5 Whart. 189 | Pa. | 1840
The opinion of the Court was delivered by
It rather seems the plaintiffs might have had recourse to F. De Lizardi & Co. on the bills accepted in advance, or by an action on their agreement to accept. It is fallacious to say there was no proof of privity between the particular parties. The consignees had given the plaintiffs a credit with that house for the very purpose of enabling them to draw on it in payment of purchases ; and the bills drawn in pursuance of it had been honoured in repeated instances; after which it would have been too late for F. De Lizardi & Co. to say they had made no engagement with the plaintiffs. They were in the predicament of a master who had recognised an authority in his servant to contract debts on his account, by previous payment of his bills. The promise to accept was doubtless made to the consignees, and not to the plaintiffs; but might not the plaintiffs, from whom a consideration moved on the faith of it, have maintained an action on it, or had the benefit of it, as a precursory acceptance ? It would seem from Smith v. Plummer, decided at the present term,
No authority has been produced for the position of their counsel, that a consignor who has means of recourse to funds in the hands of a solvent house, may not stop the goods for the insolvency of the consignee at any time before satisfaction had; nor has any sufficient reason been given why he should not. A credit with a banker is not payment, but a means of payment, more or less secure, according to the solidity of the depositary ; and the greater or less certainty of
The right of stoppage in transitu is said to be an equity; and the defendants, being invested with a prima facie title, it is said are entitled to claim as purchasers for a valuable consideration, and without notice: no part of which is founded. Though first of all sanctioned by a court of equity, it has grown by commercial usage into a legal privilege, annexed to a contract of sale ; and it is equally, but much more frequently, enforced by a Court of law. Neither are the defendants, as assignees in trust, purchasers for a valuable consideration. That proposition has been settled by Williams v. Twelves and Knowles v. Lord. Nor could the consignors, by this species of transfer, whatever they might have done by an assignment of the bill of lading, convey an unencumbered ownership, be the consideration what it might. It is a general principle of the common law, that he who has not property in a chattel, or a right to present possession of it, cannot transfer it absolutely; to which a transfer by endorsement of a bill of lading is an exception, depending on the
The objection that a special authority was necessary to empower their general agent to act in the plaintiff’s behalf, is also unfounded. Not even such a power, but a transfer of the ownership, which is usually effected by an endorsement and transmission of the bill of lading, is requisite to enable an agent to claim by action in his own name; and it seems to have been doubted in Cox v. Harden, (4 East, 211,) whether even an endorsement, without valuable consideration, were sufficient. But it is not necessary to invest an agent with the ownership, in order to invest him with the right of stoppage. Nor does it seem necessary that he should have an authority for it adapted to the particular transaction. To constitute a commercial agency, I should be inclined to think, requires not a writing under seal: and where it is general, acts done by the agent wfithin the scope of the principal’s business, bind him as effectually, or operate to his benefit as extensively, as if they were done by himself. They are treated as acts of a servant done in his master’s employment.
The remaining point is the only one which induces the judgment to pause. The countermand of the original order to deliver to the consignee, which is the usual act of stoppage, is so invariably communicated to the master, or other person in possession, that I have seen but one case in which it was communicated to any one else. It has not however been adjudged, that a countermand is the only means by which the consignor can assert his right; and it is not perceived why any other notorious act of reclamation should not have the same effect. The object of a demand is not merely to implicate the master, but chiefly to affect the consignee with notice through his person ; and to accomplish that, an open and notorious assertion of the right in any form, would seem to be equally potent and pr’oper. The consignee is bound to notice a demand on the master ; but he surely cannot complain of a demand made on himself, that it gave him direct, instead of circuitous information of the consignor’s attachment of the property by virtue of his lien. A delivery subsequent to demand on the carrier, does not defeat it; and on what ground is the consignee’s possession inoperative, in such a case, but that of surreption 1 A demand of the carrier is a countermand of the previous order to deliver; and where he is not accessible at the time, there is no reason why an equivalent for it should not be found in a countermand of the consignee’s authority to receive. If there were a specific object to be accomplished by a demand on the
Judgment for the plaintiffs.
Ante, p. 89.