| N.Y. Sup. Ct. | Oct 15, 1838
I am inclined to the opinion that the transitus was at an end. The course of trade as well as the instructions given, pointed out Havanna as the place where the goods were to be deposited, and wait for the special charge and directions of the vendee ; there was no forwarding line beyond it, and the usage was universal by the warehouse-man thus to detain them ; after this, the vendee necessarily took special charge of any further conveyance, and it may be said that the goods were carried from thence by his own teams. But even if any doubt should exist as to the soundness of this view, and I admit that the cases are scarcely reconcilable upon the point, Hunter v. Beale, 3 T. R. 466; Stokes v. La Riviere, 3 East, 397; 2 Bos & Pull. 461; 7 T. R. 440; 5 East, 175; 2 Selw. 982; Ross on Vend. 221, 243; 15 Wendell, 137; 17 id. 504; when we take in connection with the other circumstances the additional fact that Graves called with his teams and would have taken the goods into his actual possession, had it not been for the levy, it seems to me there can be no longer any doubt. 4 Esp. 82. 2 Bos & Pull. 461. 3 T. R. 464. Ross, 239. But admitting that the above conclusion may be erroneous, the plaintiff, I think, is still entitled to retain the verdict upon the other ground taken at the, trial. The jury have found under proper instructions, that the goods were purchased upon a credit by means of the false representations of Graves in respect to his pecuniary condr
But it is urged that the written notice and demand first made, that the goods were claimed upon the special ground of stoppage in transitu, precluded the plaintiff from setting up any other, as on the trial it would operate as a surprise upon the officer. It is, I think, a sufficient answer to say, that a general demand was subsequently made before sale, which was enough to put the defendant upon inquiry as to the nature of the plaintiff’s claim, and leaves the plaintiff unembarrassed as to the ground upon which he chooses to rest. I know it was said in reply that the officer might have inferred that the claim was still on the first ground, no other being specified ¿ but this inference necessarily requires us to assume the second demand to have been an idle ceremony, which we cannot do, as it would be a very forced conclusion. Besides, as regards the officer, it is apparent that he could not have been mislead or surprised by the plaintiff enlarging the ground of the claim, as he has taken the precaution to be indemnified, and put his refusal on that footing. And in respect to the party in interest, I do not perceive any good reason for conceding to him the benefit of the objection, as he stands in no better situation than Graves, who clearly could not have availed himself of it. He would not be permitted upon this pretence to shut out his own fraud under the circumstances of the case. The instructions in pursuance of which the first claim was made were dictated by counsel in the city, before the true history of the case was was known, and the second was made by advice of other counsel after Wood (the clerk,) had visited Willardsburgh. and learned the particulars.
New trial denied»