Powell v. Kechnie

• Decision Date: 12 May 1884
• Citation: 3 Dak. 319,19 N.W. 410
• Parties: Powell and another v. Kechnie.
• Court: South Dakota Supreme Court

19 N.W. 410

3 Dak. 319

Powell and another

v.Kechnie.

Supreme Court of the Territory of Dakota.

Filed May 12, 1884.

Appeal from district court of Stutsman county.White & Hewitt, for appellant. Allen & Dodge, for respondents.

HUDSON, J.

This action was brought by the plaintiff under the statute of claim and delivery of personal property. From the evidence upon the trial it appears that the respondents, who were doing business at Waukegan, Illinois, were the owners of 21 Star wood pumps, which were by them shipped on the second day of November, 1880, by rail, consigned to one H. L. Inman, at Jamestown, Dakota, who had previously ordered the same, and was to pay for them the sum of $200, in 90 days from that date. Said pumps arrived in Jamestown, via the Northern Pacific Railroad, about November 30, 1880, and were unloaded and placed in the freight depot at Jamestown. Immediately after said pumps were put in the depot, the appellant, as sheriff of said county, claimed to levy upon them under a writ of attachment in favor of John Deere & Co. against the goods of said H. L. Inman, the consignee. The writ was served by leaving a copy thereof with the defendant therein, H. L. Inman, and notifying said railroad company to hold said pumps subject to said writ. The sheriff did not remove them from the depot, nor pay the freight to the railroad company for their transportation. During the transit of said pumps, said H. L. Inman became insolvent, of which fact the respondents were notified, and they notified said railroad company of their claim as vendors by a legal notice served on the station agent at Jamestown, and to hold said pumps subject to their order, on account of said Inman's insolvency. Said notice was served on the third day of December, 1880, three days subsequent to the service of said writ of attachment. When said notice of stoppage was served on the company, said pumps were in the depot at Jamestown, with the freight unpaid. Said H. L. Inman never received said pumps, nor took any action in regard to them. Thereafter the pumps were taken by the sheriff, under the claim of said John Deere & Co., removed, and sold by him. The frieght on the same was paid by the attorney of John Deere & Co. on the day of sale.

There are two questions presented in this case for consideration: (1) Were those pumps in the actual possession of the consignee at the time of the levy, so that the right of stoppage in transitu was at an end? (2) Did the appellant sheriff get possession and control of said property by a legal seizure under the writ of attachment?

The following general principles may be stated as applying to this case: The delivery by the vendor of goods sold, to a carrier of any description, either expressly or by implication, named by the vendee, and who is to carry on his account, is a constructive delivery to the vendee; but the vendor has a right, if unpaid and the vendee is insolvent, to retake the goods before they are actually delivered to the vendee. Keeler v. Goodwin, 111 Mass. 490. Goods may be still in transit though lying in a warehouse to which they have been sent by the vendor on the purchaser's order, (Benj. Sales, § 846;) and they are liable to stoppage as long as they remain in possession of the carrier. Id. § 841; Clapp v. Peck, 55 Iowa, 270; S. C. 7 N. W. Rep. 587; White v. Mitchell, 38 Mich. 390. The essential feature of a stoppage in transitu, as has been remarked in many of the cases, is that the goods should be at the time in the possession of a middle-man, or of some person intervening between the vendor who has parted with and the purchaser who has not yet received them. Benj. Sales, § 842.

Counsel for the appellant contended strongly that the pumps were in the...