Jewett v. Olsen

• Decision Date: 11 February 1890
• Parties: JEWETT v. OLSEN.
• Court: Oregon Supreme Court

23 P. 262

18 Or. 419

JEWETT v. OLSEN.

Supreme Court of Oregon

February 11, 1890

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

(Syllabus by the Court.)

When property is in the hands of a carrier for transportation and, in the course of transit, is seized upon legal process sued out against the owner of the property, and taken out of the carriers's possession, such property is placed in the custody of the law, and is so placed by a superior power, the power of the state, and excuses the carrier from liability for not delivering the goods.

. When goods are taken out of the possession of the carrier by legal process, he should give notice forthwith to the parties interested.

N Steves, for appellant.

T.B Handley, for respondent.

LORD J.

The facts are that on the 18th day of November, 1887, one Northrob delivered at Tillamook, Or., a lot of apples to William Olsen, to be carried on the steamer Rosa Olsen, and delivered at Portland. The apples were not marked in any way, nor consigned to any one. On the 21st day of November, 1887, at Astoria, the constable came on board of the steamer with writs of attachment, and, by virtue of the same, levied upon the apples, and took them off the steamer, and sold them. These actions were against Northrob, and were for the purchase price of said apples; and judgment was rendered in them on February 13, 1888. When the apples were seized under the writs of attachment, Northrob was at once notified, but remained passive, and made no defense. On the 13th day of February, 1888, the said Northrob sold said apples to one Jewett, who since has brought the present action against Olsen for failure to deliver the apples according to the contract of shipment made by Northrob with Olsen. It will be noted that the property, when delivered to the carrier, was not marked, nor consigned to any one, but was to be delivered at Portland, and presumably to Northrob, or to whomsoever he should authorize to receive them, by assignment or otherwise; that while such property was in transitu it was seized, under writs of attachment, at an intermediate port, and being perishable property was sold, but that Northrob, who was then the owner of the apples, was immediately notified, in order that he might make his defense to the suits against him on which the property had been seized; and that he disregarded such notice, and refused or failed to make any defense in the premises, but two or three months subsequently sold the property to the plaintiff in this action. As a separate defense to the action, the proceedings, etc., in the writs of attachment were set up, and upon demurrer were sustained, as stating facts sufficient to constitute a defense, and the demurrer overruled, but during the trial, when offered in evidence in support thereof, were excluded by the court, and now constitute one of the assignments of error upon this appeal.

Upon the facts, the proceedings under which the goods were taken by the officer from the custody of the carrier was against Northrob, to whom the property belonged, and who subsequently sold them to the plaintiff in this action. It will be seen then, that the question we are to decide is whether a common carrier is excused from liability for not carrying and delivering the goods when they are, without any fault or fraud on his part, seized by virtue of a legal process, and taken out of his possession. "That this will excuse the carrier," says one author, "is now almost universally conceded by the courts, in the absence of connivance or collusion on the carrier's part; and it seems to make no difference by or against whom the process is sued out, if it be valid." Hutch.Carr. § 396. "If this defense were not valid," says another learned author, in a note, "it might compel the party to resist the acts of a public officer in the discharge of his duty, which the law will never do." 2 Redf.Ry. *159. In the supreme court of the United States, where goods in the hands of a carrier had been attached by a third party in a suit brought by the consignees on a bill of lading, Mr Justice NELSON said: "After the seizure of the goods by the sheriff under the attachment, they were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it, even admitting the goods to have been at the time in his actual possession. The case, however, shows that they were in the possession of the sheriff's officer or agent, and...