Brown v. Wiggin

16 N.H. 312 | Superior Court of New Hampshire | 1844

Parker, C. J.

This is a very plain case. The rights of the parties depend upon the question whether the agreement for the consignment of the goods was, at the time of the attachment, an executory or an executed agreement. The goods at the time of the manufacture were the property of the Mechanics Company, notwithstanding the advances made by the plaintiff'. There was no agreement by which the property could be held to be vested in the plaintiff. They were to be consigned to the plaintiff' for sale on commission. This gave him no property in the goods until the agreement was executed and the consignment perfected.

To accomplish this, delivery was necessary either to the plaintiff or to some one for him.

Applying these principles, it appears that four bales of the goods in question were delivered to the plaintiff’s clerk before the attachment was made. This was an execution of the agreement thus far. The fact that they were sent forward at the expense of the company along with the others, is not a revocation or retraction of the delivery. It was consistent with the nature of the transaction, and there is nothing to show a fraud upon creditors.

The residue of the goods claimed were never delivered to the plaintiff'. The agreement remained executory as to them up to the time of the attachment. The delivery on board the packet for the purpose of being sent to Boston, there to be delivered, not to the plaintiff’s agent, but to the agent of the Mechanics Company, who was entrusted by the company with the duty of forwarding them to the plaintiff, was not an execution of the contract or a delivery to the plaintiff, notwithstanding his name was marked upon the bales. If the goods had been delivered on board the packet at Dover, with authority for the master of the packet to deliver to the plaintiff', or even to deliver to another carrier at Boston for the purpose of being delivered ' to the plaintiff, the case might have been different. The carrier might then have been regarded as the plaintiff’s agent, the authority being to deliver to him, and the possession held for him. Sumner v. Hamlet, 12 Pick. 76. But the possession of a carrier whose authority was to deliver to an agent of the company, can not be regarded as the plaintiff’s possession. Baker v. Fuller, 21 Pick. 318.

Judgment for the plaintiff for the four hales, and for the defendant as to the residue.