A., being indebted to B., proposed, in consideration of a
further loan of money, to deliver, in payment of both sums, a
certain quantity of wood at a stipulated price per cord. B.
accepted the proposal, C. agreeing to receive the wood from him at
that price. The loan was made, and A., pursuant to the agreement of
the parties, delivered the wood upon the premises of C.
Held that A.'s title passed by that delivery, and that the
wood was not subject to levy under executions thereafter issued by
his creditors.
The facts are stated in the opinion of the Court.
Page 102 U. S. 60
MR. JUSTICE HARLAN delivered the opinion of the Court.
This was replevin by the Wyoming National Bank against Thomas J.
Dayton. The latter, as Sheriff of Albany County, Wyoming Territory,
had, by virtue of several attachments against the property of one
W. S. Bramel, levied upon a number of cords of wood. The bank,
claiming to be the owner of the wood at and before the time when
the writs were issued and levied, brought this action to recover
it, and damages for the detention thereof.
In the court of original jurisdiction a verdict was returned in
favor of the defendant, and judgment thereon entered. From the
judgment of affirmance by the supreme court of the territory the
present writ of error is prosecuted.
Upon the question of the ownership of the wood, at the date of
the respective levies, the evidence was conflicting, and presented
a case peculiarly within the province of the jury to determine,
under proper guidance as to the law governing it. Without
attempting to set forth the whole case, it is sufficient to remark
that there was evidence to establish the following facts:
Bramel was engaged in the business of bringing wood down the Big
Laramie River to Laramie City. He had a contract with the Union
Pacific Railroad Company for the delivery to it, at its yard in
that city, by a specified date, of five hundred cords of wood at $5
per cord. In the necessary preparations for that engagement, he
had, prior to Oct. 30, 1873, received from the bank about $2,100,
which its president testified had been advanced to him at different
times on this same wood. For these advances the bank held his
notes. On the day last named, he applied to the president of the
bank for a further advance of money. His application was denied. He
then proposed that the bank should buy all the wood he had, some of
which was then in the yard of the company, but not received by it,
some on the bank of the river, and some in the river. This
proposition was at first declined; but after further conversation
between him and the president of the bank, it was agreed that the
bank should take the five hundred cords at $5 per cord, to be paid
for in the debt of $2,100, then held by the bank, and $400 in cash,
upon the condition that the company
Page 102 U. S. 61
would receive the wood from the bank upon like terms. It was a
part of the arrangement that Bramel should, in that event, put the
wood into the yard of the company, and use the $400 for that
purpose. In order to ascertain whether the company would assent to
this arrangement, the bank cashier and Bramel, by direction of the
president of the bank, visited Mr. Shankland, who had the control
of all such business for the company. They returned together and
reported that Shankland approved the arrangement, and would make
out the vouchers for the wood to the bank. The cashier then paid
$400 to Bramel, taking his note therefor, bearing interest at three
percent per month; and the latter went on putting the wood into the
yard of the company. He had delivered at that place about three
hundred and seventy-five cords, and had a few cords on the river
bank, when it was all seized by the defendant in error, under the
attachments against Bramel's property. None of the wood had then
been actually received by the company. Bramel's notes, to which we
have referred, were held by the bank at the commencement of this
action. They were taken, as the bank claimed and proved by its
president, more as memoranda than anything else, and had not been
surrendered to Bramel because he had not called at the bank for
them.
Such was, substantially, the case of the bank. We do not say
that the jury should have found that it was made out, even by a
decided preponderance of the evidence, but only that there was
evidence tending to show that the contract and acts of the parties
were such as the foregoing statement sets forth.
Looking at the case in the light of these facts, it seems that
the transaction between the bank and Bramel was something more than
a mere agreement as to the disposition of the money to be obtained
from the company. It constituted a sale to the bank of all the wood
which he delivered at the yard of the company. The absolute title
to it passed to the bank upon his depositing it there, with the
intention or for the purpose of more remained to be done by him.
His contract bound him to deliver the wood, not to the company, but
at its yard only. In legal contemplation, it then came into the
possession and control of the bank, and was not thereafter subject
to be reached by his creditors, upon the mere
Page 102 U. S. 62
ground that the title had not passed, or that a complete
delivery had not been made. The delivery in execution of the
contract, at a specified place not belonging to him, was such as
accorded with the nature of the property. When placed in the yard
of the company, in pursuance of the agreement, the acts of the
parties united with the previous verbal contract, resulting in a
consummated obligatory agreement, depriving the seller of all
further control of the property, and putting it under the exclusive
dominion of the buyer, with a perfected title thereto.
From that moment, the indebtedness of the seller to the bank to
the extent of the contract price of the wood actually delivered at
the designated place was discharged, and the property was
thenceforward at the risk of the buyer. Actual manual possession of
the bank by its agents was, under the circumstances and regarding
the nature of the property, both impracticable and unnecessary to a
complete delivery. These conclusions are abundantly sustained by
authority. Benjamin, Sales, bk. 1, pt. 2, p. 134; Hilliard, Sales,
c. 7, pp. 124-130; Browne, Statute of Frauds, c. 15, p. 323.
The instructions were not in accordance with these views, the
court failed to state distinctly and clearly the principles of law
by which the jury were to be governed. Taking all the instructions
together, it is evident that the deposit of the wood at the yard of
the company, in pursuance of the previous agreement between the
bank and Bramel that it should be put there for ultimate delivery
to the company, was not regarded by the court as such a change of
possession as would, in law, pass the title to the bank as against
the creditors, whose attachments were subsequently issued and
levied.
That we do not misinterpret the instructions is quite clear,
from the opinion of the supreme court, which declared that
"the record shows that the full and absolute control and
possession of the same was publicly and privately retained by
Bramel, after the alleged unconditional sale."
In view of the pleadings and evidence this could not be the
case, unless the court below not only disregarded the evidence in
behalf of the bank, but was, further, of opinion that the delivery
of the wood at the yard was insufficient to pass the title, and
change the control and possession of the property from the seller
to the
Page 102 U. S. 63
buyer. But that position, as we have seen, is unsound both upon
principle and authority. We repeat that, if Bramel agreed to sell
and the bank agreed to buy the wood at a fixed price per cord, the
seller to remove the wood from the river and put it in the yard of
the company, for sale or delivery to the latter by the bank, which
was to receive the vouchers, and if the wood was so deposited in
pursuance of that sale and agreement, then, in legal contemplation,
the title and possession of the property passed to the bank from
the moment it reached the yard. If after being placed there and
before its receipt by the company the wood had been destroyed or
stolen, the loss would have been that of the bank. It is
immaterial, under the circumstances, that the company had not, when
the attachments were levied, expressly or formally recognized the
bank's ownership of the wood.
Some stress was laid upon the fact that the bank took the note
of Bramel for the $400 advanced to him. That act, it is claimed,
was inconsistent with the theory of an absolute purchase by the
bank. There was, however, evidence conducting to show that the bank
took the note by way only of precaution, and to meet the possible
contingency of the nondelivery of the wood at the yard of the
company. But it was for the jury to say what weight should be given
to that fact in determining, upon the whole case, whether there was
an actual sale of the wood, or only an agreement as to the
disposition of the proceeds after it should be received by the
company.
The judgment will be reversed, with directions to require the
judgment of the court of original jurisdiction to be set aside and
a new trial granted, and for such further proceedings as may be in
conformity with this opinion; and it is
So ordered.