Lewis v. Sharvey
| Decision Date | 16 August 1894 |
| Docket Number | No. 8855.,8855. |
| Citation | 58 Minn. 464 |
| Parties | HENRY LEWIS <I>et al.</I> <I>vs.</I> PAUL SHARVEY. |
| Court | Minnesota Supreme Court |
The plaintiffs, Henry Lewis and Hetherington Hodgson of Glendive, Mont., on July 15, 1892, sold to Enoch Salt and Enoch J. Salt of West Superior, Wis., doing business there under the name of West Superior Woolen Mills Co., 15,950 pounds Montana wool at eighteen and one fourth cents per pound free on board cars at Glendive, Mont. to be shipped that day by rail to the purchasers, at Duluth. Plaintiffs drew their draft that day on West Superior Woolen Mills Co. for the price, $2,910.87 payable thirty days after sight and sent it by mail to the State Bank of Wisconsin at West Superior where it was accepted July 20, by the vendees, and it remained there for collection, but it was never paid. The wool was shipped the same day over the Northern Pacific Railroad in car No. 638 consigned to "West Superior Woolen Mills Co. at Duluth, Minn." The two Salts were then insolvent, but plaintiffs did not know it. The wool arrived at the freight yard on Rice's Point in Duluth at noon on July 21, 1892, where it remained until the defendant, Paul Sharvey, Sheriff of St. Louis County, seized it July 26, 1892, at eight o'clock in the evening upon a writ of attachment issued to him for service from the District Court of that county in an action wherein the Farmers' National Bank of Portsmouth, Ohio, was plaintiff, and Enoch Salt and Enoch J. Salt were defendants.
He placed his deputy in charge of the car of wool and at one o'clock in the night it was transferred to a track of the St. Paul and Duluth railroad to be taken to the warehouse of T. B. Hawks & Co. reached by that track. During the afternoon of July 27, the car was moved to the warehouse and the wool unloaded by the sheriff. He paid the freight and stored the wool in his own name as sheriff. When the wool had arrived at the yards on Rice's Point, F. W. Swindell, chief clerk of the Northern Pacific Railroad Company in its freight office at Duluth, telephoned the West Superior Woolen Mills Co. in the morning of July 22, that the wool had arrived and asked if he should send it over to West Superior, and received reply, "No, Keep it in Duluth." On July 26, at half past one o'clock in the afternoon, J. I. Thomas, freight agent at Duluth of the Northern Pacific Railroad Company received by mail a letter from West Superior Woolen Mills Co. dated that day at West Superior, saying "Please deliver to T. B. Hawks & Co. all wool on your track consigned to us."
On August 6, 1892, the plaintiffs gave notice to T. B. Hawks & Co. and to the sheriff, of their claim, and tendered to the sheriff the freight he had paid and demanded the wool. He refused and they commenced this action of replevin to recover possession of the wool or its value if possession could not be had. The Farmers' National Bank took the wool, removed it from the state, sold it, indemnified the sheriff, and defended the action. A jury was waived, the court made findings that no delivery of the wool was made by the Northern Pacific Railroad Company to the West Superior Woolen Mills Co., that when the sheriff took it on the writ of attachment the wool was still in transit and plaintiffs had the right to stop it, that plaintiffs then had a vendor's lien on the wool for the price, that by defendant's seizure they were deprived of this right of stoppage in transit and damaged in the amount of the draft and interest, and ordered judgment accordingly. Defendant moved for a new trial. Being denied he appeals. There were three other cases in the trial court, all involving substantially the same question, awaiting a determination of the question in this.
Henry S. Mahon, for appellant.
S. T. & Wm. Harrison, and Knowles, Dickinson, Buchanan, Graham & Wilson, for respondents.
The question to be considered, and which will dispose of this appeal, — although others have been raised, — is whether plaintiffs were entitled to exercise the right of stoppage in transitu at the time they attempted to exercise such right over certain wool which they had sold and shipped to a copartnership doing business at West Superior, Wis.; the attempt being made at Duluth, Minn., a few miles distant. The main facts, fully justified by the evidence, are these: The wool was sold at Glendive, Mont., and shipped by rail, over the Northern Pacific road, on July 15, 1892, consigned to the purchasers, at Duluth. It arrived in the Duluth freight yard on July 21st, and on the morning of the 22d the freight clerk at the railroad office telephoned the consignees, at West Superior, of its arrival, in addition to other car loads already there, and asked, "must all be sent over to West Superior?" The reply was, "No, keep it all at Duluth." On July 26th, about noon, the freight agent in charge received a letter from the consignees directing that all wool on the tracks at Duluth consigned to them be delivered to T. B. Hawks & Co., a Duluth firm. There were no facilities for unloading the wool while the car containing the same remained in the freight yard of the Northern Pacific Railway Company.
On the evening of July 26th, and while the car was in said yard, the wool was seized by the sheriff of St. Louis county (this appellant), by virtue of a writ of attachment duly issued in an action brought against the consignees. His deputy remained with the car, and on the morning of July 27th it was transferred to the tracks of the St. Paul & Duluth Railway Company, hauled to the warehouse of Hawks & Co., the car was opened, and its contents placed in the warehouse by said sheriff, Hawks & Co. receipting to him for the same. The sheriff paid the freight charges on August 3d. On August 6th, plaintiffs' attorney made the affidavit prescribed by 1878, G. S. ch. 66, § 154, served the same on the sheriff, and demanded a return of the property, at the same time tendering the amount which had been paid as for freight charges, which demand was refused....
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