Magruder v. Gage

• Decision Date: 07 December 1870
• Parties: JOHN R. MAGRUDER and R. R. Magruder, Trading as Magruder & Brother v. CHARLES O. GAGE, Surviving Partner of Addison Gage & Son.
• Court: Maryland Court of Appeals

33 Md. 344

JOHN R. MAGRUDER and R. R. Magruder, Trading as Magruder & Brother v. CHARLES O. GAGE, Surviving Partner of Addison Gage & Son.

Court of Appeals of Maryland

December 7, 1870

Appeal from the Circuit Court for Anne Arundel County.

The facts of the case are sufficiently set out in the court's opinion. The several exhibits referred to in the prayer incorporated in the opinion, are the letters, bill of lading and invoice, referred to in the earlier part of the opinion.

The plaintiff's fifth prayer, mentioned in the dissenting opinion, is the one set out by the court.

The cause was argued before BARTOL, C.J., STEWART, MAULSBY and ROBINSON, JJ., and re-argued before BARTOL, C.J., STEWART BRENT, MAULSBY, GRASON, ALVEY and ROBINSON, JJ.

Alex. Randall and A. B. Hagner, for the appellants.

The instruction embodies no fact from which the jury could ascertain the terms or time of payment for the cargo, and excludes from their consideration all the proof upon this point, so important in every contract of sale. In the absence of all such evidence, the conclusion of law would be that the payment was to be concurrent with the delivery to the defendants in Annapolis. Benjamin on Sales 499; 2 Kent, 492.

The letters described in the instruction furnish no support to the idea that the cargo was to be at the defendants' risk. That it was "consigned to the defendants," affords no such proof, for the consignee is as often the mere agent of the shipper, as he is the owner of the cargo.

The form of the bill of lading is rather evidence of the plaintiffs' ownership, for it was given to them as shippers, requires their consent to any interference with the cargo; and expressly speaks of the defendants merely as consignees.

But even if the bill of lading had named the defendants as owners, such designation is not conclusive upon the question of ownership. 2 Greenl. Ev. sec. 380; Benjamin on Sales, 282, 289.

That the defendants were to pay the freight, is certainly not conclusive evidence of ownership on their part. The express point is decided in so many words, in 6 Clark & Finnelly, 621, 622.

The conclusive evidence then, if it exists at all, must arise out of the transmission by the plaintiffs; and the receipt by the defendants of the bill of lading and invoice, as stated in the brief of plaintiffs' counsel, "their rights became perfect as soon as they had shipped the cargo, received the bill of lading, and transmitted it to the defendants."

The transmission and receipt of the bill of lading and invoice do not, as matter of law, furnish such conclusive evidence of the transfer of title and imposition of the risk of carriage upon the vendee, as justified the instruction by the court.

If such were the correct statement of the law, no cases could be found where the court had ruled that the title had not passed, after the receipt of the bill of lading by the vendee had been shown; but the books are full of cases to the contrary. Dunlop v. Lambert, 6 C. & F. 600; Moakes v. Nicholson, 115 E. C. L. 290; Shepherd v. Harrison, L. R. 4 Q. B. 196; Castle v. Playford, L. R. 5 Exch. 165; Abbott on Shipping, 326, 331, 337; Falk v. Fletcher, 114 E. C. L. 403; Benjamin on Sales, 213; Conger v. R. R. Co., 17 Wis. 487.

Frank H. Stockett and William H. Tuck, for the appellee.

The ruling of the court, was according to the true construction of the contract made between the parties, as well on the facts as on the law, and as recognized in all the elementary treatises on the subject, and by the courts in cases too numerous to be cited, and may be stated in the following brief sentence: That where goods are consigned to A, and there is no agreement to the contrary, he is the owner of them. Powell v. Bradlee, 9 G. & J. 276; Abbott on Shipping, 403, (326); Hall v. Richardson, 16 Md. 397; Chitty on Contracts, 383; Benjamin on Sales, 130; Dunlop v. Lambert, 6 Cl. & Fin. 600; Franklin v. Long, 7 G. & J. 407; Mulliken v. Boyce, 1 Gill, 60; Parsons on Contracts, 445; Godfrey v. Furzo, 3 P. Wms. 185; Snee v. Prescott, 1 Atk. 248; Vale v. Boyle, Cowp. 294.

Robinson J., delivered the opinion of the court.

The appellants, residents of Annapolis, wrote to the appellees, ice dealers in Boston, to know upon what terms they would sell to them a cargo of ice, in answer to which they received the following reply:

"For a cargo to be shipped before the 10th of July, we shall charge you $5 per ton, and will get the freight as low as possible."

By letter of July 1st, 1863, the appellants directed the appellees to send a cargo of one hundred and fifty tons, and authorized them to get the freight as low as possible. On the 13th of July, the appellees wrote to the appellants, advising them of the shipment, enclosing account for same and the bill of lading. This letter with the inclosed papers was received by the appellants in the course of mail. By the bill of lading it appears that the ice was shipped in good order and condition, on board of the schooner "Rio," lying in the port of Boston and bound for Annapolis, to be delivered in like good order and condition to the appellants or to their assigns, he or they paying the freight and accustomed average.

The schooner encountered rough weather and was compelled to put into New York with damaged sails. After refitting she resumed her voyage and reached Norfolk on the 18th of August, in a sinking condition. The remnant of her cargo was sold in Norfolk under the captain's supervision, and the surplus arising from the proceeds of sale, after the payment of freight and charges, amounting to two hundred and twenty-two dollars, was handed over to the appellants and by them remitted to the appellees, who refused to receive the same. This is an action of contract brought by them against the appellants to recover the value of the cargo of ice.

The main question in this appeal, and one which we think decisive of the case, arises upon the following prayer granted by the court:

"If the jury find from the evidence that the plaintiffs in 1863, were partners in trade and dealers in ice, under the name and firm of Addison, Gage & Co., in the City of Boston, Mass., and that the defendants were trading under the name of Magruder & Brother, in the City of Annapolis, on the 3rd of June. 1863, and as such firm wrote to the plaintiffs, the letter offered in evidence of that date and proved under the commission as Exhibit E, and that the plaintiffs in reply thereto, wrote to the defendants the letter dated June 22nd, proved under the commission as Exhibit H, and that on the 1st of July, the defendants addressed to the plaintiffs the letter returned with the commission and marked A, and that on the 6th of July, the plaintiffs wrote to the defendants the letter of that date marked B, and that these letters were received by the persons to whom they were respectively addressed, and that the plaintiffs did on the 11th of July, 1863, ship on board the schooner "Rio" one hundred and fifty-one tons of ice, at and from the port of Boston to Annapolis, consigned to the defendants, and that the said schooner

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