13 Wis. 79 | Wis. | 1860
By the Court,
Tbe real question presented by tbe pleadings and evidence in this case, was as to tbe right of tbe vendors of tbe property to stop it in tbe bands of tbe appellants. Tbe principle of law would not be controverted, tbat tbe vendors’ right of stopping tbe property continued until there bad been an actual or constructive delivery thereof to tbe vendee. Tbe point of inquiry before tbe jury then was, whether tbe property was still to be considered in its transit, or whether it bad arrived at its place of destination and bad come into tbe possession or under tbe direction of tbe vendee himself. Tbe solution of this question would depend upon tbe further inquiry — In what capacity did tbe appellants receive tbe goods? Were they simply tbe consignees or agents of tbe transportation company, receiving and bolding tbe property as such for tbe purpose of collecting tbe freight, or any other lawful object, so tbat tbe property was still in tbe possession of Poag, Farmer & Co.?
It will at once be seen that tbe circuit court, in tbe charge it gave, excluded from tbe consideration of thei jury the question as to whether tbe appellants received tbe goods as agents of tbe carriers or not. For tbe jury were told that if at tbe time of purchase, Joseph W. Haskin directed tbe vendors to ship tbe goods to Titbits, Starkweather & Co., ware-housemen at Milwaukee, and tbe goods arrived in pursuance of such directions, tben, as a matter of law, tbe court held that wben tbe property came to tbe possession of Titbits, Starkweather & Co., it was in tbe vendee’s possession, so far as to deprive tbe vendors of tbe right of stoppage.
It appears to us that this instruction was erroneous, in assuming that tbe appellant necessarily received tbe goods as tbe agents of tbe vendee, and in no other capacity, provided they bad been shipped to them by tbe vendors in pursuance of directions given by J. W. Haskin at tbe time of purchase. For notwithstanding these directions were given, and tbe goods were shipped in pursuance of them, tbe appellants might have received and held possession of them strictly as tbe agents of tbe carrier. Whether they did so receive them or not, was a most important fact in tbe case, to be determined by tbe jury from tbe evidence.
Now although, in tbe language of Chancellor KENT, (2 Comm., side paging, 545) “there has been much subtlety and refinement on tbe question, as to tbe facts and circumstances which would amount to a delivery sufficient to take away tbe right of stoppage, tbe point of inquiry being whether tbe
Judgment of the circuit court reversed, and a new trial ordered.