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1816.

Thompson

V.

Gray.

In pursuing this inquiry it becomes necessary to decide, whether the clause respecting security formsa condition precedent, on which the sale is made to depend, or a condition subsequent, the performance of which may be suspended until it shall be convenient to the vendee, or required by the vendor. It is apparent that a contract for the sale of 5,000 tickets was one of very considerable interest to the managers of the lottery. This is not only self evident from the nature of the transaction, but is also proved by the fact, that they changed the scheme of the lottery for the purpose of securing it. As the time of commencing the drawing must necessarily have depended on the sale of the tickets, it is reasonable to suppose, that, in the calculations made on this subject, they must have considered the books selected and set apart for Mr. Gray, either as sold or unsold. The endorsements on the books selected lead strongly to the opinion, that they were considered as sold. If the proposition which forms the basis of the contract be inspected, it will be perceived that the contract was intended to be entire, not divisible. The scheme of the lottery was changed, not for the purpose of inducing Gray and Milligan to take any number of tickets less than 5,000, but on their engaging to take 5,000 absolutely; and the clause respecting the security is annexed to the delivery of the tickets. The delivery of some of the books was an execution in part of an entire contract. All the circumstances show, that the obligation of the contract was complete; but the examination of these circumstances

is dispensed with by the admission on record, that it "became a binding contract between the parties." What, then, was this binding contract?

That the scheme proposed by Milligan and Gray should be adopted, and certain facilities of payment allowed, on their bond to the company for tickets taken in the first class. That they should, on their part, take 2,500 tickets each in the second class, and that approved security should be given on their delivery. Certainly Milligan and Gray were absolutely bound to take 2,500 tickets each. A refusal to do so would have been a breach of contract, for which they would have been responsible in damages. When the parties proceed one step further; when the vendee, in execution of this contract, selects the number of tickets he has agreed to purchase, and the vendor assents to that selection; when they are separated from the mass of tickets, and those not actually delivered are set apart and marked as the perty of the vendee; what, then, is the state of the contract? It certainly stands as if the selection had been previously made and inserted in the contract itself. An article purchased in general terms from many of the same description, if afterwards selected and set apart with the assent of the parties as the thing purchased, is as completely identified, and as completely sold, as if it had been selected previous to the sale, and specified in the contract. this selection, the parties stood in the same relation to these tickets as if the 25 books, afterwards agreed upon, had been named in the contract as containing the numbers purchased by Gray. The

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1816.

Thompson

V.

Gray.

1816.

Thompson

V.

Gray.

contract, then, amounts to this: The managers agree to sell Gray 2,500 tickets, which are specified, and he agrees to give approved security for the purchase money on the delivery; in the mean time the tickets remain in possession of the vendors, who proceed to draw the lottery, without having received or required security for the whole number of tickets sold. The stipulation respecting security could not in such a case be considered as a condition precedent, on the performance of which the sale depended. Certainly, the managers could have required, and have insisted on this security; but they might waive it, without dissolving the contract. They were, themselves, the judges, whether they would consider the contract of Robert Gray, with the collateral security furnished by the possession of the tickets, as sufficient for their protection; and their conduct shows that they thought it sufficient.

The majority of the court is of opinion, that the property in the tickets changed when the selection was made and assented to; and that they remained in possession of the vendors merely as collateral security. Had the tickets been all blanks, Gray was compellable to take them.

Judgment affirmed with costs.

d When commodities are sold by the bulk, for a gross price, the sale is perfect, for it is known with certainty what is sold; but if the price is regulated at the rate of so much for every piece, pound, or measure, the sale is not

perfect, except only as to so much as is actually counted, weighed, or measured; for, till then, it is not known with certainty what is sold. 3 Johns. Cas. 254. Coit v. Houston. Domat. 1. 1. tit. 2. ș. Code Napoleon, liv

4. art. 7.

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Where a bond was given by the agent of an unincorporated joint stock company, to the directors for the time being, for the faithful performance of his duties, &c., and the directors were appointed annually, and changed before a breach of the condition of the bond, the agent and his sureties were held liable to an action brought by the obligees after they had ceased to be directors.

ERROR from the circuit court for the county of Alexandria.

This was an action of debt instituted by the defendants in error, (plaintiffs in the circuit court,) as directors of the Domestic Manufacture Company of Alexandria, against Robert Anderson, (the plaintiff

3. tit. 6. ch. 1. art. 1585. 2 Erskine's Inst. 480, 481. This distinction is recognized by Pothier, who remarks, that the contract of sale is usually perfected by the agreement as to the price; and, that this rule applies where the sale is of a specific article, for a gross price. Si id quod venierit appareat quid quale quantumve sit, & pretium, & pure venit; perfecta est emptio. 1. 8. Dig. de peric. & comm. R. vend. But, if the commodity be of that description of articles, which consist in quantitate, and which are sold by the weight, number, or measure, the sale is imperfect until it is weigh

ed, counted, or measured. In the first case, the goods sold are at the risk of the vendee, from the moment the contract is made in the last case, they remain at the risk of the vendor, until they are designated by the act of weighing, counting, or measuring. But, in both cases, the contract is so far completed from the time of its being entered into, as to give the vendee a right of action for the delivery of the thing on tendering the price, and the vendor an action for the price, on tendering a delivery of the thing sold. Contrat de Vente, No. 308. See also 6 East, 625.

1816.

Anderson

V.

Longden.

in error,) on a bond given by him and others as sureties for John Mac Leod, agent of the said company, to the said directors, to recover the amount of money and merchandise which the said agent had received for the use of the company, and for which he had failed to account.

On the 17th of November, 1809, a number of persons in Alexandria associated together, and formed a company, for the purpose of encouraging the manufacture and use of domestic merchandise; they entered into articles for their government, of which the following extracts are all that are material in this

case:

"Art. 2. As soon as the whole, or 1,000 shares of the said capital stock, shall have been subscribed for, and the first payment made thereon, a meeting of the stockholders shall be called by public notice in the Alexandria and Washington newspapers, to meet in the court house of Alexandria, either in person or by proxy duly authorized, at which meeting the stockholders, either personally or by proxy, shall elect by ballot seven of their own body to act as directors of the said company for one year."

"Art. 3. The affairs of the said company shall be carried on in the town of Alexandria, under the superintendance and control of the said directors, of whom any four shall form a board or quorum. They shall choose a chairman from among themselves, and in case of vacancy by death, resignation, or otherwise, such vacancy shall be immediately filled by themselves from among the stockholders. And the said directors shall in no case whatever contract debts

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