First Nat'l Bank v. Dearborn

• Decision Date: 18 June 1874
• Citation: 115 Mass. 219
• Parties: First National Bank of Green Bay v. John B. Dearborn
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

115 Mass. 219

First National Bank of Green Bay v. John B. Dearborn

Supreme Court of Massachusetts

June 18, 1874

Argued March 4, 1873.

Suffolk. Replevin of one hundred barrels of flour. At the trial in the Superior Court, Dewey, J., with the consent of the parties withdrew the case from the jury, and reported it to this court in substance as follows:

At the trial the following facts appeared: R. G. Parks, residing and doing business in Green Bay, Wisconsin, under the name of R G. Parks & Co., was engaged in the manufacture of flour at a mill in Neenah, in the State of Wisconsin, about thirty or forty miles from Green Bay. The plaintiff bank had its place of business at said Green Bay. Prior to the transactions, in regard to the flour in question, Parks had forwarded flour to Harvey Scudder & Co., at Boston, and drawn drafts upon them, only a part of which had been accepted and paid. On October 17, 1870, Parks applied to the plaintiff in Green Bay to advance $ 400 upon the one hundred barrels in controversy, which the plaintiff agreed to do. Parks then left with the plaintiff the following draft addressed to Harvey Scudder & Co. of Boston: "$ 400. Office of R. G. Parks & Co., Green Bay, Wisconsin, October 17, 1870. At sight, pay to the order of M. D. Peak, cash, four hundred dollars, value received, and charge the same to account of R. G. Parks & Co." Written in pencil across the face of the draft were these words: "Hold this till to-morrow when I will give you B. L."

On the following day Parks delivered to the plaintiff the following written instrument: "Chicago & Northwestern Railway Company, Neenah, October 17, 1870. Received from R. G. Parks & Co. one hundred barrels of flour, branded W.--Rec. in rain. Consigned to Harvey Scudder & Co., Boston, Mass., via Green Bay. To be forwarded to Ft. Howard Station, upon the terms and conditions of the published tariff of this company. A. H. Boardman, Agent." The plaintiff thereupon placed to the credit of Parks on their books the sum of $ 400.

It was admitted by the defendant that Parks delivered the draft and the railroad receipt to the plaintiff for the purpose of securing the advance of $ 400 on the flour; and that it was the understanding that by that transaction the property was transferred to the plaintiff as security for its advance.

The flour, which in fact was at the time of the above transaction the property of Parks, and was at his mill in Neenah until it was delivered to the railroad company, and had not been seen by the plaintiff or Parks, had been delivered to the agent of the railroad company by the agent of Parks, on October 17, prior to the signing of the railroad receipt.

The plaintiff forwarded the receipt and draft to Boston, where the former was presented to Harvey Scudder & Co., who declined to accept it, giving as a reason therefor that they had not received the bill of lading; and they never in fact made any advance or payment on account of the flour, or received or offered to receive the flour. Shortly before the flour arrived at Boston, one of the firm of Harvey Scudder & Co. informed a member of the firm of Scudder, Bartlett & Co., who were creditors of Parks, that the flour was likely to arrive, and that Harvey Scudder & Co. had no claim upon it; and upon its arrival at the depot in Boston, about November 7, 1870, the defendant, a deputy sheriff attached it as the property of Parks & Co., on a writ in favor of Scudder, Bartlett & Co., and the defendant held it under said attachment at the time of service of this writ.

If upon these facts the plaintiff is entitled to maintain the action, judgment is to be entered for the plaintiff, with nominal damages, otherwise for the defendant.

Judgment for the plaintiff.

R. M. Morse, Jr. & R. Stone, Jr., for the plaintiff.

J. W. Hubbard, for the defendant, contended, 1. that the transfer to the plaintiff was void as against the creditors of Parks under the law of Wisconsin, and cited Rev. Sts. Wisc. c. 107, § 5; Whitney v. Brunette, 3 Wisc. 621; Menzies v. Dodd, 19 Ib. 343; Mayer v. Webster, 18 Ib. 393; Place v. Langworthy, 13 Ib. 629: 2. That after the delivery to the railroad for Scudder & Co., Parks had no power to deliver the flour to the plaintiff.

Ames, J. Colt, Endicott & Devens, JJ., absent.

OPINION

Ames

It appears that when the draft was discounted and the receipt delivered to the plaintiff, both parties understood that it was an advance by the bank, "on the flour." Both parties intended that the property should be, and understood that it was, by that transaction, transferred to the bank, as security for that advance. The discounting of the draft was a sufficient consideration for such a conveyance. If there was a sufficient delivery of the property to the plaintiff, there was nothing to hinder the intention of the parties from going into full effect.

The character and situation of the property at the time of this transaction were such that an actual delivery was impossible. A constructive or symbolical delivery was all that the circumstances allowed, but a delivery of that nature, if properly made, would have been sufficient to give to the plaintiff corporation the title to the property, and an immediate right of possession, which it could maintain, not only against Parks himself, but also against his creditors. Tuxworth v. Moore, 9 Pick. 347. Fettyplace v. Dutch, 13 Pick. 388. Whipple v. Thayer, 16 Pick. 25. Carter v. Willard, 19 Pick. 1. The delivery of the...