Aguirre v. Parmelee

Hinman, J. Upon the facts found by the court, in this case, we are of opinion, that the plaintiffs are entitled to judgment. If we look at the case, as the plaintiffs must have viewed it, at the time they ordered the goods to be stopped, which is, perhaps, the most natural aspect in which it is presented, by the facts, it is clear of all difficulty and doubt. The Thompsonville Company, through the agency of Mr. Orrin Thompson, purchased of the plaintiffs, in [482] New York, a large quantity of wool, including the forty-seven bales in question ; and, while it is on its transit, from New York to Connecticut, before it comes to the possession of the vendees, and on their failure, without paying for the wool, or, in any form, complying with the terms of the contract, on which it was sold, the bales- in question were stopped by the plaintiffs at New Haven. These facts make out the ordinary case, where the right to stop goods, in transitu, is said to attach; and the questions in the case seem all resolved into this, whether there is any thing in the other facts, shown in the finding, which will deliver the case from the operation of the rule of law, in regard to the right of the vendor to stop goods in transitu. The defendant’s counsel rely,in the first place, upon the delivery of the goods to Orrin Thompson,in New York; claiming, that the right to stop them was terminated by that delivery. We, however, do not think that can be said to be such a delivery as to put an end to the vendor’s right to stop them in transitu. The delivery was not to him, as owner, nor, as agent of the owners, to dispose of them in any other way than to transmit them to the vendees’ place of business. The finding is, that he was the agent, of the vendees, to make purchases of wool, to be transmitted to Thompsonville, and this seems to be the extent of his agency. He stood, therefore, rather in the position of a mere forwarding agent, than in that of an agent to receive the goods for the vendees’ use; and no point is clearer than that a vendor, where the right to stop in transitu exists at all, may stop the goods in every sort of passage to the hands of the purchasers. Stokes v. LaRiviere, cited, 3 E., 397. We do not say, as was intimated by Lord Mansfield, in Hunter and another v. Beal, cited, 3 T. R., 466, that “the goods must have come to the corporal touch of the vendees.” But, to take away this right, there must have been an absolute delivery in New York, for the use of the vendees, and it must have been a full and final delivery, as contradistinguished from a delivery to a person, acting as a carrier or [483] forwarding agent to the principal. Dixon v. Baldwin, 5 E., 134. And this delivery should be at the place named byj the purchaser, to the vendor, as the place of final delivery,' or ultimate destination of the goods. They must either come to the actual possession of the vendee, or to that place where, by his authority, they are destined to come, for his use, and where nothing further is to be done with them but to sell them to a customer, or apply them to his use. Coats v. Railton, 13 E. C. L., 223. Jackson v. Nichol, 35 E. C. L., 203. Stubbs v. Lund, 7 Mass., 453. According to this test, the transitus, in this case, would continue until the wool arrived at Thompsonville, which was the place where it was to be sent, for the use of the purchasers. It is said, however, in answer to this, that the agency of' Orrin Thompson for the Tariffville Company, at Simsbury, in connection with his agency for the Thompsonville Company, and his general course of business, as the agent of both companies, of dividing the large lots of wool which he purchased for either of them, between the two, and each company giving its own note for its respective lot or share, when received, justified him in dividing the wool which he purchased of the plaintiffs, between these two companies, as he did; and that this division, and the transmission of these forty-seven bales to the Tariffville Company, took away, and destroyed the plaintiffs’ right to stop these goods, on their' way to the latter company. On any question between these two companies, where the interests of third persons are not involved, it is .no doubt true, that Mr. Thompson had authority to divide the lots of wool which he purchased for either, between them both. But the plaintiffs were not privy to any arrangement of this sort, and their interests ought not to be affected by it. They had no connection with the Tariffville Company. That company was not named to them ; and they did not even know of its existence. It seems clear, therefore, that the plaintiffs are not bound to recognize the Tariffville Company, as having [484] any interest whatever in the goods, so long as they were on their transit. Indeed, .it is by no means clear, that the plaintiffs are not rigfyt, in claiming, that, in respect to them, the division of the goods, and the sending of a part of them to Tariffville, is such a departure from the understanding and agreement of the parties, as to-justify them in retaking their goods, 'on the simple ground, that they had never legally parted with their possession of them, irrespective of their right to stop them in transitu. As the plaintiffs did not know the Tariffville Company in the transaction, they had never agreed to accept of that company, as their debtors, for any portion of the wool, and, as the Thompsonville Company never forwarded their note for the whole purchase, and do not appear to have been advised, of the purchase of the whole lot, by their agent, but only of the part sent to them, it would not, perhaps, be going too far to say, there was such a mutual misunderstanding, as rendered the contract inoperative. But, however this may be, we do not feel called upon to determine it; and we do not place the case on this ground. The defendant claims the goods, by virtue of an attachment of them, as the goods of the Tariffville Company. Of course, he claims, and must claim, that the act of Orrin Thompson, in dividing the goods'into two lots, and sending the forty-seven bales to the Tariffville Company, was a legal and valid act, not only in respect to the two companies for which he was agent, but also in respect to the plaintiffs. He, therefore, seeks to affirm that act, by claiming the property under it. Now, when it is shown, as in a. former part of this opinion, we have said it is shown, that there was no absolute delivery of the goods in New York,’ to the purchasers, or to Orrin Thompson, for their use, as owners of them,—but only to him as a forwarding agent, it is obvious, that, while the defendant claims the goods, under the act of Orrin Thompson, he must, also claim them to have been purchased by the Tariffville Company, of the plaintiffs. But, upon this claim, the plaintiffs must also be [485] at liberty to affirm that transaction, as. a sale from them, and to waive the irregularity, arising from the absence of any previous consent to the sale, on their part. On doing, this, they, of course, have the same right of stoppage in transitu, against the Tariffville Company, that otherwise they would have had against the Thompsonville Company; and, as the finding is, that both these companies became insolvent, and failed at the same time, on the 22d of September, 1851 ; and as the plaintiffs stopped the goods at New Haven, before the contract had been complied with, by either company, we do not see why the plaintiff, as against the defendant, who claims the goods, only on the supposition that there was a sale to the Tariffville Company, had not a right to stop them, (as against that company, and the defendant who claims under it. We, therefore, have not been able to perceive any ground, on which the defendant can retain the goods, as against the plaintiffs, and we accordingly advise the superior court, to render judgment for the plaintiffs. In this opinion, the other judges concurred. 4 Judgment for the plaintiffs.