Johnson v. Eveleth

Savage, J.

This case comes up on report. We think the evidence shows the following facts: — On March 22, 1898, one Edward Ware entered into a contract of bargain and sale with the defendant for the purchase of about one million feet of logs, numbering 7663 sticks, then lying in Spencer Pond, above Moose-head lake. It was agreed that the logs should be delivered by the defendant “ over the dam,” at the East Outlet of Moosehead lake, into Kennebec waters. From that point they were to be driven down the Kennebec river by the Kennebec Log-Driving Company. Ware had booms in Fairfield and Winslow, and a mill at the latter place. The logs were bought by Ware for the purpose of being manufactured into lumber at his mill in Winslow. On May 25, 1898, Ware assigned to the plaintiff for the benefit of his creditors, under the provisions of the insolvent law. Laws of 1897, chap. 325, § 16. He was, and for a long time had been, hopelessly insolvent. In the meantime, the defendant had caused a large portion of the logs to be delivered “over the dam” at the East Outlet, and they were being driven down the Kennebec river towards Ware’s booms and mill. Some scattering logs had already reached Ware’s mill and had been sawed. They had drifted down the river, without the necessity of being driven. But the drive proper did not reach Fairfield or Winslow until the last of August, 1898. When the drive reached “ Shawmut,” above the Fairfield boom, August 22, the defendant took from the river all the logs he had sold to Ware which then remained in the drive, numbering 6815 sticks, and surveying 808,032 feet. And it is for this taking and alleged conversion that the plaintiff has brought this action of trover. Ware agreed to give four notes for the price of the logs, maturing at different times. At the time of his assignment he had given one note to the defendant, which was subsequently protested for non-payment, and then tendered back by the defendant to the plaintiff. The other three notes he never gave.

The defendant asserts several grounds of defense, only one of which do we think it necessary to consider. He says he took the logs from the river in the exercise of the right of stoppage in transitu. He claims that the log-driving company was a carrier. He says he sold the logs on credit, and that while they were in transit to their ultimate destination in Winslow and were in the possession of the log-driving company as a carrier, the purchaser became insolvent. And this fact, he says, gave him the right to resume the possession of the logs at any time before they came into the actual possession of Ware, or came to their destination in Winslow.

In reply, the plaintiff says (1) that the log-driving company was not a carrier, or middle man, in such a sense as gave it possession or control of the logs; that the river was the real carrier; that the company provided no means of conveyance or motive power, but simply facilitated the floating of logs down the river by breaking jams and otherwise, and hence that after the logs passed out of the possession of the defendant by being turned “over the dam,” they must have been constructively, at least, in the possession of Ware, while floating upon the river; and furthermore, that in any event, the log-driving company was really only an association of log owners, of whom Ware was one, and that a delivery of the logs to the company was in effect a delivery into the possession of Ware; (2) that by the terms of the contract between Ware and the defendant, the “destination” of the logs was “over the dam” at the East Outlet, and that when they were so delivered, the “ transit us ” was at an end; and (3) that the facts that some of the logs had floated down the river to Ware’s mill and had been received and sawed by him constituted a constructive delivery of the whole mass into his possession.

These contentions make it necessary for us to consider the character and duties and method of operation of the Kennebec Log-Driving Company. Its charter and by-laws are made a part of the case. By the charter, Laws of 1885, Chap. 402, certain persons named, their associates and successors, are constituted “a body politic and corporate” and may sue and be sued, etc. They have power to adopt all necessary regulations and by-laws. “They shall drive to such place of destination on the Kennebec River as maybe designated by the owners, or by the directors of said company, and may secure and form into rafts, under rigging, all logs and other timber belonging to said company, or any member thereof, that may be in the East Branch and Kennebec River, for that purpose, below the outlet of Moosehead Lake at the dam.” “They may remove obstructions, and erect booms, piers and dams.” Sect. 1. “Any person, persons or corporations, or their agents, owning logs or other timber to bo driven on said rivers at the date of the annual meeting in each year, shall be members of the Kennebec Log-Driving Company, and shall so continue for two years at least from that date.” Sect. 3. Members owning logs to be driven are required to file a correct statement of all such logs or timber, giving the number of feet, with the marks, and the place from which logs are to be driven and their destination. The expenses of driving, and for damages, and losses, are to be assessed upon the owners of the logs driven, and the payment of assessments is secured by a lien upon the logs. Section 4. The company may collect logs or timber remaining in booms or in any place exposed to loss, and deposit the same in suitable places and properly secure it from loss, and to pay for this service an assessment may be made. Sections 10, 11, 12 and 13. “The private property of each member of said company shall be holden to pay all debts contracted by the company after he became a member thereof, and before his withdrawal from the same, in default of company property whereon execution may be satisfied.” Section 16.

By these extracts from its charter, it appears that the Kennebec Log-Driving Company is a corporation. It is more than a mere association of log owners. To be sure, all owners of logs to be driven are, by force of the statute, members, but all combined are only one corporate body. The corporation and its members are different persons. Hence it follows that a possession by the corporation is not a possession by a member, unless the corporation has been made an agent for that purpose. In this case the corporation does not appear to have been the agent of Ware for any purpose. If; was simply performing its corporate duty in receiving and driving the logs. It did that under its charter and not as agent. In this respect this case is unlike Muskegon Booming Co. v. Underhill, 43 Mich. 629, cited by the plaintiff. There the logs in question had failed to get into the booming company’s main drive and had been left in the rear. The vendees engaged the booming company to send back and get the logs, which they did. The vendees having become insolvent before the logs reached their mill, the vendor, Underhill, sought to exercise the right of stoppage in transitu. The court denied this right, but rested its decision on the ground that the vendor, by his contract or acquiescence “ virtually offered possession to vendees ” .... “ and that the vendees accepted the offer and virtually took possession by having the logs taken into custody at their expense and on their account as owners, by the booming company.” Our conclusion is, therefore, that the possession by the log driving company was not possession by Ware.

The next question in this connection is, may the right of stoppage in transitu attach to logs being driven as these were. We have no doubt that it may. It may be conceded that the log-driving company is not a common carrier, although in some respects its duties are analogous to those of common carriers. See Mann v. White River Log, eta., Co., 46 Mich. 38, where the distinction is pointed out. But that is not decisive. When a vendor sends goods sold to the place of destination by private conveyance, the right of stoppage in transitu exists the same as if they are sent by common carrier. The vital question is, are they in transit between the vendor and the vendee. The right of stoppage in transitu is merely an extension of the lien for the price which the vendor has, after contract of sale and before delivery of goods sold on credit. The term itself implies that the goods are in transit, and that they have not come into the possession of the vendee. It permits the vendor to resume possession before the goods sold have come into the vendee’s possession, if the latter has become insolvent. Whether they are in the possession of a carrier, strictly so called, while in transit, or whether they are in possession of a “ middle-man,” is immaterial. 2 Kent’s Com. 702. In this case the logs were certainly in transit between the dam at East Outlet and Ware’s mill. They were moving down the river. They were kept moving by the agency of the log-driving company. The company broke the jams, cleared the eddies and the banks of logs, took them where-ever they became stranded, and drove in the rear. The company having assumed the duty of driving the logs, no one else had the right to interfere with the driving. So far as a mass of logs in a river is susceptible of possession, to that extent the log-driving company was in possession of these logs for the purpose of transporting them. And we think that was sufficient. It certainly accords with the equitable principles out of which the right of stoppage in transitu has grown. Newhall v. Vargas, 13 Maine, 93. The character of the possession of the log-driving company is only important as it shows that the logs had not come into the possession of the vendee, and were still in transit.

But the plaintiff next contends that, so far as this case is concerned, the transitus ended when the logs were turned “ over the dam ” at East Outlet, because, he says, that was the ultimate destination of the logs, within the meaning of the contract of purchase; that the defendant’s agreement was to deliver the logs there, and that when the logs were so delivered, the transitus contemplated by the contract was at an end; and that in any further transit, the right of stoppage in transitu would not exist. This might be true, if by any fair construction of the contract, read in the light of surrounding conditions and circumstances, we could understand that the dam was really the contemplated final destination of the logs, or that the logs were to be delivered at the “ dam,” and there remain subject to further acts or directions of Ware. Becker v. Hallgarten, 86 N. Y. 167. But we cannot interpret the contract so narrowly. We must view the situation as the parties did. We cannot shut our eyes to the fact that these logs at the time of the contract were above the dam and above a portion of Moosehead Lake; that they were bought to be manufactured in Ware’s mill in Winslow; that they must float or be driven down the river all the distance between those points; that it was expected that they would be driven by the log-driving company; that there was no place of deposit at the “ dam,” for keeping the logs, but that the transit in the lake above the dam and in the river below was actually continuous, the dam being simply the point where the defendant ceased to drive and the company began. In view of these circumstances, should “over the dam” be regarded as the “destination” of the logs? We think not.

The question here is not whether the turning of the logs “ over the dam” was a delivery, such a delivery as would have vested title in the vendee, in case delivery was necessary. It is not a question of title. We assume that Ware had the title to the logs. The defendant bases his right of stoppage in transitu upon that fact in part. The exercise of that particular right presupposes that the title of the goods is in the vendee; and further, the title remains in the vendee even after the exercise of the right. The title is not changed. Hurd v. Bickford, 85 Maine, 217. The question here is whether by the delivery at the dam, the logs came into the possession of the vendee; and so far only as the delivery at the dam throws light upon this question is it material. The distinction, in a word, is that property sold may have been delivered so as to effect title, and yet not have come into the possession of the vendee so as to bar the right of stoppage in transitu. An illustration of this is found in the common class of contracts where the vendor agrees to deliver to a carrier designated by vendee, for shipment to vendee’s place of business. A delivery to a carrier under such circumstances vests title in the vendee and places the goods subject to his risk, but the vendor does not lose his right of stoppage in transitu while the goods are in transit to the vendee. Grout v. Hill, 4 Gray, 361; Rowley v. Bigelow, 12 Pick. 307; Gibson v. Carruthers, 8 M. & W. 321. In a case where goods were delivered to the purchasing agent of the vendees to be transmitted to the vendees’ factory in another state, it was held that the right of stoppage in transitu was not barred. The court said that the delivery of the goods was to the agent, not as owner, nor as agent of the owners to dispose of them in any other way than to transmit them to the vendees’ place of business, and that to take away the right of stoppage in transitu there must be an absolute delivery to the agent for the use of the vendees, and it must have been a full and final delivery, as contradistinguished from a delivery to a person acting as a carrier or forwarding agent to the principal. Aguirre v. Parmelee, 22 Conn. 473. To terminate the transitus by delivery to a middle-man, it must be a delivery not to transport, but to keep. Guilford v. Smith, 30 Vt. 49. See our own case of Newhall v. Vargas, supra. It was held in Mohr v. Boston & Albany R. R. 106 Mass. 67, that the transitus is not at an end until the goods have reached the place contemplated by the contract between the buyer and seller as the place of their destination.

As bearing upon the “ destination ” of the logs, the plaintiff, in argument, suggests that under the charter of the log-driving company, the owner of the logs was required to file with the company a statement of their destination, which was not done, and also that the company does not itself take logs from the river, but the owners separate them from the general drive and boom them, or take them out, at such points as they please. To these suggestions, it is a sufficient answer to say that it is clear that the intended destination of these logs was at Ware’s mill, and that whatever the rights of Wai’e to stop the logs or take them out of the river may have been, he did not exercise them. He did not take possession of the logs while they were in transit.

Finally, the, plaintiff contends, inasmuch as some small portion of the logs had floated down to Ware’s mill and had been received by him before his assignment, that this put him in constructive possession of the whole mass, and terminated the transitus. We are unable to come to that conclusion. The surveyor’s bill shows that there were 7663 sticks in the lot of logs purchased. The defendant, when he took possession, found 6815 sticks in the drive. It appears that some had gone below Ware’s mill to Hallowell, and undoubtedly some sticks had been left behind, upon the banks or in the eddies of the river. But assuming that the whole of the remaining 848 sticks had, during the season, floated down to or by Ware’s mill, still we do not think that that fact constituted a construcfcive possession in Ware, or the plaintiff, of the logs which had not come down. It is not like the case where a vendee has taken some portion out of the whole mass, which was then susceptible of possession, and in which case he has thus obtained constructive possession of the whole. Such facts are important sometimes when it is necessary to decide whether a legal delivery has been made. But here, as we have said, it is not a question of technical delivery, but one of actual possession. Here Ware took only such scattering, floating logs as came to him. The remainder were not in his possession. • They were still in the possession of the log-driving company. They were still being driven. They were still in actual transit. And we. think the vendor had the right to stop them before that transit was ended. Such a conclusion gives effect to the spirit and purpose of the law. Buckley v. Furniss, 17 Wend. 504; Mohr v. Boston & Albany R. R. supra.

Plaintiff nonsuit.