Reynolds v. Boston & Maine Railroad

43 N.H. 580

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1862
• Status: Published

Opinion

Bell, C. J.

The evidence in this case tends to prove that the contract between the parties was conditional that the machines should be delivered in Boston on payment of the price; and this evidence is entirely uncontradicted. ITpon such a contract it may be regarded as settled that no interest vests in the purchaser until actual delivery and the payment of the price. The payment is a condition precedent to the passing of the title. The contract is merely executory. Notwithstanding a delivery to a common carrier, to be forwarded to the buyer, the title remains in the seller, and his right to forbid a delivery by his bailee remains absolute till the payment is made. Williams v. Moore, 5 N. H. 235; McFarland v. Farmer, 42 N. H. 386; Dudley v. Sawyer, 41 N. H. 326; Ferguson v. Clifford, 37 N. H. 87; Messer v. Woodman, 22 N. H. 172; Goodall v. Shelton, 2 H. B. 316; Luey v. Bundy, 9 N. H. 301.

The plaintiff claimed at the trial, and still insists, that this is the true view of the case. If the verdict had been against him, it seems to us he might have had a well-founded objection to it. But he can take no objections to a verdict which he seeks to sustain. The defendant can not object that this view of the case was not dwelt upon by the court, because the omission is only too favorable to himself. Fowler v. Tuttle, 24 N. H. 9.

The objection taken to the charge of the court, in general terms, is not sustainable. It is quite too broad. If any part of the instructions to the jury was regarded as objectionable, the exception should be taken to that specifically.

"We propose, however, to examine some of the points raised in the argument, as it may save the parties the expense of a new trial.

The defendants contend, that to entitle the plaintiff’ to stop the goods in transitu, he must prove that the vendees became insolvent between the time of the contract and the time of the delivery; while the charge imported that the right would exist, if the plaintiff obtained the knowledge of their insolvency, or of their failure to meet their contract, between those times. They rely on the decision in Rogers v. Thomas, 20 Conn. 53, quoted 1 Pars. on Cont. 478, in which this point is explicitly held ; but we are unable to adopt this view of the law, because we do not find any decision in which the right is held to depend on a failure after the sale, until this case; because it is laid down generally in the elementary books and decided cases, as depending on the fact of insolvency, first known before the time of delivery; because the doctrine was originally equitable, and should extend to all cases falling within the same reason, and a peremptory rule which would exclude from this right a large class of cases where its benefit is quite as important .and necessary as in any other, must be supported on strong grounds of principle, or by decisions too numerous and too well supported to be shaken, and the case relied on rests on neither of these; because we are unable to discover any just or equitable reason for distinguishing between the case of the merchant here, forwarding goods upon the order of a distant correspondent, who discovers that his consignee failed the day before his order was received, and the case where he discovers that the failure occurred the day after the order was executed; and fiifblly, because we think the decisions, in which it is held that it is enough that the failure of the consignee became known to the consignor after the goods were sold or forwarded, are of greater weight.

In Snee v. Tollet, 1 Atk. 245, Hardwicke, C. J., says: “If goods are delivered to a carrier to be delivered to A, and while the carrier is upon the road, and before actual delivery to A by the carrier, the consignor hears that A, his consignee, is likely to become a bankrupt, or is actually one, and countermands the delivery, and gets them back into his own possession again, I am of opinion that no action of trover would lie for the assignees of A, because the goods, while they were in transitu, might be so countermanded.”

In Buckley v. Furniss, 15 Wend. 137, Buckley sold to Titus on credit, and subsequently discovering him to have been insolvent at the time of the sale, he had repossessed himself of the iron, under the right of stoppage in transitu. It was shown that the sale took place in 1853, and that the vendee had failed in New-York in 1829, and the vendor knew that fact, but he did not know that he had remained insolvent since; and the vendee afterward transacted business in the country, represented that he was largely interested in real estate, and the vendor had pireviously sold him goods, and been promptly paid, and was ignorant of his being much in debt, and of his securities having been protested ; ¿nd it was held that he had no sufiicient notice of his insolvency to prevent the exercise of the right of stoppage. See Hill. on Sales 218, sec. 11.

In Bohtlink v. Inglis, 3 East 380, the goods were ordered by a London merchant of a merchant at St. Petersburg. They were purchased before the 16th, the day on which the London merchant became bankrupt, and were loaded, and one part of a bill of lading forwarded on the 18th, and the goods were stopped in transitu after the consignor heard of the insolvency; and it was not suggested that the right of stopping the goods was impaired by this state of facts.

In Stevens v. Wheeler, 27 Barb. 663, Ingraham, J., says: “ From all these cases, and I can find none sanctioning a contrary doctrine, the following rules are dedueible: namely, that the vendor has a right to stop goods sold by him when he discovers the vendee to be insolvent at any time while the goods are in transitu.

The same principle is stated in the same terms in Cross on Lien and Stoppage 361; Hill. on Sales 218; Redf. Railw. 303; and see 1 Pars. Cont. 478.

It is contended that the attempt to stop the goods was made without authority. Though goods can not be stopped in transitu by a stranger, absolutely without authority, and the act of such mere stranger can not be made valid by a ratification on the part of the vendor, or his agents, subsequent to the time when the goods reach the hands of the vendee (Bird v. Brown, 4 Exch. 786), yet we regard it as settled that any agent who has power to act for the consignor, either generally or for the purposes of the consignment in question, may stop goods in transitu without any authority specially directed to that end, or empowering him to adopt that particular measure. Bell v. Moss, 5 Whart. 189; Newhall v. Vargas, 3 Shep. 93; Whitehead v. Anderson, 9 M. & W. 518; 1 Pars. Cont. 478; Cross on Lien, 364; Hill. on Sales 210; 1 Smith L. C. 907. Here the expressman had an authority to act in reference to this particular subject. He was instructed to call early upon the vendees, and collect the bill, and see that the machines were not delivered, if possible, until he got the pay. His acts are now claimed by the plaintiff to have been done by his authority, and no special ratification was needed to render them effectual. It was of no impoi'tance whether the expressman supposed he had authority or not. The question depends upon the fact of his authority, and not on his opinion.

It is said the notice given to the carriers not to deliver the goods was insufficient, because the authority of the messenger was questioned at the time. There was room for doubt whether the jury would have found that any such question was raised. But we think the defendants would be protected in a reasonable delay, for the purpose of making proper inquiries into the facts, and for allowing the claimants time to produce their authority, and to furnish an indemnity. They were bound to know their own contract, and to regard the directions placed upon the goods themselves. Both these imported that the goods were sent to the care of Murcheson & Co., not that they were sold to them. The case does not show that any inquiries were made as to the persons to whom the goods were delivered, or as to the title they had to them; and we think that, under the circumstances, they were bound to retain the goods, and a delivery after the notice given them was at their peril.

It is insisted that the notice was insufficient, because it was too late, and because a delivery should have been demanded to the messenger. The goods had been called for by the persons who claimed to be the consignees, the freight was paid by them, and a delivery check, as it is called, was given them. This wás merely a receipt for the goods to be signed by them, and left with the clerk who had charge of the goods, upon their receipt of them. They were not delivered to nor seen by the claimants. There were other things in the way of a delivery, and they were told they would be ready about five o’clock. If these constituted a delivery in law, so as to terminate the transitus, the notice given in behalf of the plaintiff' was too late. It was long held that the right of stoppage in transitu could be terminated only by an actual delivery of the goods to the consignee or his agent. Cross on Lien 370; James v. Griffin, 2 M. & W. 623; Edwards v. Brewer, 2 M. & W. 375; Ellis v. Hunt, 3 T. R. 404; 2 Kent Com. 545; 1 Smith L. C. 907. The later cases furnish some exceptions to this rule, as where the consignee calls for the goods, and the carrier agrees or consents that he will hold them for him, thus making himself his agent to keep the goods; Richardson v. Goss, 3 B. & P. 127; Scott v. Petit, 3 B. & P. 469; Molloy v. Hay, 3 M. & R. 396; Rowe v. Pickford, 1 Moor 526; Allan v. Gripper, 2 C. & J. 218; or where the consignee has been in the habit of using the warehouse of the carrier or wharfinger as his own; Tinker v. Humphrey, 4 Bing. 521; Foster v. Frampton, 6 B. & C. 109; or where the consignee claims the goods, and the carrier wrongfully refuses to deliver them, so that he makes himself liable for the goods in trover. Bird v. Brown; Walley v. Montgomery, 3 East 585. But where the goods remain in the actual possession of the carrier, without fault on his part; Crawshay v. Eades, 4 B. & C. 181; Tucker v. Humphrey, 4 Bing. 516; Holst v. Pownal, 1 Esp. 240; Lackington v. Atherton, 8 Scott N. S. 38; or in the hands of a depositary, or in the custom-house till the duties are paid; Matham v. Heyer, 5 Denio 629; Newhall v. Vargas, 13 Me. 109; Northry v. Field, 2 Esp. 613; or until necessary papers are produced; Donuth v. Broomhead, 7 Barr 381; or while the vessel is lying at quarantine; Stoveld v. Hughes, 14 East 308; there is no delivery, either actual or constructive. Goods can not be said to have arrived at their final destination, so as to defeat the vendor’s right of stoppage, while they remain in the hands of the wharfinger or carrier in that character, provided he is not the actual agent of the consignee beyond his duty as a mere wharfinger or carrier. Bertram v. Fairbrother, 1 M. & P. 528; Jackson v. Nichol, 5 Bing. N. C. 508; Atkins v. Colby, 20 N. H. 156.

There is no constructive possession on the part of the vendee, unless the relation in which the .carrier stood before, as a mere instrument of conveyance to an appointed place of destination, has been altered by a contract between the vendee and the carrier, that the latter should hold or keep the goods, as the agent of the vendee. Foster v. Frampton, 6 B. & C. 107; Whitehead v. Anderson, 9 M. & W. 508.

In the present case there is no evidence of any such agreement. The consignees were in a great hurry, and complained that the goods were not delivered to them. They asked no agreement to keep the goods for them, and no assent was given to any such agreement, if we were to assume that the agents had authority to make any. The delivery check was no special agreement, and implied none, since it was but the usual mode of doing their business. The ease comes not nearly up to Foster v. Frampton, 6 B. & C. 107, where it is said there is no proof of any such contract (to keep the goods). A promise by the captain of the vessel to the agent of the assignees is stated, but it is no more than a promise, without a new consideration, to fulfill the original contract, and deliver in due course to the consignee, on payment of freight, whieh leaves the captain in the same situation as before. After the agreement he remained a mere agent for expediting the cargo to its original destination.

A notice to the carrier not to deliver the goods is sufficient. It is not necessary that the vendor or his agent should demand a delivery of the goods to himself. Lett v. Cawley, 1 Taunt. 606; Whitehead v. Anderson, 9 M. & W. 518; Bell v. Moss, 1 Whart. 189.

It is insisted that the court, having instructed the jury that they must find a general or special property in the goods in the plaintiff, they must be presumed to have found such property, and in that case no right of stoppage in transitu exists; and that, further, this-was not a sale on credit, but for payment on delivery, and no such right of stoppage exists in that case ; that the charge that the plaintiff having obtained knowledge of the vendees’ insolvency, or of their failure to meet their contract, be or his agent might stop the goods, was erroneous. The right to stop the goods in transitu exists only in case of the insolvency of the vendees.

/~These questions all rest on a technicality. The question really is, ’ whether the plaintiff had a right to stop these goods, and not ' whether such stoppage would fall within the strict technical meaning of stoppage in transitu. Ordinarily, goods sold to an absent party pass to the vendee by a delivery to the carrier, and are at his risk, and become his property for -all purposes, except that they remain liable xto be stopped in transitu while on the way. But if, by reason of a condition precedent, as the payment of the price on delivery, they did not pass by the delivery to the carrier, but remained as they must the property and at the risk of the original owner, his right to countermand the delivery of the goods on their way would be perfect and absolute, and the proposed buyer could have no claim whatever to them, till he had paid the price ; and the carrier would be bound by an order to detain the goods on the insolvency of the consignee, or on his failure to meet his contract. The rule, therefore, laid down to the jury was the correct one, whether the case was oue of stoppage in transitu, technically speaking, or of stoppage on the way by the owner; saving that in the latter case the conditions upon which the right of stoppage in transitu depends, would have no application. But the defendants, can not complain of the omission to state that difference, if such omission occurred, because it would render the charge only too favorable to themselves.

The instruction that, to maintain the action of trover, the plaintiff must show a general or special property in the goods, was undoubtedly correct; a property, at the time of the writ brought, not at the time of the stoppage; and the jury might well find that the plaintiff, having stopped the goods, and revested in himself a right of possession till the price was paid, had a special property in them,, as the rule required.

It is contended that there is no evidence upon which the jury could be justified in finding the insolvency of Murcheson & Co.; but we think otherwise. The evidence of the contract, of the sending the goods, and the bill, tend to show that they were regarded by the plaintiff as solvent. The proof that they did not pay the bill, that they got possession of the goods without payment, and that no such parties could be found afterward, was competent evidence, from which the jury might find their insolvency, as well as their entire failure to perform the condition of the sale.

Objection is made to the general terms used by the judge in relation to the proceedings of the agents of the railroad, but we are unable to understand this language as importing that the carriers would be liable in any other case except that they had conducted improperly in surrendering the property to the consignees, to the prejudice of the plaintiffs’ rights, and to such an instruction no just exception can be taken.

As the freight for the conveyance of the property from Dover had been paid by the party who was expected to pay it, and the carriers had no further claim on that account, it was not necessary to make any tender to them.

Judgment on the verdict.