Sherman v. Rugee

LyoN, J. By their demand of the leather in controversy of the sheriff, the plaintiffs asserted, and by this action seek to enforce, the right of stoppage in transitu. The direction of the learned county judge to the jury to return a verdict for the plaintiffs (which is the only error assigned) was necessarily a ruling that the evidence conclusively establishes such right. Whether that ruling was correct or erroneous is the controlling question on this appeal. The insolvency of the purchasers of the leather, Sche'id-erer & Reid, when the demand was made upon the sheriff therefor is proved beyond all doubt or controversy. If at that time the leather had not come to the possession of the purchasers, the right of the plaintiffs to claim and take possession of it is clear. The fact that it had been seized by. the sheriff by virtue of process against the goods of the purchasers does not destroy that right. Notwithstanding such [349] seizure the leather was still in transit when demanded of the. sheriff. The cases which so hold are numerous. Some of them are cited in the brief of counsel for the plaintiffs. It was argued that the taking of the leather by the sheriff from the railway company and removing it to the store of the purchasers operated as a delivery to the purchasers and foreclosed the right of the plaintiffs to reclaim it. We find nothing in the testimony which supports this position. It is conclusively proved that the sheriff seized the property and held it under his processes against the purchasers, and not as the agent of the purchasers. It is entirely immaterial that they delivered to him or allowed him to take the bill of the leather and the plaintiffs’ letter of advice inclosing it, or that he stored the goods in the building in which before their failure the purchasers carried on their business. The testimony fails entirely to show that there was ever a moment in which they had any dominion over or control of the property. We have treated the transactions between the plaintiffs and Scheiderer & Eeid as constituting a sale and purchase of the leather binding upon both parties, and wanting only delivery to make it absolute and complete. This is most favorable to the defendant. We conclude that the undisputed evidence establishes the plaintiffs’ right of action and left no question for the jury to determine. By the Qov/rt.— The judgment of the county court is affirmed.