Ralph v. Stuart

By the Court.

This action was brought to recover a quantity of seed in the possession of the defendants, which the plaintiffs claimed had been sold to them by Mc-Blain & Co., of Newry, Ireland. The plaintiffs gave an order for seed to an agent of McBlain & Co., in this city, to be paid for by a bill at ninety days, and McBlain & Co. sent out seed differing in quantity, price, and in the manner in which it was packed from the order; upon making the shipment of which they drew a bill payable to the order of the defendants, and sent it to the defendants, advising the plaintiffs that the defendants would hand them the bill of lading. The plaintiffs accepted the bill and offered it to the defendants, but the defendants refused to deliver the seed, unless the plaintiffs would discount the bill. The bill was then left with one of the defendants, one of the plaintiffs telling him that he might make inquiries among persons in the trade as to the plaintiffs’ credit; but the defendants afterwards sent a communication in writing to the plaintiffs, declining to make the inquiry respecting the plaintiffs’ standing, and advising them that the seed would not be delivered unless it was paid for.

*636To constitute a sale under the statute, in a case like this, where no memorandum in writing had been subscribed by the parties to be charged, it must appear that there was at least a partial delivery or a payment in part of the purchase money; and here there was neither. There was no delivery; the bill of lading was sent, not to the plaintiffs, but to the defendants, who refused to give it up, unless the seed was paid for, and there was no payment. The plaintiffs, it is true, endorsed their acceptance upon the draft and tendered it to the defendants, which was doing all they were required to do under the contract; but the defendants refused to receive it on behalf of the principals, or to deliver the seed, so that the title to the property never passed either by a delivery, or by an acceptance by McBlain & Go., or by their agents, the defendants, of the purchase money. If the defendants had received the draft, that would have vested in the plaintiffs the title to the property, but they refused to receive it, or to deliver the bill of lading, thus repudiating or refusing to fulfill the contract; and as the act essential to constitute a sale under the statute did not take place, the nonsuit was properly granted.

Judgment of nonsuit sustained.