#### AMALEK C. WILLIAMS vs. JAMES C. JOHNSTON.

A. contracted to deliver B. 280 logs of timber to be staked in the river, at or near Plymouth, at a place to be designated by 0. A. delivered 130 logs and staked them at a place so designated. He then gave notice that he would have the other logs there on the 7th of July, if the weather was favorable. On the 7th of July, the logs were rafted to Plymouth and staked at the same place, at which the other logs had been staked. No notice was given to B. or his agent, that the logs were there. Five days afterwards the logs were lost in a violent storm. Hnnn that this was a sufficient delivery to entitle A. to recover the price of the timber.

Appeal from the Superior Court of Law of Martin County at Spring Term, 1844, his Honor Judge PeaksoN, presiding.

This was an action of assumpsit for the price of 280 logs of timber sold and delivered. The evidence was, that in May, 1842, Thompson, who was the agent of the defendant at his saw-mill in Edenton, and was engaged in buying timber on the Roanoke and elsewhere, came to the plaintiff’s landing on the river about eight miles above Plymouth, and offered to buy 280 logs then lying at the landing. Thompson measured the timber, marking each log, and offered $>5 SO per hundred. The plaintiff declined taking that price, hut agreed to see Thompson in Edenton during the next month. Accordingly in the latter part of that month, the plaintiff went to Edenton and agreed to let Thompson have the 280 logs at $5 50, as previously measured by him. The limber was to he rafted by the plaintiff to Plymouth, and staked in. the river at such place as Mr. Maitland should designate, as soon as the plaintiff got home. The price was to he paid on demand after it was so staked. On the 1st of July the plaintiff’s agent arrived at Plymouth with one raft of 131 logs, called upon Maitlandwho designated the place where the timber should be staked, which was accordingly *234done. By a letter dated the 2d of July to Thompson at Edenton, which was received on the 3d, the plaintiff informed Thompson, that he had sent down one raft of 131 logs an(j stafced jt jn the river according to contract, and would have another raft containing 149 logs, the balance of the lot, there on the 7th of July, if the weather was favorable. On the 5th of July the plaintiff wrote to Maitland, informing him that he would send the balance of the timber in a day or two. Maitland forwarded this letter to Thompson, who received it on the 7th. On the 7th the plaintiff’s agent arrived at Plymouth with the 149 logs, and staked them alongside the other 131. On the 11th Thompson wrote to the plaintiff, informing him that he had sent Captain Halsey for the timber, that he had given Halsey the money to be paid to the plaintiff if he was in Plymouth, if not, to be left with Maitland for him, if the timber was at Plymouth, as he hoped it was, and stating the amount. On. the morning of the 12th Halsey arrived at. Plymouth ; a storm was then setting in and by 3 o’clock in the evening was so violent as to do great damage to the shipping and wharfs, and carrying off all timber in the river — among the rest the lot in question.

The defendant’s counsel insisted that the timber was destroyed before the property vested, contending, 1st, that, as the bargain was. for 280 logs, the delivery of 131 was not a compliance, so as to make him liable for that number, unless the whole was delivered; 2dly, that, as the defendant had no notice of the fact that the 149 logs were at the place, and as Maitland had not been called on to designate the place, where they were to be stalled, there was not in law a delivery, so as to-vest the property.

The Court was of opinion that, taking the facts as stated, the property had vested in the defendant and he must bear the loss. The first position assumed by the defendant’s counsel was correct. The contract being entire, a delivery of part was not sufficient. The second position was not *235correct. When by the terms of a contract the place time are fixed no notice is necessary. If the vendor-has the property at the place at the time, the property vests in the vendee, and may be left and the price claimed. In this case the place was some point in the river at Plymouth to be designated by Maitland. It was designated when the first raft arrived, and the plaintiff was right in taking it for granted, that the other raft was to be staked at the same place, in the absence of any directions to the contrary, so as to have the whole lot together. The time being uncertain, the plaintiff was bound to give the defendant notice; but as to the first raft sufficient notice was admitted. As to the second raft, the letter informing the defendant that the first had arrived and the other would be there on the 7th, if the weather was favorable, and the letter directed to Maitland on the 5 th, saying the balance would be down in a day or two, with the fact that it was down on the 7th, was sufficient notice. Notice being necessary merely to fix the time, there was no reason why it might not be given before the article reached the place, and the vendor was not required; as contended by the defendant's counsel, to wait until the article got there and then give notice. If the purchaser had sent his boat and the raft had not arrived, he would have been entitled to damages. To require notice after the delivery, if the vendee lived at a distance, would put the vendor to the unnecessary trouble and risk of keeping the article in the river, as in this case, until the vendee received it and had time to come. Notice being given on the third, the property vested, at all events, prior to the storm, which took place on the 12th, up to which time the timber was secure.

The jury found a verdict for the plaintiff, and a new trial having been refused and judgment rendered according to the verdict, the defendant appealed.

Biggs for the plaintiff.

Badger and Iredell for the defendant.

*236Daniel, J.

First, the lime, when the plaintiff was to k-ave 280 logs of timber at Plymouth, was not stated in the contract; the law, therefore, required him to have them tjlere at a reasonakie time. The entire number of logs were there, and staked on the 7th day of July, 1842. Four days thereafter, the defendant despatched a vessel for that place for the timber; he therefore never pretended to repudiate the contract, on the ground that the plaintiff had not sent the logs at a reasonable time; nor, as we think, had he a right to have done so on that ground. Secondly; the defendant contends, that the second raft of logs was staked in the river at Plymouth, at a place which had not been designated by Maitland, and that he was not liable to pay for any of the logs, until the whole had been staked in the river at that place, which Maitland should designate, agreeably to the terms of the contract. It appears from the case, that, on the arrival of the first raft, Maitland (who was agent for that purpose) did designate the place in the river, where the logs were to be staked and fastened; he gave no notice at that time of any other place where he wished any of the logs to be staked. He did not designate several places for the different parcels, but designated the place where all the logs were to be staked, and at that place the plaintiff delivered and staked them: and in so doing acted rightly. Thirdly: It is said that the notice on the 3d day of July, given to the defendant’s agent at Edenton that the entire number of logs would be at Plymouth on the 7th of the same month, was coupled with a condition,- to wit, “if the weather was favourable,” and that this condition rendered the said notice a nullity, and also, it is said, that the second notice, which came through the hands of Maitland, dated the 5th and reeeived on the 7th day of July 1842, was too indefinite, as it only stated that the residue of the entire number of the logs specified in the contract would be started to Plymouth “in a day or two,” and that the defendant’s agent at Edenton was in consequence thereof left in doubt, even up to the 11th day of July whether jhe whole of the logs were at Plymouth or not. The answer *237to these arguments, we think, is, that there was no evidence offered that the weather, in the intermediate time, was unfa-vourable for rafting the timber ; and that the Edenton agent had not a reasonable ground to doubt, that the entire lot of timber, would be at Plymouth on the 7th of July. We know no authority, compelling the plaintiff first to stake and then give notice to the defendant. But even if the notices to Thompson were liable to the objection taken, we think they would be removed by the conduct of the defendant’s agent. He did not decline acting on the notices, nor find fault in any manner with them. On the contraiy, he treated them as proper, and proceeded as if the property in the timber had vested in the defendant by the staking it in the river at Plymouth, so as not to be carried off by the ordinary current. For, on the 11th July, he actually sent for the timber; and, at the same time, he wrote to the plaintiff that he had done so, and had sent the money for it, to be paid to the plaintiff’, if in Plymouth, or, if not, to- be left with Mr. Maitland for him, provided the timber was at Plymouth, as he hoped it was. . Thus, the only thing the party then required was, that the timber should have been brought to Plymouth and there made fast. No further notice was required; no further act on the part of the plaintiff was deemed necessary. Mr. Thompson considered himself authorised at once to take the timber, if he found it in the river upon the arrival of the vessel. The plaintiff, then, had left the logs for the defendant and to be taken by him at his will, and the defendant’s agent deemed himself entitled to take, and he said he meant to take,. the logs without further delivery or direction from the plaintiff. Payment was not'necessary to complete the right: for the money was not to be due, until demand after staking the timber in the river. The parties, therefore, obviously deemed the contract on the part of the plaintiff executed by the staking of the logs in the river, and the defendant’s agent sent for them as being his property, there, and they were so found. The defendant’s vessel had arrived in the port of Plymouth to take away the timber on *238the morning of the 12th July; the timber all marked and measured was then ready to be put aboard; a storm arose that day, and, by 3 o’clock, the timber was lost in conseqUence 0£ storm. It is a hard case, but we think that the loss must fall on the defendant, as he was then the owner of the property.

Per Curiam, Judgment affirmed.