Hopkins v. Cowen , 90 Md. 152 ( 1899 )

The appellant in this case sued the appellee in replevin to recover the possession of two hundred and ten sacks of flour. The pleas are, property in the appellees, and property in the Winnebago City Mill Company.

At the trial the appellant, to sustain the issues on his part, offered to prove, that he had been engaged in purchasing flour from the Winnebago City Mill Company for a number of years; that on January the 11th, 1898, he ordered from the company the flour in question, "without any agreement as to the terms of payment," and that "the flour was subsequently shipped by the said company to the appellant at Baltimore City; that the course of dealing at and before that time, was as follows, viz., the Mill Company (whose place of business is in Winnebago City, Minnesota), at the time of shipment, would draft for the value of the shipment, attach thereto the bill of lading; these drafts usually arrived a few days before the goods; and the appellant, as he needed the flour, would call at the banks where the drafts were placed by the company and were payable, and `take them up;' that all of the flour so shipped `was booked by the Mill Co. as an absolute sale.'" Included in the appellant's offer, was evidence of other sales and shipments by the Mill Company, showing the general course of dealing between the parties, and also copies of the letters and telegrams of the parties respecting such sales, and of the checks of the appellant in payment of the several drafts of the Mill Company on the appellant. There also appears in the proceedings, the bill of lading and the draft attached thereto, which the parties agree may be considered by this Court, as if included in the offer of the appellant, and incorporated in the bill of exceptions. The Court below rejected this offer, and the verdict and judgment being for the appellee, the appellant has appealed.

The action being in replevin, the burden is upon the appellant to prove an immediate right to the possession of the goods; and, inasmuch as the appellee has pleaded property in the Winnebago City Mill Company, he must show a title superior to that of the company. Lamotte v. Wisner, 51 Md. 561.

The question, therefore, now before the Court, is to determine whether the facts contained in the offer, would be sufficient, if properly proved, to enable a jury or the Court sitting as a jury, to find that the title or the right of possession, has passed from the Mill Company, and become vested in the appellant.

The flour in dispute was shipped from Winnebago City on January 21st, and about the same time the Mill Company forwarded by mail to the appellant, an invoice with the following words appended thereto, viz., "we have drawn on you at arrival of goods for the proceeds, with railroad receipt attached to the draft." By reference to the "receipt," or bill of lading, it appears that the flour was consigned to the company itself. Over the name of the consignee, the Mill Company, is written the word "order," and below, the words, "notify W.L. Hopkins;" without any other condition or limitation. One of the conditions of the shipments, as appears printed on the bill of lading, is, that "if the word `order' is written thereon before or after the name of the party to whose order the property is consigned without any condition or limitation other than the name of the party to be notified of the arrival of the property, the surrender of this bill of lading, properly endorsed, shall be required before the delivery of the property at destination." The bill of lading, with draft attached, was sent by the Mill Company to the Western National Bank at Baltimore, whose duty it was retain possession of it until the appellant had paid the draft. When such payment was made, the appellant was entitled to receive the bill of lading, and upon proper endorsement, by the terms of the bill itself, and according to the usual course of dealings between the parties, the appellant was in a position to demand the possession of the goods. The flour arrived in Baltimore in due time, and the appellant was notified thereof by the railroad company. He made no effort, however, to pay the draft until the fourth of May. On that day he tendered his check, but the bank refused to accept it, and notified him that it had received notice on the previous day, from the Mill Company not to accept payment of the draft from him. It also refused to deliver to him the bill of lading, although both the bill and the draft were then in its possession.

It is contended on the part of the appellant, that all the facts, as we have stated them, establish the following propositions, viz.: 1st, that a sale had been effected between the Mill Company and the appellant, whereby the title to the property became vested in the appellant; 2nd, that the agreement necessarily implied, amounted to a complete contract of sale, with the stipulation that delivery of possession was dependent upon payment or tender of purchase price; and 3rd, that when the appellant tendered his check in payment of the draft (having sufficient funds in bank to meet it), he had the right to the immediate possession of the flour.

The general rule applicable to the passing of title to personal property has been well stated in Dixon v. Yates, 5 B. Ad. 313. In that case, it was said by PARKE, J., "where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained; but, when, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee." The fundamental principle upon which this rule rests is to carry out the intention of parties who have agreed "with respect to a thing capable of identification, that for an agreed price the title to the thing shall pass from the vendor to the vendee."Cheney v. Eastern Trans. Line, 59 Md. 565.

When the contract is express, there can be no difficulty; but when the evidence with respect to it is meagre, Courts must endeavor "to ascertain the intent of the parties and apply that test as a controlling principle." Hall Long v. Richardson,16 Md. 412. So also where the agreement is for a sale of the property, and the performance of other things, it must be ascertained whether the performance of any of those things is meant to precede the vesting of the title in the vendee.Blackburn on Sales, 151, cited in Benjamin on Sales, book 3, chapter 3. Accordingly, it is held that where a buyer purchases a specific quantity of goods to be shipped to him from a distant place, and the seller segregates and appropriates to the contract the specified quantity by delivering them to a carrier, the law presumes that to be equivalent to delivery to the vendee (16 Md. 412, supra); and in such case the goods become the property of the vendee, although they are to be paid for on arrival (Farmers' Phos. Co. v. Gill, 69 Md. 545), the carrier being regarded as the agent of the vendee to receive it. But if the vendor undertake to make delivery himself at a distant place, the carrier becomes the agent of the vendor, and the property will not pass until delivery is made. In both such cases, the inference arising from the facts stated, may be rebutted by other circumstances, which tend to show what the interest of the parties really was. Dows v. Nat. Ex. Bk. ofMilwaukee, 91 U.S. 618-637; Farmers' Phos. Co. v. Gill,supra. In the case last cited, where the goods had been consigned to the vendee, after stating the general rule, that a bill of lading operates as a transfer of the property to the party in whose favor it is drawn and to whom it is delivered, the Court remarks that "if the vendors in that case had wished to prevent the property from passing, and to retain the right to deal with it after shipment and while in transitu, they should by the bill of lading have made the cargo deliverable to their own order, and have forwarded the same to an agent of their own to retain it, until the cargo had been finally delivered, weighed, tested, and paid for in Baltimore." In Kentucky Ref.Co. v. Globe Refining Co., 42 L.R.A. 358, the Court said, citing from Alderman v. Eastern R. Co., 115 Mass. 233, "that when goods are consigned deliverable to the order of the consignor, and the bill of lading, with a draft for the price drawn on the purchaser of the goods attached, is forwarded for collection, the purchaser has no title to the goods until the draft is paid, and the bill of lading is endorsed to him." InMerchants' Nat. Bk. v. Bangs, 102 Mass. 205, it was said that a vendor "may take the bill of lading or the carrier's receipt in his own or in some agent's name to be transferred on payment of the price, by his own or his agent's endorsement to the purchaser, and in all cases when he manifests an intention to retain the jus disponendi the property will not pass to the vendee." Hardy v. Munroe, 127 Mass. 64; Emory v. Irving,c., 25 Ohio, 360; Penn. R.R. Co. v. Stern, 119 Pa. St. 29.

In this case the Mill Company consigned the goods deliverable to its own order; it forwarded the bill of lading, with the draft attached; all parties understood that the former was not to be given up by the bank until the latter had been paid, and by the terms of the bill of lading it was provided that the flour was not to be delivered until the bill of lading properly endorsed was presented to the carrier. We find nothing in the offer that can be effectual to modify the legal inferences to be drawn from these facts. It is stated that the appellant ordered the flour "without any agreement as to the terms of payment." But it is plain that it was accepted upon the terms that had characterized their entire dealing — which were, that the flour should remain in the possession of the carrier, subject to the order of the Mill Company, until the draft had been paid. The whole course of these dealings shows that the Mill Company was to pay the freight and deliver the flour in the city of Baltimore, and that the appellant was not to be entitled to possession until after the draft had been paid. The invoice cannot have the effect of modifying the contract, which the facts so clearly imply. The purpose and effect of that was to give a description and cost of the goods; it was not "a bill of sale nor evidence of a sale" (Dows v. Ex. Bank, supra; Sturm v.Baker, 150 U.S. 328), and even though in some cases it may be useful, in connection with other facts, to show the intent of the parties, yet in this case no inferences can flow from it tending to alter or change the intent inferrible from the circumstances already stated, for the reason, that appended to the invoice, as a part of it, was the explicit statement that the Mill Company had drawn on the appellant at arrival for the proceeds "with railroad receipt attached to the draft."

Upon the whole offer, it seems to us clear that it was not the intent of the parties that the title to the flour should pass to the appellant until the draft had been paid. The judgment must therefore be affirmed.

Judgment affirmed.

(Decided December 6th, 1899).