Harris v. . Pratt

17 N.Y. 249

• Court: New York Court of Appeals
• Decided: June 5, 1858
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The general rule in this class of cases is that while the goods remain in the possession of persons concerned in their transportation to the place of destination named by the purchaser, they may in the event of his failure be reclaimed by the seller. It is not material whether the person in whose possession they are when the seller interposes his claim be a carrier, a warehouse keeper, a wharfinger, packer or other depositary, or an agent for the purpose of forwarding, nor by which of the parties to the sale he was employed. He may be the agent of the purchaser, designated, paid and employed by him, yet if the purpose of his employment is to expedite the property towards its destination, or to aid those engaged in forwarding it, the seller's right to stay the final delivery continues. But, however clearly the general principle may be stated, the circumstances of commercial dealings are so various that cases are apt to arise in which its application is a matter of extreme difficulty. When the seller attempts to claim the goods the question is whether they have arrived at the end of their transit, and this usually depends upon the further question whether the party in whose hands they are found is acting in the character of an agent for transportation, or as the agent of the purchaser, holding them simply for his use unconnected with the business of forwarding them. It sometimes happens that the seller delivers goods sold on credit immediately to an agent of the purchaser, or that, as in the present case, he sends them a part of the way to their final destination, and they are delivered to such agent of the buyer. When they have been so delivered according to the vendee's direction, either immediately upon the sale or after being carried a part of the distance, the question arises whether the seller retains a right to stop them on account of the failure of the purchaser. Under certain circumstances the depositary in these cases is considered as the general agent of the purchaser, and the goods when in his hands are adjudged to be virtually in the possession of such purchaser and not in transitu; while under a state of facts somewhat different the person into whose custody they thus came is regarded as an agent for expediting them, and the right of stoppage continues until they come to the purchaser's hands at his place of business, or at some other place where he has directed them to be sent. The question is within which of these classes the present case falls. To resolve it we must look carefully into the several cases which have been determined upon that distinction.

In Dixon v. Baldwen (5 East, 185), the goods were sold on credit by a cotton spinner at Manchester to Battier Son, merchants of London, but they were directed to be sent to Metcalf Co., of Hull, for the purpose of being shipped to the correspondents of the Battiers at Hamburgh, and by these correspondents sent to the persons for whom the goods were intended. They were reclaimed by the sellers while in the hands of Metcalf Co., awaiting orders from Battier Son, who had failed. Lord ELLENBOROUGH, C.J., and a majority of the Court of King's Bench (GROSE, J., alone expressing a different opinion), held that the transitus was at an end. The chief justice remarked that "the goods had so far gotten to the end of their journey that they waited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and that without such order they would continue stationary." If the final destination of the goods had been Hamburgh the case would have closely resembled the one before us. But it is to be remembered that they were to be shipped to Hamburgh for distribution, by the correspondents of the Battiers at that port, to other parties not named, and who and their residence were doubtless unknown to the seller. It is plainly inferable that these London merchants were engaged in selling and forwarding goods purchased by them in England to various ports in northern Europe through the port of Hamburgh. It did not enter into the dealings between the sellers and the purchasers in England that the former should be made acquainted with the names and residences of the buyers' customers on the continent. Their information was simply that the Battiers purchased for exportation to the continent through Hamburgh. To enable them to carry on that trade the sellers were to send the goods to Hull. Hence Lord ELLENBOROUGH says that they waited at Hull for the sellers to communicate to them another substantive destination. It was not the same destination which had been mentioned to the sellers, but other commercial adventures which it did not enter into the views of the parties to the sale to confer upon; the manufacturers having no concern with them.

In Leeds v. Wright (3 Bos. Pul., 320), the goods were purchased of the plaintiff at Manchester by one Moisseron, in the name of Le Grand Co., of Paris, for whom he was general agent in London. The seller, by Moisseron's directions, sent them to the house of the defendant, a packer in London, where some of them were unpacked and sent away and the remainder repacked. Moisseron had authority to send the goods to Paris, Holland or Germany, or any other market as he should think most beneficial. While the balance of the goods were at the packer's Le Grand Co. failed, upon which the plaintiff demanded the goods. It was held that the transitus had ended. Lord ALVANLEY said: "These goods were not sent to the defendant, the packer, to be delivered by him to the house of Le Grand Co., at Paris, but they were sent to Moisseron, the agent of that house in London, and were there to await his disposal, he being invested with authority to send them to such market as he should think most advisable. Indeed, Moisseron might if he had so pleased have made London the place of their ultimate destination, and have disposed of the goods there." The further voyage here was entirely contingent, and cannot be said to have at all entered into the contemplation of the parties to the sale. If the transitus did not end in London it is difficult to say that it would have terminated until the property had reached the parties to whom it should be ultimately consigned by the first purchaser or his agent, wherever they might reside.

Valpy v. Gibson (4 Mann., Gra. Scott, 837), is another case strikingly like the one before us in some of its circumstances, but yet I think distinguished from it in a material particular. The sellers were Gibson Co., who had places of business at Leeds and at Manchester. The purchaser was Edward Brown, a general merchant at Birmingham, who made the purchase to fill an order he had received for goods to be shipped to Valparaiso. The sellers forwarded the goods, by the purchaser's directions, to certain shipping agents at Liverpool. They were put on board a vessel bound for Brazil, but were relanded by the purchaser's authority and sent to the sellers' house at Manchester to be repacked in different parcels. Before the packing was completed Brown failed, and the sellers claimed the goods under the law of stoppage in transitu; but it was held that they had not that right. If Brown had been a dealer living at Valparaiso, and had purchased the goods to be sent to himself there, though the sellers were to deliver them to the shipping agents, and the latter to receive their directions as to the shipment from other parties than the sellers, a different character would, I think, have been attributed to the voyage from Liverpool to Valparaiso. In the actual circumstances that might well have been considered a fresh commercial adventure, having no connection with the previous sale. The purchaser residing in the immediate vicinity of Liverpool may very properly be regarded as saying to the sellers, send the goods to my agents at Liverpool, and that, so far as we are concerned, will be a delivery to me. Brown it is true, transmitted to the sellers the order he had received to purchase goods to be sent to Valparaiso, but this was rather with a view of obtaining the kind of goods ordered, than because their destination was otherwise material to the sellers.

In Rowe v. Pickford (8 Taunt., 83), the facts were that Lange, a bankrupt, whose assignees the plaintiffs were, was in the habit of purchasing Manchester goods and exporting them to the continent on or shortly after their arrival in London. The goods in question were purchased of one Chaffe, a Manchester manufacturer, who addressed them to the bankrupt in London and delivered them to the defendants, who were carriers between Manchester and London and had warehouses at each of those cities, and who transported them to London; and while they were in their storehouse there Lange committed an act of bankruptcy. Chaffe stopped their delivery to the bankrupt, and the assignees thereafter brought this action against the carriers. It was shown that the bankrupt had no warehouse of his own, but his goods arriving at the defendants' warehouse were suffered to remain there until he had an opportunity of shipping them, when he gave the shipping agents orders for them, who on taking them paid the charges of the carriers. The bankrupt's clerk had seen these goods after their arrival, and had directed the carriers not to let them go without an order. The court held that the goods had reached their final destination and that the transitus was at an end. The plaintiffs accordingly had judgment.

These are the most prominent of the cases relied on by the defendant's counsel. There are several others in which it was held that the transit had terminated though the goods had not actually reached the purchaser's hands at the place of their destination. (Scott v. Pettit, 3 Bos. Pul., 469; Ellis v. Hunt, 3 Term R., 464; Dodson v. Wentworth, 4 Mann. Gr., 1080; Wentworth v. Outhwaitoe, 10 Mees. Wels., 436.) It had been said by judges in some of the earlier cases that the right of stoppage continued until the goods had reached the corporal touch of the consignee. But it was afterwards said that this expression was figurative. The cases last cited are illustrations of the doctrine that if the person into whose hands the goods come does not receive them as a carrier or for the purpose of expediting their further transportation but simply as the agent of the purchaser for his use for general purposes unconnected with transportation, it is virtually the possession of the purchaser himself.

I have now to notice some cases of the other class, in which it has been held that the right of stoppage continued until the goods had reached their final destination, though before that they had been delivered to an agent of the purchasers. Stokes v. La Riviere is reported by LAWRENCE, J., in his opinion in Bohtlingk v. Inglis (3 East, 381). The goods were purchased in London, personally, by a French merchant residing at Lisle, but who was temporarily in London, and were delivered to the defendants, who do not appear to have been forwarders, to be sent to the purchaser at Lisle. The defendants sent them to their correspondent at Ostend, who informed the purchaser that they waited his directions. The purchaser failed, and the goods got back into the hands of the defendants, and at this point the seller reclaimed them and the question arose. The defendants claimed that on the delivery to them the property became the purchaser's. Lord MANSFIELD, before whom the case was tried, held that the vendor had a right to the goods. He said that the seller could stop them "in every sort of passage to the hands of the buyers." This is a strong case in favor of the right of the vendor. The purchaser's own agents, who were not themselves carriers, took upon them the care of expediting the goods; yet, as they were actually in a course of transportation to the owner, though under arrangements which he had made, it was considered that the right to stop them existed.

In Coates v. Railton (6 Barn. Cress., 422), the sellers, the plaintiffs in the action, were manufacturers at Manchester. There was a house in London trading under the name of Butler Brothers. The members of this firm had also a house in Lisbon, under the firm of Butlers, Krus Co.; Krus not being a member of the London house, but the other partners of the two houses being the same. The defendants were commission agents resident at Manchester. The course of dealing was for the Lisbon house to send their orders to the defendants through the London house, and the defendants made the purchases in the name of the London house, and forwarded the goods to Lisbon by the way of Liverpool; and the sellers thereupon drew for the price upon the London house, at three months. The goods in question were purchased by the defendants of the plaintiffs, pursuant to this course of dealing, in the name of the London house, the defendants informing the plaintiffs that they were to be sent to Lisbon as on former occasions. They were delivered to the defendants, who were to forward them to Liverpool; but, while they were in the defendants' warehouse, both the firms in London and Lisbon failed. The plaintiffs then demanded the goods, but the defendants refused to give them up. Lord TENTERDEN, C.J., before whom the case was tried, was of opinion that as Lisbon was the ultimate destination of the goods, they continued to be in transitu while they were in the warehouse of the defendants, and that the plaintiffs therefore had a right to stop them. On a motion to set aside the verdict, Lord TENTERDEN said that the goods were in fact purchased for the Lisbon house, though in the name of the London firm. He laid stress upon the fact that the defendants were packers and warehousemen as well as general agents. If they had been merely warehousemen, he said, the right of stoppage, at any time before the goods reached Lisbon, would have been clear, and he thought that the fact that they were general agents did not make any difference.

BAYLEY, J., examined Dixon v. Baldwin, Leeds v. Wright, and Rowe v. Pickford, and said that the principle to be deduced from these cases was that the transitus was not at an end until the goods had reached the place named by the buyer to the seller as the place of their destination. Here, he said, the place so named was Lisbon.

The case under review is, I think, stronger in favor of the right of stoppage than the one referred to. Edwards, Sanford Co., were agents to facilitate the transportation, and they had no other character. The defendants in the case referred to were, as warehousemen, connected with transportation, but they were also the agents for purchasing, and it was equivocal whether they received the goods in one or the other of these characters. In the case under examination the purchase was made in the name of the Nottingham house, and in the one cited it was in the name of the London house; the payments were to be made by bills on these houses respectively; but the goods were bought in both cases for shipment to known parties at a given foreign port which was their ultimate destination, and that destination was mentioned to the sellers. As to the consideration that the goods in the present case were for a few days stationary in the hands of the shipping agents at Liverpool, awaiting orders for shipment from the Halls of Nottingham, this was not on account of any uncertainty as to their eventual destination, but was simply a delay arising out of the nature of the business which left to the Nottingham house the selection of the vessel by which they were to be sent. The agents of the purchasers in Coates v. Railston had at least equal authority to direct the time and manner of the transportation which J. J. Hall had in the case under examination; and I am of opinion that in the English courts the determination of the present case would be governed by the judgment in the one referred to. The great authority of Lord Tenterden upon questions of commercial law gives additional weight to the precedent, as does the fact that the case was decided subsequently to those upon which the defendants place their greatest reliance and that the latter were examined and distinguished. Coates v.Railston was followed in Nicholls v. Le Feuvre (2 Bing.,N.C., 81,) where goods destined for the Island of Guernsey were sent by the vendor to a shipping agent at Southampton and were reclaimed after delivery at that port, the court sustaining the vendor's claim; and in Jackson v. Nichol, (5 id., 508). In that case goods were purchased by a London merchant at Newcastle-upon-Tyne. The seller gave the purchasing agent of the vendee, at Newcastle, an order upon the person having charge of the goods, and the agent, by means of the order, himself caused the goods to be put on board ship and consigned to the purchaser in London. Lord DENMAN, C.J., said that the order was only a link in the chain of machinery by which the property was put in motion and in the course of transmission from the seller's premises in Newcastle to the buyer's in London. InAguirre v. Parmelee (22 Conn., 473) the Supreme Court of Connecticut applied the principle of these cases to one were the circumstances where much more unfavorable to the vendor than those of the case before us. Cotton was bought of the plaintiff in New-York, through a broker employed by the purchasing agent of a manufacturing company, the place of business of which was at Enfield in Connecticut, and the plaintiffs, the sellers, were given to understand that it was wanted for consumption there. The plaintiffs gave the servant of the broker an order on the public store of the custom house, where the cotton was stored, and by means of this order the agent sent the cotton off by rail-road consigned to a different manufactory than the one by which it was purchased. The vendees failed and the plaintiffs stopped the cotton in the cars. For the defendant it was insisted that the giving of the order, the cotton being obtained under it, was a full and complete delivery to the purchasers. But the court regarded the purchasing agent as acting also in the business of expediting the goods, and they held the stoppage to be warranted.

The cases upon this doctrine in our own courts are in consonance with the foregoing authorities, though they do not present any striking illustration of the particular distinction involved in this case. (Buckley v. Furniss, 15 Wend., 137;Hitchcock v. Covell, 20 id., 167; S.C., in error, 23id., 611.) The Supreme Court of Pennsylvania hold that where goods are imported from a foreign country in the vendee's own vessel, there is no right of stoppage in transitu; the delivery to the master being considered as virtually a delivery to the vendee, though the master, in form, sign a bill of lading. This judgment depends upon special circumstances, and does not conflict with the opinion we have arrived at in this case, and it is unnecessary to say whether we should approve it or not.

In applying the principle of these last adjudications to the particular facts in this case we cannot consider the sending of the goods by the plaintiffs to the shipping agents at Liverpool as a full and final delivery of them to the purchasers. We regard what was done by the Halls of Nottingham, in giving directions to the shipping agents, to have been in aid of the general purpose of sending the goods to New-York. The partner at Nottingham, though in law one of the purchasers, acted in regard to these goods as an agent of the house at New-York in facilitating the transportation to that city. During the short time the goods remained in the hands of these agents, before the directions came from Nottingham, they could not be said to be "awaiting, new orders from the purchaser to put them again in motion, to communicate to them another substantive destination" in the sense in which that language was used by Lord ELLENBOROUGH, in Dixon v. Baldwen. New-York was the destination contemplated from the beginning. It was the one named to the vendor, and there was no thought of diverting the goods from that point, at any time or by any person. They were awaiting a new impulse only in the sense in which that may be predicated of freight in transitu which is temporarily at rest while arrangements are making to send it forward on the journey on which it was originally embarked.

We are of opinion, therefore, that the transitus was not determined at Liverpool.

When the plaintiffs exerted their right of stoppage at New-York, the property was in the hands of the carriers on board their vessel, and subject to their lien for freight. All that had been done by the defendants before such reclamation (if indeed they had done anything whatever), was to make an entry at the Custom-house. There is no authority for holding that formality to be equivalent to the delivery of possession, and it is not in its nature the act of taking possession. In Mottram v. Heyer (1 Denio, 483; S.C., 5id., 629), the freight had been paid and the goods landed and placed in the public store, the duties being unpaid, yet the chancellor, in giving the prevailing opinion in the Court of Errors, held that the goods were still in transitu.

I think the judgment should be affirmed.