Fitch & Lozee v. Beach
New York Supreme Court
This was an action of trover, tried at the Albany circuit in March, 1834, before the Hon. James Vanderpoel, one of the circuit judges. The defendant had two arks of lumber at Albany which he agreed to sell to the plaintiffs, and accordingly took the lumber to their dock.
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This was an action of trover, tried at the Albany circuit in March, 1834, before the Hon. James Vanderpoel, one of the circuit judges. The defendant had two arks of lumber at Albany which he agreed to sell to the plaintiffs, and accordingly took the lumber to their dock. A portion of it was unloaded from the arks and deposited on the dock, the parties themselves measuring it as it was taken out, until the quantity thus deposited amounted to 4381 feet, when it seems the taking out of the lumber was suspended for the purpose of procuring an inspector of lumber to attend to the measuring. This…
1Opinion of the Court
By the Court,
Bronson, J.
The question in this case is not, whether there was such an executory contract for the sale of the lumber to the plaintiffs, as would entitle them to an action against the defendant, for the non-performance of the agreement on his part; but whether there was such an executed contract of sale as passed the title of the property. The contract to sell did not change the property in the goods, for two reasons: first, something remained to be done as between the vendor and vendees, to wit, assorting and measuring the lumber for the purpose of ascertaining the quantity of…
2Cases cited4 opinions
- Ward v. ShawNew York Supreme Court · 1831
- FurnissCourt for the Trial of Impeachments and Correction of Errors · 1831
- Chapman v. LathropNew York Supreme Court · 1826
- Topping v. RootNew York Supreme Court · 1826
3Cited by1 opinion
- Kennedy v. GiffordNew York Supreme Court · 1838