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Opinion of the Court, per FOLGER, J.

Greenl., 253; Beach v. Child, 13 Wend., 343.) Nor does it interfere with their right of action that they have succeeded to the ownership of the one-half part, equal and undivided, which was once of Chase, the grantor of the defendant. Conceding that they might, as being in their turn the grantees of Chase, be estopped by his deed to the defendant, that deed so far as it attempts by the circumstances attending its execution, to create an easement in the grist-mill property, is void as to them as the grantees of the co-tenants of Chase, and as against them as such passes no interest.

Nor can the defendant raise any technical objection as to parties. For though tenants in common must join in action to recover for injuries to the realty (De Puy v. Strong, 37 N. Y., 372), yet an objection on the score of non-joinder must be raised by demurrer if the facts appear from the complaint, or by answer if it be necessary to allege other facts than those averred by the complaint. (Id.)

Inasmuch then, as the charge of the court to the jury instructed them in effect, that the grant from Chase to the defendant was a warrant to him for the continuance of any structure as it existed at the time of the execution thereof, though such structure did affect injuriously, and but for that grant illegally, the property of the plaintiffs; there was error therein.

3d. There was not shown on the trial such state of facts as raised for the defendant the defence of the statute of limitation now set up for him.

This action was commenced, as is conceded by his counsel, on the 14th June, 1867. The acts complained of were not commenced earlier than the year 1847; but whether before or after the 14th day of June in that year, is not shown. We are not called upon to presume that they were before that day; the more especially, as it is not apparent that this point was made in the courts below.

For the error in the instructions to the jury, the judgment

Statement of case.

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of the court below should be reversed, and a new trial granted,
with costs to abide the event of the action.

All concur.
Judgment reversed.

V

Floyd BAILEY et al., Respondents, v. The HUDSON RIVER

RAILROAD COMPANY, Appellant.

49

70 171 1217

If A. has property upon which he has received advances from B., under an

agreement that he will ship it to B. to be sold to pay the advances, or to pay any indebtedness; he may or may not comply with this contract. He may ship to C. or to B. upon conditions, but if he ships to B. in pursuance of his contract the title vests in B. upon the shipment. The highest evidence that he has so shipped is the consignment and unconditional delivery to B. of the bill of lading ; but if A. retains the bill of lading, and notifies B. by letter that he has ped the property for him in pursuance of the agreement, or if in any other manner the intent thus to ship is evinced, the title passes as effectually, as between them, as if

the bill of lading had been delivered. Where, therefore, goods are so shipped, and the carrier receipts for the

same, and agrees to transport safely and deliver to B., the former is chargeable with knowledge of the rights of the latter, and if by the subsequent direction of A. he delivers the goods to another person, he is liable to B. for a conversion thereof.

(Argued February 29th, 1872; decided April 2d, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiffs entered upon a verdict.

Action for the conversion of eleven cases of dry goods.

On the 13th October, 1866, plaintiffs received in New York, from Alden, Frink & Western of Cohoes, an invoice of three cases of goods, consigned to plaintiffs on account of consignors by the defendant's road. Plaintiffs advanced thereon three-fourths of their value, and at the same time loaned Alden, Frink & Western $3,974.13, for which that firm gave their check payable a few days ahead. The check not being paid, it was agreed that Alden, Frink & Western

Statement of case.

should ship to plaintiffs, to pay the debt, eight more cases of goods. Invoices were sent to plaintiffs, stating the goods were consigned to plaintiffs on account of the consignors.

On the 16th and 17th of October, all the eleven cases were consigned to plaintiffs, and delivered to defendant's agent at Troy, to be by defendant transported to plaintiffs, the defendant at the time giving its receipt, promising and agreeing therein to transport and deliver the goods to plaintiffs, at New York. Instead of delivering the goods to plaintiffs, defendant, without requiring the surrender of its receipts, allowed Mr. Frink, unbeknown to his firm, to change their destination, and, in pursuance of his order, the goods were delivered to Albert Jewett & Co., of New York city, by whom they were sold, and the proceeds paid over to Frink.

The firm of Alden, Frink & Western were at this time insolvent. Plaintiff demanded the goods of defendant's agent in New York. The court, under exceptions of defendant, ordered a verdict for the plaintiffs for the value of the goods.

T. R. Strong for the appellant. The bill of lading and the invoice are the ordinary evidence of property. (The Sallie Magee, 3 Wall., 451; Blagg v. Phonix Ins. Co., 3 Wash. C. Ct., 5; 17 How., 100.) A simple consignment only shows that consignee is constituted agent of owner to receive and sell. (Conard v. A. Ins. Co., 1 Pet., 444; 7 Cow., 328; 2 Hill, 151, 152.) A bill of lading may be explained by parol. (Grosvenor v. Phillips, 2 Hill, 151, 152, per Cowen, J.; 1 Durn. & East, 745, 746 and note; The Bank of Rochester v. Jones, 4 Comst., 500, 501 ; Price v. Powell, 3 id., 322 325; Sweet v. Barney, 23 N. Y. R., 335; 2 Wash. C. Ct., 283.) “Where goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him as agent of the shipper, and it is competent to the consignor, at any time before actual delivery to the consignee, to countermand it, and thus to prevent the consignee's lien from attaching (The Frances (Irvin's claim], 8 Cranch, 418-420; see note, 3 Cond. Rep. S. C. U. S., 245; Ryberg v. Snell, 2

Statement of case.

Wash. C. Ct., 403; The Frances, 2 Gall., 391; The Bank of Rochester v. Jones, 4 Comst., 500, 501 ; Conard v. The Atlantic Ins. Co., 1 Pet., 444, 445, and cases cited in last two cases; Western Trans. Co. v. Hawley, N. Y. Com. Pleas, 1 Daly, 327; Abb. on Shipping [7th Am. ed.], 433; Grove v. Brien, 9 How. U. S. R., 429, 439.) Under general consignments, consignor can, at any time before bill of lading is delivered to consignee, revoke consignment. (Dows v. Cobb, 12 Barb., 310; W. T. Co. v. Hawley, 1 Daly, 327; Mitchell v. Ede, 11 A. & E., 888.) No lien attached until goods came to plaintiff's possession. (Ryberg v. Snell, 2 Wash. C. Ct., 291.) There was no such sale and delivery of the goods as would satisfy requirements of the statute of frauds. (Shildler v. Houston, 1 Cow., 261; Rogers v. Phillips, 40 N. Y., 519.) The evidence failed to establish a conversion. (Andrews v. Shattuck, 32 Barb., 396; Whitney v. Slanson, 30 id., 276; Latimer v. Wheeler, id., 485; Bridenbecker v. Lowell, 32 id., 9; Booth v. Bierce, 40 id., 114; The Union Bank v. Mott, 39 id., 180; Tolano v. National Steam Navigation Co., 5 Robt., 388.)

Samuel Hand for the respondents. Defendant, as common carrier, having received the goods to deliver to plaintiffs, the delivery to a wrong person was a conversion. (Hawkins v. Hoffman, 6 Hill, 586; Stephens v. Elwell, 4 Maule & Selw., 259; McEntee v. N. J. Steamboat Co., 45 N. Y., 49; Youl v. Harbottle, Peake's Cases, 49; Devereaux v. Barclay, 2 Barn. & Ald., 702; Stevenson v. Hart, 4 Biny., 476; Sabbock v. Ingalls, 1 Stark R., 104; Holbrook v. Wright, 24 Wend., 169; Esmay v. Fanning, 9 Barb., 189; Story on Bailment, 414; Boyce v. Brockway, 31 N. Y., 490.) The invoicing the goods to plaintiff was in itself a transfer of title. (Grosvenor v. Phillips, 2 Hill, 147; Holbrook v. Wright, 24 Wend., 168; Hailee v. Smith, 1 Bos. & Pull.; and see Vertue v.. Jewell, 4 Campb., 31, 33; Goss on Liens, 253; 5 Maule & Selw., 350; 9 East, 506; Anderson v. Clark, 2 Bing., 300; Gardiner v. Holden, 2 Pick., 599.) There was

Statement of case.

a delivery and acceptance by plaintiff's. (Woodford v. Patterson, 32 Barb., 630; Dixon v. Buck, 42 Barb., 70; Gray v. Davis, 10 N. Y., 285.) Shipping goods to one who has ordered them is a completed sale, vesting the property in the consignee, and is a constructive delivery. (Waldron v. Romain, 22 N. Y., 368; Daws v. Peak, 8 T. R., 330; Dutton v. Solomon, 3 Bos. & Pull., 582; Buckley v. Furniss, 17 Wend., 504; Covell v. Hitchcock, 23 Wend., 48; Brown v. Hodgson, 2 Camp., 36; Evans v. Marlett, 1 Ld. R., 27; Stanton v. Edgar, 16 Pick., 467; Hart v. Satterly, 3 Campbell, 528; Bushnell v. Wheeler, 15 Queen's Bench, 442; Kay v. Colesworth, 14 Eng. Law & Eq. R., 434; Ludlow v. Bowne, 1 Johns. R., 15, 16; Potter v. Lansing, id., 215; Fitzhugh v. Winan, 9 N. Y., 559; BUTLER, J., in Ellis v. Hunt, 3d Term; see, also, the case of Coxe v. Hardin, 4 East, 211, and Cross v. O'Donnell, 41 N. Y., 661; The People v. Hagner, 14 Wend., 546; Dyer v. Forrest, 2 Abbott, 282; Hayne v. Porter, 3 Hill, 141; and see the case of Stafford v. Webb, Hill & Denio's Supp., 213; Cross v. O'Donnell, 44 N. Y., 661.) Where the facts show intent to pass the title, the mere fact that bill of lading is taken in name of seller, and is unindorsed, will not prevent its passing. (Joyce v. Swann, 17 C. B. U. S., 84; Wait v. Baker, 2 Exch., 1; Brown v. Hare, 2 Halst., 822.) Mere possession of personal property is not evidence of ownership. (Spraight v. Harley, 39 N. Y., 445.) It is no defence that defendant acted upon the authority of Frink. (Stephens v. Elwell, 4 M. & S., 259; see, also, McCombee v. Davis, 6 East, 358; Baldwin v. Cole, 6 Mod., 212, and Perkins v. Smith, 1 Mills, 328.) The consignee is the presumptive owner, and the common carriers must deliver to him or order. (23 N. Y., 337; Frise v. May, 3 East, 93; Edwar v. Brown, 2 Mees. & Welsh., 375; Bryant v. Mix, 4 Mees. & Welsb., 775, 791.) By signing the shipping bill, the carrier becomes bailee for the consignor or consignee, according to the rights of property as between them. (Dows v. Green, 16 Baub., 72; Adams v. Bissell, 28 Barb., 382.)

SICKELS—VOL. IV.

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