Pratt v. Parkman , 41 Mass. 42 ( 1834 )

Morton J.

delivered the opinion of the Court. To maintain replevin it is necessary for the plaintiff to show property, general or special, in the thing replevied, and also a right to immediate possession. The only question in this case is, whether the plaintiffs had such a property as would support the action.

The opium, which is the subject of this suit, was the proceeds of sixty-four bags of coffee shipped to Smyrna by Josian Thompson, March 27th, 1832, and consigned to James Purdie. And we have no doubt that the documents and facts disclosed show a contract of sale. That Thompson intended to transfer to the plaintiffs his interest in this adventure and other similar property, cannot be questioned. Why did he take John Purdie’s guaranty to the plaintiffs ? Why make the insurance payable to the plaintiffs ? Why direct James Purdie to correspond with the plaintiffs in relation to the adventure ? Why order him to consign the return proceeds to the plaintiffs ? Why take an obligation from the plaintiffs to pay any balance there might be due, to his order ? And why draw an order on them for the balance ? It undoubtedly was, because he intended that the property should pass to the plaintiffs. And the circumstances equally show an intention on the part of the plaintiffs to accept it. It is in vain to say that if the parties had intended a conveyance, they would have made a formal bill of sale. No particular form for the sale of personal property is required. All that is necessary is, that the parties should intend, the one, to part with his property, and the other, to become the owner of it. This union of intention constitutes a contract of sale. And it may be proved by any kind of legal evidence, parol or written ; by a formal conveyance under seal, or by a loose correspondence; by a conversation direct between the parties, or mediate through the agency of other persons.

Nor is it material to the validity of the sale, whether it be absolute or conditional, unrestricted or clogged with terms and stipulations. If it be bond fide and for a valuable consideration, it will be a valid contract. Undoubtedly there was in this case a trust and confidence created. Although the contract was that the coffee should become the plaintiffs’, it was upon the understanding that the former owner should retain an interest in the adventure; that although the plaintiffs were to manage the concern as their own, yet they were to account to Thompson for the proceeds, and the profit or loss was to accrue to him. This was a personal obligation assumed by the plaintiffs when they assented to the transfer, but has no tendency to invalidate the conveyance. They had sufficient motives for entering into the contract, without claiming the profits of the adventure. The contract too was complete. Nothing remained to be done by either party, to perfect it.

It only remains to inquire, whether this contract of sale, which we have seen was a legal one, was so executed as to vest the property in the plaintiffs. As between the parties there can be no doubt. In such case a formal delivery is not indispensable. Long on Sales, 148 ; Abbott on Shipping, (Story’s ed. 1829,) 12 ; Gardner v. Howland, 2 Pick. 602.; Lanfear v. Sumner, 17 Mass. R. 113.

But as to other parties, there must be not only an agreement to sell, but a delivery of the things sold. One object is, undoubtedly, to give notoriety to the change of ownership. It is like livery of seisin, or the registration of deeds, in relation to real estate. And as the attaching creditors in this case knew of the sale and were not only acquainted with all the circumstances attending it, but to some extent assented and became parties to the arrangement, it may well be doubted whether they could object to the want of a delivery. As to them there was in effect a delivery.

But we have no occasion to decide the case upon this ground-; for we are satisfied here was a legal delivery. When an actual transmission of the thing itself by the seller to the buyer is impossible, various substitutes producing, as far as practicable, the same effect, are allowed. Long on Sales, 162. Thus the delivery of the key of the warehouse in which the goods are stored, or, if a public warehouse, of the receipt for the goods, or an order upon the keeper of the warehouse, or the invoice of the goods, is deemed equivalent to a delivery of the goods themselves. Wilkes v. Ferris, 5 Johns. R. 335 ; Harman v. Anderson, 2 Campb. 243 ; Hollingsworth v. Napier, 3 Caines’s R. 182. But it is not necessary to refer to all the various cases in which a symbolical delivery is deemed sufficient. When goods are at sea, as these were, it is manifest that the only delivery which can be made, is that of some token or evidence of ownership. And this is always deemed in law equivalent to an actual delivery.

In relation to vessels at sea, a delivery of a bill of sale is deemed sufficient. Abbott on Shipping, (Story’s ed. 1829,) 13 ; Putnam v. Dutch, 8 Mass. R. 287 ; Lamb v. Durant, 12 Mass. R. 54; Badlamv. Tucker, 1 Pick. 389. Gardner v. Howland, 2 Pick. 599.

The same principle applies to all other chattels in the same situation. And it may be laid down as a general rule, that when there can be no manual delivery of the whole or any part of the goods sold, a delivery of the muniments of title will be a good symbolical delivery and will pass the property, provided the purchaser uses due diligence to obtain the actual possession. The property vests in the purchaser, but may be divested by his own laches.

The delivery of a bill of sale, or of a bill of lading, or of an invoice of goods at sea, would be sufficient to pass them. Caldwell v. Ball, 1 T. R. 205 ; Gallop v. Newman, 7 Pick. 283 ; Gardner v. Howland, 2 Pick. 599 ; Conard v. Atlantic Ins. Co. 1 Peters, 445. In several cases, the courts have gone further and holden that where it is not in the power of the vendor to deliver any of these documents, the property will pass without it, provided proper exertions be used to make the earliest practical delivery. Wright v. Campbell, 4 Burr. 2051 ; Lempriere v. Pasley, 2 T. R. 485 ; Brown v. Heathcote, 1 Atk. 160 ; Buffington v. Curtis, 15 Mass. R. 528 ; Gardner v. Howland, 2 Pick. 599.

In the case at bar, there was a delivery of a bill of lading, an invoice, and all the other documents relating to the goods sold, which the owner had. This, we think, was a good symbolical delivery. The consignment to Purdie did not vest the property in him. Although a general consignment may ordinarily transfer the goods to the consignee and the bill of lading be evidence of ownership in him, yet it is only prima facie evidence, open to explanation. And in this case there is enough to rebut it, and it is not pretended that the consignee acquired a general property in the coffee or the opium. He was merely the factor of the consignor

A bill of lading, to some extent, partakes of the properties of negotiable securities. It issues to the consignee or his assigns. And like a bill or note may be transferred by indorsement. The consignee in this way may dispose of the property conveyed to him and pass it to his assignee. But where the consignee is named in the bill of lading, the indorsement of the consignor will not transfer the bill or' the property for which it was given. Yet it is a very significant act and denotes his intention to part with his interest in it. It certainly adds force to the delivery of the document itself.

The property in the coffee vested in the plaintiffs. The) had no power to take possession of it; and therefore were guilty of no laches in omitting to do it. The opium, having been purchased with the coffee, also became theirs. Upon its arrival they promptly entered it and paid the duties. And although it remained a few days in the public stores, there is nothing to show any unusual dilatoriness in getting it through the custom-house. It required no uncommon despatch. If their title to the opium was such that they were bound to use reasonable diligence to get possession, yet we see no evidence of such laches as will defeat it.

Defendants defaulted.