Fabrell v. Richmond & D. B. Co

• Decision Date: 18 March 1889
• Citation: 102 N.C. 390,9 S.E. 302
• Court: North Carolina Supreme Court
• Parties: Fabrell et al. v. Richmond & D. B. Co.

9 S.E. 302

(102 N.C. 390)

Fabrell et al.

v.Richmond & D. B. Co.

Supreme Court of North Carolina.

March 18, 1889.

Sale—Stoppage in Tbansitu.

1. The fact that at the time of a sale of goods the vendee was insolvent will not defeat the right of stoppage in transitu of the vendor, if the latter was not aware of such insolvency.

2. Such right cannot be defeated before actual or constructive delivery of the goods to the consignee by a levy of an attachment upon the property by creditors of the consignee.

3. A clause in a bill of lading by which the carrier has a lien upon goods shipped for all arrearages of freight and charges due by the owners or consignees on other goods will not enable the carrier to hold the goods on account of freight due from the vendee on preceding shipments, to the prejudice of the vendor's right of stoppage in transitu.

4. Where goods shipped under such a bill of lading have reached their destination, and are stored awaiting delivery to the consignee, evidence that the latter told the carrier to hold the property as security for arrearages of freight due from him is not sufficient to go to the jury on the question of delivery, so as to defeat the right of stoppage in transitu; there being no actual change of possession of the property, and no evidence that the carrier made any response to the offer of the consignee.

Appeal from superior court, Durham county; Mebbimon, Judge.

Action by Farrell & Co. against the Richmond & Danville Railroad Company. Judgment was given for plaintiffs, and the defendant appeals.

C. M. Bushee, for appellant. E. C. Smith and W. W. Fuller, for respondents.

Shephebd, J. This was a civil action tried before Merrimon, J., and a jury at June term, 1888, of the superior court of Durham county. The plaintiffs alleged, in substance, that they were residents of Philadelphia, Pa.; that they sold a safe on credit to Robertson & Rankin, of Durham, N. C.; that they delivered it to the defendant com-pany for transportation to Durham in said state, directed to said Robertson & Rankin; that after said shipment, and before its delivery to the purchasers, the plaintiffs learned that the purchasers were insolvent, and that they notified the defendant not to deliver the safe to said purchasers, or any other persons but the plaintiffs, at the same time tendering to defendant the freight and all other charges on said safe, and demanding the delivery thereof; that defendant refused to surrender said safe, but retains the same wrongfully, etc. There was no objection to the issues. Only so much of the answer of the defendant as relates to them and the exceptions will be | stated. The answer denied that defendant wrongfully withheld the safe from the plaintiffs, and alleged that, Robertson & Rankin being indebted to defendant in the sum of $130, defendant sued out a warrant of attachment against the said property before defendant had any notice of the plaintiffs' claim on said safe, and before any demand was made by them for the same, and that under the judgment and execution in said proceeding defendant purchased said safe. Defendant also alleged that, after the safe was received at its warehouse in Durham, it was delivered to Robertson & Rankin, and by them delivered to John A. Holt, agent of defendant at Durham, to be held by him as security for certain indebtedness then due and owing to the defendant by the said Robertson & Rankin.

The following issues were submitted to the jury: "(1) Did the defendant deliver the safe to Robertson & Rankin? Answer. No. (2) If it was delivered, did the plaintiffs demand possession before it was delivered, and tender freight and charges, as alleged in the complaint? A. Yes. (3) What damage, if any, have plaintiffs sustained? A. One hundred dollars, with interest from September 10, 1885."

The plaintiffs introduced the deposition of Jordan Matthews, as follows: "I am a member of the Arm of Farrell & Co. The other members of the firm are John Farrell and George L. Remington. The business of the firm is manufacturing and selling fire-proof and burglar-proof safes. Our agent in May, 1885, for the state of North Carolina, was E. F. Hall, of Greensboro, N. C. Through him we sold a No. 5 Champion safe at one hundred dollars, at Philadelphia, to the firm of Robertson & Rankin, of Durham, N. C, upon an order dated May 21, 1885, signed by Robertson & Rankin. (Witness produces and identifies the order referred to in Exhibit A.) By the term ' at Philadelphia, ' which I have just used, I mean that we deliver the safe free on board at Philadelphia, and the purchaser pays the freight. (We delivered the safe to the steam-ship company named in theorder, only in the capacity of a common carrier. When the safe was shipped we believed Robertson & Rankin to be solvent; otherwise we would not have shipped it.) I did not personally stop the delivery of the safe. (That I believe was done by our agent, Mr. Hall. It was within the scope of the authority given by us to the said agent to stop the delivery of any safe shipped to any person, upon the discovery that the vendee was insolvent.) Robertson & Rankin have never paid us a cent for this safe. (We have taken no security for the payment of the safe, except the printed clause in the order reserving the title to us until the safe should be paid for.)" The defendant objected to that portion of the foregoing testimony embraced within brackets. The court overruled the objections, and permitted the entire deposition to be read, and the defendant excepted. No point was made as to the right of the defendant to object, it being admitted that by an agreement made when the deposition was opened the defendant had the right to make the objections on the trial.

"Exhibit B.

"The Associated Railways of Virginia and the carolinas — piedmont alr Line. Bill of Lading.

"Philadelphia, 6-14, 1885.

"Received by Philadelphia and Richmond S. S. Line, (The Clyde S. S. Co.,) of Farrell & Co., under the contract hereinafter contained, the property mentioned below, marked and numbered as per margin, in apparent good order and condition, (contents and value unknown,) viz.:

"Marks and numbers: One iron safe, 1, 184.

"Shippers' weight. * * * * * *

"The several carriers shall have a lien upon the goods specified in this bill of lading for all arrearages of freight and charges due by the same owners or consignees on other goods."

The above extracts are all of Exhibit B which is necessary to an understanding of this case.

W. W. Fuller, witness for plaintiffs, testified that, a few days before the sale of the safe, E. F. Hall, plaintiffs' agent, and W. W. Fuller, plaintiffs' attorney, went to the depot of the Richmond & Danville Railroad Company, in Durham. Saw the safe in the warehouse, covered with bagging, marked to Robertson & Rankin, from Farrell & Co., and demanded the delivery to Hall and Fuller of the safe, at the time asking the amount of freight and charges thereon; which amount not being given, they tendered to Holt, agent of defendant, a sum of money not less than $10, and offered to pay said freight and charges. Holt refused to receive the money or to deliver the safe. Plaintiffs rested, it being agreed that they might later give evidence of the insolvency of vendees of the safe at time of demand by Hall and Fuller.

John A.. Holt, witness for defendant, tes tified that he was agent at Durham station for the defendant company, and was such agent at the time the safe was received at the warehouse. Robertson & Rankin were and had been receiving a lot of lumber, the freight on which amounted to considerably over $100, which was then owing by them to defendant company. Witness had been sending to them, demanding payment of these freight bills, and had seen them in person about it. "That he went down the side track we term ' Lumber Track, ' and found they had been taking off lumber after having been notified not to do so. That he had sent for Robertson, whom he knew to be the one attending to the firm's business. He came down to the warehouse, and witness met him at the upper end of the warehouse, where safe was standing. Asked him if I had not notified him time and again not to remove any lumber without first paying the freight. He said I had. I told him he had placed himself in a very bad situation, and that I was compelled to take steps against him. We were then standing right beside the safe, both of us leaning upon it. He said to Holt: 'Here is a safe I paid one hundred dollars for in Philadelphia. It is true I have disappointed you in my promises about coming to pay you those freight bills, but I have been disappointed myself in not receiving money.' He mentioned about having a large amount of money at several places, and said, pointing in the direction of Webb & Kramer's warehouse, that he was having an office put up there, and it would be completed the next day or the day after. He then said, placing his hand on the safe: 'I place this safe in your hands as security for what I owe, until the next day or the day after, when my office will be completed, and I will come and pay all freight bills, and remove the remnant of lumber and the safe, and take it over to my office.' I held the safe till some little time after that, when I got news that he had run away. This was before the time Mr. Fuller came after it, —some weeks before; may have been a month or two months, —considerable time. Don't remember exactly what time it was. Cross-Examination. The safe came about the 9th or 10th June; had been here three or four or five weeks before my conversation with Robertson. The defendant sold the safe on the 10th of same month, —either August or September. The place where Robertson came at the warehouse was the same place where the safe was first placed. Robertson & Rankin were notoriously insolvent here when Mr. Fuller came and made demand, and had been so long before. Defendant has no receipt from Robertson & Rankin for the safe. Defendant took out...