34 Ky. 7 | Ky. Ct. App. | 1836
delivered the Opinion of the Court.
In June, 1832, William Hause and Son, Merchants of Philadelphia, packed and forwarded, under an order from S. P. Judson of Saint Louis, Missouri, twenty-six packages of goods, in as many trunks and boxes, which they sent, by the way of Baltimore, each marked as follows: “S. P. Judson, St. Louis, Mo.—care of E. L. Eichelberger, Balt,—from Wm. Hause & Son, Phila.” The packages, thus addressed and forwarded, passed to and down the Ohio river, on their way towards Saint Louis, until they arrived at Louisville; where, together with other goods also on their way to the same consignee, they were stopped in the hands of William G. Bakewell, by an attachment in Chancery, issued in July, 1832, at the suit of Anderson & Atterbury, who prayed that they might be subjected to the satisfaction of their debt, claimed in the bill, on the ground that they were the property of Judson, an absent debtor. Three other
In this state of things, Hause and Son, in November, 1832, filed their bill against Judson, Bakewell, Anderson & Atterbury and the other attaching creditors. They state, substantially-, the foregoing facts, describe the kind and value of the goods contained in the twenty-six packages, and allege that no part of the price had been paid; that Judson was a resident of Saint Louis, but had gone off to Texas; that he was insolvent, and that the goods had never come to his hands, directly or indirectly. In consequence of these facts, and by virtue of their alleged right of stoppage in transitu, they claim the goods in the twenty-six packages as their own; and they allege, that they had so claimed them from Bakewell, but that he had sold a part, and was proceeding to sell the rest of them under the order of the Chancellor, without regard to their claim. They pray, in ■effect, that the proceeds of the twenty-six packages— to the continued sale of which they consent—be held for their benefit; or otherwise, that the amount already made be paid to them, and the packages unsold delivered to them, on their entering into bond &c. and they ask for an injunction and for general relief.
An injunction was granted, restraining Bakewell from paying over to the other claimants any of the proceeds •of the twenty-six packages described in the bill. An. derson and Atterbury answered; and the three attachment bills last filed having been dismissed by the complainants therein, thus leaving Hause & Son and Anderson & Atterbury the only contesting claimants; the two suits brought by these parties were consolidated and heard together, and the same decree was entered in •each case.
The claim «et up by Anderson and Atterbury in their bill, is an account for goods sold and for charges paid for forwarding goods, amounting to $3,225 98 cents, “unless Judson had paid their two drafts amounting to $925 48 cents, which they say they fear and believe he has not paid, although they are credited in the account filed, under the supposition that they would be paid.” With these credits the balance due on the account is $2270 50 cents. The drafts were due and payable some weeks before the bill was filed, and .there is no further allegation or proof in relation to them. Nop did any of the defendents answer.
It does not appear that Bakewell ever made any .report of sales, as directed by the order of the Chancellor; but a short time before the hearing, an amended bill was filed on the part of Anderson and Atterbury, stating that hp had made sales and had in his hands, after paying costs and charges, more than $3000. And on the final hearing óf both suits, the Circuit Court decreed, that Bake-well, retaining his costs, should pay to Anderson and At» terbury., as due them from Judson, the whole amount of $3225 98, and that out of the remaining proceeds of th§ sales, he should pay, as far as the fund would go, the .claim of Hause and Son and their costs. For the reversal of this decree, Hause and Son prosecuted a writ of Error,
If the decree were correct in giving precedence to the ifiaim of Nfidersop and Atterbury, wp shpuld think it
But we are of opinion, that the decree is subject to the more radical objection of having improperly given precedency to the claim of Anderson and Atterbury, when, so far as relates to the goods of which Hause and Son were the vendors, their claim under the right of stoppage in transitu, was paramount.
The right of stopping goods in transitu: is defined by Chancellor Kent (2 Com. 540,) to be “the right which the vendor, when ho sells goods on credit to another, has, of resuming the possession of the goods while they are in the hands of a carrier or middleman, in their transit to the consignee or vendee, and before they arrive into his actual possession, or to the destination which has been appointed for them, upon his (the veatleo’s) be--coming bankrupt or insolvent.” It is said to be an equitable power, which, although the property is vested in the consignee by delivery to a carrier, to be transported to him, yet remains in the consignor, of resuming it, under certain circumstances, before it actually gets into the possession of the vendee. (Law of Carriers, ION) The right, though first acknowledged in Equity, is so well established at law as to be the admitted foundation of an action of trover. But it is said not to be founded upon the idea of a rescission of the contract, but to assume its continuance as in case of an equitable lien, so that it is extinguished by payment of the price,. and the
A necessary consequence of these principles, and of the established properties of the right in question is, that it cannot be superseded by an attachment at the suit of a general creditor of the vendee, levied while the goods .are in transitu. Law of Carriers, 111; Northey vs. Field, 2 Esp. R. 613; Smith vs. Goss, 1 Camp. 282. In the last of which cases Lord Ellen borough said—“The right of the consignor to stop in transitu cannot be defeated by the process of a creditor, who can have no greater right than the consignee himself. The vendor’s right of intercepting the goods is the elder and preferable lien, and eannot be superseded by the attachment.” If then the right asserted by the complainants éxisted when the goods were attached by Anderson and Atterbury, it was neither defeated nor postponed by the attachment.
Upon comparing the facts of the case with the definition which has been stated, the only point upon which the existence of the right can be questioned, is, whether the transit of the goods had determined when they were attached in the hands of Bakewell, and on this point we think there is little* room for doubt. The ground which seems to be relied on by the defendants, in contesting this point, is that the persons who had the custody of the goods at Baltimore, Wheeling and Louisville, and by whom they were forwarded on to Louisville, were the •agents of Judson; that the goods must, therefore, be considered as having come to his possession, and as being no longer in the course of transit from the vendors to him. It is, however, entirely clear from the whole case, that the persons who had possession of the goods at these several places, and those by whom they were transported from the one to the other, were in no other manner the agents of the vendee than as common car»
It is true, that by the first delivery to the carrier at Philadelphia, the goods were- constructively delivered to* the vendee* and the property thereby became- vested in him, but this constructive delivery for the purpose of’ transporting the goods to him at the distance of a thousand miles, was in fact but the beginning of the transit, ¡tad did not vest the actual possession in him. It is also true that, in some cases the transit is- determined, and indeed effected by a constructive delivery, but there are coses in which the constructive delivery places the goods within the immediate control of the -vendee* The distinction laid down by Chancellor Kent (2 Com. 545,) as one by which the cases arising on a constructive delivery may be-preconcilcd is, “that if the delivery to a carrier or agent' of the- Vendee be for the purpose of con~ veyance to the vendee, the right of stoppage continues, notwithstanding such constructive delivery to the vendee; but if the goods be delivered to the carrier or agent, far safe custody or for disposal on the part of the vendee, and the middleman is by ¡agreement converted into a special agent for the buyer, the transit or passage of the goods terminates, and with it, the right of stoppage.” The latter branch of the distinction may be elucidated by the rule or principle previously stated by the author—“that, if the goods have once fairly arrived at their destination, so as to give te the vendee the actual exercise of do*-.
These authorities, as well as the reason of the thing, leave no question in our mind that the goods were as Certainly on their transit, and as clearly subject to be stopped by the vendors, when they came to the hands of Bakewell at Louisville, to be by him forwarded to St. Louis, and when they were attached in his hands, as F ey -were at any previous point of their progress, from the moment when they were delivered out of the hands of the vendors at Philadelphia. The attachment clid not, as we have seen, defeat the vendor’s right, to which the goods, being .then in transitu, -were subject. Nor eould the subsequent proceedings under the attachment destroy the right, if asserted before the g'oods were actually sold and dispersed under the order of the Chancellor, and the proceeds appropriated by his decree. A contrary determination would enable any creditor to gain priority by attaching the goods at any stage of their transit; which would be inconsistent, not only with, the conclusion previously stated as to the effect of ail-attachment upon the right of stoppage in transitu, but with the principle on which the right is founded, viz;1 “that it is held to be unreasonable to allow the goods of' a vendor to be appropriated to the payment of other creditors of the vendee who fails before payment and before the goods have actually reached him.”
It seems that some of the goods had been sold, under the order of the Chancellor, before the complainants filed their bill, and perhaps before they made any demand. The sale was made for the benefit of all concerned; and before any appropriation of the proceeds, or any adjudication upon the rights of any of the parties, the complainants asserted their right to the subject. Under these circumstances the conversion of the goods into money should not be considered as effecting:
The power of the Chancellor to enforce the right of stoppage in transitu has been admitted by this Court in the case of Ford & Warren vs. Sproule & Co. 2 Marsh. 528, and is we think unquestionable. The right is of equitable origin, and its subsequent recognition and enforcement by courts of law does not, according to the uniform decisions of this Court in similar questions, divest the Court of Chancery of its jurisdiction. But whatever might be thought of the general question of jurisdiction, the goods in relation to which the right is now asserted, being in the custody and under the control of the Chancellor, and a part of them having been sold by his order, before the right was asserted, there seems to have been a peculiar propriety in resorting to the same tribunal for the assertion and enforcement of the right. In doing so, however, the complainants subject themselves to the equitable condition, that the price of the goods with the reasonable expense of prosecuting their claim is all that they are entitled to, especially when they come in conflict with other creditors. To this extent, we have no doubt they are entitled to the proceeds of that portion of the attached goods which was contained in the packages described in their bill, in preference to any other creditor of Judson, and in preference to all other claims upon the goods, except the claim of Bakewell for charges and trouble relating to these pai’ticular goods.
The decree is reversed, and the cause remanded with directions to enter a decree in conformity with this opinion, so far as to give precedence to the claim of IiausQ and Son over that of Anderson and Atterbury in the appropriation of the proceeds of the 26 packages described in the bill. But as neither Judson nor Bakewell prosecutes a writ of error to the decree of Anderson and