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.,


Mr. W. W. McFarland:

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.

Nutt's contract was 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.

The cotton consisted of two parcels: one of Chit. Cont., 336; Benj. Sales, Am. ed., §§ unbaled cotton about twenty bales and the 313, 317; Gilmour v. Supple, 11 Moore, P. C., 566; other of baled cotton about 2,100 bales. By 322; Arnould v. Delano, 4 Cush., 40; Ropes v. Calcutta Co. v. DeMattos, 32 L. J. Q. B., the agreement, Lobdell was to furnish the bag- Lane, 9 Allen, 502; Gale v. Burnell, 7 Q. B. ging, rope and twine necessary to bale the un-850; Cartland v. Morrison, 32 Me., 190; Poth baled 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

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.

Mr. Justice Strong delivered the opinion of the court:

These cases have been elaborately and very ably argued, touching both the legality and the construction of the contracts under which the different parties claim. But in the view which we take of the merits of the controversy, it is unnecessary to do more than to examine the contracts themselves, and to determine what is their true meaning.

The fundamental question, in all the cases, is whether Elgee parted with the ownership by either of the contracts found by the Court of Claims to have been made by him, or for him by his agent, Gordon. It is the owner alone who has any standing in the Court of Claims under the Captured and Abandoned Property Act. In regard to such property, only such suits can be brought as are authorized by the statute. That statute (Act of March 12, 1863) furnishes a complete system for the prosecution of claims under it, and defines the extent of the rights which those who claim an interest in the proceeds of property captured or abandoned during the civil war may assert against the Government. According to the 186*] well known rules of statutory construction, the system is exclusive of all others, and the rights defined are the only ones which can be enforced in any judicial proceeding. The language of the Act is "That any person claiming to have been the owner of any such abandoned or captured property, may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of said court of his ownership of said property, of his rights to the proceeds thereof, and that he has never given any aid or support to the present rebellion, to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of said property and other lawful expenses attending the disposition thereof."

Thus, it is plain that no one is allowed to sue in the Court of Claims for the proceeds of captured or abandoned property unless he can prove to the satisfaction of the court three things: first, his ownership of the property seized; second, his right to the proceeds thereof; and, third, that he never gave aid or comfort to the rebellion. The third, it is true, has been ruled by this court to be no longer necessary since the amnesty proclamations, but the ownership of the property at the time of the seizure, and the right to the proceeds thereof, are still indispensable to any standing in court as a claimant for the proceeds of property captured, which have been paid into the Treasury of the United States.

We are, then, to inquire whether either Woodruff and Bouchard or Haller Nutt had acquired the ownership of the cotton prior to its seizure by the agent of the United States, on the 2d of April, 1864; for if either of these parties had become the owner and entitled to the proceeds of its sale before that date, that party is entitled to a judgment for the sum remaining in the Treasury, after the deductions are made provided by the statute. If, on the other hand, neither of those parties has shown that Elgee parted with his title; if the

ownership remained in Elgee until after the seizure, and until his death, his representatives are the only persons that are authorized to sue for the proceeds of the cotton in the Court of Claims, for they only are the owners, whatever equities may exist in favor of the parties who contracted to buy.

We come, then, at once to the question whether Woodruff and Bouchard acquired the ownership of Elgee. If they did, it was mediately through Č. S. Lobdell. They made no contract with Elgee, but Lobdell did, and they purchased Lobdell's contract. What, then, was that contract?

On the 31st day of July, 1863, W. C. Gordon, an authorized agent of Elgee and Chambers, entered into the following agreement with Lobdell:

Mississippi, Wilkinson County:

We have this 31st of July, 1863, sold unto Mr. C. S. Lobdell our crops of cotton, now lying in the county aforesaid, numbering about 2,100 bales, at the price of ten cents per pound, currency; the said cotton to be delivered at the landing at Fort Adams, and to be paid for when weighed, Mr. Lobdell agreeing to furnish at his cost the bagging, rope and [*182 twine to bale the cotton unginned; and we do acknowledge to have received, in order to confirm this contract, the sum of $30. This cotton will be received and shipped by the house of De, Silva & Co., New Orleans, and from this date is at the risk of Mr. Lobdell. This cotton is said to have weighed an average of five hundred pounds when baled. (Signed) W. C. GORDON,

Agent for Messrs. Elgee and Chambers.

*At the time when the contract was [*187 made the baled cotton was stored under a covering of boards at some place not certainly designated. A portion, equal to about twenty bales unbaled, was in a gin-house on Buffalo Bayou, at a place known as "The Rocks," or "Felter's Plantation," about ten miles from the Mississippi River. At this latter place Lobdell and the agent of Elgee met. Whether it was the same place where the bulk of the cotton was lying does not distinctly appear. Immediately after the contract Lobdell employed J. M. Morris, living near where the cotton was stored, "to watch and take care" of it, and paid him therefor, and Morris continued his care until the cotton was seized by the agent of the United States. But it does not appear that the possession was surrendered to Morris, or that there was any change of possession. At this time, the region where the parties were was greatly disturbed by the war, and the cotton was in danger of being burnt by the Confederate forces, and of being captured by the United States. Under these circumstances, what ought it to be concluded was intended by the contract between Gordon and Lobdell? Was it intended to pass the property in the cotton to the purchaser, or was it in legal effect only an agreement to sell?

It must be admitted there is often great difficulty in determining whether a contract is itself a sale of personal property so as to pass the ownership to the vendee, or whether it it a sale on condition, to take effect or be consummated only when the condition shall be performed, or whether it is a mere agreement


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.

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."

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 by the contract the goods are to be weighed by precedent to the vesting of the property." the vendor, or by him concurrently with the Second. "Where anything remains to be vendee. In the leading case of Hanson v. Meydone to the goods for the purpose of ascer- er, 6 East, 614, where it appeared that under taining the price, as by weighing, measuring a contract of sale a vendee agreed to purchase or testing the goods, where the price is to all the starch of the vendor, then lying at the depend on the quantity or quality of the goods, warehouse of a third person, at so much per the performance of these things shall also be hundred weight, by bill at two months, and a condition precedent to the transfer of the the starch was in papers but the exact weight property, although the individual goods be as- was not then ascertained, and was to be ascertained and they are in the state in which certained afterwards, and fourteen days they ought to be accepted. *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, These may be regarded as rules for ascer- though a part had been weighed and delivered, taining the intention of the parties. They are, and though a credit was given. Nothing was in most cases, held to be conclusive tests. wanting to specify the subject of the contract. Though not supported by all the decisions, It was all the vendor's starch in the warehouse. they certainly are generally accepted in Eng- So in Simmons v. Swift, 5 Barn. & C., 857, land and by most of the courts in this country. where the contract was, "I have this day, Oc And they are the rules which are applicable tober 23d, sold the bark stacked at Redbrook, to contracts for the sale of specific chattels; at £ 9 5s. per ton of twenty-one hundred weight, contracts which define the articles which are to Hezekiah Swift, which he agrees to take the subjects of agreement, either single articles and pay for on the 30th of November," and or aggregates separated from others, as the some of the bark was weighed and delivered, grain in a bin, the hides in a specified vat, etc., it was held that the property in the residue etc., or such a case as the present, all the cot- did not vest in the purchaser until it had been ton at a designated place. A considerable weighed. In Logan v. Le Mesurier, 6 Moore, number of the numerous authorities which P. C., 116, the sale was by the following conjustify these rules are collected by Mr. Benja-tract: "Hart, Logan & Co., of Montreal, sell, min 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,

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 Que-
bec 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 quan-
tity turn out more than above stated, the sur-
plus to be paid for by the purchaser at 91⁄2d.
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 measure-
ment and delivery of the timber was made, and
that the transfer of the property was post-

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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 this subject further, for the stipulation in the was given; the time and place of delivery was contract now under consideration, that the cotdesignated, as was the price per foot, measured ton should be paid for when weighed, was only off. Credit was also stipulated for. It was one of several provisions tending to the conthe case of selling ascertained chattels for an clusion that the intention of the parties was not ascertainable sum. If this stood alone the con- to effect an immediate passing of the property. tract would have passed the property, but it We have already noticed that no sale upon was controlled by the provisions for the posses- credit was intended. There was, therefore, no sion, carriage and delivery, as well as the meas- reason why the vendor should part with anyurement and re-adjustment of the price. Many thing before the purchase money was paid or other English cases to the same effect might be tendered. The possession was certainly recited. See Zagury v. Furnell, 2 Camp., 240; tained. The vendors undertook to deliver at Rugg v. Minett, 11 East, 210; Gilmour v. Sup- Fort Adams. To enable them to carry, and thus ple, 11 Moore, P. C., 551. We do not under- deliver, possession was indispensable. The constand that there is any disposition to depart tract also provided that the cotton should be from the doctrine of these cases, or that of Mr. received by De Silva & Co. This agreement Blackburn's first and second rules. Of course, to carry and deliver at Fort Adams on the when nothing remains for the seller to do, when Mississippi, where it was obviously intended the weighing or measurement stipulated for is the contract should be consummated by the incumbent upon the buyer, or when the parties receipt of the cotton and the payment of its have provisionally agreed that a certain sum price, concurs with other circumstances in shall be taken for the price, subject to future indicating a purpose of the parties [*193 correction, the contract is not within the rules. that the property was not intended to be Turley v. Bates, 2 Hurls. & C., 200, has some- changed until the weighing, delivery, receipt times been thought a departure from the ear- and payment took place. So it was regarded lier cases, but we think without reason. It was in Logan v. Le Mesurier, supra. Indeed, asthe case of the sale of an entire heap of fire- suming, as the contract warrants, that the selclay at two shillings per ton. The buyer was lers were to carry the cotton to a designated to cart it away and weigh it. He weighed, re- place, and to ascertain its quantity and aggremoved and paid for a part, and refused the gate price by weight before delivery, and assum rest. It was held the property of the whole ing that it was then to be received, and that heap had passed to him. But here the seller payment for the whole was to be concurrent had nothing to do with the weighing or de- with the delivery, it is hard to find any intenlivery. He had performed all he was required tion that the owners intended to part with to do, either for ascertaining the quantity or their ownership while the cotton lay at Felter's the price. Besides, the jury had found as a plantation. 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 ven dor, in order that he may fit them for delivery.

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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.

writing, or in any other sufficient manner, would not equally have altered the property." In our judgment, therefore, the contract of July 31st, 1863, must be regarded as only an agreement to sell, and not as effecting a transfer of the ownership. It left the property in Elgee, where it was before.

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, in the absence of agreement to the contrary, that the risk of loss belongs to him. This is a consequence of his ownership, though undoubtedly the property may be in one and the risk in another. But it needs no agreement that the buyer shall take the risk, if it is 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 ·

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