Borrowscale v. Bosworth , 99 Mass. 378 ( 1868 )

Hoar, J.

The question whether the oral contract for the sale of this cargo was upon the condition that it should be shipped in a vessel which could discharge at the defendants’ wharf should have been submitted to the jury, if it was material to the decision of the case, because the evidence upon it was conflicting. The further question, whether the lapse of time between the receipt of the bill of lading by the defendants and their sending it back to the plaintiffs, in connection with the other circumstances of the case; showed an intention on the part of the defendants to assume the ownership of the cargo, so that there was an acceptance of the bill of lading," and thereby an acceptance of the cargo, was also a question of fact upon which the verdict of a jury was necessary. Morton v. Tibbett, 15 Q. B 428. Bushel v. Wheeler, Ib. 442.

But there is a more substantial objection to the maintenance of the action, in the want of sufficient evidence to prove that, if the defendants made a valid contract with any one, they made it with the plaintiffs. The defendants ordered the cargo of coal from the St. Clair Mining Company, through Mr. Page, the treasurer of the company. The bill of lading was made from the mining company as shippers, directly to the defendants as consignees. If there was an acceptance of the bill of lading, as a delivery of the coal, it was therefore an acceptance of a transfer of the coal directly from the company to them. The bill of lading was not made to the plaintiffs, and indorsed by them to the defendants. It was merely sent to the defendants through their hands, giving them no title to the property. The testimony that the treasurer of the company told the defendants that the plaintiffs were their selling agents, and that the defendants knew the fact, does not tend to prove that the defendants agreed to contract with the plaintiffs. They had made the contract with the company through another agent, and told the plaintiffs that they had ordered a cargo from the company. That the plaintiffs credited the company with the cargo, charged a guaranty commission, and effected insurance upon it, were all res inter alios, to which the defendants were not a party. The statement of the treasurer to the plaintiffs, that he had got this order for them, was not made until after the defendants had made the bargain with the company through him ; the defendants were not privy to it, and never assented to the substitution. The bill for the coal, which was made out in the plaintiffs’ name, and delivered with the bill of lading, was not in pursuance of any contract which the defendants had made, and gave the defendants no title. They did not return it, but it was not of any value, and the evidence did not show that they assented to it, or ever claimed any rights under it. The treasurer had no authority from the plaintiffs to act for them, at the time when he made the bargain on behalf of the company with the defendants.

Under these circumstances, we know of no authority for the doctrine that the mere right to sue'can be transferred, without the act and assent of both parties to the contract. A principal may sue, where the contract is made through an agent; because he is the party in interest, and the consideration moves from him, although the other party may have supposed that he was dealing with the agent only. An agent may sue upon a promise made directly to him, although the principal might also sue upon the same contract. But here the plaintiffs were neither the owners of the property, nor was the title to it ever transferred to them, nor did the defendants make them any promise. The defendants ordered the coal from the company, and their promise, express or implied, was to the company, and not transferable without their consent.

Judgment for the defendants on the verdict.