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PERKINS v. DACON.

and a portion subject to the order of Fitts. As between Dacon and these Toledo factors, the ownership was equitably in Dacon, and he had a right to direct what disposition should be made of the wheat. But if those persons should refuse to obey his instructions, he had no means of protecting his interest in the property itself. He could not recover it from the elevator, and he could not reach or control the muniments of title, which, by his own action, had been vested in them, and not in himself. While he had an interest as owner, which justified his undertaking to dispose of the property, he had, nevertheless, no means, or right, of reaching it, except through the actual co-operation of the persons to whom he had transferred its control. A sale, under such circumstances, which should excuse Dacon, should his vendee fail to obtain the wheat from the Toledo agents, would be, not a sale of wheat, but a sale of a right of action against the agents. The testimony and the charges go upon the hypothesis, that it was wheat itself which was purchased and sold; and we are therefore, confined to that view, which is not disputed, and which is maintained by the defendant's own statement in the cause. And the questions for our determination depend on the character of the transaction, as a complete, or incomplete, sale.

That delivery is not always necessary to make a sale perfect, is very well settled. But there must always be an identification of the thing sold, in some way, so that it may stand, as set apart from other things, with which it might be confounded, and there must be a present transfer of the entire ownership. The wheat, in this case, could not be identified in kind, until actually measured out. If we assume, (as, perhaps, there was evidence tending that way,) that a sale would be sufficient, which transferred the right to a specific number of bushels in the elevator, that title could only pass

PERKINS v. DACON.

when the purchaser received a transfer of the title papers, or evidences which would establish the ownership in him, and which the railroad company would be legally bound to recognize. Inasmuch as Fitts had been made, by Dacon, his representative in the premises, and vested with the rights of legal ownership, the title could only be passed to plaintiff through his co-operation. The order which Dacon gave plaintiff, on Fitts, cannot be regarded as an order to deliver that which was already vested in plaintiff. It was necessary to transfer the title itself, that Fitts should act upon it, and pass over the property by his own intervention. Until Fitts should act, the plaintiff could obtain no title whatever. I think the order on Fitts was, therefore, an undertaking, by Dacon, that Fitts would complete the sale, which was, thus far, incomplete, and needed just what the order called for to make it operative, that is to say, an actual or constructive delivery.

The exceptions are all based upon a different view presented to the jury, or upon a refusal to charge in accordance with this view. The same error pervades them all, and it is not necessary to refer to them in detail. I think the judgment should be reversed, with costs, and a new trial should be granted.

I deem it unnecessary to consider the peculiar nature of the interests owned by depositors of wheat in an elevator. We held, in Erwin v. Clark, that there were property rights, which might, however, be subject to some conditions, not applicable to grain kept separate. The necessity of recognizing the title, as vesting in those who have been lawfully placed in control of it, in their own names, arises from the nature of the bailment, and the contract of the bailees, and cannot be denied by parties who have themselves caused the relation to assume that shape. And when such parties

HUYSER v. CHASE.

undertake to sell, they are bound to take every step necessary to get the title vested in the purchasers. CHRISTIANCY J. concurred in this opinion.

Peter Huyser, and others, v. David Chase.

Tenancy at will notice to quit. Under a verbal lease for twenty-one months from and after the 31st of July, 1862, the lessee entered into possession of premises and paid rent monthly in advance, according to the terms of the lease. On the 10th of July, 1863, notice to quit said premises on the 1st of August following, was given. Held, That said lease being invalid under the statute of frauds, the lessee was a tenant at will, and said notice was insufficient to terminate his tenancy.

Held, also, That as said lease was to run from and after the 31st of July, the term began on the 1st of August, and that said notice should have been served a full month previous to August 1st.

Heard October 7, 1864. Decided January 28.

Error to Wayne Circuit.

The case was brought to the Circuit by appeal from a Circuit Court Commissioner, before whom proceedings were commenced, by defendant in error against the plaintiff in error, to recover the possession of leased premises.

The finding of the Court was as follows:

"That in the latter part of July, 1862, the complainant leased to the defendant the premises described in the complaint in this cause, for twenty-one months from and after the thirty-first day of July, in the year eighteen hundred and sixty-two, at a rent of $200 per annum, payable in equal monthly installments of sixteen and two-thirds dollars, at the commencement of each month, and for certain specified repairs, and also for general repairs to be made on said premises; that the terms and conditions of the lease were then agreed upon verbally, and the same was to be reduced to writing, and

HUYSER v. CHASE.

signed by the parties; that the defendants thereupon. went into possession of the premises before the lease was reduced to writing and executed; that thereafter the complainant had the lease reduced to writing, as agreed upon, and offered it to defendants to execute, at two different times, at both of which they refused to execute the same, and no written lease was ever executed between the parties, and no other contract or agreement wcas ever made than as above stated; that the entry of said defendants was at the commencement of said agreed term, and the defendants paid, and the complainant accepted the monthly rents, as specified in said verbal agreement, and after the refusal of said defendants to execute said written lease until the thirty-first day of July, in the year eighteen hundred and sixtythree, being for twelve months, the last receipt for the same being as follows, to wit:

"Received of P. & R. Huyser, sixteen dollars and sixty-six cents, in full for rent up to July 31st, 1863. "DAVID CHASE.

"DETROIT, July 1, 1863."

That on the tenth day of July, eighteen hundred and sixty-three, the complainant gave the defendants notice in writing to quit the said premises, and give up possession thereof to him on the first day of August then next, which notice was in the following words and figures:

"Messrs. P. & R. Huyser:

"DETROIT, July 10, 1863.

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and vacate my

"You are hereby notified to leave house and premises you now occupy, on Woodward Avenue, it being house No. 186, on the first day of August next, as I want to take possession of the same at that time.

"DAVID CHASE."

HUYSER v. CHASE.

That the defendants, after the time specified in said notice, refusing to give up the possession of the premises, the complainant instituted the proceedings, brought up by the appeal in this cause, before the Circuit Court Commissioner.

And the Court, from the facts found as above stated, finds as a conclusion of law, that the defendants held over the premises described in the complaint, after the time for which they were demised or let to them, and contrary to the agreement under which they held, and that the complainant was entitled to claim and have the restitution of the said premises in this suit, and renders judgment accordingly, with the costs of the suit, against said defendants.

And as to the points of law upon which the Court was requested, in writing by the defendant's counsel, to find particularly, the Court finds:

1. That the facts as hereinbefore mentioned, as found to be true, constituted the said defendants tenants from year to year, and that at the end of the first year from the entry, the complainants might proceed in this action without notice to defendants.

2. The facts as above found did not constitute the defendants tenants, from month to month.

Knight and Jennison for plaintiffs in error:

The defendant in error, (the landlord,) having accepted rent from plaintiffs in error, (the tenants,) according to the terms of the original agreement, after the tenant had refused to execute the lease, a tenancy from month to month was created, commencing from the time of entry.-Anderson v. Prindle, 23 Wend., 616; Coffin v. Lunt, 2 Pick., 70; Schuyler v. Legget, 2 Cow., 663; Bradley v. Covel, 4 Cow. 349; People v. Rickert, 8 Cow. 226; Nichols v. Williams, 8 Cow., 13; Kerr v. Clark, 19 Mo., 132; Ridgely v. Stillwell, 25 Mo., 570; Den. v. Drake, 2 Green, N. J., 523.

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