10 F. Cas. 323 | U.S. Circuit Court for the District of Indiana | 1845
OPINION OF
This cause is submitted to the court, on facts agreed, substantially as follows: M'Queen and M'Kay, of Detroit, Michigan, about the 20th of March, 1844, by false pretences fraudulently procured the bank at Indianapolis, to loan to them the sum of about $11,000 in notes of the bank, payable to bearer. With part of this money M'Queen and M'Kay purchased of Hanna, Hamilton & Co. 350 barrels of mess pork, for the sum of $2,908.50, and received from them the following memorandum: “Fort Wayne, April 4th, 1844. Messrs. M'Queen & M'Kay, bought of Hanna, Hamilton & Co. 350 bbls. mess pork, to be delivered on. board of canal boats soon after the opening of canal navigation. Received payment in full. Hanna, Hamilton & Co. We guaranty the inspection of the above pork at Toledo, and the delivery on board of canal boats at this place, (Fort Wayne,) soon after the opening of canal navi
The plaintiff made the advancement under a contract that, as commission merchant, he should sell the pork and flour, and, after paying himself for his advances, commissions and expenses, pay over the balance to M'Queen & M'Kay. The attachment and proceedings thereon are admitted to have been regular, and by the statute of Indiana, goods attached may be replevied. It is admitted that in the obtainment of the loan from the bank, M'Queen & M'Kay were guilty of fraud, and that the bank on that ground might have disaffirmed the contract and brought trover for. the bank notes, or for the pork and flour which were the proceeds of the notes, before the credit on the loan had expired; but it is insisted that by suing out the attachment the bank affirmed the contract of loan, and consequently the action cannot be sustained before the expiration of the credit That trover would have-been the better form of action for the bank, as regards the pork and flour now iu controversy, there can be no doubt. But it is not probable that an action of trover could be sustained for the notes, as proof of their identity would be required. In Ferguson v. Carrington, 9 Barn. & C. 59, it was held, that where goods were purchased fraudulently, an assumpsit for goods sold and delivered, could not be sustained before the time of credit expired, though the vendor might have treated the contract as a nullity, and have brought trover immediately to recover-the value of the goods. The same case is reported . in 3 Car. & P. 457. In Hanna v. Mills, 21 Wend. 90, Yale v. Coddington, Id. 175, it was decided “that where goods were sold to be paid for by a note or bill payable at a future day, which is not delivered according to the terms of the sale, the vendor-may sue immediately for a breach of the special agreement, and recover, as damages, the whole value of the goods, allowing a rebate of interest during the stipulated credit; but that he could not maintain assumpsit on the common counts, until the credit has expired;” But in Corlies v. Gardner, 2 Hall, 345,
If a person without authority sell goods belonging to another, and receive a negotiable note in payment, the owner may waive the tort, and maintain an action against him for money had and received, to recover the proceeds of the sale. Whitwell v. Vincent, 4 Pick. 449. An action for goods sold and delivered. will lie, although payment .was to be made by a note on demand, immediately oh a failure to give such note. Loring v. Gurney, 5 Pick. 15. In Manufacturers’ & Mechanics’ Bank v. Gore, 15 Mass. 75, “the bank finding the security upon which they had agreed to make the loan, had failed by reason of the forgery of the names of the indorsers, and that they had thus been defrauded of a large sum of mon-ey, commenced this action, declaring for money had and received, although the term of credit agreed upon for the loan had not expired.” “It is a case,” the court say, “as respects the plaintiffs, of money obtained from them by misrepresentation and fraud; and we think the only question is, whether upon a loan thus obtained, although upon credit, the bargain may not be disaffirmed by the lender, and an action presently commenced for money so obtained, as had and received, in a legal view, to his use; and upon this wo have no doubt.” And they observe, “There can be no question of the soundness of the principle, or of its applicability to this action. Here the credit was obtained upon an offer of adequate security. The security was wholly worthless. The consideration for the credit, therefore, failed. and the money thus wrongfully obtained, could not for an instant be conscientiously retained. Ex aequo et bono, then it ought to be returned; and that is the foundation of the action for money had and received.”
“Indebitatus assumpsit lies to recover the price and value of goods which the defendant, by fraud, procured the plaintiff to. sell to an insolvent, and then got into his own possession; for he-could not set up the sale, because his own fraud had procured it; and the mere possession of the plaintiff’s goods, unaccounted for, raises an assumpsit to pay.” Hill v. Perrott, 3 Taunt. 274; Smedley v. Gooden, 3 Maule & S. 191; Bennet v. Francis, 4 Esp. 28. When, a sale is fraudulently procured by the vendee, he may be sued by the vendor for the value of the goods, even before the expiration of the credit agreed to be given. De Symons v. Minchwich, 1 Esp. 430; Arden v. Sharpe, 2 Esp. 523, 524; Seaver v. Dingley, 4 Greenl. 306. In Willson v. Foree, 6 Johns. 110, the plaintiff sold a horse and gig to the defendant for a note on Whaley, ■ which was not due for several months. Whaley was represented by the defendant as good, when he knew him to be insolvent. Plaintiff. after-wards offered to return the note and demanded payment, which evidence, under the count for goods sold, the court overruled, and on that ground the supreme court reversed the judgment; and in their opinion said, “If the special contract was void on account of fraud, the plaintiff may disregard it, and bring assumpsit for the goods sold. That the note was no payment.” The sáme doctrine is found in 1 Com. Cont. 38. In Stedman v. Gooch, 1 Esp. 3, Lord Kenyon said, “If in payment of a debt, a bill or note is taken, payable at a future day, the creditor cannot legally commence an action, until such note or bill become payable, or default be made in the payment; but if such bill or note be of no value, as if,' for example, ■drawn on a person who has no effects, and who, therefore, refuses it, the creditor may consider it as waste paper, and resort to his original demand, and -sue the debtor upon it.” It appears when the goods were purchased in that case, the notes were taken in payment. The same principle is sanctioned in Puckford v. Maxwell, 6 Term R. 52. To this doctrine is opposed the case of Ferguson v. Carrington, above cited, and some other cases. These cases rest upon the simple ground that an action for goods sold -and delivered, or money had and received, affirms the contract. Now this assumed ground is unfounded in fact and in law. An action brought before the credit expires, cannot be said to be brought in affirmance of the contract. but in disaffirmance of it The action is maintainable only upon the ground that the note given in payment being of. no value on account of the fraud, may be treated as void, and an action brought immediately for the goods or money obtained through its instrumentality. And in such case, the only de-fence that could be set up would be the fraud through which the credit was obtained. Is this admissible? Such a position
In the case of Cary v. Curtis, 3 How. [44 U. S.] 255, Mr. Justice Story says, “It is an entire mistake of the true meaning of the rule of the common law, that the action of assumpsit for money had and received is founded upon a voluntary express or implied promise of the defendant, or that it requires privity between the parties, ex contractu, to support it. The rule of the common law has a much broader and deeper foundation. Whenever the law pronounces that a party is under a legal liability or duty to pay over money belonging to another, which he has no lawful right to exact or retain from him, there it forces the promise upon him, in invitum, to pay over the money to the party entitled to it. It is a result of the potency of the law, and is in no shape dependent upon the will or consent or voluntary promise of the wrongful possessor.’’ I think the suit may be sustained, there being fraud in the security, though the credit had not expired. An action of trover for the bank notes, without proving the notes, could not be sustained; and this could not be done in one case in a hundred.
It is admitted there was no sale of the property by M'Queen & M'Kay. They indorsed to Gibson, in New York, a commission merchant, the receipted bills of parcels, showing the purchase and payment by them for the pork and flour, and a guarantee that both should pass inspection, &c., and the great question in the case is, whether the advance made by Gibson creates a lien on the pork and flour paramount to the lien of the attachment. There is no evidence that the plaintiff!, when he made the advance, had any notice of the fraud of M'Queen & M'Kay. He must then be considered as having acted fairly; and it is admitted that it was usual for commission merchants, in New York, to make advances on Western produce upon the assignment of the proper evidence of title thereto. Whether this "proper evidence of title,” consists of such memoran-da of purchase as were transferred to the plaintiff in this case, is not stated. Prom the letters of M'Queen & M'Kay, to Ludlow & Babcock, commission merchants of Toledo, Ohio, handed to the plaintiff the day he made the advance, and which is made a part of the case, it appears the advance was made on the pork and flour above stated; and nine hundred other barrels of pork “stored at different points on the Wabash Canal.” This also appears from a letter written on the same day by the plaintiff, and directed to the same persons, which is also in evidence. It seems, however, to have been the intention of the parties to- the agreement, to raise the legal question on the pork and flour attached. No letters were written to Hanna, Hamilton & Co., or D. & J. A. T. Nichols, of whom the pork and flour now in controversy were purchased, informing them of the orders given to the plaintiff; nor had they any knowledge of such orders until after the attachment was laid. The memorandums of purchase with their indorsements have been compared, in their effect, to indorsed bills of lading. A bill of lading possesses many of the qualities of a bill of exchange. In the language of Lord. Ellenborough, if a consignee “indorse a bill of lading for a valuable consideration, and without notice by the indorser of a better title, it passes the property.” This deprives the owner of the right to stop the £oods in transitu. When the indorsement is made in blank, it may be filled up as on a bill of exchange. 6 East, 21, 22; Wright v. Campbell, 4 Burrows, 20469; Tucker v. Humphrey, 4 Bing. 522; Caldwell v. Ball, 1 Term B. 205; Hibbert v. Carter, Id. 745; 3 Kent, Comm. 207.
The memorandums in question are neither in form nor effect, like bills of lading. Have they the character of warehouse receipts? These instruments take their form and effect from usage; consequently, they vary in both these particulars, as usages differ at different places. In Akerman v. Humphery, 1 Car. & P. 54, it was held, that a consignee of goods delivering over to a third person, the shipping note of such goods, and a delivery order on the wharfinger to deliver such goods as soon as they arrive, does not pass the property in them, so as to prevent a stoppage of them in transitu by the consignor. In his opinion in that case, Burrow, Justice, said, “I do not think that the giving the shipping note and delivery order to the plaintiff, made a change of the property.” The acceptance of a delivery order by the vendee is not equivalent to an actual acceptance of the goods within the meaning of the statute of frauds. The court say “They” (the warehouse men) “held it originally, as the agent of the vendors; and as long as they continued so to hold it, thé property was unchanged.” It has been said, “that the London Dock Company were bound by law, when required, to hold the goods on account of the vendee. That may be true, and they might render themselves liable to an action for refusing so to do; but if they did wrongfully refuse to
To constitute a lien there must be an actual or constructive possession of the thing, by the party asserting it; for a lien is a right to retain a thing, which presupposes a lawful possession, which can arise only from a just possession under the owner or other party against whom the claim exists. If the thing has not yet arrived at the possession of the party, but is still in transitu, or if he has only a right of possession, the lien does not attach thereon. Story, Ag. § 361. Chancellor Kent, in the second volume of his Commentaries (page 633), says, possession of the goods is necessary to create the lien; and the right does not extend to debts which accrued before the character of factor commenced; nor when the goods of the principal do not, in fact, come to the factor’s hands even though he may have accepted bills upon the faith of the consignment, and paid part of the freight Kinloch v. Craig, 5 Term R. 119, 783. A sale of goods without delivery of possession is invalid as against an attaching creditor of the vendor. Lanfear v. Sumner, 17 Mass. 110; Shumway v. Rutter, 7 Pick. 56; Parsons v. Dickinson, 11 Pick. 352. On their faco the bills of parcels do not show and do not purport an actual delivery of the flour and pork, and there was in fact no formal delivery of either. The papers show an obligation by the warehouse keepers to deliver the pork and flour soon after the canal shall open, and that they shall both pass inspection. But in regard to the pork, the agreed case admits that the barrels of pork were in the warehouse. A formal delivery of personal property is not necessary to change the title. A part, in the name of the whole, may be delivered; and frequently the delivery of the evidence of the transfer is considered a symbolical delivery of the thing sold. This question is controlled by commercial usages in reference to the nature and condition of the property. 1 East, 194; Atkinson v. Making, 2 Term R. 462.
The receipted bills of parcels and guarantees were not assignable as bills of lading. They contained evidence of the articles purchased, of payment and the guarantees, and as such were important to the purchasers; but whether the evidence of the articles purchased, the payment and guarantees, were contained on one or several papers, was im: material. No usage is known or proved in Indiana or New York, which gives to these papers'any other effect than as evidence of the above facts. There was no condition expressed or understood that the pork and flour were to be delivered to the holder of the papers, or that their production was necessary to obtain the property. A simple order for the pork and flour of Gibson, would have had the same effect, as the indorsement of the above papers. If M.’Queen & M’Kay had given an order to the warehouse men to deliver th° property to any one, they would have delivered it, without incurring any liability to Gibson, they having no knowledge of his claim. Had M’Queen & M’Kay taken the property into their own possession, they would not have been responsible to Gibson for the value of the property, but only for the advance, including interest and damages for a violation of the contract. There having been no sale, and the property not having passed into the actual possession of Gibson, he could not have recovered the property by any legal process, even from the possession of M’Queen & M’Kay. Had the prop-, erty passed into the possession of Gibson after notice, he could not, as the factor of M’Queen & M’Kay, have sold more of it than would refund his advance, interest and charges. But not having possession of the property, he could not, in equity, enforce
But the case does not turn upon this principle. Before any notice was given, the hank laid an attachment on the property. Neither •the warehouse men or the bank knew any thing of the advance of Gibson, or of the order, until after the attachment. But suppose there had been notice, M'Queen & M'ICay had an attachable interest in the property. The first cost of the pork and flour exceeded the advance about a thousand dollars. M'Queen & M'Kay, then, to this extent, at least, were interested in the property, and that interest was attachable. By the 3S3d section of the execution laws (Bev. Code 1843), all the interest of a mortgagee, pledgee, or assignee of personal property is liable to be levied on and sold by execution. And in the case of Evans v. Darlington, 5' Blackf. 320,. the court held there, the same interest may be reached by an attachment. If the lien asserted by Gibson be good to the extent as contended, it withdraws the property from the state of Indiana, and compels the creditors of M'Queen & M'Kay who reside in the state, to follow it to the state of New York. And the principle would be the same, had an advance of one thousand dollars been made on ten thousand dollars worth of property. So careful is the law of the rights of creditors, that an executor under a foreign jurisdiction cannot withdraw the property of the deceased from the local jurisdiction, to that of the domicil of the deceased, to the prejudice of creditors. Much more, it would seem, cannot this be done in the case under consideration; a case where in fact there has been no sale; and where, if the lien of the commission merchant attached, it could only extend to the advance made.
In Black v. Zachara, 3 How. [44 U. S.] 511, the supreme court held, that an attachment of bank stock in Louisiana, which had previously been assigned by the owner in South Carolina, of which the plaintiff in the attachment had notice, before the writ was issued, could not be sustained. The court say, “Now in the case before us, there is plenary evidence that the assignment was valid and effectual by the laws of South Carolina, when and where it was made, to pass the right to the property in controversy; and that the attaching creditors had notice thereof before' their attachment was made.” And so in a late case in the supreme court of Louisiana, where the effects of the United States Bank were attached in that state, after a due assignment of them had been made in the state of Pennsylvania, of which the attaching creditors had notice, it was held the attachment could not be sustained. This case, and the one above cited, are made to turn on the fact of notice. And if in the case under consideration, before the attachment was laid upon the property, the plaintiff had had notice of the order, the lien of Gibson to the extent of his advances would have been protected. In Babcock v. Maltbie, 7 Mart. (N. S.) 137, the court say, the true test in cases of assignment is, “that where the owner of the property has lost all power over it and cannot change its destination, the creditors cannot attach.” This rule is apparently sanctioned by the supreme court of the United States in the case above cited; but it is not time, except upon the supposition that the whole transaction was bona fide. For if a man fraudulently transfer his goods, he has lost all power over them, but his creditors may attach them. In the case of Gibson, M'Queen and M'Kay, before the notice, had power to sell the property and transfer a good title.
In t Story, Confl. Laws, § 416, it is said, “Neither is it true, that even the voluntary conveyances of parties in all eases are to be held valid, where they are prejudicial to the lights and remedies of our own citizens. In Massachusetts, for instance, ir has been held, that a voluntary assignment by a debtor of all his property, made in Pennsylvania, for the benefit of creditors generally, shall not prevail over a subsequent attachment of the funds of the debtor, made after the assignment, because such an assignment would be void by the laws of Massachusetts, if made in that state, as being in fraud of creditors; and it is unjust and unequal in its effects, and prejudicial to the citizens of the state.” “In such a case, therefore, the party who shall by process first attach the debt or seize the property, ought to prevail, whether creditor or assignee.” Ingraham v. Geyer, 13 Mass. 146; Olivier v. Townes [2 Mart. (N. S.) 97]; 6 Pick. 286, 307. And Chancellor Kent (2 Comm. 406) says, “It may be considered as part of the settled jurisprudence of this country, that personal property, as against creditors, has locality, and the lex loci rel sitae prevails over the law of the domicil with regard to the rule of preference in the case of insolvent estates.” In Lanfear v. Sumner, 17 Mass. 110, the court held, “A conveyance made in Philadelphia to plaintiff of a quantity of tea on board a ship bound to Boston, which was afterwards attached by a creditor in Boston, that the defendant must prevail, as there was no legal delivery before the attachment That it was a case of two creditors, each endeavoring to secure his debt out of the same fund; he who first acquires possession will hold the goods.”
In the case of Hoffman v. Noble, 6 Metc. (Mass.) 68, the court very properly held, that where a consignee had made an advance to the full value of the goods, in good faith, and they having come into his possession, he stood in the light of a purchaser. It is supposed that a decision against the paramount lien of the plaintiff, as here asserted, may tend to prevent the customary advances on the shipment of produce. Factors or commission merchants must be cautious to whom they make advances. The legal right of the bank grow
This is probably the first case involving some of the precise questions, above considered. I have felt an uncommon solicitude on the subject, and took occasion, at the last term of the supreme court attended by my lamented Brother Story, to consult him on the points ruled, and I was gratified to find that he coincided with the opinion as now expressed. Upon the whole, we direct a judgment of de re-torno habendo.