69 Md. 537 | Md. | 1888
delivered the opinion of the Court.
On the 4th of June, 1887, the firm of Symington Bros. & Co., of Baltimore, manufacturers of fertilizers, made an assignment of all their property to Mr. John Gill for the benefit of their creditors, and the question in this case is whether a cargo of South Carolina River Rock Phosphate passed to the assignee under this assignment. The question is raised hy an action of trover brought by the Farmers Phosphate Company, the vendor of the Symingtons, against Mr. Gill, their assignee, for the conversion of this property. The facts, essential to he stated, and about which there seems to he no dispute are as follows:
The contract of sale made in Baltimore on the 15th of February, 1887, by Mr. Cottman, who was the broker for both .vendor and vendees, is in these terms: “Sold to Messrs. Symington Bros. & Co. for account of Farmers. Phosphate Company. A cargo of about five (500)
“J. H. Cottman.”
The Symingtons then, on the 12th of March, 18"81, chartered a vessel to bring this cargo from Dale’s Creek, Coosaw River, S. C., to Baltimore, the charterers paying freight, &c. The vessel arrived at Dale’s Creek the latter part of April, and completed the lading of her cargo on or before the 7th of May. On this last mentioned day the master made out a hill of lading whereby he acknowledged the receipt of the cargo from the Farmers Phosphate Company to be delivered at Baltimore “unto Symington Brothers & Co., or to their assigns.” This the master delivered to the Phosphate Company who endorsed it “deliver to the order of J. IT. Cottman,” (the broker who effected the sale), and he endorsed it “deliver to the order of Symington Brothers & Co.,” and delivered it to them on the 14th of May, one week after its date. It also appears that the Symingtons insured the cargo for their own benefit.
The vessel arrived at Baltimore on the 24th of May and immediately commenced discharging her cargo at the wharf of the Symingtons, they having paid the freight thereon. As the discharge proceeded the rock was weighed, and there was also an analysis of it made by a chemist which showed that it was above the standard fixed by the contract. The discharge was
Subsequently, on the 9th of June, the Phosphate Company hy their counsel made demand on Mr. Grill, the assignee, for the property, and on the following' day the Symingtons wrote and mailed a letter to the company, enclosing their note for the cargo made out in accordance with the terms of the contract of sale, hut the company declining to receive this note, returned it to the assignee, and brought this action of trover.
Upon these facts the question is, was the title to this property vested in the Symingtons when they executed their assignment, or was it still in the Phosphate Company, the vendor ? The question is an interesting one, and has been exceedingly well argued. On the part of the appellant company it is contended, that hy the terms of the contract the sale is conditional, and that no title vested in the buyers because the condition of paying hy note or in cash had not been complied with or waived. On the other hand, counsel for the appellee deny that such is the proper construction or effect of the contract, and contend that the title passed by delivery of the cargo on hoard the buyers’ vessel at Dale’s Creek, and, if not hy such delivery alone, it
We think the law is well settled that where a buyer purchases or orders a specific quantity of goods to be shipped to him from a distant place, and the seller segregates and appropriates to the contract the specified quantity by delivering them to a vessel designated by the buyer, or, in the absence of such designation, to a common carrier, the mere fact that the contract contains a stipulation that they are to be paid for by note or in cash on arrival, does not prevent the title from passing or make either payment or arrival a condition precedent thereto. In such case the goods become the property of filie vendee, and are at liis risk from the time they are put on board the vessel. Magruder & Bro. vs. Gage, 83 Md., 344; Appleman vs. Michael & Bro., 43 Md., 281; Dutton vs. Solomonson, 3 Bos. & Pull., 584; Fragano vs. Long, 4 Barn. & Cress., 219 ; Alexander vs. Gardiner, 1 Bing. (New Cases), 671. In the case last cited there was a stipulation in the contract that the goods were to be paid for “by a bill at two months from the date of landing.” The goods were shipped from Sligo in Ireland to London, and while in transit were lost or damaged by shipwreck. In an action by the vendor against the vendee for goods bargained and sold, this term of the contract was relied on by the defendant, but Tindal, C. J., said, “the object of that stipulation was merely to fix the time of payment, and not to make the landing a condition precedent,” and added that for that point it is enough to refer to the decision in Fragano vs. Long. In this view all the other Judges concurred.
If, therefore, there was no other stipulation in the contraed, the case would be free from difficulty. But there are two other clauses introduced for the pur
In this country Mr. Newmark in his recent work on Sales of Personal Property, after stating the English rule, subjects it to the qualification that it applies in cases where there is no evidence tending to show the intention of the parties to make an absolute and complete sale, without performance of the acts of weighing ór measuring. Newmark on Sales, sec. 74. We have also American decisions, by Courts of the highest authority, which hold broadly that the performance of these acts, where provided for in the contract, is not essential to the transfer of title. Such, as we understand, it, is the decision of the Supreme Court in Leonard, et al. vs. Davis, et al., 1 Black, 476. in that case there was a sale, by written contract, of a large quantity of pine logs lying in and near a boom, which it was supposed would make about 1,444,000 feet of lumber in board measure. The contract specified one price per thousand for those logs that were afloat in the boom, and another for those on the bank and in the marsh near the boom. It was also a part of the contract that the logs should be counted, measured and scaled by the boom-master. The suit was by the vendors against the vendees upon this contract for the purchase money of all the logs. The Court below instructed the jury that the contract was executory, and that the title did not pass until the logs had been measured, but the Supreme Court- reversed this ruling and held that it was a sale without condition ; that the measurement was simply to ascertain the amount to be paid by the vendees, and that the title to the logs passed to them as soon as the contract was signed, and there had been a symbolical delivery thereunder. Again in Hatch vs. Oil Co., (100 U. S., 135,) the same Court reiterated the doctrine that where
But taking the rule with the qualification stated in Newmcwk on Sales, we find in this case abundant evidence to show that it was the intention of the parties, that the title should pass before the goods had been weighed and tested in Baltimore. The buyers chartered a vessel to bring the cargo from South Carolina to Baltimore, insured it for their own benefit, and became responsible for the freight. But what is more important, and more significant as indicating the intention of the vendor company, they had a bill of lading made out by the master as soon as the vessel was loaded at Dale’s Creek, stating on its face that the cargo was to be delivered to the vendees or to their assigns, and procured the same to be delivered to the Symingtons within a week from its date. Now, it may be true that the transmission of a bill of lading may not in all cases be absolute^ conclusive of title as between vendor and vendee, or consignor and consignee, yet the implication is almost irresistible that the motive of the vendor, when the bill is taken in the name of-the vendee, is to vest title in the latter free from all conditions. Key vs. Cotesworth, 7 Excheq., 595, and note. Asa general rule a bill of lading operates a transfer of the property to the party in whose favor it is drawn and to whom it is delivered. Citation of authority on this point is unnecessary. If the vendors in this case had wished to prevent the property from passing, and to retain the right to deal with it after shipment and while in transitu, they should by the bill of lading
Upon the whole case, therefore, our opinion is that this cargo became the property of the Symingtons from the time it was delivered on board their vessel at Dale’s Creek, and consequently passed under their deed of assignment. The case is unlike that of a sale “for on delivery” considered in Powell vs. Bradlee, 9 G. & J., 220, and we think it is also distinguishable in material facts and circumstances from that of Whitney vs. Eaton, 15 Gray, 225, so much relied on by counsel for the appellant.
It follows, therefore, from the undisputed facts of the case, that this action cannot be maintained, and consequently there has been no ruling prejudicial to the appellant, made by the Court below in its action upon the prayers.
Judgment affirmed.