Ullman v. Barnard

Bigelow, J. 1. By the terms of the contract for the purchase of the flour, the sale was a conditional one. No title was to vest in Stiles as vendee, or in Bradford & Brown as consignees, until the drafts drawn by the vendors on them for the amount of the purchase money should be paid. In the mean time, the property was to vest in the plaintiff, as security for the drafts on Bradford & Brown, which he discounted for the vendors. The drafts not having been paid by the drawees, the condition on which the property was to vest in them or Stiles, has not been complied with, and they never acquired any valid title to the flour. Coggill v. Hartford & New Haven Railroad, 3 Gray, 545. And the defendant’s title, being derived solely from Bradford & Brown, is therefore invalid. 2. It is equally clear, that the plaintiff has both the right of property and possession. The flour was to remain as security to him for the amount of the drafts which he discounted. It was therefore shipped in his name, the bill of lading for it given to him, and it was sent to Bradford & Brown, who were to receive and hold it till said drafts were paid; and then, and not before, they were to hold it as consignees for sale, or to deliver it to Stiles. The delivery of the flour by the vendors, in pursuance of this contract, vested the property according to its terms, and not otherwise. The carriers, during its transportation, and Bradford & Brown, on its arrival in Boston, held it as agents of the plaintiff, until the drafts discounted by him were paid. The delivery to them was therefore sufficient to vest the property in the plaintiff, and constituted a valid sale within the statute of frauds of Wisconsin, where the contract was made. Rev. Sts. of Wisconsin, c. 76, § 3. It would also be sufficient under oui own statute. Rev. Sts. c. 74, § 4. [558] 3. There is no evidence in the case, that the condition on which the sale was made was varied or waived by the parties. The acts of Stiles, in shipping the flour and superintending its transportation, are perfectly consistent with the original terms of the contract. He was to have an ultimate interest in the property, and might well be permitted by the vendors and the plaintiff to take charge of its transmission to the place of its destination, -without any intent on their part to surrender their right to it under the contract of sale. 4. There is nothing in the evidence that sustains the position that Bradford & Brown held the flour on consignment at the time they pledged it to the defendant. On the contrary, it appears that it was in their possession as agents of the plaintiff, holding it as security for the owners of the drafts discounted by him, according to the stipulations of the original contract of purchase. The verdict of the jury, under the instructions given by the court, disposes of this question, and seems to' us to be entirely in accordance with the proof. There was no consignment to them at the time they pledged the flour to the defendant. The consignment to them was conditional on the acceptance of the drafts by them; and having refused to accept them, they never held the property as consignees. 5. The evidence of conversion by the defendant was sufficient to entitle the plaintiff to maintain his action. There was direct proof of a demand and refusal. 6. The measure of damages is the whole value of the flour, with interest from the time of the conversion. The right of property and possession were both in the plaintiff; and although he had only a special property in the flour, as security for the amount of the drafts, he is entitled to recover its full value. He is answerable over to the general owner. It is no reason for a reduction of damages in this case, that a third person has an. interest in the property. Lyle v. Barker, 5 Binn. 457. Wheeler v. Webb, 15 Conn. 502. The rule might be otherwise, if it appeared that the defendant was entitled to the property after the claim of the present plaintiff upon it had been satisfied Spoor v. Holland, 8 Wend. 445. Judgment on the verdict.