Northern Grain Co. v. Wiffler

McLaughlin, J.: In April, 1912, the plaintiff entered into a contract with the defendant Wiffler for the sale and delivery to him at Yonkers, N. Y., of a carload of oats. On the 21st of May, 1912, the oats were shipped from Buffalo, N. Y., over the lines of the defendant railroad company upon a bill of lading which consigned them to the order of the plaintiff. They arrived at then* des [96] tination on May 25, 1912, and on the twenty-eighth of May following a sixty-day draft for the purchase price was accepted by Wiffler and delivered to the plaintiff as payment, conditioned upon the draft being honored at maturity. At the same time the bill of lading was delivered to Wiffler, who thereafter presented it to the railroad company and it was marked “cancelled by delivery.” Some time thereafter, just when does not appear, Wiffler examined the oats and was not satisfied with their condition. He then withdrew the bill of lading from the railroad company, caused the stamp “cancelled by delivery ” to be stricken from the face of the same, and then returned the bill of lading to the plaintiff with the statement that he refused to accept the oats by reason of their condition. The oats remained in the car in which they were shipped, on the tracks of the defendant company, until October, 1912, when they were sold by it at public auction and after deducting its charges there remained in its hands $287.85. Wiffler stopped payment on the draft before maturity and on October 22, 1912, the plaintiff commenced an action upon it in the Supreme Court. The defendant interposed an answer and alleged that “ the draft was given by defendant in payment of a certain carload of oats which plaintiff sold to the defendant and that the same were good, marketable and usable, and that when defendant received said carload the same'were old and musty, and could not be sold and used, and were of no value whatsoever, and for that reason the note was given without consideration.” On November 7,1913, Wiffler made a general assignment for the benefit of creditors to the defendant Dana, as trustee. The issue raised by the defendant’s answer in the action commenced by the plaintiff upon the draft was tried on April 11, 1914, and judgment rendered in favor of the plaintiff for the full amount demanded in the complaint. Execution was issued upon the judgment and the same was returned unsatisfied. The plaintiff then notified the railroad company that it exercised its right of stoppage in transitu and at the same time surrendered for cancellation the bill of lading sent to it by Wiffler. Upon the foregoing facts this court is asked to determine whether the plaintiff or Dana, as trustee, is entitled to the [97] $287.85 held by the railroad company, neither it nor Wiffler making any claim thereto. It is urged on the part of the plaintiff that it is entitled to the money, since it has exercised the right which it had of stoppage in transitu. I do not think the plaintiff had this right because the transit was terminated when the oats were delivered to Wiffler. The right of stoppage in transitu is terminated so as to preclude the seller from stopping the goods, if, before the exercise of the right, the goods are delivered to the buyer. (Stevens v. Wheeler, 27 Barb. 658; 35 Cyc. 499.) Wiffler gave the draft in payment and received the bill of lading, which was marked “ cancelled,” when the oats were delivered to him. The right of stoppage in transitu terminated at that time and such right could not be again brought into existence by an act of the railroad company or Wiffler’s refusal thereafter to take the oats or pay the draft. Not only this, but the action upon the draft was a recognition upon the part of the plaintiff that the contract with Wiffler had been completed by the sale and delivery of the oats and that the title to them was in him. The answer of Wiffler also recognized there had been a sale and delivery, but the oats, by reason of their condition, were worthless, and, therefore, the draft was given without consideration. When the judgment was obtained by the plaintiff for the full amount of the draft that was, in fact, an adjudication that the oats had been delivered to the defendant, that the title was in him, and that there was no defense to the payment of the draft. It follows that the defendant Dana, as trustee, is entitled to a judgment directing the railroad company to pay. to him $287.85 and also directing the plaintiff to pay to him the disbursements incurred upon the submission. Ingraham, P. J., and Dowling, J., concurred; Laughlin and Hotchkiss, JJ., dissented.