Josey v. State

114 S.W. 216, 88 Ark. 269, 1908 Ark. LEXIS 163

• Court: Supreme Court of Arkansas
• Decided: November 30, 1908
• Status: Published

Opinion

Wood, J.

(after stating the facts.) This court, in Herron v. State, 51 Ark. 133, held that “the delivery of goods to a carrier, when made in pursuance of an order to ship them, is in effect a delivery to the consignee.” S'ee also cases cited in the opinion.

This is upon the theory that the common carrier is the agent of the consignee who orders the goods shipped. See State v. Carl, 43 Ark. 353, and cases cited. The rule with reference to a delivery to a public carrier being a delivery to the consignee is very carefully and correctly stated by the Supreme Court of Massachusetts as follows: “When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties or directed by the .purchaser, or, when no agreement is made or direction given, to be transported in the usual mode; or when the purchaser, being informed of the mode of transportation, assents to it; or where there have been previous sales of other goods, to the transportation of which in a similar manner the purchaser has not objected, the goods when delivered to the carrier are at the risk of the purchaser, and the property is deemed to be vested in him, subject to tiie vendor’s right of stoppage in transitu.” Wheelhouse v. Parr, 141 Mass. 787.

This is in accord with the previous rulings of the court. Gottlieb v. Rinaldo, 78 Ark. 123; Templeton v. Equitable Mfg. Co., 79 Ark. 456. ‘The result of this rule is that, before a delivery by the vendor to a carrier can be held to be a delivery to a vendee so as to vest title in the latter, there must be an agreement, either expressed or implied, that there is to be such delivery, and also that the goods are to be properly consigned to the vendee.

In the present case there was no express agreement concerning the .mode of delivery; and, as Lewis and Hamilton were not joint purchasers, there can be no agreement implied from the circumstances of the case that the delivery should be made to a carrier oonsigned to them jointly. A delivery to the carrier in that way did not constitute a delivery to either of the joint consignees, and the title to the liquor did not pass to either of them until actual delivery took place in the town of Hope.

But the proof does show that appellant received the money for thq whisky, and delivered the whisky to Lewis in Hope, Hempstead County, Arkansas. It must be held under such circumstances that appellant was the owner and vendor of the whisky. This, under Yowell v. State, 41 Ark. 355, and Blackwell v. State, 42 Ark. 275, would make the sale complete in Hope. Appellant did not show any license,'and the burden as to this was on him. Wiliams v. State, 35 Ark. 430; Rana v. State, 51 Ark. 481; Evans v. State, 54 Ark. 227.

The court was therefore correct in refusing appellant’s prayer for instruction and in directing a verdict in favor of the commonwealth. Roberts v. State, 84 Ark. 564.

The judgment is affirmed.