Brewer Lumber Co. v. Boston & A.R. Co.
| Decision Date | 01 June 1901 |
| Citation | 60 N.E. 548,179 Mass. 228 |
| Parties | BREWER LUMBER CO. v. BOSTON & A. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E. N. Hill, for plaintiff.
Frank Paul and Fred'k F. Haskell, for defendant.
This case comes before us in a somewhat unsatisfactory manner. It is a report of a justice of the superior court, before whom the case was tried without a jury. The report sets forth certain facts, certain evidence, and requests for rulings by both parties, which were passed upon and a general finding for the plaintiff, without any findings of specific facts. The report concludes as follows: 'Upon the foregoing evidence the court found for the plaintiff, and now, with the assent of both parties, reports the case for the determination of the supreme judicial court, both parties agreeing that if, upon the foregoing evidence, the rulings and refusals to rule and finding were right, judgment is to be entered for the plaintiff in accordance with the finding otherwise, judgment is to be entered for the defendant.' The word 'evidence' is shown by another paragraph in the report to include statements of facts, documentary evidence, and testimony of witnesses. As this is an action at law, the only question can be whether the evidence warranted the finding. We have no right, if the testimony of witnesses is conflicting, to decide the case upon a view of the testimony which we might take if the evidence were before us for our decision. The action is replevin of a car load of lumber sold by the plaintiff to George A. Paul, a lumber dealer at Boston, and forwarded by the plaintiff, over the defendant's railroad, from East Saginaw, Mich., to him. The plaintiff claimed the lumber by reason of the exercise of the right of stoppage in transitu, and the action was defended by the trustee in bankruptcy of Paul. The lumber was sold on January 26, 1898, for the sum of $678.28, Paul to pay the freight, and to deduct it from the amount of the invoice. The terms of the payment were to be 2 per cent. off for cash if paid within 10 days, of a three-months note from date of invoice. On January 31, 1898, the lumber was duly shipped, consigned to Paul, and the invoice forwarded to him. On February 19, 1898, the lumber arrived at the Huntington avenue yard of the defendant in Boston, and Paul was notified of the fact by the agent of the defendant by a postal card, which, in addition to the notice of the arrival of the car, contained the following: 'If not unloaded within ninety-six hours from February 19, six o'clock p. m. of this date, Sundays and legal holidays not included, the freight will be subject to storage charges, as per rules of the Massachusetts and New Hampshire Car Service Association.' On March 4, 1898, the defendant stored the lumber in one of its sheds at its Huntington avenue yard, and notified Paul of the fact. On March 10, 1898, Paul sent a promissory note for $300, dated the same day, and payable to the plaintiff's order at any bank in Boston. This note was indorsed by the plaintiff payable to order of Second National Bank, and under the name of the plaintiff were the letters This note was protested on June 10, 1898. On March 11, 1898, the plaintiff sent a letter to Paul, stating that it had placed the $300 note to his credit, and calling his attention to the fact that the date of the note, March 10th, was not in accordance with the contract, which called for a three-months note from the date of the invoice, and requested a settlement for the balance. On March 26, 1898, Paul sent the plaintiff a promissory note for $313.68, dated that day, and payable to the order of the plaintiff at any bank in Boston. This note was indorsed in the same way as the other, and it was protested on June 28, 1898. These notes, the report states, were sent to the plaintiff in payment for the full value of the lumber, with interest added from the date of the invoice to the dates of the notes, less freight, which was to be deducted from the amount of the invoice. On receipt of the second of the notes, the plaintiff sent to Paul a statement of account dated January 31, 1898, stating the terms of sale, the items of the lumber, and the amount due less freight, being $607.61. Across the face of the paper was written: 'Received settlement as follows: 3 mos. note from March 10/98, $300.00; 3 mos. note from March 28/98, $313,68,-$613.68.' This paper also contained a request for the freight receipt, which was not sent, nor was the freight paid by Paul. On April 9, 1898, Paul made a common-law assignment of all his property for the benefit of his creditors, and the assignee accepted the trust. The plaintiff was notified of the assignment. and a representative of the plaintiff attended the first meeting of Paul's creditors. On April 16, 1898, the plaintiff gave notice to the defendant not to deliver the lumber to Paul, and requested the defendant to keep it on storage for it, claiming the right of stoppage in transitu. On July 27, 1898, the plaintiff's attorney tendered the notes of March 10th and March 28th to Paul's assignee, who refused to receive them; and at the trial of this case they were again tendered and refused. This action was brought on August 30, 1898, and before obtaining the lumber the plaintiff was obliged to pay the defendant its claim for freight and storage. We find it unnecessary to state the testimony of witnesses at this point, though we shall refer to some of it hereafter. There being no contention that Paul was not insolvent, the principal questions of law in the case are whether the transit had ended, and what the effect was of giving and receiving the notes.
1. As to the first question, we are of opinion that the transit was not ended when the plaintiff asserted its right to the lumber. It makes no difference whether the goods are in the hands of the carrier qua carrier, or whether he puts them, at the journey's end, in a warehouse. In other words, the transit does not terminate until the goods arrive in the possession, actual or constructive, of the purchaser. Seymour v. Newton, 105 Mass. 272, 275; Mohr v Railroad Co., 106 Mass. 67; Umber Co. v. O'Brien, 123 Mass. 12; Inslee v. Lane, 57 N.H. 454. So long as the carrier, or a warehouseman acting for him, is in possession of the goods, he has a lien for the freight or other charges. The purchaser is not in possession or entitled to possession until he discharges the liens, and the right of stoppage in transitu remains. See Benj. Sales (7th Am. Ed.) 914 (2), and cases cited. While the position of the carrier may be changed to that of bailee or agent for the purchase of the goods, yet that is a question of an agreement between the carrier and the purchaser. Jackson v. Nichol, 5 Bing. N. C. 508; James v. Griffin, 2 Mees. & W. 623; Ex parte Barrow, 6 Ch. Div. 783; Ex parte Cooper, 11 Ch. Div. 68; Kemp v. Falk, 7 App. Cas. 573, 584; McLean v. Breithaupt, 12 Ont. App. 383; Calahan v. Babcock, 21 Ohio St. [179 Mass. 232] 281, 8 Am. Rep. 63; Jeffris v. Railroad Co., 93 Wis. 250, 67 N.W. 424, 57 Am. St. Rep. 919, 33 L. R. A. 351; Symns v. Schotten, 35 Kan. 310, 10 P. 828. In the case before us an attempt was made by the trustee in bankruptcy to show that such an agreement was made, but the testimony of Paul falls far short of this. He testified that within a few days after receiving the postal card of February 19th he telephoned to the defendant to store the lumber. He was then asked, 'What did they say to you?' and his answer was, "All right,' or something to that effect.' He was then asked, 'Will you say that they said anything?' and answered: He was again asked, 'What did they say?' and answered, 'I don't know.' On redirect examination he testified that he did not know whether he received any reply to his telephone message, and, in answer to the next question but one testified that he did receive a reply. It seems to us that the judge might well disregard this testimony as too uncertain and vague for consideration. But if it was to be taken into consideration, the testimony of Turner, the freight agent of the defendant in charge of the Huntington avenue yard, was contradictory to that of Paul. He testified that he remembered the car of lumber, and stored it in the ordinary course of business; and that he received no directions from any one to store it. If the testimony of Paul can be said to contradict this, it was for the judge sitting without a jury to decide what the fact was. We are therefore of opinion that the judge rightly refused to rule, as requested by the defendnat, that the...
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