Crofoot v. Bennett
New York Court of Appeals
Sylvester Crofoot sued Bennett in the supreme court in trespass for taking a quantity of brick. On the trial before Willard, J., at the Washington circuit in 1847, it appeared that Horace Grofoot, on the 2d of September, 1846, in consideration of a previous indebtedness to and a new advance by the defendant, transferred to him by writing all the brick in two kilns previously burnt in Crofoot’s yard, supposed to be 45,000, and 43,000 to be taken out of a new kiln which he was…
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Sylvester Crofoot sued Bennett in the supreme court in trespass for taking a quantity of brick. On the trial before Willard, J., at the Washington circuit in 1847, it appeared that Horace Grofoot, on the 2d of September, 1846, in consideration of a previous indebtedness to and a new advance by the defendant, transferred to him by writing all the brick in two kilns previously burnt in Crofoot’s yard, supposed to be 45,000, and 43,000 to be taken out of a new kiln which he was then putting up. It was stated in the writing that the defendant had paid for the brick, and that they were to be good…
1Opinion of the CourtStrong, J.
It is said in the opinion of the supreme court, that the title to the unburnt brick passed to the defendant on the 3d of September, before they had been separated from the mass in the new kiln, or burnt. In this I think they were *259wrong. Chancellor Kent says that when the goods sold are mingled with others, they must be ascertained, designated and separated from the mass, before the property can pass. It is a fundamental principle pervading every where the doctrine of sales of chattels, that if goods be sold while mingled with others, by number, weight or measure, the sale is incomplete, and…
2Cited by1 opinion
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