Wigton v. Bowley

130 Mass. 252, 1881 Mass. LEXIS 61

• Court: Massachusetts Supreme Judicial Court
• Decided: January 17, 1881
• Status: Published

Opinion

Colt, J.

Upon the agreed facts, the court below was justified in finding that the property in the flour was transferred to Fenno, the purchaser, when it was delivered for transportation to the railroad company in Michigan.

It appears that Fenno, having obtained from the plaintiffs the price asked for their flour delivered on board the cars, ordered a car-load at the price named, and authorized the plaintiffs to draw on him for the amount at ten days’ sight, at the same time giving references to other parties as to his pecuniary standing. The plaintiffs took time to satisfy themselves as to his responsibility, and then delivered the flour on board the cars, directed to Fenno at Boston, and consigned to him. The receipt given by the railroad, sometimes called the shipping receipt or bill of lading, was taken in his name. • These facts sufficiently show that the plaintiffs did not intend to retain their hold on the property, after it was taken by the carrier, as security for the payment of the price.

In the sale of specific chattels, an unconditional delivery to the buyer or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or ifot, is sufficient to pass the title, if there is nothing to control the effect of it. If the bill of lading or written evidence of the delivery to a carrier be taken in the name of the consignee, or be transferred to him by indorsement, the strongest proof is afforded of the intention to transfer the property to the vendee. Merchants’ National Bank v. Bangs, 102 Mass. 291. If the vendor intends to retain the right to dispose of the goods while they are in course of transportation, he must manifest that intention at the time of their delivery to the carrier. It is not the secret purpose, but the intention as disclosed by the vendor’s acts and declara tians at the time, which governs. Foster v. Ropes, 111 Mass. 10. Upton v. Sturbridge Mills, 111 Mass. 446. Where there is conflicting evidence as to intention, the question is for the jury. It cannot be disposed of as matter of law, unless the evidence will justify a finding but one way. National Bank of Cairo v. Crocker, 111 Mass. 163. National Bank of Chicago v. Bailey, 115 Mass. 228. Alderman v. Eastern Railroad, 115 Mass. 233.

In the case at bar, the fact that the shipping receipt was not delivered to Fenno, but was sent with the draft to a bank in Boston, is not conclusive evidence, as against the rights of the consignee, that the plaintiffs intended not to part with the title. It was no part of the contract of sale. It was given in the name of Fenno, and could not be transferred by the plaintiffs so as to change title in the property without his indorsement. What passed between the plaintiffs and the bank in Boston, not communicated to Fenno, cannot affect his rights.

It is not shown that the acceptance or payment of the draft was a condition precedent to a change of title; and the finding of the court below cannot be disturbed.

Judgment affirmed.