Smith & Co. v. Barker , 102 Ala. 679 ( 1893 )

HEAD, J.

We are unable to see that the claimants have any just claim to the oranges levied on in this case. The bill of exceptions show that they shipped the oranges, from Anthony, Fla., to the Decatur Grocery Company, in Decatur, Ala., by rail, to whom they had sold them “on commission only.” The goods were levied upon under attachment against' the Grocery Company, in favor of plaintiff, while they were in possession of the carrier, in Decatur, consigned to the Grocery Company. This made out aprima facie case of title in 'the Grocery Company, which it devolved on the claimants to overcome. They claim on two grounds : 1. That they never parted with the title. 2. The right of stoppage in transitu.

First. If claimants retained the title to the goods it devolves upon them to show it with that degree of certainty which satisfies the mind. That they sold the goods to defendants “on commission only,” is of such doubtful and uncertain import that we can not say what it means. If the goods were merely shipped by claimants to the Grocery Co. to be by the latter sold for the former’s use, on commission, it could have been easily shown. We must take it that there was a 'sale of the goods passing the title.

Second. The only fact on which the right of stoppage in transitu is claimed is, that “the individuals composing the firm of the Decatur Grocery Company had, on or about the 25th day of December, 1890, absconded.” The levy was made January 1, 1891. There is no proof of their insolvency. For aught that appears they may have left abundant property to pay all their debts.' Insolvency is the chief basis of the right of stoppage in transitu. — Loeb v. Peters, 63 Ala. 243. The finding and judgment in favor of the plaintiff were right.

. We must not be understood as deciding that a statutory claim suit, lilce the present, can be instituted and maintained, after the goods levied on have been sold, as perishable, under order of the court. Decision of that question, being unnecessary in this case, is pretermitted. We intimate no opinion upon it.

Affirmed.