Aldridge v. Johnson 119_E.R._1476

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1476 ALDRIDGE V. JOHNSON ' 7 EL. & BL. 885.

general agent. What passes between the defendant and his nephew cannot limit thedefendant's liability to the plaintiff.

Erie J. I am of the same opinion, and precisely on the same grounds.Crompton J. I am of the same opinion. I think the evidence sufficient to war rant

a verdict. It was laid down in very early times tha t one instance of authorizing anagent to pledge the employer's credit was enough to justify a party dealing with the

employer in assuming that the authority continued. It is no answer, tha t theemployer here would find it difficult to give notice of withdrawing the agency. Assoon as you have given the agent authority to pledge your credit, you render yourself liable to parties who have acted upon notice of such authority until you find themeans of giving them notice that the authority is [885] determined. And, on thefirst occasion of the authority being exercised, it must always be at a particular placeand for the delivery of goods at a particular place. Here the representation was thatthe goods were to be used in the sho p: tha t was evidence for a jury ; and this is theonly question before us.

Rule discharged.

JAMES WILSHER ALDRIDGE against PATRICK JOHNSON. Friday, Jun e 5th, 1857.Plaintiff agreed with K. to purchase from K. 100 out of 200 quarters of barleywhich plaintiff had seen in bulk and approved of; and he paid part of the price.

It was agreed that plaintiff should send sacks for the barley, and tha t K. should fill the sacks with the barley, take them to a railway, place them upon trucksfree of charge, and send them to plaintiff. Plaintiff sent sacks enough for a partonly of the 100 quar te rs : these K. filled ; and K. also endeavoured to find trucksfor them, but was unable to do so. Plaintiff repeatedly sent to K. demandingthe barley. K. finally detained it, and emptied the barley from the sacks back into the bulk.—Held, that the property in so much of the barley as was not putinto the sacks did not pass to plaintiff.—But, per Lord Campbell C.J., Coleridgeand Erie Js., that the portion put into the sacks passed to the plaintiff: hsesitanteCrompton J., on the ground that it did not appear quite clearly that, at the timewhen plaintiff demanded the barley, he knew that any portion had been put intothe sacks, and that, therefore, his assent to the particular appropriation wasdoubtful.—K. having become bankrupt after he had emptied the barley fromthe sacks into the bulk, and the defendant, his assignee, having removed the

whole together: Held, by the whole Court, that this was a conversion, by theassignee, of all the barley (if any) which, by the putting it into the sacks, had become plaintiff's property .

[S. C. 26 L. J. Q. B. 29 6; 3 Ju r. N. S. 91 3; 5 W. R. 703. Discussed and applied, Langton v. Higgins, 1859, 4 H. & N. 407. Distinguished, Jenner v. Smith, 1869,L. R. 4 C. P. 276. Referred to, Heilbutt v. Hickson, 1872, L. R. 7 C. P. 450.Explained and approved, Anderson v. Morice^ 1876, 1 App. Cas. 739.]

This was an action brought by the plaintiff to recover certain goods alleged to behis proper ty, and to have been detained by the defendant ; or the value of such goods,and damages for their detention; and also to recover damages for the wrongfulconversion of the same goods by the defendant.

The defendant pleaded to the whole declaration : 1st, Not guilty; and, 2dly, thatthe goods were not the plaintiff's property.

[886] On the trial, before Erie J., a t the Sittings in London in last Hilary Term,a verdict was found for the plaintiff, by consent, for the whole amount of his claim,and costs 40s., subject to the opinion of the Court upon the following case.

The plaintiff is a corn merchant at Witham in Essex; and the defendant is theofficial assignee of the estate and effects of one James Watling Knights, a bankrupt,who, up to the time of his bankruptcy as hereinaf ter mentioned, carried on businessat Ipswich in Suffolk as an auctioneer and seed merchant.

On 12th September 1856, the plaintiff took 34 bullocks to Ipswich for the purposeof having them sold by auction by the said J. W. Knights, and instructed Knights tosell them if they should fetch a certain price. They did not, however, fetch that pr ice; and consequently were bought in by the plaintiff. Knight s then informed the plaintiff that be had a quanti ty of barley in his granary, and proposed to exchange a



7 EL. & BL. 887.' ALDRIDGE V. JOHNSON 1477

portion of it for the plaintiffs bullocks. The plaintiff went, and looked at the barley,which consisted at that time of one large heap containing between 200 and 300quarters. He weighed a bushel of it for the purpose of ascertaining its qual ity, and took a sample away with him ; but no bargain was made on that day ; and the bullockswere sent to Colchester the same evening. On the following day (13th September)the plaintiff and Knights were at Colchester market; and the plaintiff sold two of his bullocks the re : after which a conversation took place, between the plaintiff and

Knights, upon the subject of the exchange proposed on the previous day, whichresulted in the following arrangement between them.It was agreed that Knight s should have the remaining [887] 32 bullocks at the

price of 61. a-piece, and that the plaintiff should take in exchange 100 quarters of the barley which he had seen at Ipswich the day before, at the price of 21. 3s. a quarter.The difference between the value of the barley and of the bullocks, viz. 231., was to be paid in cash by the plaintiff to Knights. It was further agreed that the plaintiff should send his own sacks to Ipswich on the following Monday (15th), and thatKnights should fill the sacks with the barley, take them to the railway, and placethem upon trucks, free of charge, to be conveyed to the plaintiff at Witham. Some-thing was also said about a sum of 201. 7s., which the plaintiff owed Knights for somegoods which he had previously purchased : but it was agreed tha t this transactionshould not interfere with the arrangement which was then being made.

As soon as this arrangement was effected, the plaintiff made the following note of it in his pocket book.

"Se ptr. 13. J. W. Knights exchange32 beasts at 61. 0s. Od. for bar ley.

J. W. Knights,100 barley 43/£215 barley

less b \ £192 beasts£23 money to pay."

And the 32 bullocks were then and there delivered by the plaintiff to Knights.On the following Monday, pursuant to the above arrangement, the plaintiff sent

to Ipswich 200 sacks (being a sufficient number to contain the whole 100 quar ters of barley). Some of these sacks were marked in the plaintiffs nam e; and they wereall duly received by Kn ig ht s: but the barley was not delivered or for-[888]-warded to the plaintiff. On 16th September the plaintiff wrote to Knight s for a sample of

the barley, which was accordingly sent. On 17th September, Knight s sent one of his men, named Abel Smith, to fill 155 out of the 200 sacks with barley from theabove mentioned heap : and accordingly Smith proceeded to the granary, and, withthe assistance of other persons, filled 155 of the sacks with barley from the heap (eachsack containing one coomb, or half a quarte r). After the sacks had been filled, therewas left in the heap some 70 or 80 quarters ; so that the quantity put into the sackswas only about half the bulk. By the further direction of Knights , Smith applied,the same day, at the railway station at Ipswich for some trucks, to convey the 155sacks to the plaintiff at Witham, but was not able to obtain any. On the followingSaturday (20th), the plaintiff again saw Knights at Colchester market, and complained to him of the non-delivery of the barley. He said he was sorry tha t he had not sentit ; but that he had been very busy, and unable to get tr ucks ; and that it should besent on the Monday following without fail. On the following Monday morning (22d)Knights gave directions to a clerk in his employ, named Mulley, to get some trucks,

and have the 155 full sacks, which were then standing in the granary, put upon themto be sent to the plaintiff. Mulley accordingly applied for the trucks, but withoutsuccess. After giving these directions, Knight s himself went up to London, saw the plaintiff in Mark Lane, and told him that the barley would be put upon the railthat day.

In the course of the same morning, the plaintiff had sent to Ipswich a person inhis employ, named Church, to demand of Kni ght s the 100 quarters of barley. [889]Accordingly, Church called at Knights* about noon, and found tha t he was awayfrom home, but saw Mulley, and demanded the barley of him. Mulley said that hecould get no trucks to put it upon, and t hat Church had bet ter try himself to ge tsome: that, if he could procure any, the barley should be put upon the rail that



1478 ALDRIDGE V. JOHNSON 7 EL. & BL. 890.

afternoon; but that, at any rate, it should be forwarded the first thing the nextmorning. After this, Church returned to Witham.

While the above communication was passing between Mulley and Church, theformer received from Knights a telegraphic dispatch in the following terms.

" The following message forwarded from Mark Lane station, and received atIpswich town station, Septr. 22, 1856.

From To

Name and'! T w ^ . , , Name and) n « uAddress. )

J"

W'

K m^ - A d d r e s s . J G. Mulley,

Quay House, Ipswich.

" If you have not put oats on rail, do not, nor allow more barley to go, if applied for. Private."

The barley mentioned in the said dispatch was the same barley in respect of whichKnights had given Mulley directions in the morning: but Mulley did not mentionto Church the contents of the dispatch, nor the fact that he had received any com-munication from Knights.

The barley was not forwarded to the plaintiff the next day, but remained in thesacks till the following Wed nesday; when Abel Smith, by Knigh ts' directions, turned it all out of the sacks again on to the heap from which it was taken, so as to beundistinguishable from the rest of the heap.

[890] On Thursday, 25th September, in consequence of information which the plaintiff had received, he went himself to Ipswich and saw Knights at his own house.He remonstrated with him for not sending the barley ; and, after some conversation,Knights stated that he was sorry to say he was in trouble, and had a notice of

bankruptcy served upon him. On 29th September, Knights filed a petition for arrangement under the 211th section of The Bankrupt Law Consolidation Act,1849 (stat. 12 & 13 Vict. c. 106). And, at the first s itt ing which was held in thematter of that petition, on the 4th November following, Knights was adjudicated a

ban kru pt ; and the defendant was then named and made the official assignee of hisestate and effects.

The plaintiff had, previously to this, taken out a summons against Knights beforethe borough magistrates at Colchester; which was heard on the 30th October, and dismissed. After the hearing, the plaintiff and his attorney's managing clerk,Mr. Beaumont, went to Ipswich: when the lat ter served a copy of the followingnotice, signed by the plaintiff, upon Lewis Blomfield, the messenger of the Court of Bankruptcy, who was then in possession of all Knights' property.

" Notice.

"Without prejudice to the notice or demand made by me on my behalf on or about the 22d day of September 1856.

"To James Watling Knights, of Ipswich, in the county of Suffolk, auctioneer, or whom else it may concern.

" I hereby demand the delivery by you of 100 [891] quarters of barley, my property, now being in or upon your warehouse or premises at Ipswich in the countyof Suffolk, and sold by you, the said Jas. Watling Knights, to me, on or about the13th day of September last.

"Dated the 30th day of October, 1856. " J . W. ALDRIDGE."

At the time of the service of this notice, Mr. Beaumont tendered to the messenger

231. in cash, as the money balance due from the plaintiff to Knights for the barley.The messenger received the notice, but refused to take the 231. This was the firstoccasion on which any tender of the 231. had been made by or on behalf of the plaintiff.

On 11th November the following demand, signed by the plaintiff, was served uponthe defendant.

" To Patrick Johnson Esq., Official Assignee," Basinghall St. London.

" In the matter of James Watling Knights, of Ipswich in the county of Suffolk,corn merchant, dealer and chapman, a bankrupt.

"Sir,—I hereby demand the delivery of 100 quarters of barley, agreed by the above



7. EL. & BL. 892. ALDRIDGE V. JOHNSOtt 1479

named bankrupt, on the 13th day of September last, to be delivered to me in exchangefor 32 bullocks then sold and delivered by me to him : and I now tender you (althoughI protest against it being considered tha t I am liable so to do) the sum of 231., beingthe difference between the agreed price of the said barley and the agreed price of thesaid bullocks.—"I am, Sir, your most obedt. Servt.

" JAS . WIL SHE R ALDRIDGE.

"Wit ham, 10 November, 1856."

[892] And, at the time of the service of this demand, 231. in cash was duly tendered to the defendant, as being the balance due from the plaintiff as aforesaid.

The demand was not complied with ; and the money was not accepted.On 18th November this action was commenced.The said 200 sacks remained upon Knights' premises until the bankruptcy, when

they were taken possession of by the assignees. On 24th December, an order wasmade in this action by Coleridge J. in the following terms.

"U po n hearing the counsel on both sides, I do order that, upon the defendant'sdelivering up or tendering to the plaintiff 200 sacks, being the sacks in the declarationmentioned, and paying nominal damages and costs, the proceedings herein be stayed.

"Or, if the plaintiff will not consent thereto, that he be subject to the costs of theaction, unless he obtain a verdict for some of the other goods in the declarationmentioned, or damages beyond nominal damages for the detention of the sacks in

question. And I order that the plaintiff be at liberty to amend the declarat ion, byinsert ing a claim for special damages as to the detention of the sacks. I certify for acounsel.

"Dated the 24th day of December, 1856. " J . T. COLERIDGE."

On 29th December 1856, Louis Blomfield, the said messenger, went to the plaintiff'shouse and made a tender , on behalf of the defendant, to Mrs. Aldridge, the plaintiff'swife, in his absence, of the 200 sacks, and damages for the detention thereof, inaccordance with the above order. At first she refused to take th em ; but afterwards,having seen the plaintiff's attorney, she [893] received back the sacks, but would nottake the Is. damages.

It is agreed that the defendant would at any time have given up the sacks to the plaintiff, had he been requested so to do.

The barley remained at Knights' granary until Christmas last, when it was

removed : and the value of it remained the same, viz. 21. 3s. per quarte r, from thetime of the above mentioned assignment until after the commencement of this action.

The damages sustained by the plaintiff being deprived of his sacks was at the rateof one penny per week for every sack.

The action was commenced originally against both the assignees of Knights' estate : but , on the 21st of January last, the name of one of the defendants was struck out of the proceedings by an order of Mr. Justice Crompton.

The pleadings in this action are to form part of this case; and the questions for the opinion of the Court are:

1. Whether the issues joined in the said action, respectively should be found for the plaintiff or for the defendant.

2. If the plaintiff is entitled to maintain the action for what goods or moneys theverdict found for him is to stand.

Bittleston, for the plaintiff. The first question is, whether, before the bankruptcy,

the property in the barley passed to the plaintiff; secondly, whether, if so, there wasa conversion by the defendant. There is no question as to apparent possession, the bankrupt not having had possession by the consent of the plaintiff.

[894] As to the first question, the plaintiff contends that all the hundred quarters passed. The principal part of the consideration, the bullocks, was received by the ban kr upt : and barley was delivered into the plaintiff's sacks in pursuance of the bargain. It is true that all the barley was not so delivered : but what was delivered was taken from a specific heap; and that sufficiently defined the identity. [Crompton J.Which hundred quarters was the plaintiff to have?] Whatever hundred the bankruptmight put into the plaintiff's sacks. [Crompton J. That might be any hundred.Lord Campbell C.J. Eeally your proposition as to the whole ia not tenable.] The



i486 ALDRIDGE U JOHNSON T EL. & BL. 895.

plaintiff then insists only on the portion put into the 155 sacks. By the arrangement,the plaintiff was to send his own sacks : he does send them; and the bankrupt deliversthe barley into them, and does all that is in his power to send them off. That truckscould not be found at the time, to dispatch the sacks, does not render this the less adelivery. [Lord Campbell C.J. Suppose the plaintiff had been present, and had, after the barley was put into the sacks, sealed up the sacks, without taking them away.]

No doubt the property would then have passed: and what actually took place was

quite as effectual. [Lord Campbell C.J. Certainly the property may be in the vendeethough it is in the manual possession of the vendor.] That is so. In Bohde v. Thwaites(6 B. & C. 388) a vendor sold twenty hogsheads of sugar out of a larger quantity : hedelivered four, and filled up and appropriated other sixteen, desiring the vendee totake them away: the vendee said that he would take them as soon as he could: and,in an action [895] by the vendor for goods bargained and sold, it was held that the property in the sixteen passed, though they were not removed from the premises of the vendor. [Erie J. That case would be exactly in point if there it appeared thatthere remained a duty, on the part of the vendor, to forward. Crompton J. You willsay that the sacks were in the bankrupt's hands in order that he might perform a certainduty, not that he might otherwise meddle with them.] Yes. [Lord Campbell C.J.You say that his doing more was a wrongful conversion.] It was so. There was noquestion as to the bankrupt's original intention to appropriate; for he gave ordersto send the sacks away by the railway. It is immaterial that there was no tender

before the bankruptcy. But, indeed, no tender was necessary at all: there was no lien. Nor did the bankrupt or defendant profess to hold the barley on the ground thatit might be retained till the money was paid. The assignee can be in no better position than the bankrupt.

Then as to the conversion. [Crompton J. When you demanded the barley of theassignee, what was he to do? How could he separate your barley from the rest?You have a case against the bankrupt: but how could the assignee deliver 1?] The bankrupt could not, by having mixed up the plaintiffs property with his own, gainthe right of retaining it: nor can his assignee be in a better position. [Crompton J.The assignee is not liable for the tortious act of the bankrupt. Erie J. Where a partymixes up another man's property inseparably with his own, the consequence is thathe loses his own. Lord Campbell C.J. Yes, unless the portion mixed up be quiteinsignificant. Erie J. Then, if the [896] plaintiff was entitled to take the whole fromthe bankrupt, he would be entitled to take it from the assignee.] Those consequenceswould follow. [Crompton J. I find it stated that the whole was removed : that must

mean, a removal by the assignees.] That is enough to constitute a.conversion.But, further, there is at any rate no defence as to the sacks. [Crompton J.

Surely that point is disposed of by my brother Coleridge's order.] Then that isnot insisted on.

Prentice, contra. The barley placed in the sacks was taken from the bulk, of whichan unascertained hundred quarters had been sold: the particular portion placed in thesacks was not sold. [Crompton J. The property would not pass if any thingremained to be done by the vendor.] In order that the separation of the particular quantitymay effect a transfer of the property there must be an assent by the vendee; thereason of which is, that the vendee is entitled to see that the portion separated corre-sponds with the bulk. [Erie J. If the portion is separated in conformity with thecontract, surely the property in that passes.] The vendor might have substituted another portion before the sacks arrived at the railway : till then the property did not pass, by the agreement. In Blackburn's Treatise On the effect of the Contract of Sale,

p. 126, the law is thus stated: "the specific goods must be agreed upon; that is, both parties must be pledged, the one to give and the other to accept those specificgoods." Here, though the vendee did assent to the goods being placed in his sacks,the property did not pass till he had inspected the barley. Holroyd J., [897] in

Bohde v. Thwaites (6 B. & C. 393), makes not only the selection by the vendor essential, but also the " adoption of that act" by the vendee. Suppose the goods had been burnt.[Erie J. That was the test in my mind : I think the plaintiff would have had to bear the loss, according to the principles laid down in Rugg v. Minett (11 East, 210).]In p. 128 of Mr. Blackburn's Treatise, the final appropriation which transfers the

property is stated to take place when the party who is to do the first act makes theelection, the property being made certain by such election; for which Sir Rowland



7 EL & BL. 898. ALDBIDGE V. JOHNSON 14 81

Heyward's Case (2 Kep. 35 a.) is cited. Here the act to be done was dispatching the barley. [Erie J. Mr. Blackburn has expressed himself with perfect accuracy. Hesays : " where from the terms of an executory agreement to sell unspecified goods, thevendor is to dispatch the goods, or to do any thing to them that cannot be done tillthe goods are appropriated, he has the right to choose what the goods shall be; and the property is transferred the moment the dispatch or other act has commenced, for then an appropriation is made, finally and conclusively, by the authority conferred in

the agreement."] In the case of goods sent by a carrier, the delivery to the carrier is the transfer. The necessity of commencing the act agreed upon in, in order to fixthe appropriat ion, appears by the two cases cited by Mr. Blackburn, Fragano v. Long(4 B. & C'219) and Atkinson v. Bell (8 B. & C. 277). Here the act agreed, upon wasthe sending: nothing short of that fixed the property. Wallace v. Breeds (13 East,522) illustrates this. Furt her, the contract was indivisible: putting a portion intothe sack [898] could not transfer the goods sold. [Lord Campbell C.J. Do you saynone passed *?] Yes : the plaintiff might have refused to receive a part. [Crompton J .Is there not evidence that the plaintiff assented to the appropriation 1 Did he notknow of if? Lord Campbell C.J. May there not be an anticipative ass en t—"I willtake to what you put into the sacks—'"?]

Then, next, there was no conversion by the assignee. If there was any conversion,it was completed by the bank rupt : after that, his assignee could not convert. [Lord Campbell C.J. That is not so. If a man takes my horse he converts i t : if he hands

it over to another, who refuses to give it up to me on demand, tha t other convertsalso. If the bankrupt had divested the property from the plaintiff it would be other-wise : but he has only done a wrongful act. Here the assignee denies the plaintiff'sclaim to any par t ; and he is right in claiming all, if the former part of your argument be correct.] No distinct act of conversion by the assignee is shewn.

Bittleston, in reply, was stopped by the Court.Lord Campbell C.J. In cases of this sort there often is great doubt and great

difficulty ; but the present case seems to me, on both points, free from all doubt and difficulty. I think tha t no portion of what remained in bulk ever vested in the plaintiff. We cannot tell what part of tha t is to vest. No rule of the law of vendor and purchaser is more clear than this: that, until the appropriation and separationof a particular quantity, or signification of assent to the particular quantity, the property is not transferred. Therefore, [899] except as to what was put into the 155sacks, there must be judgment for the defendant. It is equally clear that, as to what

was put into those sacks, there must be judgment for the plaintiff. Looking to allthat was done, when the bankrupt put the barley into the sacks eo instanti the propertyin each sack-full vested in the plaintiff. I consider tha t here was a priori an assent by the plaintiff. He had inspected and approved of the barley in bulk. He sent hissacks to be filled out of that bulk. There can be no doubt of his assent to the appropriation of such bulk as should have been put into the sacks. There was also evidenceof his subsequent appropriation, by his order that it should be sent on. There remained nothing to be done by the vendor, who had appropriated a par t by the direction of the vendee. It is the same as if boxes had been filled and sent on by the bankrupt,in which case it cannot be disputed that the property would pass: and it can makeno difference that the plaintiff ordered the sacks to be forwarded by the vendor. Asto the question of conversion, the property being in the plaintiff, he has done nothingto divest himself of it. It is not like the case of confusion of goods, where the owner of such articles as oil or wine mixes them with similar articles belonging to another.That is a wrongful act by the owner, for which he is punished by losing his property.Here the plaintiff has done nothing wrong. It was wrong of the bankrupt to mixwhat had been put into the sacks with the rest of the barley ; but no wrong has beendone by the plaintiff. That being so, the plaintiff's property comes into the hands of the defendant as the bankrupt's assignee. If the defendant had a lien, he does notdetain the barley on tha t ground. He denies the plaintiff's [900] property altogether,and cannot therefore claim a lien. He claims all the barley, and claims all of it as being the property of the bankrupt. He therefore has converted the plaintiff's property .

Coleridge J. I am of the same opinion. I think the property in that portion whichwas put into the plaintiff's sacks passed to the plaintiff. That portion was sub-tracted by the vendor from the bulk, in part performance of the contract; and there is

K. B. XLVIII.— 47*



1482 DIXON V. HOLDROYD 1 EI, & BL. 90L

abundant evidence of appropriation, as far as the bankrupt could appropriate. Thereis also abundant evidence of assent by the plaintiff. He had before assented to thequal ity of the bu lk ; and, after the portion was put into the sacks, he desired t hatthey should be sent to him. There is thus evidence of the completion of the act of appropriation. Atkinson v. Bell (8 B. & C. 277) is a very different case. There thegoods were in the course of being made ; and many alterations had taken place; and the purchaser had never done any act by which he adopted the particular thing made.

Here is a complete appropriation. As to the conversion, nothing that either the bank-rupt or the assignee could do without the plaintiff's consent could divest the plaintiff's property : and the removal is abundant proof of the conversion.

Erie J. I also am clearly of opinion that the property in what was pilt into thesacks passed to the plaintiff. It is clear that , where there is an agreement for the saleand purchase of a particular chattel , the chattel passes at once. If the thing sold is not ascertained, and [901] something is to be done before it is ascertained, it doesnot pass till it is ascertained. Sometimes the right of ascertainment rests with thevendee, sometimes solely with the vendor. Here it is vested in the vendor only, the

bankrupt. When he had done the outward act which shewed which part was to bethe vendee's property, his election was made and the property passed. That might be shewn by sending the goods by the railway: and in such case the property would not pass till the goods were dispatched. But it might also be shewn by other acts.Here was an ascertained bulk, of which the plaintiff agreed to buy about half. I t

was left to the bankrupt to decide what portion should be delivered under that contract.As soon as he does tha t, his election has been indica ted; the decisive act was pu ttingthe portion into the sacks. If it were necessary to rest the decision on the assent of the vendee in addi tion to this, I am of opinion tha t there is abundant evidence of such assent ; for the vendee demanded, over and over again, the portion which had been put into the sacks. I think Mr. Blackburn has expressed the law with greatclearness and accuracy. He first takes the case where one party appropriates and theother assents; and then the case where, by virtue of the original agreement, theauthority to appropriate is in one par ty only. As to the question of conversion, Iam of opinion, on the grounds which have already been stated, that the assignee hasconverted the plaintiff's property.

Crompton J. As to the first point, respecting the part not put into the sacks, Inever felt any doubt. As to the second point, I do not feel so clear as the other members of the Court, though I do not say that I [902] disagree with them. It is

suggested that the plaintiff said to the bankrupt, in effect, I will buy what you will put into the sacks. After that was done, I much doubt whether the bankrupt could meddle with the sacks and turn out what had been put in. It may be that the

bargain was as my Lord and my bro ther Erie put it, that the plaintiff would takewhat the vendor should put in. On that view, when the barley was put into thesacks it was just as if it had been sent by a carrier. Also I agree that, if the plaintiff sent for the barley after i t was in the sacks, tha t would be an assent to the appropria-tion. But I doubt whether, as the case is stated , it is quite clear that the plaintiff knew that the barley had been put into the sacks: if he did, there was clear evidence

* of assent. Then it is argued, on behalf of the defendant, that the contract was entire ,and tha t either all or none of the barley must pass. I do not agree to that . Therewas an appropriat ion of so much ; and so much passed. As to the conversion, the lawis, beyond question, as my Lord puts it : a prior conversion does not prevent a subse-quent conversion; the t rue owner may waive the first conversion. It is difficult tosay what the assignee was to do. But I think that , if he remove all, it is a conversionof the part which belongs to the plaintiff; if he sells all, an action for money had and received may be brought in respect of that part. I think therefore that , as he hasremoved all, he has been guilty of a conversion.

Judgment for plaintiff, as to the part put into the sacks: as to the residue, judg-ment for defendant.

[903] JAMES DIXON, Executor of Alexander Dixon, against HOLDROYD. Friday,June 5th, 1857. By deed between D. and H., D. sold to H. beds of coal, and H. covenanted to pay to D. a sum named for the purchase money, "i n manner and at the times following," that is to say, par t in cash on the day of the date of

Aldridge v. Johnson 119_E.R._1476

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