Van Brunt v. Pike

4 Gill 270 | Md. | 1846

Archer, C. J.,

delivered tire opinion of this court.

In the case of Wells, Miller, and Cooper, vs. Biscoe, Mss. decision of this, court at Dec’r T. 1844, it was decided, that where there was a bona fide sale of iron in the warehouse of the Ellicotts, and an order for the delivery thereof, which was accepted by them in favor of the vendee, the title of the vendee should prevail against a creditor of the vendor, who issued his attachment to affect such property, notwithstanding the act of 1834, ch. 79, this court being of opinion, that such a case was not embraced by the act of Assembly adverted to, and that, therefore, it was not necessary to record such transfer.

It will be only necessary for us, therefore, to enquire, whether it appears from the case stated, there has been a sale and delivery of the goods attached in the case now before the court, before the attachment issued by the plaintiff?

The case comes up on a case stated, and must be decided by the facts agreed upon. Legal presumptions may be made, and necessary conclusions may be drawn, but we cannot make inferences from the facts which may or may not be true. These doctrines appear to be deducible from the cases in 2 H. & G., 320. 3 G. & J., 158, and 6 G. & J., 266. That the property attached had been the property of Craft, is apparent from the statement.

The iron attached was in the hands of Jameison, the agent of Craft, who had brought it from the furnace of Craft, and who was employed by Craft to transport the same for him to his agent in Georgetown. He was thus in possession of the iron, exercising acts of ownership over it, and being thus with the indicia of property, must be treated as the owner, until the contrary appears.

Being thus the owner, it is equally clear, that it was sold to the claimant. This is admitted in express terms. It is admitted, that Rowley, as the agent of Craft, on the 25th of October 1842, sold and disposed of the iron to Tunis Van Brunt, and that he delivered to him a bill of parcels for the iron, with a receipt thereon, for the purchase money. If, to perfect the sale, the payment of the purchase were considered necessary, that fact is evidenced by the receipt on the bill of parcels, and is to be taken by us as payment, in the absence of evidence to the contrary, and so far as the question and this statement is concerned, is just as efficacious as would be the admission, that the money was paid.

The next and only enquiry is, was the iron delivered in pursuance of the contract?

It certainly would not be necessary to prove a manual or actual delivery of the property. It consisted of eighty-three tons of pig iron, lying on the banks of the Chesapeake Sp Ohio Canal. It was a ponderous article, incapable in the ordinary course of business of actual delivery. In such a case, all that the law requires is constructive delivery, and the enquiry is, was there a constructive delivery in this case?

On the 29th of October 1842, an order from the vendee to H. Jameison, directing him to forward it to F. and A. H. Dodge, at Georgetoivn, with directions to ship to the vendee in New York; and also an order from the agent of the vendor, giving further directions in relation to the shipment, and the payment to Jameison of the freight for transportation, directed to the shipper at Georgetown, are presented on the 29th of the same month to Henry Jameison, who agreed to attend to them.

We thus perceive, that Jameison is notified of the sale by the vendee and the agent of the vendor; that the vendee exercises an act of ownership over the property, by appointing Jameison as his agent, to forward the property; that all this is done with the consent of the agent of the vendor, by his letter to F. and A. Dodge; that these facts are made known to Jameison, and that he undertakes the agency.

Now, if Jameison were in the possession of the property on the 29th of October, when these orders were delivered to him, and when he assumed this agency for the vendee, then within the principle of the case of Wells, Miller and Cooper, vs. Biscoe, above adverted to, the cases cited, there was a delivery to the vendee, and the sale was complete.

The enquiry then is, was Jameison in possession of the property on the 29th of October 1842? It is a fact admitted, that he was pul originally in possession by the owner, Craft, of this iron for transportation to Georgetoivn, but before it reached the place of destination, it was attached by sundry creditors of Freeborn, Perdue & Co., at what time does not appear; but it is admitted, that these attachments were dissolved on the 25th of October 1842. In the levy of the attachments, anterior to the 25th of October 1842, we cannot presume the sheriff disturbed the possession of IT. Jmieison, who, as agent, was entrusted therewith for transportation, because, being in possession of the iron, it was the duty of the sheriff to return him as garnishee. Upon the dissolution of the attachments, this continued possession was unaffected by the lien of the attachments. He is admitted to have been in possession anterior to the attachments, and is not shown by an})' evidence to have been out of possession, either voluntarily or by coercion, anterior to the day when he assented to execute the orders delivered to him, by which a change of property was effected.

According to these views, there has been a valid sale and delivery of the iron in controversy, and the transfer not requiring to be recorded, according to the decision of this court in the case of Wells, Miller and Cooper, vs. Biscoe, above adverted to, the judgment of the county court must be reversed, and judgment entered in this court on the case stated, that the attachment be quashed according to said statement.

judgment reversed.