Doyle v. Roth Manufacturing Co.

Tatloe, J. It will be seen by the complaint that plaintiffs’ action is based on the refusal of the defendant to accept their draft, at five days’ sight, for the sum of $529.16, which they alleged it agreed to do, in payment for 189 barrels of apple waste sold and delivered by them to the defendant on the 16th day of December, 1887. For the purposes of this appeal we will adopt the terms of the contract between the parties in regard to these goods, as stated [53] by the learned trial judge. He stated the contract as follows: “These goods were sold at a definite price of 2-J-, Doyle & Co. to put them, free of expense, on board the cars at the point of shipment; the defendant to pay such price by draft drawn five days after sight, after the goods should be received at Milwaukee, — that is, at the freight-yards or freight-rooms, or the usual place where the goods áre received of the transportation company at Milwaukee.” Under this contract, it is very clear to us that the plaintiffs were bound to show that the goods had been delivered by them to the defendant, either at the point of shipment or at Milwaukee, in such manner that the defendant could lawfully demand them of the transportation company at Milwaukee, before the plaintiffs could demand of the defendant that it should accept the draft for the purchase price. The evidence clearly shows that the plaintiffs purposely retained the title to the property they now claim they sold and delivered to the defendant on the 16th of December, 1887, that being the day they drew their draft on the defendant, and attached it to the bill of lading indorsed by them in blank, and sent the draft and bill of lading so indorsed to their banker in Rochester for collection. They not only had the bill of lading issued to themselves, but they instructed their agents not to deliver it to the defendant until it had paid their draft. This direction to their agents not to deliver the documents except on payment only was in direct conflict with the terms of the contract as stated by the court, and is in direct conflict with the statement of the sale made in the complaint. The evi-,-,' dence is clear that, under the contract, the defendant was' entitled to have the title a,nd possession of the property delivered to it on the acceptance of the draft for the $529.76, payable at five days’ sight. There is no pretense for holding, under the evidence in the case, that the plaint [54] iffs were to have the possession of the property as security for the payment of the accepted draft. That, under the evidence given on the trial, the title and right of possession to the property did not pass to the defendant, is clear. The goods were the plaintiffs’. They put them on board the cars in New York, shipped in their own name, and consigned to themselves at Milwaukee. It may be admitted that they were purchased for the purpose of selling them to the defendant or filling the defendant’s order; but the plaintiffs did not sell them to defendant when they shipped them to their own order. That by doing so they intended to retain the title and right of possession in themselves, is admitted by the plaintiff Doyle in his evidence. ITad the goods been lost or injured in transit, it is clear that Doyle & Oo. could have recovered for the value of the goods lost, or the damages done to them; and that the defendant could not have maintained an action for any such injury or loss unless the bill of lading had been assigned to it before action brought. This proposition is so clear that we do not deem it necessary to cite the authorities upon the point further than to quote the general rules as stated by Mr. Benjamin in his work on Sales (Corbin’s notes), §§ 565-567: “First. Where goods are delivered by the vendor, in pursuance of an order, to a common carrier for delivery to the buyer, the delivery to the carrier passes the property, he being the agent of the vendee to receive it, and the delivery to him. being equivalent to a delivery to the vendee. Secondly. Where goods are delivered on board of a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a delivery to the buyer, but to the captain as bailee for delivery to the person indicated by the bill of lading as the one for whom they are to be carried. . . . Thirdly. The fact of making the bill of lading deliverable to the order of the vendor is, when not rebutted by evidence to the contrary, almost [55] decisive to show his intention to reserve the jus disponendi and to prevent the property from passing to the vendee.” The authorities sustaining these general rules will be found in the notes to these and several preceding sections of the work. In the case at bar, there is not only no evidence tending to show that the plaintiffs intended to part with their property in the goods when they shipped them, but on the contrary, when they shipped them on the cars, the evidence shows that they intended to retain the title and right of disposition. The plaintiffs, having failed to show any transfer of the goods to the defendant by their purchase and shipment of them to Milwaukee in their own names, must produce some other evidence of such transfer, in order to entitle them to call upon the defendant to accept their draft for the value of the goods. It is said they sent the bill of lading to their agents in Milwaukee with directions to ask the acceptance of the draft and to deliver the bill of lading upon such acceptance. It may be admitted that if the plaintiffs, after having shipped the goods to Milwaukee in their own names as consignees, had offered to indorse the bill of lading and deliver it to the defendant, after the goods had arrived in Milwaukee, they would have been entitled to demand its acceptance of their draft for the purchase price, payable five days after sight. We are unable, however, to find any evidence in the case showing or tending to show that any such offer was ever made. On the contrary, the agents of the plaintiffs were instructed not to deliver the indorsed bill of lading until the accepted draft was paid. But, if we should disregard this positive direction to the plaintiffs’ agents, and hold that the word “payment,” used in the instructions, meant simply the acceptance of the draft for the price of the goods, there is still an absence of any testimony showing that any offer was made by the plaintiffs or [56] their agents to deliver the indorsed bill of lading to the defendant. All that is shown is that it was requested to accept the draft. When this request was made, the title and right of possession of the property was in the plaintiffs, and no offer to pass the title to the property to the defendant was made. The bill of lading is still in the possession of the plaintiffs, and was produced by them as evidence on the trial. As the plaintiffs base their right to recover upon a sale and delivery of the goods, they were bound to produce on the trial evidence which would prove, or at least tend to prove, such sale and delivery. That, certainly, was not done in this case. The fact of the sale and delivery was put in issue by the answer of the defendant, and the burden of proof was on the plaintiffs. So far as the evidence in this case shows, as between the plaintiffs and the defendant the possession and title of the goods in question remained in the plaintiffs; and no proof was made of any offer to transfer the title or possession to the defendant before the action was commenced. The plaintiffs failed to prove their cause of action, and the motion of the defendant should have been granted. By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.