2 Neb. 186 | Neb. | 1873
This is a case of replevin tried in the District Court for Douglas County. The trial was had before the court without a jury; and judgment given for the plaintiffs there, Sutro & Newmark. These facts appear: On the 18th of February, 1870, Bemis & Abbott of Omaha, through a travelling agent of Sutro & Newmark doing business in New York, ordered from the latter a quantity of cigars at a price agreed upon, and for which they were to give their note payable in four months. Before the arrival of the cigars, and on the 14th of March, Bemis & Abbott filed with the register in bankruptcy their petition asking to be declared bankrupts ; and the 6th of April was the time fixed for the meeting of creditors and the election of an assignee. On or about the 21st of March, an expressman brought the cigars to the store lately occupied by Bemis & Abbott, which, together with the' goods of Bemis & Abbott, was in possession of Hoile, who was claiming to hold as United-States marshal under a warrant issued by the register. Bemis & Abbott never, gave, or offered to give, their note in payment for the cigars : they never received them personally, or ever assumed to exercise any control over-them. A short time after the arrival of the cigars, they were demanded of Hoile, who refused to give them up. Beyond that of naked possession, I believe it is not claimed' that Hoile
No time appears to have been fixed for the giving of the note. This must be referred to the law, then, which says payment and delivery are concurrent acts. 2 Kent, 496. None was given, and none offered, when the goods came to Hoile’s hands. Counsel seek an apology for this in the testimony of Abbott, one of the vendees, who says he expected the note to be sent with the invoice of goods. He SAvears, however, that the giving the note was an- express agreement; and in this he concurs with the other witness : and, although he may have “ expected ” the note to be drawn and sent, that circumstance is too small and unsubstantial to weigh here. The signing and returning of the note is the important circumstance. That has never been done or proposed since the receipt of the goods. But, it is said, permitting the goods to come into the store without insisting on this condition was a waiver of it. I am not unmindful of the rule, that, when goods are sold on condition of being paid for on delivery in cash or commercial paper, an absolute and unconditional delivery of the goods by the vendor, without exacting at the time of delivery a performance of the condition, is a waiver of the condition of the' sale; and a complete title passes to the purchaser, if there be no fraudulent contrivance on the part of the latter to obtain possession. 2 Kent, 296; Chapman v. Lathrop, 6 Cow., 110 ; Smith v. Dennie, 6 Pick., 262 ; Smith v. Lynes, 1 Seld., 41; Lupin v. Marie, 6 Wend., 77. Whether the delivery is absolute or conditional must depend on the intent of the parties at the time the goods are delivered. Furniss v. Hone, 8 Wend., 256. It is usually signified by refusing to deliver the goods without an immediate compliance with the con
But viewing the sale as for credit simply, and the case one where the right of stoppage in transitu is sought to be exercised by the vendors, — and this was the theory upon which the discussion mostly proceeded in this Court,— I am far from the opinion that they should not recover on this ground. In view of the conclusion I have expressed upon the other branch of the case, I deem it unnecessary to discuss this at any length; much less to examine the numerous cases cited, and attempt to reconcile them or apply them to this.
Strong, J., in Harris v. Pratt (17 N. Y., 263), says, “ The right of stoppage in transitu on a sale of goods on credit arises when the vendee becomes insolvent after the sale, and before the goods have been actually delivered to him, or to his agent for him, having some authority in respect to the goods unconnected with their transit, as to keep or dispose of them. The basis of this right is, that the insolvency of the vendee was not contemplated by the vendor in the sale; and that it is plainly just that he should, on account of that unforeseen event, endangering the loss of the price to • be paid, be permitted to reclaim the goods, and keep them as security for payment at any time before a delivery terminating their transit. The right is limited to that period, and ends with such a delivery. It is a right, which, from its equitable nature, is regarded with favor; and the rules relating to it are applied with great liberality to the vendor, in furtherance of justice.” Transit, as here used, and as is understood by its use in the books, is not confined in its meaning to the passage of the goods through the country, as from New York to Omaha, but includes their situations in every stage, from the time of passing out of the control and possession of the vendor into that of the vendee. The accident of place is not a material circumstance ; but the immediate relation of the parties to the goods is rather to be considered. Had Bemis & Abbott intercepted the goods at Chicago instead of Omaha, the right of stoppage in transitu would have ended there. 2 Kent, 547. So, if, before the goods had reached Omaha, Bemis & Abbott had removed
Tbe judgment of tbe Court below should be affirmed.
Judgment affirmed.