
    Lewis T. Bond v. N. Greenwald & Co.
    1. Sale. When complete. Articles on which work is to be done. Defendants bought of Bond his cotton crop of 1861, and was to take it at the gin of Bond as it was ginned, and pay for it as it was ready; the ginning and haling to he done hy Bond, the weights to he ascertained at the gin. 'Fifty-two bales, more than half the crop, which was ready when the contract was made, were received hy defendants at the gin — the imrchaser urging and directing the operations of the gin, and claiming the cotton. It was ginned, haled and weighed hy Bond’s agents, and lay at the gin for a month, the purchaser not taking it away, when it was seized hy the Federal forces. Held to he at the risk of the purchaser.
    2. Gold Contract. Damages on, in U. S. Treasury notes. Damages upon a contract to pay gold or its equivalent, are to he computed hy adding the premium on gold over Treasury notes at the time the payment is due, to the sum contracted for, and giving judgment for that sum with interest to the date of the judgment.
    3. Writ oe Error. Not barred, by plaintiff in error collecting decree. A complainant who has taken and abandoned an appeal, may-collect his decree in the court below by execution, and then take a writ of error and increase the amount of his decree.
    Case cited: Roberts v. Cantrell, 3 Hay., 219.
    4. Practice. Decree on defective transcript. A decree having been entered when the record was defective for want of a replevy bond, which had been omitted by oversight, it was set aside and re-entered, a transcript of the replevy bond being produced.
    5. Replevin Bond. Judgment for debt. A replevin bond for property attached being given in the penalty of double the debt, with condition for payment of the debt, etc., or for the value of the property in the alternative, it was held that the defendants’ sureties were not entitled to have the judgment restricted to the value of the property, but must pay the debt.
    FROM HAYWOOD.
    Writ of error to the Chancery Court at Brownsville, to review a decree at December Term, 1867. John Williamson, Cli.
    HhmphRby B. Bate and E. J. & J. C. Bead for the complainants,
    cited as to the sale: Potter v. Coward; Meigs, 22 -T Shaddon y. Knott, 2 Swan, 362; Broyles v. Lowrey, 2 Sneed, 22; Williams v. Mkins, 1 Heis., 93; Hawthorne v. Bowman, 3 Sneed, 524; 2 Kent, 492 and n., 494, 496, 640 and n.; Sto. on Sales, §§ 296, 298 a. and n. 2, 299, 300, 309, 400; Williams v. Adams, 3 Sneed, 364; Jordan v. Harris, 31 Miss., 257; Crofoot v. Bennett, 2 Comst., 260; Crawford v. Smith, 7 Dana, 59, 61; Young v. Alston, 6 Pick., 280; Benj. on Sales, 221, 226, 227, 264, 338, 430; Young v. Mathews, Benj. on Sales, 228; Willard V. Perkins, 
      1 Busb. L. E. (E. 0.) 253; Boswell v. Greene, 1 Butch. (E. J.) 390; 1 Am. L. Eev., 418; Ridley v. Varnum, 2 Pick., 280; Goodrum v. Smith, 3 Hum., 542; Miller v. Roger, 9 Hum., 237; 11 Hum., 206; 5 Benio, 379; Parsons on Contr., 527, 528; Clark v. Spence, Benj. on Sales, 229, 231, 233, 238, 239, 240; Bryant v. Casby, 40 Maine, 9; 1 Am. L. Bev., 413, 415, 421, 431; Houston v. By che, Meigs, 76; Woods v. 'Burrough, 2 Head, 202; Bufón v. Bougherty, 11 Hum., 50; 1 Swan, 396; 2 Swan, 190; Middlesex Co. v. Osgood, 4 Gray, 447; Fain v. Fitzpatrick, 3 Col., 15; Bush v. Barfield, 1 Col., 95; 11 East, 210, 244 n.; 6 East, 624; 7 East, 571; Chitty on Contr., 374; Story on Contr., § 801; Parsons on Contr., 533; Addison on Cont., (top,) 224. As to the contract to pay in gold, they cited Hepburn v. Grisioold, 8 "Wal., 603; Bronson v. Bodes, 7 Wal., 229; Butler y. Ilorwitz, lb., 258; Story on Pr. Eotes, §§ 393, 394; 2 Parsons on Bills, 90; Carpenter v. Atherton, 4 Am. L. Bev., 227.
    J. B. Heiskell for defendant,
    cited and commented on Williams v. Allen, 10 Hum., 337; Bush v. Barfield, 1 Col., 92, and distinguished the case by the fact that there the “gin weights” were to control, and so the gin keeper was the agent of both parties to weigh; Williams v. Adams, 3 Sneed, 359; and Gilmour v. Supple, 11 Moore, 551; Benj. on Sales, 221, 224, and Fain v. Fitzpatrick, 3 Col., 15. He cited Cross v. Fdlin, 2 B. & A., 106. Com-' merited on Butler v. Honoitz, and Bronson v. Bodes, 
      insisting that the judgment should he in gold and not for the value of gold in greenbacks when due, and distinguished the cases of values of specific articles from gold, which is a standard of values,- and insisted that the rule in these cases was the true one and controlling.
    On the petition for re-hearing, he cited Roberts v. Cantrell, 3 Hay., 219, 220. He further argued that the rule of damages adopted was not consistent with Butler v. Horwitz, but attained a result entirely different and most unjust' — the purchasing power of gold being without variation, while by the measure adopted a much larger value was really given to the complainant than he would have had if the gold had been paid at the time when due.
   Sneed, J.,

delivered the opinion of the Court.

The complainant’s intestate, Lewis T. Bond, in his lifetime, by his agent, James Bond, bargained and sold to the defendant, Nathan Greenwald, his entire cotton crop of 1861, in bulk. At the time of the contract of sale a portion of the cotton was ginned and a portion in the seed. The sale was in the summer of 1862, and prior to the first day of August. It was stipulated in the bargain that the defendant was to take the cotton at the gin of Lewis T. Bond, in Haywood county, as it was ginned, and pay for it as it was ready — the ginning and baling to be done by the bargainor. The price contracted to be paid was twenty-six cents per pound in gold or its equivalent — the weights to be ascertained at the gin. Under this contract fifty-two bales of cotton — being more than one-half of the crop of 1861 — were taken possession of by the defendant at the gin, aggregating in weight thirty thousand six hundred and eighty-four pounds. The circumstances abundantly show that the contracting parties understood and intended that the sale of the crop in bulk had effected a perfect transmutation of ownership in the cotton. Prom the, moment of the sale, the bargainor ceased to claim or control the cotton, except to consummate his undertaking to gin and bale it — and the purchaser exercised acts of ownership oyer it by urging and directing the operations of the gin, and claiming the whole of it as his own. The whole crop when ginned and baled amounted to eighty-two bales' — -of which the fifty-two bales which were carried away by the defendant were ginned and packed at the time .of the sale. The other thirty bales were ginned and packed and weighed within a few weeks after, and lay thus ready at the gin for one month afterwards — the defendant in the mean time for some unexplained reason neglecting to haul them away. The civil war was flagrant at the time of these transactions, and much of "West Tennessee was in the military occupation of the Federal armies. The thirty bales of cotton thus lying at the gin house of complainant’s intestate were seized and carried off by a party of Federal - soldiers, under the pretext that they were the property of a Confederate soldier. The defendant has never paid for any portion of tire cotton, and the hill was brought to compel him to pay for the entire crop of eiglrty-two bales, at the contract price, in gold, or its equivalent in legal tender Treasury notes.

The defendant admits that he obtained actual manual possession of the fifty-two bales, but denies the delivery of the balance. He insists that the agent of complainant’s intestate should be compelled to re-imburse him for alleged losses sustained ,by him in consequence of the non-delivery of a large lot of cotton purchased of him individually — and especially that he should not be compelled to pay for the fifty-two bales actually received, without an account of his losses by the non-delivery of the thirty bales. .

The .Chancellor was of opinion that the defendant was liable only for the fifty-two bales so actually carried away by him — and at the price of twenty-six cents per pound — -and gave a decree against him for ten thousand five hundred and four dollars and eighty-three cents, the amount with interest computed. The complainant has brought the cause by writ of error to this court, and asks a reversal of that decree.

We cannot concur in the opinion of the Chancellor as to the rights and equities of these parties. The principle of law upon which the Chancellor doubtless proceeded, is thus stated:

“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 to be hound 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:” Benj. on Sales, 221.

The correctness of this principle we do not propose to controvert, but we hold that the facts and the law do not justify the decree of the Chancellor in this case.

In the case of Gilmore v. Supple, Sir Cresswell Cresswell, in giving an elaborate judgment of the Privy Council, 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 that such was not the intention of the parties.” And in the Calcutta Company v. DeMattes, Blackburn, Judge, pronounced this to be “a very accurate statement of the law:” Vid. Benj. on Sales, 219; 11 Moore, P. C., 566; 32 Law Journal, Q. B., 322, 328.

But in the case at bar, though the crop of cotton was sold as an entirety and in bulk, yet it is contended that it was not a sale of “specific ascertained goods,” as . both the quantity and the aggregate price had yet to be ascertained by the scales and by calculation. And in that view it is urged, that a mere claim of ownership on the part of the buyer, and a disclaimer thereof .on the part of tlie seller, could not effect a change of title and of risk from seller to the buyer. This is a sound principle, and it has been repeatedly recognized in the adjudications of this Court on- like questions.

In the case of Williams v. Allen, 10 Hum., 337, that precise question came directly in judgment. In that case the plaintiff had bargained for a quantity of corn, in pens, on the banks of Cumberland river, at the price of one dollar per barrel. A part of the purchase money was paid. In this state of the contract, the corn was swept away and destroyed by a flood. It was held that the quantity of the corn not being ascertained, and the price not susceptible of calculation, the sale was not complete, and the loss was the loss of the bargainer. This case was decided upon the principle that where goods are sold by number, weight, or measure, so long as the specific quantity or measure is not separated and identified, the sale is not complete, and the goods are at the risk of the seller: Story on Cont., § 800. The contract may be complete and binding in other respects, but the property in the goods remains in the vendor, and they are at his risk, if any act is to be done by him before delivery either to distinguish the goods or ascertain the price: Chitty on Cont., 375. And though the subject matter of the contract be clearly ascertained, yet if the price cannot be calculated until the parties have weighed the . goods, no .property therein passes to the buyer till such act be done: Cliitty on Cont., 377. We adhere to this doctrine of the common law, as applicable to the character of contracts referred to, in its general sense. But we do not understand it to countervail the ascertained and positive intention of the parties to the contract. It is stated as a general doctrine of the law of sales, and divers cases are cited as examples and illustrations of the doctrine'. Thus, where a country merchant sold his whole stock at cost and carriage, and • seven and one-half per cent, advance, and he and the purchaser begun to measure and invoice the goods, laying them by as they progressed; but, before they had finished, a thief broke into the store at night and stole some that were invoiced and laid away, and some that were not, it was held that such of the stolen goods as were not measured and invoiced remained the property of the seller; but the goods which were measured, invoiced, and laid aside, had become the property of the purchase!’, unless it was the intention of the parties that the goods should be weighed, to ascertain the carriage: Crawford v. Smith, 7 Dana, 59, 61. And so under a contract of sale, by which the vendee purchased and paid for a quantity of hay to be weighed out of a mow when he should see fit to move it, it was held that the property did not vest in the vendee, before any weighing, so as to enable him to maintain an action of trover for the hay purchased: Davis v. Hill, 3 N. Hamp., 382, et vid; Messer v. Wordman, 2 Foster, N. Hamp., 172. But it is held otherwise when it appears, that the parties intended that the sale should be complete before the weighing or the measuring of the article sold: Riddle v. Varnum, 20 Pick, 280; Cushman v. Holyoke, 34 Maine, 289; Macomber v. Parker, 13 Pick., 183; Dennis v. Alexander, 3 Barr., 50; Farnum v. Perry, 4 Law Rep., 276. And in the latter case it is broadly held that when the whole quantity of an article is sold, the sale will be complete between the parties, although the article is to be weighed or measured in order to ascertain the quantity, and thereby fix the amount of the price paid: Ft vid. Cartland v. Morrison, 32 Maine, 190; Chitty on Cont., 9 Am. ed., 378-9, and notes. These authorities bring us back to the proposition of Judge Blackburn, as above stated,- that 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 to be 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 title. This, then, we conceive to be the better statement of the doctrine, subordinating, as it .does, the question of construction to the question of intention — which is, at last, the true and only honest principle for the interpretation of contracts and their enforcement alike.

But we rest this case upon other and different grounds. The complainant contracted to gin the crop of .cotton, and to bale it and leave it at the gin to be paid for and taken away by the defendant. This he has clone. He had in every particular complied with his part of the contract. The complainant’s agent had demanded of defendant the performance of Ms part of the contract. Assuming, then, that this bargain was not complete, so as to effect a change of title in the cotton, until it was ginned and weighed and thrown out at the gin to await the orders of the defendant, it was certainly complete, and the transmutation of title was perfect, from the moment that loas done. And under the circumstances no notice was necessary, the defendant having from time to time hauled cotton away under the contract, and having assumed control and direction of the operations of the gin, the circumstances will be held to fix him with notice. The case of Bush v. Barfield, 1 Col., 92, is somewhat similar to this in its facts, and is governed by like principles. It was a purchase of a whole crop, as this was, and to be delivered by the vendor at the gin of one Currie, and payment to be made at the gin weights. The quantity of cotton was enough to make seven bales, and after five bales had been made, an officer levied an execution upon them as the property of the vendor. It was held in that case, that the delivery of the cotton at the gin, when it was ginned and baled in compliance with the contract of the parties, left nothing more to be done by the vendor, and passed the title to the vendee. In that case, it was said the purchaser became owner by the contract of purchase as soon as the cotton, or any part of it, was delivered at the gin and weighed. The ownership with all risks was instantly changed. And the court cites approvingly the doctrine, that where everything the seller has to do with the goods is complete, the contract of sale becomes .absolute, without actual payment or delivery, and the property and the risk of accident to it, vest in the buyer: 2 Kent, 492.

It results, therefore, that the defendant must be held liable upon his contract to pay for the entire crop of 1861, or so much thereof as was ginned and baled according to the contract, and received by defendant or his agent, or left at the gin subject to his orders — at the contract price in gold, or its equivalent in legal tender Treasury notes. The number of bales of cotton, and the weight thereof, as well as the relative value of gold coin and legal tender notes at the time of the breach of the contract, being ascertained in the proof of this cause, a decree will be entered here in conformity with this opinion. The costs of this court and the court below will be adjudged against the defendant.

On the 15th June, 1871, a petition for re-hearing having been filed by the defendant,

Nicholson, O. J.,

delivered the following opinion:

This cause was heard and determined at a former day of the term. The defendant, by petition, asks us to reconsider, and reverse, 'or reform the decree made in favor of the complainant.

It is made to appear, that when the decree was rendered in tire court below in favor of complainant for about $10,000, be prayed for an appeal to tbis Court, wbicb was granted upon the condition of bis giving bond within sixty days. That be declined to prosecute the appeal, but proceeded to execute the decree, by the sale of property attached, amounting to about $2,500, and by enforcing execution for about $7,500, the balance, unsatisfied, by the sale of the attached property. The $7,500 was paid by Jones as surety of defendant Greenwald. That complainant executed a receipt in full satisfaction of the judgment, ■ and then filed a transcript of the record in tbis Court, and obtained a writ of error. The transcript so filed contained none of the proceedings wbicb took place after the rendition of the decree, such as the sale of the property attached, and the satisfaction of the balance of the decree by the surety. The transcript for writ of error was filed in tbis Court in 1868, and notice thereof was given to the then solicitors of defendants.

The cause was beard here at the present term, on the transcript as filed, and as all the original solicitors of defendants bad withdrawn from the case only a few days before the cause was beard, and the solicitor then engaged was ignorant of the facts before stated as having occurred after the rendition of the decree below, no suggestion was made to the court in regard to those facts, and no steps taken to bring them before the court. It resulted, that the cause was heard and determined by the court, in ignorance of the existence of the said facts, either by the court or by defendant’s solicitor.

The application now is, that the case be reconsidered, and that the additional facts stated be allowed to have their just weight in the determination of the cause. It is further suggested for our consideration, that the judgment rendered in this case is erroneous, and should be reformed.

We are satisfied, that the circumstances which prevented the new facts from being brought before the court, at the hearing of the cause, are such as to make it proper now to consider them, with the view of determining whether they are of a character to affect the conclusion already arrived at, and announced in the case.

The application does not have reference to a failure to give credit in the decree here, for the amount of the decree below, which was paid — that credit is properly given in the decree here as entered — but it has reference to the legal effect of the payment, under the circumstances, on the right of complainant to obtain a decree for an additional amount upon the proceeding by writ of error.

The proceedings which took place, for the enforcement of the satisfaction of the decree below, constituted part of the record of the cause. The transcript, therefore, filed for writ of error, was not complete and perfect, without these proceedings. It. was competent for either party, upon suggestion of a diminution of the record, to have the omitted proceedings brought up by certiorari. As this was not done, and as the petition brings forward the omitted proceedings, we now consider the legal effect of the facts shown by the supplied portions of the record, as if the same were before us by certiorari.

Looking to the entire record, it appears that complainant, after having prayed for an appeal, waived the right granted to him to give bond within sixty days, and proceeded to enforce his decree to satisfaction. If he had perfected his appeal, by giving bond, the decree would have been vacated, and his right to enforce it would have been taken away. It is said, that by abandoning his appeal, and electing his right to enforce liis decree, he thereby elected to stand by the decree, and consequently waived his right afterward to resort to the writ of error. In support of this position, it is argued, that the defendants had a right to assume, that complainant had elected to be satisfied with the decree, and' that they, and especially the surety Jones, were thereby thrown off their guard, and sustained injury in satisfying the decree, under the impression so produced upon him by the conduct of complainant. It is not for us to determine how the rights and liabilities of the surety would be affected, if the facts were made to appear that the appeal was prayed, and time obtained to give the bond, with the view of deceiving the defendants into the belief that the appeal was abandoned upon failure to give bond, and that by this fraudulent device the security bad been induced to satisfy tbe decree, under the belief so produced, and that thereby he had sustained injury. This state of facts, if before us on proof, would present a very different question from that raised simply upon the face of the record. Looking alone to the record — and we cannot look outside of it — the complainant exercised a plain right in praying his 'appeal; he indicated distinctly by that act, that although he had obtained a decree, he was not satisfied with the amount of it. He had a right to abandon the appeal, and we cannot presume that he did so with a fraudulent purpose. After abandoning his appeal, his decree was in full force, and he had a perfect right to enforce it by the legal modes of obtaining satisfaction. We are unable to see how his proceeding to enfore his decree can be held, as matter of law, to be a waiver of his right afterwards to exercise the right of resorting to the writ of error, to have his own decree reviewed and reversed. He had indicated his dissatisfaction with its amount, by praying an appeal. In applying for his writ of error, within the time prescribed by law, he was in the exercise of a right secured by law to either party. He took the chances of the result of his' writ of error — if he should fail in the Supreme Court to obtain any decree at all, or one less than he obtained below, he would have been compelled to refund. If he succeeded in obtaining a larger decree, be would make tbe difference. By tbe strict letter of tbe law be was in tbe exercise of bis rights, and looking alone to tbe record, we are unable to see that be is not entitled to tbe decree wbieb lias been rendered in tbe case. Tbe case of Roberts v. Cantrell, 3 Hayw., 219, may be authority, in a case in which defendant might seek for relief in equity, but has no application to tbe case in its present attitude.

"We have re-examined tbe question as to tbe proper judgment to be rendered, on tbe breach of tbe contract to pay for tbe cotton in gold or its equivalent, and we are unable to see that tbe decree entered does not carry out tbe intention of tbe parties in making tbe contract. Tbe defendants bad tbe election to pay in gold or its equivalent at tbe time tbe day of .payment arrived. Having failed to make .an election, but being in default in paying at all, tbe complainant was then entitled to damages for the breach of tbe contract. His damages were tbe amount in gold, or its value or equivalent in currency. As defendant bad failed to elect to pay in gold, complainant bad a right to insist on tbe terms of tbe contract, which were, that if tbe payment was not made in gold, it should be made in an amount of currency equivalent in value to tbe gold. Tbe decree is so entered, and we do not see that it is in conflict with tbe cases of Bronson v. Rodes, 7 Wall, 229, and Butler v. Horwitz, 7 Wall, 258.

The petition is, therefore, disallowed and dismissed.

On a further application, made July 5, 1871, to have the decree modified as to the sureties in the replevin bond,

Nicholson, O. J.,

delivered the following opinion:

This is an application to the Court on behalf of the sureties in the replevin bond to vacate and set aside as to them the decree and judgment rendered in this cause, on a former day of the term, for the reason that there was no copy in the. record of the replevy bond, executed by defendants G-reenwald and Lobe, upon the suing out of the attachment by complainant, said bond, by oversight, not having been copied into the transcript. The Court being satisfied, upon inspection of the record, that said bond was omitted, by oversight, in making out the transcript, and a certified copy of the said bond being now on file as part of the record, the Court is of opinion that the said decree and judgment should be vacated and set aside, and that the same should now be entered in pursuance of the opinion heretofore delivered in the cause; it is therefore ordered that the same be now done.

And the Court being of opinion that according to the terms of the replevy bond, executed by defendants G-reenwald and Lobe, with K. S. Jones and M. M. Seay as sureties, complainant is entitled to have judgment against the said Greenwald and Lobe and their sureties for the amount of the debt, interest, and costs decreed to be due to complainant, the application of defendants to have the cause remanded, with' instructions to have the value of the property attached ascertained, as the amount for which defendants are responsible, is disallowed. The Court is of opinion that when the defendants Greenwald and Lobe replevied the goods attached, they waived their right to execute, a bond simply in double the value of the goods, and executed their bond in double the amount of complainant’s demand, and that they cannot now elect to satisfy said bond by the amount of the value of the goods.

The decree, therefore, will be entered against the obligors to the replevy bond for the amount of the debt, interest, and costs, as determined by the decision already made.  