Harrison, Frazier & Co. v. Mora, Ona & Co.

Opinion by Mb.. Justice Green, As we understand the contentions and concessions of the parties, it is to be considered that if the plaintiffs had accepted the draft for the sugars shipped by the Sagua the proceeds would have been received by Perkins & Welsh, and would have been placed by them to the credit of Mora, Ona & Co., on their general account with Perkins & Welsh. This would have been in accordance with the general arrangement or mode of business between Perkins & Welsh and Mora, Ona & Co. The proceeds of the accepted draft would not have gone to Mora, Ona & Co. at all, and there was nothing, as we understand, in the letter of August, 1889, from Mora, Ona & Co., to Perkins & Welsh, taking the cargo of the Sagua out of the operation of the contracts for the (about) 1500 tons and 1000 tons respectively so far as tlie subject of the present contention is concerned. The seventy tons shipped by the Sagua were. — 489 — as Mora, Ona & Co. claimed, the whole of the remainder of the sugar they were bound to deliver under the original contracts. The plaintiffs claimed they were entitled not only to the seventy tons but to damages for non-delivery of the full amount of the 2500 tons. The mode, of settlement and payment for the whole quantity of sugar to be shipped was to be the same for all. At the conclusion of the letter of March 2, 1889, from Perkins & Welsh to Harrison, Frazier & Co., which contained the terms of the contract for the 1000 tons, it was stipulated as follows: “ payment to be made against documents as heretofore in similar cases.” We can see nothing in any of the letters which changes, as to the cargo of the Sagua, the terms of the contract or the usual course of dealing between Perkins & Welsh and Mora, Ona & Co. The language of the letter of August, 1889, from Mora, Ona & Co. to Perkins & Welsh, to wit: “The Muscos per Brig Sagua complete our contract with Harrison, Frazier & Co.,” was the mere announcement of the fact as they understood, and clearly did not indicate, either directly or inferentially, any change in the course of dealing between them. The remainder of the letter related to another subject. It is argued for the appellants that this letter and the one of July 17th, from and to the same parties, show that there was an intention on the part of Mora, Ona & Co. to give a lien only on the price and therefore there could be no lien on the goods. We fail to perceive the force of the contention. The letter of July 17th was, first, a confirmation of previous letters, second, a declaration that the writers would stand by the previous assertion of their right, that is, that they were only bound to ship the additional seventy tons under their contract, and, lastly, that Perkins & Welsh should place the bill of lading when the sugar was delivered with a draft which would include the balance due on the Wylo’s cargo. We cannot possibly see in this any proof of an intention to deprive Perkins & Welsh of the right to their customary lien upon the goods. Certainly there is nothing in the correspondence showing, or tending to show, that a new contract was intended to be created between Mora, Ona & Co. and Perkins & Welsh. The right to their general lien to protect their advances was too important a matter to be frittered away by an inference from a correspondence which gave no intimation of such a purpose on the part of either. — 490 — All the other considerations affecting the question are clearly with Perkins & Welsh. The bill of lading was to be given, and was actually given, to them as usual, and upon all the authorities this operates to transfer the title to the goods: Lickbarrow v. Mason, 2. Term Rep. 68, per Ashurst, J". “ But as between the vendor and third persons the delivery of a bill of lading is the delivery of the goods themselves : ” 1 Sm. Lead. Cases, 1159, eighth edition and notes, 1227 and 1230 ; Benj. on Sales, 813; Meyerstein v. Barber, L. R. 4 L. 325 ; Schmertz v. Dwyer, 53 Pa. 335 ; Holmes v. Bailey, 92 Pa. 57; Holmes v. Germ. Security Bank, 87 Pa. 525. In Schmertz v. Dwyer, supra, Thompson, J., said: “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.” The letter of Perkins & Welsh to Harrison, Frazier & Co. of August 14, 1889, affords evidence, it is contended, in corroboration of plaintiffs’ theory. That letter announces to the plaintiffs that Perkins & Welsh have received invoice and bill of lading for 53 hhds. and 212 bbls. of sugar per Brig Sagua on account of contract of Mora, Ona & Co., and further that in accordance with instructions Perkins & Welsh draw on Harrison, Frazier & Co., for amount of invoice together with balance due on Wylo’s cargo. They add also that their instructions are not to deliver the documents (sugars) unless draft is accepted. How this letter can be held to afford evidence that Perkins & Welsh had abandoned their right to a lien on the goods as between them and Mora, Ona & Co., or that they had not the intention to exercise or to claim such a right of lien, we cannot understand. If the goods were received and draft accepted of course the proceeds would go to Perkins & Welsh and that would be the end of the matter. They would credit Mora, Ona & Co.’s general account to the extent of the proceeds in accordance with their uniform mode of dealing. But because the goods were not received and the draft was not accepted it is claimed that the whole effect of the transaction as between Perkins & Welsh and Mora, Ona & Co. was changed. We cannot perceive the sequence of the reasoning. The necessary contention of the appellants is that the goods, when they were refused by Harrison, Frazier — 491 — & Co. became tbe property of Mora, Ona & Co., so that they could be attached as belonging to them. And this notwithstanding the fact that the bill of lading had been transferred to Perkins & Welsh who then held it. . If Perkins & Welsh and Mora, Ona & Co. did not intend any such result it cannot be argued that an ownership of the goods resulted to Mora, Ona & Co. by virtue of an intention that Perkins & Welsh should not have their customary lien on the goods, because all proof of such an. intention is utterly wanting. Mora, Ona & Co. were not parties to this letter of August 14th, and therefore cannot be held to have made any expression on the subject. Certainly it cannot be contended that Perkins & Welsh intended to give up their lien on the goods which they had, both by virtue of their uniform mode of dealing with Mora, Ona &• Co., and by possession of the bill of lading, transferred to them. Nothing in the letter indicates a shadow of such an intention and they certainly did not say so directly. Moreover, Harrison, Frazier & Co., being attaching creditors of Mora, Ona & Co., have no higher rights to the property in question than their debtors, Mora, Ona & Co., had. This is perfectly familiar law in Pennsylvania. Without multiplying authorities we refer only to the language of Agnew, J., in Baugh v. Kirkpatrick, 54 Pa. 84, viz.: “ The attaching creditor stands upon no higher footing than his debtors in relation to the garnishee. What right would the debtor himself have to say to the garnishee ‘ you shall not sell,’ without tendering him his advances and making him whole? Even an execution cannot be levied of goods in pawn so as to take them out of the pawnee’s possession without tendering him the money for which he holds them in pledge. So here the garnishees as factors to sell having made advancements had a power coupled with an interest which was irrevocable except upon a tender of their charges.” What then were the rights of Mora, Ona & Co. to these sugars in the hands of Perkins & Welsh? By the undisputed evidence in the case they were very largely indebted to Perkins & Welsh for advances on general account to be protected by subsequent consignments. By the uniform mode of dealing between them and Perkins & Welsh the latter had the right to appropriate the proceeds of all sales of goods made by — 492 — them for Mora, Ona & Co., to the credit of their general account. They held the bill of lading for the cargo of the Sagua, and this entitled them to the possession of the goods. They had the undoubted right to sell the goods and appropriate the price to the credit of Mora, Ona & Co.’s general account. As a matter of course the latter could not take possession as against their bill of lading without tendering whatever charges Perkins & Welsh had against them. And if they could not do this, Harrison, Frazier & Co., as their creditors, could not do it. Thus far we have considered the case upon the letters and papers in evidence, as they are the principal source of the contentions of the appellants. The jury found, under the charge of the court leaving to them the question of fact as to what the relations were between Perkins & Welsh and Mora, Ona & Co., that there was no property of Mora, Ona & Co. in the hands of Perkins and Welsh, the garnishees, and that the cargo of the Sagua was held by them to secure debts due them by Mora, Ona & Co. for advances. The oral testimony was delivered by one witness, Mr. Osgood Welsh, one of the members of the firm of Perkins & Welsh, and was not contradicted by any other witness. The character of the relation between the two firms was described by him in reply to questions on that subject. He was asked: “ Q. What was your arrangement with Mora, Ona & Co. about all the shipments of sugar including these? A. We made them advances on sugar prior to shipment if they so required. They were at liberty to draw upon us for the money with which to pa)*- for. those sugars, sugars coming to our consignment out of which we were to get the money which we had advanced. Q. How were the sugars consigned to you? A. To our order. Q. By what? A. By a bill of lading. Q. You are not speaking of this particular lot of sugars ? A. Yes, sir, this particular lot. Q. Is there an arrangement between Mora, Ona & Co. and yourselves? A. There was an arrangement on which the business was based. Q. How long has that arrangement been in existence ? A. Upwards of twenty-five jmars.” Having stated that the arrangement commenced during the time of the firm of S. & W. Welsh, the predecessors of the firm of Perkins & Welsh, and that S. & W. Welsh had dissolved, — 493 — he was asked : “ Q. Did Mora, Ona & Co. continue to deal with you? A. They did; the business ran on. Q. During the time of S. & W. Welsh had there been, or not, an established custom between that house and Mora, Ona & Co. for advances and shipments of sugar? A. There had. Q. Your house went into existence in 1884? A. Yes, sir. Q. Did your house continue or not in the same course of dealing with them? A. Absolutely. Q. What was that course of dealing? A. To make advances to Mora, Ona & Co., to receive merchandise from them to cover those advances, which we sold for them, the proceeds going to their credit. Q. That merchandise necessarily was shipped ? A. It was shipped to us. Q. Shipped on bills of lading? A. Shipped on bills of lading consigned to us. Q. The bills of lading were to your order ? A. Yes, sir. Q. When that merchandise was sold and the drafts were paid what was done ? A. The bill of lading was indorsed by us and turned over to the person who paid for the cargo of sugar. Q. How would they pay and to whom would they pay ? A. Pay to us. Q. What would you do with the money? A. Pass it to the credit of Mora, Ona & Co. Q. Was that done in this case? A. Yes, sir; here are all the items. Q. There were several bills of lading for parts of this contract? A. Yes, sir. Q. When those bills of lading came here were they to your order? A. Yes, sir. Q. How was the sugar paid for all prior to the Sagua ? A. The buyers accepting and then paying our drafts on them. Q. In all these cases did you draw on Harrison, Frazier & Co.? A. That has been our custom for years in all cases, in this and many other transactions we have had with them. Q. And there were many of those drafts paid ? A. All that they accepted were paid. Q. How about the bill of lading on the Sagua? Was that under this arrangement or under a different arrangement with Mora, Ona & Co. ? A. It was under this arrangement. Q. Is there still a balance due on the Mora, Ona & Co. account? A. Yes, sir.” The witness then stated that the amount of the balance against Mora, Ona & Co., Dec. 7, 1889, was $164,234.15. It will thus be seen that the transactions of Perkins & Welsh with Mora, Ona & Co., for all the sugars sold to Harrison, Frazier & Co., and including the cargo of the Sagua, were the same in character and were treated in the same manner. No — 494 — distinction was made as to that cargo, and, upon the uncontradicted oral testimony, that shipment was made subject to the same right of lien on the part of Perkins & Welsh that they possessed and exercised as to all the other shipments. How-then can it be argued that there was a different intention regarding the lien upon the cargo of the Sagua from that which affected all the preceding shipments? We cannot see it and we think the verdict was in entire accordance with the testimony both oral and written. Entertaining this view of the case it will be unnecessary to engage in any review of the numerous authorities cited in the arguments of the learned counsel upon both sides. We think the assignments of error are not sustained. Judgment affirmed.