Barrow v. West

40 Mass. 270

Opinion

Wilde J.

delivered the opinion of the Court.

Footnotes

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* This is an action of assumpsit brought to recover the balance of an account, two charges in which only are in dispute between the parties.

The plaintiffs, in stating their account, have debited the defendant with the sum of $3343-96, paid.by them to Timothy Wiggin of London. This payment was made in pursuance of a judgment of a court in Antwerp, in a process of foreign attachment, brought by Wiggin against the defendant, and in which the plaintiffs were adjudged his trustees in the amount by them paid, and with which the defendant is now debited. This payment was compulsory. The court at Antwerp had jurisdiction of the action, and their judgment is conclusive as to all matters of right and title by them decided. Story on Conflict of Laws, § 592 ; 4 Cowen, 520 ; Holmes v. Remsen, 20 Johns. R. 229 ; 13 Mass. R. 153. This decision is conformable to the Code Napoleon, Art. 1690, which appears by the evidence to have been in force in the Netherlands.

The only objection to this charge is, that the plaintiffs should not have credited the defendant with the freight and cargo of the brig Cambridge, as the same had been before assigned by the defendant to Merrill and Upton ; and if they had not so credited the defendant, no balance would have been due from them to him. This objection would have been well founded, if the plaintiffs had, before the judgment, received notice of the assignment. But they had received no such notice, and were, therefore, clearly liable to be charged as trustees. The objection however, if well founded, is immaterial, for if the amount of the cargo and freight of the brig Cambridge was improperly credited to the defendant, a larger balance would be due to the plaintiffs, than that which is now claimed.

The only remaining question relates to the other item with which the defendant is debited, namely, the sum of $ 2500, paid by the plaintiffs to Merrill and Upton, the defendant’s assignees.

This sum was recovered in an action brought by them against the present plaintiffs for the recovery of the proceeds of the cargo and freight of the brig. The plaintiffs did not defend that suit to final judgment, but were defaulted, and judgment was entered by consent for the sum with which the defendant is now debited.

The defendant’s counsel contend, that the payment of this sum was voluntary, and that the plaintiffs paid it in their own wrong; that the assignees had no right of action against them ; that, by the delivery of the cargo by the master to the plaintiffs, they acquired a valid title thereto, although the bill of lading was not by him indorsed ; or at least, that they acquired a lien on the property, and had a right to appropriate the proceeds of the sale to the extinguishment of their demand against the defendant ; and that, as this appropriation was in fact made, and their demand legally discharged, they were bound to defend the suit against them brought by the assignees, as they lawfully and successfully might have done. On the other hand, the plaintiffs’ counsel contend, that they were liable in the suit brought against them by Merrill and Upton ; and that, whether they were so liable or not, they were not bound to defend that suit, as the assignment was valid against the defendant.

As to the first point, it is a well established principle, that a sale of a vessel and cargo abroad at the time of the sale, is valid, liable, however, to be set aside by the creditors of the vendor, in case the vendee should neglect to take possession on the return of the vessel, and subject also to any lien which might afterwards be lawfully created by the master of the vessel before notice of the sale. 6 Mass. R. 422 ; 12 Mass. R 54 ; 1 Pick. 389 ; 2 Pick. 599 ; 3 Pick. 495 ; 1 Peters, 386, 445. In the lattei case (Conard v. Atlantic Ins. Co.) it is laid down as a well settled principle, by Story J., that although, strictly speaking, no person but the consignee of a cargo can, by an indorsement of the bill of lading, pass the legal title to the goods, yet if the shipper be the owner of the goods, and the shipment be on his own account and risk, he may, by an assignment on the bill of lading, or by a separate instrument, pass the title, and it will be good against all persons, except purchasers for a valuable consideration, without notice, by indorsement of the bill of lading by the consignee ; and that such an assignment by the owner passes the legal title against his agents, factors, and creditors, in favor of the assignee. The doctrine thus laid down appears to be supported by the current of the authorities. It does not militate against the case of Lanfear v. Sumner ; for there the goods were not at sea at the time of the sale, though they were supposed to be so by the parties.

To apply these principles to the present case, it may well be doubted, whether the plaintiffs acquired any lien upon the cargo, which could be set up against the title of the assignees, excepting for the amount for which they were held liable in the process of foreign attachment. The cargo was specially trans ferred to Merrill and Upton by the defendant, for the benefit of his creditors, by an assignment on the bill of lading ; and the bill of lading was not indorsed over to the plaintiffs by the master, who was the consignee. If they had had notice of the assignment at the time of the delivery of the goods, they could have acquired no lien which could be set up against the assign ees. They have suffered nothing for want of notice of the assignment. They have given no new credit to the defendant, nor made any new advances on his account except by the payment to Wiggin ; and for that they are entitled to reimbursement out of the proceeds of the sale of the goods ; so that it seems immaterial, whether they had notice of the assignment before or after the sale.

But it is not material to decide this point; for if the plaintiffs had any lien on the goods, they had a right to waive it, and were under no" obligation to set it up in defence of the action brought against them by the assignees. The question of notice to the plaintiffs, of the assignment, does not affect its va lidity in respect to the defendant. He cannot dispute the validity of his own assignment. The property assigned constituted a fund for the benefit of the defendant’s creditors; and if he, by contending with the plaintiffs, could have withdrawn any part of the fund from the trust, it would operate very much like a fraud upon his creditors. The assignment was equivalent to an express order of the defendant on the plaintiffs to pay over to the assignees the proceeds of the property assigned. We think therefore the plaintiffs are entitled to recover the amount paid by them to the assignees, with interest from the time of payment.

Judgment for the plaintiffs.

Shaw C. J. and Putnam J. did not sit in the case.