65 Tex. 649 | Tex. | 1886
It is not clear from the testimony whether the ties shipped by Goodhue to the railroad company were inspected at the place of shipment or upon their arrival at Houston. There is no direct evidence upon the question, and the circumstances incidentally developed on the trial, loosely induce contrary inferences. On the one hand, whilst the contract provides for delivery at the point of shipment, it also stipulates that the ties shall remain at Goodhue’s risk until inspected and received, and Kempner testifies that there were frequent discrepancies between the bills
On the other hand, the right of the railroad company, under the contract, to receive at a reduced price such ties as did not pass inspection, might explain, consistently with inspection before shipment, the discrepancies between the bills of lading and the inspection certificates ; and the provision in the contract between Goodhue and Marx & Kempner, that the drafts of the former upon the latter should be accompanied by both the bills of lading and the certificates of inspection, is absurd as to the bills of lading, unless the inspection preceded the shipment. If the inspection takes place at Houston, the certificate of inspection shows that the ties have been shipped, received and accepted; it thus shows all that the bill of lading could be used to prove, and also that the bill of lading as the representative of property in transit, or any sort of security, is functus officio.
In this state of the record, if the court below considered that the inspection preceded the shipment, we cannot determine that the conclusion was wrong. If the fact that the ties were inspected at Houston was material to the plaintiff’s case, and the court below held that it was not proven, there is nothing to warrant a reversal of the ruling.
If the ties represented by the bills of lading delivered to Craig with the drafts described in the petition, had already been delivered by Goodhue and accepted and received by the railroad company, in accordance with the terms of the contract between them, the property in the ties had passed to the railroad company, and Goodhue had no interest in them to be transferred to Craig, and his delivery of the bills of lading could confer no lien.
In the bills of lading, the carrier contracted to deliver the ties to the railroad company, and no right or control was reserved in Good-hue. There was nothing to except the case from the operation of the general rule, that delivery to the carrier is delivery to the purchaser. The title had passed; the ownership was in the railroad company, absolutely, subject only to the right of the vendor to stop in transit— a right dependent, not upon title, but on a lien for the price (Allen v. Willis, Tyler term, 1885). This lien ceased with the transit, and if, in delivering the bills of lading to Craig, the purpose was to pass to him this lien, the lien had expired before the defendants received the proceeds of the ties.
In each of these cases, the consignee’s only interest in the property was as factor or commission merchant; his business was to sell for account of the consignor; he had no interest whatever in the property until it came into his actual possession. If the goods never reached him, he lost nothing. In the case at bar, the ties in transit belonged to the railroad company; it is the very case put by Mr. Benjamin: “Where goods are delivered by the vendor, in pursuance of an order to a common carrier for delivery to the buyer, the delivery to the carrier passes the property, he being the agent of the vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee.” Benj. on Sales, sec. 399; to same effect see Wharton on Cont., see. 877. Craig had no right in or lien upon the ties, and acquired, through the bill of lading, no superior right to the proceeds of the ties. If the intention was to create a lien, Goodhue had no right to encumber the property of the railroad company. If the purpose was to assign to Craig Goodhue’s right to the price of the ties, nothing was done to consummate this object. Ho such purpose was proved, except as the result of what could not be done—the creation of a lien on the ties.
We have discussed the case upon the hypothesis that it was held by the court below that the ties were inspected by the railroad company and received at the places of shipment. The trial was by the court, without a jury, and, in the absence of findings, if there is any theory of the facts supporting the judgment, we must assume that the court below adopted and proceeded upon that theory.
But a different result would not necessarily follow, if the proof was. conclusive that the ties were actually accepted and received at Houston, and if they could be considered the property of Goodhue whilst
In stating Craig’s rights as holder of the bills of lading, we have put his case, perhaps, more strongly in his favor than it could be sustained upon authority. If the proceeds of these ties were yet in the hands of the railroad company, and this was a controversy over them between Marx & Kempner and Craig, it is by no means clear that the prior rights of the former, under their contract with Goodhue, would not be held to be superior to the claims of Craig. The advancements made and the credit extended to Goodhue, by Marx & Kempner, were, it seems, not severally based upon the dis
Prior to the presentation of the two drafts described in the-plaintiff’s petition, the appellees had paid two drafts drawn by Goodhue in favor of Craig. One of these they deferred paying, on the ground that no certificate of inspection accompanied it, until the railroad company received the ties and passed the price to the credit of Goodhue. The other they declined to pay until. Craig-guaranteed indemnity. The payment of these drafts, under these circumstances, cannot be held to have established a course of business imposing upon appellees an obligation to accept or pay the drafts involved in this suit, which were neither accompanied by certificates of inspection, nor by Craig’s guaranty against loss.
We find no error in the judgment, and it is, therefore, affirmed.
Affirmed,
[Opinion delivered March 12, 1886.]