De Ridder v. M'Knight , 13 Johns. 294 ( 1816 )

Van Ness, J.,

delivered the opinion of the court.

Whether the bargain between the parties for the sale of the mill stones was completed, or whether it was only in fieri, was a question of fact which ought to have been submitted to the jury for their decision. The evidence that the negotiation had been closed, and that the defendant had agreed to purchase, is pretty strong, and the jury would have been warranted to have found for the plaintiff. The greatest difficulty in the case is, whether it appears sufficiently that the plaintiff had procured a relinquishment from Tifft, who had previously agreed to purchase the mill stones. From the testimony of Brewer it appears, that at the defendant’s request he inquired of the plaintiff whether he had procured such relinquishment, who said he had; and that when he informed the defendant of it he “ expressed his satisfaction with the same,” 'The fact that the mill stones have remained continually Ih^the plaintiff’s possession, without any claim on the part of Tifft,. or any other person,: affords a strong presumption' that Tifft had renounced' any pretensions he might have had to them. The agreement between the plaintiff and Tí¿fí, in fact, presented no legal obstacle to the sale to the'-defendant, because there is no evidence.of any delivery to Tifft, nor that .he fever paid any.part of the consideration money. ' Indeed, from the bill of exceptions, it is evident there- was neither delivery nor payment. These remarks, sérye ip show-the-propriety of submitting, all the evidence, to the jury, in order that they, might '•'have, drawn the proper conclusions from .it. If there was an: absolute contract on the part of the plaintiff to sell, and ion. the part of the defendant to buy, the delivery .was abundantly sufficient, 'The articles sold wé¿e ponderous, apdithere has been thñ pnly delivery of them which was practicable. They were left on the land purchased by the defendant, which .was in his possession, án&> •there they have since remained, in his power, and subject to be used by him whenever he pleashd. . The presumption, perhaps, is, that he has kept them in pursuance of the purchase made by himffór ifbe did not, why did he, shortly, after the time he sent Brewer to the plaintiff to inquire about.Tift's relinquishment' of . his purchase, request. Brewer to asl?: the plain tiff whether he was willing to receive payment for the stones in a horse; ? The court are, therefore,, ;of opinion, that- the judgment below ought to be ■reversed, and that a venire de novo be Ssued by the court below,

Judgment below reversed.