Wanamaker v. Yerkes

The opinion of the court was delivered, March 11th 1872, by

Thompson, C. J.

The doctrine applicable to this case is no new doctrine, and needs no elaborate discussion. The plaintiff brought to the defendant an order for goods (clothing) drawn on him by one Alexander Sloan. It was dated the 29th of October 1868, but was not presented until the 17th November. On the morning of that day the order was accepted by a clerk in the defendant’s store, and such clothing was selected and put into bundles as the plaintiff desired to take on the order, with the exception of some he wore away with him; the rest he left with directions where they were to be sent by defendants, which they promised to do. It so happened on the day prior Sloan failed, and this was communicated to the defendants before delivery of the goods. The goods still remaining in the custody of defendant, he retained them on his lien for |the price, as no money had been paid for them by Sloan, on whose credit they had been selected for delivery to the plaintiff. There was no such delivery to the plaintiff as vested title and possession in him. There was an agreement to deliver; nothing more. The delivery had not even commenced. It was a case, therefore, in which without doubt the plaintiff could retain the goods, or he could have stopped them in transitu. It is exactly within the case of White et al. v. Welsh et al., 2 Wright 896, which was carefully considered by this court, and is supported by innumerable authorities. The learned judge erred, therefore, in his answer to the defendant’s 1st point. He should have affirmed it. We see no reason in refusing it on the ground that the plaintiff did not know of Sloan’s insolvency. It was not the case of a purchase of goods to be paid for by the note of a third person. The order did not vary the transaction in the least from a verbal order to the same effect given by Sloan in favor of the plaintiff. Sloan was the purchaser on credit from Wanamaker, and his failure entitled the latter to retain the goods upon his lien for the price.

There are no other points of any consequence in the case, and as this ruling cuts up by the roots the plaintiff’s case, we reverse, without an order for a venire de novo.

J udgment • reversed.