O'Neal v. Day , 53 Mo. App. 139 ( 1893 )

Rombauer, P. J.

— The defendant sheriff seized the goods in controversy by virtue of a writ of attachment, issued against the property of ' the Springfield Dry-Goods & Clothing Company, at the instance of one of its creditors. The plaintiffs thereupon replevied the goods from the sheriff,' claiming that they sold the goods to the attachment defendant on credit in New York City, to be delivered at Springfield, Missouri’; that' the transit of the goods had not -terminated when they were attached, and that they exercised their right of stoppage in trcmsitu by taking them from the sheriff on the writ of replevin. The trial of the cause resulted in. a verdict for the plaintiffs, and the defendant now complains that this result was brought about by errors committed by the court in admitting incompetent evidence against him, and by erroneous views taken by the court of the applieatory law, as shown by its instructions. i

The first point made arises in this manner: The defendant claims that the evidence admitted to show that the goods' were sold by the plaintiffs to the attachment defendant was hearsay, and should have been rejected, and that, rejecting this evidence, no valid sale of the goods by the plaintiffs to the attachment defendant was shown. This argument loses sight of the fact that, if no sale were shown, the defendant would have no defense at all, 'as the prior ownership of the goods by the plaintiffs is conceded. In that event, the defendant would simply stand in the position of having levied a writ, directed against a third person, on the goods of the plaintiffs without any excuse whatever, and a judgment for plaintiffs would be a mere conclusion of law upon conceded facts. The objection, therefore, deserves no serious consideration.

In order to pass intelligently on the error complained of, touching the misdirection by instruction, a Kief statement of the evidence of both parties is essential. Touching the following facts there is no controversy: The plaintiffs sold the goods to the attachment defendant on credit, believing that it was solvent, but, when the goods arrived at Springfield, the attachment defendant was insolvent, and the plaintiffs, learning of the fact, endeavored to stop the delivery of the goods before their transit ended. The only substantial controversy between the parties is whether the transit had actually ended when the goods were attached by the sheriff.

On that question the plaintiffs gave evidence tending to show that one Johnson was a private carrier or transfer man in Springfield, and had a standing order from the attachment defendant to bring all goods, consigned to it, from the railroad depots to its store; that Johnson had similar orders from other merchants, in fact was a transfer man for the public; that he had no special orders touching these goods, but paid the freight on them and intended to take them to the attachment defendant’s store, simply because he found them at the railroad depot consigned to it; that his custom was to advance all freight charges, that is, pay them to the railroad agent when he took the goods, and collect such charges from the consignees, with his own charges superadded, when he delivered the freight to the consignees; that, according to his recollection, he did not take this box to the store, but took another box shipped by one Shoninger to the same consignee, and upon arrival at the store was told by the consignee that it would not receive any more goods, and thereupon he took the Shoninger box back to the railroad depot, and the railroad agent returned the freight charges to him. Part of the evidence offered by the plaintiffs tended to show that J ohnson took both boxes to the store of the attachment 'defendant, who refused to receive them on account of a recent fire in the store, and told J ohnson to take them back to the depot. There was also some evidence for the plaintiffs, that the attachment defendant might have-refused to receive the goods because their billing did not correspond to order, and that Johnson had no-special authority from it to pay the freight charges on these goods.

The defendant gave evidence tending to show, in addition to the above facts, that Johnson had paid freight on the above goods and had receipted for both parcels before they were attached; that the freight charges were afterwards paid by the attaching creditors and for that reason were refunded to Johnson; that, when the attaching creditors paid the freight charges, they did not know that Johnson had paid them already; that, when the goods were attached, they were stored at the railroad warehouse.

This being in substance all the evidence bearing on the point in issue, the court declared the law as follows: First. Upon the request of the plaintiffs: “That, before a delivery to an agent can be held to be a delivery to the buyer, such delivery must be to some one authorized to act in reference to the goods, otherwise than as a forwarder for the buyer, and that, if you find from the evidence in this case that M. M. Johnson was engaged in the transfer business in Springfield, Missouri, and was not in the employ of the said Springfield Dry-Goods & Clothing Company, and that the railroad companies doing business in Springfield, Missouri, and having depots for the reception and delivery of goods, were instructed by said Springfield Dry-G-oods & Clothing Company to let Johnson have their freight, and he was to receive the goods to haul or transfer the same to said Springfield Dry-Goods & Clothing 'Company’s place of business, and had no-other authority, then a delivery of said goods to Johnson was not a delivery to the said Springfield Dry-Goods. & Clothing Company.”

Second. Upon, the defendant’s request: “The court declared the law to be that, if the court sitting as a jury finds from the evidence that plaintiff shipped the goods in question from New York, consigned to the Springfield Dry-Goods & Clothing Company at Springfield, Missouri, and, after their arrival at the Phelps Avenue depot, the consignee by its agent received the same and paid the freight, then hauled them to the storehouse or salesroom of said consignee, and the consignee directed their agents to return them to the depot, because they were not then in condition to receive them on account of a recent fire, having no place to put them, and they were thus and for this reason returned to said depot, and there received and held by the depot or railroad agent for the consignee, and while so held were attached in the suit of Hargadine & McKittrick Dry-Goods Company, then the issues must be found for the defendant.”

Third. Of its own motion: “If the court finds from the evidence that the goods in question were consigned by the plaintiff to the Springfield Dry-Goods & Clothing Company at Springfield, Missouri, and that, after their arrival at the railroad depot at Springfield, they were receipted for and the freight paid by 'the consignee or its agent, the verdict must be for the defendant. But, in order to constitute an agent as above specified, the agency must be for some purpose other than forwarding goods to consignee’s actual possession.”

. The law governing the vendor’s right to stop the delivery of the goods while in transit is very simple, but its application to particular facts is often difficult; nor can the law as declared by the courts in individual cases be understood, unless-the circumstances to which it is applied are critically examined.. It may be stated as a general proposition that the right of the unpaid vendor to stop goods in transitu upon the bankruptcy or insolvency of the vendee, is not defeated by the mere arrival of the goods at their destination. The transitus is not at an end until they have come to the vendee’s actual possession or his constructive possession by a delivery to his agent. If in the case at bar Johnson, the local carrier, was'the agent of the attachment debtor, with full authority to receive and receipt for the goods, then upon the goods being delivered by the common carrier to Johnson, and upon his receipting for them, the transit was at an end. There is no pretense that the goods were to be delivered by the common carrier at the store, or at any other place but its depot, nor is there any pretense that Johnson, in receiving and receipting for the goods, acted as agent of the common carrier. In White v. Mitchell, 38 Mich. 390, and in Inslee v. Lane, 57 N. H. 454, where a delivery to a local carrier under similar circumstances was held not to terminate the transit, the vendee had absconded before the arrival of the goods, and it was held that his absconding at once put an end to the local carrier’s authority to receipt for him. In Mason v. Wilson, 43 Ark. 174, the vendee had notified the vendor before the arrival of the goods that he would not receive them on account of insolvency, which was held to terminate the authority of a local carrier to receive them for the vendee under a general authority to receive and receipt. The case of Macon & Western Ry. Co. v. Meador Bros., 65 Ga. 705, was decided, under a clause of the Georgia code, which provides that the right of stoppage in trcmsitu continues until the vendee obtains actual possession of the goods. Neither of these cases cited by the respondent in support of his instruction has a tendency to vindicate the correctness of that instruction, and we must conclude that that instruction under the evidence in this case was incorrect and misleading, as was also the last sentence in the instruction given by the court of its own motion.

If Johnson, as the evidence tends to show, was the agent of the attachment defendant having general authority to receive and receipt for its goods, which arrived at the depots in Springfield, where such goods were deliverable, then Johnson’s receiving the goods and receipting for them was prima facie a termination of their transit. If such general authority did not extend to this particular case, the onus of showing that fact rested with the plaintiffs: . The plaintiffs might have shown that fact, either by showing that the attachment defendant refused to receive the goods owing to its insolvency, or that it refused to receive the goods because they were not properly billed, and in' either event such evidence would have tended to show that the transit had not ended. But a refusal to receive the goods temporarily, on account of any inconvenience to place them in the store, had no tendency' to show that their transit had not ended." Their return to the common carrier under such circumstances left them in the hands of the carrier as a warehouseman after the termination of the transit and subject to the dominion of the attachment debtor.

For error in the plaintiff’s instruction the judgment must be reversed, and the cause remanded.

All the judges concur.