Adams v. O'Connor

100 Mass. 515

Opinion

Gray, J.

This is an action of tort, in the nature of trover, for twenty-five barrels of whiskey, of which the plaintiff had received from Fowle & Company bills of lading and an invoice, to secure advances made by him on the property, and, after its arrival in Boston, had taken possession, by going to the railroad station in company with Fowle, exhibiting the bills of lading to the freight agent, and agreeing to pay the freight and storage. Fowle received authority from the plaintiff to sell the whiskey for cash, and agreed, upon such sale, to repay to him the amount of his advances, with interest, expenses and charges. Fowle afterwards sold the property for cash to the defendants, who went with him to the station, paid the freight and storage and took possession of the whiskey, but have never paid for it. The jury have found specially “that the payment of the freight money by the defendants was not a payment made in good faith in accordance with the terms of sale.” The freight and storage were paid together to the same railroad corporation, and were treated throughout the trial as a single item, and both must be deemed to be covered by the words “ freight money ” in this finding. The plaintiff afterwards called upon the defendants, exhibited his bills of lading, and demanded the whiskey, but they refused to deliver it.

Upon these facts, the law is clear. The possession of the property, acquired by the plaintiff under the bills of lading, was sufficient to maintain this action against any one who did not show a better title. Burke v. Savage, 13 Allen, 408. The defendants, as well as the plaintiff, claimed under the bills of lading, and offered no evidence of any other title in themselves, and were therefore not injured by their admission in evidence. The sale to the defendants having been found by the jury to have been for cash, was a conditional sale, and vested no title in the purchasers until the terms of sale had been complied with. Tyler v. Freeman, 3 Cush. 261. Whitney v. Eaton, 15 Gray, 225. Farlow v. Ellis, Ib. 229. The plaintiff, though having only a special property to secure his advances, might in this action recover the whole value of the goods, and would hold the surplus, beyond the amount of his own interest, for the general owner. Ullman v. Barnard, 7 Gray, 554. The amount of freight and storage, having been paid not in good faith nor in accordance with the terms of the defendants’ contract, could not be demanded by them of the plaintiff, as a condition precedent to the delivery of his property to him, and could be deducted from the value of the goods in the assessment of his damages, only because the payment enured to his benefit, by discharging the goods from a lien to which they were subject, and without payment of which he could not have obtained his property. Exceptions overruled.