Page:Federal Reporter, 1st Series, Volume 4.djvu/901

 HOMASS V. NEWTOS. ^887 ihat such words are necessary to the preservation of the Tendor's property. Compare Eosc v. Story, 1 Pa. St. 190; Becker v. Smith, 59 Pa. St. 469; Enlow v. Kleim, 79 Pa. St. 488. I do not regard the distinction a Sound one, because ihe transaction itself creates a bailment, and there is no good reason wliy one set of words rather than another should be used to express the idea that the general property remaina in i;h6 original owner, provided the idea is adequately expressed. I conclude, therefore, that Eobb & Leavitt did not convey An indefeasible title to the defendants. The referee finds, as a fact, that the acceptances were not iaken in payment of the account, and the memorandum on the account confirms this finding. They can, then, have no •effect as a waiver of the plaintiff 's ■ rights. The defendants stand no better than the original' parties in this respect,; because the plaintiff had no knowledge vihen he took the acceptance that the defendants had any interest in the mat- ter. It was "the implication of the contract that ail the legs were to be taken to Hartford for manufacture, and the plain- tiff was not bound to inquire whether this had been done, and was not likely to suspect that it had not been. The other defences of waiver and estopped are ruled by the referee against the defendants, on the grounds of fact, that the plaintiff acted throughdut with prudeflôe and diligence, and realized as much as he could f airly realize, af ter a default liad been made, and was ignora.nt of the defendants' equi- ties. He is not accountable for sales made by Eoss & Lea- vitt, or the Hartford Lumber Company before they had made default, and before he had any knowledge of the defendants' position. If a demand was necessary; it was made, and the referee finds that no loss occurred to the defendants by any delay of notice, unless the court adopts a different measure of damages from that whieb he finds tobe the true one. The plaintiff argues that he is entitled' to reoover the whole value of the logs sold to the defendants. There are cases in which it is held that no credit can be given for part payment in such cases jr that as replevin may be maintained for the