New Haven Wire Co. Cases, 57 Conn. 352

57 Conn. 352 | Conn. | 1888

Lead Opinion

Beardsley, J.

This is an application to the Superior Court for the county of New Haven for an order compelling the receiver of an insolvent corporation to deliver specified articles of personal property to the applicants, of which they claim to be the owners, but which he holds as the property of the corporation.

On or about September 7th, 1887, Samuel A. Galpin of New Haven was duly appointed the temporary receiver of the New Haven Wire Company, a corporation located at New Haven. He was subsequently made and still is receiver, and as such duly holds possession of the property and effects of the corporation, and is proceeding to wind up its affairs and dispose of its property and effects pursuant to law. As such receiver there came into his possession certain machines for the manufacture of nails, and about 2635 tons of wire rods. He claims this property as that of the corporation.

Concerning a portion of this property Baring Brothers, of London, England, make the following application:—

“The application of Baring Brothers, and of Kidder, Peabody & Co., respectfully represents that said firm of Baring Brothers is a firm engaged in the business of banking at London, in the kingdom of Great Britain, and that Kidder, Peabody & Co. are the American agents and correspondents of said Baring Brothers, doing business in the city of New York; that the New Haven Wire Company is a corporation organized under the laws of the state of Connecticut, and located in New Haven in said state; that one Samuel A. Galpin has been appointed temporary receiver of the assets, effects and estate of said corporation, and has duly qualified as such, and is now in possession of the property and effects of said corporation, and is proceeding to wind up its affairs and to dispose of its property and effects, pursuant to the statute in such case provided; that among the property and effects which have come into the custody of said Galpin as receiver, are certain bundles of wire rods, in all about one thousand tons thereof, and certain other property and effects, which are the proper goods and estate of your applicants, and to the immediate possession whereof your applicants a,re entitled, and which your applicants are desirous of having delivered out of the custody of said receiver and into the possession of your applicants. Your applicants therefore pray your honor to order and decree that upon proof of ownership, and of the right to the possession of said wire rods and other property, said receiver be authorized and empowered to deliver the same to your applicants.”

Concerning another portion, Brown Brothers & Co. of New York, and Brown, Shipley & Co. of Liverpool and London, England, make the following application:—

“Your applicants are the absolute owners and entitled to the immediate possession of certain personal property, now situated in the yard owned and occupied by said corporation, to wit, twenty thousand bundles of iron and steel rods and wire, and seven boxes of nail machines; and are also the owners and entitled to the immediate possession of certain other personal property, to wit, fifty thousand bundles of iron and steel rods and wire, in which said corporation or said receiver may claim some equitable interest. Said receiver claims to have the custody of all of said property and desires to have the order of this court before surrendering the same to your applicants. A large amount of the property of your applicants had been sold by said corporation prior to the appointment of the receiver and not paid for, and the debts and choses in action accruing therefor, a more particular description of which your applicants are at present unable to give, are now held by said corporation or said receiver, and your applicants are entitled to have the same turned over and assigned to them. Said corporation, or said receiver thereof, now holds a large amount of cash on hand, proceeds of the sale of property of your applicants, which proceeds of such sales your applicants are legally entitled to receive. Your applicants therefore pray that inquiry be made into the truth of the allegations of this application, and on finding them to be true, that an order be made that said receiver deliver and turn over to your applicants all personal property in his custody or in the custody of said corporation belonging to your applicants or which they are entitled to hold, and assign and transfer to your applicants all choses in action and the evidences thereof to which they are entitled, and pay over to them all cash on hand which they shall be found entitled to receive; or that the court iii some other way would grant relief to your applicants.”

Concerning another portion, Heidelbach, Iekelheimer & Co. of New York, make the following application:—

“The application of Heidelbach, Iekelheimer & Co., bankers of the city and state of New York, respectfully represents that they are the owners of certain iron and steel rods of various sizes, and certain other property and effects, now in the custody and keeping of the customs authorities of the United States of America, and stored upon premises in said town of New Haven near the mills of the New Haven Wire Company; that other iron and steel rods, owned by other and different parties, are stored upon the same premises, which premises are attached to the mills of the said New Haven Wire Company, of which Samuel A. Galpin of said New Haven is the receiver; and that it is important to the interests of your applicants, and of said receiver, and of all the other owners of iron and steel rods as aforesaid, that the specific property owned by each he designated in some proper manner, and the same removed or otherwise disposed of. Wherefore your applicants pray that the foregoing matters be inquired into, and upon the same being found to be true, that an order may be made directing said receiver to deliver to them the above described property, they paying the custom duties thereon, and that such other order may be made as to equity and justice may appertain.”

These applications were referred to a committee to find and report the facts pertaining to each; and upon the coming in of the report the question as to what order should be made in the premises, was reserved for the advice of this court. Most of the facts found being common to the three applications, they were heard in connection.

It is a sufficiently full recital of the facts in the case of Baring Brothers & Co. to say that the New Haven Wire Company is a corporation in this state. E. S. Wheeler was the owner of a majority of its shares, and its manager. He individually carried on business at New Haven and New York under the name of E. S. Wheeler & Co. Also he and one Humphrey were commission merchants in Liverpool, England, under the name of E. S. Wheeler & Co. Kidder, Peabody & Co. were bankers in New York and Boston, representing in the United States Baring Brothers & Co., bankers in Liverpool and London.

At its mill in New Haven the New Haven Wire Co. manufactured wire, chiefly from rods purchased in Germany, to he paid for upon delivery. Being unwilling to furnish the capital and subject itself to the expense necessarily attendant upon placing money in Germany for the purchase of the rods, it availed itself of the credit of Baring Brothers & Co. through Kidder, Peabody & Co.; E. S. Wheeler & Co. of Liverpool acting as its agent in the purchase of rods from the manufacturers.

Baring Brothers & Co. agreed to accept drafts drawn by E. S. Wheeler & Co. of Liverpool against rods, upon terms. Their acceptance would command money at low rates in all commercial centers. They were willing to furnish the credit for the lowest price, if they could have the highest degree of security. To this end they demanded and received a contract from the New Haven Wire Co. in consideration of their advancements, the pertinent part of which is as follows :—

“New York, February 16th, 1887.

“Received from Messrs. Kidder, Peabody & Co.,the original of the within letter of credit for ten thousand pounds sterling, say 10,000, stg. In consideration whereof we hereby agree with-Baring "Brothers & Co., and Kidder, Peabody & Co., respectively, to provide and furnish to Kidder, Peabody & Co., or Baring Brothers & Co., sufficient funds to meet the payment (in London), at or before maturity, of whatever bills may be drawn or negotiated by virtue of such credit, together with the commission upon the amount of such bills, which it is agreed shall be one-half of one per cent on drafts at sixty days’ sight or two months’ sight, three-quarters of one per cent on drafts at ninety days’ sight; one per cent on drafts at four months’ sight; and one and one-half per cent on drafts at six months’ sight. And we also agree to give to and deposit with Kidder, Peabody & Co. sufficient and satisfactory security here, at any time prior to the maturity of said bills, for the full payment thereof, if notified by Baring Brothers & Co. or by Kidder, Peabody & Co. to do so; and, in addition to such obligation to give said security, all property as for cost of which bills shall be drawn under the within credit, and the proceeds thereof and the policies of insurance thereon, (which insurance to the amount of the value of such property we agree shall be duly effected and which insurance we agree shall be satisfactory to Baring Brothers & Co. and to Kidder, Peabody & Co.,) together with the bills of lading for the same, are hereby, in consideration of this credit, sold, assigned and transferred to Baring Brothers & Co. and to Kidder, Peabody & Co., (subject only to our right to acquire title to the same by the complete and strict performance of this contract,) as collateral security for the payment as above promised, and also of any other sums which may at the time of such purchase, or at any time before the making of the payment above promised, be owing by us to Baring Brothers & Co. or to Kidder, Peabody & Co. It being understood and agreed that, as between us and Baring Brothers. & Co. and Kidder, Peabody & Co., the parties authorized to draw bills under said credit are in all respects to be regarded as our agents, and that neither Baring Brothers & Co. nor Kidder, Peabody & Co. are to be under any responsibility to us in respect to the bills of lading or other documents which they have the right to require to accompany the'bills drawn, nor shall any error in, or nonconformity to, or deficiency of, bills of lading or other documents, be any defence against our obligation for reimbursement in respect of bills actually drawn by the party designated for drawing bills under said credit, the provision for such bills of lading and other documents being intended merely for the purpose of affording additional security to Baring Brothers & Co. and Kidder, Peabody & Co.”

When, upon the order of E. S. Wheeler & Co. of Liverpool, the German manufacturer had completed and was ready to deliver a particular lot of rods, they caused it to be shipped, taking the consular invoice and the bill of lading in the name of Baring Brothers & Co., and delivered these documents to them, together with a draft on them for the value of the rods mentioned in the bill of lading as set forth in the invoice. The draft specified the particular letter of credit under which it was drawn. Upon the receipt of the invoice and bill of lading they accepted the draft. E. S. Wheeler & Co. of Liverpool at once sold it and paid the manufacturer from the proceeds. Baring Brothers & Co. notified Kidder, Peabody & Co. of these transactions and forwarded the invoice and bill of lading to them. The latter delivered the rods to E. S. Wheeler & Co. of New Haven, as agents for the New Haven Wire Co., upon condition of the execution and delivery by the latter to Kidder, Peabody & Co. of the following or a like receipt.

“New York, May 26th, 1887.

“Messrs. Kidder, Peabody & Co., New York: Gentlemen,—We acknowledge receipt from you, as attorneys for Messrs. Baring Brothers & Co., of invoice and bill of lading of Galpin, sixteen hundred and forty bundles iron rods, wg. 40,640 kos, (Liverpool £401. 8. 10), and eleven hundred four bundles. Received the above.

“ C. E. Herring, May 26th, 1887'.

“ Shipped by E. S. Wheeler & Co., on board steamship Rhynland, at Antwerp, and consigned to the order of Messrs. Baring Brothers & Co., and endorsed by you, as their attorneys, to us; and we hereby agree to hold the said goods in trust for them and as their property and subject to their order, with liberty however to sell the same, provided that in case of sale we-account for and forthwith pay and deliver the proceeds or avails of said sale to Messrs. Baring Brothers & Co. and Messrs. Kidder, Peabody & Co., which we hereby agree to do; such proceeds belonging to Messrs. Baring-Brothers & Co. and Messrs. Kidder, Peabody & Co., and not to us, the said goods being goods held for them as security under the agreement contained in the receipt signed by us for your letter of credit on them, No. 844; we agreeing, at our expense, to keep them covered by insurance against fire, for account of and loss payable to Messrs. Baring Brothers & Co., under and in pursuance of the terms of said agreement.

“ The New Haven Wire Co.

“ B. E. Brown, Treasurer.”

The decisions are so numerous, and by so many courts, to the effect that when a commercial correspondent advances money for the purchase of property and takes possession, either actual or symbolical, he becomes the owner thereof, even when the advancement was made and the property was purchased at the request and for the ultimate use and profit of another, and there is an agreement to transfer title to that other upon the performance of conditions precedent, and ownership was taken solely for the protection of the advancement, that such may be said to be the established rule.

In Dows v. National Exchange Bank, 91 U. S. R., 618, the marginal note is to this effect:—" A party discounting a draft and receiving therewith, deliverable to his own order, a bill of lading of the goods against which the draft is drawn, acquires a special property in them, and has a complete right to hold them as security for the acceptance and payment of the draft. Where such party forwarded the draft with the bill of lading thereto attached, to an agent with special instructions by special indorsement on the bill and by letter to hold the wheat in the bill mentioned, against which the draft had been drawn, until payment of the draft should be made, the agent had no power, prior to such payment, to make a delivery which would divest the ownership of his principal.” And in the opinion it is said of a bank which had discounted drafts drawn against the property, and to which bills of lading were delivered with the drafts as security, that it became the owner of the property, and had a complete right to maintain ownership until payment.

In Moors v. Kidder, 106 N. York, 82, it is said as follows: “ When a commercial correspondent, however set in motion by a principal for whom he acts, advances his own money or credit for the purchase of property and takes a bill of lading in his own name, looking to such property as the reliable and safe means of reimbursement up to the moment when the original principal shall pay the purchase price, he becomes the owner of the property instead of its pledgee, and his relation to the original mover in the transaction is that of an owner under a contract to sell and deliver when the purchase price is paid. * * * The bill of lading is the evidence of title and is sufficient to vest the ownership and absolute control in him to whose order it is drawn.”

Concerning a contract of a character similar to the one under consideration the court remarks as follows:—“ Swain, on his part, agreed to provide funds in London to meet such bills as should be drawn at their maturity, and that ‘all property which shall be purchased by means of the within credit, together with the bills of lading for the same, are hereby pledged and hypothecated to Messrs. Baring Brothers & Co. as collateral security for the payment as above promised, and shall be held subject to their order on demand, with authority to take possession and dispose of the same at discretion, for their security and reimbursement.’ The argument upon this provision rests upon the words ‘pledged’ and ‘hypothecated ’ and ‘collateral security,’ and avers as a consequence that Swain was, within the contemplation of the parties, general owner of the shellac, and the Barings merely pledgees. * * * It has already been mentioned that a similar expression was used by the plantiff in the Logan case, in the matter stamped upon the bill of lading describing the wheat as ‘ pledged ’ to the plaintiff and as ‘ security ’ for the payment of the draft, and so little did the use of the inapt words affect the plain and unequivocal substance of the transaction in the mind of the court, that the use of the word ‘ pledged ’ was not even made the subject of remark. * * * It is also to be noted that what.is spoken of as ‘pledged’ is not merely the goods or the property, but the bills of lading also. These documents carry the title as well as the right of possession, and the pledge or hypothecation is expressly applied to both. The meaning assuredly was that the title should pass.”

In Commercial Bank of Keokuk v. Pfeifer, 108 N. York, 242, the marginal note is, that the “ discount of a draft drawn by a consignor upon his consignee, accompanied by a bill of lading to the party making the advance, passes to him not only the legal title, but in the eye of the law is regarded as an actual delivery and change of possession of the property.”

In Farmers & Mechanics Bank v. Logan, 74 N. York, 568, the marginal note is to this effect:—“When commercial correspondents, on the order of a principal, make a purchase of property ultimately for him, but on their own credit or with their own funds, and such course is contemplated when the order is given, they may retain title in themselves until they are reimbursed. This may be done by taking the bill of sale in their own name, and, when the property is shipped, taking from the carrier a bill of lading in such terms as to show that they retain the power of control and disposition of it. The bill of lading confers upon the person in whose favor it is issued, or to whom it is transferred, the title to the goods, and tins, although the transaction is not intended to give the permanent ownership, but to furnish security for advances of money or discount of commercial paper made upon the faith of it. Third persons dealing with the property thus shipped, though acting in good faith, in the regular course of business, and paying value, are affected by and chargeable with constructive notice of the contents of the biff of lading.”

In Barry v. Boninger, 46 Maryland, 59, the marginal note is to this effect:—“ A cargo of sugar was imported by S. A. & Co. under letters of credit from the plaintiffs, and arrived in Baltimore under bills of lading in their name, in accordance with the agreement between them and S. A. & Co. contained in the letter of credit. Upon the arrival of the vessel S. A. & Co. gave them a receipt for the sugar specified in the bill of lading, in which it was stated that they agreed to hold it on storage as the property of the plaintiffs, with liberty to sell the same and account to them for the proceeds, until the drafts drawn by S. & B. on London, in pursuance of the letter of credit, and accepted by them against the cargo of sugar, should be provided for. The cargo was sold to M. N. & Co. of Philadelphia through the defendants as brokers, but before it was all delivered S. A. & Co. failed. The defendants were then authorized to deliver the balance of the cargo and draw for the proceeds. Upon the receipt of the money from the purchasers the defendants retained out of it the amount due them from S. A. & Co. for brokerage in selling other cargoes imported by them and not belonging to the plaintiffs. Held that the property in the sugar was in the plaintiffs under the letter of credit and S. A. & Co.’s trust receipt; that the property of the sugar so being in the plaintiffs, the defendants had no lien upon it for, and could not retain out of it, the amount due from S. A. & Co. for brokerage effected by them.”

In Forbes v. Boston & Lowell R. R. Co., 133 Mass., 154, the marginal note is as follows :—“ The transfer and delivery of an inland bill of lading of goods, by the consignee, to a person who advances money upon them, is not in form or effect a mortgage, but vests in such person a property in the goods which entitles him to maintain an action against one who wrongfully converts them.”

In Moors v. Wyman, 146 Mass., 60, the plaintiff issued to a Boston firm letters of credit to bankers in London, under which the firm bought hides, taking bills of lading to the plaintiff’s order by agreement, the plaintiff to have a lien on the hides, bill of lading, and policy of insurance, with authority to take possession and dispose of them at discretion, for his security or reimbursement. He indorsed the bills of lading to the Boston firm, they signing an agreement that they received the hides as his agent, to be converted into leather for him, and were to deliver to him the identical leather into which the hides should be converted. The intention of the agreement was stated to be to protect and preserve unimpaired his lien. It was held that the plaintiff had a title, whether absolute or qualified did not matter; and that his indorsement of the bills of lading to the Boston firm did not release that title.

Undoubtedly, upon decisions by the English courts, when E. S. Wheeler & Co. of Liverpool, acting for the New Haven Wire Co., delivered to Baring Brothers & Co. consular invoices and bills of lading of rods on shipboard in the name or to the order of the latter, in exchange for the acceptances which paid for the rods, in pursuance of the agreement which procured the letter of credit and for the purposes therein expressed, the ownership was in them. Wait v. Baker, 2 Exch., 1; Shepherd v. Harrison, L. R., 5 H. L., 116; Turner v. Trustees of Liverpool Locks, 6 Exch., 543; Mirabita v. Imperial Ottoman Bank, L. R., 3 Exch. Div., 172; Barber v. Meyerstein, L. R., 4 H. L., 334.

In the present case, by their acceptance of the draft of E. S. Wheeler & Co. of Liverpool, Baring Brothers in effect purchased and paid for the rods from their own money. By this act, and by the taking of the consular invoices and bills of lading for the same in their own name, in pursuance of the agreement, they became absolute owners thereof; absolute for all purposes of this application, notwithstanding the fact that they were under obligation to sell them to the New Haven Wire Co. upon the performance by the latter of its agreement. They could have sold the rods to a third person and have given him perfect title, leaving the Wire Co. to its action for damages for a breach of contract to deliver to it. The possession of the bills of lading to their own order and of the consular invoices, in addition to and because of the fact that they had advanced the money for the purchase of the rods therein described, made them owners, with all attending rights. They had actual and exclusive possession, by symbol.

It was the sole purpose of the New Haven Wire Co. to cause rods to be laid down at its mill in New Haven, at the least possible outlay, with the right to redeem them and convert them into wire. This it accomplished by its arrangement with Baring Brothers. This accomplished, the conditions imposed were matters of no consequence to it. It was the sole purpose of Baring Brothers to obtain their commission and the highest security for their advancement. Therefore they became owners of the rods, under an agreement to sell and deliver upon performance of a precedent condition, because ownership gave the greatest possible certainty that they would suffer no loss. They relied upon that for repayment, refusing to rest upon the Wire Co. or upon E. S. Wheeler & Co. They did not desire to deal in rods as merchants, nor to manufacture them into wire, but the law permits ownership for security equally with ownership for profit. Although the New Haven Wire Co. first moved in this series of transactions, and the end desired was profit to itself from the ownership and sale or use of iron rods, its intent to supplement and confirm by express contract the title which the law confers upon the commercial correspondent is quite plain. To prevent any inference of present ownership in itself from the fact that ultimate ownership and profit or loss were to be upon it, it proceeds to “sell, assign and transfer” to the correspondent all property thereafter to be paid for by them upon its request. The meaning of which words applied to rods thereafter to be purchased, perhaps manufactured, is that it will not make, nor allow any person to make in its name, any claim, legal or equitable, to ownership thereof, until repayment of the purchase money to the correspondents. The contract binds these last to pay for the rods, and upon the performance of conditions precedent to transfer title; and it binds the New Haven Wire Co. to perform the conditions and take the title; and the phrases “ collateral security,” and “ additional security,” while they recognize and preserve to it this right to title upon performance, put no limitations upon ownership by the correspondents. A contract of purchase and sale is within legal protection, although the vendee takes title merely for protection, and agrees to re-sell upon the performance of conditions, if the transaction assumes that form in good faith. The intent of the parties stands clear in the light of the trust receipt. The Wire Co. was able to obtain possession of the rods only upon its written agreement to hold them in trust for the applicants, and as their property and subject to their order, with liberty to sell as the property of the applicants, and that in case of sale it would account for and forthwith deliver the proceeds to them, declaring that these belonged to them and not to itself, and that it held the rods for them as security under the agreement contained in its receipt for the letters of credit. The ownership by the applicants, which is hereby so distinctly acknowledged, can be only that which resulted from their acts of payment, and of taking the bill of lading in their own name, in pursuance of that agreement.

The result is not varied by the fact that the German manufacturers permitted E. S. Wheeler & Co. of Liverpool to have possession of bills of lading of rods on shipboard at Antwerp, either in their own name or that of the applicants. In all cases the former immediately indorsed and delivered them to the latter in exchange for their acceptances, sold these, and with the proceeds redeemed their obligation to pay the manufacturers cash upon delivery. In effect through them the manufacturers delivered the rods to the applicants for money paid by these last; and they having, at the request of the New Haven Wire Co., paid the money and taken the bills of lading and consular invoices in their own names, became owners as perfectly as if they had dealt with the manufacturers without the intervention of E. S. Wheeler & Co. of Liverpool. Whatever of title, in form, was in these last, was theirs, upon the understanding of all the parties, for the sole purpose of passing it to the applicants, for the reason that they had paid for the rods. As E. S. Wheeler & Co. of Liverpool ordered rods at the request and for the ultimate benefit of the New Haven Wire Co., and as neither they nor their principal furnished either money or credit, the act of E. S. Wheeler & Co. of Liverpool was in legal effect simply a requirement of Baring Brothers & Co. to perform their obligation to buy and pay for specified lots of rods.

The applicants, being owners of iron rods, could make a conditional sale thereof accompanied by delivery of possession, to the New Haven Wire Co., and yet retain the ownership until the fulfillment of all conditions. This, upon the familiar principle that a man may condition as he will with his own provided he does not violate any rule of law. Or, as the rule is stated in Benjamin on Sales (2d Am. ed., § 320)—“ When the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” In Harkness v. Russell, 118 U. S. R., 663, it is declared that the rule “is established by overwhelming authority; namely, that, in the absence of fraud, an agreement for a conditional sale is good and valid, as well against third persons as against the parties to the transaction.” See also Ballard v. Burgett, 40 N. York, 319; Bean v. Edge, 84 N. York, 510; Forbes v. Marsh, 15 Conn., 394; Lewis v. McCabe, 49 Conn., 141; Burbank v. Crooker, 7 Gray, 158. And this, notwithstanding the fact that the delivery is accompanied by permission to sell, provided the Wire Co. shall sell as the property of the applicants and hold the proceeds in trust for them.

The conditions may be not only that the vendee shall pay the value of the property sold, but also that he shall pay all other indebtedness to the vendor. To the validity of the transaction it is only requisite that it shall be one of good faith, and not a cover for a pledge.

A rule of law requires the vendee of personal property of which the vendor has had visible possession and use, to make such change of possession and use as will thereafter prevent the public from giving credit to the vendor upon the strength of an apparent continued ownership of that which has become the property of another, if he will protect himself in his purchase. But that rule does not render a conditional sale impossible. The conditional vendor continues in himself the ownership. In effect he has deposited his property in the hands of a bailee. And the law does not, as an universal rule, protect a man in the assumption that he who asks for credit is the owner of every article of personal property of which he has possession; it imposes upon the intending creditor the' obligation to inquire into the character of that possession ; and inasmuch as the inquiry is a necessity, it does not concern the public that the conditions are many; the answer will reveal all.

The applicants severally, as owners, delivered possession of rods to the New Haven Wire Co., with permission to sell and hold the proceeds as their own for them, and under an agreement to convey title to it upon the performance of certain conditions precedent. Reception upon these terms required it to hold the rods of each applicant so delivered apart from all other rods, preserving power of identification. But in fact it mingled the rods of the several applicants in confusion and identity was lost. After surrender upon the trust receipt the applicants made no inquiry concerning the rods. They had not asked the Wire Co. for any account either of sales or of manufacture thereof up to the time of the failure of E. S. Wheeler & Co. They did not know of the mingling of their rods with those of other owners, nor that the Wire Co. had manufactured their rods into wire before they were reimbursed for the acceptances which paid for them, except that Kidder, Peabody & Co. had knowledge ,of the sale of one lot of rods by the Wire Co. in New York before payment of the acceptance by which it was procured, and the proceeds were deposited with them for the purpose of keeping open the line of discount and were not applied in payment of the draft drawn against the rods sold. With this exception it was not proved that the applicants knew that the Wire Co. sold rods before paying the draft drawn against them. They believed that the Wire Co. and E. S. Wheeler & Co. would faithfully perform their obligations under the trust receipts.

As a matter of law it was the privilege of the applicants to believe, and to rely upon the belief, that both the Wire Co. and E. S. Wheeler & Co. would faithfully keep their promises. They were under no legal necessity to have knowledge of violations. The Wire Co. not having communicated information of violations could not have based a claim of waiver thereon. No more can its creditors.

Waiver is the intentional relinquishment of a right upon knowledge; it is to be proven as a fact. There is no finding of waiver; it is not for this court to find it.

The right of a creditor to sequester a portion of the debtor’s property by attachment, and thereby gain priority over other creditors, is suspended by the appointment of a receiver. That officer, as the agent of the law, takes from the debtor’s possession all his property for division among all creditors in equal proportions. The rights of all creditors are in him as their representative. It is quite unimportant whether the law effects this purpose by the agency of a trustee appointed by the Court of Probate or by a receiver appointed by a court of law. Equally in either mode, whatever right any creditor could have enforced for his sole advantage, the law will enforce for him and all others in equal proportions.

The principle underlying the claims of the applicants results from decisions by the Supreme Court of the United States, by courts of last resort in New York, Massachusetts and other states, and by courts in England, and may well find recognition here. Therefore we have not considered it necessary to discuss the question as to whether the contracts under review are to be regarded as having been made in New York or in Connecticut, the result being the same.

In accordance with their agreement the applicants Baring Brothers & Co. or Kidder, Peabody & Co. made conditional sales and deliveries of rods to the Wire Co. upon conditions as follows: The Wire Co. agreed to hold the rods in trust for them and as their property and subject to their order, with liberty however to sell, provided that in case of sale it should account for and forthwith pay and deliver the proceeds or avails of the sales to them, which it agreed to do ; such proceeds belonging to them and not to it; the rods being held by it for them as security under the agreement contained in a receipt signed by it for a letter of credit issued by them to it. In consideration of the letter of credit the Wire Co. agreed to furnish money to them for the payment of all bills drawn under the letter; also it sold, assigned and transferred to them all property for cost of which bills should be drawn under the letter, as collateral security for the payment as above promised; also for any other sums which might at the time of such purchase or at anytime before the making of the payment above promised, be owing by the Wire Co. to them. The effect of the trust receipt and of the agreement thus recited is, that each lot of rods delivered by Baring Brothers & Co. or Kidder, Peabody & Co. to the Wire Co. remained their property until the latter should repay the acceptance importing those rods: also all indebtedness due at the time of payment of the importing acceptance.

The applicants, Brown Brothers & Co., made conditional sales and deliveries of nail machines and of rods to the New Haven Wire Co. upon conditions as follows: The Wire Co. agreed to hold the nail machines and rods in trust, with liberty to sell the same, and in case of sale to hand the avails as soon as received to Brown Brothers & Co. as security for due provision for the acceptance of Brown, Shipley & Co. of Liverpool on its account noted at foot; and it further pledged to them the machines and rods and the proceeds thereof as security for the payment of any other indebtedness of it to Brown, Shipley & Co. In consideration of the letter of credit issued by Brown Brothers & Co. to it, the Wire Co. agreed to pay the drafts drawn under the letter; it also gave to them a specific claim and lien on all goods and the proceeds thereof for which Brown, Shipley & Co. should come under any engagement in virtue of the letter; also pledged to them the goods and the proceeds thereof as security for any other indebtedness from it to them. The effect of the , trust receipt and of the agreement thus recited is, that each nail machine and each lot of rods delivered by Brown Brothers & Co. to the Wire Co. remained their property until the latter should repay the acceptance importing its nail machines or the rods; also all indebtedness due at the time of payment of the importing acceptance.

Heidelbach, Ickelheimer & Co. are bankers and commercial correspondents in New York. As such, at the request of the New Haven Wire Co., they opened a credit for it with C. J. Hambro & Son, bankers and commercial correspondents in London. It was the understanding of all parties that, as a result of the series of transactions undertaken, Heidelbach, Ickelheimer & Co. should purchase, pay for, and become the owners of rods, ultimately to be sold to the Wire Co. upon conditions precedent. It was understood that they would put their own money into the hands of E. S. Wheeler & Co. of Liverpool, to enable the latter to fulfill their obligations to pay the manufacturers cash upon delivery ; that they would place their money in Liverpool through C. J. Hambro & Son, acting for them, and that the latter would for them demand and receive bills of lading and consular invoices to their order—symbolical possession of rods thus paid for. In further pursuance of the understanding, C. J. Hambro & Son passed this title, with possession, to Heildelbach, Ickelheimer & Co., who repaid the advancements. They then came into actual possession of rods for which they had paid, holding them as the sure means of regaining the cost.

They are therefore the commercial correspondents for whose protection the rule exists. And this result is in accord with the written contract executed by the Wire Co. by which it agreed that all rods purchased under the letter of credit were pledged and hypothecated to them for repayment of such money as they should advance. Regardless of the number of agents who might be employed, the burden of paying their own money, and trusting solely to the rods for repayment, fell at last where in the beginning it was intended that it should fall. Hambro & Son were a link in the chain connecting the applicants with the Herman manufacturers ; there might have been others and yet the result remain the same.

Heidelbach, Ickelheimer & Co. made conditional sales and deliveries of rods to the Wire Co. upon conditions as follows:—The Wire Co. agreed to hold the rods in trust for them and as their property until the proceeds thereof should be actually turned over to them; the rods being subject to their order and their rights as owners thereof; the delivery to the Wire Co. of the bill of lading not to operate as a waiver of their ownership, nor of due performance of the agreement in the receipt signed by the Wire Co. in consideration for their letter of credit. The Wire Co. in consideration of the letter of credit agreed to provide money for the payment of all bills drawn thereunder ; it also pledged to them all property which should be purchased by means of the letter of credit, as collateral security for the fulfillment of its agreement to pay; also, for the payment of any other sums which might at the time being be owing by it to them. The effect of the trust receipt and of the agreement thus recited is, that each lot of rods delivered by Heidelbach, Iekelheimer & Co. to the Wire Co. remained their property until the latter should repay the acceptance importing the rods; also all indebtedness due at the time of payment of the importing acceptance.

This rule to be applied also to all rods concerning which the condition upon which the Wire Co. received them from Heidelbach, Iekelheimer & Co. should still rest in parol, if the terms thereof were as those of the written conditions applied to other rods, as set forth in the record in the case of these applicants.

It was the understanding and intention of all parties to these agreements that whenever the absolute title to a particular lot of rods so delivered upon conditions should be necessary to the Wire Co. for the profitable conduct of its business, it should then be possible to it to obtain such title ; to obtain it, if need be, contrary to the will of the applicants by a sufficient tender. And as it was the expectation of all parties that importation and conditional sales and deliveries would succeed each other to an indefinite point In the future; that for these an overlapping succession of acceptances would come into existence extending to a constantly receding date, it is not within the reasonable interpretation of the contract to say that it contemplated the burdening of each lot of rods with this accumulating indebtedness; nor to say that the applicants required from the Wire Co. the payment of acceptances before maturity as a condition precedent to obtaining title to rods which it had paid for. It is rather to be interpreted as permitting it to obtain such absolute title by paying for the rods, and by paying in addition such other indebtedness from it to them as should then be due; by paying a sum capable of such exact computation as to be the basis of a valid tender. Thus all rods purchased under all letters of credit, whether the letter was exhausted by one or several acceptances, were sold upon condition of the payment of the purchase price, and no acceptance was without the security of that condition, The several expressions, “ and also of any other sums which may at any time before the making of the payment above promised be owing by us,” and “ we further pledge to you said goods and the proceeds thereof as security for any other indebtedness of ours to you,” and “ for the payment of any other sums which may at the time being be owing by us to you,” are all referable to the time when the Wire Co. should pay the cost of the particular lot of rods conditionally purchased.

The legal effect of the conditional sale and delivery of rods to the vendee with power to sell them as the property of the vendors and deliver the proceeds to them, is, that upon such sale the rods ceased to be security to the applicants, and inasmuch as the Wire Co. did not pay over to them the identical proceeds of any sale, but retained the proceeds of all sales, and mingled the money with and used it as its own, indistinguishably, it became their debtor, and they became its creditors, upon the same footing as all other creditors, without right of priority. After sale their security was only the fidelity of the Wire Co. to its agreement to hold the proceeds of their rods apart and pay them over.

Inasmuch as such sale and delivery of rods by the applicants to the Wire Co. were upon two conditions, namely, that the applicants should continue to be the owners thereof until the Wire Co. should furnish them with money to meet the acceptance given for the purchase of the rods, also until the Wire Co. should pay to the several applicants all indebtedness due and payable at the time of the payment of the importing acceptance ; therefore, if the Wire Co. should furnish the applicants sufficient money to meet the acceptance which paid for a specified lot of identified rods, the reception of the money would not as a matter of legal necessity constitute a waiver of the condition not fulfilled; it would be merely the acknowledgment of the receipt of money to be applied upon the indebtedness of the Wire Co, to them. An intent to waive upon knowledge is a question of fact, and it is not found in the case before us. Therefore such identified rods would continue to be the property of the applicants until the Wire Co. should meet the aforesaid conditions.

The New York Wire & Wire Spring Co. was organized in 1884 as a corporation under the laws of this state. The Wire Co. subscribed for and held one hundred and twenty-four shares, or one half of its stock, through a trustee who was the secretary and a director of both companies; one share was subscribed for and held by an individual; the remaining shares were subscribed for and held by another individual. No cash was paid upon the subscriptions. Checks were deposited with its treasurer for twenty per cent, thereof, but these were never paid. No advertisement was published, no certificate was filed with either the town clerk or the secretary of the state until June, 1885. Some business was done meantime in the name of the company. It is found that the organization was made in good faith, in the belief that it could profitably manufacture goods differing from those made by the Wire Co.

In June, 1887, Brown Brothers & Co. sold and delivered a specified lot of rods, No. 39, to the Wire Co., upon condition that the rods should continue to be their property until the Wire Co. should pay the acceptance importing them, and all other indebtedness of the Wire Co. to them which should have matured before or at the time of payment of the importing acceptance, with permission however to the Wire Co. to sell the same as the property of Brown Brothers & Co., and in case of sale to hand the avails, as soon as received, to them. The Wire Co. sold this lot of rods to the New York Wire & Wire Spring Co.

At the time of this sale the latter company was in the occupation and use of a portion of the premises and machinery of the Wire Co. The rods were then in a shed upon their premises, with other rods belonging to the Wire Co., all in the custody of the United States, held for payment of duty, the shed being a bonded warehouse. The sale was upon credit; there was no change of location of the rods; they were never paid for ; the Wire Spring Co. had not redeemed them from the revenue officer; they were in his possession, held for duty unpaid, at the time of its insolvency. The receiver of the Wire Co. subsequently redeemed them, together with rods belonging to the Wire Co., and the trustee of the Wire Spring Co. took possession of and sold them, and holds the proceeds ‘as the property of the Wire Spring Co. While these rods were held for duties Brown Brothers & Co. notified the revenue officer holding them that they were their property and demanded possession. It is their claim that either the receiver of the Wire Co. or the trustee of the Wire Spring Co. should pay to them an amount equal to the proceeds of the sale of the rods before any payment should be made to creditors of either corporation ; for these reasons, in effect:—that the Wire Spring Co. was never legally organized; that it was practically the Wire Co.; that therefore no valid sale by one to the other was possible; and that no sale was completed by delivery.

If the individuals who subscribed in form for the shares in the Wire & Wire Spring Co. did not complete what they in good faith attempted, namely, the creation of a corporation, they remained unincorporated persons associated in the conduct of the business of buying rods and manufacturing and selling wire under the name and style of the Wire & Wire Spring Co., having no identity with the Wire Co.; of course therefore capable of making valid contracts with the latter. Moreover, the Wire & Wire Spring Co. assumed to be and made contracts as a corporation; the Wire Co., in good faith as it is found, made contracts with it as such. It is not for Brown Brothers & Co., not a party to the contract in question, to object in this proceeding to the validity thereof.

Again, upon the finding the rods lot No. 39 were never in the absolute possession of the Wire Co. Prom the time of their arrival in New York until the insolvency of both the Wire Co. and the Wire Spring Co., the rods were in the custody of the United States, by a revenue officer, as security for the duty thereon. Brown Brothers & Co. indorsed and delivered the bill of lading and the consular invoice to the Wire Co.; the right to possess, subject to the obligation to pay the duty; with leave also to sell. Not itself paying the duty; the Wire Co. sold them upon time, in good faith, with no intent to defraud Brown Brothers & Co., while yet in the bonded warehouse, to the Wire Spring Co.; the latter had not redeemed them at the time of its insolvency. Of course there had been no change of location. But the Wire Spring Co., by a completed purchase in good faith, acquired the property in them; the entire right, title and interest both of Brown Brothers & Co. and of the Wire Co.; an absolute right as against both of the parties, and as against all others as well. To the perfection of this light no change of location was necessary; the rods had continuously been in the possession of the United States as pledgee for the security of a debt. There is no finding that the Wire Co. desired or intended to preserve any lien, and it now disclaims any right or interest in them. There was nothing on the part of the Wire Co. which the law regards as a retention of possession.

But if there had been what the law would regard as a retention of possession it could not affect the case. It is enough if the sale was good between the parties. Brown Brothers & Co., although creditors of the Wire Co., are not claiming these rods as such, but as owners. They are standing wholly upon their original right to the rods. Besides this, the retention of possession, if regarded as such, was not a retention of possession by the Wire Co. of its own property, but of property that before the sale had been that of Brown Brothers & Co., and which was sold by the Wire Co. as their property and under authority given by them. It becomes a question therefore in which the creditors of the Wire Co. have no interest, as the title must be in the Wire Spring Co. under the sale to it, or, that sale being set aside, in Brown Brothers & Co.

In June, 1887, Brown Brothers & Co. sold and delivered a specified lot of rods to the Wire Co., upon condition that the rods should continue to be their property until the Wire Co. should pay the acceptance importing them, and all other indebtedness of the Wire Co. to them which should have matured before or at the time of payment of the importing acceptance, with permission however to the Wire Co. to sell the same as the property of Brown Brothers & Co., and in case of sale to hand the avails as soon as received to them. The acceptance importing the lot thus conditionally sold and delivered in June, 1887, matured and was paid in August following. This lot of rods was in the possession of the Wire Co. at the time of its insolvency and passed into the hands of the trustee as a part of its estate, and is now in his hands, capable of identification.

In July, 1887, Brown Brothers & Co. sold and delivered other specified lots of rods to the Wire Co. upon similar conditions, with permission to sell as above stated. The Wire Co. sold and received payment for these last specified lots of rods in the month of July. But'it has never handed the avails of such sales to them. It mingled the money thus received indistinguishably with and used it as its own. In consideration of the agreement of Brown Brothers & Co. to accept drafts for the use of the Wire Co., it agreed to give them a “ specific claim and lien on all rods and the proceeds thereof,” for the purchase of which they should furnish money; and in addition, as security for any other indebtedness from it to them which should have matured at the time of payment of the particular acceptances importing particular lots of rods.

In consideration of permission by Brown Brothers & Co. to the Wire Co. to sell their rods as their property, it agreed that, upon such sales, it would hold the proceeds separate and apart from its own funds, and hand them as soon as received to them; this by way of security for the payment of whatever acceptances they should come under in its behalf.

The result of all this is, that as long as these rods, thus delivered upon conditions, are neither sold nor converted into wire, but remain in the possession of the Wire Co. unchanged and capable of identification, they are security to Brown Brothers & Co.; if sold, and the money is paid over, it is instantly applied, and extinguishes so much indebtedness, and thus performs the office of security in an absolutely perfect sense. And this is the meaning of the requirement to hand the avails as soon as received to Brown Brothers & Co. as “ security for due provision for acceptances,” etc.

Plainly, it was the intent of Brown Brothers & Co. upon sale of their rods by the Wire Co., that it should forthwith pay the proceeds to them; plainly, the Wire Co. agreed to make such payment. The fact that such payment, if made, might be applied upon the acceptance importing these rods not yet matured is of no importance.

The Wire Co. agreed to pay over the money upon reception ; agreed to anticipate payments whenever it should sell rods and thus realize the profit of the importation; of course in accounting it would have' interest upon any anticipated payment. Upon such sale Brown Brothers & Co. had not merely a contingent claim for unliquidated damages for neglect to deposit money as collateral security for a contract, but a matured claim for a sum certain ; being for their own money in the hands of the Wire Co., had and received by it for them.

This promise of the Wire Co. in no degree hampered it in the transaction of its business because of any uncertainty as to their duty at any time. In the instance before us it received money in July from the sale, by permission, of rods belonging to Brown Brothers & Co. It knew the amount exactly. In August following, when it paid the acceptances importing rods delivered to it in June, if it desired, to free those rods from condition and become the absolute owner thereof, it was in a position of such certainty that it could have made a tender valid in law. It is of no legal significance that when it paid the acceptance in August it did not inform Brown Brothers & Co. that it had previously sold rods belonging to them and then had the avails in its hands; their ignorance did not diminish its knowledge ; it was their right to receive, it was its duty to pay; and it had all knowledge as to the amount to be paid.

Therefore, upon reception and retention of such money in July, there was a matured indebtedness therefor from it to them. When, therefore, in August following, the Wire Co. paid to them the acceptance which imported the rods delivered to it in June previous upon the conditions above stated, it did not in addition pay the indebtedness which had matured in the previous month on account of the reception and retention of money from sales of property belonging to Brown Brothers & Co. Therefore, the conditions upon which it obtained possession of the specified lot of rods in the previous June having never been performed in full, those rods still remain the property of Brown Brothers & Co.

As between Brown Brothers & Co. and the Wire Co., if it should claim that in August they supposed that it had become absolute owner of the rods delivered in June by paying the acceptance importing them, it is to be answered, that in legal effect the withholding of information that it then had the avails of their property sold by it in its hands, was that of a continuing denial of such fact; and it is es-topped from claiming any inference from their omission to demand money which it declared to them it had not received.

The words of the promise by the Wire Co. are, to pay any other “indebtedness.” We find no warrant for excluding therefrom indebtedness existing because of the sale of rods conditionally delivered to it by Brown Brothers & Co. and of the receipt and retention of the avails.

Wherever in reference to a specified lot'of rods, upon the finding it remains possible that an applicant made a conditional sale and delivery thereof to E. S. Wheeler & Co. of New Haven, with power to sell, and that the latter did sell and deliver them to the New Haven Wire Co., in such case the lien of such applicant would have been discharged, and neither of them has entitled himself to possession, as neither has done more than prove a possibility of lien.

The claims of Brown Brothers & Co., and of Heidelbach, Ickelheimer & Co., for rods identified as having been paid for By them respectively by the acceptance of drafts drawn under a letter of credit issued to E. S. Wheeler & Co. of New Haven, because of the exhaustion of letters issued to the New Haven Wire Co., which rods were by the applicants delivered to E. S. Wheeler & Co. of New Haven upon their trust receipt, and by the latter invoiced to the New Haven Wire Co., are left open for an explicit finding as to which, of E. S. Wheeler & Co. and the New Haven Wire Co., was made their debtor by the applicants, severally, in these transactions.

In the progress of the business each one of the three applicants made conditional sales and delivery of rods owned by each to the New Haven Wire Co., the conditions being embodied in the trust receipts. Such receipt imposed upon it the obligation to preserve the power to identify the rods of each applicant until it had redeemed them from the conditions of the trust and made them its own. The applicants relied upon it to perform and believed it would perform its duty in this respect. But in fact, not redeeming the rods, it nevertheless, without the consent or knowledge or fault of the owners, mingled the rods of all, and made identification by either owner impossible.

These rods in confusion came into the possession of the receiver, together with the property of the Wire Co. In this proceeding each applicant asks for the return of the rods belonging to him. Of course their aggregated requests include all of the rods. But they have not joined. Each asks for himself regardless of others. Each asks for a separate judgment for specified rods. Neither has made proof of the amount of his contribution to the mass. Neither has made it certain that any judgment can be rendered in his favor which will no.t include property belonging to another, under the present form of application.

The Superior Court is advised to render judgments in favor of the applicants, severally, in accordance with the rule set forth in this opinion.

In this opinion Park, C. J., Pardee and Loomis, Js., concurred.

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Dissenting Opinion

Carpenter, J.,

(dissenting.) I will give as briefly as possible some of the reasons which lead me to dissent in these cases.

The New Haven Wire Company, a Connecticut corporation, desired to import iron rods from Europe to be used in its business of manufacturing wire. For that purpose they caused to be issued by Baring Brothers & Co. of London, a letter of credit to E. S. Wheeler & Co. of Liverpool; the credit to be used only in importing such rods. The Wire Company then constituted E. S. Wheeler & Co. its agents to purchase or order the rods. Wheeler & Co. then ordered a quantity of rods to be manufactured by a German manufacturer. When manufactured they were delivered to a steamship company in Antwerp to be transported to this country. The steamship company issued a bill of lading in blank and delivered it to Wheeler & Co. A consular invoice was also delivered to them. They then drew on the Barings by virtue of the credit for the amount stated by consular invoice to be the cost of the rods; and when the draft was presented for acceptance they caused to be delivered to the Barings the bill of lading and consular invoice filled up to their order. The draft, payable at a future day, was thereupon accepted. Wheeler & Co. then sold the draft, and with its avails paid to the manufacturer the price of the rods. The goods were then carried to New York, Baring Brothers & Co. consignees.

The Wire Company agreed to furnish funds in London, before the 'maturity of the draft, sufficient to meet it, together with commissions. The rods were delivered to the Wire Co. on giving its receipt, called a trust receipt, in which it agreed to hold the goods in trust for the Barings, as their property, and subject to their order, with liberty however to sell the same, provided that in case of sale it should account for and forthwith pay and deliver the proceeds or avails of the sale to the Barings. It also appears that the Wire Company used the rods in its business, confusing them with other goods of the same general character as it pleased. This had been the course of business for several years. All previous drafts were provided for at maturity, as per agreement. On this occasion the draft was not provided for when the Wire Co. failed and its property and affairs passed into the hands of a receiver. That this is briefly a correct history of the transaction will not be denied.

This proceeding is an application by the Barings asking the court to direct the receiver to deliver to them, as their property, such rods as can be identified as having been imported with the avails of the draft accepted by them.

The pivotal question in the case is—what title did the Barings have in the goods in question ? And that I apprehend depends largely upon the answer to another question, namely, from whom did they acquire that title ?

The majority of the court have adopted the theory of the applicants’ counsel, and hold that they acquired title from the German manufacturer; that in some way which I do not fully comprehend, they became the general absolute owners, under a contract to sell and deliver to the Wire Company on payment of the purchase money; and that when the goods were delivered to the Wire Company, it became a perfected conditional sale, the sole condition being that the title should not vest in the Wire Company until the price was paid.

To sustain this theory the learned counsel for the applicants virtually ask us not to be governed wholly or mainly by the written contract between the parties ; not to adhere too closely to the settled policy of our law relative to the possession of personal property by creditors claiming a lien thereon; not to accept what the parties have expressed in their contract as their intention; but to find another and radically different intention, from what the parties have done and from the object they had in view, interpreted by technical commercial phrases, by the laws of trade of unusual application, and by the necessities of international commerce. The majority of the-court, by adopting their theory, seem also to have sanctioned the reasoning by which it was supported.

On the contrary, my view of the case is that the Barings acquired no title from the manufacturer, but did acquire title from the Wire Company; that that title was not a general absolute one, but a special and qualified one, as mortgagees.

This view does not require me to imply a contract of a different nature from the one expressed, but does allow me to stand firmly and securely on the written contract of the parties ; and in interpreting that contract I have no occasion to ignore or explain away any of its provisions, or to disregard the law of this state, which I believe to be the same as that of New York and of England. Nor am I required to inject into it any obscure and hidden meaning, not expressed, derived from technical phrases, the laws of trade and modern mercantile usage; nor, above all, am I required to introduce into our system of jurisprudence a principle of doubtful expediency', and one which, at least so far as this case is concerned, strikes a blow at the favorite policy of this state to divide the assets of insolvent persons and corporations equally among all the creditors ; and that too for the benefit of foreign creditors at the expense of our own citizens.

It will be observed that I travel side by side with my associates to this extent—I agree that the Barings had a title, that that title was good against everybody until they delivered the possession to the Wire Company, and that the title is now good against the Wire Company. But I differ from them in toto as to the origin, nature and present validity of the title as against the creditors of the Wire Company. The latter is the important question; the two former are only important as bearing upon that.

As to the origin. Before stating my own ground I wish to notice the theory of the majority that the Barings were the original purchasers, or in some other way .derived title from the German manufacturers. They were never authorized to purchase these goods, but Wheeler & Co. were. They did not in fact purchase them, but Wheeler & Co., as agents of the Wire Company, did. They were utter strangers to the transaction until the draft was presented to them for acceptance; and at that time the goods were purchased and in the hands of the carriers. They did not furnish the money with which to pay for them, but they with others furnished the means of raising the money. If that of itself gave them title, it for the same reason gave title to Wheeler & Co., the Wire Company, and E. S. Wheeler & Co. of New Haven; and with greater reason, so far as the Wheeler companies are concerned, for they were not secured, and the applicants were.

But it is said that they received the bill of lading, and that that gave them a title. But a bill of lading is not ordinarily a muniment of title, but a symbol of possession. It may in some instances be evidence of title, precisely as possession is, but always subject to explanation. For the explanation we must look to the circumstances of each particular case ; and in looking at the circumstances and documents in this case, it conclusively appears that the bill of lading was delivered to them for the sole purpose of vesting them with the possession in order to complete and give effect to their title as mortgagees. Any other view seems to me to be giving that instrument an effect which the parties never contemplated. Should we not go directly to the only true source of light—the contract? There it appears, in terms, that the Wire Co., aside from the bill of lading, conveyed title to the Barings. The inference is inevitable that the bill of lading was not to give title but simply to give possession.

My own claim, that they derived title from the Wire Co., can be sustained in few words. In the letter of credit they stipulated with the Wire Co. that the bills drawn by virtue of the credit should be duly honored “ upon presentation at their banking house in London, if drawn and negotiated within six months from this date, and if accompanied by bills of lading for such goods filled up to the order of Baring Brothers & Co., and by consular invoice of the same to their order, for the account of whom it may concern.” When the letter of credit issued they took a receipt from the Wire Co., in and by which it agreed that the goods purchased with the avails of drafts drawn by virtue of said credit, the proceeds thereof, with satisfactory insurance, “ together with the bills of lading for the same, are hereby, in consideration of this credit, sold, assigned and transferred to Baring Brothers & Co.”

This assignment the Barings required, as an essential requisite to issuing the letter of credit, and accepted the goods and bill of lading thereunder from the Wire Co. Here we have in the written or printed documents, required and signed by these parties, that which explicitly shows how, and from whom, these applicants derived title, with no intimation in those documents, or in the finding of the court, that they derived title in any other manner or from any other source. With this record before us it is difficult to see how we can regard them as having acquired a title directly from the German manufacturer.

What is the nature of that title ? Is it general and absolute, or special and qualified, as that of mortgagees ? The Court of Appeals in New York, in Moors v. Kidder, 106 N. York, 32, a case cited and relied on by the majority, virtually sustained the claim of these very applicants, made by their counsel in that case, that a similar contract, in which the operative words were “ pledge ” and “ hypothecate,” was a mortgage as distinguished from a pledge. It seems however that the exigencies of that case did not require them to notice the distinction between a title as general owner, and a special title as mortgagee—the vital question in this case— and they do not further allude to it.

But authorities are not needed; for the parties themselves have answered the question in language too plain to be misunderstood. Immediately following the operative words quoted above, is this significant and expressive language :—“ as collateral security for the payment as above promised, and also of any other sums which may at the time of such purchase, or at any time before the making of the payment above promised, be owing by us to Baring Brothers & Co.” And again:—“ the provision for such bills of lading and other documents being intended merely for the purpose of affording additional security,” etc.

If parties may be permitted to make their own contracts and express their own intentions, no further argument would seem to be required to sustain my position.

But why is this anxiety on the part of the counsel for the applicants to’ have the court practically ignore the real contract made by the parties, and regard them clients as general owners? I can see but one answer. It is because they know that in no other way can their claim be sustained. They know that the moment they concede that they are mortgagees, they must also concede that when they parted with the possession to the Wire Company, with permission to treat it in all respects as its own, that moment their lien on the goods, as against creditors, was irrecoverably gone. Hence their desire to change their clients from mortgagees to conditional vendors, and to convert a surrender of mortgaged chattels to the mortgagor into a delivery to a conditional vendee, the condition being that the title should not vest until the purchase price should be paid. By this device the rules of law regarding chattel mortgages can be circumvented and foreign creditors of an insolvent corporation can be preferred.

But I propose to examine this device a little more in detail. Where and with whom did the supposed conditional sale originate? Certain it is that the parties have made no such contract. We shall search this record through in vain to find any intimation that the parties or either of them entertained any such idea. It is said that the contract which the parties made is in legal effect a conditional sale. But the two kinds of contract have but few elements in common. They are radically different, and are followed by very different legal consequences. This case is a good illustration of the truth of that proposition. Does the court intend to sanction the claim, in substance, that a conditional sale should be inferred from what was done, the laws of trade, and the supposed necessities of modern commerce? There is one answer which should be regarded as fatal to that claim, that where there is an express contract the law will never imply one, especially a different one, covering the same transaction. The law does not take it upon itself to make contracts for parties; and it never implies one except to carry into effect the presumed intention of the parties. There is no room here to presume an intention, and such an intention, for the parties have plainly expressed an entirely different one. Here is an express conditional sale from the Wire Company to the Barings; but it is upon the condition that it was to be defeated upon the performance of a condition subsequent. There is therefore no room to imply a conditional sale from the Barings to the Wire Company, the condition being a condition precedent.

The law declares the respective rights and duties of mortgagors and mortgagees; and by the application of that law hitherto there has been no difficulty in doing justice between the parties. The view taken by my brethren seems to me to introduce a change in their legal relations, and to give other and different rights and impose new obligations.

We agree, I think, that if this is a mortgage it is invalid as against creditors, in consequence of the delivery of the property to the Wire Company. That being so, it may be suggested that the decision will only affect these cases; and that if it is a mistaken interpretation of a contract, it will not be regarded as a precedent to disturb well settled rules of law. The vice of the decision, if there is any, is twofold. It is a precedent for all similar cases. Here are three before us now involving a large amount of money. How many more contracts of this nature now exist, and how many more will come into existence in consequence of this decision, it is impossible now to know. Again, I apprehend it will be urged as a precedent for treating all chattel mortgages as conditional sales. If it is, I must confess that at present I do not know how the claim can be answered. I can discover no sufficient ground on which a distinction can be made between this mortgage and any other.

I cannot see that the trust receipt materially affects the question I have discussed. It is simply air attempt to keep in force the provisions of the mortgage, notwithstanding the change of possession. It would seem that the parties regarded it as essential for that purpose. I will only say that if the mortgage cannot continue of its own force, I do not see how it is aided by the receipt.