Ropes & others v. Lane.

J. G. Abbott & L. Child, for the defendant.

J. W. Perry & S. B. Ives, Jr., for the plaintiffs.

CHAPMAN, J. At the former hearing of this case, (see 9 Allen, 502,) it appeared that a sale and delivery of certain barrels of No. 1 mackerel had been made by Wonson & Brothers to Garland, as the agent of other parties, which was completed on the 21st of November 1862. The case was recommitted to the auditor to report as to certain facts. One of the matters to be considered was, whether any of these same mackerel had been sold and delivered to the plaintiffs prior to that date. It there appeared that the agreement made by the plaintiffs with Wonson & Brothers in September 1862, for the purchase of all the mackerel that Wonson & Brothers should pack that year, was executory, and did not pass the property of the No. 1 mackerel in question. The further report finds that these mackerel are enumerated in a bill of parcels annexed to the report as "No. 9." This bill was rendered to the plaintiffs on or about November 10th, the prices of the mackerel having been fixed before, on the arrival of the different vessels, as stated in the report. It is further found that from their knowledge of the business and observation of the properties of the different kinds and quantities of mackerel packed out from the different fares that season, the parties had satisfied themselves that there were upon the premises the number of mackerel of the kinds and quantities billed to the plaintiffs, and probably more, but the plaintiffs took no means to ascertain if the number billed to them had been actually inspected. One of the plaintiffs then gave directions as to storing them in the warehouses, but the bill was not settled till November 24th.

Upon the principles stated in our former opinion, no mackerel would pass to the plaintiffs on the 10th of November that had not then been inspected, and were not in some way delivered, for the inspection was to precede the delivery. The payments did not constitute a delivery, for they were advances designed to be made beforehand. But the report further finds that by o before November 20th the warehouses were all filled by Won. son & Brothers in conformity with the directions of one of the

Ropes & others v. Lane.

plaintiffs; that one of the plaintiffs was in attendance and saw them stored as he had directed; that before they were thus stored they were inspected and marked, and were in all respects ready for immediate shipment. It thus appears that as to these No. 1 mackerel Wonson & Brothers had completed everything which was to be done on their part before the 21st of November, and that the plaintiffs had them in their possession, and also a bill of sale of them. A settlement of accounts remained to be made. This was done on the 24th of November, but the sale and delivery was not delayed till that time. It thus appears that this sale of the No. 1 mackerel to the plaintiffs was completed prior to the sale to Garland.

The report also states some new facts in respect to the mack. erel not sold to Garland, and not included in any of the bills of sale. On the first of December two bills of parcels were made which were then said to contain an enumeration of all the mackerel on the wharves and premises of Wonson & Brothers not included in any former bill to the plaintiffs, and from an examination of the packer's books this appeared to be the fact. They were accepted by the plaintiffs as such. On the 19th of December the plaintiffs settled their account with Wonson & Brothers, having overpaid the bills. The parties then went upon the wharf; one of the Wonsons opened the doors of the warehouses; one of the plaintiffs saw the condition of the warehouses and the barrels on the wharf not housed or covered, and it was agreed that the mackerel should be stored during the winter in the warehouses and on the wharves for a certain price agreed. All the barrels had then been inspected and branded, and were ready for immediate shipment. There was hus an actual delivery to the plaintiffs of the whole of the mackerel under an agreement for the purchase of the whole, and the intent of the parties was to complete the sale of the whole. The only defect in the transaction was that the bills of parcels did not enumerate all the articles that had been thus sold and delivered; and, though money enough had been advanced to pay for the whole, yet the payment had been unad justed. These defects were the result of mistake, and not of

Ropes & others v. Lane.

intention. According to the principles stated in Macomber ▾ Parker, 13 Pick. 175, and Riddle v. Varnum, 20 Pick. 280, the jury were authorized to find upon these facts that all these inackerel were then sold and delivered to the plaintiffs, so that as between the parties, they then became the property of the plaintiffs, notwithstanding the errors in the bills of parcels. Exceptions overruled.

INDEX.

ABSENT DEFENDANT.

If a valid attachment has been made of the property of a defendant who has
never lived in Massachusetts, and he, being out of the Commonwealth, ac-
knowledges service of the writ and waives the benefit of the statutes respect-
ing absent defendants, judgment may be rendered and execution issued against
him upon his default, in the same manner as if the writ had been duly served
upon him by an officer within the Commonwealth. Richardson v. Smith, 134.

ACTION.

1. An action at law to recover damages for an injury which causes immediate
insensibility, and death in fifteen minutes, survives to the administrator of the
estate of the deceased. Bancroft v. Boston & Worcester Railroad, 34.
2. The sale of an article in itself harmless, and which becomes dangerous only
by being used in combination with some other article, without any knowledge
by the vendor that it is to be used in such combination, does not render him
liable to an action by one who purchases the article from the original vendee,
and who is injured while using it in dangerous combination with another arti-
cle; although by mistake the article actually sold is different from that which
is intended to be sold. Davidson v. Nichols, 514.

3. Commissioners appointed by the judge of probate to make partition of the
real estate of a deceased person may, if they acted faithfully and impartially,
recover full compensation for their services and expenses by an action against
the petitioners for partition, although in making such partition they innocently
departed from and acted in violation of the directions of the warrant under
which they acted, and their report of their proceedings was not accepted and
partition was not made, and their charges and expenses were not ascertained
or allowed by the judge of probate. Potter v. Hazard, 187.

4. In such action evidence that the commissioners acted under the advice of the
defendants' counsel, the defendants being present on some occasions when such
advice was given, is competent for the purpose of showing their fidelity and
impartiality. Ib.

See LEASE, 1.

ADULTERY.

A man may be convicted of adultery who in good faith and in the belief that she
is a widow marries and cohabits with a woman who has left her husband and

remained absent from him for more than seven years together without hear
ing of him, if in fact her husband is still living. Commonwealth v. Thomp
son, 23.

AGENT.

See PRINCIPAL AND AGENT.

AMENDMENT.

See BOARD OF HEALTH, 1; RECognizance, 1.

ARBITRAMENT AND AWARD.

If a matter in dispute is submitted to two persons, with authority in case of dis.
agreement to choose a third person, the award of whom or a majority of whom,
in case a third person shall be chosen, shall be final, and the two arbitrators,
being unable to agree as to the amount of damages, appoint a third person
"as umpire to act with us in the hearing and final decision thereof in the man-
ner contemplated in said agreement," and the person so chosen, after a new
hearing before all three of them, makes to the parties a written statement of
his decision which shows that he arrived at it without consultation with the
other arbitrators, and that he did not consider it to be his duty to fix independ
ently the amount of damages to be awarded, but only to determine which of
the others had fixed the sum nearest in his judgment to justice and equity,
and he accordingly unites with the arbitrator who fixed the highest sum, and
those two make an award of damages, by a separate paper, which does not
show that the other arbitrator acted at all in the case, such award is void; al-
though such third person declares his own opinion that the sum awarded is too
small. Haven v. Winnisimmet Co. 378.

ASSUMPSIT.

1. If the purchaser of land at auction deposits with the auctioneer a sum of
money, in compliance with the terms of sale, and the sale is afterwards aban-
doned by mutual consent of the parties, and the purchaser thereupon forbids
the auctioneer to pay over the money to the vendor, and thus prevents him
from doing so, the latter is not responsible to the purchaser for its return.
Robinson v. Trofitter, 339.

2. If the purchaser of land at auction deposits with the auctioneer a sum of
money, in the presence of the vendor and in compliance with the terms of
sale, and the sale is not completed through the fault of the vendor, the latter
is responsible to the purchaser for the return of the money, although he has
never personally received the same. Teaffe v. Simmons, 342.

ATTACHMENT.

1. An attaching officer or creditor cannot inquire into the validity of a sale by
the debtor of articles which were exempt from attachment. Mannan v. Mer-
ritt, 582.

2. A debtor is entitled to hold, under all circumstances, exempt from attachment