeo, is a sufficient delivery of the whole; and will enable the vendee to maintain trespass against a subsequent purchaser, from tho original owner of the chattels under lock and key, notwithstanding such subsequent purchaser first gets actualtwssession of them, by borrowing the key of the shop from the third person, with whom it was so loft»
    THIS was a motion by the defendant, for a new trial, founded on exceptions taken at the trial below, and which appear in the following case, as allowed and certified up, for the final decision of this Court.
    This was an action of trespass, for taking a quantity of white oak and white ash plank, and other timber, at Sheldon, on the first day of March, A. D. 1826.
    Plea, the general issue.
    
      Levi Hapgood, a witness; testified, that one Wyllis Redjield, then of said Sheldon, sold, as he understood, to the plaintiff, the plank and timber mentioned in the declaration, which were then in the shop, occupied by the said Redjield, and also some other timber at the barhhouse of the witness,- that the plaintiff afterwards came to the barhhouse and took away the timber from the barhhouse, and then said Redjield told the plaintiff the rest was in the shop, and he would leave the key of said shop with the witness, Hapgood, or with one Elisha Ganson, so that the plaintiff could come and get the plank and timber when convenient.
    
      Elisha Ganson, a witness, stated, that Redjield told him he had sold the timber to the plaintiff, and had received a note against one Freeman, of about ten dollars, and the plaintiff’s note for something more, in payment of the plank and timber; and that he was to leave the key of the shop with him, Ganson or Hap-good, so that the plaintiff could get the same when convenient; and that Redjield did leave the key with him, Ganson, when he went away, as he agreed ; and that Marvin called upon him for the key, and the witness let him have it, supposing he called for the plaintiff.
    
      Warner, a witness, testified, that Redjield told him and his brother, that he had sold the timber and plank to the plaintiff.
    The taking of the plank and timber at the shop, was admitted by the defendant.
    On the part of the defendant, John Lamed testified, that he had some conversation with the said Redjield, about purchasing said plank and timber, and in a second conversation with said Redjield, he, Redjield, told the witness, that he had sold the plank and other timber, to the defendant.
    
      Roswell Hulbert testified, that he was present at the shop, and heard Redjield and Marvin conversing about the plank and other timber, and they were then bargaining about the same. Redjield was offering to sell to the defendant, and that defendant wished to buy. The witness heard Redjield ask Marvin if he C0UW take away the plank at that time. The defendant said he could not, as he had a load. On the day before Redfield left Sheldon, he was at the house of the witness, and then Redfield £0]¿ him he jmi so]d the plank and other timber to Marvin, and could not otherwise dispose of the same.
    The Court thereupon gave in charge to the jury, that if they believed all the testimony on both sides, they ought to find a verdict for the plaintiff; for the purchasing by him, his paying as mentioned, and the agreeing to leave the key and the leaving it, and the plaintiff receiving what was at the barlchouse, amounted to a delivery as against Marvin; that nothing appears that filarmn paid any consideration for the timber, and his obtaining the possession, as testified, was no 'delivery as against the plaintiff. To which decision and charge, the said Marvin excepted, &c. v
    
      Burt having been heard in support of the motion,
    
      Brown, contra, rose to reply, but was stopped by the Court.-
    
      Stephen S. Brown, for the plaintiff.
    
      A. Burt and B. Turner, for the defendant.
   Hutchinson, J.

after stating-the case, delivered the following opinion.

The only questions litigated in this case, arise upon the charge of the Court to the jury. And the principal question there arising, is, whether the property in question was sufficiently delivered to vest the title in the plaintiff, as against Marvin. For the charge was,- that if the jury believed all the testimony on both sides, they ought to find for the plaintiff. There was no testimony that Marvin ever took possession, or had any control of the property, till the taking, of which the plaintiff complains as a trespass; and that control he obtained by the help of the key, which was left by Redfield, for the plaintiff; and it was delivered him by Ganson, who then supposed he applied in behalf of the plaintiff. This being all the possession of the defendant, the Court have no doubt but that the purchase by the plaintiff, and his going and taking what was in the barkhouse, and having the promise that the key of the shop should be left with Ganson, to enable him to get at the property in the shop, and the key’s being left accordingly, before Marvin obtained any possession whatever, as testified by the witnesses, was a sufficient purchase by, and delivery to, the plaintiff to entitle him to recover of the defendant. It was suggested by the counsel for the defendant, that the Court assumed the province of the jury, in saying, that it did not appear, that Marvin paid any consideration for the timber. This was obviously an allusion to there being no testimony of any actual payment by him, of any consideration. As the case undertakes to recite all the testimony, and as there is no mention of any such payment, the allusion was warranted by it. ■

The defendant takes nothing by his motion, and judgment must be entered upon the verdict, with additional damages and costs.  