Acraman and Others, Assignees of Thomas Swift, a Bankrupt, v Morrice
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1849 |
| Date | 22 November 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 584
IN THE COURT OF COMMON PLEAS
S. C. 19 L. J. C. P. 57; 14 Jur. 69.
584 ACRA.MAN .V. MOBBICE 8 C. B.m [449] acbaman and others, Assignees of Thomas Swift, a Bankrupt, v. morrice. Nov. 22, 1849. [S. C. 19 L. J. C. P. 57; 14 Jur. 69.] A. contracted with B. to purchase of him the trunks of certain oak trees, then felled, and lying at Hadrtock, about twenty miles from Chepstow. The course was, for A.'s agent to select and mark those portions which he intended to purchase, and for B. to sever the tops and sidings, and float the trunks down the river Wye to A.'s wharf at Chepstow, and there deliver them. After a portion of the timber had been delivered, and the whole paid for, B. became bankrupt; whereupon A. sent his men to B.'s premises at Hadnock, and severed and carried away the marked portions of certain trees:-Held, that no property in the trees, or any portion of the trees, which had not been delivered by B., passed to A. by the contract; and that there was no delivery x r acceptance to satisfy the statute of frauds: and, consequently, that the assignees of B. were entitled to recover the value, in trover. Trover, for certain oak timber. The first count alleged a conversion before, and the second after, the bankruptcy of Swift. The defendant pleaded,-first, to the whole declaration, not guilty,-secondly, to the first count, that Swift was not possessed of the goods and chattels in that count mentioned, &c., as of his own property, in manner and form, &c.,-thirdly, to the second count, that the plaintiffs were not possessed of the goods and chattels in that count mentioned, &c., as of the property of the plaintiffs as such assignees as aforesaid, in manner and form, &c. The cause was tried before Coleridge, J., at the Bristol summer assises, 1848. The facts which appeared in evidence were as follows:-The bankrupt Swift was a timber-dealer at Monmouth. The defendant was a timber-merchant in London, and was in the habit of contracting largely for the supply of timber to Her Majesty's dockyards. This action was brought to recover the value of certain oak timber which had been purchased of Swift by the defendant, and marked, measured, and paid for, before the date of the fiat, but [450] not actually delivered at the appointed place, and of which the defendant possessed himself after the fiat, under the circumstances hereafter mentioned. There had been a long course of dealing between the parties, of this kind :-The trees being felled, the defendant sent an agent to inspect them, and to measure and mark such portions of them as were suited for his purpose. It then became the duty of Swift to cut off those parts which the defendant's agent had rejected, and, at his own expense, to convey and deliver the trunks to the defendant at Chepstow. The timber which was the subject of this action, formed part of a large number of trees which the defendant had, at the close of the year 1847, verbally agreed to purchase of Swift, and which had been measured and marked by the defendant's agent, but the rejected portions of which had not been severed by Swift before the issuing of the fiat. The fiat was dated the 15th of April, 1848. After that day, the defendant sent men to the bankrupt's premises at Hadnock, in the Forest of Monmouth, who severed from the trunks those parts of the trees which the defendant had not agreed to take, and carried away those portions which he had purchased. On the part of the defendant, it was insisted that the measuring and marking of the timber by his agent, was a sufficient delivery and acceptance within the statute of frauds, and passed the property in it to him. The learned judge intimated a contrary opinion, and directed the jury to find for the plaintiffs for the agreed value of the timber so taken,-leave being reserved to the defendant to move to enter a verdict for him, if the court should think that the property had, under the circumstances, vested in him. The jury accordingly returned a verdict for the plaintiff, damages 951. [451] Cockburn, in the following Michaelmas term, pursuant to the leave reserved to him, moved for a rule nisi to enter a verdict for the defendant. He submitted, that enough had been done to pass the property in the timber to the defendant, before the issuing of the fiat; and that, the severance of the tops and sidings from the trunks being an obligation imposed upon the vendor for the purchaser's benefit, it was competent to the defendant to do it himself. [Wilde, C. J., referred to Eugg v. Minett 8C.B.452. ACRAMAN V. MOBBIOE 585 (11 East, 210). There, turpentine in casks was sold by auction, at so much per cwt., and the casks were to be taken at a certain marked quantity, except the last...
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Elizabeth Langton v Higgins
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