Clark v. Mauran

The Chancellor. The general question as to the right -of a consignor to stop goods in transitu does not arise in this case. In the eases in which that question arises, the claim of the seller or consignor is founded on the supposition that he has parted with the legal interest in the property; but that under the circumstances he has an equitable claim to revest the property in himself, or at least to prevent its going into the actual possession of the consignee until the price is paid. (Per Buller, J., 6 East's Rep. 27, n.) The right of the consignor to stop in transitu is limited to the case of the insolvency of the consignee, and where the goods have not been paid for. Consequently it can never apply to a consignment to a creditor to whom the consignor is indebted in the full value of the goods. In the case of Evans v. Martlet, (1 Ld. Raym. Rep. 271,) it was held that, upon a general bill of lading consigning the property to A., the legal title was in him, although it appeared from the invoice that the goods were consigned on account of another person. (See also 2 Term Rep. 74, 75.) But in the case under consideration, it appeared on the face of the bill of lading, that" the goods, although consigned to Mauran, were for account and at the risk of Hodges. It is probable, therefore, that an assignee of that bill from Mauran would have taken it subject to any equitable rights which existed in Hodges, or in third persons deriving an interest under him. In the case of Walker v. Ross, (2 Wash. C. C. Rep. 283,) the bill of lading was like the present. A quantity of flour was laden on board a general ship, and the master signed three bills of Lading, by which the flour was to be delivered to the plaintiffs or their assigns; but the bill expressed that the consignment was shipped on account of and at the risk of the shippers. A 377 day or two after the shipment, and before any invoice, bill of lading, or letter of advice, had been sent to the consignees, the shippers finding they must stop payment, re-sold the property to the defendants, of whom it had been previously purchased on a credit. It appeared that the shippers were indebted to the consignees, and intended that the latter should apply the net proceeds on account. That intention however had not been communicated to them, and the consignment had not been made at their request. Under those circumstances, Judge Washington decided that the consignees had no vested interest in the flour, and that the owners had a right to countermand the order at any time before the property was actually received by the plaintiffs. But there is a material difference between that case and the present. Here, by the letter of the 17th of June, 1829, Hodges had given Mauran notice of his intention to make this consignment for the purpose of paying the balance due to him on account. And, as that letter was in answer to an application from him for payment, it may be fairly presumed Mauran acted upon the faith of that letter, and neglected to press his demands to the extent he would otherwise have done. The consignment by A. D. Meza. & Sons was made in conformity to their instructions previously received from Hodges. It was therefore a specific appropriation of this property, for the payment°of the balance due to their agent, as soon as the doubloons were shipped on board the brig and the bill of lading delivered to the master to be transmitted to the consignee. In deciding upon the rightof the parties in this cause, the authorized acts of the agents of Hodges at Curacoa must be taken to have the same effect as if those acts had been performed by Hodges in person. In the case before alluded to, Judge Washington admits that even a letter of advice, stating a shipment to be to a particular person, where the consideration is paid, may give to the consignee an equitable title, sufficient to repel the right of the consignee to countermand. And in Summerville v. Elder, (1 Bin. Rep. 106,) where the consignor had advised his principal to his intention to make a shipment, and he afterwards put the goods on board a general ship and delivered the bill of lading to the master to be transmitted to the consignee, the su 378 preme court of Pennsylvania decided that the right to the property was vested in the consignee; and that the shipper could not countermand the order, although the vessel had not left her port of lading. In Haillev. Smith, (1 Bos. & Pul. 571,) Eyre, Ch. J. also held that the circumstance of the risk of the shipment remaining in the consignor was no objection to the claim of the consignee. The case of Hastie & Jamieson v. Arthur, (2 Bell’s Comm. 199, n. 2,) appears to bear a very strong analogy to the one now under consideration. In 1765, Dulilop, of Virginia, consigned a shipment of tobacco to Has-tie & Jamieson, to be sold and the proceeds to be applied in payment of the price of goods due to them from Dunlop. The ship arrived at its port of destination in Scotland; but before the consignee had obtained possession of the cargo, it was arrested by the creditors of Dunlop. The lord ordinary and court of sessions decided that Dunlop was not divested of the property, in favor of Hastie & Jamieson, and that the same wag liable to the diligence of the arresting creditors. But upon appeal to the house of lords, the judgment was reversed ; and it was declared that Hastie & Jamieson had a special property in the cargo preferable to the arrestment of the other creditors. The conclusion at which I have arrived, therefore, is, that by the shipment of the doubloons to Mauran, by the direction of Hodges, and the delivery of the bill of lading to the master of the brig, mides the circumstances of this case, the consignee obtained a specific lien upon the property, which was not divested by the general assignment of Hodges to the appellants. The decree of the vice chancellor roust therefore be affirm-■ csl, with costs,