The contract between D. E. and the plaintiff did not constitute a sale of the ties. Rowell v. Claggett, ante, p. 201. It was simply an agreement whereby the plaintiff obtained a special property in them, for cutting them and negotiating their sale. The value of this special property was fixed by the agreement at ten cents a tie. In no event was the plaintiff to receive more than this from the contract. The general property, retained by D. E., was of an uncertain value, and depended upon the sale the plaintiff might be able to effect. The proceeds of the sale, less the value of the plaintiff's interest, was the share which D. E. had in the transaction.
When the attachment was made the plaintiff's part of the contract was practically performed, although the sale was not complete. The general property in the ties remained in D. E., and was subject to attachment for their debts. The plaintiff's damages were only the value of his special property, and this was what the jury were instructed to allow him.
Exception overruled.
PARSONS, J., did not sit: the others concurred. *Page 476