15 Me. 314 | Me. | 1839
The case was continued for advisement, and the opinion of the Court afterwards drawn up by
The rights of the parties in these two cases, arise out of the same transactions, and must be governed by the same rules, and they will be considered together. Jf the principles upon which stoppage in transitu is exercised can be ascertained, it will not be difficult to apply them to the different incidents, which
In the course of the voyage a part of the return cargo was lost by the perils of the sea, and the vendor could not again obtain possession of it. A partial payment may be considered as made by the intestate by the proceeds of the outward cargo, and freight, and perhaps other charges had attached to the return cargo before the right of stoppage was exercised. And the vendor, after applying the proceeds of that part of the cargo stopped, not being paid in full, claims to recover the balance. These and some other matters arising out of our own law for the settlement of insolvent estates are before tire Court for decision.
The first object will be to endeavor to ascertain the principle out of which stoppage in transitu has arisen. In the cases of Wiseman v. Vandeputt, and Snee v. Prescott, decided in chancery, it is difficult to ascertain any general rule or principle upon which the decisions were made. They appear to have been decided upon what the chancellor esteemed to be equitable and just between the parties under all the circumstances. This is the view taken of Snee v. Prescott, by Mr. Justice Buller in his elaborate opinion in Lickbarrow v. Mason, in the house of Lords. 6 East, 22. It was thought to be equitable in those cases to restore, or cause to be accounted for, partial payments. When we come into the courts of law, this right of stoppage is spoken of as a “ lien,” as an “ equitable lien,” as an “ equitable right;” and the Judges soon declared it to be “ a common law right.” By the common law, “ if a man do agree for a price of wares, he may not carry them away before he hath paid for them, if he have not a day expressly given to
The position, that it does not proceed upon the ground of rescinding the contract, also shows, that the principle upon which it
Proceeding to carry out these principles, the parties are to be placed in the same condition, as nearly as may be, in which they would have been, if the vendor had never parted with the possession of the goods. And if he would repossess himself of them he must relieve them of all charges and burthens rightfully and necessarily accruing after he parted with tbe possession ; for the vendor cannot be allowed by his attempt to regain possession, to put the vendee in a worse position, than he would have been, bad the possession remained with the vendor. And this requires him to pay the freight and intervening charges. This is in precise accordance
If the vendor is adjudged to pay freight, he claims to set off against it a debt due from the intestate to him on the purchase of a former cargo shipped by another vessel. It is not necessary to cite authorities to shew, that the owners of a vessel have a lien on the cargo for the freight. The well known rule in mercantile law, that the ship is bound to the merchandize, and the merchandize to the ship is admitted here. This right is not destroyed, if the property be taken from the possession of the owners in invitum, or by operation of law. It is true, that this principle does not apply, where the owner of the vessel is carrying his own goods; but when the vendor claims to repossess himself of the goods by virtue of his original title, it is not for him at the same time to declare the title to be in the vendee for the purpose of avoiding the vendee’s lien for the freight; who may well claim to retain them until he is placed in a position as favorable as he would have been, if the goods had never been delivered. And as the whole rights of the consignor depend upon an extension of his lien after he has parted with the possession, it is not for him to deny to the consignee the equitable right to set up as against him the same lien, which he would have by law, if the goods were transported for another. When the right of stoppage is exercised, the goods become in fact transported not for the benefit of the vendee, but the vendor. In this mode the just rights of the parties may be secured to them, notwithstanding what has already taken place. And as it is the only
If not allowed to set off against the freight his prior debt, the vendor claims to set off the value of that part of the cargo lost at sea. But the cases before cited for another purpose shew, that the property after the vendor parts with it, until he again resumes the possession, is regarded in law as at the risk of the vendee; and that any loss happening in the intermediate lime is the loss of the ven-dee. The vendor by stopping, acquires no title to that, which does
The net proceeds of the outward cargo may be regarded as a partial payment, and the representatives of the vendee claim to recover it back. The vendor having the same rights as he would have, if he had not parted with the possession, there is no principle, which will allow the vendee, where the fault is his own in not paying the whole price, to recover back a partial payment. It would be as much opposed to the doctrines of the civil as the common law. In such case the earnest or partial payment is by the civil law forfeited, if the contract is never completed. Dom. b. 1, t. 2, s. 6, a. 4. And the buyer is never to elude the effect of the sale by failing to pay the price. Idem. s. 3, a. 9. If the sale be rescinded by consent of both parties, or without the fault of either; both are restored to all their rights. Idem. s. 12, a. 4, 5, 14, 15. And so is the common law. Smith v. Field, 5 T. R. 402; King v. Price, 2 Chitty’s R. 416; Hunt v. Silk, 5 East, 449. Where the vendee is in fault and gives occasion for the vendor to take extraordinary measures to prevent a loss, no inference should be drawn, that he thereby intended to rescind the contract. This should be a matter of clear proof, especially when it is perceived to be against his interest, and when he is under no necessity to do so. All which the vendor has done in this case is to consent to a sale of the property without prejudice, and to receive the proceeds instead of the goods. Such acts, under the circumstances, can never be regarded as manifesting a disposition or intention to rescind ; and the law does not rescind, or require him to rescind the contract. The representatives of the intestate cannot therefore recover back the partial payment. . They will have the benefit of it as extinguishing so much of the vendor’s claim.
The vendor claims to recover a balance, which will be due to him after applying the net proceeds of that part of the cargo reclaimed. When the vendee does not pay and take the goods contracted for, the vendor, upon a tender agreeably to the terms of the contract, may bring his action for not accepting and paying for the goods, and recover the damages which he has suffered. And if the vendee has refused to complete the contract, that dispenses with a tender by the vendor. Nor does the bankruptcy of the vendee re