Sale, Delivery. In pursuance of an agreement that a debt should be paid in hay at a certain price per ton, the parties went to a barn where two "bents" separated only by a post contained six or seven tons of hay, of which the creditor agreed to buy four and a half tons. The hay in one of the bents was measured and was found to fall short of that amount by somewhat less than a ton. The owner refused to sell the hay in the other bent but agreed that the buyer could take from it enough to make up the amount sold. He gave a bill of sale for four and a half tons of hay in his barn to be removed by the buyer at any time. Before removal by the buyer the hay was attached as the property of the seller. In an action by the buyer against the attaching officer for an alleged conversion, it was held, that it could be found that there had been a constructive delivery of the part of the hay which had been identified by measurement although it had not been separated physically from the hay in the adjoining bent and that the title to such part had passed to the plaintiff.
BRALEY, J.
While as between the parties to the sale the title passed to the plaintiff if the jury believed the evidence, yet the defendant, who as a deputy sheriff subsequently attached the property on a writ against the seller, is not liable for conversion unless there also was proof of actual or constructive delivery. Marsh v. Hyde, 3 Gray, 331, 333. Packard v. Wood, 4 Gray, 307. Harlow v. Hall, 132 Mass. 232. Clark v. Williams, 190 Mass. 219.
The evidence showed a bargain for the purchase in satisfaction of a debt due from the seller to the buyer of four and one half tons of hay, stored in two "bents" distinguished from each other by a post, and containing some six or seven tons. Upon the day following the agreement the parties went to the barn where in their presence the "bent" in the northeast corner was measured, and, the contents having lacked less than a ton of the amount purchased, the seller, although he declined to sell the hay in the adjoining "bent," agreed, that the plaintiff could take therefrom enough to supply the deficiency, and gave a bill of parcels for the full quantity. It is not contended that the sale was made to defraud creditors, even if the plaintiff was given permission to remove the hay at his own convenience, and from the language and conduct of the parties the jury could find, that the seller for a valuable consideration, and in good faith, actually intended to part with possession, and the plaintiff intended to accept the transfer. Riddle v. Varnum, 20 Pick. 280. Foster v. Ropes, 111 Mass. 10. By the act of measurement the line of demarcation could be ascertained, and the subject of the controversy could have been identified, even if not physically separated from the other hay, as having been covered by the contract of sale. The bulky nature of the property having precluded manual possession unless the plaintiff had immediately taken the hay away, constructive delivery under the circumstances was sufficient, and the transaction resulted in the sale of specific goods where nothing further remained to be done. Nor is it material that the quantity measured was less than the amount bargained for. The attaching creditor in the absence of fraud obtained no greater rights than those possessed by his debtor. It follows that under appropriate instructions, which were given, the jury could further find that as to subsequent purchasers for value and without notice the property had vested in the plaintiff. Jewett v. Warren, 12 Mass. 300. Arnold v. Delano, 4 Cush. 33, 40. Stinson v. Clark, 6 Allen, 340. Ingalls v. Herrick, 108 Mass. 351. Hobbs v. Carr, 127 Mass. 532. Whittle v. Phelps, 181 Mass. 317. Parry v. Libbey, 166 Mass. 112. Wesoloski v. Wysoski, 186 Mass. 495. Garvan v. New York Central Hudson River Railroad, 210 Mass. 275, 280. See St. 1908, c. 237, § 18. The defendant's request was rightly denied, and the exceptions must be overruled.
So ordered.