Meeker, Knox & Co. v. F. W. Vredenburg & Co. , 15 La. Ann. 438 ( 1860 )

Vooriiies, J.

The plaintiffs purchased of defendants a cargo of salt, consisting of 8021 sacks (6996 coarse, and 1025 fine salt).

The salt had been imported by F. W. Vredenburg <6 Co., and deposited on storage in the Brooklyn Warehouse, kept by Thomas T. Casey, aud bonded as a United States warehouse. The importers, availing themselves of the privileges allowed in such eases by the Acts of Congress, had stored the cargo of salt, without paying the duties in the meantime. (10th Statutes at large, p. 270.)

When the salt was sold to the plaintiffs, the defendants, in whose name had issued the warehouse receipt, transferred the same to the former, who thereupon paid the price stipulated, — at 60 cents the sack round. The sale was of “ the cargo of L salt per Echo, now stored at the Brooklyn Warehouse, consisting of about 6990 sacks coarse, and 1025 do. fine, at sixty cents per sack round, cash, with benefit to purchasers of any unexpired storage.”

Subsequently, the plaintiffs pledged this cargo of salt to the house of Barelli & Co.

Two months having elapsed since the date of the sale, the defendants paid the duties, as importers, and procured for the plaintiffs a withdrawal permit, by which the salt might be removed from the warehouse. Rut the latter received only the coarse salt and 100 sacks of fine salt, the rest having been fraudulently removed by the warehouseman.

This suit was instituted for the purpose of compelling the defendants to pay the value of the 925 sacks of salt, at the date of the issuance of the withdrawal permit.

The question presented for adjudication is, whether the salt was, at the date of the sale, at the risk of the vendors, or of the vendees.

The sale was perfect by the consent of the parties, the price having been paid, and the delivery made fictitiously by the transfer of the warehouse receipt. C. C. 2431; Martin v. His Creditors, 14 An. 393, and 15 An. 165.

It is true that the Federal Government does not -recognize the validity of the transfer of property so situated, before the payment of the customhouse duties; but this is for the sole purpose of simplifying the collection of the revenues. The importer is not debarred from disposing of his property in the meantime; but, as a consequence, it remains in the warehouse, as the importer’s property, for the purpose of securing the collection of the duties.

Assuming, therefore, that the cargo of salt, notwithstanding the payment of the price and the transfer of the warehouse receipt, was at the risk of the vendors, are they responsible for the criminal conduct of the warehouseman in making away with a portion of the cargo ?

The Code provides that, “ until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator; and if, through want of this care, thé thing-is destroyed, or its value diminished, the seller is responsible for the loss.” Art. 2443. And further : “ He is released from this degree of care, when the buyer delays obtaining the possession; but he is still liable for any injury which the thing sold may sustain through gross neglect on his part.” Art. 2444.

These rules govern when the seller has not been put in default for delivery ; but in cases of default, there are other rules.. 0. 0.1904, 2216, 2445.

It is not pretended that the loss of the property is, in the least, attributable to the want of care of the vendors. Indeed, it is shown that the salt was suffered to remain in the bonded warehouse, as much for the convenience and benefit of the vendees, as for the advantage of the vendors. Whilst the latter obtained time to pay the duties, the former had their property conveniently stored, as usual in such cases, “ with benefit of unexpired storage,” under the terms of the contract.

The plaintiffs could, at any time, have called upon the defendants to take the necessary steps to perfect the delivery; but have chosen to avail themselves of the unexpired storage, and to use the property as their own by pledging it to third persons. The defendants, to whom no want of care in the premises can be imputed, are, therefore, not answerable for the loss which has occurred.

Judgment affirmed.