76 Wis. 502 | Wis. | 1890
This is a contest between Moors & Go., of Boston, and the respondents, merchants of Chicago, for certain moneys garnished as the property of E. S. Wheeler & Co., of New ITaven, Conn. The moneys have been paid into court by the garnishees, and the question in the case is, Can Moors & Co. hold them, or are they liable to attachment and garnishee process by the creditors of Wheeler & Co. ? The facts upon which Moors & Co. claim the money are, in substance, these:
In May, 1887, Moors & Co., bankers, issued a letter of credit to E. S. Wheeler & Co. of Liverpool, England, authorizing them to draw upon Morton, Rose & Co., of London, for £10,000, for account of E. S. Wheeler & Co. of New Haven, Conn. These drafts were to be for the invoice cost of merchandise to be shipped to Atlantic ports in the United States, and were to be accompanied by consular invoices and bills of lading to order, and indorsed to Moors & Co. The latter were to pay, or provide for the payment of, these drafts thus drawn. On the back of the letter of credit, E. S. Wheeler & Co. of New Haven executed an agreement by which they bound themselves to furnish Moors & Co. bankers’ bills on London of the same amount, to meet these drafts, before maturity of the same, or pay the equivalent thereof in cash at current rates of exchange, and also agreed to pay certain specified commissions for the acceptances of Moors & Co. They further pledged and gave Moors & Co. a specific claim and lien on all goods and merchándise, and the proceeds thereof, which
E. S. Wheeler & Co. was the name under which E. S. Wheeler did business in this country. He was also a member of the Liverpool firm to whom the letter of credit ran. In Juty, 1887, E. S. Wheeler & Co. of Liverpool, at the request of E. S. Wheeler of New Haven, shipped, by the steamer Sarmalian, 715 boxes of tin plates and 214 boxes of tin plates, taking separate bills of lading therefor, executed in triplicate, by which the carrier undertook to transport the first lot from Liverpool to Chicago, and the other lot from Liverpool to Milwaukee. Drafts were drawn for the invoice price of the goods shipped, and the bills of lading were indorsed: “ Deliver to Moors & Co. or order.” In July, 1887, E. S. Wheeler & Co. of New Haven requested Moors & Co., by telegraph, to send the documents for the Sarmatian shipments to the custom-house agent of the Grand Trunk Railway at Montreal. The goods were to be delivered by the steamer at the port of Montreal to the Grand Trunk Railway, to be forwarded by such company to their destination. Moors & Co. thereupon forwarded to the said customs agent a consular invoice and bill of lading for the 715 boxes of tin plates, and a consular invoice and bill of lading for the 214 boxes of tin plates, with instructions to forward the freight to Chicago and Milwaukee, as called for by the bills of lading, and by letter so informed E. S. Wheeler & Co. of New Haven, sending them at the same time a consular invoice and bill of
The 214 boxes of tin plates arrived at' Milwaukee, August 13, 1887, and were entered at the custom-house, and afterwards were delivered to a custom-house broker to whom E. S. Wheeler & Co. had sent two bills of lading indorsed to them b}*- J. B. Moors & Co. for that purpose. The broker delivered said boxes to the garnishees, according to the instructions of E. S. Wheeler & Co., on August 16 and 17, 1887.
The moneys in controversy are the proceeds of these tin plates; and, upon the facts stated, the question is, To whom does the fund belong,— to Moors & Co., or to the simple
There are numerous decisions to the effect that, where a commercial correspondent advances money for the purchase of property, and takes possession either actually or symbolically, he becomes the owner thereof, even when the advance was made and the property was purchased at the request and for the ultimate use and profit of another, and there was an agreement to transfer the title to that other upon the performance of certain conditions, and ownership was taken solely for the protection of the party making the advance. Many of these decisions are cited in the briefs of counsel which firmly establish that rule of law. We shall not comment upon them, as we do not deem it necessary. The intent of the parties in this case is perfectly clear. Wheeler & Co. received the plates as the property of Moors & Co., with a restricted power of sale; and, as between them and the owner or principal, the proceeds belong to the latter. It is for their protection that the rule of law just referred to exists. Now, it will be borne in mind that the respondents stand in the place of Wheeler & Co. so far as the proceeds are concerned. As those proceeds arise
It is said this contract, being in the nature of a conditional sale, -was not valid, because not filed in the proper office as required by sec. 2317, R. S. That section does invalidate a conditional sale of personal property, as to third parties, unless the contract is filed in the office of the clerk of the town, city, or village where the vendee resides, or, if a nonresident, then in the office of the clerk of the town, city, or village where the property may be at the time of making such contract. In this case, neither the vendor nor the vendee resided in this state, and the tin plates were in transit from Liverpool to Milwaukee when the contract was made. Resides, the contract must be regarded as either a Massachusetts or a Connecticut contract,— and it is immaterial which,— and is governed by
So, upon the facts, we are quite clear that Moors & Co. are entitled to the avails of the tin plates which were sold to the garnishees, because they must be deemed the owners of the property. This is the plain meaning of the contract, and there is no statutory provision in this state which is in the way of giving effect to the intention of the parties in that regard. The respondents, as we have said, are simple creditors of E. S. Wheeler & Go., and their rights to these moneys are no stronger than the debtors’ were. Nor did Moors & Co. waive any right to claim the fund by proving their claim against the debtors’ estate in insolvency. Francis v. Evans, 69 Wis. 115; McLeod v. Evans, 66 Wis. 401.
It follows from these views that the judgment of the circuit court must be reversed, and the case remanded with directions to that court to order the fund to be paid to Moors & Co.
By the Court.— It is so ordered.