
    Durbrow et al., Plaintiffs and Respondents, v. McDonald et al., Defendants and Appellants.
    1. Where a valid contract is made for the sale and delivery of the wheat in a specified boat for cash; and the buyer designates a vessel into which the wheat is to be delivered and the seller accordingly has it measured as is -customary in such cases and placed on board of such vessel, and sends to the buyer a duplicate measurer’s return or certificate of the quantity, and a bill for the wheat at the contract price, and the seller thereupon requests payment from the buyer, who answers that he will pay on Saturday, (the second day thereafter,) and the seller makes no objection thereto; and where there is no fraud in mating such contract or obtaining such delivery, a person in good faith advancing money on the same day to such buyer on the security of such wheat and on the faith of his being the owner thereof, will obtain a valid title thereto as against the seller to the extent of such advance; although such buyer fails after obtaining such advance and thus becomes unable to pay to the seller any part of the contract price. '
    2. Such a delivery being all the delivery which the parties contemplated or the contract required; it was subject to no condition unless it be an implied one, that payment be made if demanded, when all the wheat was delivered.
    3. Where, in such a case, an advance is made to such buyer upon the understanding at the time of both parties to it, that it is made on the security of such wheat; and that the person advancing should thenceforth have the control of it and that a bill of lading should be issued to him as the shipper of it, making the wheat deliverable to his order at the port of destination, and such bill of lading is immediately thereafter so issued and delivered; the person so advancing from the time thereof has the right of possession and of control, as against the seller.
    4. Evidence of other cotemporaneous purchases by such buyer and of his failure to pay therefor on the day he agreed to pay, there being no evidence that they were fraudulent or that any representations were made in negotiating the contract for the wheat in question, is inadmissible.
    (Before Bosworth, Oh. J., and Woodruff and Moncrief, J. J.)
    Heard, June 15th;
    decided, July 9th, 1859.
    This is an appeal by John Child, Francis McDonald, Peter McLeod, Hodgson Bigland and John Athya, (the defendants, who, exclusive of John Child, compose three several firms, via.: the firm of Francis McDonald & Co., of N. Y.; Bigland, Athya & Co., of Liverpool; and John Athya & Co., of Glasgow;) from a judgment in favor of John B. Durbrow, John C. Winne and William R. Sheldon, (the plaintiffs, who compose the firm of Durbrow, Winne & Sheldon,) entered on a verdict rendered on a trial had before Mr. Justice Pierrepoht and a jury on the 19th of November, 1858; and from an order denying a motion made by the defendants for a new trial.
    The action was commenced about the 25th of October, 1856, to recover the possession of 8,4-991 bushels of wheat, then on board of the ship Compromise, then in the port of New York, and of which the defendant, John Child, was master.
    The complaint states, that on or about the 22d of October, 1856, the plaintiffs placed this wheat on board of the Compromise then bound for Glasgow; that it was their property; that on the 24th of October Francis McDonald & Co. wrongfully asserted a right of property in the wheat and notified Child thereof, who assented to the same, acknowledged them as the shippers and agreed to carry it for them to Glasgow; a demand of the wheat of the defendants; their refusal to deliver and wrotfgful detention of it; and prays judgment for a recovery of the property and damages for the detention.
    The defendants by their answer deny these allegations, except the demand of and refusal to deliver the wheat; and as a separate defense aver that Theodore Perry was, on the 23d of October, 1856, the owner of the wheat, that it was then on board of the Compromise, which was then in the port of New York bound for Glasgow; that Child was then master of said vessel, and that Francis McDonald & Co., being factors and commission merchants, on that day, at the request of Theodore Perry, advanced to him $5,000 on the wheat, on an agreement to sell the same at Glasgow and account for the proceeds; that Perry then duly transferred the wheat to them and ordered Child to hold it for them, and that Child, in pursuance of such order, on the 24th, issued and delivered to them a bill of lading by which the wheat was made deliverable at Glasgow to their order or assigns; whereby they became lawful owners of the wheat and entitled to the possession thereof.
    
      A. F. Be Laze, a broker, testified that on the 21st of October, 1856, he made a contract in writing between the plaintiffs and Theodore Perry, (which was produced and reads thus,) viz.:
    ' “ New York, October 21st, 1856.
    “ Sold to Messrs. Theo. Perry & Co., per J. W. Spencer, broker, account Messrs. Durbrow, Winne & Sheldon, 3,921 bushels western red wheat, per bt. D. Hibbard, 3,500 ditto, per bt. Ural, at $1.54 per 60 lbs., delivered to vessel in good shipping condition. Quality, as per sample. Payment, cash.
    “Alfd. F. De Luze, Broker.”
    That he made the sale through a broker, J. W. Spencer, who acted on behalf of Perry; that Spencer told him the wheat was to be sent on board the Compromise, at Pier 14, East River, and he requested the plaintiffs to send it there; that he sent the bought note to the plaintiffs and the sold note to Perry.
    
      William R. Sheldon, one of the plaintiffs, testified that he recollected the request to send the barges containing the wheat alongside the Compromise; that a measurer was employed as usual to measure the wheat; he measured the wheat from the Ural and made duplicate returns, one for vendor and one for vendee; and on the morning of the 23d, witness sent the duplicate, and a bill for it, to Perry. The measurer’s return, omitting unimportant particulars, reads thus, viz.:
    “ Old Board of Measurers’ Office, 21 Ooenties Slip. Paul Grout, President.
    
    Jesse Marvin, James M. Hedges, Benj. L. Guión,
    Edward G. Burgess, William Beach,
    T. J. Grout,
    John Wright.
    “New York, Oct. 22,1856.
    “ Returns of thirty-five hundred and thirty-four bushels of Red Wheat, delivered from bt. Ural to' ship Compromise, after Bin. Order of Theo. Perry, acc. of Durbrow, Winne & Sheldon.
    “ Half measuring,.........................$8 84
    “ Screening,.............................. 2 20
    “ 3,534 bushels measure. , “ 3,499 30 12 weight.
    “Ex. R. O. M.”
    $11 04
    “ C. H. Dougherty.
    The bill for the wheat (sent with the measurer’s returns) reads thus, viz.:
    “New York, October 21st, 1856.
    “ Messrs. Theo. Perry,
    “Bought of Durbrow, Winne & Sheldon,
    “ 51 New street.
    “ Terms cash.
    “ 3,499 30 12 bush. Red Wheat, as per returns, at
    $1.54 per bush...........................$5,389 25
    “ One-half measuring and screening, ............ 11 04
    “$5,400 29
    “Ex. R. O. M.”
    He further testified thus: “ On the 23d of October I met Perry on the Corn Exchange, and requested a check for the amount of this bill; Perry said he would pay on Saturday ; * * the return for the other boat-load .* * I got * * on Friday, October 24, and sent it that morning, with a bill of. parcels attached, with a note from one of our firm requesting a check; he retained the bill, and sent back the measurer’s return for the wheat with a message that he would like to see one of our firm; * * I went to see him; Perry said he had stopped payment the day before, and was not able to return the measurer’s return for the previous boat-load; * * I then went to see the broker, and, in company with him, went to Perry and demanded the wheat and documents of him; he refused them; -we then went to the owner of the ship, to demand the wheat of him f we found that the bill of lading for the wheat had just then been delivered, and then went to the defendants’ office and demanded the wheat of them; they said they had advanced to Perry, and the wheat was their own.” He was asked this question:
    
      Q. “In October, 1856, in case of sales of.wheat in bulk like this from a canal boat or barge to a vessel, what was your practice, and what was the course of'trade after the property had been sold ?
    
      Á. “ The measurer sends the seller his return in duplicate; the one is called a whole return, the other a half return; the only difference between them is, that in the half return, which is intended for the purchaser, one-half of the amount of the measurer’s fee is stated, the seller paying the whole in the first instance to the measurer; I send the half return, with a bill of parcels, to the purchaser; then send for the money; do nothing more.”
    ■ It was admitted that Perry’s notes were protested on the 23d of October; and the plaintiffs, against the objection and exception of the defendants, were permitted to give evidence that Perry purchased grain of other houses in October, 1856, viz., on the 12th, 17th and 22d of October, to large amounts, for which he failed to pay on the 23d; that up to that day his credit was good.
    
      James Hutchinson, a confidential clerk of the defendants, testified that, on the 17th of October, Perry told them “he was going to ship about 7,000 bushels by the Compromise;” that, on the morning of the 23d, before 12 o’clock, Perry applied for $5,000; “ at that time I refused to give it to him; he told me he wanted it on account of the Compromise; that there was one boat-load of wheat on board; I then gave it to him;” * * “I obtained from Perry the measurer’s return of the wheat on the morning of the 24th of October; that was the first time I had ever seen it;” that he got the bill of lading for the wheat that morning; the bill of lading was dated the 22d of October; it stated Francis McDonald & Co. to be the shippers, and the wheat to be deliverable at the port of Glasgow unto the shippers’ order or assigns; and it was read in evidence.
    Evidence was given tending to show that, in October, 1856, it was the usage in Mew York, in regard to wheat shipped in bulk, to sign and deliver bills of lading upon production of the measurer’s return.
    The Case states that
    “ The defendants’ counsel offered to prove that by usage in the city of Mew York, measurer’s returns of grain in bulk like that in evidence in this cause, were considered equivalent to ship’s receipts, entitling the bearer to bills of lading for the property.
    (The plaintiffs’ counsel objected to the evidence as incompetent, and the evidence hereinafter contained on that subject was received subject to the objection and without prejudice to the plaintiffs’ objection as to its legal effect.” )
    Evidence, of the character so offered, was then given.
    The charge of the Judge, although it did not in terms direct a verdict for the plaintiffs was, in substance, that they were entitled to recover, and the defendants excepted to it, as “being in effect a direction to the jury to bring in a verdict for the plaintiffs.”
    He charged '{inter alia) that “ there is not, it seems to me, sufficient evidence that the purchase of the wheat by Perry was fraudulent.”
    The defendants made various requests of the Judge to charge, with which he refused to comply, and the defendants excepted.
    The jury found for the plaintiffs, and the value of the wheat to be $6,183.63, and the damages for detention to be six cents.
    The defendants moved, on a case and exceptions, for a new trial, which motion was denied. From the order denying it and from the judgment entered on the verdict, they appealed to the General Term.
    
      
      Henry Nicoll, for appellants.
    I. Upon the sale of the wheat in question an actual delivery was not in the contemplation of either party: the wheat was purchased for the express purpose of being shipped to Europe, and this purpose was communicated to the sellers at the time of the making of the contract of sale; hence there could be none other than a symbolical or constructive delivery of the property.
    II. The plaintiffs, by the delivery of the wheat on board of the Compromise and by the delivery of the measurer’s return and bill of parcels to the buyer Perry, had fully performed their duty as sellers. Nothing further remained to be done on their part or could be done by them to vest him with the title of- the property. There was, therefore, a valid delivery and the-title must have thereby necessarily become vested in Perry. (Smith v. Lynes, 1 Seld., 41; Caldwell v. Bartlett, 3 Duer, 341; Keyser v. Harbeck, id., 373; McCready v. Wright, 5 id., 571; Wilmshurst v. Bowker, 7 Man. & Grang., 882; Tansley v. Turner, 2 Bing. N. C., 151; Key v. Cotesworth, 14 Law & Eq., 435.)
    III. The testimony in the case establishes, that upon sales of grain similar to the one in question, there was, by the usages of the trade, a valid delivery of the wheat to Perry, and the evidence of such usage was entirely competent and proper. (Keyser v. Suse, 1 N. Gow., 58; McCready v. Wright, 5 Duer, 571; Haggerty v. Palmer, 6 Johns. Ch., 437; Gilson v. Stevens, 8 How. U. S., 384.)
    IV. The wheat having been delivered and the title of Perry to the same thereby vested in him by the voluntary acts of the plaintiffs, the latter are precluded from reclaiming the property in the absence of any fraudulent intent on the part of Perry in making the purchase, and that no such fraudulent intent existed was conceded by the presiding Judge in his charge to the jury. (See cases cited to Point H.)
    V. Perry, at the time of procuring the advance upon this wheat from the defendants, on the 23d day of October, 1856, was in the possession of the same as owner. The defendants advanced their money upon the wheat on the faith of such ownership, and are therefore entitled to the protection due to Iona fide purchasers, and this would be so even though it should be admitted that as between Perry and the plaintiffs, the latter, upon the insolvency of the former, would have been entitled to reclaim the property had the same remained in his possession.
    VI. Although no muniment of title passed from Perry to the defendants directly upon the making of the advance, yet it is apparent that the defendants parted with their money relying upon Perry’s promise to put them in possession of the property in the manner in which he had been accustomed to do in previous similar transactions; this promise might have been enforced by the defendants. In performance of this obligation, the defendants were, on the morning after making the advance, invested with the title to the property; this was done before any attempt was made on the part of the plaintiffs to reclaim the same. (Fenby v. Pritchard, 2 Sand. S. C., 151; Beavers v. Lane, 6 Duer, 232.)
    VIL The evidence fully establishes the usage -by which the bill of lading of the wheat in question was properly delivered by the master of the vessel to the defendants as the lawful holders of the measurer’s return, delivered to them by Perry, in pursuance of his agreement, and for the express purpose of enabling the defendants to procure the bill of lading.
    VIII. The evidence relating to sales of wheat made to Perry in the month of October, 1856, was improperly admitted. No foundation was laid for such evidence, there being no proof that the sales in question were made upon any representations, or upon any fraudulent intent' whatever. (Hall v. Naylor, 6 Duer, 71.)
    IX. The evidence offered by the defendants to show the practice between their house and Perry as to getting measurer’s returns for wheat shipped in bulk, should have been admitted. The dealings between the parties in similar transactions were shown to have been large, and a practice had grown up in regard to getting these measurer’s returns from Perry, which would have applied to the particular case, without any express reference being made to it in the transaction. The order denying the motion for a new trial should be reversed.
    
      Jeremiah Larocque, for respondents.
    I. The contract for the two boat-loads of wheat was one entire contract. The plaintiffs had no right to demand payment until both boat-loads were on board the Compromise, and on handing to the purchaser the measurer’s return for the last boat-load. This was done on the 24th October, and the cash demanded, and on its non-payment this action brought on the same day. There was, therefore, in judgment of law, no delivery of the wheat, waiving the condition of cash payment. (Russell v. Minor, 22 Wend., 659; Smith v. Lynes, 1 Seld., 41; Van Neste v. Conover, 20 Barb. S. C. R., 554; Ives v. Humphreys, 1 E. D. Smith, 199; Nichols v. The People, 17 N. Y., 114.)
    II. The plaintiffs did not part with their title to the wheat by placing it onboard the Compromise, or by sending the measurer’s return to Theodore Perry & Co. The measurer’s return has none of the' attributes of a shipping receipt, and the usage attempted to be proved by the defendants’ witnesses, to deliver the bill of lading to the party presenting the measurer’s return, without further inquiry, would be invalid, if established, for unreasonableness.
    1.. It does not in any sense purport to be a muniment of title, but a mere return of quantity made by an officer employed for that special purpose, and not connected with the ship in any way whatever, or with the seller.
    2. On its face, in this instance, it shows the work to have been done on account of Durbrow, Winne & Sheldon, the plaintiffs.
    3. It thus conveyed notice to whomever it was presented to, that the property was theirs.
    4. It had not their indorsement or signature in any form, to indicate a transfer of their title.
    5. If such a rule could prevail, it would open the door to intolerable fraud and abuse. (Brower v. Peabody, 3 Kern., 121.)
    III. But if such a usage was established, it would not afford the slightest aid to the defendants here. Their advance to Perry was not accompanied by the delivery to them of any measurer’s return or other document whatever. No bill of lading was signed until the next day, the very day of the replevin. The only information they had was that there was “one boat-load on board the Compromise.” Whether it was wheat or what it was, they were not even informed. Nor had they the slightest in formation of the quantity. Boat-loads vary from 2,000 to 10,000 bushels. The $5,000 was loaned Perry before noon on the 23d, the very morning that that measurer’s return was sent by the plaintiffs to Perry & Co.
    IY. If the above positions are correct, the charge of the learned Judge to the jury was unexceptionable, on all the points as to which it was excepted to by the appellants.
    Y. For the same reasons, the appellants had no right to have any of the instructions given to the jury, which were contained in their several requests to charge.
    The judgment below was therefore correct, and should be affirmed, with costs.
   By the Court—Bosworth, Ch. J.

There are some facts established by testimony in no way conflicting. On the 21st of October, 1856, the plaintiffs and Theo. Perry & Co. entered into a valid contract, by which the former agreed to sell and the latter to purchase 3,921 bushels of wheat per boat D. Hibbard, and 3,500 per boat Ural, at $1.54 per 60 pounds, to be “ delivered to vessel in good shipping condition,” to be paid for in cash on delivery.

The vessel Compromise was designated as the one into which delivery of the wheat was to be made. On the 22d, the wheat was measured from the Ural into the Compromise, and on the morning of the 23d the measurer’s return, with a bill of the wheat dated the 21st, stating the quantity sold, “ as per returns,” to be 3,499 bushels, 30 pounds and 12 ounces weight, and the price at $1.54 per bushel, to be $5,389.25, and the charges for one-half measuring and screening to be $11.04, was sent to the purchasers.

Subsequently, and on the same day, one of the plaintiffs (Wm. R. Sheldon) met Perry on the Corn Exchange, and requested a check for the amount of this bill. Perry said he would pay on Saturday. The 23d was Thursday.

Sheldon does not state that he made any objection to this, or suggested that it would not be satisfactory.

On these few uncontroverted facts, it cannot be doubted, as we think, that Theo. Perry & Co. then had all the actual possession it was ever contemplated they would have, nor that they then had the full possession, and in the precise manner, that the contract between them and the plaintiffs contemplated that full performance by the plaintiffs would give. There was a perfect delivery of the wheat which had been measured into the Compromise in pursuance of the contract between the parties, in such sense, that its subsequent loss by perils of the seas, or other casualty,, would have been the loss of Theo. Perry & Co. Notwithstanding a subsequent loss of it, without the fault of either party, a tender of the balance would have enabled the plaintiffs, as a matter of right, to recover of Theo. Perry & Co. the contract price of the whole.

The most the plaintiffs can claim is, that although there was such a delivery made as satisfied the contract and fully performed it on their part, yet the delivery was conditional in such sense, that, if on delivering the balance, Theo. Perry & Co. refused or became unable to pay for the whole, the plaintiffs, as between themselves and Theo. Perry & Co., could have repossessed themselves of the wheat.

If this be so, the next important question is, did the transactions between Perry and Francis McDonald & Co. confer upon the latter a lien or title superior to the title of the plaintiffs.

We think it must be conceded that the purchase and possession by Perry were such as to enable him to confer upon a bona fide purchaser or pledgee for value, a title valid as against the plaintiffs. (Smith v. Lynes, 1 Seld., 41.)

The Judge instructed the jury that there was “not sufficient evidence that the purchase of the wheat by Perry was fraudulent.” It is the right of the defendants to have that instruction treated, for all the purposes of the present appeal, as correct.

The advance of the $5,000 made to Perry by Francis McDonald & Co., was made on the 23d, before 12 o’clock. It is not an unreasonable inference, from the testimony, that this advance was sought and made after the measurer’s return and the bill annexed to it had been delivered by the plaintiffs to Theodore Perry & Co.

Nor is it an unreasonable inference that this advance was sought and made on the understanding, (at the time it was made,) between Theodore Perry & Co. and Francis McDonald & Co., that it was made on the security of the wheat in question; and that the wheat was at the time of the advance pledged as security for the repayment of the money, so far as that result could be effected, by a clear understanding that Francis McDonald & Co. should have the control of it thenceforth, and a delivery to them of the measurer’s return, and a bill of lading issued by the master stating Francis McDonald & Co. to be the shippérs of the wheat, and that it was to be delivered at Glasgow to their order, to the end that it might be sold by their house there to reim-. burse them for this and other advances, and by the execution of that understanding on the following morning, by the actual delivery of the measurer’s return and the contemplated bill of lading.

If Perry had paid the plaintiffs on the morning of the 23d for this wheat in full, at the time he was requested so to do, at the Corn Exchange, nothing more could have been done according to the usual course of business, so far as the evidence discloses what that was, than was done, to vest in Francis McDonald & Co. the legal title to the wheat, or to confer upon them the actual and legal control over it.

If the transaction was understood at the time of the advance, and was then intended to be such as is above suggested, then Francis McDonald & Co.’s right of possession and to control the wheat was perfect, as between them and Perry, had he been the absolute owner.

A transaction which would, had he been the absolute owner, have divested him of all right of possession and to control it, must have the same effect as against the plaintiffs, if the advance was made bond fide and in the actual belief that Perry was the owner, followed as it was, almost cotemporaneously, with the execution and delivery of all the muniments and evidences of title that were adapted to the subject matter of the contract, situated as the wheat in question was, at the time the advance was made.

The charge of the Judge submitted no question of fact to the jury and was, in substance, an instruction to find for the plaintiffs, and was excepted to by the defendants on that ground.

We think there was sufficient evidence to justify the submission of the question whether the advance was made in good faith and upon the security of the wheat in question, and upon the understanding at the time that it should be thenceforward subject to the control and direction of Francis McDonald & Co., and that a bill of lading should be procured and delivered to them as the shippers, which by its terms should make the wheat deliverable at Glasgow to their order.

And they were entitled to the instruction, that if the jury found the affirmative of that proposition, the defendants were entitled to a verdict.

Evidence was admitted “ subject to the objection ” of the plaintiffs, “ and without prejudice to the plaintiffs’ objection as to its legal effect,” that it was the usage in the city of Eew York, in October, 1856, to issue bills of lading to the person producing the measurer’s return of grain shipped in bulk.

With what view it was admitted, the case does not clearly disclose. It is quite clear .that no evidence was given which could have the effect to make the measurer’s return operate to transfer the legal title to the wheat, to every holder of it by reason and force of his mere possession of it.

The only plausible ground, if any, for admitting evidence of the practice,, is its bearing upon the question of the good faith of Francis McDonald & Co., so far as any light could be thrown upon that question, by proving that their transactions were according to the ordinary and usual course of business. ' But the case presented no such question, and the evidence seems to be irrelevant. As, however, the plaintiff obtained a verdict, this question does not properly arise on the defendants’ appeal.

Evidence of other purchases made by Perry in October, 1856, was admitted against the objection and exception of the defendants. The evidence must have been offered and received as competent evidence, upon the question whether the wheat in question was purchased with a preconceived intent not to pay for it.

Eeither the evidence of Van Syckel, Averill, or Whittlesey, tended to prove any fraudulent intent in making the purchases of which they testified, or making the purchase of the wheat in question. (Hall v. Naylor, 6 Duer, 71; S. C., in the Court of Appeals, 18 N. Y. R., 588.)

The judgment and order appealed from, must be reversed and a new trial granted, with costs to abide the event.

Ordered accordingly.  