2 Bawls v. Deshler, 3 Keyes, 572 (1867).
3 Chaplin v. Rogers, 1 East, 194; Hurry v. Mangles, 1 Camp. 452; 2 Stark. Ev. 591, and cases cited; Hollingsworth v. Napier, 3 Caines, 182; Wilkes v. Ferris, 5 Johns. 335; Ryall v. Rolle, 1 Atk. 171; Harman v. Anderson, 2 Camp. 243; 2 Kent, Comm. lect. 39, p. 500; Searle v. Keeves, 2 Esp. 598; Lucas v. Dorrien, 7 Taunt. 288; Jewett v. Warren, 12 Mass. 300; Rice v. Austin, 17 Mass. 204; Spear v. Travers, 4 Camp. 251; Zwinger v. Samuda, 7 Taunt. 265; Nichols v. Patten, 18 Me. 231. The delivery of a deed of a bakehouse and land situated in a distant town, and of a bill of sale of the implements in the house and a bread-cart under a shed on the land, is not a constructive delivery of the cart. Packard v. Wood, 4 Gray, 307 (1855).
4 Atkinson v. Maling, 2 T. R. 465; Winsor v. McLellan, 2 Story, 492. But as against a subsequent bona fide purchaser, no title passes by an oral sale, without delivery, of a boat moored upon the water. Veazie v. Somerby, 5 Allen, 280 (1862).
5 Kent, Comm. lect. 39, p. 500; Long on Sales, Rand's ed. 69; Pratt v. Pafkman, 24 Pick. 42; Chandler v. Sprague, 5 Met. 306; Ezell v. English, 6 Port. 311; Bonner v. Marsh, 10 Sm. & M. 376.
1 Stoveld v. Hughes, 14 East, 312; Barney v. Brown, 2 Vt. 374; 1 Bell, Comm. 176. So putting up oil of peppermint in the vendee's bottles sent by him to the vendor's place of business, so far vests the property in the vendee that he can sustain an action against one who afterwards bought several bottles of the vendor. Langton v. Higgins, 4 H. & N. 402 (1859). And see Aldridge v. Johnson, 7 El. & B. 885; Logan v. Le Mesurier, 6 Moore, P. C. 116.
2 Proctor v. Jones, 2 C. & P. 532; ante, § 790 et seq.
3 Jewett v. Warren, 12 Mass. 300; 2 Kent, Comm. lect. 39, p. 501; Boynton v. Veazie, 24 Me. 286; Shindler v. Houston, 1 Denio, 48; 1 Comst. 261; Bethel Steam Mill Co. v. Brown, 57 Me. 9 (1869). But plucking a handful of half-grown grass and delivering it to a purchaser in the field, upon a sale of the grass with an agreement that the vendor shall cut it at the proper time, is not a constructive delivery of the hay as a chattel, which will pass a title to it, as against third persons. Lamson v. Patch, 5 Allen, 586 (1863).
4 Hiude v. Whitehouae, 7 East, 558; Magee v. Billingsley, 3 Ala. 679.
5 As between an attaching creditor and a bond fide purchaser for valuable consideration, if the debtor declares that he delivered to the purchaser all the articles named in the bill of sale, including a horse and ever, but primÔ facie evidence of a delivery, and may be otherwise explained by evidence of the manifest intention of either party not to make such a delivery as would otherwise be presumed. And it has been held in a recent case that the giving of a delivery order does not, without some positive act done under it, operate as a constructive delivery of the goods to which it relates, nor deprive the owner of the goods, who gave it, of his right of lien for their price, even as against the claim of a third person who has bond fide purchased them from the original vendee.1
§ 1032. So, also, if the property sold be in the hands of a third person,2 and, at the request of the vendor, he consent to hold them as bailee of the vendee, there is a constructive delivery so as to pass the property, and the creditors of the vendor cannot attach it.3 And even although such bailee do vehicle he was then driving, and that the purchaser then entered the vehicle and they drove away together, this is evidence to be submitted to the jury of a delivery of all the articles. Phelps v. Cutler, 4 Gray, 137 (1855).
1 M'Ewan v. Smith, 2 H. L. Cas. 309 (1849).
2 So if the goods are already in the possession of the purchaser, no other delivery may be necessary. Thus A. purchased four horses of B., which, previous to the purchase, he had for some time kept at his own stable for B. At the time of the purchase no formal delivery was made. Held, that a formal delivery was not necessary to make the sale good against the creditors of B. Lake v. Morris, 30 Conn. 201 (1861).
3 Potter v. Washburn, 13 Vt. 558; Carter v. Willard, 19 Pick. 1; Linton v. Butz, 7 Barr, 89. A vendor of a part of a large parcel or quantity of grain not separated from the whole mass may, it is said, be bound by his acceptance of a delivery order for the quantity sold, when presented by some one to whom the original purchaser has transferred his contract, or a part of it, even if he does not expressly promise to deliver the goods, but only uses language which induces the second purchaser or holder of the delivery order to act on the belief that the property had passed to the original purchaser. Knights v. Wiffen, Law R. 5 Q. B. 660 (1870). See, also, Woodley v. Coventry, 2 H. & C. 164. A fortiori, if he engages to hold the goods for such purchaser. See Stonard v. Dunkin, 2 Camp. 344; Gosling v. Birnie, 7 Bing. 339; Hawes v. Watson, 2 B. & C. 540; Gillett v. Hill, 2 C. &M. 530. If a vendor of part of a large quantity of similar goods stored in his warehouse, recognize the right of the vendee or of a purchaser from him, by accepting a delivery order for them, he cannot afterwards object that no specific goods have been set apart or distinguished. Woodley v. Coventry, 2 H. & C. 164 (1863).
1 Carter v. Willard, 19 Pick. 1. See ante, § 482, et seq. Hollings-worth v. Napier, 3 Caines, 182; Legg v. Leyman, 8 Blackf. 148; Sahlman v. Mills, 3 Strobh. 384. The owner of a horse kept at a livery stable agreed at another place to sell it, received the price from the purchaser, and at the same time the seller paid the stabler for the previous care of the horse, and the purchaser directed him to continue to keep it and feed it on hay, and promised to pay him therefor, and the stabler afterwards removed the horse from the stall in which it had been to another more convenient for feeding it with hay. It was held that in the absence of fraud, these facts showed a delivery of the horse as against a subsequent attaching creditor of the seller. Bullard v. Wait, 16 Gray, 55 (1860).