Parker v. Donaldson

The opinion of the Court was delivered by

Rogers, J.

A book of original entries, supported by the oath of the party, is prima facie evidence of the sale, and delivery of the articles sold to the person charged. But where it certainly appears that at the time the entries were made the contract of sale was not complete, but that the goods were charged under a confident expectation that the contract would be completed by an actual delivery, the book is not competent evidence. The entry must be made at the delivery of the goods, or immediately after; Curren v. Crawford, (4 Serg. Rawle 3). Thus, if a tradesman order goods to be sent by a carrier, it will not operate as a delivery until the goods are delivered to the carrier, or agent of the purchaser, although 'the moment they are delivered to him the property is changed. Dutton v. Solomonson, (3 Bos. & Pull. 582.) By a delivery to the agent of the vendee, the property is changed, and the vendor is entitled to the price of the goods. And this explains the case of Rhoads v. Gaul, (4 Rawle 407). There the charges were made in anticipation of a delivery to the agent of the vendee, and of course before the property in the goods was changed. The proper time for making the entry is at or about the time when there is a transmutation of property from the vendor to the vendee. A sale is defined to be a transmutation of property from one man to another, in consideration of some price or recompense in value. A delivery is an inseparable incident to all sales, but even in the construction of the seventeenth section of the Statute of Frauds in England, which is not in force in Pennsylvania, the delivery, to make the contract binding, may be either actual or constructive; of this many instances are given in Ross on Vendors 65, and the authorities there cited. The only inquiry on the point of the admissibility of the book is, whether at or about the time the entries were made, there was such evidence of delivery as would authorize the court to admit it in evidence; or, rather, were such facts disclosed as destroyed the right of the plaintiff to have the book submitted to the jury as prima facie evidence of the sale and delivery of the goods to the defendant. The ordinary proof of the entries was made by the clerk of the plaintiff. That the goods were sold by the plaintiff, and that they went into the possession of the defendant, does not admit of doubt. There is reason to believe that Edwards acted in the purchase as the agent of the defendant, and that the defendant knew that the goods were the property of the plaintiff. They were selected, (but by whom does not certainly appear, although the probability is by Edwards himself,) packed, and marked in the name of the defendant, with his address, were delivered to a porter employed by Edwards, who delivered them at the warehouse of a transportation company in Philadelphia, by whom they were in the regular course of business forwarded to the defendant.

The Court of Common Pleas seem to take it for granted, that the entries were made before the delivery of the goods, and that consequently it fell within the principle ruled in Rhoads v. Gaul. But this is not the fair result of the evidence. On the contrary, there is reason to believe the goods were selected by Donaldson himself, (who, as one of the witnesses is under the impression, was in the store,) or, what is the same thing, by his agent; they were set apart and marked by his directions, or with his assent. If this be so, the property in the goods was then changed, and consequently that was the proper time to make the entry; for when the name of the vendee is written by his directions, or by the directions of his agent on the article sold, or goods are made up to be delivered, or are otherwise separated from a larger quantity, of which they formed a part, with a view to delivery, or where the vendee, by the consent of the vendor, deals with the property as his own, it has been construed to be evidence of a delivery, so as to enable the vendor to maintain an action of indebitatus assumpsit for goods sold and delivered. Chaplin v. Rogers, (1 East. 194); Mason v. Lickbarrow, (1 Hen. Blac. 363); Hodgson v. Le Bret, (1 Camp. 233); Hurry v. Mangles, (1 Camp. 452); Elmore v. Stone, (1 Taunt. 457.)

A man buying a hat, selects the article which suits him fit is put aside, but for some reason it is inconvenient for him to take it with him. He is to send for it, or the vendor is to send it to his lodgings. From that moment there is a change of property; the bargain is complete, and the vendee becomes the owner. Then is the time to charge the article,, if not paid for. There is no necessity to wait for that purpose, until it is actually delivered to . the servant of the purchaser, or until it is delivered by the servant of the vendor to the vendee. The law has been always so understood, and any other rule would be attended with great inconvenience, and with an increased risk to the purchaser. It does not interfere with the rule of Rhoads v. Gaul, which prohibits entries in anticipation of a delivery.

But the difficulty is, who was the debtor, or in other words, to whom were the goods sold? To Edwards & Verree, or to the defendant ? That the plaintiff has a right to look to one or the other, must be conceded. If the defendant, either by himself or his agent, purchased the goods, there is an end of the case, because, in that event, it cannot be pretended that the defendant can set-off any claim which he may have against Edwards & Verree. And it is equally clear, that if the plaintiff sold the goods to Edwards & Verree, who sold them to Donaldson, the action cannot be sustained. But granting that Edwards & Verree did not act as the agents of Donaldson, but as the factors of Parker, it will be necessary to consider the cause in another aspect, and to inquire whether the defendant can set-off his claim (if he has one) against Edwards & Verree in this action. It is generally true that a factor’s sale creates a contract between the owner and the buyer. If, therefore, a factor sells goods in his own name, without any reference to the principal, or without the buyer’s knowledge that he was acting for another, a contract is created between the buyer and owner on which a suit may be brought. But notwithstanding the principal may maintain an action against him for the price of the goods, still the purchaser not knowing of any principal, may set-off a debt due from the factor, against the price of the goods. But where the purchaser, at the time of the contract, knew that the seller was not the owner of the goods, but a factor, the right of set-off against the factor does not exist, whether the suit be brought in the name of the principal, or by the factor in his own name. Nay more, when, before all the goods are delivered, and before any part of them is paid for, the purchaser is informed they belong to a third person, he cannot set-off a debt due from the factor, in an action by the principal. Scrimshire v. Alderton, (2 Stra. 1183); Drinkwater v. Goodwin, (Cowp. 252); Athyn v. Amber, (2 Esp. 493); 1 Camp. 444, 109, 180.

It is not necessary to give any opinion how the case would stand, if it appeared that both plaintiff and defendant were deceived by Edwards & Verree. Of the application of these principles to the facts, the jury must judge. But if the testimony is entitled to credit, it is difficult to believe that Donaldson was ignorant that the goods sold belonged to the plaintiff, and that Edwards &.Verree were but his factors. If that be so, no right of set-off can exist.

Judgment reversed, and a venire de novo awarded.