Adams v. O'Connor.

and agreeing to pay the freight and storage. Fowle received authority from the plaintiff to sell the whisky for cash, and agreed, upon such sale, to repay to him the amount of his advances, with interest, expenses and charges. Fowle afterward sold the property for cash to the defendants, who went with him to the station, paid the freight and storage, and took possession of the whisky, but have never paid for it. The jury have found specially "that the payment of the freightmoney by the defendants was not a payment made in good faith in accordance with the terms of sale." The freight and storage were paid together to the same railroad corporation, and were treated throughout the trial as a single item, and both must be deemed to be covered by the words "freight-money" in this finding. The plaintiff afterward called upon the defendants, exhibited his bills of lading and demanded the whisky, but they refused to deliver it.

of

Upon these facts the law is clear. The possession of the property, acquired by the plaintiff under the bills of lading, was sufficient to maintain this action against any one who did not show a better title. Burke v. Savage, 13 Allen, 408. The defendants, as well as the plaintiff, claimed under the bills of lading, and offered no evidence any other title in themselves, and were, therefore, not injured by their admission in evidence. The sale to the defendants having been found by the jury to have been for cash, was a conditional sale, and vested no title in the purchasers until the terms of sale had been complied with. Tyler v. Freeman, 3 Cush. 261; Whitney v. Eaton, 15 Gray, 225; Farlow v. Ellis, id. 229. The plaintiff, though having only a special property to secure his advances, might in this action recover the whole value of the goods, and would hold the surplus, beyond the amount of his own interest, for the general owner. Ullman v. Barnard, 7 Gray, 554. The amount of freight and storage having been paid not in good faith, nor in accordance with the terms of the defendants' contract, could not be demanded by them of the plaintiff as a condition precedent to the delivery of his property to him, and could be deducted from the value of the goods in the assessment of his damages only because the payment inured to his benefit, by discharging the goods from a lien to which they were subject, and without payment of which he could not have obtained his property Exceptions overruled.

Miller v. Stevens.

MILLER V. STEVENS et al

(100 Mass. 518.)

Oral evidence to explain written contract.

Parol evidence is admissible to show that by the word "barrels," used in a written contract, was intended vessels of a certain kind and capacity, and not a measure of quantity, and that the parties contracting had reference not to a statute barrel, but to certain vessels of uniform size of different capacity from the statute barrel.

"The plaintiff contracted to sell to the defendants one thousand harrels petroleum oil, in two contracts of five hundred barrels each; each of which was in form as follows: Bought for account of Messrs. Samuel Stevens & Co., Boston, from Daniel L. Miller, Jr., agent, Philadelphia, five hundred barrels refined petroleum, fire-test one hundred and ten degrees or upwards, color, prime light straw to white, at thirty-eight and one-half cents per gallon, in bond, to be delivered in bonded warehouse in Philadelphia. Order, prime shipping. Terms, casr on delivery; which delivery is to be made during the month of December next, at the buyers' option, they giving the sellers ten days' notice within that month. William Hastei Smith, broker. Philadelphia, October 19, 1866.' The plaintiff was, and is, a resident of Philadelphia. The defendants, at the time in question, resided in Massachusetts, doing business in Boston and New York. "On December 31, 1866, the plaintiff tendered to the defendants certain specific barrels of refined petroleum oil, which appeared by the evidence to contain forty-two gallons to the barrel, in pursuance of said contracts; but the defendants refused to accept the same, for the reason only, that they denied that the oil was of a fire-test of one hundred and ten degrees. On December 31, 1866, oil had materially fallen in price since the date of the contracts.

66

"There was no evidence in the case tending to show that the particular oil tendered was in barrels, or indeed in existence at the date of the contracts; and it did not appear whether refined petroleum oil was universally sold in barrels, or sometimes in barrels and sometimes in bulk. There was no evidence offered on that subject; but there was evidence that it was often sold in barrels of forty-two gallons. The plaintiff testified that the common size of the barre. into which it is usual to put petroleum oil in Philadelphia, and in

Miller v. Stevens.

which, when sold in barrels, it is usually sold, was forty-two gallons. The defendants offered no evidence to the contrary, but objected to any evidence as to the size or measurement of the barrel; but the presiding judge admitted the same.

"The defendants offered and proved the laws of Pennsylvania (and also those of New York, so far as they might affect this case), fixing the denominations of liquid measure, and fixing the barrel at thirty-one and one-half gallons, to which laws reference may be had, and requested the presiding judge to instruct the jury that, in estimating damages, the barrel should be taken as containing thirtyone and one-half gallons, and no more. But it having been shown by the evidence that the plaintiff offered to deliver to the defendants one thousand barrels of oil of forty-two gallons each, which were shown to the defendants' agent, and samples taken by him; and that in all the discussions concerning the delivery between the parties no suggestion was ever made that one thousand such barrels were not what the contract required; and one defendant having testified that he intended, when they were offered, and was ready, to receive those barrels, if the oil was of the requisite fire-test, the court instructed the jury that, if they found from the evidence that forty-two gallons was the usual capacity of barrels of oil, and that the parties understood and intended to contract for such barrels of oil as a specific article of merchandise, and not to use the word 'barrel' in their contract as the statute measure of quantity, then they might estimate the amount of oil agreed to be sold at forty-two thousand gallons, in assessing the damages.

"The jury returned a verdict for the plaintiff, and assessed the damages at $4,788.53; and the question is reserved for the whole court, upon the agreement of the parties that, if this instruction was erroneous, the damages assessed by the jury shall be diminished in the proportion of thirty-one and one-half to forty-two, and the verdict be amended accordingly.”

R. Codman, for the defendants, cited 1 Greenl. Ev., §§ 280, 292295; 2 id. § 251; Wadsworth v. Alcott, 2 Seld. 64; Dawson v. Kittle, 4 Hill, 107; Wheeler v. Newbould, 5 Duer, 29; Smith v. Jeffries, 15 M. & W. 561; Daniels v. Hudson River Ins. Co., 12 Cush. 416; Barry v. Bennett, 7 Met. 354; 2 Taylor Ev. § 1064; Evans v. Myers, 25 Penn. St. 114; Smith v. Wilson, 3 B. & Ad. 728; Hockin v. Cooke, 4 T. R. 314; Many v. Beekman Iron Co., 9 Paige,

Miller v. Stevens.

188; Sleight v. Rhinelander, 1 Johns. 192; Noble v. Durrell, 3 T. R. 271; 1 Greenl. Ev., § 201; Whitewell v. Wyer, 11 Mass. 6.

A. A. Ranney, for plaintiff.

GRAY, J. The written contract between the parties does not show whether the word "barrels " is used as describing a quantity merely, or a vessel of a certain kind and capacity; for "barrels " might mean either a quantity or a vessel; and if the vessels intended were of a uniform size, the fixing of the price by the gallon would be equally adapted to either. Parol evidence was therefore admissible to show in which sense the parties intended to use the word; and the presiding judge rightly admitted testimony that refined petroleum was often sold in barrels, and that the usual size of such barrels was forty-two gallons. No evidence was offered that it was ever sold in any other way. The statute of Pennsylvania prescribing the number of gallons to a barrel, as a denomination of liquid measure, does not apply to sales by kegs, casks, or vessels of a particular kind. The evidence that the barrels exhibited by the plaintiff, and from which the defendant's agent took samples, at the time of the plaintiff's offer to deliver, were of the capacity of forty two gallons; that in all the discussions between the parties con cerning the delivery, no suggestion was made that such barrels were not what the contract required; and that the defendants at that time intended and were ready to receive those barrels if the oil was of the requisite fire test; was competent to show that the parties, at the time of making the contract, understood and intended to contract for such barrels of oil as a specific article of mercbandise, and not to use the word "barrel" as the statute measure of quantity; and the question of the intention of the parties in that respect was rightly submitted to the jury. Noble v. Durell, 3 T. R 273, 275; Smith v. Wilson, 3 B. & Ad. 728; Clayton v. Greyson, 6 Nev. & Man. 694; S. C., 5 Ad. & El. 302; Spicer v. Cooper, 1 Gale & Dev. 52; S. C., 1 Q. B. 424; Cullum v. Wagstaff, 48 Penn St. 300; Bradford v. Manly, 13 Mass. 139; Putnam v. Bond, ante, 82 Stoops v. Smith, ante, 85.

Judgment on the verdict for the plaintiff.

Kershaw v. Kelsey.

KERSHAW V. KELSEY.

(100 Mass. 561.)

International law. Construction of statute. Contracts made during rebellion. The act of congress (1861, ch. 3, § 5) concerning commercial intercourse with states in insurrection, and the proclamations of the president thereunder, do not extend to agreements made in those states between persons being there for the leasing of real estate therein, the payment of rent there, out of the products of the land, or the delivery of and payment for personal property, already upon the demised premises, to be used thereon.

The subsequent unlawful forwarding of cotton raised on the land by the defendant's son does not affect the validity of the agreements contained in the lease.

The facts in this case appear in the opinion.

H. C. Hutchins and A. S. Wheeler, for defendant.

R. M. Morse, Jr., and F. V. Balch, for plaintiff.

GRAY, J. The defendant, a citizen of Massachusetts, in February, 1864, in Mississippi, took from the plaintiff, then and ever since a citizen and resident of Mississippi, a lease for one year of a cotton plantation in that state, and therein agreed to pay a rent of ten thousand dollars, half in cash and half "out of the first part of the cotton crop, which is to be fitted for market in reasonable time." The lessor also agreed to deliver, and the lessee to receive and pay the value of, the corn then on the plantation. It does not appear whether the defendant went into Mississippi before or after the beginning of the war of the rebellion; and there is no evidence of any intent on the part of either party to violate or evade the laws, or oppose or injure the government of the United States. The defendant paid the first installment of rent, took possession of the plantation and corn, used the corn on the plantation, provided 10 with supplies to the amount of about five thousand dollars, and planted and sowed it, but early in March was driven away by rebel soldiers, and never returned to the plantation, except once in April following, after which he came back to Massachusetts. The plaintiff continued to reside on the plantation, raised a crop of cotton there, and delivered it in Mississippi to the defendant's son, by whom it was forwarded in the autumn of the same year to the defendant