The delivery of the oil on board the vendee's ship at New Bedford was unquestionably a delivery to Wing, and vested the property in him. The property, it is true, was to be transported to New York for sale, but it was to be transported by the vendee himself, who could have changed its destination or sold it absolutely on shipboard. After such delivery it was not subject to stoppage in transitu, for it was not in the hands of a carrier or middleman. (Inglis v. Usherwood, 1 East., 515;Turner v. Trustees of Liverpool Docks, 6 Eng. Law and Eq., 515; Ogle v. Atkinson, 5 Taunt., 759.)
But if this were not so, the vendee could not exercise the right of stoppage in transitu, and the vendor made no attempt to do so. (Story on Cont., § 816.) The plaintiff's right to *Page 540 recover the oil must, therefore, be put upon other grounds to be sustained.
The case is quite parallel to that of Atkins v. Barwick (1 Strange, 165). In that case the defendants were mercers, living in London; and Cripps Co., the assignors of the plaintiff, were traders at Penoyer, in Cornwall. On the 7th of April, 1715, the defendants, upon the order of Cripps Co., sent them the goods in controversy, and gave them credit on their books for the amount. On the 18th of May, Cripps Co., without the knowledge of the defendants, deposited the goods with a third person for the use of the defendants. On the 6th of June, Cripps Co. wrote a letter to the defendants, stating that their affairs were in a bad condition, and that, for that reason, they thought it not reasonable that the last goods should go to other creditors; and that they had, therefore, not entered them in their books, but left them with a Mr. Penhallow, who had orders to deliver them to the defendants. On June 9th, a commission of bankruptcy was issued against Cripps Co., and their effects assigned to the plaintiffs. The letter of Cripps Co. to the defendants was not received by them till the 13th of June, which was the first notice they had of the delivery to Penhallow; and they immediately signified their consent to take the goods again.
This case, in all its essential particulars, is like the present case. The goods, as in this case, were delivered to, and the title vested in, the vendee; they were deposited with a third person by the vendee for the use of the vendor before the rights of creditors attached, and written notice of such deposit and of the failure of the vendee given to the vendor, and the goods actually attached before the vendor attempted to reclaim them.
In the decision of the case of Atkins v. Barwick, the chief justice held that "the delivery to Penhallow to the use of the defendants before the act of bankruptcy, and grounded on a good consideration, transferred the absolute property to them." FORTESCUE, J., said, that payment in satisfaction of the debt was a good consideration, and "we will intend an acceptance *Page 541 till the contrary appears." EYRE, J., said: "The precedent debt is a sufficient consideration, and it vests before notice [the title, he means]; for it being to his benefit, a disagreement shall not be presumed."
I have quoted this case thus fully because it is a leading one, and, if good law, is quite conclusive of the case now under consideration. This case of Atkins v. Barwick has been much discussed and much questioned, but not in any case overruled. InHarmon v. Fishar (1 Cowp., 125), Lord MANSFIELD said of it, that, "with respect to the case of Atkins v. Barwick, the judgment seemed right, but the reasons wrong." In Neate v.Ball (2 East., 117), Lord KENYON discussed it, and said that Lord MANSFIELD had extracted the true ground on which that judgment, if it did not proceed, ought to have proceeded; namely, that the trader, finding himself in failing circumstances, very honestly did not accept the goods, but returned them. But this distinction is obviously unsound and untenable. The bankrupt had the goods in possession for some time. They were sent him the 7th of April, and were in his possession, and sent by him for deposit with the third person on the 18th of May, more than forty days after being delivered to the vendee, or to the carrier for him; and were in his actual possession when so deposited. The title to them had absolutely vested before such deposit. They were not intercepted by the way, or the order of purchase countermanded before the actual receipt of the goods. But Lord KENYON, and the whole Court of King's Bench, did recognize the case of Atkins v. Barwick as sound law in Salte v. Field (5 Term, 211). Speaking of the case under consideration, Lord KENYON there said: "I cannot distinguish this case from Atkins v. Barwick on principle; for in that case there had been a delivery of the goods by the seller, with the concurrence of all the parties interested. But the agreement of the parties to rescind that contract put an end to the sale, as if it had never taken place." ASHHURST, J., said: "The case in Strange applies to the present case." BULLER, J., said: "The principle on which the case ofAtkins v. Barwick was *Page 542 decided governs this." In Smith v. Field (5 Term, 402), the same court again affirmed the case of Atkins v. Barwick, and recognized it as sound law. The case has also been questioned in our courts. In Berly v. Taylor (5 Hill, 581), Judge BRONSON discusses it, and, after referring to the various cases, says of it, that, "although it seems never to have been overruled, it would be difficult to support it upon principle without altering some of the facts." But this was in a dissenting opinion. And in the same case, Judge COWEN, who gave the opinion of the court, considers and discusses the case, and declares that it has never been overruled, adopts its reasoning, and affirms the principle upon which it was decided, as the same learned judge had done before in Ash v. Putnam (1 Hill, 310), where there was no dissent to the decision or opinion. Speaking then of the case ofAtkins v. Barwick, he says: "There was either a resale or rescission, or a refusal by the vendee to accept. Call it which you please, the effect is the same. In one case, the property is revested in the vendors; in the other, it was never divested."
The difficulty in all the class of cases like the present has been to fix the point of time when the title of the vendor became revested. The right of rescission, or resale, is undoubted; but the question is, whether the rescission or resale is consummated before the assent of the vendor to such rescission or resale is actually given or expressed. The moment the minds of the vendor and vendee meet on the question, it is conceded, the contract is rescinded, or the property resold and the title revested. If the vendor was present at the same place with the vendee, delivery to him by the vendee in relinquishment of the contract of purchase would, of course, completely restore him to his original rights of property; but when the vendor and vendee live in different places, it has been claimed in many cases that the purpose of the vendee to restore the property was ineffectual, till the consent of the vendor to the rescission of the contract was given, and that, intermediate that period, the title remained in the vendee, and was subject to attachment or execution at the instance *Page 543 of his creditors. That is the precise question now presented in this case.
Upon the principles which apply to sales, it is abstractly true that no title can pass till the bargain is complete, and that a contract is not consummated till the minds of the parties meet; and, strictly, this rule must also apply to agreements for the rescission of a contract. It is only upon the doctrine of relation, in such cases, that the title can be held to pass at the time of the delivery of the goods to the third person. This doctrine is generally alleged to apply in cases of trust; and it is upon this ground that the title can be held to pass at the moment the trust is created, as with cases of assignments in trust. Lord MANSFIELD, in Alderson v. Temple (4 Burr., 22-39), puts the case of Atkins v. Barwick on the proper ground. He said: "The Court of Chancery would have interposed and said `the assignees should not have the goods without paying the price.' I think the determination was right; and there was anactual delivery to a person who became a trustee."
The direction to hold in trust for the vendor, and to deliver to him, accompanied by a delivery to the warehouse-man, as was done in this case, and that of Atkins v. Barwick, is a parol transfer or assignment of the property to the vendor, and vests the property. The doctrine of relation in such case, Judge COWEN says, in Berly v. Taylor (supra), applies to a delivery of goods in trust. The delivery was held, he says of Atkins v.Barwick, to vest the property of the goods in them (the vendors) immediately, subject to be divested by the dissent. This was on the ground that the trust was beneficial, and the presumption was allowed although the vendors at the time knew nothing of the transaction.
This, I think, presents the true ground upon which the plaintiff's claim may securely rest. The delivery of the oil to Kelly, with direction to deliver it to the plaintiff, was a delivery by Wing to the plaintiff, and vested the title in him, unless he expressly disaffirmed the trust in his favor. The trust was irrevocable by Wing. He parted with all claim in or title to the property. He did all in his power to restore the property *Page 544 to the vendor. He acted with an honesty which ought to be encouraged and commended, not overreached and nullified by any manner of technical rules at variance with equity and common justice.
But the plaintiff's title to this oil can be sustained upon the narrow ground mentioned by Lord MANSFIELD in Harmon v. Fishar (1 Cowp., 125), and stated by Lord KENYON in Neate v. Ball (2 East., 124), that the vendee "did not accept the goods." Wing, in this case, before the goods arrived in New York, refused to take them upon the purchase, provided for their storage with Kelly and delivery to the plaintiff, and immediately advised the plaintiff of the fact. Wing then had the goods under his personal control after they arrived at their place of destination. He restored them to the plaintiff in the only way practicable under the circumstances.
I think the judgment below right, and that the same should be affirmed.