Jenks v. Fulmer

Per Curiam,

In 1890, plaintiff, a shoe dealer in Boston, sold three boxes of shoes, on credit, to Isaac Price, a merchant in South Bethlehem, and shipped them there by rail. Before the goods reached their destihation Price failed, confessed judgment, and all his property was levied on by the sheriff, defendant in this case. Plaintiff, upon being informed of this, caused notice to be given to the railroad company that he claimed the goods, and demanded their immediate return. This right of stoppage in transitu was exercised before Price acquired either actual or constructive possession of the goods. Some days after their arrival at the freight'depot in South Bethlehem, a local express-man, who had access to the depot, loaded them on his wagon, without any special order from Price, or consent of the railroad company, and without paying the freight, and took them to Price’s store. There he learned for the first time that said store and all his property was in the sheriff’s hands. The goods were never delivered to Price. He declined to accept them, and, pursuant to his direction, they were taken back to the depot by the expressman. Afterwards, the defendant levied on them at the depot, and, notwithstanding notice of plaintiff’s claim, sold them as Price’s property. Whereupon this suit was brought to recover their value. These facts were' practically undisputed, and the learned judge, refusing to affirm defendant’s points recited in the first and second specifications, directed a verdict in favor of plaintiff. There was no error in this. The controlling facts, necessary to entitle plaintiff to a verdict for the amount of his claim, were uncontroverted by any testimony in the case. There was no question of fact upon which it was necessary for the jury to pass. The circumstances under which the goods were taken to Price’s store and returned thence by his direction to the depot, did not constitute a deliveiy to him, nor in any way interfere with plaintiff’s right of stoppage in transitu, which had been previously exercised.

It follows that there was no error in refusing defendant’s points and directing a verdict in favor of plaintiff.

Judgment affirmed.