E. Hobart & Co. v. Littlefield Brothers

• Decision Date: 08 July 1881
• Citation: 13 R.I. 341
• Court: Rhode Island Supreme Court
• Parties: E. HOBART & COMPANY v. LITTLEFIELD BROTHERS.

13 R.I. 341

E. HOBART & COMPANY v. LITTLEFIELD BROTHERS.

Supreme Court of Rhode Island.

July 8, 1881

M., a cotton broker in Providence, Rhode Island, at the request of L., telegraphed January 19, to H., a commission merchant in Galveston, Texas, " L. offers 13 1/2 f. o. b. and freight for fifty bales; fill part if can't whole; " " " f. o. b." meant free on board.

January 21 the offer was accepted. January 24 the cotton was carried to the steamer's dock and a bill of lading was given January 26. The invoice described the cotton as " bought by H. by order of M. for account and risk of L."

The parties had before had similar dealings.

Part of the cotton was embarked, and the rest was burned on the dock January 29.

The steamer arrived at the dock January 24, and did not have time to discharge and reload its freight before the fire.

In an action by H. against L. to recover the price of the cotton burned:

Held, that the delivery to L. was complete and that H. should recover.

ASSUMPSIT. Heard by the court, jury trial being waived.

Edward C. Ames & Samuel Ames, for plaintiffs.

Tillinghast & Ely, for defendants.

POTTER J.

This is an action on the case, and the declaration contains counts for goods sold and delivered, for goods bargained and sold and the usual money counts. One of the defendant firm residing in Providence, January 19, 1880, called on J. Morgan, a cotton broker in that city, and at defendants' request, Morgan telegraphed to the plaintiffs, residing in Galveston, Texas, " Littlefield offers 13 1/2 f. o. b. and freight for fifty bales; fill part if can't whole." If it could be obtained for less the defendants were to have the benefit of it. Commissions, and all expenses except insurance, were to be included in this limit. The defendants did not insure. The parties had had similar dealings before.

The plaintiffs answered they could not fill the order then, but could in a day or two, and January 21 they telegraphed and wrote to Morgan to accept defendants' offer, that they could buy it, & c. Durfee, one of the plaintiff firm, testified that they could not fill the order before the 21st, that the cotton was drayed to the dock on the 24th, and a bill of lading given the 26th. January 27th the plaintiffs wrote defendants, notifying them of the purchase, and enclosing an invoice of bales of cotton, bought by Morgan for account and risk of defendants, On the 29th a part of the cotton was burnt on the dock, and this has led to the present suit. The steamer arrived at Galveston on the 24th, and had a large freight to discharge and to take in. The arriving freight was not all discharged, and only six bales of the cotton had been actually put on board when the fire took place.

The rules governing cases of this sort are plain, though not always easy of application. In general, a delivery of goods to a common carrier, and a fortiori, to one specially designated by the buyer, is a delivery to the buyer. Unless the seller has contracted to deliver them to the buyer at some particular place or in some particular manner, everything the seller has to do concerning delivery is then completed. Benjamin on Sales, 2d Eng. ed. 181; Ludlow v. Bowne, 1 Johns. Rep. 1, 15; Dunlop v. Lambert, 6 Cl. & Fin. 600, 620; 2 Kent Comment. *492, *494, *499; Garland v. Lane, 46 N.H. 245, 248; Hunter v. Wright, 12 Allen, 548.

Although the risk generally goes with the title or ownership, it does not always. See Gabarron v. Kreeft, 24 W. R. 146. Nor is the invoice conclusive. Shepherd v. Harrison, L. R. 5 H. L. 116, 129. But all the facts are to be considered so as to get at the intention of the parties, for it is that which governs.

In the present case the goods were delivered at the steamer's wharf. They were to be sent by steamer and there was but one line. That the officers of the vessel knew of their delivery on the wharf is evident from the fact that a part of the bales had been loaded. There was no need of any formal receipt or acceptance to bind the carriers. As common carriers, it was their duty by law to receive and carry them, if they had the means so to do.

Unless by some agreement, those who bring freight to a vessel are not expected or permitted to load it themselves. What amounts to a delivery to carriers may sometimes be a question of fact for a jury; ordinarily, delivery at their wharf, freight house, or warehouse, and bringing it to the notice of the servants of the carriers, would be so considered. A delivery at a wharf may be of itself an incomplete act, to be explained by what has preceded it or by what takes place subsequently. 1 Parsons on Shipping and Admiralty, 183. The M. K. Rawley, 2 Lowell's Decis. 447; British Columbia Sawmill Co. v. Nettleship, L. R. 3 C. P. 499, 502; Packard v. Getman, 6 Cow. 757; Railroad Co. v. Barrett, 36 Ohio St. 448.

No one would contend that if the cotton had been merely delivered on the wharf, and no information given to the master or his servants of the purpose for which it was delivered, he could be considered as having received it, either so as to bind his owners or as agent of the buyer.

When we are looking for decisions as to what constitutes delivery to the buyer, the question is apt to be confused by not distinguishing it from the receipt and acceptance required by the statute of frauds. That statute 29 Charles II. cap. 3, § 17, in force in England and in many of our States, requires in all sales of goods over a certain amount, where there is no memorandum in writing, that the buyer shall accept and actually receive a part of the goods, or shall give something in earnest to bind the bargain.

But in the present case the contract was in writing, and the question of receipt and acceptance cannot arise. And that provision was never in force in Texas, where the old Spanish law prevailed. Only one provision of the English statute, and that not affecting the present case, was enacted there in 1840. See Browne on Frauds; and this § 17 of the English statute was omitted from our Digest of Laws in 1798, and has never been reënacted in Rhode Island since.

But the offer was made and accepted in Texas; and if there is any difference of laws, the contract would be governed by the laws of Texas. But the principles of the common law as to sale and delivery of goods have been substantially adopted there. And we are to presume their law of contracts, & c., to be the same as our own until the contrary is shown. Wharton on Conflict of Laws, § 780.

These remarks in relation to the statute of frauds are made because in States where it is in force much stricter evidence of receipt and acceptance by the buyer or his agent is required. And they are necessary in order to guard against misunderstanding many of the decisions; e. g. a common carrier is the agent of the buyer for receiving the goods, but he is not the agent of the buyer for the purpose of accepting them in order to make a sale binding under that statute. Benjamin on Sales, Amer. ed. § 181. Such being the general rules, and the cotton having been delivered in the manner we have stated, are there any facts in the present case which would prevent the title with the risk passing to the defendants, the buyers?

The defendants' offer, which was accepted and filled by the plaintiffs, was for fifty bales or less at 13 1/2 " f o. b. and freight." That f. o. b. means free on board is not disputed. But the defendants contend that the proper construction is that the goods were not to be theirs until actually put on board, and the question is whether the words refer to anything which was a condition of delivery or whether they merely refer to and designate what part of the expenses the vendors were to pay. One of the plaintiffs and another witness from Galveston, the market where the cotton was bought, testify that they understood that the words f. o. b. merely meant that they were to pay all expenses up to the time of delivery on board, and we are of opinion that that is the natural and reasonable...