An action for goods sold and delivered can be maintained wherever goods have been sold and delivered by one person to another under an express agreement which is incomplete in that the contract price had not been fixed.1 Under some circumstances this action will not lie for goods delivered under a contract void for mistake as to an essential element. A sold and delivered coal to B under what both parties believed to be a special contract. The contract was, however, void for mistake: A understanding that the transaction was a cash sale while B understood that the price of the coal was to be credited on A's account. A did not, on learning of the mistake, demand return of coal; but insisted that B should keep it under the contract as claimed by A. B used it. It was held that B was not liable to A for a reasonable compensation for the coal in the absence of estoppel.2 This action also lies where property has been taken by one person with the consent of the owner, the parties intending the title to pass although no express agreement has been made.3 Thus, a mortgagee of chattels, holding under a mortgage which provides that the mortgagor may sell the property in the name of the mortgagee, may recover under common counts in assumpsit against one who has bought such property from the mortgagor ;4 even though under an ordinary mortgage, the mortgagee could not recover on the common counts from a third person who bought mortgaged property.5 A builder who uses goods and materials belonging to another is liable to such other for their value in this form of action.6 Thus, A had a contract to erect a building for B. A got the iron work for such building from X. The contract between A and B provided that no material should be estimated or paid for until used in the permanent construction of the building. X delivered certain beams under his contract with A, but before they were used in the building, A forfeited his contract, B let a new contract to C, and C used this iron. It was held that X could recover from C for such iron.7 A, a car-wheel company, shipped to B, the receiver of a railroad, a number of car-wheels in excess of his order. B refused to accept the entire number thus shipped, but A asked B to unload the wheels, and hold them subject to A's order, and to be paid for by B only in case he actually used them. Subsequently, at a receiver's sale, X, who knew all these facts, bought these wheels among other property. X was held liable to A for the value of such wheels in implied contract.8 Goods sold and delivered to one person may constitute a liability against another, at whose request and in reliance upon whose promise to pay, such goods were sold and delivered.9 Thus, a lumber company drew orders for money upon itself in favor of its employees. A storekeeper, at the request of the lumber company, received these orders in payment of goods sold to such employees. It was held that the storekeeper could recover from the lumber company for the goods sold and delivered.10 One person is not liable for goods sold to another, though he may have received the proceeds thereof. Thus A, a creditor of B's, agreed that B could continue in business if A's bookkeeper could take charge of the cash and the drawing of checks. A temporary arrangement of that sort was entered into, which either party could avoid at will. Under such arrangement, A was not liable for goods sold and delivered to B.11 If goods are sold to A upon A's credit, the fact that they are delivered to B, and that B received the benefit of them, does not make B liable therefor.12 Thus a railroad company is not liable for material furnished to its main contractor for use upon its road,13 nor is the owner of property liable for material furnished to the main contractor, and used by such contractor in building a house upon such property.14 The right of one whose property has been wrongfully taken by the tort of another, to maintain an action in assumpsit against such other is discussed elsewhere.

7 St. Barnabas Hospital v. Electric Co., G8 Minn. 254; 40 L. R. A. 388; 70 N. W. 1120.

1McEwen v. Morey, 60 111. 32; James v. Muir, 33 Mich. 223; Smith v. Summerfield, 108 N. C. 284; 12 S. E. 997; Graff v. Callahan, 158 Pa. St. 380; 27 At!. 1009.

2 Concord Coal Co. v. Ferrin, 71 N. H. 331; 93 Am. St. Rep. 496; 51 Atl. 283.

76

3 Carney v. Cook, 80 la. 747; 45 X. W. 919; Rumford Falls Power Co. v. Paper Co., 95 Me. 186; 49 Atl. 876; Krey v. Hussman, 21 Mo. App. 343; Indiana Mfg. Co. v. Hayes, 155 Pa. St. 160; 26 Atl. 6; Goodland v. Le Clair, 78 Wis. 176; 47 N. W. 268.

4 Flood v. Butzbach. 114 Mich. 613; 68 Am. St. Rep. 501; 72 N. W. 603.

5 Tate v. Torcoutt, 100 Mich. 308; 58 N. W. 993; Warner v. Beebe, 47 Mich. 435; 11 N. W. 258.

6 Clare v. Johnson (Ky.), 56 S. W. 5.

7 Bavley v. Anderson. 71 Wis. 417; 3G X. W. 863.

8 Northwestern, etc., Co. v. Ry, 94 Wis. 603; 60 N. W. 371.

9 Cox v. Peltier, 159 Ind. 355; 65 N. E. 6; East, etc., Co. v. Barnwell. 78 Tex. 328; 14 S. W. 782.

10 East, etc., Co. v. Barnwell, 78 Tex. 328; 14 S. W. 782.