63 Ala. 243 | Ala. | 1879
Munter & Brother, being largely in debt, and insolvent, by an order requesting shipment to them, bought of plaintiffs, J. M. Peters & Brother, of Yirginia, twenty-five boxes of tobacco; which they accordingly sent
We do not concur in the opinion expressed in Rogers v. Thomas (20 Conn. 54), that a vendor of goods, in transit to an insolvent vendee, can not stop them on the way, before delivery, unless the insolvency of the vendee occurred after the sale to him of the goods. We think, with the Supreme Court of Ohio, that the vendor may stop the goods upon a subsequent discovery of insolvency existing at the time of the sale, as. well as upon a subsequent insolvency. If there be a want of ability to pay, it can make no difference, in justice or good sense, whether it was produced by causes, or shown by acts, at a period before or after the sale. — Benedict v. Schuettic, 12 Ohio St. 515; Reynolds v. Boston & M. R. R. Co., 43 N. H. 589; O’Brien v. Norris, 16 Md. 122; Blum v. Marks, 21 La. Ann. 268. The best definition of the right which we have seen, is that in Parsons’s Mercantile Law, as follows : “A seller, who has sent goods to a buyer at a distance, and, after sending them, finds that the buyer is insolvent, may stop the goods at any time before they reach the buyer. His right to do this is called the right of stoppage in transitu.”— Chap X, p. 60._
If, before this right is exercised, the buyer sells the goods, and indorses the bill of lading for them to a purchaser in good faith, and for value, the right of the first vendor to retake them is extinguished. — Lickbarron v. Mason, 1 Smith’s Lead. Cases, 888. Evidence, therefore, that Loeb & Brother knew, when they took a transfer of the bill of lading, that Munter & Brother were insolvent, was relevant and proper to show, in connection with other testimony, that Loeb & Brother were not hona fide purchasers. And there was no error in permitting a witness to testify what one of that firm had
The two judgments against Munter & Brother, in favor of creditors, confessed by the former before the tobacco had reached its destination, and the seizure upon execution the next day of property of Munter & Brother, by the sheriff, tended to prove their insolvency; and the evidence of those facts was, therefore, properly admitted.
The transfer of a bill of lading, as a collateral to previous obligations, without anything advanced, given up, or lost on the part of the transferree, does not constitute such an assignment as will preclude the vendor from exercising the right of stoppage in transitu. Said Bradley, Circuit Justice, in Lesassier v. The Southwestern, 2 Woods, 35: “Nothing short of a bona fide sale of the goods for value, or the possession of them by the vendee, can defeat the vendor’s right of stoppage in transitu ; and hence it has been held, that an assignee in trust for creditors of the insolvent vendee is not a purchaser for value, and, consequently, takes subject to the exercise of any right of-stoppage in transitu, which may exist against the assignor. — Harris v. Pratt, 17 N. Y. 249.” Wherefore, it was held in the latter case, that an attachment in the suit of the vendee’s creditor, of goods landed by the carrier upon a wharf-boat at the place of delivery, did not prevent the vendor from stopping them in transitu. — See, also, O'Brien v. Norris, 16 Md. 122; Naylor v. Dennie, 8 Pick. 199; Nicholas v. Lefeuvre, 2 Bingh. (N C.) 83. The doctrine is based upon the plain reason of justice and equity, enunciated in D'Aguila v. Lambert (2 Eden’s Ch. 77), that “ one man’s property should not be applied to the payment of another man’s debt.” The right itself is regarded as an; extension merely of the lien for the price, which the seller of goods has on them while remaining in his possession; which lien the courts will not permit to be superseded, before the vendee, who has become insolvent, obtains possession, unless, in the meantime, the goods have been sold to a person who, in good faith, has paid value for them, and so would be a loser by Ms purchase,' if that were held invalid. Appellants having only credited Munter & Brother on a debt previously due from them, with the price of the tobacco, have nothing more to do, in order to get even, than to debit them with the same sum, for the non-delivery of the goods in consequence of the defect in Munter & Brother’s title.
It results from what we have said, that there was no error in the charges to the jury.
Let the judgment of the Circuit Court be affirmed.