The opinion of the Court was afterwards drawn up by
Shepley J.The written contracts between the parties exhibit their rights and duties. By the first contract, under date of February 7, .1834, the plaintiff agrees to build a vessel in the manner therein prescribed. Smith and Parsons, who are partners, agree to take one quarter, and Dunning another quarter of the vessel for what the other half sells for when launched. The whole is pledged to them for advances ; and payment is to be made from their respective stores, in goods.
*19By another agreement of the twelfth of July following, the plaintiff agrees “ to sell and deliver unto the said Dunning, Smith and Parsons ; Dunning to have one third, and Smith and Parsons two thirds of the vessel.” The hull is to be completed “ and delivered afloat by the nineteenth day of July current.”
The mode of payment is agreed to be as follows. Deducting, first, all advances already made by either to the plaintiff, or on account of the vessel; secondly, all liabilities they have incurred or may incur for the plaintiff; thirdly, all such bills as the vessel is liable for, “ and pay the remainder in three and six months, equal payments.”
The agreement is for a sale and delivery, and the intention of the parties doubtless was, that the sale should take place and the delivery be made at the same time. The plaintiff was to sell and deliver as one transaction, to be carried into effect at one time. When was it to take place ? The contract answers, “ by the nineteenth day of July current.”
He did convey to Smith and Parsons, by bill of sale in the usual form, stating the consideration and acknowledging payment of it on the sixteenth day of July, three days before the time stipulated.
Was it not the intention of the parties, that the sale should be made by bill of sale in the usual form ? The laws of the United States having required, that in case of sale “ there shall be some instrument in writing, in the nature of a bill of sale,” the legal conclusion is, that they must have intended that such an instrument should be made, and be the evidence of title.
The final adjustment and payment was not, by the agreement, to take place at the time of the sale, or before that day ; for a credit of three and six months was given, from the date of the last contract. The plaintiff, then, was to execute the bill of sale and deliver the vessel before he could call for his pay ; and it is not readily perceived how he could, at the time of sale and delivery, or before the first instalment became due, have compelled an adjustment. The promises of the parties were not dependent, or to be performed at the same time.
The plaintiff, in making the bill of sale of two thirds of the vessel to Smith and Parsons, did nothing inconsistent with, or op*20posed tq his. contract. The act was one required by it; and the acknowledgment of payment in the bill of sale, could not estop him on his independent contract, requiring payment to be made at a future time. Both contracts may with perfect consistency, be enforced ; and the doctrine of estoppel does not apply.
Nor was the conveyance of the two thirds a severance of the joint contract, because by it they had all agreed that Smith and Parsons should take the two thirds, and Dunning one third. And the fair construction of the contract is, that when the sale was made, it should be so made as to convey to each his proportion. And it cannot be material, if each obtained his jiart, whether the conveyance was by a joint or by separate bills of sale. The conveyance made, being in accordance with the contract and provided for by it, does not operate as a severance of it; and not operating as an estoppel, there must be a new trial.
'Nonsuit set aside and a new trial granted.