Hodges & Co. v. Kimball

Day, Ch. J. i. pleading-: amendment. I. Appellant assigns as error the action of the referee in permitting the amendment to the petition. The Code, § 2689, provides: “The court may, on motion of either party, at any time, in furtherance of justice, and on such terms as may be proper, permit such party to amend any pleadings or proceedings by adding — 582 — or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” * * * * It would seem that this provision is broad enough to authorize the amendment in question. Such an amendment as this was held proper in Dixon v. Dixon, 19 Iowa, 512. II. It is urged in effect that the first finding of facts does not with sufficient fullness set out the agreement between Yalleau and the plaintiffs, and that we should now, from a review of the testimony, incorporate into it other facts, or reverse and remand the case for further action in the court below. But neither the exceptions to the report of the referee nor .the motion to set it aside suggested this objection to the court below. The exceptions suggest generally that the referee did not find all the facts, and specify two matters respecting which it is claimed the referee should have reported. But, for aught that the record discloses, this particular objection is urged for the first time in this court. It cannot, therefore, be considered. III. The defendants offered to prove that no part of the wheat in question was bought by Yalleau with money received by him from the plaintiffs. The plaintiffs objected to this offered testimony, and stated that they would not claim that the grain in question was bought with money furnished by them. In our consideration of the case, therefore, we may regard the fact as established, though not reported by the referee, that the grain in question was not bought with money furnished by the plaintiffs, and we may give to this fact such weight as it may be entitled to. 2. lien: ven. doi anaven. IY. It is urged that the referee erred in refusing to permit defendants to prove that the grain in question was bought. with funds advanced Yalleau by defendants, on yap[eau>s ¿[rafts drawn on plaintiffs, which drafts plaintiffs refused to pay. In this action, there was no error. The mere fact that defendants furnished Yalleau money, and that with it he bought the grain in question, would give them — 583 — no specific lien upon the grain. Their lien dated from the levying of the attachment. 3 _._. priority. V. The case must be determined upon the facts reported by the referee, with the additional fact that the grain was not bought with money furnished by the plaintiffs. From the facts reported it appears that the grain in question was shipped on the 10th day of May, 1878, from Cresco. On the same day the grain was attached at Cresco, at the suit of the defendants, as the property of W. H. Valleau. The shipping receipts were not forwarded to the plaintiffs until the 13th day of May, and did not reach them until the 15th. The advancements on account of which the plaintiffs claim their lien were all made before this grain was shipped. The facts of this case bring it upon all fours with Elliott & Boynton v. Bradley, 23 Vt., 217, in which it was held that when goods are consigned to a factor, under an agreement that he shall sell them and apply the proceeds to repay advances previously made by him to the consignor, he must, in order to acquire a valid lien upon the goods, as against the creditors of the consignor, have the actual or constructive p ¡ssessión of the goods. In this case an agreement was made between a manufacturer of cloth in the State of Vermont and the plaintiffs, who were commission merchants in New York, by which the manufacturer was to send his cloth to the plaintiffs for sale on commission, and was to draw upon them in advance of the sales, and also in advance of sending the cloth, if necessary, upon sending the invoices of the cloth forwarded or to be forwarded, and the plaintiffs were to apply the avails of the sales to repay their advances. Under this arrangement the consignor forwarded to the plaintiffs, from time to time, invoices of the cloth sent, and to be sent, and the cloth was then sent to forwarding merchants at Burlington, and was by them sent to the plaintiffs as soon as convenient. The drafts were drawn and the acceptances charged, and sales credited upon general account. No bill of lading was sent to the plaintiffs, — 584 — but shipping bills were sent by the forwarding merchants to their agents in New York, describing the consignor, the consignees, and the marks upon the goods, in order to guide the' agents in delivering the goods to the consignees. It was held that the goods, after being sent to the forwarding merchants, and while upon the transit between Burlington and New York, remained at the risk and subject to the control of the consignors, and liable to attachment by their creditors. In fact, this case is a stronger one in favor of the consignees than the one at bar, for the cloth was in transit, and the shipping lists had been sent to the agents of the forwarding merchants, while in the case at bar the wheat had not moved from the place where it was shipped, and the shipping receipts still remained in the hands of the consignor. Appellee claims, however, that this case is overruled by the subsequent case of Davis v. Bradley & Co., 28 Vt., 118. It is so stated- in Bigelow’s Overruled Cases, page 168. The court, announcing the latter opinion, do not attempt to disturb the authority of the former, but distinguish the latter case therefrom. The court, through Redeield, Oh. J., say: “In the case of Elliott & Boynton v. Bradley, 23 Vt., 217, there was no advance or acceptance upon the faith of any particular consignment, and nothing like a symbolical delivery, which leaves the case wholly distinguishable from the present. No shipping list or receipt was ever delivered to the plaintiffs in that case, by any one. ” In this latter case (28 Vt., 118) B. & H. Boynton delivered to the defendants, who were storage and commission merchants, several sacks of wool, for which the defendants gave receipts, specifying that they were for the plaintiffs, or to be forwarded to the plaintiffs. These receipts were sent to the plaintiffs, and they, upon the credit of and with reference to said wool, accepted drafts drawn upon them by B. & H. Boynton. It was held that the plaintiffs thereby obtained the constructive possession of the wool, - and had a lien upon it for the amount of their acceptances. It was further held in this case that to give a factor a lien — 585 — upon goods consigned to, but not actually received by, Mm, the consignment must be to Mm in terms, and he must have made advances or acceptances upon the faith of the particular consignment. The distinction between Davis v. Bradley & Co., 28 Vt., 118, and Elliott & Boynton v. Bradley, 23 Vt., 217, is apparent at a glance. In the former case the plaintiffs had received the shipping receipts, and made advances upon the faith of the particular consignment. In the latter case neither of these facts existed. The same distinction exists between Davis v. Bradley & Co. and the case at bar. In Bank of Rochester v. Jones, 4 Coms., 497, it was held that where property is delivered to a forwarder or carrier, upon consignment to a factor for sale, but the receipt or bill of lading is not delivered or sent by the owner to the factor, and the property has not reached him, the factor acquires by the transaction no general or special property in the goods, notwithstanding the consignor may be indebted to the factor for advancements upon previous consignments to an amount greater than the value of the goods. See, also, Winter v. Coit, 3 Seld., 288; Kimloch v. Craig, 3 Term Rep., 119. The appellees rely principally upon Holbrook v. Wight, 24 Wend., 169; Grosvenor v. Phillips, 2 Hill, 147; Bailey et al. v. The Hudson River R. Co., 49 N Y., 70; Haille v. Smith, 1 Bos. & Pul., 563; and Knulder v. Ellison, 47 N Y., 36. In Holbrook v. Wight, a consignment of goods was made, the consignor sending a letter of advice to the consignee, and immediately thereafter drawing upon the consignee for funds, who accepted the draft. Erom the circumstances it may well have been found that the acceptance was made upon the faith of the particular consignment. This would bring the case within the principle of Davies v. Bradley & Co., 28 Vt., 118. In Grosvenor v. Phillips the consignor made a special agreement that the goods in question should be sent to plaintiffs for sale as a satisfaction for advances which plaintiff had made for him, and he placed them with a railroad agent for that purpose, transmitting an invoice and declaring his pur — 586 — pose by mail. These wore controlling facts in the decision, the court holding that the transmission of the invoice and the declaration of the consignor’s purpose were equivalent to the forwarding of a bill of lading. In Bailey v. The Hudson River R. Co., 49 N. Y., 70, the facts were as follows: On the 13th of October, 1866, plaintiffs received in New York from Alden, Frink & Western, of Cohoes, an invoice of three cases of goods, consigned to plaintiffs on account of consignors by the defendant’s road. Plaintiffs advanced thereon three-fourths of their value, and at the same time loaned Alden, Frink & Western three thousand nine hundred and seventy-four dollars and thirteen cents, for which that firm gave their check, payable a few days ahead. The check not being paid, it was agreed that Alden, Frink & Western should ship to plaintiffs, to pay the debt, eight more cases of goods. Invoices were sent to plaintiffs, stating the goods wore consigned to plaintiffs on account of the consignees-On the 16th and 17th of October all the eleven cases were consigned to plaintiffs, and delivered to defendant’s agent at Troy, to be by defendant transported to plaintiffs at New York. Instead of delivering the goods to plaintiffs, defendant, without requiring the surrender of its receipts, allowed Mr. Frink, unbeknown to his firm, to change their destination, •and, in pursuance of his order, the goods were delivered to Albert Jewett & Go., of New York city, by whom they were sold, and the proceeds paid over to Frink. The firm of Alden, Frink & Western were at this time insolvent. Plaintiff demanded the goods of defendant’s agent in New York. The court ordered a verdict for the plaintiff for the value of the goods. On appeal this judgment was affirmed. In this case the controlling facts are that the plaintiffs had, upon the faith of the first three cases, advanced three-fourths of their value, and Alden, Frink & Western forwarded the other eight cases under a special agreement to pay a loan made by plaintiffs, and also sent forward invoices of the eleven cases. In the case at bar there was no special agreement respect — 587 — ing the wheat in question, nor was any shipping receipt sent to the consignee until after the attachment was levied. In Haille v. Smith, 1 Bos. & Pul., 563, an invoice of a cargo of goods, accompanied by a bill of lading indorsed! in blank, was remitted to the consignee, but the cargo was prevented from leaving Liverpool by an 'embargo. It was held that the indorsement of the bill of lading operated as a transfer of the property to the consignee. The case of Knudler v. Ellison, 47 N. Y., 36, simply holds that, upon a sale of goods and delivery to a common carrier, the title passes to the consignees, and that the consignor cannot maintain an action against the carrier for the loss. None of the cases, as we understand them, support the proposition that appellees, under the facts found by the referee, acquired a lien upon the property in question. The court should have set aside the legal conclusion in the referee’s report, and rendered judgment for the defendant. Reversed.