271 F. 279 | 2d Cir. | 1921
(after stating the facts as above). While the Personal Property Law of New York (Consol. Laws, c. 41) doubtless regulates the rights of parties in respect of stoppage in transit, no special reference to that statute is necessary, because it was thought in argument and seems to us to be but declaratory of settled existing law. The right of stoppage exists only while the goods are in transit; i. e. until they have come into the actual or constructive possession of the buyer or of someone lawfully claiming -under him. Conyers v. Ennis, 2 Mason, 236, Fed. Cas. No. 3,149. As pointed out by us in Re New York, etc., Co., 169 Fed. 612, 95 C. C. A. 140, the right con
But if the goods have come into the constructive possession of the buyer by delivery to his agent, the transit is ended and the right of stoppage has expired. Mottram v. Heyer, 5 Denio [N. Y.] 629. Indeed, if the consignee, having power to sell the goods, has disposed of them before arrival to a third person unacquainted with any circumstances to taint the fairness of the transaction, the right of stoppage is ended. Per Livingston, J., Spring v. South Carolina, etc., Co., 8 Wheat. 287, 5 L. Ed. 614. We may note that the decisions largely discussed at bar are al! considered in our opinion in Re New York, etc., Co., supra. Of the meaning of the letters “f. o. b.” we may take judicial notice, for “their meaning in contracts of this sort is plain and well understood. They import that the purchaser shall be free from all expense which may have attended the shipment and transportation to the point named.” Sheffield Furnace Co. v. Hull, etc., Co., 101 Ala. 446, 481, 14 South. 672, 681.
Applying these principles to the uncontradicted evidence herein, we hold that the agreement between the American Company and the bankrupt was that the former was to sell to the latter on 60 days’ credit certain merchandise; that the f. o. b. portion of the contract was fulfilled by the American Company’s payment of the freight from Phillips-burg to New York, followed by delivery at the latter city. The transit of the goods as between buyer and seller was accomplished when the goods arrived and were delivered in New York. By what machinery a consignment to Stork & Co. came into the possession of the Trans-Ocean Company does not appear, but it could only have been by the act of Stork, and when the Trans-Ocean Company received the goods they received them as the agent of Stork, and not otherwise.
That the bankrupt bought these goods for resale abroad was material upon one point only, for it may be assumed (it is not proven) that the American Company offered the goods at a lower price for export than they would have charged for domestic consumption. But the price was fixed, the agreement was not for a sale and delivery abroad by the American Company, but for a sale to Stork & Co. in New York. It follows that the only transit of the goods material to the present case was that from the seller to the buyer, that buyer became a bankrupt, But that transit had been accomplished at least three weeks before petition filed, at which time the goods were and long had been in the possession, not of a carrier, but of a warehousing agent of Stork & Co.
Therefore no right of stoppage existed, and the order complained of is reversed, with costs.
