Hunter v. Wright

94 Mass. 548

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1866
• Status: Published

Opinion

Chapman, J.

The question presented by the bill of exceptions is whether the plaintiff had obtained a delivery of the tobacco to himself previous to the attachment. He had agreed to purchase it; had paid for it; and had looked at it as it was hanging to dry. But it had not all been stripped and got ready for boxing when he saw it, and, as there was something remaining to be done by Ingraham, the vendor, there was no delivery by Ingraham to the plaintiff directly. But he directed Ingraham to have it boxed and deposited with Fuller & Tucker at Northampton, who were warehousemen. This was done, and the boxes were marked “ T. Hunter.” Ingraham informed the warehouse-men that it was left there for the plaintiff and belonged to him. The defendant contends that this was insufficient, because the plaintiff did not employ them or inform them that the property was his, either personally or by some other agent than Ingraham the vendor.

A delivery of goods to a carrier designated by the purchaser is of the same legal effect as a delivery to the purchaser himself. Putnam v. Tillotson, 13 Met. 517. Orcutt v. Nelson, 1 Gray, 536. Merchant v. Chapman, 4 Allen, 362. It is not necessary that the purchaser should employ the carrier personally, or by some other agent than the vendor. We see no reason why a delivery to a warehouseman should not have the same effect. If the goods are destroyed in the warehouse, the loss falls upon the vendee In an action against him for the storage, the vendor can testify So in a suit by him against the warehouseman for negligence, or upon a refusal to deliver the goods.

The defendant contends that his position is sustained by several cases in Vermont. We do not so understand these decisions. They hold that when property is sold while it is in the hands of a third person, and it is permitted to remain in his hands, á mere notice to him of the sale by the vendor is not sufficient to constitute a delivery; while a notice by both vendor and vendee is sufficient. This is on the ground that there must be a change of possession, or something equivalent to it, to constitute a delivery. Barney v. Brown, 2 Verm. 374. Judd v Langdon, 5 Verm. 231. Pierce v. Chipman, 8 Verm. 334. Whip ney v. Lynde, 16 Verm. 579. This is quite consistent with the doctrine that a delivery to a warehouseman after the goods are purchased and paid for, who receives them to keep as the property of the purchaser, is a sufficient delivery, though he has had no communication with the purchaser. We think the verdict was right. Exceptions overruled.