33 Md. 344 | Md. | 1870
Lead Opinion
delivered the opinion of the Court.
The appellants, residents of Annapolis, wrote to the appellees, ice-dealers in Boston, to know upon what terms they would sell to them a cargo of ice, in answer to which they received the following reply.
“For a cargo to be shipped before the 10th of July, we shall charge you $5, per ton, and will get the freight as low as possible.”
By letter of July 1st, 1863, the appellants directed the appellees to send a cargo of one hundred and fifty tons, and authorized them to get the freight as low as possible. On the 13th of July, the appellees wrote to the appellants, advising them of the shipment, enclosing account for same and the bill of lading. This letter with the inclosed papers was received by the appellants in due course of mail. By the bill of lading it appears that the ice was shipped in good order and
The schooner encountered rough weather and was compelled to put into New York with damaged sails. After refitting she resumed her voyage and reached Norfolk on the 18th of August, in a sinking condition. The remnant of her cargo was sold in Norfolk under the captain’s supervision, and the surplus arising from the proceeds of sale, after the payment of freight and charges, amounting to two hundred and twenty-two dollars, was handed over to the appellants and by them remitted to the appellees, who refused to receive the same. This is an action of contract brought by them against the appellants to recover the value of the cargo of ice.
The main question in this appeal and one -which we think decisive of the case, arises upon the following prayer granted by the Court:
“If the jury find from the evidence that the plaintiffs in 1863, were partners in trade and dealers in ice, under the name and firm of Addison, Gage & Co., in the city of Boston, Mass., and that the defendants were trading under the name of Magruder & Brother, in the city of Annapolis, on the 3d of June, in the year 1863, and as such firm wrote to the plaintiffs, the letter offered in evidence of that date and proved under the commission as Exhibit E, and that the plaintiffs in' reply thereto, wrote to the defendants the letter dated June 22d, proved under the commission as Exhibit H, and that on the 1st of July, the defendants addressed to the plaintiffs the letter returned with the commission and marked A, and that on the 6th of (Tuly, the plaintiffs wrote to the defendants the letter of that date marked B, and that these letters were received by the persons to whom they were respectively addressed, and that the plaintiffs did on the 11th of July, 1863, ship on board the schooner “Bio” one
This prayer asserts as a proposition of law, that the facts therein stated, in the absence of any other agreement on the part of the plaintiffs in regard to the delivery of the ice, constituted a complete sale and delivery of the same to the defendants.
The question as to what acts are necessary to be performed by a vendor under an executory agreement for the sale of unspecified goods, in order to transfer the title to the vendee and subject him to the risk of the carriage, depends entirely upon the agreement either express or implied between the parties. If the vendor undertakes to make the delivery himself at a distant place, thus assuming the risk in the carriage, the carrier becomes the agent of the vendor, and the property will not pass until the delivery is actually made. On the other hand, if the goods are delivered to a carrier specially designated by the purchaser, he becomes the agent of the latter, and the title to the property as a general rule will pass the moment the goods are despatched. Should the contract of purchase be silent as to the person or mode by which the goods are to be sent, a delivery by the vendor to a common carrier in the usual and ordinary course of business, transfers •the property to the vendee. Or, as Mr. Benjamin expresses it in his late Treatise on Sales, “where goods are delivered by
It is unnecessary lo cite authorities in support of this well established rule. The cases are collected and reviewed in a very satisfactory maimer in Benjamin on Sales, (246-271,) and the rule will be found recognized in its broadest terms by all of the elementary writers on the subject. Story on Sales, see. 306; Hilliard on Sales, top page 119; Chitty on Contracts, —.
If, therefore, in this case, the appellants directed the appellees to send them a cargo of ice, and they delivered it to a common carrier to be freighted for and on account of the appellants, and there was no other agreement in regard to the sale and delivery of the same, the Court was right in saying to the jury that the title passed to the appellants, and that the appellees were entitled to recover.
None of the cases relied on by the appellants are in conflict with these views. In Dunlop et. al. vs. Lambert et. al., 6 Clark & Fin, 600, the suit was brought by the consignor against the carrier to recover for the loss of the goods, and it was decided that although as a general rule where goods are delivered to a carrier, the consignee is the proper person to bring the action against the carrier, yet if the consignor makes a special contract with the latter for the carriage, such a contract supersedes the necessity of showing the ownership in the goods, and the consignor may maintain the action against the carrier though the goods may have been the property of the consignee. The Lord Chancellor, however,
But no such objection can be urged against the prayer of the Court in this case. The question as to whether there was any other agreement between the appellants and appellees in regard to the sale and delivery of the ice, than that to be found in the correspondence and bill of lading, was fairly submitted to the jury, and the plaintiffs’ right to recover upon the finding of the facts set forth in the prayer, was based upon the express proviso that there was no other agreement in regard to the delivery of the ice.
In Blanchard et al. vs. Page et. al., 8 Gray, 281, the action was also brought by the consignor against the carrier upon a special contract, and the precise question in the case, says Shaw, C. J., is “ whether the plaintiffs named as shippers of the goods in the bill of lading may maintain an action for damages done to the goods, after they were received by the defendants at the ship for the purpose of carriage, and before
Exceptions to the general rule, as above stated, it is true are to be found arising in cases, where by the express terms of the bill of lading the goods are to be delivered to the consignor or his assigns, or where there is some other evidence showing the intention of the consignor to retain the property notwithstanding the delivery to the carrier. This is frequently done where the parties living at a distance from each other contract by correspondence, and where the vendor is desirous of securing himself against the insolvency or default of the buyer. The cases of Warle vs. Baker, 2 Ex., 1; Jenkyns vs. Brown, 14 Q. B., 496, and Ellershaw vs. Maginac, 6 Ex. Rep., 570, wore decided upon this principle.
The decision of the law arising upon this prayer makes it unnecessary to consider the other exceptions relied on by the appellants.
Finding no error in the ruling below, the judgment will be affirmed.
' Judgment affirmed.
Dissenting Opinion
dissented.
They being of opinion that there was evidence in the cause which ought to have been submitted to the jury, tending to prove that “ the cargo of ice in controversy was shipped from Boston at the risk of the plaintiffs, and was not to be paid for