28 Md. 396 | Md. | 1868
delivered the opinion of this Court.
The appellee issued an attachment against Gill, Hardman & Stephens, non-residents, which was laid in the hands of the garnishees to affect a certain quantity of pig iron consigned to them by the appellant, Wilson, who claimed it as his property. The plaintiff, the Rail Road Company, insists
The claimant’s first prayer, as presented, was properly refused, and the granting of it with the modification was correct, because as we construe the prayer it assails the transaction between Whitman and Hardman, and the firm of which Hardman was a partner, as a fraud upon the creditors of Whitman, and the assignment could not be assailed on this ground by the claimant, unless he showed himself to be a creditor of Whitman at the time the assignment was made. We find no error in the refusal of the claimant’s second prayer, or in the modification to it by the Court, of which the appellant can complain. The acts of delivery mentioned in the appellee’s second prayer, coupled with the statement in this prayer that after the sale to the firm the iron was forwarded by direction of Hardman, one of the firm, and therefore one of the vendees, to Sandy Creek, on its way to Wheeling, constituted not only such delivery as would pass the title, but such divestiture of possession as would prevent the assertion of the vendor’s lien, or the regaining of possession by stoppage in transitu. As we construe the prayer, it admits that after the sale and delivery, and before the vendor attempted to assert his lien, the iron was forwarded by direction of the vendees to Sandy Creek, on its way to Wheeling. It does not present the case of a forwarding, by the vendor, through a carrier or middle-man to the vendees, or to a place designated by them for delivery, in which the right of stoppage in transitu would unquestionably
The claimant’s fourth prayer presents another aspect of the case. It asserts that if the jury should find the iron was delivered, as before stated, but, in fact, remained at the furnace and on the road-side, without being taken away or otherwise put in possession of the vendees, and that such delivery was made against certain notes of the vendees given to the vendor in advance, for the iron, which notes were then outstanding and unpaid, and that the title to the iron remained in the same condition as between vendor and vendees, without the intervening claim of any third party at the time it was sold to "Wilson, if the jury shall find such sale, and whilst the said iron so remained, the vendees were insolvént and unable to pay their said notes, then the vendor had the right to re-take the iron before it came into the actual possession of the vendees, and if the jury shall find that the vendor did re-take it, either by himself or an assignment .to Wilson, who under said assignment re-took it, then the plaintiff cannot recover under the second issue. Assuming there was sufficient evidence to support the hypothesis of this prayer, (and, we think, the record, though not stating the testimony fully, furnishes sufficient evidence for this purpose,) it correctly announces the law and should have been granted. The law applicable to such 'a case as this prayer presents is very clearly and accurately stated by Chief Justice Shaw, in the case of Arnold vs. Delano, 4 Cush., 38, 39. “There is,” says he, “manifestly a marked distinction between those acts, which, as between vendor and vendee, upon a contract of sale, go to make a constructive delivery and to vest the property in the vendee, and that actual delivery by the vendor to the- vendee, which puts an end to the right of the vendor to hold the goods as security for the price,” and as to a sale on credit, which was the case he was deciding, he says: “but the law in holding that a vendor who has thus given credit for goods waives his lien for the price, does so on one implied condi
Judgment reversed, and procedendo awarded.