114 Mass. 447 | Mass. | 1874
The plaintiff entered into a contract with N. A. Smith & Co. to construct its road, furnish all the materials, and deliver possession thereof finished and complete, ready for use, within two years from September 1, 1870. The contract was dated September 9, 1870. The consideration agreed on was $1,200,000, to be paid as follows, namely, $500,000 in first mortgage bonds of the road, and $700,000 in shares of its stock, both at par; $100,000 of the stock to be retained as a margin for security of performance. The bonds and' the rest of the stock were to be delivered monthly, in proportion to the progress of the work, upon certificates of the engineer.
N. A. Smith & Co. having bargained with Vibbard, Foote & Co., of New York, to furnish the iron rails, chairs and spikes for laying the track, subsequently, namely, in October, 1871, entered into a formal agreement with them, by which a credit and an extended time for payment was secured on the one part, and on the other it was agreed that a deposit should be made of bonds to the amount of $194,500, in addition to $43,000 already held, and scrip for paid up capital stock of said Ware River Railroad to an amount of at least $250,000, as collateral for the credit so to be given; the stock and bonds to be delivered “pro raid as the rails, chairs and spikes are delivered.” Upon completion of the contract, $175,000 of the stock was to be retained by Vibbard Foote & Co. in lieu of commissions.
December 26, 1871, Vibbard, Foote & Co. sent to N. A. Smith & Co. a bill of parcels of the rails now in controversy, to wit, 1190 rails, about 800 tons, being the last required to complete the contract. The bill was made out to “ Messrs. N. A. Smith & Co. for Ware River Railroad Co.,” “ bought of Vibbard, Foote & Co., 40 Broadway. Terms as per contract.” The specific iron designated by this bill was imported in the bark Presto, entered in the custom-house at Boston, and placed in bonded warehouse, Damon’s Wharf, Charlestown, by Vibbard, Foote &
January 3, 1872, Vibbard, Foote & Co. wrote to the plaintiff, “ Also we have given him (Smith) invoices for rails and all material we are to furnish your road; and you will please send us the bonds and certificates of stock due us under our contract with Messrs. N. A. Smith & Co.”
January 8, 1872, N. A. Smith & Co. made a transfer of the bill of parcels above mentioned, as follows : “ For value received, we do hereby sell and assign, transfer and make over unto the Ware River Railroad Company the within bill and the iron therein mentioned, with full authority to said company to control and use the same as fully as we could do, they having paid the amount of said bill.”
In consideration of this transfer, the plaintiff consented to deliver at once the remaining bonds, $120,500, required by the contract of Smith & Co. with Vibbard, Foote & Co.; and on the same day, in accordance with a vote of the directors to that effect, the plaintiff’s treasurer, Otis Lane, inquired of Vibbard, Foote & Co., by telegraph, if he should send by Smith the remainder of the bonds, $120,500, to which they replied in the affirmative.
January 10, 1872, he wrote as follows: “Messrs. Vibbard, Foote & Co. I send by hands of Dr. Smith bonds $120,500, for which please send me a receipt showing that it is in full for bonds to be delivered on account of materials furnished in the name of the Ware River Railroad Company. The $120,900 in stock I will send you as soon as it can be legally issued.” To which they replied, under the same date:' “ Your favor of the 10th (9th?) inst. with the bonds of your company for $120,500, per hands of Dr. Smith, are received, and the bonds have been placed to credit in full for the balance of bonds due us as collateral under our agreement with N. A. Smith & Co. We shall be glad to receive the certificates for the stock yet due as soon as you can forward it.”
January 10, 1872, when the $120,500 in bonds were delivered to Vibbard, Foote & Co. by Smith, one of that firm requested
February 24, 1872, Vibbard, Foote & Co., by letter to the plaintiff, again called attention to the stock, $120,900, remaining undelivered, and requested it to be sent “ at your earliest convenience.”
February 28, 1872, Lane replies: “ They have not as yet earned under the contract sufficient stock so that we can to-day send you the amount your due ; still it may be just as well for you, as we shall retain the stock in our hands as it is earned, until the amount due you can be issued according to their contract. Then I will forward you the certificates for the amount.”
March 1, 1872, Vibbard, Foote & Co. write in reply: “Dr. Smith informed us when here that the certificate of stock could now be issued, which was our reason for making our request for it. We will see him when next in our city, in regard to the matter.”
June 1,1872, N. A. Smith & Co. had failed to pay their note, given to Vibbard, Foote & Co. for the iron; were of doubtful credit, and in fact insolvent. The plaintiff was also insolvent, had failed to pay the coupons upon its bonds ; and the bonds had fallen in market below the price limited for their sale, by the contract between Smith & Co. and Vibbard, Foote & Co.
June 8,1872, the plaintiff’s treasurer, Lane, writes to Vibbard, Foote & Co.: “In ordering forward the railroad iron now laying on the wharf at Charlestown, we found that you have a receipt for the same, so that it will be necessary for you to send us the receipt to be surrendered, or you send me such an order as wifi answer the same purpose.”
To this letter, Vibbard, Foote & Co. made no reply, and did not forward the receipt or an order for delivery of the iron, because, as they testified, “ they intended to retain their lien on it until paid therefor.”
December 20, 1872, a sale of all the securities in the bonds and stock of the road which they had received was made by Vibbard, Foote & Co. to Chester W. Chapin, with the assent of both the
It appeared that, in the negotiations for settlement preceding this sale, Vibbard, Foote & Co. spoke of this iron as a part of the assets of the railroad company, and its cost was included in their statements made up to show the condition of their accounts with X. A. Smith & Co., and the amount due to them thereon; also that both Chapin and the plaintiff knew that Yibbard, Foote & Co. made some claim to hold it, either as owners, or under a lien for what was due them.
December 21, 1872, Vibbard, Foote & Co. transferred said iron, in bond, to Jay Cooke & Co., to whom a new warehouse receipt was then issued.
December 23, 1872, Jay Cooke & Co. paid the duties on said iron, $11,069.10, and took a delivery order for the same, which they now hold.
Vibbard, Foote & Co. had no notice of the previous transfer from X. A. Smith & Co. to the plaintiff, unless they are chargeable with implied notice from the character of the transactions and communications above referred to.
Subsequently to these transactions, and before bringing suit, the plaintiff tendered to Vibbard, Foote & Co. the balance of stock to which they were entitled by their contract with Smith & Co., which was then worthless, and they refused to receive it.
The report contains various statements concerning the relations and state of account between Vibbard, Foote & Co. and Jay Cooke & Co., who were their bankers, and through whom their importations were made; from which it is claimed that Jay Cooke & Co. held some title or interest, by way of lien or otherwise, before the transfer to them in December, 1872, and that by vir tue thereof the legal possession was in them, and remained in them through the whole period covered by the transactions in
We do not deem the facts relating to the replevin suit and bond material to be considered; because the plaintiff is not entitled to relief in that particular, and apparently has no need of any. If there has been no delivery to the plaintiff upon the writ, as is alleged, there can be no judgment for a return. If there has been such a delivery, there ought to be judgment for a return ; because, even if the title passed by the contract of sale, there remained a lien for the price, which entitles the defendants to retain possession. And there is no difficulty in the way of returning the goods and saving the penalty of the bond.
The only questions which require decision now are, 1st. What rights in or to the property passed to or were acquired by N. A. Smith & Co. under their agreements with Vibbard, Foote & Co. ? 2d. What further or other rights were acquired by the plaintiff through its agreements and transactions with Yibbard, Foote & Co.?
The entire amount of collateral securities had not been delivered ; but Vibbard, Foote & Co. had entered into arrangements with the plaintiff, with the concurrence of X. A. Smith & Co., by which they were to receive that directly from the railroad corporation. They had accepted the assurance of the corporation for its delivery, and assented to or acquiesced in the reasons assigned for its delay.
For the purposes of this bill in equity, and as against Vibbard, Foote & Co., it may be immaterial whether the title had passed to X. A. Smith & Co. or whether their rights remained in ex-ecutory contract; because, even if the title had passed, we are of opinion that Vibbard, Foote & Co. still retain a lien upon the iron for what is due to them on account of the purchase money. There has never been a complete delivery. The warehouse receipt was taken in the name of Vibbard, Foote & Co., and has since been held by them or by Jay Cooke & Co. They thereby retained control of the iron; and the insolvency of X. A. Smith & Co. and of the plaintiff corporation, whose stock and bonds constituted the collateral security, and the non-payment by each of their matured obligations, entitled Vibbard, Foote & Co. to refuse to comply with the request of the plaintiff, made by letter of June 8,1872, to forward the receipt or a delivery order. They were then entitled to resort to and insist apon their lien. Arnold
Second. It remains for us to consider whether the plaintiff acquired any other or greater rights through its dealings directly with Vibbard, Foote & Co. The proposition made and accepted in view of the contract about to be executed between Vibbard, Foote & Co. and N. A. Smith & Co., manifestly affected only the arrangement for the collateral security; entitling Vibbard, Foote & Co. to receive the bonds and scrip for stock directly from the corporation ; thus enabling them with safety to deliver the iron to N. A. Smith & Co., for use upon the road, without requiring contemporaneous delivery of the securities. In all other respects, it contemplates no change in the contracts previously negotiated between the parties respectively. The securities are required to be delivered only as they “ shall be earned by them ” (Smith & Co.) “ under their contract ” with the corporation. There is no suggestion that the corporation should assume the payment of the cost of the iron. All the subsequent correspondence and conduct of all parties, and especially the bill of parcels and its assignment to the plaintiff, show that the transactions in regard to the sale and delivery of the iron were in the execution of the original agreements ; and that the relation of seller and purchaser never existed and was never understood to exist between Yibbard, Foote & Co. and the plaintiff. Throughout the whole, the plaintiff maintained that no obligation had been assumed by itself to Yibbard, Foote & Co., except to deliver the bonds and stock as
Whatever rights, therefore, the plaintiff acquired, through its arrangements and dealings with Vibbard, Foote & Co., were equitable rights only; to wit, the right to enforce against that firm their agreement to sell and deliver to X. A. Smith & Co. the stipulated quantity of iron for use upon the road of the plaintiff. The purpose specified in the contract, and the arrangements with the plaintiff in regard to the securities, created sufficient privity to enable the plaintiff to seek relief in equity for protection of its interests ; but they did not change the legal relations of the parties to each other in respect to the property which was the subject of the contract. The right of lien of the vendor has not been waived by those arrangements, and is superior to the equitable rights of the plaintiff.
It is contended that as, by the terms of the plaintiff's contract with X. A. Smith & Co., payment was to be made in the bonds and stock of the road, and as Vibbard, Foote & Co., knowing this fact, notified the plaintiff of the invoice they had sent to V A. Smith & Co., and requested the plaintiff to send them the bonds and stock due under their contract with X. A. Smith & Co., and did receive the full amount of the bonds, which alone proved of any value, they are and ought to be held estopped to deny that there had been a complete sale and delivery of the iron. But the plaintiff also knew that Vibbard, Foote & Co. were to receive the stock and bonds as collateral security only, and not as payment. If any estoppel could arise from these transactions, it would reach no further than to prevent them from denying that there was a completed sale which passed the title and right of present possession. It could not prevent them from availing themselves of the continued control, which they were permitted to retain, for the purpose of asserting their lien, upon the occur*
The lien of the seller is to enforce payment of the purchase money; not merely for the delivery of the security. The tender of the stock, therefore, would not discharge the lien, even if there were no objection to it on the ground of the lateness of the offer and the changed condition of the corporation.
The sale of all the securities that had been delivered and accepted, with the concurrence of all parties interested, operated only as payment, pro tanto, of the debt for the purchase money. It did not otherwise affect the lien of the seller upon the undelivered iron, for the balance of the yurrhase money remaining unpaid.
Whatever rights Chapin might have against Vibbard, Foote & Co., if he purchased the securities upon their representation that the iron in question belonged to the corporation, the plaintiff cannot avail itself of those rights. But it is manifest from the report that there was sufficient notice, both to Chapin and to the plaintiff, of the claim which Vibbard, Foote & Co. made to this iron.
It is contended further that, as the bonds and stock were to be delivered típro ratá, as the rails and chairs and spikes are delivered,” the securities were to be apportioned to the debt in its separate parts, and that the proceeds of the sale of the securities must be applied accordingly; to wit, by distribution upon the whole debt ratably, leaving a small part only of the purchase money of the iron in question remaining due to be enforced under the lien. We do not understand this to be the purpose or effect of the stipulation relied on. It prescribes the time and mode in which the security must be furnished by the purchaser ; but does not limit the rights of the seller to hold and apply the same to his debt. This is manifest from the subsequent provisions of the contract, authorizing sales of the securities and the crediting of the proceeds to the account of the parties generally; and requiring that the remaining bonds, if any, after “ said account shall be paid ” by sale of bonds or otherwise, shall be delivered back to the purchasers of the iron.
It follows that the plaintiff is entitled to the 4190 rails upon payment of what remains due Vibbard, Foote & Co. of the purchase money under their contract with N. A. Smith & Co. To determine what that amount is, it will be necessary that the case be referred to a master, unless the parties adjust the amount or otherwise dispose of the case.
The number of parties interested, and the complication of their various rights and interests, make it sufficiently apparent that it is a proper case for entertaining jurisdiction in equity.
If the plaintiff shall seek to prosecute the action further, an order may be entered for the appointment of a master to ascertain the amount due under the lien.
Colt, J., did not sit in this case.