Hope Lumber Co. v. Foster & Logan Hardware Co.

• Decision Date: 26 April 1890
• Citation: 13 S.W. 731,53 Ark. 196
• Parties: HOPE LUMBER CO. v. FOSTER & LOGAN HARDWARE CO
• Court: Arkansas Supreme Court

13 S.W. 731

53 Ark. 196

HOPE LUMBER CO. v. FOSTER & LOGAN HARDWARE CO

Supreme Court of Arkansas

April 26, 1890

APPEAL from Nevada Circuit Court, C. E. MITCHEL, Judge.

Judgment reversed and cause remanded.

Smoote McRae & Arnold for appellant.

1. Where property has been ordered, and the party on whom the order is drawn consigns it to the party making the order, by delivery to a common carrier, in response to the order, the contract of sale is complete and the property passes to the consignee. 43 Ark. 453; 44 Ark. 556.

2. If the laborers had a lien, and appellee succeeded to it, it cannot be enforced in this action

3. The conversation with White does not amount to an agreement or contract which could be enforced against appellant, and there was no consideration for it.

Atkinson Tompkins & Greeson for appellee.

1. The evidence shows that the Hope Lumber Company was not so mach a purchaser as a factor. The hands had the right to hold the bills of lading until their wages were paid, and this clearly evidences an intention on Duval's part to retain the title until it was paid for. Delivery of the bill of lading carries with it the property. 45 Mo. 145; Daniel on Neg Inst., sec. 1728.

2. Appellant is estopped by the declarations of its agent in disclaiming all right to the lumber. Bigelow on Estop. (4th ed.), p. 549; 2 Johns. 573; 39 Ark. 131; 15 Pick. 40; 3 Hill (N. Y.), 215; 4 Metc., 381; 8 N.H. 238; 44 Me. 414.

Smoote, McRae & Arnold in reply.

1. The appellant is not estopped from claiming the property as its own. The material elements of an estoppel in pais are wanting. Bigelow on Estop. (4th ed.), 552. No one here was induced to act upon the statements of White, for the levy was already made. The interpleader's affidavit and bond under Mansf. Dig., secs. 356, 391, cannot be confounded with a receiptor's receipt or delivery bond. Bigelow, Estop., 551, note 3. As to estoppel, see 40 Vt. 51; 93 U.S. 326; 10 N.E. 205; 57 Vt. 474; 57 Am. Rep., note, 429-33; 33 N.W. 435; 39 N.W. 276; 99 N.Y. 407; 87 Am. Dec., 321.

The representation was not acted on. Appellee released no security, nor did Logan say he relied on anything White told him. H. & D., 89; H. & D., 439; 25 Am. Dec., 423 and note, p. 428; 70 Texas, 80; 18 P. 372; 2 El. & Bl., 9.

OPINION

HUGHES, J.

On the 6th day of August, 1888, the appellee sued John J. and Sallie Duval on account for $ 400, and had an attachment levied on three car loads of lumber, which attachment was sustained against defendants and from which they have not appealed.

The appellant filed its interplea claiming the property attached, and the court sitting as a jury found that the property did not belong to appellant, but to John J. and Sallie Duval, and dismissed the interplea; appellant excepted, filed a motion for a new trial, which was overruled, and he excepted and appealed. The motion for new trial is substantially that the circuit court erred in its findings of the facts and the application of the law.

The facts are that, in response to a letter from J. J. Duval asking the Hope Lumber Company if it could take the "whole cut" of his mill, the Hope Lumber Company sent Duval an order for lumber, specifying therein the dimensions of lumber it would take and the price it would pay for the same "F. O. B.," which meant "free on board" of cars at Prescott, Duval to pay for the loading of the lumber on the cars at Prescott, and the Hope Lumber Company to pay the freight, and, when order was filled, to pay Duval one dollar on each car for loading, Duval being authorized to draw on Hope Lumber Company for what money he might need. The bills of lading for the three car loads of lumber were made in name of J. J. Duval, and the cars were consigned to the Hope Lumber Company. The three car loads of lumber were consigned to the Hope Lumber Company to fill in part the order above mentioned. Duval was at the time indebted to the Hope Lumber Company for money advanced him on lumber. He had arranged with the laborers who loaded his lumber on cars that they could retain the bills of lading until their wages were paid.

The agent of the appellee, learning that the laborers had possession of three bills of lading, paid them twenty dollars, which they said Duval owed them, and they delivered the bills of lading to him, which he took with the writs of attachment in the case and immediately went to Hope and to the lumber yard of the Hope Lumber Company, where he found the three car loads of lumber, one of which had been unloaded, and the other two of which were being unloaded, and by his direction the sheriff levied the writs of attachment on the lumber. This was on the 6th day of August, 1888.

Mr. White, the bookkeeper of the Hope Lumber Company and authorized to represent the company, after learning what had been done, told the agent of appellee that he did not want any trouble, and afterwards said that they did not claim the lumber, and that, if appellee would be responsible to Duval, they would settle for it as soon as checked up, which would be the next day. The next day the Hope Lumber Company gave bond and retained the lumber.

The agent of appellee was notified by the sheriff on the same day of the giving of this bond. Appellee's counsel contend that the Hope Lumber Company was not the purchaser of the lumber but a factor, and that, the laborers having possession of the bills of lading, the delivery of them to appellee for value carried the property in the goods covered thereby.

In our opinion the facts do not sustain this view of the case, but show on the contrary that the Hope Lumber Company was the purchaser of the lumber. The laborers had no title to the lumber, and if they might in any event have had a lien upon it, that question is not involved here.

The evidence shows that, before the levy of the attachments, the lumber had been delivered to the Hope Lumber Company at its lumber yard at Hope, and one car of it unloaded, and the others were being unloaded. The delivery of the lumber on board the cars at Prescott upon the previous order of the Hope Lumber Company and the consignment of the cars to it at Hope was a delivery to that...