Hall v. Green — 6 Del. 546

Majority

p. 546

John W. Hall, defendant below, Plaintiff in error, v. George W. Green and others, plaintiffs below, Defendants in error.

Headnote

°A contract between a shipbuilder and another, to build for him the hull of a sloop of certain dimensions and quality, at a stipulated price per ton, to be paid in three equal instalments at specific stages of the work as it progressed, the former to find all the materials and do all the work and deliver her complete by a certain, day in Philadelphia, subject to the inspection of two persons, if required by the latter, does not appropriate or vest the property in the vessel during the progress of the work upon it and before completion and delivery as stipulated in the contract, in the latter ; notwithstanding he has paid to the builder the first instalment of the price at the specific stage of the work as provided for in the contract, and also the second instalment and a hundred dollars over, by way of advancement to him, when the hull is about two-thirds finished; but the property in the vessel remains in the builder, until finished and delivered as stipulated in the contract, and it may be seized and sold on execution at the suit of his creditors, in its unfinished state, as his property. It is competent, however, for the parties to the contract to agree in express terms that the property in the unfinished vessel shall pass from the builder and vest in the purchaser, on the payment of the first instalment of the price as stipulated in it, if such be their meaning and intention.

The general rule is,' when one contracts with another for the building of a vessel, or other thing not then in being, for a given price, that no property in it vests in the person for whom it is to be constructed, during the progress of the work upon it, nor indeed until it is fully completed and delivered, or at least, ready for delivery; and the payment of the first, or two first instalments of the price during the progress of the work in this case, and as stipulated in the contract, is not sufficient to take the case out of the general rule and vest the property in the purchaser by appropriation. The doctrine of appropriation, in such cases, has never been recognized as the law in this country.

If the contract is executory in its terms, and is for the building of a thing not yet in being, in which nothing is said as to when the property shall vest in the person for whom it is to be built, the Court cannot say with any fair show of reason, because it contains a provision for payment of the price by instalments according to the progress of the work, that it was the intention of the parties the property in the unfinished sloop should vest in the party for whom she was to be built, upon payment of the first instalment; especially as he was not bound to accept the sloop until she had been completed and had passed inspection in Philadelphia upon her delivery there, according to the terms of the contract.

p. 547

Writ of error to the Superior Court for Sussex County, before Harrington, Chancellor, Gilpin, Ch. J., and Wootten, J.

The suit below was an action of trover, brought by the plaintiffs below, defendants in error, against the defendant below, plaintiff in error, to recover the value of an unfinished vessel, sold during the progress of its construction under sundry executions levied upon it as the property ot one James H. Tubbs, the builder, and purchased at the sale by the defendants in error. The case was that Tubbs, the builder, had entered into a written contract with John W. Hall, the plaintiff in error, on the 31st of August, 1854, to build for him the hull of a sloop of certain specified dimensions and quality, and find all materials, and deliver it complete in the city of Philadelphia by the first day of March ensuing, to pass the inspection of two persons, if required by Hall, at the rate of twenty-eight dollars per ton, one-third to be paid when the keel, stem, sternpost and floors were laid, one-third when the deck-frame and decks were laid, and the remaining third when it should be delivered in Philadelphia, all complete and according to the contract. Tubbs proceeded under the contract to procure materials and to build the vessel, and when it was about two-thirds built, and whilst he was still at work upon it, sundry executions were sued out on judgments recovered against him, and were levied upon it, and under which it was afterwards sold at public sale and was bought by the defendants in error, as his property. At the time of the levy of the executions upon it, Hall hád paid in the aggregate to Tubbs on the work the sum of $951.38, which exceeded the amount then due by the terms of the contract one hundred dollars. Upon the levy of the executions on the property as his, Tubbs notified Hall of the fact, and at once abandoned his contract and his work upon the vessel, and did no more upon it. Hall attended the sale of it under the executions, and notified all bidders that he claimed the property as his own, by virtue of his contract with Tubbs, the builder, and the

p. 548

payments and advances he had made him during the progress of the work pursuant to the contract; and afterwards, on the formal demand of the defendants in error, as the purchasers at the sale of the property, refused to deliver it to them; but proceeded to finish and complete the hull at his own expense, procuring materials and employing workmen for the purpose.

. Upon this contract and the facts above stated, the Court below charged the jury, that when a contract is entered into for an article not then in existence, but which is afterwards to be constructed, it does not become the property of the person for whom it is to be made, until it is completed and delivered to him, or is at least ready to be delivered to him, unless it is otherwise specially provided in the contract. For notwithstanding the general principle of law was as just stated, it was competent for the parties by express agreement to contract that the article should become the property of the purchaser at any particular stage of the work upon it; but in the absence of any such stipulation in the contract between them, the principle of law before stated must prevail, and the ownership of the property would in the meanwhile continue in the maker. And that a contract to build the hull of a sloop at a stipulated price per ton, to be paid in three equal instalments at specific stages of the work as it progressed, the builder to find all the materials and to complete her and deliver her by a certain day to the purchaser in Philadelphia, subject to the inspection of two persons, if required by him, did not appropriate or vest the property in the vessel during the progress of the work in the purchaser, notwithstanding he may have paid to the builder the two first instalments at the specific stages of the work agreed upon, when about two-thirds built; but the ownership of the vessel remains in the builder, and is liable to be taken in execution for his debts. To this opinion and charge of the Court the counsel for the defendant below tendered a bill of exceptions, and by writ of error removed the case to this Court.

p. 549

W. Saulsbury, for the plaintiff in error:

The doctrine or principle of the appropriation of ships, and which applies to no other species of property, in the course of construction, to the purchaser as the work progresses, when built under a special contract to pay for it by instalments at specific stages as the work proceeds, is distinctly stated and approved by Lord Abbott, than whom there can be no higher authority on such a subject. Abb. on Ship. 6. But the Court below, in their charge to the jury, laid great stress on the fact, to take it out of the operation of this well-established rule, that in this case the vessel was to be finished and then delivered in the port of Philadelphia, subject to inspection, if the purchaser should require it. I shall show, however, not only from the principle as announced by Abbott, but from the adjudged cases in England on this point, that the matter of final delivery does not control or affect the principle, but is wholly immaterial; because, if it be true, as the cases which L shall hereafter cite will show, that the ship, as the specific stages of the building proceeds and the stipulated payments of the purchase-money are made, becomes at the completion of each stage of the work, by appropriation, the property of the purchaser, no one can fail to perceive that it operates without any actual delivery, and is altogether independent of that condition or circumstance. But if the principle be true, it must necessarily involve a" constructive delivery of the ship, upon the completion of each stage of the work as it proceeds, and the payment of the purchase-money pursuant to the terms of the contract. And this is the ruling in the cases of Wood v. Russell, 7 Eng. C. L. R. 310, and Clark v. Spence, 31 Eng. C. L. R. 107, for they rest distinctly on the principle of appropriation as thus stated, and upon no other ground. They do not rest upon the ground that there was any special stipulation contained in the agreement that such should be the case, or upon the ground that such was the intention of the parties; because there was no such intention expressed, or even intimated in the contract, unless we may infer, as we

p. 550

very properly may, from the general nature of a contract like this, that such was the intention of the parties, and from the fact that the article was adopted and paid for by the purchaser at each stage of the work as it was progressively finished.. But if it was competent for the parties by special agreement to contract that the vessel should become the property of the purchaser as the work proceeded and at each stage was paid for, and thus to transfer the right of property and the ownership, then no actual delivery could be essential, and the principle of appropriation would apply in effect in such a case, although a different designation for the same thing in effect.

It is therefore apparent that in contracts of this description, the question does not depend either upon an express intention of the parties specially embodied in the contract, or upon an actual delivery of the ship when finished, but entirely upon the principle of appropriation, and the implied understanding and consent of the parties,, to be inferred from the peculiar nature of such a contract, and from the approval of the work as it proceeds from stage to stage towards completion, and the payment by the purchaser of the stipulated instalments as they fall due by the agreement to the builder. In support of this view I will refer to the following cases, in addition to those already cited. Laidler v. Burlinson, 2 Mees. & Wels. 602; Goss v. Quinten, 42 Eng. C. L. R. 430; Rhodes v. Thwaits, 13 Eng. C. L. R. 181; Good v. Langley, 14 Eng. C. L. R. 22; Wood v. Bell, 85 Eng. C. L. R. 771; 24 Eng. L. & E. Rep. 220; Bell on Contracts of Sale, 50 Law Libr. 13; Chit. on Contr. 378, 381.

But it has been said that the principle ruled in the cases of Wood v. Russell and Clark v. Spence, has never been recognized in this country, and that the general principle established in the case of Mucklow v. Mangles, 1 Taunt. 318, that a thing contracted to be made, though paid for in advance, is not the property of the purchaser until it is finished and delivered, is the only principle that applies here. But this is not true, and the first case ruled to the

p. 551

contrary in this country which I shall cite is that of McElderry v. Flannagan, 1 Harris & Gill, 308. In that case, which arose in Maryland only a few years after Wood v._ Russell had been decided in England, the principle ruled in the. last-mentioned case was fully recognized and sustained, and it was decided solely on the ground for which I contend. The other American case to which I shall refer, and which is to the same effect, is the case of Butterworth v. McKinley, 11 Humph. (Tenn.) Rep. 206. These cases fully sustain the principle for which I have been contending, and ruled in all the cases which I have before cited, and clearly show that such is the doctrine in regard to contracts of this nature, not only in England, but also in this country.

E. D. Cullen, for the defendants in error:

I shall not controvert any of the cases cited on the other side, because this case differs from all of them in one important and essential particular, and it is this: in noné of those cases was anything said in the contract about the delivery of the ship, when or where it was to be done. Besides, in this case, there was no intention apparent upon the contract that the vessel should become the property of the purchaser as the work proceeded and was paid for by him. There was no agent on his part, as in the cases cited, to superintend and approve the work and materials as it advanced; and what constitutes a still more striking and essential difference between them, and which completely negatives the idea that the sloop was to become the property of Hall at an earlier day, it is expressly stipulated in the contract that she was to be finished by a certain day and then delivered in Philadelphia, subject to inspection and approval of two persons, if required by him, before he was to be bound to accept and receive her. Viewed in this aspect, and with this important provision of the contract before us, and it can be viewed in no other, what grousad is there for saying that she became, by appropriation, the property of Hall at the specified stages of the work upon her, as it progressed and

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was paid for by him -according to the contract in that respect? The doctrine of appropriation, as broadly stated and contended for on the other side, never was a part of the common law of this country, if it is now of England, which we "deny. And no case can be found in this country to sustain the principle as thus stated. The case of Mucklow v. Mangles, 1 Taunt. 318, has always been regarded as the leading case on this subject, and has always been followed in this country. It was the case of a barge contracted to be built for the purchaser, and paid for in advance by him. Even his name had been painted on the stern of it by the builder. During its construction, and before its completion, it was seized in execution by the sheriff of Middlesex, at the suit of the creditors of the builder, and the court held that it was not the property of the purchaser, and could not become so until it was finished and delivered to him. The same principle was ruled in Merritt v. Johnson, 7 Johns, 472 , in which the contract was similar to this in all of its essential features, and which has constituted from that time to the present a leading authority on this question in this country. The same principle is also recognized and affirmed in Johnson v. Hunt, 11 Johns, 137 , and in Ward v. Shaw, 7 Wend. 404 .

In all the cases cited on the other side, including even the Maryland case of McElderry v. Flannagan, there was an agent attending on the part of the purchaser to superintend the building of the ship, to approve the materials and adopt the work as it progressed; and other important facts were proved, such as marking the keel with the name of the purchaser, and repeated and explicit declarations by the builder during the work, that she was his ship, and from which the Court inferred the intention of the parties that she should be so considered; in all of which important respects they differ widely from the present case. Besides, in none of those cases was there any stipulation in the contract, as iñ this case, for a^special or specific delivery of the vessel to the purchaser in a distant port, subject to inspection, if required by him, and which, of course, necessarily

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negatives any idea that she could have been considered by the parties to be the property of the purchaser, either in part, as the work proceeded, or in the whole when completed, before she was delivered in the port mentioned and he had there concluded to accept her.

But it is a mistake to suppose that the case of Wood v. Russell, cited on the other side, rests on the principle of appropriation, as it is termed, under a contract of this kind. It is true that Abbott, Ch. J., adopting for the moment a Scotch notion, made use of some expressions in announcing the decision of the Court, in allusion to the doctrine of appropriation; but the decision itself is based on no such principle. On the contrary, it rests mainly, if not entirely, upon the fact proved on the trial, that the builder during the progress of the work, and before his bankruptcy, had furnished the purchaser with a carpenter’s certificate that the ship was his, and had been built for him,in order to obtain her registry at the customs under the statute, before she was finished, and upon which the purchaser had made his affidavit as- required, that she was his property at that time. In Clark v. Spence the Court relied upon acts and declarations manifesting the intention and understanding of the parties, equally strong, and accompanied the decision with some expressions of hesitation and reluctance, on the ground that to decide otherwise might seriously affect existing contracts entered into with reference to the principle. But in the case of Wood v. Bell et al., 85 Eng. C. L. R. 781, decided as late lis the year 1856, and which is the latest decision in England on the question, the principle ruled in these cases is not only shaken, but subverted; for the Court say in this latter case, that the appointment of a superintendent by the purchaser, to approve and adopt the work as it advances, and the payment of the instalments of the purchase-money by him as they become due, are not of themselves sufficient to transfer the ownership of the vessel as the.work upon it progresses, to the purchaser, but it must depend upon the intention of the parties. The doctrine therefore, as it now

p. 554

stands in England, has resolved itself into a mere question of intention as to this matter between the parties.; and tried by this test, I have already said enough to show that no such intention can possibly be inferred from this contract.

But, to return to our own country. I will now refer to a recent case in the Court of Appeals, in the State of Hew York, in which the English cases are ably reviewed, and this doctrine of appropriation fully considered, and in which it is unequivocally repudiated and renounced, as never having been a part of the common law of this country. I allude to the case of Andrews et al. v. Durant et al., 1 Kern. Rep. 35. It happens to have preceded by a year the last case which I have cited from the English reports, and, therefore, the judges who decided it had not the advantage of the qualification and exposition which the Court 'of Queen’s Bench had recently given to the doctrine in that country, and yet it rules substantially the same principle; that is to say, that in contracts of this nature no property in the ship is transferred to the purchaser, until she is finished and delivered, unless it is otherwise stipulated between the parties. And this may now be considered the settled doctrine on the subject in both countries.

C. S. Layton, for the plaintiff in error:

After the thorough examination of the principle involved in this case, and the citation of the authorities bearing upon it, by my colleague, I shall have occasion to add but little on the subject. It is not only the first time the question has arisen in this State, but it is in itself a comparatively new question; and, therefore, we should not be surprised to find some conflict in the decisions upon it. In regard to executory contracts of this character, and in relation to this peculiar species of property, it rests on the principles of the commercial and marine law, and they are nowhere as clearly and definitively settled as the principles of the common law generally. By the common law, no general principle is better established than this, that where a contract is made to purchase an

p. 555

article not then in esse, it does not become the property of the purchaser until it is finished and delivered to him. And yet, when the contract is for the building and purchase of a ship, as agreed upon in this contract, the ship, as she is so built and paid for at the specific stages of the work upon her, is appropriated to and becomes the property of the purchaser by the right of accession or constructive delivery, which is the only delivery practicable under such circumstances; and the intention of the parties that the ownership of the vessel, as she is thus progressively built and paid for, should be transferred to the purchaser, must necessarily be inferred from the very nature and essence of such a contract, as an actual transfer of the exclusive manual possession of the property at such stages, from the builder, would not only be impracticable, but would violate their manifest intention, and defeat the object of the contract.

In the case of Wood v. Russell, in England, the Court held that the payment of the instalments by the purchaser was an indication of the intention of the parties to vest the property in him, and this, with other circumstances proved in the case, were considered sufficient to vest the property in him by appropriation as the work advanced. So in this ease the receipts of Tuhbs to Hall, as the work proceeded, for the payments made on account of it, reciting that the same were received on account of “ his sloop, which he (Tubbs) was then building for him,” must be held to be a fact as pregnant as any proved .in that case, to show that Tubbs then considered the sloop as the property of Hall. He also always admitted her to be the property of Hall, whilst he was building her, and never denied it, as was the case in Wood v. Bell et al. In the case of Andrews et al. v. Durant et al., so much relied on by the other side, from New York, Denio, J., remarks: “ Where, during the course of the transaction, the vessel, or other thing agreed to be built, is identified and appropriated, so that the builder would be bound to complete and deliver that particular thing, and could not, without violating his con

p. 556

tract, substitute another similar to it, though otherwise corresponding with the agreement, there would seem to be. more reason for holding that the property was transferred.” How, I ask, if after the work on this sloop had been two-thirds finished by Tubbs, and paid for by Hall, and one hundred dollars over and above the amount due from him, the latter had not acquired such a right to the specific sloop then under construction by the former, and if he could have substituted another corresponding to it in all respects, without violating his contract ? And if he could not, must it not, as a matter of course,- be considered not only as identified, but as appropriated to the purchaser ?

In addition to the authorities cited by my colleague, and to show that the principle for which we contend is sanctioned by respectable text-writers, both in this country and in England, I will refer the Court to Abb. on Ship. 3; Ross on Contracts of Sale, 85; Law Libr. 557; Story on Contr., secs. 19, 739, 813; Story on Sales, secs. 233, 234, 315, 316; Reed et al. v. Fairbanks et al., 24 Eng. L. & E. Rep. 220.

delivered the opinion of the Court.

This is an action of traver, brought by the plaintiffs below, for the purpose of recovering the value of an unfinished sloop or vessel. The facts are briefly, but substantially, as follows:

James H. Tubbs, by trade a shipbuilder, on the thirty-first of August, 1854, entered into a contract, under seal, with John W.- Hall, the defendant below, by which he agreed to build and complete for him, in a .workmanlike manner, the hull of a sloop,—to spar her, put travellers in her, and “ deliver her in Philadelphia by the first day of March, 1855, everything complete to pass the inspection of two persons, if required by Hall.” The contract particularly specifies the dimensions of the sloop, and the -kind of materials to be used in her construction. And John W. Hall,'on his part, agreed to pay Tubbs for the sloop at the rate of twenty-eight dollars per ton; one-third to be paid when the keel, stem, stern-posts, and floors

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should be laid; one-third when the deck-frame and deck should be laid"; and the other third when the sloop should be “ delivered in Philadelphia all complete, and according to contract.” And for the faithful performance of this contract they bound themselves to each other respectively, in the penal sum of one thousand five hundred dollars.

. The first instalment was paid, according to contract, on'' the 10th of January, 1855; the second was paid on the 16th of May following, and on the 8th of June the sum of one hundred dollars was advanced on account of the third instalment.. But on the 4th, 5th, 6th, 7th, and 9th of June, 1855, whilst the sloop was still on the stocks, in an unfinished state, and in the possession of Tubbs, sundry writs of fieri facias were issued against him by his creditors, under which she was levied on and taken in execution. She was regularly inventoried and appraised; and was afterward, on the 14th of July, 1855, put up and sold at public auction by Constable Calhoun, under and by virtue of the process then in his hands, to George Green et al., the plaintiffs below. It appears further, that in July, some 'days prior to the sale, but after the levy of the executions upon it, Hall, the defendant below, took possession of the sloop; and on the 13th of the same month procured from Tubbs an instrument of writing, commonly called a ship-carpenter’s certificate. Hall afterwards finished, and removed her beyond the jurisdiction of the courts of this . State.

Hpon these facts, the question presented for the consideration'of the Court is, whether the unfinished sloop, at the time of the levy of the writs offieri facias, belonged 'to James H. Tubbs, the builder, or to John W. Hall, the defendant below. If she belonged to Tubbs, then, upon the sale by the constable, the property in- her passed to George Green et al., the plaintiffs below. This is a question of first impression in this State, and its solution must depend on the construction to be given to the contract between the parties. It was undoubtedly competent for them to have agreed, in express terms (if such had been

p. 558

their intention), that the property in the unfinished sloop should pass from Tubbs and vest in Hall, upon payment by him of the first instalment. But they have not done so.

When a man contracts with another for the building of a vessel or other thing, not then in being, for a given price, the general rule is, that no property in it vests in the person for whom it is to be constructed, during the progress of the work upon it, nor, indeed, until it is fully completed and delivered, or is, at least, ready for delivery. This principle or general rule is fully recognized in Mucklow v. Mangles, 1 Taunt. 318; Towers v. Osborne, 1 Strange, 506; Merrit v. Johnson, 7 Johns. 473 ; Andrews et al. v. Durant et al., 1 Kernan, 35; and in many other cases; and it has never, to our knowledge, been questioned; but, on the contrary, it has been uniformly considered as sound law. The principle, that where a party orders goods to be made, the materials belong to the maker while the goods are in progress of being" manufactured, is too well settled to admit of dispute.

The precise question here, however, which we are called on to decide is, whether the payment of the first, or two first instalments as the work progressed, according to the terms of the contract, is sufficient to take this ease out of the general rule, and vest the property in Hall. The counsel for the defendant claim that, as the sloop was to be built upon a special contract, the terms of which required that given portions of the price should be paid according to the progress of the work, the payment of these portions or instalments as they became due, had the effect in law, and according to the intention of the parties, of vesting the property in the sloop in their client; and they rely for support mainly upon the eases of Wood v. Russell, 7 Eng. C. L. R. 310; Clark v. Spence, 31 Eng. C. L. R. 107; Wood v. Bell, 85 Eng. C. L. R. 771; Bell’s Principles of the Law of Scotland, 486.

The case of Wood v. Russell is the first in which the doctrine of appropriation on payment of instalments has been announced in England; and as the question was not neces

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sarily involved in the decision, it is at most hnt an extrajudicial opinion. Chief Justice Ahhott says, in express terms: “We are not called to decide how far that payment vests the property in the defendant, because, here Patón signed the certificate to enable the defendant to have the ship registered in his (the defendant’s) name, and by that act consented, as it seems to us, that the general property in the ship should be considered from that time as being in the defendant.” Again, he says : “ In order to register the ship in the defendant’s name, an oath would be requisite that the defendant was the owner, and when Patón . concurred in what he knew was to lead to that oath, must he not be taken to have consented that the ownership should really be as that oath described it to be ?” So that it is perfectly apparent, the judgment of the Court proceeded upon a ground totally distinct from the doctrine of ^appropriation. And we may therefore, without any disrespect, be permitted to consider what is said by the Chief Justice in regard to this doctrine as a mere dictum. This casé was decided in the year 1822, and was followed, after the lapse of thirteen years, by the case of Clark v. Spence, decided in the year 1835. In the meantime the doctrine had been acted on by persons engaged in shipbuilding, and had been recognized by the courts; but it had not, in any instance, so far as we know, met with the cordial approval of the English judges. Indeed, it seems evident that although recognized as authority, the principle had been viewed with suspicion and followed with doubt and hesitation.

Mr. Justice Williams, who delivered the judgment of the Court in Clark v. Spence, seems to lay some stress upon the circumstance of there being, in that case, a superintendent appointed to inspect and approve of the materials, and the work as it progressed; yet, after all, it is apparent the case was finally decided mainly, if not solely, on the authority of Wood v. Russell, and it can hardly, therefore, be considered as an authority in itself. We come now to Wood v. Bell, 5 Ellis & Blackburn, 772 [85 Eng. C. L. R. 771]; which

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was decided in the year 1856. This case, is similar in most respects to Wood v. Russell and Clark v. Spence. There was an inspector appointed, to inspect and approve the work, and the ship was to "be paid for by instalments, during the progress of the work. But Lord Chief Justice Campbell, who delivered the opinion of the Court, does not appear to have considered either of these circumstances, taken alone, as conclusive upon the question of property; for he relies principally upon other facts, as indicating the intention of the parties, that the property in the unfinished ship, and the materials to be used in her construction, should vest in the plaintiff, "Wood. He says: “But .two facts remain. Joyce, at the instance of the plaintiff*, punches his name on the keel expressly for the purpose of securing her to the. plaintiff; and although he refuses, after this, to execute a formal assignment of her to the plaintiff, he at the same time admits her to be the plaintiff’s property. Both these cir-«, cumstances occurred when Joyce was the master of his property, and appear to us of the greatest importance; they throw a light on the preceding circumstances, and show they are to be understood in so far as they were in themselves ambiguous.” 1

The doctrine of appropriation, announced in Wood v. Russell, and 'afterwards recognized and adopted in Clark v. Spence, has never, we believe, been followed in this country. Merritt v. Johnson, 7 Johns. 473 , and Andrews v. Durant, 1 Kernan, 35, are both cases of contracts for building vessels to be paid for by instalments as the work progressed, and in which there were superintendents appointed to inspect and approve the work, but they were both decided according to the general rule which we have stated. In the former case, the doctrine of appropriation is entirely ignored; and in the latter, the judges of the Court of Appeals, after an elaborate and able review of the English decisions, repudiated it altogether.

But, after all, the cases which have been, cited are principally serviceable as lights to guide our judgment to a correct conclusion in respect to the true meaning or inten

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tian of the parties. In this case the contract is in writing under the hands and seals of the parties, and is executory in its terms. It is a contract for the building of a thing not yet in being; in which nothing is said as to when the property should vest in Hall. Can we say, then, with any ■ fair show of reason, because it contains a provision for payment of the price by instalments according to the progress of the Work, that it was the intention of the parties the property in the unfinished sloop should vest in Hall upon payment of the first instalment? We cannot think this would be a fair or reasonable construction of the contract ; especially, as .he was not bound to accept the sloop until she had been completed, and had passed inspection in Philadelphia upon her delivery there, according to the terms of the contract. We therefore consider that the judgment below should be affirmed.

Cases cited

Ward v. Shaw 7 Wend. 404 N.Y. Sup. Ct. p. 552
Merritt v. Johnson 7 Johns. 473 N.Y. Sup. Ct. p. 558, p. 560