Estey v. Truxel

Philips, P. J. I. The law is, that until the goods shipped were delivered to the insolvent vendee, they were subject in transitu to the right of the vendor to countermand the sale and reclaim the property. Benjamin on Sales, pages 1069, 1070, lays down the rule thus : “ The transit is held to continue from the time the vendor parts with the possession until the purchaser acquires it; that is to say, from the time the vendor has so far made delivery that his right of retaining the goods and his right of lien * * * are gone, to the time when the goods have reached the actual possession of the buyer. * * * The stoppage in transitu is called into existence for the vendor’s benefit, after the buyer has acquired title and right of possession, and even constructive possession, but not yet actual possession.” This is cited approvingly by Sherwood, J., in Heins v. Transfer Company (82 Mo 236), he adds: “And the insolvency of the purchaser is a sufficient justification for exercising the seller’s right, though the sale be unconditional and time be given to the purchaser.” This right of stoppage is not precluded until the goods have actually reached the buyer, or under circumstances equivalent thereto. 2 Kent Com. 544; Buckley v. Furniss, 15 Wend. 137. Nor was this right of the vendor. defeated by the mere seizure of the goods under writ of attachment before the depot agent at Sedalia had delivered them to the consignee, or before Randell had made demand for them. O’Brien v. Caldwell, 16 Md. 122, and citations. Kent, volume 2, page 543, says: “ It is not requisite that the vendor should obtain actual possession of the goods before they come to the hands of the vendee, nor is there any specific form requi [245] site for the stoppage of goods in transitu. But a demand of the goods of the carrier, or notice to him to stop the goods, or an assertion of the vendor’s right, by an entry of the goods at the custom house, or a claim and endeavor to get possession, is equivalent to an actual stoppage of the goods.” And in O'Brien v. Caldwell (supra), it is held that it was a sufficient assertion of this right when the interplea was filed. It is beyond dispute that Truxel notified Cumston on the twenty-ninth of December, before the goods had reached Sedalia, of his inability to pay for them, and advised him of the fact that Itandell would :take them, if agreeable to the vendor. There is, likewise, little ground to question that this letter and the telegram of January 2 were received by Cumston prior to the seizure of the goods by the sheriff; and just as little ground for controversy that Cumston sent his telegram accepting the arrangement with Itandell prior to the seizure of the goods. That telegram was sent from Boston at 11: 37 a. m. Allowing for the known difference in time between Boston and Sedalia, that was before 10 a. m., whereas, the seizure was not before noon of that day. Cumston also notified the carrier at Boston not to deliver to Truxel, but to Itandell. The company at Boston, with whom the contract of shipment was made, was the proper company to notify. Hutch, on Car. 410, 412. The vendor cannot be presumed to have then known at what point the goods were. He was advised, however, by the telegram, that they had not been delivered to the consignee. This left his.right of stoppage in transitu intact. Indeed, we do not perceive that this question of the sufficiency of the notice to the railroad company properly arises in this case, because there never was any delivery to the vendee. When Cumston telegraphed his acceptance of the proposition to turn the pianos over to Itandell, the minds of the contracting parties had met, and the arrangement was consummate. Taylor v. Ins. Co., 9 How. [246] 390; Keim v. Ins. Co., 42 Mo. 41. And that was an equivalent overt act to stop the delivery to Truxel. It precluded the right oí Truxel, as against the interpleader, to demand and receive the pianos, and was equally binding on the attaching plaintiffs, who can occupy no better relation as purchasers under Truxel. They would simply acquire all the right and interest he had at the time of the attachment, and no more. II. It is urged by appellants that Truxel was insolvent at the time of the purchase, and this fact, being known to the vendor, defeated his right of stoppage in transitu. The proposition of law is correct, but it is not supported by the facts. The only information, so far as this record discloses, that Cumston had of the financial condition of Truxel was conveyed in the letter of December 17. That letter shows nothing more than that Truxel had not met promptly his notes to inter-pleader, and assigns very plausible reasons for the delinquency. This might amount to a technical insolvency under the bankrupt law, but it has no place in the ordinary affairs between mercantile men. Potter v. McDowell, 31 Mo. 73. As said in O’Brien v. Caldwell (supra), “The presumption of both law and reason, in the absence of proof to the contrary, is, that, when they sold the goods on a credit, they believed the purchaser to be solvent and able to pay for them.” III. It was suggested in argument at this bar, by counsel for appellants, that this cause was not tried in the lower court on the theory of the right of stoppage in transitu. lie seems to have thought differently in the trial court, for the first instruction asked by him was predicated of a failure “to stop the goods in transit.” Be this, however, as it may, while we think the instructions given by the court unnecessarily restricted the right of recovery by the interpleader to the fact of a rescission of the sale, by the substitution of Randell, be [247] fore the goods were attached, we do not see how appellants were injured thereby. By their'Verdict the jury found, either that, before the levy of the writ of attachment, the sale to Truxel had been rescinded, or that the interpleader had agreed to substitute Randell, with Randell’s assent. There was certainly evidence to support this finding. These facts having been thus found, they amount in law to the exercise of the right of stoppage in transitu, before the goods were levied on or delivered to the vendee. So, while the court might have declared the law in different form, and certainly far more favorably to the inter-pleader, the substantial facts are predicated and found. The declarations of law asked by plaintiffs were so clearly faulty, as applied to the facts of this case, that it is unnecessary to review them. This judgment was for the right party; the interpleader got but his own, while the plaintiffs are seeking to reap where they have not sown, in so far as these pianos are concerned. The judgment of the circuit court is affirmed. Ellison, J., concurs; Hall, J., absent.