30 Vt. 49 | Vt. | 1858
The opinion of the court was delivered by
This case, having been before the court for some length of time, and having also had the full and matured consideration of counsel, it is proper that it should be disposed of without further delay. It need hardly be observed that the plaintiffs stand upon the rights, as derived by them from J. & J. H. Peck & Co., and the defendants upon the rights of Gooderham, Howland & Co. Upon the ground which we are about to put the case upon, we shall assume that Gooderham, Howland & Co. were substantially the vendors of the flour, and J. & J. H. Peck & Co. the vendees, although we think it is attended with considerable difficulty to establish that point; and we do not intend, in making this decision, to express any opinion upon it. We shall confine our inquiry to the question, whether the right of stoppage was exercised in due time, provided it once existed. This right must be exercised after the property has left the possession of the vendors, and before it has come to the actual or constructive possession of the vendees, or those standing in their place. This period covers the whole transit. The rule is explicit, and the difficulties -arise
The direction given by the Pecks to the vendors, is to forward the flour to Flagg & Hyde, their agents at Ogdensburg, where, it is found, the agents had a fixed place of business, and the vendors were to advise the Pecks of the shipment by telegraph. There is no allusion in the instructions of the Pecks to the vendors, to any ulterior destination of the flour beyond Ogdensburg, and if there had been, it would not have been a matter of much moment. It is found by the referee “ that the Pecks had been accustomed to deal in flour at the west, and that Flagg & Hyde were their agents for the purpose of receiving it at Ogdensburg and forwarding it as directed by them!’ This does not import a direction to forward the flour to Burlington, or any particular point, but rather to hold it, subject to the order of the Pecks as to the time and place to which it was to be forwarded, and the referee expressly finds that none of the flour would have been forwarded from Ogdensburg to Burlington unless directed to be done by Flagg & Hyde. As to that part of the flour purchased by Gooderham, Howland & Co. for the Pecks which actually reached them at Burlington, the case finds that it was sent on from the warehouse at Ogdensburg, in which it had been deposited, to Burlington by the direction of Flagg Hyde. All the bills of lading, as they were called, make Flagg & Hyde the consignees of the flour at Ogdensburg, with the exception of one, where the name is left blank, probably by mistake. It is added in the bills of lading, it is true, “ to be forwarded to J. & J. H. Peck & Co., Burlington.” But this can not supersede the Pecks or their assignees in their rights to control the flour, even while it is in transit; and besides, this ulterior destination of the flour in the bills of lading, was not according to the letter of instructions given to Messrs. Gooderham, Howland & Co., on the 4th of September. When the referee speaks of the flour as being consigned by Gooderham, Howland & Co. to Flagg & Hyde, to be forwarded to J. & J. II. Peck & Co., Burlington, as per bills of
The finding of the referee is express that none of the flour would have been forwarded by Stark, Hill & Co. from their warehouse unless directed by Flagg & Hyde. Stark, Hill & Co. treated this flour in their warehouse as subject to the special direction of Flagg & Hyde. While they were putt'ng it into their warehouse, Flagg, happening to be on the ground, was inquired of for directions in regard to it, and Stark, Hill & Co. were ready to comply with his directions in regard to forwarding it. This was on the 9th of October. On the 10th of October, after Flagg had received notice from the assignees directing him to hold the flour subject to their order, he repaired to the warehouse and countermanded his previous order, and gave directions to have the flour remain in the warehouse for further orders. The flour did remain in the warehouse, and in consequence of such directions, it was not forwarded under the previous order, and in this situation it remained in the custody of Stark, Hill & Co., in their warehouse, until the 13th of October. On that day and prior to any attempt to stop the flour by Gooderham, Howland & Co., Herrick appeared at Ogdensburg, clothed with full powers from the plaintiffs as the assignees of the Pecks, to take possession of the flour in question. Herrick and Flagg went to the warehouse, saw the flour, counted the barrels and bored into some of them to examine its quality, although they did not see Stark or give any directions, at that time, in regard to the flour. It does appear, however, that Herrick, before anything was done by Gooderham, Howland & Co. showed his letter of instructions from the assignees to Parker, who was the agent of the Northern Railroad Company at Ogdensburg,
It is hardly necessary to vindicate the rule as laid down by Baron Park, in James v. Griffin, 2 M. & W. 631, “ that when goods are delivered at a point where the vendee intends they shall remain until a fresh destination is communicated to them by orders from the vendee himself, the transitus is at an end.” In Dixon v. Baldwin, 5 East 175, the goods were ordered “ to be forwarded to one Metcalfe at Hull, to he shipped for Hamburg as usual.” It appeared that it was usual for Metcalfe to keep such goods until he received orders from the vendees, and then comply with such orders; and it was held the transitus ended at Hull, though there was an ulterior destination of the goods beyond that place. Lord Ellenborough said the goods waited for new orders from the purchaser, to put them in motion, and that without such orders they would remain stationary. In Leeds v. Wright, 3 B. & P. 320, the agent of the bankrupt purchased the goods for exportation, having authority from the bankrupt to export them to any port he pleased; and the court held he did not possess the goods as an agent to forward, and that while in his hands, they were not in transitu. In Scott v. Pettit, 3 B. & P. 469, the bankrupt had given general orders to a carrier to send on his goods to a packer to be packed, and the goods were accordingly sent to the house of the packer, and the packer was not treated by the court as an agent to forward, but it was held that, like a warehouseman, he
Foster et als., Assignees of Fowler, v. Frampton, 13 Common Law 60 (6 B. & C. 107), is strongly in point for the plaintiffs. There the vendee of several hogsheads of sugar, having had notice from the carrier of their arrival, took samples from them, and directed the carrier to let them remain in his warehouse until he should receive further instructions; and before they were removed the vendee became bankrupt, and it was held the transitas was at an end. Justice Bayley remarks that the bankrupt, on that particular occasion, used the warehouse of the carrier as his' own, and made it the repository of his own goods; and Holroyd, J., says, “the carrier ceased to be such, and became a mere bailee.” The carrier in that case, at least by implication, entered into a new relation, distinct from the contract for the carriage, and held the goods for the vendee as his agent, not to transport but for the custody of them, subject to his order. In Allan v. Gripper, 2 Cromp. & Jervis 218, the goods had been deposited in the carriers’ warehouse for the convenience of the vendee, to be delivered out as he should want them, and it was held the transitas was at an end. Here, too, the warehouse in which the goods were deposited might well be considered for this special purpose, as the warehouse of the purchasers. Stark, Hill & Co. from the time the flour was deposited in their warehouse, held it subject to the future order of the Pecks, or those standing in their place, ai.d a fresh direction to them was necessary again to put the flour in motion, and in this view they received the flour to keep and not to transport, unless directed. The possession of Stark, Hill & Co. was the constructive possession of the Pecks or their assignees, and it may well be said, they made the warehouse of Stark, Hill & Co., for this parties ular purpose, their own,
The assignees might well treat, on this occasion, the warehouse of Stark, Hill & Co. as their own. The case of Buckley v. Furniss, 15 Wend. 137, is deemed by the defendants’ counsel to be strongly in point, but we think is is quite distinguishable from the case at bar. In that case the iron was marked and directed to Titus, the vendee at Malone, to the care of Thomas Green, Plattsburg, who was a warehouseman at that place, and the court put the case upon the ground that the goods only rested at that place for the purpose of changing the mode of transportation from a water to a land transportation, and that they were not to remain at Plattsburg to await a fresh order from the vendee. This is clear-ly a case where the warehouseman received the iron to transport and not to keep until further orders.
It is said in argument that, before the Pecks or their assignees could assert any right to the possession of the flour, it was indispensable that they should have paid the charges and duties on it. But it should be remembered that this is a question between vendors and vendees, and the only inquiry now is, whether the vendors’ right of stoppage was at an end, and not whether Stark, Hill &
The title passes to the vendee upon the sale. In Mottram v. Heyer, 1 Denio 483, the goods were shipped from England to the vendees at New York, and the circuit judge charged the jury, that by the receipt of the bill of lading, the payment of the freight by the vendees and their entry of the goods at the custom house, the transitus was ended, even though in that case the agent of the vendors had demanded the goods before the duties were paid, and while the goods were in the custom house. This ruling was affirmed upon error by the superior court of the city of New York. The case stands upon the ground that the vendees had a constructive possession, though the goods were in the custom house and the duties unpaid. This case went up to the court of errors, and though there was some discrepancy of opinion as to the ending of the transit, yet the judgment was affirmed by a vote of thirteen to four. See 5 Denio 629. Though it is true the chancellor maintains that the entry of the goods at the custom house in that case did not terminate the transit without a payment of the duties also, yet he admits that if the goods had been placed in a public store under the warehousing system, the transit would have ended. His opinion goes upon the ground that, from the facts in that case, enough was not shown to give the vendees a constructive possession without t^e payment of the duties; but he was for affirming the judgment of the superior court upon the ground that the demand
I apprehend in that case the possession of the carrier was still continued, subject to the lien of the government for the duties. The vendees not only failed to pay the duties, but did not, as was said by Lord Tenterden, enter the goods at the custom house. No act of ownership whatever was exercised by the vendees over the property. See this case in Abbott on Ship. 664, 7th Am. Ed.
Donath v. Brownshead, 7 Barr 301, is like Northey v. Field. In that case the goods were removed to the custom house directly from, the vessel by the officers, and were not entered at the custom house by the consignee, on account of the loss of the invoice. Clearly, in this case, the vendee, though he had paid the freight, had not entitled himself to actual possession, and could have no
But in the case before us, the flour had been deposited in the warehouse of Stark, Hill & Co., under the warehousing system, and it was the practice of that firm to give bonds for the inland transportation of goods arriving by steamers, and transported on the Northern Railroad. As I understand the warehousing system as established by act of Congress, it provides that if duties are not paid, or if the importer or consignee shall make an entry in wilting for warehousing the goods, they shall be deposited in the public stores, or other stores agreed on, at the charge and risk of the importer or consignee, subject to their order on paying the duties and expenses, to be secured by bonds with sureties. If, however, satisfactory security shall be given that the goods shall be landed out of the jurisdiction of the United States, or on entry for reexportation and the payment of expenses, etc., the goods may be shipped without the payment of the duties. If the goods shall remain in the warehouse beyond one year without the payment of the duties on them and expenses, they are to be appraised and sold at auction, and the surplus after paying the duties, expenses, etc., is to be paid over to the owner or consignee.
Clearly then, under the warehousing system, whatever possession the government may have of the goods, it is under the owner, and it is at most but a qualified or special possession, and for the purpose of securing a lien by -way of pledge. The goods were at all times subject to the order of the owner upon payment of duties and expenses. He had the right of actual possession upon the payment of the duties, etc., and his general ownership of the property would, at all events, give him a constructive possession, as against third persons. So far as they are concerned, it is a possession for the owner, and the owner could sell or dispose of the goods as he should see fit, subject to the duties and expenses. Granting then, that the right of stoppage existed in this case, we think the transitas was ended before there was an attempt to exercise it, and that Gooderham, Howland & Co. must be regarded as trespassers in taking this property from the warehouse on the 23d of October. Though we should be glad to have Gooderham, How-land & Co. indemnified against the bond given to secure the pay
The court, after a full examination of this case, are all agreed that upon a correct application of the authorities to the facts of the case, judgment should be for the plaintiffs.
Judgment of the county court is reversed, and judgment for the plaintiffs for nominal damages and costs.