titled to the specific performance of said contract.

That, from the net proceeds of said 572 bales of cotton and with interest accrued thereon, the said Elgee and Chambers are entitled to be paid at the rate of ten cents per pound on 1,528 bales thereof, of 500 pounds each, and on 572 bales at the actual weight thereof, and their proportion of said interest. And the said Lobdell is entitled to be paid at the rate of twenty cents per pound on 572 bales of said cotton at their actual weight and his proportion of said interest.

And the said C. V. Woodruff & Co. are entitled to be paid the balance of said net proceeds and interest.

That the contract made in Oct. 1863, between J. K. Elgee and Haller Nutt through his agent, Truman Holmes, was executory merely and that thereby the said Nutt acquired no property in said 2,100 bales of cotton, and no right to the net proceeds of 572 bales thereof in the Treasury, or to the interest thereon.

That the said contract between said Elgee and said Nutt was made in violation of the Non-Intercourse Acts and is void.

The various parties in this case were represented by the following counsel:

For the United States, Messrs. Geo. H. Williams, Atty-Gen., and S. F. Phillips, Solicitor Gen.

For Woodruff & Co., Messrs. B. F. Butler, Jno. A. Grow and R. M. Corwine.

For Mrs. Gaussen, Executrix, Messrs. W. W. McFarland, J. M. Carlisle & J. D. Pherson.

readiness to receive or pay for it. The title, therefore, did not pass.

Montgomery v. U. S., 5 N. & H., 658; Leonard v. Davis, 1 Black, 476, 17 L. ed., 222; Mason v. Thompson, 18 Pick., 305; Bloxam v. Saunders, 4 Barn. & C., 941; Hanson v. Meyer, 6 East, 614; Blackburn, Sales, 160; Story, Sales, 321; Benj., Sales, Am. ed., 318, 319 and notes.

Mr. Casey:

The contract between Elgee and Lobdell of July 31 did not transfer the title to the cotton to Lobdell. Under this contract, the title could not pass until the delivery of the cotton at Fort Adams, and this delivery could not be made without violating the non-intercourse laws.

Montgomery v. U. S., 5 Ct. of Cl., 58; McDonald v. Hewett, 15 Johns., 349; Rapelye v. Mackie, 6 Cow., 250; Outwater v. Dodge, 7 Cow., 85; Young v. Austin, 6 Pick., 280; The Reform, 3 Wall., 617, 18 L. ed., 105; The Sea Lion, 5 Wall., 630, 18 L. ed., 618; The Ouachita Cotton, 6 Wall., 521, 18 L. ed. 935; Coppell v. Hall, 7 Wall., 542, 19 L. ed., 244; U. S. v. Lane, 8 Wall., 185, 19 L. ed., 445; Montgomery v. U. S., 15 Wall., 395, 21 L. ed., 97; U. S. v. Lapene, 17 Wall., 601, 21 L. ed., 693.

Delivery of the property and payment of the price were to be simultaneous, and no property had passed until that was done.

Mason v. Thompson, 18 Pick., 305; Low v. Andrews, 1 Story, 38; N. Y. F. Ins. Co. v. DeWolf, 2 Cow., 56; Bloxam v. Saunders, 4 Barn. & C., 941; Gordon v. Harper, 7 T. R., 9; HanMc-son v. Meyer, 6 East, 614; Rugg v. Minett, 11 East, 210; Withers v. Lys, 4 Camp. 237; Wallace v. Breeds, 13 East, 522; Austen v. Craven, 4 Taunt., 644; White v. Wilks, 5 Taunt., 176; Acraman v. Morrice, 8 C. B., 449; Bailey v. Smith, 43 N. H., 141; Henning v. Powell, 37 Pa., 187; Civil Code, La., 2433; Campbell v. Penn. 7 La., 371; Parmele v. McLoughlin, 9 La., 439; Shuff v. Morgan, 9 Mart., 592; Wilson v. Phillips, 4 La. Ann., 158.

For Mrs. Nutt, Mr. Joseph Casey. For Lobdell, Mr. C. S. Lobdell, in person, and Mr. Montgomery Blair.

Messrs. Butler and Grow.

The bill of sale to Lobdell vested the title of the cotton in him.

Benj. Sales, 233, 234, 238-242; Crofoot v. Bennett, 2 N. Y., 258; Blackburn, Sales, 152; Turley v. Bates, 2 Hurl. & C., 200; Woodruff v. U. S., 7 Ct. of Cl., 620.

The assignment of the bill of sale and claim against the Government for the proceeds of the cotton by Lobdell to Woodruff & Co., authorized and empowered them to institute proceedings in the Court of Claims.

Lawrence & Crowells' Case, 8 Ct. of Cl., 252; 15 Stat. at L., 75, § 4; 12 Stat. at L., 767, § 12: U. S. v. Burns, 12 Wall., 246, 20 L. ed., 388; Floyd Acceptances, 7 Wall. 666, 19 L. ed., 169; see also La. Civil Code, arts. 1920, 2433, 2437; Barrett v. His Creditors, 12 Rob.,. 474; Stephens v. Chamberlin, 5 La. Ann.,

657.

Mr. W. W. McFarland:

The cotton consisted of two parcels: one of unbaled cotton about twenty bales and the other of baled cotton about 2,100 bales. By the agreement, Lobdell was to furnish the bag ging, rope and twine necessary to bale the unbaled cotton. He is not found to have ever fulfilled his agreement in this respect. The cotton was to be delivered at the landing of Fort Adams, there to be weighed and paid for. It never was delivered, and it is not found that Lobdell was ever ready at the landing to receive the cotton or ever gave notice of his

The contract between Elgee and Holmes, as the agent of Nutt, did not contemplate the payment of any money, nor even the ascertainment of weight, etc., until the cotton arrived at Liverpool. The contract was for all the cotton at so much per bale, and transferred the title and property and right of possession to Nutt at once. No time was fixed for the shipment to Liverpool, but it must have been necessarily implied that this was to take place when the cotton could be removed and shipped without violation of the non-intercourse laws. a present sale at a stipulated price of a designated lot of cotton payable at a future time. It was a completed, perfected, unconditional sale.

Nutt's contract was

Chit. Cont., 336; Benj. Sales, Am. ed., §§ 313, 317; Gilmour v. Supple, 11 Moore, P. C., 322; Arnould v. Delano, 4 Cush., 40; Ropes v. 566; Calcutta Co. v. DeMattos, 32 L. J. Q. B., Lane, 9 Allen, 502; Gale v. Burnell, 7 Q. B. 850; Cartland v. Morrison, 32 Me., 190; Poth Cont. of Sale, by Cush., §§ 308, 313; 2 Kent, 5th ed., 522; Austen v. Craven, 4 Taunt., 644; Outwater v. Dodge, 7 Cow., 85; Woods v. McGee, 7 Ohio, 2 pt., 128; Riddle v. Varnum, 20 Pick., 280; Wing v. Clark, 24 Me., 366; Shindler v. Houston, 1 Den., 48; Kershaw v. Ogden, 34 L. J. Ex., 159; 3 H. & C., 717.

to sell. It is, doubtless, true that, whether | unbaled and unbagged. The vendor was to prethe property passes or not is dependent upon pare it for delivery by ginning, baling and the intention of the parties to the contract, bagging it, and Lobdell was to furnish the necand that intention must be gathered from the essary bagging, rope and twine. This was to language of the instrument. There are, how- put the cotton into the condition in which he ever, certain rules for the construction of such was bound to receive it, for he was not bound contracts, which are well settled in England to receive any unless the whole was ginned, and, we think, also in this country. Mr. Jus- baled and bagged. The contract was entire. tice Blackburn, in his work on sales (pp. 151, And the vendor was not bound to put the cot152) states two of them, and Mr. Benjamin, ton into a deliverable state unless Lobdell furin his treatise (2d ed., p. 236), adds a third. nished the necessary materials. Besides, it They are as follows. was stipulated that the cotton should be received by De Silva & Co.

188*] *First. "When, by the agreement, the vendor is to do anything to the goods for the Our conclusion does not rest merely on the purpose of putting them into that state in ground that the cotton was not weighed or dewhich the purchaser is bound to accept them, livered. It is unnecessary to decide that weighor, as it is sometimes worded, into a delivering the cotton was in this case a prerequisite able state, the performance of those things to the transmission of the property, though shall, in the absence of circumstances indicating that appears to be the law in England, when a contrary intention, be taken to be a condition precedent to the vesting of the property." Second. "Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things shall also be a condition precedent to the transfer of the property, although the individual goods be ascertained and they are in the state in which they ought to be accepted.

Third. "Where the buyer is by the contract bound to do anything as a consideration, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer."

These may be regarded as rules for ascertaining the intention of the parties. They are, in most cases, held to be conclusive tests. Though not supported by all the decisions, they certainly are generally accepted in England and by most of the courts in this country. And they are the rules which are applicable to contracts for the sale of specific chattels; contracts which define the articles which are the subjects of agreement, either single articles or aggregates separated from others, as the grain in a bin, the hides in a specified vat, etc., etc., or such a case as the present, all the cotton at a designated place. A considerable number of the numerous authorities which justify these rules are collected by Mr. Benjamin in his treatise on Sales, 2d ed., p. 234, et seq. Applying them to the contract now under consideration, we think it cannot be maintained that the parties intended the 189*1 *contract should pass the ownership of the cotton at once to the buyer, without any ascertainment of the whole price by weighing, without its complete preparation for delivery, without any delivery and without payment. This is not the case of an unconditional sale of a specific chattel for an ascertained price. Its subject was the crops of cotton then lying in Wilkinson County. The contract was a cash contract. No credit was intended. An ascertainment of the price by weighing was contemplated, though it is not stated where the weighing should be done. The vendor undertook to deliver at Fort Adams. He was to deliver it in bales. Yet all the property was not in a deliverable state. Part was unginned,

by the contract the goods are to be weighed by the vendor, or by him concurrently with the vendee. In the leading case of Hanson v. Meyer, 6 East, 614, where it appeared that under a contract of sale a vendee agreed to purchase all the starch of the vendor, then lying at the warehouse of a third person, at so much per hundred weight, by bill at two months, and the starch was in papers but the exact weight was not then ascertained, and was to be ascertained afterwards, and fourteen days *were to be allowed for the delivery; [*190 and where the vendor gave a note to the vendee, addressed to the warehouse keeper, directing him to weigh and deliver to the vendee ail his starch, it was decided that the absolute property in the starch did not pass to the vendee before the weighing, which was to precede the delivery, and to ascertain the price. And this, though a part had been weighed and delivered, and though a credit was given. Nothing was wanting to specify the subject of the contract. It was all the vendor's starch in the warehouse. So in Simmons v. Swift, 5 Barn. & C., 857, where the contract was, "I have this day, October 23d, sold the bark stacked at Redbrook, at £ 9 5s. per ton of twenty-one hundred weight, to Hezekiah Swift, which he agrees to take and pay for on the 30th of November," and some of the bark was weighed and delivered, it was held that the property in the residue did not vest in the purchaser until it had been weighed. In Logan v. Le Mesurier, 6 Moore, P. C., 116, the sale was by the following contract: "Hart, Logan & Co., of Montreal, sell, and Le Mesurier, Routh & Co., of the same place, buy a quantity of red pine timber, the property of Thomas Durell, of Hull, L. C., but uuder the control of the sellers, now lying above the rapids, near the Chaudiere Falls, Ottowa River, and stated by the said Thomas Durell to consist of 1391 pieces, measuring 50,000 feet, more or less, deliverable at Quebec on or before the 15th of June next, and payable by the purchasers' promissory notes, at ninety days from this date, at the rate of 9%d. per foot, measured off. Should the quantity turn out more than above stated, the surplus to be paid for by the purchaser at 91⁄21⁄2d. per foot on delivery, and should it fall short, the difference to be refunded by the sellers." It was held that by the terms of the contract the sale was not complete until the measurement and delivery of the timber was made, and that the transfer of the property was post

this subject further, for the stipulation in the contract now under consideration, that the cotton should be paid for when weighed, was only one of several provisions tending to the conclusion that the intention of the parties was not to effect an immediate passing of the property. We have already noticed that no sale upon credit was intended. There was, therefore, no reason why the vendor should part with anything before the purchase money was paid or tendered. The possession was certainly retained. The vendors undertook to deliver at Fort Adams. To enable them to carry, and thus deliver, possession was indispensable. The contract also provided that the cotton should be received by De Silva & Co. This agreement to carry and deliver at Fort Adams on the Mississippi, where it was obviously intended the contract should be consummated by the receipt of the cotton and the payment of its price, concurs with other circumstances in indicating a purpose of the *parties [*193 that the property was not intended to be changed until the weighing, delivery, receipt and payment took place. So it was regarded in Logan v. Le Mesurier, supra. Indeed, assuming, as the contract warrants, that the sellers were to carry the cotton to a designated place, and to ascertain its quantity and aggregate price by weight before delivery, and assum ing that it was then to be received, and that payment for the whole was to be concurrent with the delivery, it is hard to find any intention that the owners intended to part with their ownership while the cotton lay at Felter's plantation.

poned until the measurement at the delivery. | by both parties to ascertain the quality, no Here the timber was fully specified by the de- title passed until these acts were done. We do scription, and by the place where it lay. A not care, however, to review the decisions on 191*] statement of the estimated *quantity was given; the time and place of delivery was designated, as was the price per foot, measured off. Credit was also stipulated for. It was the case of selling ascertained chattels for an ascertainable sum. If this stood alone the contract would have passed the property, but it was controlled by the provisions for the possession, carriage and delivery, as well as the measurement and re-adjustment of the price. Many other English cases to the same effect might be cited. See Zagury v. Furnell, 2 Camp., 240; Rugg v. Minett, 11 East, 210; Gilmour v. Supple, 11 Moore, P. C., 551. We do not understand that there is any disposition to depart from the doctrine of these cases, or that of Mr. Blackburn's first and second rules. Of course, when nothing remains for the seller to do, when the weighing or measurement stipulated for is incumbent upon the buyer, or when the parties have provisionally agreed that a certain sum shall be taken for the price, subject to future correction, the contract is not within the rules. Turley v. Bates, 2 Hurls. & C., 200, has sometimes been thought a departure from the earlier cases, but we think without reason. It was the case of the sale of an entire heap of fireclay at two shillings per ton. The buyer was to cart it away and weigh it. He weighed, removed and paid for a part, and refused the rest. It was held the property of the whole heap had passed to him. But here the seller had nothing to do with the weighing or delivery. He had performed all he was required to do, either for ascertaining the quantity or the price. Besides, the jury had found as a fact that the sale was of the whole heap. The case of Kershaw v. Ogden, 3 Hurls. & C., 717, is in substance the same. In each of these cases the contract was in parol, and what it was, necessarily, for a jury.

It is true there are some American decisions, especially in New York, that are not in entire harmony with those we have cited. There are at least some dicta in Crofoot v. Bennett, 2 N. Y., 258, tending to show that specification of the subject in a contract for sale is sufficient to pass the property, though the vendor has the duty still of ascertaining the entire 192*] price *by weighing or measuring be fore delivery. And in Kimberly v. Patchin, 19 N. Y., 330, and Russell v. Carrington, 42 N. Y., 118, it seems to have been ruled that the sale of a specified quantity of grain, part of a larger bulk, with a receipted bill of sale and an order for the grain, passed the title without any actual separation or delivery of the property. These decisions, we think, are not in accordance with the authorities generally in this country. They are in conflict with later decisions in New York. In Kein v. Tupper, 52 N. Y., 553, the English rule was strictly accepted. There it was said by Chief Justice Church, that when anything remains to be done by the vendor to ascertain the identity, quantity or quality of the property, no title passes. That was the case of a sale of a certain number of bales of cotton, described by marks, at so much per pound, and the court said. as the cotton was to be weighed by the vendors to ascertain the quantity, and sampled

Added to this is, we think, a very significant circumstance. The contract shows that a portion of the cotton was not in a condition for delivery. True, it was relatively but a small portion, sufficient, as found by the court, to make about twenty bales. But, as we have noticed, the contract, was entire. It was for all the crops. The purchaser was under no obligation to take less than the whole. The subject of the contract was baled cotton, and Lobdell bargained for that. Nothing in the contract, indeed, shows clearly how much of the cotton was unginned, and how much was unbaled, but it reveals that a portion was; and certain it is, it was considered essential that all which had not been ginned, and baled and bagged, should be put into that condition before the vendee was required to accept it. And this the sellers were required to do. So much is clearly implied in the contract. If, then, it be, as asserted in Mr. Blackburn's first rule, that when anything remains to be done by the seller for the purpose of putting the goods into that state in which the purchaser is bound to accept them, or, in other words, into a deliverable condition, the property does not pass, it cannot be held that there was any intention of Gordon, or his principals, to transmit to Lobdell the ownership of the cotton before its delivery and before the payment of its stipulated price. We do not deny that a person may buy chattels in an unfinished condition and acquire the right of *property in [*194 them, though possession be retained by the vendor, in order that he may fit them for delivery.

But in such a case the intention to pass the It is hardly necessary to add that the receipt ownership by contract cannot be left in doubt. of $30 "in order to confirm the contract," can The presumption is against such an intention. have no bearing upon the question whether It should also be noticed that Lobdell under-the property passed. The confirmation of the took by the contract to furnish the necessary contract and its effect are distinct matters. bagging, rope and twine to put the unginned Whatever may have been thought by some old and unbaled cotton in a deliverable state. Ob- writers respecting the effect in the transviously this was to be done before the sellers were bound to deliver. It was, therefore, a condition precedent upon which the vendee's right depended. With this condition there was no compliance, and thus neither the vendors nor the vendee did all that it was contemplated and agreed they should do preparatory to the acceptance of the goods, or to bring the cotton to the condition in which it was understood it should be to entitle the sellers to the price stipulated.

We are the better satisfied with this conclusion because it works substantial justice, and because it accords with what appears to have been the subsequent understanding of the parties. The bargain was for cash, yet no steps were taken to consummate it until after the cotton was seized in April, 1864. Never, indeed. No tender of the price was made, the cotton was neither weighed, delivered nor received and, throughout, both parties appear to have treated the agreement as merely executory.

mission of property, of giving and receiving earnest money, it is now considered of no importance, or of the smallest importance. The subject is discussed in Benjamin on Sales, 2d ed., pp. 260-262, and the conclusion is reached that the true legal effect of earnest is simply to afford conclusive evidence that a bargain has been actually completed, with mutual intention that it should be binding on both; and that the inquiry, whether the property has passed in such cases, is to be tested [*196 On the other side it has been argued with not by the fact that earnest is given, but by much earnestness, that the provision in the the true nature of the contract concluded by contract, the cotton, from the date thereof, giving the earnest. The author says further, should be at the risk of Lobdell, exhibits an "No case has been found in the books in which intention of the parties that the property the giving of earnest has been held to pass should pass. It must be admitted that when the property in the subject-matter of the sale, a contract of sale has transmitted the property where the completed bargain, if proved in in its subject to the buyer, the law determines, writing, or in any other sufficient manner, in the absence of agreement to the contrary, would not equally have altered the property." that the risk of loss belongs to him. This is In our judgment, therefore, the contract of a consequence of his ownership, though un- July 31st, 1863, must be regarded as only an doubtedly the property may be in one and the agreement to sell, and not as effecting a transrisk in another. But it needs no agreement fer of the ownership. It left the property in that the buyer shall take the risk, if it is Elgee, where it was before. intended the ownership shall pass to him. Hence the stipulation that the cotton should be at the risk of Lobdell after the date of the contract, instead of showing an intention of the parties that the right of property should pass to him, seems rather to indicate a purpose that the ownership should remain unchanged. Else why introduce a provision totally unnecessary? Such was the inference drawn from the introduction of a similar clause in a contract considered in Martineau v. Kitching, L. R., 7 Q. B., 436. There it was stipulated that The result of what we have said is, that 195*] the goods should remain at the risk neither Lobdell nor Woodruff and Bouchard, of the sellers, and Lord Cockburn asked "If who claim under him, had any such ownerthe property in the goods had not passed to ship of the cotton as to entitle them or either the buyers, why it was said the goods should of them to sue in the Court of Claims for its remain at the risk of the sellers?" adding fur-proceeds. We come next to the claim of Mrs. ther, "what would be the necessity, what Nutt, executrix of Haller Nutt, deceased. A would be the object and purpose of such a stip. very vigorous argument has been made to us ulation if the property still remained in them. in support of this claim, but we think it canOf course it would be at their risk." It may not be sustained. Assuming that Nutt's conbe asked what, then, was the object of stip-tract with Elgee, made in October, 1863, was ulating that the cotton should be at Lodbell's not illegal, that it was not in violation of the risk if it was not intended to evidence a trans- non-intercourse laws, it still was not such a mission of the title? No doubt some purpose contract as passed the property in the cotton. existed, and we think it may be found in the The finding of the court is, that in October, circumstances in which the parties stood when 1863, Truman Holmes, as the agent of Dr. they contracted. The cotton was in a dis- Nutt, contracted with Elgee for the sale from turbed region of the country. It was in dan-him of so much of the 2,100 bales of cotton ger of destruction by the Confederate forces, stowed at Felter's plantation as he (Holmes) and of capture by the United States forces. should get out in safety to a market, for the The sellers undertook to carry and deliver it price of £15 per bale, to be paid in Liverpool. at the landing at Fort Adams. Such a de-*The risk of the cotton till got out to [*197 livery might be rendered impossible by the be on Mr. Elgee. That this was but an execuvicissitudes of the war, and hence it was a tory contract is very plain. Its subject was reasonable provision that Lodbell should bear indefinite. It was not necessarily the 2,100 the risk, that the sellers should not be answer- bales; not certainly any of them. It was able in damages in case of Confederate burn- simply so much of them as Holmes should ing or federal capture. To us this is a suffi- get out in safety to a market. The agreement cient explanation of the assumption of the contemplated that he might never get out any. risk by Lodbell, without regarding it as a If so, nothing was agreed to be sold. In fact mutual recognition of a change of ownership. he never did get out a bale. Whatever else