18 Johns. 157 | N.Y. Sup. Ct. | 1820
delivered the opinion of the Court. 1. The defendant had no lien on the salt for the freight. By the charter party, 500 dollars was to be paid immediately, and it was paid. The balance of the freight was to be paid in three equal payments, at thirty, sixty-, and ninety days from the arrival of the vessel at quarantine in the port of New-York ; and Clark, Ingersoll and Bingham, the owners of the salt, stipulated to receive the salt in fifteen days after the arrival of the vessel at the dock in New-York. "The right to retain the cargo for the freight has grown out of the usage of trade, and it does not exist, nor can it be enforced, when thé parties have expressly regulated the time and manner of paying freight, by stipulations in a charter party, and especially, if the cargo is deliverable before the arrival of the periods of payment. Such an agreement is an express re-
2. Had the plaintiffs a legal title to any portion of the salt ?
It cannot admit of a doubt, that the assignment of the bill of lading, bona fide., and for a fair consideration, will vest the legal interest of the consignee in the assignee, although the assignment be made after the arrival of the goods. Such assignment amounts to a sale and delivery, and cannot be impeached by the carrier of the goods, who has no lien on them, nor any interest in questioning the validity of the transaction. The evidence in the case furnishes full proof of an adequate consideration for the assignment of the bill of lading, although it remains very doubtful when, in point of fact, the assignment was made. The plaintiffs have recovered only for 1880 bushels of salt, and have thus affirmed the delivery to Clark & Ingersoll of 5000 bushels, and to Dodge of 2000 bushels, as a legal delivery, and have only made the defendant answerable for what remained. It is not then material to inquire on what particular day the bill of lading was assigned. That it was assigned some time in December, 1815, cannot be controverted.
If the defendant had not a right to retain the cargo for the freight, on what ground can he be justified in doing it? It is alleged that Kimberly, the defendant’s agent, proved that he was directed by Clark & Ingersoll to retain and sell the residue of the cargo for the payment of the freight. It appears that Clark and Ingersoll, & Bingham entered into the, charter party as parties of the one part, with the defendant. The whole cargo was consigned to Bingham alone. He was, therefore, the ostensible and legal owner. It is, however, shown, that Clark & Ingersoll were entitled to one half of the cargo, and they took more than their proportion. This was a surrender of their interests; and they had no right or authority to direct Bingham’s part of the cargo to be sold. The sale itself amounted to a conversion; and if it remained doubtful whether there had been a legal demand of the salt whilst it was on board the vessel, the act of sending the
Motion denied.