The first question is, whether here had been a valid sale to Waldron as against the creditors of the defendant. There is no evidence of any actual delivery to or possession by Waldron, or any explanation of the absence of possession. It seems hardly necessary to cite authorities to show that under such circumstances the sale was not complete as against the defendant's creditors, and the property was therefore open to attachment.
According to the cases of Brown v. Davis, 9 N.H. 76, Lathrop v. Blake,23 N.H. 46, Dickinson v. Lovell, 35 N.H. 9, the officer's return of the attachment is conclusive between these parties. Of course, the property described in the return must be, as in the case of all writings, identified by extrinsic evidence. The lot of boards is described as lying on the land of George B. Cilley and land of George S. Head *Page 143 the west side of the road leading from Lee to Northwood, near the saw mill of said George B. Cilley. There is no suggestion of uncertainty about the identity of the boards lying on land on the west side of the road leading from Lee to Northwood, near the saw-mill of Cilley; but it is said that the land, though occupied by Cilley and the defendant, was really owned by other parties. If it should be considered that such occupation of Cilley was not sufficient to answer that part of the description, such description might be rejected, the remaining description leaving no doubt.
The lumber, being open to attachment, and the officer's return of the attachment being conclusive, the defence fails, and there must be judgment on the verdict according to the agreement.
SMITH, J. I think that, not only as against Batchelder, but as against Waldron, here was a valid attachment. I infer that it is intended to be understood that neither Head nor Cilley owned any land on the west side of the road leading from Lee to Northwood. Rejecting, then, that part of the return, the boards would be described as lying on the west side of the road leading from Lee to Northwood, near the saw-mill of George B. Cilley, estimated at about sixty thousand. The quantity proved to be eighty thousand, but the estimate as to quantity was only an additional description of the boards for the purpose of further identifying them. Any one examining the return in the office of the town-clerk would have been informed that the plaintiff had attached as the property of the defendant all the boards lying on the west side of the above named road, near the defendant's saw-mill, estimated at sixty thousand. The further information, that they were on land of Cilley and Head, would not have misled one making the examination, because there were no boards piled on their land; and the defendant himself even if he had not had personal information of the attachment, knew that the land on which the boards were piled did not belong to him or Head.
At the time of the attachment the property the boards had not passed to Waldron. The contract with him provided for a delivery by the defendant of the boards at the mills of the Cocheco company in in Dover, to be there measured by the surveyor of the company, and to be paid for when the whole should be delivered. The property in the boards would thus clearly remain in the defendant until delivered and surveyed, according to the well established rule that when some act remains to be done in relation to the articles which are the subject of the sale, as that of measuring or weighing, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, the performance of such act is a prerequisite to the consummation of the contract, and, until it is performed, the property does not pass to the vendee. Riddle v. Varnum, 20 Pick. 280; Foster v. Ropes, 111 Mass. 10; Prescott v. Locke, 51 N.H. 94; Jenness v. Wendell, 51 N.H. 63.
The exceptions are overruled, and there must be
Judgment on the verdict. *Page 144