Lane v. Chadwick

• Decision Date: 09 January 1888
• Citation: 146 Mass. 68,15 N.E. 121
• Parties: LANE v. CHADWICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 68

15 N.E. 121

LANE v. CHADWICK.

Supreme Judicial Court of Massachusetts, Dukes County.

January 9, 1888

COUNSEL

P.H. Hutchinson and C.G.M. Dunham, for plaintiff.

The plaintiff's contention in this case is that, under the facts disclosed by this record, the defendant, having the duty of agency to collect the price of said goods, superadded to the obligation to transport and deliver them, should have afforded her a reasonable opportunity to ascertain whether the goods she had ordered were in said boxes or not, before she parted with the price thereof, and that she was entitled to the ruling asked for upon familiar principles of law and justice.

H.M Knowlton, for defendant.

The rights of the plaintiff in this case are ascertained by the application of two familiar and elementary principles of law (1) To maintain replevin, the plaintiff must have both the right of property and the right of possession in the goods replevied. Gates v. Gates, 15 Mass. 310; Wade v Mason, 12 Gray, 335. (2) The consignee of goods sent C.O.D. has neither right of property nor right of possession in the goods till he has paid for them; the sale is not completed, and, until the money is paid, the goods belong to the consignor. Bank v. Bangs, 102 Mass. 291, 294. There was no tender of the money, even, that was not accompanied with a demand that the defendant was not bound to comply with, viz., to deliver, not the boxes, which he was ready to do, but certain articles of medicine named in a bill shown the defendant, and which the defendant never assumed nor agreed to deliver to the plaintiff. His only contract was with reference to the two boxes. To concede the right to a C.O.D. consignee of unpacking boxes that are nailed up, and testing and counting and assorting the contents, would enlarge the duty of a common carrier to a degree that there is no warrant for in law. He would be liable for loss breakage, and other injury of handling during the unpacking. It might only take a few moments to open a small package, but some shipments would require two or three days for examination and verification. But whether it took a longer or a shorter time, he would have to wait while it was being done. This plaintiff wanted to make a limited examination only. But on the same principle, why could he not demand the right to open the bottles, taste of the essences, try the acids, and prove the quality as well as the quantity of the...