15 Wend. 137 | N.Y. Sup. Ct. | 1836
By the Court,
The vendor, in the case of a sale on credit, may resume the possession of the goods while they are in the hands of a carrier or middle-man, in their transit to the consignee or vendee, on his becoming bankrupt or insolvent. In this case the goods had neither reached their
Another ground taken by the defendant’s counsel is, that the plaintiff sold the goods with a full knowledge of the situation of Titus, and that the sale was consequently absolute. The sale was no doubt absolute, whether the plaintiff knew that Titus was insolvent or not; and so are most sales, where the vendor afterwards exercises the right of stoppage in transitu. The right of the vendor to resume the possession of
If the defendants intended to rely on the attachment, they should have given it in evidence on the trial. Jenner v. Joliffe, 6 Johns. R. 9. But if the attachment had been duly proved, it would not have constituted a good defence. The defendant Furniss, as an attaching creditor, could have no better right to the goods than Titus had himself. He might, by legal process, acquire a priority over other creditors, who were less diligent, and thus secure his debt; but he could not divest a right already existing in the plaintiff. The process does not proceed on the ground of defeating a prior right in a third person, but on the ground of acquiring such interest in the property attached as the debtor had himself. If the levy of an execution, or the service of an attachment against the vendee, were allowed to defeat the claim of the vendor, the right of stoppage in transitu would be of little value; for in this state, judgments and attachments not unfrequently furnish the first public evidence of the insolvency of a trader. In Oppenheim v.
Another point made on the part of the defendants is, that there was an unconditional delivery of the goods, and that the vendor could not afterwards exercise the right of stopping them in transitu. It may be conceded that the title to the goods passed to the vendee, when they were forwarded pursuant to his order ; that the delivery to the carrier was for most purposes a delivery to the purchaser, and the loss of the property if it had been sunk or destroyed, would have fallen on him. Still it was only a constructive, not an actual delivery to the vendee ; and such interest as he had in them was subject to be defeated, in case of his insolvency, by the exercise of the vendor’s right to stop the goods before they came to the actual possession of the purchaser. Ellis v. Hunt, 3 Durn. & East, 468, per Buller, J. Stokes v.LaRiviere, and Hunter v.Beal, before Lord Mansfield, cited 3 Durn.& East, 466. There are cases where the delivery of the goods to a third person for safe custody, for disposal on the pari of the vendee, or to await his orders as to the place of destination, has been held equivalent to an actual delivery to the vendee, and that the vendor’s right
But the ground on which the defendant’s counsel seemed principally to rely, was, that thetransitus of the goods was'at an end when they reached Green’s warehouse at Plattsburgh. The order for the iron did not specify the mode in which it was to be forwarded, but it seems to have been understood that the plaintiff was to follow the directions contained in the previous order for a quantity of steel. The iron was accordingly marked, and directed to Titus at Malone, to the care of Thomas Green, Plattsburgh, and delivered to the carrier. The mode of transportation was, from Troy to Whitehall by the canal, from thence to Plattsburgh by vessels on Lake Champlain, and from that place to the residence of the plaintiff t'he transportation was over land. Plattsburgh was only one of the stages, not the terminus of the journey ; and Green was as much a middle man between the vendor and the vendee as was the master of the canal boat at Troy, or the captain of the sloop Napoleon on lake Champlain. The warehouse-man was not the agent of Titus for any other purpose than that of storing the goods, and the goods only rested at that place for the' purpose of changing the mode of transportation. They were not to remain at Plattsburgh until the vendee should put them in motion in a new direction; their ultimate destination had already been fixed by the vendee, and that destination they had not reached. The transitus was > therefore not at an end,, and in such a case the vendor clearly had the right to resume possession of the goods. Coates v. Railton, 6 Barn.& Cress. 422. Hodgson v. Loy, 7 T. R. 435. The cases cited for the defendants are plainly distinguishable from the one before the court. Dixon v. Baldwin, 5 East, 186, was decided on the ground that “ the goods had so far gotten to the end of their journey, that they waited for
The nonsuit must be set aside, and a new trial granted ; costs to abide the event of the suit.