Farmers' Phosphate Co. v. Gill
| Citation | 16 A. 214,69 Md. 537 |
| Parties | FARMERS' PHOSPHATE CO. v. GILL. |
| Decision Date | 14 December 1888 |
| Court | Court of Appeals of Maryland |
Appeal from superior court of Baltimore city.
Action of trover by the Farmers' Phosphate Company against John Gill, assignee of Lymington Bros. & Co. Judgment for defendant, and plaintiff appeals.
Argued before MILLER, IRVING, BRYAN, and MCSHERRY, JJ.
Fielder C. Slingluff, for appellant.
Wm. A. Fisher, Wm. C. Bruce, and D. K. Este Fisher, for appellee.
On the 4th of June, 1887, the firm of Lymington Bros. & Co., of Baltimore, manufacturers of fertilizers, made an assignment of all their property to Mr. John Gill for the benefit of their creditors; and the question in this case is whether a cargo of South Carolina river rock phosphate passed to the assignee under this assignment. The question is raised by an action of trover brought by the Farmers' Phosphate Company, the vendor of the Lymingtons, against Mr. Gill their assignee, for the conversion of this property. The facts essential to be stated, and about which there seems to be no dispute, are as follows: The contract of sale, made in Baltimore on the 15th of February, 1887, by Mr Cottman, who was the broker for both vendor and vendee, is in these terms: The Lymingtons then, on the 12th of March, 1887, chartered a vessel to bring this cargo from Dale's creek, Coosaw river, S. C., to Baltimore, the charterers paying freight, etc. The vessel arrived at Dale's creek the latter part of April, and completed the loading of her cargo on or before the 7th of May. On this last-mentioned day the master made out a bill of lading, whereby he acknowledged the receipt of the cargo from the Farmers' Phosphate Company, to be delivered at Baltimore "unto Lymington Brothers and Co., or to their assignees." This the master delivered to the phosphate company, who indorsed it, "Deliver to the order of J. H. Cottman," (the brother who effected the sale,) and he indorsed it "Deliver to the order of Lymington Brothers and Co.," and delivered it to them on the 14th of May, one week after its date. It also appears that the Lymingtons insured the cargo for their own benefit. The vessel arrived at Baltimore on the 24th of May, and immediately commenced discharging her cargo at the wharf of the Lymingtons, they having paid the freight thereon. As the discharge proceeded the rock was weighed, and there was also an analysis of it made by a chemist, which showed that it was above the standard fixed by the contract. The discharge was completed on the 31st of May, and on the same day Cottman made and sent to the Lymingtons a bill for the phosphate. Not receiving any reply for several days, he telephoned them on the morning of the day on which they had executed their assignment, to know whether they were going to pay for the cargo in cash or by note, and received a reply that they had something to say to him on the subject. He immediately went to their office, and was surprised to learn they had made an assignment. He then asked them to give him their note for the cargo, but they declined to do this, as they did not think it would be right for them to do so after they had assigned their property for the benefit of all their creditors. Subsequently, on the 9th of June, the phosphate company, by their counsel, made demand on Mr. Gill, the assignee, for the property, and on the following day the Lvmingtons wrote and mailed a letter to the company, inclosing their note for the cargo, made out in accordance with the terms of the contract of sale; but the company, declining to receive this note, returned it to the assignee, and brought this action of trover.
Upon these facts the question is, was the title to this property vested in the Lymingtons when they executed their assignment, or was it still in the phosphate company, the vendor? The question is an interesting one, and has been exceedingly well argued. On the part of the appellant company it is contended that by the terms of the contract the sale is conditional, and that no title vested in the buyer because the condition of paying by note or in cash had not been complied with or waived. On the other hand, counsel for the appellee deny that such is the proper construction or effect of the contract, and contend that the title passed by delivery of the cargo on board the buyer's vessel at Dale's creek, and, if not by such delivery alone, it clearly did when accompanied or followed by insurance for the buyer's benefit, and transmission to them of the bill of lading. We think the law is well settled that where a buyer purchases or orders 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 vessel designated by the buyer, or, in the absence of such designation, to a common carrier, the mere fact that the contract contains a stipulation that they are to be paid for by note or in cash on arrival, does not prevent the title from passing, or make either payment or arrival a condition precedent thereto. In such case the goods become the property of the vendee, and are at his risk from the time they are put on board the vessel. Magruder v. Gage, 33 Md. 344; Appleman v. Michael, 43 Md. 281; Dutton v. Solomonson, 3 Bos. & P. 584; Fragano v. Long, 4 Barn & C. 219; Alexander v. Gardner, 1 Bing. N. C. 671. In the case last cited there was a stipulation in the contract that the goods were to be paid for "by a bill at two months from the date of landing." The goods were shipped from Sligo, in Ireland, to London, and while in transit were lost or damaged by shipwreck. In an action by the vendor against the vendee for goods bargained and sold, this term of the contract was relied on by the defendant; but TINDAL, C.J., said "the object of that stipulation was merely to fix the time of payment, and not to make the landing a condition precedent," and added that for that point it is enough to refer to the decision in Fragano v. Long. In this view all the other judges concurred.
If therefore, there was no other stipulation in the contract, the case would be free from difficulty. But there are two other clauses introduced for the purpose of ascertaining...
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