DocketNumber: No. 11036
Citation Numbers: 73 Cal. 430
Judges: Belcher, Boss, Foote, McKinstry, Myrick, Searls
Filed Date: 9/24/1887
Status: Precedential
Modified Date: 1/12/2023
When this case was before Department One of this court, it was, in our opinion, rightly decided. The law applicable to the facts appearing in the record was correctly stated, and little more need now be added.
It is urged for the appellants that the facts as stated in the opinion are at variance with those stated in the complaint, and that by not looking at the homplaint the court was led into error. The allegation in the complaint which is referred to is to the effect that Brewer & Co., being the owners of the car-load of grapes in question, on the third day of October, 1883, shipped the same by
In the first-named case it is said: “Whether or not the given consignment is to be considered as made to cover a general balance of account will depend upon the special arrangements, agreements, atid understanding of the parties; but where such an agreement exists, and the consignment is made in pursuance of it, and there is nothing else in the case which is inconsistent with the hypothesis, the case would be governed by the same principle, and a delivery to the carrier will be considered as a constructive delivery to the consignee. (Russell on Factors, 203; Clark v. Mauran, 3 Paige, 373; Bryans v. Nix, 4 Mees. & W. 791; Desha v. Pope, 6 Ala. 690; 3 Parsons on Contracts, 261, and note w.) In such case the shipment and delivery of the goods to the carrier, under the bill of lading, amounts to a specific appropriation of the property, with an intention that it shall be a security or a payment to the consignee for the advances he has made.”
We fail to see how it can be said that these cases support the contention of appellants, and none which go further in that direction have been called to our attention. Here it does not appear that the car-load of grapes in question was shipped by Brewer & Co. in pursuance of their alleged agreement with defendants, nor that the delivery was made with the intent to transfer the property to them. On the contrary, it is clearly shown by uncontradicted evidence that it was understood in advance that the shipment was to be made for and on account of Cooke and Son, to whom the bill of lading was assigned and delivered immediately upon its issuance. The shipment and assignment of the bill of lading were
As the case was presented, we see no-error in the rulings of the court below, and the judgment and order should therefore be affirmed.
—For the reasons given in the foregoing opinion, the judgment and order are affirmed.
The following is the opinion of Department One above referred to, rendered on the 30th of June, 1.886: —
— In respect to the bona fides of the sale by Brewer & Co. to Cooke & Son, who were plaintiff’s assignors, the jury were fully instructed by the court below, and their verdict includes a finding to the effect, that the sale was a valid one. As the evidence is sufficient to sustain the verdict in that regard, we must take it that Cooke & Son acquired the title to the grapes, the net proceeds of which form the subject of the present action.
It is urged, however, by the defendants, who are the appellants here, that the title acquired by Cooke & Son was subject to a lien in defendants’ favor upon the grapes, to pay a general balance due them from Brewer & Co., the amount of which was greater than the net proceeds realized upon the sale of the property. It is not claimed that defendants, who were factors, and whose' principal place of business was in the city of Chicago, made to Brewer & Co. any advances upon the particular car-load of grapes in controversy; but one of the defendants testified at the trial that the firm of Porter Brothers had, for a number of years prior to the transaction in question, been in the habit of doing business for Brewer & Co. in Chicago, under an arrangement by which Brewer & Co. were to ship them grapes, to be
As applicable to this testimony, counsel for defendants requested the court to give the jury this instruction:—
“ The jury are instructed that if there was a general understanding between the defendants and M. T. Brewer & Co. that the defendants would make advances to said M. T. Brewer & Co., and that M. T. Brewer & Co. would make shipments of grapes to them, which they would sell, and apply the proceeds to the payment of such advances, then the defendants would have a lien upon the grapes shipped to them by said M. T. Brewer & Co. for the payment of such advances, which lien would attach at the moment said grapes were delivered to the railroad company to be shipped to said defendants, and it is not necessary that advances be made upon the particular car-load which is the subject of this litigation, to create such a lien.”
The court refused to give this instruction; but to the contrary instructed the jury to the effect that defendants would have no lien for former advances until they had gotten possession of the property, and that “ for the purpose of that lien the goods would not be considered in their possession from the mere fact that they were delivered on the car under a bill of lading in which Porter Brothers were named as consignees.”
The action of the court' in each particular was excepted to by defendants’ counsel, and constitutes the chief ground of the appeal.
The case shows that the grapes were shipped to defendants in the name of Brewer & Co., to whom a bill
Upon this state of facts, we think it clear that defendants did not acquire a lien upon the property for the balance due them by Brewer & Co., and that the court below was right in refusing to give the instruction requested by defendants. They did not acquire a lien, for the reason, among other reasons, that Brewer & Co. did not own the property when it was delivered to the carrier, nor at any time afterwards. Defendants advanced nothing upon the faith of any apparent ownership by Brewer & Co., growing out of the fact that the property was shipped in their name, and the bill of lading issued to them. The reason for making the shipment in that way has been stated, and defendants were promptly advised of the true owner. It is very clear that Brewer & Co. did not deliver the grapes to the carrier as their property, nor under the agreement they had with defendants. It is plain, therefore, that the latter did not acquire any lien for the advances previously made by them to Brewer & Co.
We see ho prejudicial error in the record.
Judgment and order affirmed.