7 Mo. 62 | Mo. | 1841
Opinion of the Court by
This was an attachment by appellants against McNulty, Sháw & Mitchell, which was levied upon a cargo of lead. The appellees, Crawford & Carson, at the return term of the writ, filed their interpleader, claiming the property attached. On the trial of the interpleader, an agreed case was submitted, and the court found for the interpleaders
The case turned upon a question of fraud, but the other three judges, though concurring with Lord Mansfield in the disposition of the cause, agreed that an assent was necessary to complete every contract, that the act of bankruptcy occurring on the 8th November, and the defendant having never accepted until the 10th, the contract-yras incomplete, and upon the whole circumstance, pronounced the transaction fraudulent and void.” The English authorities then, to establish the very broad proposition that the property vests- in the consignee, who happens to be a creditor, upon delivery to the carrier, without any assent upon the part of the consignee, appear to rest entirely upon the decision in Strange, and upon the opinion of Lord Mansfield in Anderson v. Temple.
The case of Wood v. Roach, (2 Dall. 1 & 1,) is cited in support of the same doctrine. In that cash the opinion of the court is very brief, but clearly assumes th'e position that when the bills of lading are signed, the property is gone from the consignor, and that fact was accordingly left to the jury. The rule is stated by the judge, delivering the opinion, to be founded on mercantile principles, and the inconvenience of the opposite doctrine. In the case of Summerville v. Elder, (1 Binney R. 106,) it was held, that if an agent, indebted to his principal, ship property to him on board a vessel belonging to a third person, and the captain signs a bill of lading deliverable to the principal, the property thereupon vests in the principal, and the agent cannot countermand .or disturb the shipment.
This decision, however, may very well rest upon principles, other than those embraced in the previous cases, and is only applicable to the principle now under consideration, so far as it determines the effect of signing a bill of lading.
These are the only cases, which I have seen, that sustain the proposition in the unconditional manner I have mentioned.
In the case of D. & G. Ludlow, v. Bourne & Eddy, (1 Johns. R. 1,) the opinion of the supreme court of New York
The judge further observes: “ A distinction is sometimes made between an actual delivery to the vendee himself, and a constructive delivery to some intermediate person. In the latter case, when the goods are at the risk of the vendee, it is equivalent to an actual delivery. Every legal contract may however be modified, according to the will of the contracting parties; and when special, it is to that we must look in order to sustain their rights.”
In the case of the Frances, 8 Cranch, 359, the supreme court of the United States held that an intention clearly proved of a consignor of goods, to vest the right of property in the consignee, is not sufficient to effect such a change of property, until the goods are received by the consignee, or some evidence is given of his agreement to take them on his own account, until that time the goods are at the risk of the shippers, and if they are enemies, the goods if captured are good prize.
The same principle was maintained in the opinion on Durham & Randolph’s claim, contained in the same case. 8 Cranch, 354.
I infer from these cases, that to ascertain where and when the property vests, we must first look to the intention of the parties as evinced by their acts ; and secondly, inquire upon whom the risk falls.
In the case at bar, the defendants shipped to the inter-
What was the intention of the defendants in shipping this lead ? Was the lead, when the bill of lading was signed, beyond their control; and if lost on the voyage from New Orleans to Baltimore, would the loss have fallen upon the interpleaders ?
Assuredly not. Suppose the lead had even reached Bal- and the interpleaders had sold the same, upon the usual credit, and to persons of apparent solvency, and yet from unforeseen accidents, such as prudence could not well . f , . guard against, the proceeds were literally nothing ; would defendants have been absolved from their previous obligations ? The interpleaders are directed to sell the lead, and appropriate the proceeds to satisfy their demand, and if no proceeds accrue, the instructions have been complied with, and the demand is still unsatisfied. It could not, I think, with any plausibility, be contended that the risk, if any, would have fallen upon the interpleaders. If such were the law, all our preconceived notions of the essential elements of a contract, must be false and unfounded. The idea, that when a debtor ships property directly to his creditor in payment of a debt, the law presumes the assent of a creditor, is obviously unfounded. The willingness of a creditor to receive his dues is reasonably enough presumed: but he may and would, where the debtor is not in failing circumstances, be very unwilling to receive a shipment of property at a distant port, with the risk of loss upon himself, or a discharge of the liabilities of the debtor. No such presumption is true in point of fact, however often it may have been decided to be so in law.
It is not very difficult to account for the decision in the
The judgment of the circuit court is therefore reversed- and the case remanded.