Roth v. Palmer.

v. Wood went up to the Court of Appeals and was affirmed. I have not had access to the opinions pronounced upon such affirmance, but the note of the decision contained in the supplement to Clinton's Digest, page 24, would lead to the conclusion that the affirmance was placed upon a different ground, as it well might be, to wit, that there being an express valid contract in the case, the plaintiff could not be permitted to repudiate it, nor would the law imply a different one. The suit was indebitatus assumpsit for goods sold, and the goods received by the defendants were received upon a contract to sell them on commission. There was an alleged subsequent fraudulent conversion of the goods; and this fraud, under the authorities, justified the plaintiffs in disregarding the sale made by the defendants to other parties, which was in effect a fraudulent conversion, but not in disaffirming the original contract, which was subject to no imputation of fraud. There is nothing in the case to show that an action for a breach of the contract to sell on commission, if a breach of that contract had been prosecuted for and proved, would not have been sustained.

5. The remaining question is, what is the effect of a waiver of the tort? Does it restore the express contract which has been repudiated for the fraud; or does it leave the parties in the same condition as if no express contract had been made, to such relations as result by implication of law, from the delivery of the goods by the plaintiffs, and their possession by the defendant? On this subject the decisions are conflicting, but I think the weight of authority, as well as the true and logical effect of the various acts of the parties, is to leave the parties to stand upon the rights and obligations resulting from a delivery and possession of the goods. (Willson v. Foree, 6 John. 110. Butts v. Collins, 13 Wend. 154. Camp v. Pulver, 5 Barb. 91.) Indeed I think the plaintiff might properly and preferably have prosecuted simply for goods sold and delivered, and allowed the rest of the transaction to come out as a matter of evidence. If he had done so, the order of proof would have

Roth v. Palmer.

been as follows. The plaintiffs would have proved that they delivered goods of a certain value to the defendant, and that the latter received the same or that they were afterwards shown to be in his possession. From this evidence the law would imply a promise to pay the value, and the plaintiffs might properly have rested. The defendant would then have shown the express contract by which he was to have a credit of six months on the purchase. This would have established a defense. The plaintiffs would then show by the declaration of the defendant antecedent or subsequent to the purchase, or by other proper evidence, that the defendant's purchase was fraudulent, without means or intent to pay for the goods, and with the design to defraud the plaintiff, and would properly claim that this justified him in repudiating the contract. On this evidence the plaintiff would rest and the proof would be closed. The only remaining questions would be questions of law; whether this state of facts justified him in prosecuting in assumpsit, and whether adopting that form of action would reinstate the express contract. These questions, as already suggested, ought, I think, to be decided in favor of the plaintiffs. Under the old form of pleading, they might readily be prosecuted by declaration, plea and replication, and a demurrer to the replication; under the new form of pleading by a complaint and answer: the answer setting up the express contract, and the remaining facts being presented on the trial by denial or avoidance of the facts set up in the answer. The plaintiffs have chosen, perhaps in stricter analogy to the present system of pleading, to present all the facts in their complaint. The defendant admits those facts by the demurrer, and presents the questions of law arising thereon for the adjudication of the court. The result is, I think, that the plaintiffs must have judgment, and that the order of the special term must be affirmed with costs.

theory of the

[ALBANY GENERAL TERM, May 3, 1858. Wright, Gould and Hogeboom, Justices.]

STEVENS VS. WHEELER.

A vendor of goods cannot exercise the right of stoppage in transitu after the goods have been delivered by the carrier to a third person, on the order of the vendee; although they have never been delivered to the vendee at the place to which they were, at the time of the purchase, ordered by him to be sent. S. B. STRONG, P. J., dissented.

A vendor has the right to stop goods sold by him, where he discovers the vendee to be insolvent, at any time while the goods are in transitu.

The transitus continues until the goods reach the place of destination; unless sooner terminated by the act of the vendee.

A delivery of the goods, or a part of them, to the vendee, or a delivery to his agent or to a bona fide purchaser from him, terminates the right of the vendor of the goods to stop them.

The moment the goods come to the possession of the vendee, without fraud, the transitus is at an end.

A

PPEAL from a judgment rendered at a special term, after a trial at the circuit. The complaint alleged that the defendant wrongfully detained and converted to his own use certain property of the plaintiff, to wit, twelve cases, containing 658 pairs of shoes, of the value of $500. The answer was a general denial. The evidence showed that in August, 1855, at Haverhill, Mass. the plaintiff sold to Knower & Co. of Brooklyn, N. Y. twelve cases of shoes, on credit, and shipped the same by the Fall River Line, directed to the purchasers, at Brooklyn. The purchase was made by George S. Knower, for the firm of Knower & Co. of which he was a member. Knower & Co. being indebted to the defendant, Wheeler, upon a note for $500, not yet due, George S. Knower, previous to leaving home for the purpose of purchasing the shoes in question, gave Wheeler a verbal order to get goods from the store, to be applied in payment of the note. The defendant testified that Knower offered to pay him in goods, before the note became due, which would be on the 20th of August, 1855. He had not the goods the defendant wanted, but said he would procure them for him, and charge him only one cent a pair advance on the six months' price at which he should purchase them. The defendant gave him a written list of the kinds

Stevens v. Wheeler.

that he wanted. On the day of his return from Haverhill, after having purchased the goods in question, G. S. Knower, at the request of the defendant, gave him another order, to get goods from the Fall River Line. This order was in writing, and was general in its terms. The "defendant had a right to take such goods, and such cases, as he pleased." Upon this order the defendant obtained the goods in question from the boat of the Fall River Line, on their arrival at New York.. This was on the 22d or 23d of August. Some days afterwards he received a bill of them from Knower & Co. and settled for the price, in part by giving up and canceling Knower & Co.'s note, and partly with cash. On the day that G. S. Knower returned home, from Haverhill, but after the giving of the written order to Wheeler, Knower & Co. made a general assignment of their property, in trust for the benefit of creditors. The goods so bought of the plaintiff had never been paid for. The plaintiff insisted that inasmuch as the insolvency of the vendees occurred immediately after the purchase, and before the goods ever came into their possession, he was entitled to exercise the right of stoppage in transitu; and he demanded the goods of the defendant, who refused to deliver them up, claiming to hold them as a bona fide purchaser from Knower & Co. Previous to the demand, the defendant had sold a portion of the goods-about half a dozen cases by the case, and two or three cases by retail. The court charged the jury that the goods in question had been stopped by the vendor while in transit, and that the plaintiff was entitled to recover the value thereof. And the judge directed the jury to render a verdict for the plaintiff for the sum of $496.15; it being admitted that the goods mentioned in the bill of sale by Knower & Co. to the defendant were the goods sold by the plaintiff to Knower & Co.; and it being further admitted that the value of the goods sold by the defendant before demand made on account of the plaintiff, was the sum of $50. The defendant excepted to the charge. The jury found a verdict for the plaintiff, for

Stevens v. Wheeler.

$496.15, and from the judgment entered thereon the defendant appealed.

Hayner & Smith, for the appellant. I. The court erred in not granting the defendant's motion for nonsuit. If the goods in possession of the defendant were the same that were sold by the plaintiff to Knower & Co., the plaintiff cannot recover, because the transit had ended and the vendor's right of stoppage no longer existed. The order given by Knower & Co. to the defendant was sufficient to transfer, and did transfer the title of the goods to the defendant. The complaint alleges a conversion of the plaintiff's property, and under such a complaint the plaintiff cannot recover on the ground of stoppage in transitu; for that ground affirms the sale and shows the title to be out of the plaintiff, and he can only recover on the ground of having a lien or special property, and it should be so alleged in the complaint. The order given by Knower & Co. to the defendant to receive the goods, was a power coupled with an interest, and could not be defeated by any subsequent act of Knower. (2 Kent, 644. Chitty on Cont. p. 213, &c. 1 Parsons on Cont. 58 and note; Id. p. 60 and n. 12 John. 346. 8 Wheat. 174.)

Even if the assignment revoked the order as a power, it did not revoke it as a license, which protects the defendant from a charge of trespass, he having no notice of any revocation. The assignees took the goods subject to what the defendant might do before notice to him that his authority was revoked. His taking the goods (if not for his own benefit) was for their benefit; it was their taking, effected by him as their agent, and put them under their direction. (See 2 Kent, 543-5; Mottram v. Heyer, 5 Denio, 629, 30.)

C. A. Nichols, for the plaintiff. I. The transit was not ended at the time of the demand made by the plaintiff upon the defendant, the goods not having reached the place named by the vendee to the vendor as the place of their destination.