Schmertz v. Dwyer

The opinion of the court was delivered, by Thompson, J. The court below committed no error in assenting to the plaintiff’s 1st point, in which the law was stated to be that upon the shipment by the defendants, at and from Pittsburgh to the plaintiff at Bahia, Brazil, of oil and lamps as per his order, that the goods thereupon passed to and vested in the plaintiff. That this was fully expected and intended by the defendants themselves, is very apparent from their advices and accompanying bill forwarded to the plaintiff under date of September 29th 1862, in the former of which they say, “ We have shipped you per order of Messrs. Pulton & Co., this day, the following;” then follows a list of the goods. This letter with a bill or invoice, was in course of mail received by the plaintiff, who daily expeuted and looked for the goods for months — but they never came. It is very clear that the consignment and bill forwarded, fully invested the plaintiff with title to the property, and that, therefore, the goods were to be at his risk and expense: 1 Binn. 106; 12 S. & R. 183; 1 Str. 1701; Story on Sales, § 306; Angell on Car., § 497 ; Smith’s Merc. Law 290. After this the defendants could only by a right of stoppage in transitu interfere with the goods so as to withhold and sell them. No such right was made to appear in the case. There was no insolvency or other equivalent cause alleged against the plaintiff; on the contrary his bill on London in the hands of the defendants, we may presume was good, only wanting the shipping-bills to make it available. The defendants consigned the goods for the purpose of shipment to H. H. Swift & Co., New York, forwarding merchants to the plaintiff at Bahia. The plaintiff had instructed the defendants in their order for the goods, to ship direct to Bahia, or via Pernambuco (if possible in preference), [339] and then to Rio Janeiro. These instructions were not given to Messrs. Swift & Co., but simply a direction to ship to Bahia. This they testify they could not do, and informed the defendants shortly after receiving the goods, that transportation direct could not he had to Bahia, and advised a sale. After the lapse of two or three months, without advice to the plaintiff, the defendants did order a sale of the goods. They had in the mean time greatly advanced in value, perhaps to the full amount of the verdict, which was $900. Predicated of these facts, the court was asked to say that the sale was illegal, and they did. There was no error in this. As already said, the goods belonged to the plaintiff, and no sale was legal under the circumstances. There was no difficulty in shipping via Pernambuco. The Messrs. Swift & Co., themselves, had been engaged in shipping goods to that port for some thirty-eight years. James A. Wilson also proves, that the goods could have been shipped in the fall of 1862 to Pernambuco. The inability to find transportation was the only excuse set up. This -was disproved by the testimony referred to, had the plaintiff’s directions been pursued — but which were totally disregarded. There was no error in the answer of the court to the point referred to. Nor was there any error in the rule of damages administered. It was in exact accordance with the rule in Eby v. Schumacker, 6 Casey 40, which was a case of illegal seizure in transitu. We have carefully examined every and all the numerous assignments of error and find nothing wrong; and with the exception of the points specially noticed above, we think further special notice of any of them would neither benefit the case nor the law; we therefore dismiss them, with our opinion upon the whole of them, that there is no error in them which needs correction. Judgment affirmed.