Stirnermaun & Himely v. Cowing

7 Johns. Ch. 275 | New York Court of Chancery | 1823

The Chancellor.

The goods in question were intended for the house of Henry Cowing Co., of'Charleston. The letters of the 7th of December and 6th of February, stated in the bill, and admitted in the answers, sufficiently establish this fact. They were consigned to Henry Cowing &f Co., of New-York, subject to the directions contained in those letters. The defendants, H. fy H., deny that they had any information or "knowledge of these letters, or that H. C. was bound to send the goods from New York to Charleston, at the time they made the purchase, on which they rely for protection. But they knew of the invoice and bill of lading; for both were shown to them ■at the purchase. From those documents it appears that the goods were sent to Henry Cowing fy Co., on account and at the risk of the plaintiffs, or one of them. H. H. saw the date of the bill of lading, and they knew that the house of Henry Cowing &/• Co. was dissolved before the bill of lading was signed, and before the goods were shipped from Europe.

When those defendants purchased the goods of H. C., they were sufficiently informed, from those facts, that the goods were not his property, and that he had no right to sell them. The firm of Henry Cowing fy Co., to whom the goods had been consigned, had ceased to exist before delivery, and before the plaintiffs had parted with the possession of them, and, consequently, no title or possession had ever vested in the firm. The sending the goods for the purpose intended, was, in point of law, a nugatory act; and Henry C., when he received the goods, took them in the capacity of a mere naked agent or trustee for the plaintiffs. He was not known to the plaintiffs in his individual capacity, and in that character he had no interest in the goods. Admitting he was authorized to close the concerns of the firm at New-York, by collecting the debts, and disposing of the property of the firm in New-York, what advantage does that admission give to the defendants, when it appears that the goods never came to the possession of the firm, and that no interest or property in the goods ever passed to the firm ?

The defendants, H. 8f H., had then sufficient information touching the title of the goods, and the character under which H. C. assumed the control of the property, to deprive them of the character of bona fide purchasers, without notice of the equity of the plaintiffs. But the facts in the case go still further to exempt them from the privileges which might, in law or equity, belong to such a purchaser. They admit they took the goods in part payment of a debt due from the firm of Henry Cowing Co., and for no other purpose; that they understood at the time that the two partners in Charleston had stopped payment, and were insolvent; and, they say, that they were suspicious of the pecuniary circumstances of Henry C., as he had stopped payment. This was, therefore, a desperate effort on the part of these defendants to secure an antecedent debt from a trustee, out of property which he held in trust; it was not the case of a debt created, or credit given, or property advanced, upon the strength of those goods. It was the appropriation of the property of the plaintiffs in the hands of H. C., to pay the debts of the dissolved firm of ii. C„ Co. The equity of the case is entirely with the plaintiffs; and the harsh features of the defence are not even softened by any well-founded pretension of a fair dealing in the market, in the ordinary course of commercial business. If the defendants can hold the property in the way and for the cause for which they acquired itg it must be upon some very strict technical rule, at war with * the principles of equity.

I* is asserted in the answer, that the plaintiffs were in-at the time of the purchase, to the house of Henry. Cowing Co., on other commercial dealings, far beyond the amount of the goods. But the faót is admitted, that, by a receipt, dated prior to the sale, E. W., one of the firm, had acknowledged payment and satisfaction of the entire demand of the house of H. C. fy Co against the plaintiffs. The defendants aver, that this receipt was antedated by some fraudulent collusion between E TV. and the plaintiffs; but no proof is offered in support or that, suggestion, and the receipt at the foot of the account current between the plaintiffs and H. C. fy Co., of Charleston, is to be received prima facie, and, on this argument, as evidence of truth. And if there was a balance due on general account from the plantiffs to the firm of H. C. fy Co., at the time of its dissolution, the firm had no lien on those goods, for they never .came to the possession of the firm; and all the lien that H. C. could pretend to, by reason of his possession, was for the freight. He held them as agent or trustee for the plaintiffs, and not as authorized agent or representative of the house of H. C. Co. I cannot discover any principle in the English law that would authorize me to hold, that a commercial house not in existence when goods were shipped, can be deemed to have received them, though they afterwards came to the hands of one of the late partners. In Tooke v. Hollingworth, (5 Term Rep. 215.) the language of the Court rather seemed to be, that goods sent to a person who at the time was dead, or disabled by bankruptcy from dealing, and under an incapacity to acquire property, could be recovered back, upon the principle that there was no contract. “ If the purchaser be dead at the time when the goods arrive, must they go to the executor?” This question is significantly put by Lord Kenyon,* and another of the judges observed, that the sending of goods to a person who had become a bankrupt when the goods were sent, must be considered a nugatory act, and that the bankrupt was a non-entity as to all contracts. Cases of this kind might be put, as Lord Kenyon observed, which would considerably distress the argument in favour °f the validity of the delivery. The principle of the civil ** e/ 1 law, and which has been adopted by writers following that system, that, for the sake of public convenience, powers do not expire until notice of the death of the principal, (Inst. 3. 27. 10. 2 Emerig, 120. Pothier, Traite des Oblig. s. 81. 148.) does not seem to have been hitherto in-grafted into the English law. But it is not necessary to form or declare any decided opinion on this subject; for the house, in the present case, was dissolved, and no longer in existence for the purpose of making new contracts, before the goods had passed out of the hands of the correspondents of the owners, and before there was even an inception of the contract, by the signing of the bill of lading. The delivery to H C. could only be supported as a delivery to the house of Henry Cowing Co., upon the doctrine of relation back to a time when the house existed j and there is no ground for such a relation beyond the date of the bill of lading or consignment, and the house was then dissolved.

^ o/the civil law, that powers do noi expire until the p^cipaí, has not „ been the English law“

I conclude, therefore, that the title to the goods did not pass by the pretended sale from Henry Cowing to the defendants, II <$/■ H.; and that they are accountable for the value of the goods, with interest, and with an allowance for the freight and charges; and I shall direct a reference to compute the amount due.

Decree accordingly.