transferred to them twelve thousand bushels of charcoal, the prop

erty in controversy.

At the time of the execution of the bill of sale the charcoal was in the pits in which it had been burned upon the land of the vendors. No attempt was made to remove it. A few days after the sale, and about twenty-five days prior to the time when the attachment was laid, plaintiffs sent a person to the coal pits and caused them to be severally marked with their name. This person remained in charge of the property for about a fortnight, when he left, and another, who lived upon an adjoining ranch, was requested to look after it. This latter person made occasional visits each day to the coal pits. Nothing further was done by the plaintiffs down to the time of the levy by the defendant.

In sales of personal property the statute requires that it must be taken into the actual possession of the vendee in order to be operative against the creditors of the vendor. 1 Comp. L. 292. This requirement of the statute is based upon the principle that permitting the former owner to remain in the apparent ownership of the property may be the means of giving him a false credit. There is no difficulty in the application of the statute to sales of personal property capable of actual delivery, as for instance, in the case of the sale of a few bushels of charcoal, but the application of the statute to sales of cumbrous property, such as twelve thousand bushels of charcoal, has been fruitful of litigation. What will amount to a change of possession sufficient to satisfy the requirements of the statute in one case will fall short of its demands in another. Each case must be decided with the relation to the character and situation of the property at the time of the sale.

"What acts will amount to an immediate delivery and an actual and continued change of possession of personal property of a cumbrous and ponderous nature, such as a kiln of bricks," said the Supreme Court of California, in Woods v. Bugbey, 29 Cal. 472, "must depend in a great degree upon the circumstances of the particular case, but care should be taken in such cases to keep in view the object of the statute, and to exact nothing less than a substantial observance of its salutary provisions. In no case that we are aware of has the Supreme Court of this State laid down a rule requiring less than that the purchaser must have that possession which places him in the relation to the property which owners usually are to the like kind of property. In Lay v. Neville, the

Tognini v. Kyle.

court, in reference to the subject say: 'It was intended that the vendee should immediately take and continuously hold the possession of the goods purchased, in the manner, and accompanied with such plain and unmistakable acts of possession, control and ownership, as a prudent bona fide purchaser would do, in the exercise of his rights over the property, so that all persons might have notice that he owned and had possession of the property.

999

A review of a few of the decided cases, in which the nature and bulk of the property precluded an actual delivery, will show the change of possession which courts have held to be sufficient.

In Cartwright v. Phoenix, 7 Cal. 281, the plaintiff purchased a quantity of flour standing in a separate pile in a warehouse. The vendor, pointing to the pile, said to the agent of the plaintiff, "There is the flour." The agent placed the number "800" — the estimated number of sacks on one of them. The flour remained

in this condition until attached.

The court declared that all was done which under the circumstances was necessary to pass the property. "It was not necessary for the vendee to remove the property from the house where it was at the time of the purchase to bring himself within the statute."

The same construction was given to the statute in the case of Chaffin v. Doub, 14 Cal. 384. In that case the debtor, to secure debts due for mowing, etc., mortgaged certain hay lying in swaths, cocks and windrows in the fields in which it was grown. The plaintiffs continued to gather and stack the hay upon the land belonging to the debtor. Some eight days after the execution of the mortgage the hay was levied upon as the property of the debtor. The court said: "The hay was not yet in a condition for removal, but scattered over a large area some one hundred and fifty acres necessarily requiring time to gather it up and stack it for the purpose of preserving and getting it into a condition for use. If an actual immediate delivery were construed to mean a removal immediately from the premises, the requirement of the statute in such cases would be impossible of performance. But if such removal be necessary at all the vendees being in possession of the fieldsthe court erred in assuming, as matter of law, that a delay of eight days was too long to enable the plaintiffs to gather up and remove the hay from the fields of Buckelew. But we do not decide that this removal, under the circumstances of this case, was necessary

Tognini v. Kyle.

for the vesting of title in the plaintiff as against the creditors of Buckelew."

In Pennsylvania it was held that a large quantity of lumber left in the saw mill yard in which it was purchased, but conspicuously marked with the name of the purchaser, who was prevented by the condition of the roads from removing it without incurring unusual and unreasonable expense, was not subject to levy for the debt of the vendor. Haynes v. Hunsicker, 26 Penn. St. 58. In Chase v. Ralston, 30 id. 539, the property was of the same nature, the delivery made in the same manner, and the decision to the same effect.

In the case of the sale of the furniture of a large hotel, where the furniture could not be removed without great deterioration and expense, and was mainly valuable for the purposes of a hotel and at the place where it was situated, it was held sufficient for the vendee to assume the direction and control of the property in an open and notorious manner. McKibbin v. Martin, 64 Penn. St.

352; s. c., 3 Am. Rep. 588.

In Allen v. Smith, 10 Mass. 308, it was held that a creditor taking a large number of bricks for his debt, and placing an agent in charge of them, was a sufficient change of possession, notwithstanding the property remained in the kiln and brickyard of the debtor. "This yard,” said the court, "is not like a dwelling-house, which the plaintiff might have constantly occupied, by himself or an agent; or like a warehouse, of which he might have kept the key. It could not be necessary that he should keep an agent constantly in the yard to watch his property and keep possession of it. The conveyance to the plaintiff appears to have been made bona fide, and for a valuable consideration. Possession was delivered to him at the time, in the presence of sundry witnesses. It is not always necessary that there should be an actual removal of the goods, and a change of the possession from hand to hand. Here from the nature of the article, it could not be removed without considerable expense and loss; and it is not usual to remove bricks before they are sold, nor to put them into a warehouse for sale, on account of the expense and the damage they sustain by removal. The plaintiff therefore instead of removing them, kept them for sale in the same yard, with the consent of the owner of the land." See also, Long v. Knapp, 54 Penn. St. 514; Benford v. Schell, 55 id. 393; Hutchins v. Gilchrist, 23 Vt. 82; Fitch v. Burk, 38 id. 683; Robbins v. Oldhem. 1 Duvall,

Tognini v. Kyle.

28; Cummins v. Griggs, 2 id. 87; Morton v. Ragan, 5 Bush,

334.

More was done by way of investiture in this case than in the cases of Cartwright v. Phonix, Haynes v. Hunsicker, or Chase v Ralston. The facts closely resemble those in Allen v. Smith. In that case, as in this, the property remained upon the premises of the debtor, and in each case the person in charge for the purchaser was absent at the time of the levy.

The creditors of the vendors could not have been misled by the failure of the plaintiffs to remove the charcoal before selling it, and it was not necessary to subject them to that expense.

One of the conditions of the sale by Ratto, Nicolo & Co. to the plaintiffs was that the vendors were to sack and load the charcoal upon wagons. Presumably this embraced the obligation of drawing the coal out of the pits. They did so draw it. But this act showed no possession in the vendors as against plaintiffs, in face of the notices posted upon the pits and the presence of the persons sent there by them.

[Omitting other points.]

Order granting new trial reversed.

One employed to procure a loan for a commission is entitled to his commission on finding a person able and willing to make the loan, although the principal declines to take it.

A

CTION for commissions.

The opinion states the case. The

defendant had judgment below.

S. C. Willson and L. B. Willson, for appellant.

ELLIOTT, J. On the 5th day of June, 1879, the appellee executed a written agreement appointing appellant his agent to procure a loan, and promising to pay him "for his services five per cent commission on the amount of the loan obtained," Formal appli-' cation was made for a loan; the parties to whom it was made agreed to lend the money applied for; the appellant notified appellee that