Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Harrison.

loading, whereupon the defendant filled up the vessel for his own account, and refused to deliver to the plaintiff bills of lading for the 1,000 tons, on the ground that they belonged to De Mattos. It was proven that the plaintiff was in the habit of buying such cargoes for De Mattos, and charged him no commission, but an advance on the cost of the salt to remunerate himself for his trouble; that the plaintiff always paid for the salt and loaded it at his own expense, and when the cargo was completed sent invoices to De Mattos and received the acceptances of the latter for the cost. Held, under these circumstances, a question of intention for the jury, whether the plaintiff intended to part with the property in the salt or to reserve it, and a verdict in favor of the plaintiff that he had not parted with the goods was maintained. § 398. In Shepherd v. Harrison (d) the facts were that PaShepherd v. ton, Nash & Co., merchants of Pernambuco, bought for the plaintiff, a merchant of Manchester, certain cotton, shipped it on the defendant's steamship Olinda, taking a bill of lading. They then wrote to the plaintiff, saying, "Inclosed please find invoice and bill of lading of 200 bales cotton shipped per Olinda, costing 8511. 28. 7d." The letter also announced that a draft had been drawn for the price in favor of George Paton & Co., the agents in Liverpool of Paton, Nash & Co., " to which we beg your protection." The invoice was headed, "Invoice, &c. on account and risk of Messrs. John Shepherd & Co. (the purchaser)." The bill of lading, however, was not inclosed in the letter to the plaintiff, but was, together with the bill of exchange, inclosed to George Paton & Co. of Liverpool, who at once sent a letter to the plaintiff inclosing the bill of lading and the bill of exchange drawn on him, and stating, "We beg to inclose bill of lading for 200 bales cotton shipped by Paton, Nash & Co., per Olinda, s. S. on your account. We hand also their draft on your good selves for cost of the cotton, to which we beg your protection." The plaintiff refused to accept the bill of exchange, but retained the bill of lading, and demanded the cotton from the master of the ship, who, however, delivered the goods to George Paton & Co., on a duplicate bill of lading held by them, and on receiving an indemnity against the plaintiff's claim. The plaintiff's action was trover against the master, but all the courts were

(d) L. R. 4 Q. B. 197, 493; L. R. 5 H. L. 116.

unanimous in favor of the defendant, and it was held in the House of Lords: first, that the jus disponendi had been reserved by the vendors; secondly, that where a bill of exchange for the price of goods is inclosed to the buyer for acceptance, together with the bill of lading which is the symbol of the property in the goods, the buyer cannot lawfully retain the bill of lading without accepting the bill of exchange; that if he does so retain it, he thereby acquires no right to the bill of lading or the goods. (d1)

Rules de

duced from of the authorities.

the review

§ 399. The following seem to be the principles established by the foregoing authorities: First. Where goods are delivered by the vendor in pursuance of an order to a common carrier for delivery to the buyer, the delivery to the carrier passes the property, he being the agent of the vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee. (e) Secondly. Where goods are delivered on board of a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a delivery to the buyer, but to the captain as bailee for delivery to the person indicated by the bill of lading, as the one for whom they are to be carried. (e) This principle runs through all the cases, and is clearly

(d) [First National Bank of Cairo v. Crocker, 111 Mass. 166, 167; De Wolf v. Gardner, 12 Cush. 19, 23; Allen v. Williams, 12 Pick. 297.]

(e) Wait, v. Baker, 2 Ex. 1. See, also, Dawes v. Peck, 8 T. R. 330; Dutton v. Solomonson, 3 B. & P. 582; London & North Western Railway Company v. Bartlett, 7 H. & N. 400, and 31 L. J. Ex. 92; Dunlop v. Lambert, 6 Cl. & Fin. 600; [Putnam v. Tillotson, 13 Met. 517; Stanton v. Eager, 16 Pick. 467; Ludlow v. Bowne, 1 John. 15; Johnson v. Stoddard, 100 Mass. 306; Orcutt v. Nelson, 1 Gray, 536; Merchant v. Chapman, 4 Allen, 362; Hunter v. Wright, 12 Ib. 548; Woolsey v. Bailey, 27 N. H. 217; Arnold v. Prout, 51 Ib. 587, 589; Garland v. Lane, 46 Ib. 245; Goodwyn v. Douglas, Cheves L. & Eq. (S. Car.) 174; Waldron v. Romaine, 22 N. Y. 368; Summeril v. Elder, 1 Binney, 106; Griffith v. Ingledew, 6 Serg. & R. 429; Rodgers v. Phillips, 40 N. Y.

519; Magruder v. Gage, 33 Md. 344; ante, § 362; First National Bank of Cairo v. Crocker, 111 Mass. 166. To produce the effect stated in the text it is not necessary that any particular carrier should be designated by the buyer; Garland v. Lane, 46 N. H. 245, 248; Arnold v. Prout, 51 Ib. 587, 589; Watkins v. Paine, 57 Ga. 50; nor does it make any difference which party is to pay the freight for the goods. Dutton v. Solomonson, 3 B. & P. 584; Vale v. Bayle, 1 Cowp. 294; Ranny v. Higby, 5 Wis. 62. A delivery of an article sold to a person appointed by the vendee to receive it is a delivery to the vendee. Wing v. Clark, 24 Maine, 366, 373; Hunter v. Wright, 12 Allen, 548. So a delivery at the place agreed, nothing remaining to be done by the vendor. Nichols v. Morse, 100 Mass. 523.]

(el) [Gabarron v. Kreeft, L. R. 10 Ex. 274, 281.]

enunciated by Parke B. in Wait v. Baker, (ƒ) and by Byles J. in Moakes v. Nicolson. (g) And the above two points were approved as an accurate statement of the law by Lord Chelmsford in Shepherd v. Harrison, supra. Thirdly. The fact of making the bill of lading deliverable to the order of the vendor is, when not rebutted by evidence to the contrary, almost decisive to show his intention to reserve the jus disponendi, and to prevent the property from passing to the vendee. (h) Fourthly. The primâ facie conclusion that the vendor reserves the jus disponendi, when the bill of lading is to his order, may be rebutted by proof that in so doing he acted as agent for the vendee, and did not intend to retain control of the property; and it is for the jury to determine, as a question of fact, what the real intention was. (i) Fifthly. That although as a general rule the delivery of goods by the vendor on board the purchaser's own ship is a delivery to the purchaser, and passes the property, yet the vendor may by special terms restrain the effect of such delivery, and reserve the jus disponendi, even in cases where the bills of lading show that the goods are free of freight, because owner's property. (k) Sixthly. That where a bill of exchange for the price of goods is inclosed to the buyer for acceptance, together with the bill of lading, the buyer cannot retain the bill of lading unless he accepts the

(ƒ) 2 Ex. 1.

lien only, in case of the purchaser's mak(g) 19 C. B. N. S. 290; 34 L. J. C. P. ing default in the payment of the price,

273.

(h) Wilmshurst v. Bowker, 2 M. & G. 792; Ellershaw v. Magniac, 6 Ex. 570; Wait v. Baker, 2 Ex. 1; Van Casteel v. Booker, 2 Ex. 691; Jenkyns v. Brown, 14 Q. B. 496, and 19 L. J. Q. B. 286; Shepherd v. Harrison, L. R. 4 Q. B. 196, 493; 5 Eng. App. 116; [Mason v. The Great Western Railway Co. 31 U. C. Q. B. 73; Merchants' National Bank v. Bangs, 102 Mass. 295, 296, stated ante, § 382, note (a); Ames J. in First National Bank of Cairo v. Crocker, 111 Ib. 167. Where an unpaid vendor, shipping of jus dispo- goods under a contract of sale,

Reservation

nendi is more than lien.

takes a bill of lading making the goods deliverable to his order, and retains such bill of lading in his own or his agent's hands for his own protection, he does not reserve the vendor's

but reserves a right of disposing of the goods so long at least as the purchaser continues in default. Ogg v. Shuter, 1 C. P. Div. 47.]

(i) Van Casteel v. Booker, 2 Ex. 691; Brown v. Hare, 4 H. & N. 822, and 29 L. J. Ex. 6; Joyce v. Swan, 17 C. B. N. S. 84; Moakes v. Nicolson, 19 C. B. N. S. 290; 34 L. J. C. P. 273.

(k) Turner v. Liverpool Dock Trustees, 6 Ex. 543; Ellershaw v. Magniac, 6 Ex. 570; Brandt v. Bowlby, 2 B. & Ad. 932; Van Casteel v. Booker, 2 Ex. 691; Moakes v. Nicolson, 19 C. B. N. S. 290; 34 L. J. C. P. 273; Falk v. Fletcher, 18 C. B. N. S. 403; 34 L. J. C. P. 146; Schotsman v. Lancashire & Yorkshire Railway Company, L. R. 2 Ch. App. 332; Gumm Tyrie, L. J. 33 Q. B. 97; in error, 34 Q. B. 124.

bill of exchange: and if he refuse acceptance he acquires no right to the bill of lading or the goods of which it is the symbol. ()

(1) Shepherd v. Harrison, supra, § 398; [Bank of Rochester v. Jones, 4 Comst. 497, 502; Winter v. Coit, 3 Selden, 288; Marine Bank of Chicago v. Wright, 48 N. Y. 1; Fifth National Bank of Chicago v. Bayley, 115 Mass. 228, 230; Alderman v. Eastern R. R. Co. Ib. 233; Ames J. in First National Bank of Green Bay v. Dearborn, Ib. 222; Millar v. Sav. Ass'n, 3 W. N. Cas. 480; Cobb v. The Ill. Cent. R. R. Co. 88 Ill. 394; Taylor v. Turner, 87 Ib. 296. In First National Bank of Cairo v.

First Nat. Bank v.

Crocker. Crocker, 111 Mass. 163, A., in Illinois, being indebted to the defendants, who were commission merchants in Boston, for advances, promised that he would 'make it right" at the next shipment. He afterwards shipped goods to Boston, taking a bill of lading stating that the goods were "consigned to shipper's order," but containing under the heading "consignees" the name of the the defendants. He drew on the defendants, attached the bill of lading to the draft, and had the draft discounted; the defendants refused to accept the draft, and it was taken up by A. The goods afterwards arrived and were delivered to the defendants. Subsequently A. drew a draft against the goods on B. in Boston, and delivered it, with the bill of lading attached, to the plaintiff, who discounted it and presented it to B., who accepted and paid it. Between the time when this second draft was discounted and the time when it was accepted, the defendants sold the goods; it was held that the act of the defendants in taking possession of the goods was wholly unauthorized, and gave them neither valid title nor lawful posses sion; and in proceeding afterwards to sell them as if they were their own, and appropriating the proceeds, they were guilty of a wrongful conversion; and it was also held that it was immaterial whether the bill of lading, when delivered to the plaintiff, was indorsed by A. in blank or to the

order of B. See De Wolf v. Gardner, 12 Cush. 19; Bank of Rochester v. Jones, 4 Comst. 497. "When bills of lading to shipper's order, or to or order, indorsed,

or by which goods are made deliverable to a consignee by

Transmis

sion of bills to one as security for antecedent

advances.

name, are transmitted to him as security for antecedent advances, .... they are evidence of such a destination and appropriation to him of the specific goods as will vest in him a property, absolute or special, in them, at the time of their delivery on board." Abbott on Shipping (5th Am. ed.) p. 410. The American cases seem to support this statement. Schumacher v. Eby, 24 Penn. St. 521; Grosvenor v. Phillips, 2 Hill, 147; Straus v. Wessel, 30 O. St. 211; Bailey v. The Hudson R. R. Co. 49 N. Y. 70; Nelson v. Chicago &c. R. R. Co. 2 Bradwell (Ill.), 180. But if the consignor be simply generally indebted to the consignee, there is a recognized distinction. Bank of Rochester v. Jones, 4 N. Y. 497; Grosvenor v. Phillips, 2 Hill, 147; Elliot v. Bradley, 23 Vt. 217; Hodges v. Kimball, 49 Iowa, 577; Redd v. Burrus, 58 Ga. 574; Nelson v. Chicago &c. R. R. Co. 2 Bradwell (Ill.), 180; Saunders v. Bartlett, 12 Heiskell (Tenn.), 316; Oliver v. Moore, Ib. 482. In Frechette v. Corbet, 5 Low. Can. 211, Meredith J., after quoting the above passage from Abbott, said, Ce passage ne prouve pas qu'en aucun temps, suivant les lois anglaises, le droit de propriété dans des marchandises mentionnées dans un connaissement, doit passer au consignataire au préjudice des autres créan ciers du consignateur; et quelle que soit à cet égard la loi en Angleterre, suivant notre droit, un débiteur ne peut pas transporter, de la manière mentionnée dans le passage cité d'Abbott, tous les biens à l'un de ses crcanciers au préjudice des autres." See Marine Bank of Chicago v. Wright, 48 N. Y. 1; Grosvenor v. Phillips, 2 Hill,

147.

CHAPTER VII.

EFFECT OF A SALE BY THE CIVIL, FRENCH, AND SCOTCH LAW.

Section

Discovery of the Institutes of Gaius 401 In Rome sale was not a transfer of

Section

[merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small]

§ 400. AN attempt must now be made to give a summary, necessarily very imperfect, of the principles of the Civil Law, in regard to the nature of the contract of sale and its effect in passing the property in the thing sold. The subject is the more dif ficult, because there is a marked distinction between the modern Civil Law and the Roman Law, and because the doctrines are subtle and technical, requiring for elucidation at least some general idea of the mode in which the Romans entered into contracts at different periods in their history.

Discovery of Institutes of

§ 401. The civilians of the present generation have enjoyed an immense advantage over their eminent predecessors, Pothier and D'Aguesseau, Cujas and Vinnius, Domat Gaius. and Dumoulins. The Digest, Code, and Institutes of Justinian, compiled in the sixth century, during the reign of that emperor (A. D. 527-565), formed, prior to the year 1816, the almost exclusive source from which was derived a knowledge of Roman jurisprudence; and in that famous corpus juris civilis, the

« ΠροηγούμενηΣυνέχεια »