McElroy v. Seery

| Md. | Feb 28, 1884

Robinson, J.,

delivered the opinion of the Court.

On the 18th of September, 1882, T. Francis Hall, trading as T. Francis Hall & Co., ordered through one Richards, salesman for the appellee, a bill of merchandise, amounting to 8364,00. The goods were sold on a credit of sixty days to be delivered in Baltimore. At the time the order was given, the following memorandum in writing was made, by Richards:

“ T. F. Hall & Co., 88 South Charles St., Baltimore, Maryland.”

Then follows an itemized statement of the goods thus ordered and the prices agreed to be paid for the same. Richards says the memorandum was made in order that the appellee might fill the order, and for no other purpose. It was neither signed by him nor by Hall. On the same day Richards mailed the order directed to the appellee at Providence, Rhode Island, by whom it was received on the 19th of September. On the 20th of September Hall made an assignment to the appellant of all his property, rights and credits for the benefit of his creditors. On the 22nd of September the appellee shipped the goods in controversy by express, consigned to T. Francis Hall & Co., 88 South Charles Street, Baltimore, and on the 25th of September the appellant being notified by the Express Company of their arrival, he directed the goods to be delivered to Higgins, Cobb & Co., auctioneers, by whom they were sold together with the stock^in trade of Hall & Coat auction. During the month of October, 1882, the appellant notified the appellee of the assignment to him from Hall & Co., and requested him to forward his claim; and on the 31st of October the appellee directed his bookkeeper to make up and forward a statement of his claim, which was accordingly done and was received by the appellant about the 1st of November. The appellee subsequently sued the appellant in trover to recover the value of the goods.

Two questions arise in this case : First. Was there a note or memorandum in writing of the contract of sale within the 17th section of the Statute of Frauds? By the common law all that was required to give validity to a sale of personal property, whatever may have been the amount or value, was the mutual assent of the parties to the contract. This once established by evidence, either verbal or written, that the one should transfer the absolute property in the thing to the other for a money price, the contract was completely proven and binding on both parties. To prevent Frauds and Perjuries, however, the 17th section of the Statute of Frauds provided that no contract for the sale of goods, &c., of the value of ten pounds or upwards should be valid, except the buyer shall receive and accept part of the goods so sold, or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said barg’ain be made and signed by the parties to be charged or their agents thereunto lawfully authorized. It is essential, therefore, that the written memorandum should show who are the contracting persons. Not only who is the person to be charged, but also who is the person in whose favor he is charged, for it takes two to make a bargain. This was expressly so decided in Champion, et al. vs. Plummer, 4 Bos. & Pul., 252, where the plaintiff by his agent wrote down in a memorandum book the terms of a verbal sale to him by the defendant, and the defendant signed the writing, but the words were simply “ Bought of W. Plummer, &c.,” with no name of q.he person who bought. Sir Jambs Mansfield, C. J., said : “ How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties P By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the plaintiffs.” And again in Allen vs. Bennet, 3 Taunt., 169, the agreement was written in a book belonging to the plaintiff and was signed by the defendant, but the plaintiff’s name was not in the book and was not mentioned in the memorandum, and it was held that the memorandum was insufficient. Other cases might be cited, but this is unnecessary. Cooper vs. Smith, 15 East, 103, and Jacob vs. Kirk, 2 Moody & Rob., 222. In this case the memorandum was neither signed by Hall & Co., nor does the name of the appellee anywhere appear upon the face of it. It was made by Richards, the salesman, merely as an order to be filled by the appellee, and such a memorandum, according to all the cases, is not within the 11th section of the Statute.

We come now to the next and the more important question. Was there a delivery and acceptance of the goods? They had been shipped by the appellee in pursuance of Hall’s order, and they had arrived at Baltimore, and all that was necessary to complete the sale was an acceptance by him or by his agent. Unless then the assignment by Hall operated as a revocation of the agreemént to buy, he unquestionably had the right to accept them. Now it is well settled that the insolvency of the buyer does not in itself revoke an agreement for the purchase of goods made prior to the insolvency. If the property in such cases is delivered, the title vests in the assignees. The seller may stop the goods in transitu, but if he does not the title passes on delivery. Scott vs. Pettit, 3 B. & P., 471; Heinekey vs. Earle, et al., 8 Ellis & Black., 410; Conyers vs. Ennis, et al., 2 Mason, 236; Blow, et al. vs. Gage, et al., 44 Illinois, 217.

The same principle applies to the case of a voluntary assignment for the benefit of creditors. Here Hall conveyed to the appellant all his property of every kind and description, whether in possession or expectancy, for the benefit of his creditors, without preference or priority, and without exacting releases. The assignment did not interfere with, much less avoid, contracts made between Hall and other parties. On the contrary his rights and' interests under such contracts passed to the assignee. ' In all fairness it may be said the appellant ought in this case to have refused to accept thé goods and so notified the appellee. This may be true, but in other cases where the property is of a perishable character, and could not be returned without great loss, it may be to the interest of the seller that the assignee should accept and thereby complete the sale. But be this as it may, this case, like all other cases, must be governed by the general principles which lie at the bottom of all sales of personal property. The seller may before parting with the property provide against loss, but if he sees proper to sell on credit, relying on the ability of the buyer to pay, the law cannot in all cases protect him.

The case of Conyers, et al. vs. Ennis, et al., 2 Mason, 236, decided by Judge Story, is somewhat analogous to the one now before us. There Rousmaniere, a merchant of Newport, Rhode Island, on the 4th of May ordered of the plaintiff, a merchant of Charleston, South Carolina, 30 casks of rice. On the 6th of May Rousmaniere committed suicide. The plaintiff not knowing of the death of Rousmaniere, on the 16th of May shipped the rice in pursuance of the order, and on the 24th of May it arrived at Newport. The rice was delivered to the administrators of the intestate, and by them it was sold, and it was held that the vendor had no right either to reclaim the property or the proceeds of sale.

(Decided 28th February, 1884.)

“Nothing is better settled,” said Judge Stoby, “if an uninterrupted series of authorities can settle the law, than the doctrine, that the vendor in cases of insolvency, can stop the property only while it is in its transit. If it has once reaohed the consignee, there is an end of all right to reclaim it as a pledge for the payment of the purchase money. If the doctrine were to go the length now contended for, it is far from certain that it would promote public convenience or policy. Where could we stop ? Gould it be applied with safety to purchases made at any distance of time, if it should turn out in the event, that the buyer was then insolvent ? ”

In this case the goods were not only delivered to the appellant, but the appellee with knowledge of the assignment forwarded his claim to the assignee to be filed for distribution. There is no ground on which an action of trover can be maintained against the appellant. The Court erred therefore in granting the appellee’s prayer, and we must reverse the judgment without awarding a new trial.

Judgment reversed, without awarding a new trial.