55 Wis. 23 | Wis. | 1882
Lead Opinion
The following opinion was filed February 7, 1882:
In this case, reported in 49 Wis., 224, it was held that the amended complaint, on which the action was last tried, was for money had and received, and substantially charged that the money was the property of the plaintiff; and that, notwithstanding the former complaint set out the contract of consignment, the amendment was proper. The action under the amended complaint is not, therefore, based
In respect to tbe manner in which tbe package was made up and directed by Downs, tbe consignor, tbe evidence is tbe same as on tbe former trial, that tbe package was directed jointly to tbe plaintiff and one Cartwright by tbe partnership designation of “Wells & Cartwright.” There was no assignment by Cartwright of bis apparent interest in tbe package to Wells, and no written order by Cartwright to deliver to Wells, and no offer of any receipt or acquittance from both. There was a verbal demand by Wells, and a verbal statement by Cartwright that Wells owned tbe money. Tbe defendant refused, under such circumstances, to deliver to Wells alone, and insisted also that tbe money bad been subjected to garnishee proceedings against Cartwright. Irrespective of tbe garnishment, tbe first and important question
As a general principle it is unquestionably the law, as stated by the authorities cited by the learned counsel of the appellant, “that it is the duty of the company to make personal delivery in accordance with the address on the package; and if it is delivered elsewhere than as addressed, or to the wrong person, the company is liable for the consequent loss.” In this case the delivery of the package to “Wells & Cartwright,’'' the consignees, and to whom it was addressed, or to either of them for both, would have been a proper, and the only proper, delivery under the operation of this general principle. But to this general rule of law there are exceptions, one of which is that the true owner of the property may enforce his right to it as against the consignor or consignees or the carrier, or against the bailor or bailee, whenever he sees fit so to do, before its delivery as directed. His right is paramount to the claim of all others, no matter what may be their relations to each other, unless it is lost, or, for the time being, suspended, by his own conduct of surrender or estoppel. The terms of the contract of consignment, and the directions of the consignor, and the address upon the package, are all subject to thejus tertii whenever it is sought to be so enforced.
The exception, as stated by Browne, Law of Carriers, 221, is, that “the bailee must not give up the goods which actually belong to a third person, if he have notice of the fact, to the person who bailed them to him; ” or, as stated by Mr. Redfield, C. & B., § 318, “ otherwise he would pay in his own wrong if it should turn out that the property was in another, since the contract by construction is with the party entitled to claim the goods; ” or, as it is held in Ogle v. Atkinson, 5
This change of opinion upon the question by Mr. Justice Stoky is fully considered by Mr. Justice Willes in the leading case of Sheridan v. New Quay Co., 4 C. B. (N. S.), or 93 Eng. C. L., 617, and the first opinion of our learned author is approved. Perhaps it would not be proper to say that Mr. Angelí fully disapproved of this principle; for the reason he gives for differing from the opinion in Ogle v. Atkinson does not really touch the question, for he says: “ But this doctrine seems now to be untenable, and it is said that, in general, an agent has no right to set up an adverse title against that of his principal,” etc. This reason does not militate against the principle above stated, for it is not claimed that the bailor can “ set up,” or, in other words, of - his own motion, claim the property for a third person as the real owner.
Mr. Hutchinson, in his work on Carriers, § 405, says: “ Anri if the carrier or other bailee, while still holding possession of the property, would defend-against the claim of his bailor by sethmg up the paramount title of another, he must at least show that it is done by his authority and in his behalf, otherwise the bailee might avail himself of the title of a third person which might never be asserted by such person, and thus be enabled to keep the property for himself without a shadow of title, when by his contract he had undertaken to return to the bailor or to deliver it according to
This statement of the principle embraces the present case most fully, for here the individual claimant, Wells, has not only claimed this package of money as his exclusive property, but has demanded it, and now brought this suit under the amended complaint for it as so much money had and received by the defendant company to his use as the real owner. It is admitted by all of the courts and by the elementary writers, that it becomes a difficult question for the bailee or carrier to determine as to whether he should deliver the consignment or deposit according to the strict terms of his contract, or to the claimant, and that his position is perilous, but he must act at his own risk. It is suggested by the English authorities that he may protect himself by a bill of interpleader, in which the rights of all of the parties may be determined. But, in the present case, no such embarrassment exists, for the claimant, as the real owner, has brought his suit for the express purpose of proving his title and of obtaining the money.
When the liability of the express company to respond to the claim of a third person as the exclusive owner of the property against the terms or directions of the consignment for delivery to another, or for delivery to himself and an
This principle obtains in all cases of bailment, and the jus tertii may be enforced even as against the contract of bailment, and, when enforced, will be made available to excuse and protect the bailee from performance or delivery according to its terms; and it is founded in reason, as well as sustained by a great preponderance of authority. There can be no distinction between its application in case the bailor or consignor seeks to reclaim the property from the bailee or carrier and in case the consignee seeks its delivery; for the rights of all the parties to the contract must yield to the paramount right of the real owner of the property.
In Sheridan v. New Quay Co., supra, it is said: “ The defendants were common carriers, and therefore bound to receive the goods for carriage. They could make no inquiry as to ownership. They have not voluntarily raised the question; it was raised by the demand of the real owner, before the defendants had parted with the goods.” Upon the facts and findings in this case, this language is especially appropriate and authoritative.
This doctrine was denied by the earlier authorities, and it was held that if the bailee deliver the goods to the real owner, yet he shall be chargeable to the bailor (Rolle’s Abr.,
It is quite clear, from the evidence on this last trial, that the wagons which were purchased and received by Downs, the consignor, belonged to the plaintiff alone, and that Cartwright had no interest in them, and that the money ought to have been consigned to him alone, instead of to him and Cartwright jointly. After its arrival, the plaintiff, through his agent, claimed this package as belonging to him. exclusively, and the agent of the defendant was informed by both the consignees that the money belonged to the plaintiff alone, and the plaintiff demanded it of- the defendant. The case is, therefore, brought clearly within the above principle, and the plaintiff is entitled to recover, unless something was done which was tantamount to a delivery of the money to Cartwright before this claim of the plaintiff was set up and demand made by him for it as his own property, exclusive of,. Cartwright. This leads to the question whether this money has been subjected to the garnishment of the defendant in cases or on judgments against Cartwright, before this claim and demand of the plaintiff for all of the money as his own, which is the only pretense of its delivery to the consignees.
Had this court been informed that such records would not ■show the facts so admitted in the stipulation, the decision in respect to it might have been different; and that such fact did not appear was not the fault of the court. That case is now res adjudieatco and beyond our control, and the present case must be considered as if no stipulation had been made, and the record evidence in the case, which consists exclu•sively of the docket entries of the justice of the peace who entertained jurisdiction of the garnishee proceedings against the defendant, must stand or fall by themselves.' It seemsi •that the papers are lost or cannot be found, and there was no attempt to prove their contents. The entries in the •docket of a justice showing appearance of the defendant would be sufficient to warrant the judgment in ordinary
The late learned and eminent chief justice of this court, in Steen v. Norton, 45 Wis., 412, uses this language in respect to this proceeding: “It is not the policy of the statute to place this anomalous action, like ordinary actions, at the mere discretion of the plaintiff, or to give justices of the peace unqualified jurisdiction of it, as in ordinary actions, where every person can become a plaintiff, have process, and put the justice’s jurisdiction in motion, on demand. The plaintiff in garnishee proceedings, as in attachment as mesne process, replevin, and the like, can put in motion the jurisdiction of the justice only by complying with statutory prerequisites. And the justice takes jurisdiction of the proceeding only upon the plaintiff’s compliance with the preliminaries which the statute makes the condition of jurisdiction. In order to entitle a plaintiff to have recourse to the process of garnishment, in order to confer on the justice jurisdiction to entertain it, he must first make the affida/oif retpuvred by the statute. . . . An affidavit materially defective stands as no affidavit. All proceedings founded on a materially defective affidavit are eoram non judioe. And no appearance, no submission of the garnishee, can operate to-
In most and perhaps all of the cases of garnishment sought to be introduced in evidence in defense of this action, there is an entry by the justice that an affidavit was made and filed. "What the affidavit contained does not appear. The affidavit, being the prerequisite of jurisdiction, must not only appear upon the records, but be strictly sufficient; and,1 not appearing, no jurisdiction whatever is shown in the jus- j tice. This is a fatal objection to the proceedings, and the cir-; cuit court properly refused to admit .them in evidence.
The only remaining questions rest upon the receiving of improper evidence, and the adjustment of the costs.. The testimony received against the objection of the appellant relates to the transaction of the shipment of the wagons,' and the collection bill therefor, forwarded to the agent of the defendant at Marshalltown, Iowa. This evidence was, '• of course, entirely immaterial so far as the subject matter of the action is concerned; for this action is simply for money. had and received by the defendant to the use of the plaintiff, under the last amended complaint; and even the relations of consignor, carrier and consignee have nothing to do with it, except as facts showing the defendant in possession of money belonging to the plaintiff, in connection with other proof that the money belonged to the plaintiff alone, and not to the plaintiff and one Cartwright jointly, as implied by the direction upon the package. Eor the purpose of establishing this last-mentioned fact, the ownership of the wagons before they were shipped, their shipment, and the terms of their delivery to Downs, the purchaser, and the collection bill sent to the agent of the defendant, would be pertinent evidence; and for such purpose at least it was admissible. The question in respect to the costs would seem to be like
By the Court.— The judgment of the circuit court is affirmed.
Rehearing
The appellant moved for a rehearing; and the following opinion was filed May 10, 1882:
On denying the motion of the appellant for a reargument of this cause, I deem it proper to briefly present the views of the court in respect to the question upon which such reargument is asked. The testimony of Benjamin W. Hall, taken on a previous trial, was read as evidence on the last trial; and a part of his testimony was, that certain garnishee summonses were served upon him, and that he sent notices thereof by mail to Cartwright and Wells. Thereupon, /‘the plaintiff objected to all evidence relating to the so-called garnishee proceedings, and the pretended service of notices therein, oh the ground that the same was incompetent and immaterial, and because each of the pretended .judgments was entered without jurisdiction, and after the commencement of this action.” This objection appears to have been read in connection with this testimony of the witness Hall, and became a part pf the case made on the last •trial. At that time there was a stipulation that the original papers in said garnishee proceedings need not be produced, •and such stipulation had been withdrawn before the last trial. On the last trial there was no evidence offered in respect to said garnishee proceedings, except the docket entries of the justices in the several cases; and as to some of them the docket entries were objected to, on the grounds “ that they were incompetent and immaterial, and that the plaintiff had no notice of such proceedingsand as to others they were objected to on the same grounds, “ and on the
All of these docket entries were ruled out, presumably on these grounds. No other evidence, of record or otherwise, was offered of the garnishee proceedings, and this was the only point in respect to such proceedings before this court on the appeal. The ruling of the circuit court was sustained on' the ground that the jurisdiction of the justices in the proceedings did not appear. It is now complained and contended' that the question of jurisdiction was not raised, and was therefore waived. That objection is sufficiently answered by. the foregoing references. But, aside from this specific objeo' tion, the docket' entries were clearly moomjpetent without first showing jurisdiction, and such jurisdiction was not shown by j such entries. In the brief of the learned counsel of the re- i spondent the point was distinctly made that the proceedings, so far as sought to be shown, were void for want of jurisdiction. This point was answered in the brief of the learned counsel of the appellant as follows: “The defendant was adjudged by the justice’s court to pay the money to the creditors suing out the garnishees. The papers are all lost. There is nothing left but docket entries; nor does it matter, as we see, whether the justice’s court was right or wrong in its decision. The money was subject to garnishment.”
No objection was made, it is complained, that the court had no jurisdiction. We have seen that such objection was distinctly made, and more than once. No objection was made to the introduction of the papers in the garnishee proceedings, including the affidavit, by which only jurisdiction could be shown, because they were not offered, and there was no offer to prove their contents if lost. It would seem, that the contention of the learned counsel of the appellant arises from a misapprehension of the record, and from not remembering that the stipulation, which probably dispensed
Having thus disposed of the question upon which the motion for a reargument mainly depended, we may say, in respect to the suggestion that this court misapplied the law in regard to the liability of bailees in the decision of the case, and that the case was disposed of upon a question not argued by counsel, that our view of the case expressed in the opinion, that the real owner could reclaim his property even as against the carrier or bailee at any time before delivery to the consignee, would apply equally to a case where ' the real owner had asserted his claim before the carrier or ■bailee had delivered up the property, or answered as to his liability on garnishment. It appears that the plaintiff had asserted his individual and exclusive claim to the packages ' before the defendant had answered as garnishee. The joint notice to the plaintiff and (mother, placed in the mail, was certainly not a sufficient notice to the plaintiff personally that he should appear at the time of the answer, and inter-plead or assert his claim to the property before the justices, to discharge the defendant from liability. This, of course, is clearly obiter, because no garnishee proceedings were shown on the trial; and it is here suggested only to make it at least pi’obable that the garnishee proceedings, if proved, would have been no defense to the action.
By the Oowrt. — The motion for reargument is denied, with $25 costs.