McCormick & Richardson v. Joseph & Anderson
77 Ala. 236
Ala.
1884
Check Treatment
SOMERVILLE, J.

-The action is one of detinue, instituted by the appellees, against one Chitty, to recover certain barrels of flour; the appellants intervening, under the statute, as claimants of a portion of the property sued for, which appears to be eleven barrels. The whole case resolves itself into one of an alleged fraudulent purchase of the goods from appellees, Joseph & Anderson, by one Manasses, upon whose title the claimants stand, without any pretence of being purchasers for value, without notice. The plaintiffs base their right of recovery upon the theory, that Manasses was insolvent at the time he made the purchase, and obtained the goods on credit, with no intention or reasonable expectation of paying for them, and without disclosing to the appellees the status of his financial condition. It is not contended, if these facts are true, that the plaintiffs can not successfully maintain a recovery, under the authority of Loeb & Bro. v. Flash Bros., 65 Ala. 526, 538.

2. The judgment of the Circuit Court must be reversed, for one or more erroneous rulings. It was error to allow the witness Joseph, who was one of the plaintiffs, to testify that he *240sold the flour to the purchaser because he believed him to be solvent, and that “ he would not have sold had he known of such insolvency.” Matters of fact, rather than mere belief, were proper subjects of testimony to be elicited from the witness; and the issue for investigation involved what the witness had actually done, rather than what he might have done under a certain state of facts. It is well settled in this State, whatever the rule may be elsewhere, that witnesses are not permitted to testify to their motive, belief, or intention, when secret and uncommunicated; such mental status, when relevant, being a matter of inference to be determined from the circumstances of the case by the jury.— Wheless v. Rhodes, 70 Ala. 419 ; Whizenant v. The State, 71 Ala. 383 ; Burke v. The State, 71 Ala. 377; Brewer v. Watson, Ib. 299.

3. It was competent to prove the plaintiffs’ ignorance or knowledge of the failing circumstances or insolvent condition of Manasses at the time he made the purchase of the flour. It was error, however, to allow Joseph to state that his firm “understood” him to be solvent “from general report.” The evidence does not fall within the rule, that when a fact is shown once to exist, it is competent to prove a general reputation, or common report of its existence, in the business community where the party in question resided, in order to impute a probable knowledge of such fact to such party. — Humes v. O'Bryan, 74 Ala. 64, 81; Stallings v. The State, 33 Ala. 425 ; 1 Whart. Ev. § 252. There is no evidence tending to show that Manasses was ever financially solvent, other than the alleged rumors. Rumors of a false report are not. admissible to prove one’s ignorance of the truth.

4. The chief point of inquiry is, when was the sale of the flour complete, so as to pass the title to the purchaser. In our opinion, the facts in evidence show, prima faeie, that there was a constructive delivery on the twenty-third day of September, 1884, — when the indorsed bill of lading was put in the mail, directed to Manasses at Clayton. The delivery of the goods to the common carrier, it is true, was not, in this case, a delivery to the consignee. This principle applies in cases where the buyer, having previously ordered the goods, requests the seller to deliver them to some particular carrier, who is thus constituted the agent of the consignee to receive them. Pilgreen v. The State, 71 Ala. 368, was a case of this character. Here, the bill of lading, taken from the railroad company by the shippers, was made out to their order; and this operated very clearly to retain the title in themselves, by indicating an intention that it should not pass to the consignee without an assignment of this “ document of title,” as it is often denominated. The indorsement and delivery of the bill of lading, however, in the *241absence of all fraud, would vest the right of property and ownership of the merchandise comprised in its terms in the indorsee, and, where such indorsee is a purchaser, would complete' the sale from the moment of the delivery of such muniment of title. — 3 Add. Contr. § 1291; Farmers' National Bank v. Logan, 74 N. Y. 568; Anson on Contr. 216.* The delivery of the bill of lading, thus indorsed or assigned, would operate as a constructive delivery of the goods, upon a principle analogous to that which often makes the indorsement and delivery of a warehouse-receipt evidence the symbolic delivery of property. Allen v. Maury & Co., 66 Ala. 10.

5. The question, then, depends upon when the bill of lading itself must be regarded as delivered. It has been held, that the putting of a deed in the post-office, addressed to the grantee, was a sufficient constructive delivery. — 2 Greenl. Ev. § 297; McKinney v. Rhodes, 5 Watts, 343. The reason is, that by such act the grantee shows an intention to part with his entire control, or dominion over the instrument, and the acceptance of the grantee is presumed, even in the absence of positive proof, because it confers a benefit or bounty upon him. — Ex parte Powell, 73 Ala. 517; Alexander v. Alexander, 71 Ala. 295. The mailing of the bill of lading, properly indorsed, and directed to the consignee, was presumptively a parting with the control and dominion over it; the mail-carrier, as it is commonly understood in this country and in England, being the agent of the consignee to receive, rather than of the consignor to transmit mail-matter, in all such cases. In Hatchett v. Molton, decided at the present term (76 Ala. 410), where a written contract was deposited in the mail by the promisor, addressed to the promisee, and was afterwards received, it was held to have been a binding contract upon the parties from the day of its delivery in the mail. In Buffinton v. Curtis, 15 Mass. 528, it was said by Parker, C. J., that a bill of lading, indorsed, and put in the post-office, addressed to the indorsee, was a constructive delivery, and from that time passed the property in the goods. In the present case, the first bill of lading, which was mailed to Manasses on the twenty-third of September, 1884, miscarried, and was never received by him. In our opinion, this was unimportant. The transaction does not need any aid from the presumption of his assent to it, for this is expressly proved. The delivery of the instrument was complete from the time of its deposit in the mail, and this operated as a constructive delivery of the goods in controversy. To accomplish this end, the second, or duplicate copy, was not required. The consignee could have brought his action against the carrier, and have recovered without it, on proving the loss of the original in the *242mails. The rulings of the court were in conflict with this phase of the case, and were erroneous.

6. The insolvency of Manasses could not be proved by any declarations or admissions by him, -so far-subsequent to any transfer of the goods to the claimants as to constitute no part of the res gestae of the transaction. The sworn answer of Manasses in the chancery suit, shown to have been pending in the United States Court, at Montgomery, was a mere admission of such insolvency, and would be res inter alios acta, so far as concerns the appellants, if made subsequent to his parting with the title to the property.

7. The court properly refused the fourth chaí’ge requested by the appellants, because it tended to mislead the jury. It is true, perhaps, that evidence of one’s insolvency to-day can not be said, generally, to prove his insolvency a week, or ten days ago; but it is a fact to which the jury may look, and from which they would be often authorized to infer such previous state of insolvency, according to the particular facts or nature of the case. A commercial bankruptcy or suspension not uncommonly presents such an alarming disparity between the assets and liabilities of the insolvent debtor, as to render it morally certain that an assignment made by him is but the announcement of a pre-existing state of insolvency; just as the death and physical condition of a patient may often afford reasonable grounds -for the inference that these are but the culmination of a previous protracted illness.

The judgment of the Circuit Court must be reversed, and the cause remanded.