65 Ga. 705 | Ga. | 1880
Meador Brothers shipped from Atlanta to Macon certain boxes of tobacco consigned to Carlos. The Macon and Western Railroad Company received them as carriers, about the twelfth day of November, 1872, and they arrived in Macon about the fifteenth, and shortly thereafter
Our Code declares that the right of stoppage in transitu continues until the vendee obtained actual possession of the goods. In the ordinary signification of those words, there is no evidence in this record that the consignee ever did obtain the possession. He did not go with Brantley and have these boxes set apart, but gave orders in- respect to goods consigned to him generally, and perhaps an order designating these boxes, though that appears uncertain, looking at all the testimony in the record. They were set apart only by being moved from one part of the carriers’ warehouse to another, according to Brantley’s testimony, without the possession having been actually at all in Carlos. This possession was only constructive. The boxes were only moved from one part to another part of the same apartment where the company had deposited them for the consignee, and where its freights were commonly stored until delivered to the consignees. The bill of lading had not been delivered up or transferred, nor had the freight on these boxes been paid. Under these circumstances we cannot see actual possession in Carlos, or actual delivery to him, or to anybody for him. Brantley was acting for the road, and was its agent.
Besides, it is very questionable whether the carrier can buy the vendee’s title as against the vendor’s right of
However that may be, we think that our Code contemplates actual delivery and possession, as distinguished from constructive possession, and there was no actual delivery or possession here.
Indeed, at common law such a delivery as this is would hardly avail to defeat the vendor’s right to stop the goods in transitu. Hilliard on Sales, 301. 3 Bos. & Pul., 49.
The tobacco was sold on' credit. Carlos was put in bankruptcy, and therefore was not able to pay for the tobacco, and was insolvent in the meaning of §2643 of the Code, which declares that where credit is given and the insolvency of the purchaser is made known to the seller, he may still exercise the right to stop the goods before they reach the consignee. See also Code, §2650.
We think that the verdict of the jury for the plaintiffs is right under the law and evidence on the case made, and that the court did not err in overruling the motion for a new trial.
Judgment affirmed.