Hopkins v. Cowen
| Decision Date | 06 December 1899 |
| Citation | 44 A. 1062,90 Md. 152 |
| Parties | HOPKINS v. COWEN et al. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court; J. Upshur Dennis, Judge.
Action by William L. Hopkins against John K. Cowen and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, and SCHMUCKER, JJ.
Chas W. Heuisler, Richard B. Tippett, and W. S. Bansemer, for appellant. John T. Mason and C. S. Hayden, for appellees.
The appellant in this case sued the appellees in replevin to recover the possession of 210 sacks of flour. The pleas are property in the appellees, and property in the Winnebago City Mill Company. At the trial, the appellant, to sustain the issues on his part, offered to prove that he had been engaged in purchasing flour from the Winnebago City Mill Company for a number of years; that on January 11, 1898, he ordered from the company the flour in question, "without any agreement as to the terms of payment," and that the flour was subsequently shipped by the said company to the appellant, at Baltimore city; that the course of dealing at and before that time was as follows, viz. the mill company (whose place of business is in Winnebago City, Minn.), at the time of shipment, would draft for the value of the shipment and attach thereto the bill of lading, and these drafts usually arrived a few days before the goods, and the appellant, as he needed the flour, would call at the banks where the drafts were placed by the company and were payable and "take them up"; that all of the flour so shipped "was booked by the mill company as an absolute sale." Included in the appellant's offer was evidence of other sales and shipments by the mill company showing the general course of dealing between the parties and also copies of the letters and telegrams of the parties respecting such sales, and of the checks of the appellant in payment of the several drafts of the mill company on the appellant. There also appears in the proceedings the bill of lading, and the draft attached thereto, which the parties agree may be considered by this court as if included in the offer of the appellant, and incorporated in the bill of exceptions. The court below rejected this offer, and, the verdict and judgment being for the appellee, the appellant has appealed.
The action being in replevin, the burden is upon the appellant to prove an immediate right to the possession of the goods; and, inasmuch as the appellees have pleaded property in the Winnebago City Mill Company, they must show a title superior to that of the company. Lamotte v. Wisner, 51 Md. 561. The question, therefore, now before the court, is to determine whether the facts contained in the offer would be sufficient, if properly proved, to enable a jury, or the court sitting as a jury, to find that the title or the right of possession has passed from the mill company and become vested in the appellant. The flour in dispute was shipped from Winnebago City on January 21st, and about the same time the mill company forwarded by mail to the appellant an invoice, with the following words appended thereto, viz.: "We have drawn on you at arrival of goods for the proceeds, with railroad receipt attached to the draft." By reference to the "receipt" or bill of lading, it appears that the flour was consigned to the company itself. Over the name of the consignee, the mill company, is written the word "order," and below the words, "Notify W. L. Hopkins," without any other condition or limitation. One of the conditions of the shipments, as appears printed on the bill of lading, is that "if the word 'order' is written thereon before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of the party to be notified of the arrival of the property, the surrender of this bill of lading, properly indorsed, shall be required before the delivery of the property at destination." The bill of lading, with draft attached, was sent by the mill company to the Western National Bank, at Baltimore, whose duty it was to retain possession of it until the appellant had paid the draft. When such payment was made, the appellant was entitled to receive the bill of lading, and upon proper indorsement, by the terms of the bill itself and according to the usual course of dealings between the parties, the appellant was in a position to demand the possession of the goods. The flour arrived in Baltimore in due time, and the appellant was notified thereof by the railroad company. He made no effort, however, to pay the draft until the 4th of May. On that day he tendered his check, but the bank refused to accept it, and notified him that it had received notice on the previous day from the mill company not to accept payment of the draft from him. It also refused to deliver to him the bill of lading, although both the bill and the draft were then in its possession.
It is contended on the part of the appellant that all the facts, as we have stated them, establish the following propositions, viz.: (1) That a sale had been effected between the mill company and the appellant, whereby the title to the property became vested in the appellant; (2) that the agreement necessarily implied amounted to a complete contract of sale, with the stipulation that delivery of possession was dependent upon payment or tender of purchase price; and (3) that, when the appellant tendered his check in payment of the draft (having sufficient funds in bank to meet it), he had the right to the immediate possession of the flour.
The general rule applicable to the passing of title to personal property has been well stated in Dixon v. Yates, 5 Barn. & Adol. 313. In that case it was said by Parke, J ...
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