E. & G. Brooke Iron Co. v. O'Brien

Holmes, J. It is by no means clear that the findings that there was a delivery of the iron at Elizabethport, or, if the contract required a delivery in Boston, that there was a delivery there before the attempt of the vendors to stop in transitu, leave anything open to argument. But if the question is still open to the vendors, we think that no other conclusion could have been reached on the facts reported. The contracts between the E. & G. Brooke Iron Company, the seller, and E. P. Cutler and Company, the buyers, expressly provided that the goods should be delivered at Elizabethport; the identification of the buyers as of Boston does not affect the place of delivery, or cut down the plain words “ deliverable at Elizabethport, N. J.” Dodson v. Wentworth, 4 Man. & G. 1080, 1084, 1088. At Elizabethport the iron was received on board vessels chartered by Cutler and Company, and the transitus was at end. With such contracts between the buyer and seller, it 447 did not matter whether the vessels first mentioned were in the hands of independent carriers, or whether, by the charters, Cutler and Company became owners pro hap vice, so that, according to Berndtson v. Strang, L. R. 3 Ch. 588, a delivery on board was an actual delivery to them in any event, which, for all that appears, may have been the fact. The cases cited for the Brooke Iron Company throw no doubt upon the rule, that, when goods have reached the destination agreed on between buyer and seller, and are there delivered to the buyer’s order, the right of stoppage is gone, and is not revived or prolonged by his ordering them to be despatched to a farther point. Dixon v. Baldwen, 5 East, 175, 184. Ex parte Gibbes, 1 Ch. D. 101. Ex parte Rosevear China Clay Co. 11 Ch. D. 560, 569. Guilford v. Smith, 30 Vt. 49. Mohr v. Boston & Albany Railroad, 106 Mass. 67, 71. In the second place, there is equally little question that what took place at Boston would have ended the plaintiff’s right to stop, even if Boston had been the place of delivery. We see no reason to doubt that the bank got the interest in the iron which it meant to get as collateral security for its advances to Cutler and Company. But whether it did or not, it took the iron under that claim. The property thus came into the hands of persons claiming as pledgees of the purchaser, holding under his title, and setting up a possession adverse to that of the vendor, with the purchaser’s assent, at a place where the vendor contemplated and agreed that it should be done. This was enough to have finished the transitas, if it had continued until then, both at law and in equity; and the principle of Spalding v. Ruding, 6 Beav. 376, 12 L. J. (N. S.) Ch. 503, and Kemp v. Falk, 7 App. Cas. 573, would not help the vendor, even if this were a proceeding in equity. If the statement that Nichols, the warehouseman, “took formal possession of the iron in the name of the bank as its agent,” is to be taken literally, the bank got actual possession through a person acting as its servant for the time being. But the law would be the same if Nichols was a bailee, who himself had the technical possession, setting up an authority derived from the buyer or those claiming under him. As a matter of fact, the fair inference from the report is that he had authority from both Cutler and Company and the bank. 448 Cases where the goods remained in the hands of the carrier or the carrier’s bailee, or some agent or depositary recognizing the vendor, have no application. In this case, they had come completely under the control of the opposite party. See Hunter v. Wright, 12 Allen, 548. Judgment on the findings.