1 Handy 546 | Oh. Super. Ct., Cinci. | 1855
This is an action brought by the plaintiffs, to recover from the defendants the amount alleged to be due on a bill of exchange, drawn by the defendants upon their correspondents, and agents, at New Orleans, in favor of Cham
The case has been submitted to the Court upon the following agreed facts.
On the 16th February, 1853, Champlin & French, a firm doing business in Cincinnati, then in fact insolvent, being indebted to the plaintiffs, a firm doing a commission business in New Orleans, in the sum of $2,500 and upwards, purchased from the defendants, the draft or check sued upon, giving in payment therefor their own check upon their bankers, S. S. Rowe & Co., of Cincinnati, having then but a small balance in bank, wholly insufficient to cover the check. On the same day they enclosed the draft in a letter directed to the plaintiffs at New Orleans, and sent it upon a steamboat carrying the mail, which left on that day for New Orleans. In the afternoon or evening of the same day, William S. Wright, one of the plaintiffs, residing in Cincinnati, whose business it was to make advances upon consignments shipped to their house in New, Orleans, called upon Champlin & French, and inquired if they had remitted, to which they replied they had, (not stating the mode of remittance.) Due presentment of the check for payment being made by the defendants, it was dishonored, for the reason above stated. And on the day, following, the defendants called upon Champlin & French, and demanded a return of their draft. And thereupon Champlin & French gave to defendants a written order upon the plaintiffs, to deliver up the draft to defendants, as having been obtained without consideration; and on the same day defendants wrote and telegraphed to their agents in New Orleans, upon whom the draft was drawn, not to pay it, and requesting them to notify the;
Had this action been brought by Champlin & French, it is very certain there could be no recovery. The facts stated show a clear fraud on their part, in obtaining this draft, Such as precluded them from acquiring any right therein. Unless, therefore, the plaintiffs, who derive their title, from them, can be protected upon the plea of being innocent purchasers for value; without notice, they cannot occupy any better position than could Champlin & French. To constitute a purchase for value, it is not necessary that money, or other valuable thing, should have been advanced or given by the purchaser. We have held it sufficient that he has given credit, in respect of the thing
It is claimed, however, on the part of the plaintiffs, that upon the mailing of the letter containing this draft, di
'With the exception of the case from Strange 165, the only class of cases, to which our attention has been called, in support of this proposition, are those, where goods have been shipped on board of a vessel, by the owner, or by his orders, consigned to his creditor, in payment, or on account, and a bill of lading has been signed by the captain of the vessel, and delivered by the owner or his agent to the captain, to be handed over to the consignee, or otherwise been sent to the consignee, and where the shipment was in pursuance of some previous advice. Such was the character of Ward vs. Roach et al., 1 Yates 177, 2 Dall 180, S. C.; Summeril vs. Elder, 1 Binn. 106; Clark vs. Mauran et al., 5 Paige 378: In all which stress was laid upon the fact, that a bill of lading had been signed for the goods, which it was said of itself passed the title to the consignee; and upon the further fact, that upon equitable considerations, the-title would, be regarded as vesting by the delivery to the carrier.
On the other hand, in the case of Walter et al. vs. Ross, 2 Wash. C. C. 283, where goods had been sent on board a. vessel, by a debtor, consigned to his creditor, and a bill of lading actually signed therefor, by the captain of the vessel, of which he retained his own copy, but. the consignor.. had not put into his hands a duplicate to be handed to. the consignee, nor in any other manner parted with it; nor advised the consignee, by previous letters, of his in
The strongest case in favor of the plaintiffs is that of Atkin vs. Barwick, 1 Strange 165. That was an action brought by the assignee of a bankrupt, to recover the value of some silks, alleged to have belonged to the bankrupt. On the 7 th of April, the defendants, doing business in London, sent to the bankrupts at Penryn, in Cornwall, by their order, the goods in question, and gave them credit on their books. On the 8th of May following, the bankrupts, (without the knowledge of the defendants,) sent the same to Mr. Penhallow, also in Penryn, for the use of the defendants. Oh the 4th of June the act of bankruptcy was committed; and on the 6th the bankrupts wrote a letter to defendants, “stating that their affairs “were in a declining condition; that it was not reasonable “the last parcel of goods should go to satisfy their other “creditors; and therefore they had not entered them in “their books, but left them with Penhallow, who had or“ders to deliver them to the defendants.”' After the commission of bankruptcy issued, and the effects were assigned to the plaintiff, this letter was received by the defendants; ' being the first notice they had of the delivery to Penhallow.; and as soon as possible thereafter, they signified their consent to take the goods again. The Court held, that “under the special circumstances,” the title passed to the defendant, by the delivery to Penhallow, the precedent debt being a sufficient consideration for the de
Such was the view of that case taken by Lord Mansfield in Alderson vs. Temple, 4 Burr. 2237. There it appears, that on the 10th October the bankrupts had exchanged notes with Bryer & Everard, for £600, payable in two months after date. On the 7 th of November they sent the note given them by Bryer & Everard, (this one being unpaid,) enclosed in a letter to the defendant, to whom they were indebted in a large amount, whether as payment to that extent, or whether it was to be received at the rislc of the defendant, did not appear. This letter was not received by the defendant, until the 10th; between which time and that of its being sent, the bankruptcy was committed. It further appeared, that the note was sent to the defendant in contemplation of insolvency. It was held that the indorsement of the note was fraudulent, on the part of the bankrupts, as against Bryer & Everard, who would thus be deprived of their just set-off, and therefore void; and that the act of transfer was not
The other Term Judges put the case expressly upon the ground, “that assent is necessary to complete every contract; and as the defendant had his election until the 10th of November, and the act of bankruptcy was committed on the 8th, the contract was incomplete.” The remarks of Lord Mansfield are so apposite to the present case, that I cannot avoid transcribing a portion entire. Page 2239, he says, “I choose to put the case upon the ground of fraud, because the most desirable object in all judicial determinations, especially in mercantile ones, (which ought to be determined upon natural justice, and not upon the niceties of law,) is to do substantial justice. And therefore Í will avoid laying the stress, that might properly be laid upon the assent being necessary to complete the contract, or the want of delivery; the solid ground of which is, that a contract shall be presumed complete upon any distinction, when the justice of the case requires it, though there is no actual delivery. And it is settled, that if a man send bills of exchange, or consign a cargo, and the ¡person to whom he sends them has paid the value before ; though he did not know of the sending them at that time, the sending of them to the carrier will be sufficient to prevent the assignees from taking these goods back, in case of an intervening act of bankruptcy. But if goods, or bills of exchange, are sent, and the consideration has not been received, the Court of Chancery always interposes', and there are numbers of adjudged cases of that kind in chancery,” (alluding to the equitable doctrine of stoppage in transitu, not then established at law.) In the case in Strange there is no doubt, but the honesty of the case inclined the
And so, in all the other cases, in which it has been held, that the title passed upon the delivery to the carrier; and that assent or acceptance will be presumed, there was strong intrinsic equity in holding the transfer complete.'
In the first place, (which comprises a marked feature in such case, and upon which this justice rests,) the person sending the goods was their real owner, and had the right to make the disposition contemplated. In the second, the questions all arise between different creditors, when the equity of the transaction was in favor of the particur lar creditor to whom the goods or property were sent, and the assignee of a bankrupt, or attaching creditors, who had no such equity. And therefore the Courts applied every presumption of law to sustain justice and right. But such presumptions are never made against the justice and equity of the case.
How then stands the equity in the present case l Ellis. & Morton have received no consideration from any one for this bill, but were defrauded of it by Champlin & French. It was equally fraudulent in Champlin & French to send, the bill to the plaintiffs. The plaintiffs have in fact parted with nothing valuable, nor, as appears, been in any ivisejeopardised by the receiving of the bill. They never gave any actual assent to its acceptance before it was received,,
I put out of view, as of no serious consequence, the fact, that after this letter had been sent, enclosing the bill, Champlin & French communicated to one of the plaintiffs the fact, that a remittance had been made of some land to the plaintiffs’ house in New Orleans; because that circumstance alone would not have put. the remittance at the risk of the plaintiffs •; and- does not furnish sufficient evidence, that any additional credit was given to Champlin & French, on account thereof, which would not otherwise have been given. And I do not think that the real equity of the case requires me to strain a point in favor of the plaintiffs.
Judgment will therefore be entered up in the case for the defendants.