Forcheimer v. Stewart
| Citation | 22 N.W. 886,65 Iowa 593 |
| Parties | FORCHEIMER & CO. v. STEWART |
| Decision Date | 07 April 1885 |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.
ACTION to recover upon an alleged breach of warranty in a contract of sale of a certain lot of hams. There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiffs appeal.
REVERSED.
Sims & Cadwell, for appellants.
Sapp & Pusey, for appellee.
The plaintiffs are provision dealers residing and doing business in the city of Mobile, Alabama. The defendant is a pork-packer residing and doing business in the city of Council Bluffs, Iowa. In August, 1881, he entered into a contract through his broker, one O. Wilson, located at Mobile, for the sale of a large quantity of hams, and shipped the same on the nineteenth day of that month. The hams arrived in Mobile in due course of transportation, and in about ten days. The plaintiffs had paid for them on the twenty-fourth of that month, and while the same were in transit. They aver that they purchased the hams as "choice, sugar-cured, canvassed hams," and that when the same were delivered to them they were unsound tainted and unmerchantable. They introduced evidence tending to show that the hams, without their fault and without the fault of the carrier, had, upon their arrival at Mobile become sour, tainted and skippery. They also introduced expert evidence tending to show that hams properly cured, and properly treated afterwards, will keep through the summer months, and that, too, though transported to a southern market like Mobile; and that if they are choice hams they will keep even longer than that.
The defendant, on the other hand, introduced evidence tending to show that the hams were properly cured, and were in good condition when shipped at Council Bluffs. As to when, if at all, the hams became unsound, there was no direct evidence whatever. As will be seen, it became important to determine with what warranty, if any, the hams were sold and delivered and if with a warranty, whether the hams delivered were of the quality warranted at the time they were delivered; and in this inquiry it will be seen that there was involved another, and that is as to the time when the hams should be deemed to have been delivered. The plaintiffs contend that there was an express warranty that the hams were choice, sugar-cured, canvassed hams. The defendant denied that there was any express warranty. Again, the plaintiffs contend that the delivery to them took place when the hams were received by them from the carrier at Mobile. The defendant contends that the delivery to them took place when the hams were delivered to the carrier at Council Bluffs. Respecting this matter of delivery, the undisputed fact appears to be that the defendant took from the carrier a bill of lading, or shipping receipt, in his own name, whereby the hams were made deliverable to him or his order. This bill of lading the defendant indorsed in blank; to it he attached a sight draft, which he drew upon the plaintiffs, for the purchase price of the hams, and delivered the same to his banker in Council Bluffs in the usual way of such business, and received credit therefor in his bank account. The draft and bill of lading were forwarded by the bank to its correspondent in Mobile, and by the latter were presented to the plaintiffs, who, after some hesitation and negotiation, paid the draft and received the bill of lading.
I. Upon this state of facts the court instructed the jury in these words: "When the bill of lading was delivered to the plaintiffs, the property in the merchandise was vested in them, and the carrier who had it in possession for transportation was their agent, and the delivery of the goods was completed at that time, and the inquiry must be whether at that time the goods corresponded in quality with the warranty." The giving of this instruction is assigned as error. Where the shipper retains the right of disposing of the property while in the hands of the carrier, there is, of course, no delivery to the consignee. The object, usually, which the shipper has in taking the bill of lading in his own name, when he does so, is to enable him to retain such right. What the defendant's object was, there can be no doubt. He proceeded at once to transfer the bill of lading to the bank as security for the draft, the amount of which was credited to him in his bank account. There was, then, no delivery made to the plaintiffs by delivery to the carrier at Council Bluffs. The rule is very clearly expressed in Merchants' Nat. Bank v. Bangs, 102 Mass. 291. COLT, J., said: See, also, Benj. Sales, § 399, and cases cited.
Having reached the conclusion that the goods were not delivered by the defendant to the plaintiffs by delivery to the carrier at Council Bluffs, we come to inquire whether they were delivered by delivery to them, later, of the indorsed bill of lading. In our opinion they were. The defendant, from the time of such delivery, had no right or interest in the goods, and the jus disponendi, or right of disposing of the goods, had become absolute in the plaintiffs. The goods could not be sold nor incumbered by the defendant, nor properly taken upon attachment or execution by his creditors This being so, it would seem to follow that the risk of damage from the elements, in the absence of any agreement to the contrary, should be borne by the plaintiffs.
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