Taylor v. Richardson , 9 Del. 300 ( 1871 )

The Court,

Gilpin, G. J.,

charged the jury, that according to the proof as to the nature of the articles in question, being bulky and heavy, and the situation of the plaintiff at the time, they were, of course, incapable of an immediate actual delivery to him on the occasion of the alleged sale of them to him by Scott. To entitle the plaintiff to recover, however, the jury must be satisfied that there was an actual sale of them by Scott to him, and that it was not a pretended sale merely for the purpose of preventing his creditors frem seizing them for the payment of his debts; and that they were delivered to him in a reasonable and convenient time after such actual sale to.him, that is to say, as soon as it could conveniently have been done under the circumstances with the exercise of due and proper diligence and attention on his part for that purpose. But his residence was at Chester, Pa. and the goods were all the while which intervened between the sale and the service of the attachment by the Sheriff, and still are, in the custody and possession of Tatnall, Warner & Co. in the City of Wilmington, who are carriers and starers of goods in that city, and their actual possession of them as the agents and bailees of Scott at the time of the sale, was his constructive possession of them in law, and had either he or the plaintiff given them notice of the sale, it would in law have been equivalent to a delivery of them to the plaintiff, and would have from that time constituted them his bailees of the goods, as they had before been the bailees of Scott in respect to them. But it would be for the jury to determine under all the facts and circumstances proved in the case, whether there was an actual sale of the identical goods in question, by Scott to the plaintiff, and if so, whether they had afterward been delivered in a reasonably convenient time to the plaintiff. And if they were satisfied on both those points that such was the case, their verdict should be for the the plaintiff, but if not, for the defendant. And if for the defendant, as the goods were replevied and delivered to the plaintiff, and have since remained, and for a long time, in the custody and possession of Tatnall, Warner & Co., who will have a large claim and a lien upon them for storage, which will be equivalent to a very material depreciation in the value of them, and to a partial conversion or destruction of them in the mean while, their verdict should be, not for a return of the goods to the defendant, but for damages for him to the full value of the goods at the time they were replevied.