Jones v. Bradner , 10 Barb. 193 ( 1850 )

By the Court, Edwards, J.

In the month of August, 1845, the defendants in error, who were merchants, residing and doing business in the city of New-York, received an order for goods from Riley & Walker, of Florida. The order contained no particular directions as to the manner in which the goods were to be forwarded. The defendants proceeded to select the goods ordered, and a portion of them, after they had been packed in boxes and bales, were placed on board the brig Republic. At the time the goods were thus placed on board the brig, the cart-man took from the master two receipts, dated September 19th, 1845. After the receipts had been given, and on the same day, the goods were taken by the sheriff of the city and county of New - York, by virtue of a warrant of attachment, issued against the property of Riley & Walker, pursuant to the provisions of the statute, applicable to non-resident debtors. After the goods had been thus attached, they were replevied by the defendants in error. On the trial of the cause, the judge charged the jury, that there had not been such a delivery of the goods as rendered them liable to an attachment issued against the property of Riley & Walker. To this charge, the plaintiff in error excepted.

It appears from the testimony, that all the goods ordered had not been selected and placed on board the vessel, and that no bill of lading had been given. The testimony further shows, that when goods are shipped on board a vessel to be sent coast-wise or abroad, it is the practice and custom in the city of NewTork, to give a receipt, similar to those which were given in this case, for each load, as it goes on board; and when all the goods are on board; to deliver up the receipts, and get a bill of lading, which makes the goods deliverable to the shipper’s order, or to such other person as he may direct.

In the case of Craven et al. v. Ryder, (6 Taunt. 433,) the plaintiffs had contracted to sell certain goods upon credit, which were to be placed on board a ship for Hamburg. The goods were placed on board the vessel of the defendant by a lighter-man, and when the loading was complete, the mate of the vessel gave an acknowledgment in writing, that the goods were received on board the ship for Hamburg, for and on account of the plaintiffs. The shippers afterwards reclaimed the goods; and upon a refusal to re-deliver them, brought an action of trover. Upon this state of facts, the court held that the vendors had never parted with their right to the possession of the goods ; and that the person who held the lighterman’s receipt was entitled to a bill of lading. In the case before us, the receipts state that the goods were received from the shippers. In that case, the receipt stated that the goods were received for and on account of the shippers. But the court said that they did not mainly rely on the form of the receipt. In the case of Ruck v. Hatfield, (5 Barn, & Ald. 632,) a similar rule was recognized.

It would seem that these cases establish the principle, that no person, except the holder of the receipts,11 is entitled to a bill of lading; and if the shipper is also the holder of the receipts, he must necessarily have it in his power to direct to whom the bill of lading shall be made out; or, in other words, to whom the goods shall be deliverable; and until he does so, the right of possession must remain in himself.

The counsel for the plaintiffs in error relied upon the case of The People v. Haynes, (14 Wend. 546,) as establishing a different doctrine. It will be seen by a reference to that case, that Haynes made the purchase of the goods in person; that he selected them himself; had them laid aside ; boxed and directed to himself at Boston, which was his place of residence; and that by his direction they were sent to the steamboat for Providence. It was also proved on the trial of the cause, that it was customary when the steamboat arrived at Providence, to deliver the goods to a Boston wagoner, who took them to Boston, and there distributed them according t'o the marks and addresses; and that a surrender of the receipt was not required before a delivery of the goods. In the case before us, the facts are very different. Here the purchaser lived at a distance; he had not selected the goods; he had not given any directions as to the manner in which they were to be sent to him; the receipt did not state to whom the goods were to be delivered; a surrender of the receipt was necessary before a bill of lading could be received. When all the circumstances of the case are considered, we do not think that the rule laid down in The People v. Haynes, infringes upon that which is laid down in the English cases above cited.

The next exception taken by the plaintiffs in error, was to the admissibility of the testimony as to usage and custom. We do not think that any rule of evidence was violated by the admission of this testimony. It did not profess to vary the terms of the receipt, nor to control or alter a rule of law. Its tendency was merely to show the general course and practice of trade in similar cases, in order to prevent an extension of the terms of the receipts, by construction and inference. The receipts did not, upon their face, show a delivery; and the evidence of usage went to prove, that in practice such receipts had been regarded as nothing more than the evidence of the holder’s right to a hill of lading, which should designate to whom the property should he deliverable, and who should be entitled to receive it. In Goodyear v. Ogden, (4 Hill, 104,) and Dawson v. Kittle, (Id. 107,) the rule was carried farther than it has been in this case.

We do not think that the objection which was made on the argument, to the form of the action, is well taken, even if that question could be raised here.

Judgment affirmed,