Seymour v. Newton

| Mass. | Oct 15, 1870

Chapman, C. J.

The first step of the transaction stated in the report is a letter of Fish, (calling himself F. W. Fish & Company,) dated February 1, 1869, requesting the plaintiffs to forward to him thirty tierces of lard, and draw on him at three days sight. . On February 5 they sent him a bill purporting to be an account of the purchase of the lard by them for his account and risk. The b'U is for the price paid, with charges and commissions. On the same day they drew on him as he had requested, making the bill payable to Lombard, cashier, whose bank discounted the draft. They also gave to Lombard the railroad receipt, describing the goods as consigned to him, but to the care of Fish & Company. Thus the delivery of the lard to the carrier was not a delivery to Fish as vendee, but was a consignment to Lombard. The obvious purpose was that there should be no delivery to the vendee till the draft should be paid. Lombard sent the draft and receipt to the bank at Worcester to collect the draft, or, if it was not paid, to reserve the lien on the goods for the benefit of the plaintiffs, as well as of his bank.

Before the arrival of the lard, the draft having been protested, the cashier of the bank at Worcester, whose duty it was to look after the security, informed the agent of the railroad of the facts, countermanded the delivery to Fish, and requested the agent of the railroad to notify him of its arrival, which was done. This transaction was a taking possession for the consignee. Fish never claimed the lard or saw it, nor was he notified of its arrival. The fact that he had been accustomed to receive his freight there would not constitute a delivery of this particular freight to him. In this state of things the plaintiffs had a right to take it, as being stopped in transitu, and not having come to the possession of the vendee. They might exercise this right, whether they were yen-, dors or factors, and although they had received the draft. 2 Kent Com. (6th ed.) 544 seq. Newhall v. Vargas, 13 Maine, 93. The' attachments could not interfere with this right. Naylor v. Dennie, 8 Pick. 198. Even a sale by Fish would not have deprived them of the right. 2 Kent Com. (6th ed.) 544. Nor could the attachment by Lombard affect the plaintiffs’ lien, as it does not appear that he was then agent to institute such a proceeding ; whatever effect it might have upon the lien of his bank. The plaintiffs paid the draft, and thus discharged the claim of he bank; and brought this action of replevin adversely to all the attachments’ Upon the facts stated, the real transaction appears to be, that they purchased the goods on account of Fish, and had a lien upon them for all their charges and commissions. The consignment to Lombard was to preserve this lien, and also to secure the bank. Lombard took the goods at the depot to preserve this security for both, and the jury would be authorized to find that the lien of the plaintiffs has never been discharged.

Judgment for the plaintiffs.