89 Mass. 341 | Mass. | 1863
1. The first objection made to the plaintiffs’ recovery is, that the property in the oil never vested in them. The evidence showed that the plaintiffs agreed to buy a quantity of oil, not precisely determined, but within certain limits, at a price fixed, to be delivered in Boston ; and the owners of. the oil agréed to sell it to them. The specific quantity not being settled, nor the oil itself separated and distinguished, this did not constitute a complete sale, but only a contract to sell. But in pursuance of this contract the owners of the oil sent a quantity by railroad to Boston, consigned to themselves, a part of it being also directed to the care of A. Cushman. They notified the plaintiffs that they had sent it, and gave an order for its delivery to the order of one of them, and the plaintiffs paid for it. There was thus an agreement .of the parties that this oil should be the property of the plaintiffs; it was sent to the place at which, by the contract, it was to be delivered; and the order
2. If the defendants delivered the oil to a person who had no right to receive it, and thus put it out of their power to deliver it to the consignee or owner, this was in itself a conversion, and the plaintiffs can maintain an action to recover its value. Devereux v. Barclay, 2 B. & Ald. 704.
3. The marking of the oil to the care of A. Cushman, and the custom to deliver goods thus marked only to his order, did not justify the defendants in delivering the oil to a person who was not the owner or consignee, although Cushman ordered it to be done. The evidence showed that goods were marked' to his care in order that he might attend to the payment of duties, and not allow them to be delivered until the duties were paid; and it did not show that he had any general charge or consignment of the goods, such as to authorize him to dispose of them or change their destination. The oil was sent to the consignees, “ to the care” of Cushman, only that Cushman might see to the discharge of the custom-house requirements, and permit the delivery when these should be complied with; and it appears that this limited authority was known to the defendants, both from the nature of his employment and from their own action in the premises. The defendants, as well as Cushman, endeavored to find the consignees; and the oil was delivered to Page & Sons from the mistaken supposition that they owned it, and not from any idea that Cushman had any discretion to exercise in regard to its disposal. There must therefore be
Judgment on the verdict.
