Robinson v. Pogue

• Decision Date: 21 January 1889
• Citation: 86 Ala. 257,5 So. 685
• Parties: ROBINSON ET AL. v. POGUE ET AL.
• Court: Alabama Supreme Court

5 So. 685

86 Ala. 257

ROBINSON ET AL. v. POGUE ET AL.

Supreme Court of Alabama

January 21, 1889

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Detinue by Pogue & Son against Robinson & Ledyard for tobacco sold by plaintiffs to Rushton & Co., and by Rushton & Co. to defendants. The defendants requested the court to charge "(4) If the jury believe from the evidence that the tobacco was delivered to the railroad company, and the bill of lading was made consigning the goods to Rushton & Co. then the title to the goods passed by this delivery to Rushton & Co., although the bill of lading was sent to Simon & Bro., in the absence of proof that the contract of sale required the performance of something on the part of Rushton & Co. before the goods were delivered." The request was refused. Defendants appeal.

Tompkins, London & Troy, for appellants.

Rice & Wiley, for appellees.

SOMERVILLE J.

The bill of sale from Rushton & Co. to Robinson & Ledyard, the appellants, bearing date December 16, 1885, and transferring to them the stock of merchandise of the vendors in absolute payment of a preexisting debt, is the same instrument construed by us in the case of Robinson v. Fairbanks, 81 Ala. 132, 1 South. Rep. 552, and again in Robinson v. Levi, 81 Ala. 134, 1 South Rep. 534. Upon a state of facts substantially the same as that appearing in the present record we then observed that there could be no question about the fact that the defendants, if the evidence was to be believed, "we bona fide purchasers of the goods for value, and without notice of any alleged defect in the title of Rushton & Co., just as fully as if they had paid the cash for them." No controversy was made upon the trial raising any question as to the correctness of this ruling. There are many assignments of error in the present record. We do not propose to notice any of these except such as are insisted on in the brief of appellants' counsel, the others appearing to be without merit.

The main contention here insisted on, and raised by the rulings of the circuit court, relates to the title acquired to the goods in controversy by Rushton & Co., the consignees of the plaintiffs. If the sale of the tobacco to them was completed by an actual or constructive delivery, and the intention of the vendors was that the little should unconditionally pass, then the appellants, Robinson & Ledyard, acquired a good title; otherwise not. The contract for the sale of the goods was made by Simon & Bro., of Montgomery, Ala., as agents of the plaintiffs. The shipment was made by railroad, and a bill of lading was taken, in which Rushton & Co. were named as the consignees. This bill of lading was mailed to Simon Bros., with a bill for the goods on which were written the words "Shipped to Rushton & Co., Montgomery, Ala." It was agreed between Rushton & Co. and Simon & Bro. that the latter were to "retain the bill of lading" until the goods were paid for, but there is no evidence that the goods themselves were to be retained until the price was paid. The evidence, on the contrary, tends to prove that the sale was made on credit, after closely inquiring into the financial status of the consignees. The tobacco was delivered by the railroad to the consignees, without the presentation of the bill of lading.

Where goods have been sold and are delivered by the vendor to a common carrier, consigned without reservation to the vendee the question as to whether the title eo instanti passes to such consignee, depends upon the intention of the vendor, to be gathered from all the circumstances of the case. There is no doubt as to the correctness of the general rule that where the bill of lading shows a consignment by the vendor to the vendee, in ordinary form, and no other circumstance appears as to the intention, the prima facie legal presumption is that an unconditional delivery to the consignee is contemplated. But this presumption of fact may be rebutted by evidence showing a contrary intention. Jones v. Sims, 6 Port. (Ala.) 138, (1837;) Ezell v. English, Id. 317; Emery v. Bank, 25 Ohio St. 360; 2 Amer. & Eng. Cyclop. Law, 242; People v. Haynes, 14 Wend. 546; Everett v. Coffin, 6 Wend. 603; Ostrander v. Brown, 15 Johns. 39, 8 Amer. Dec. 218, note; Express Co. v. Greenhalgh, 80 Ill. 68. The title of the goods is commonly retained in the consignor, by taking the bill of lading to his own order, or in blank, or by drawing on the consignees with the bill of lading attached to the draft, or other like procedure, indicating an intention to retain in himself a jus disponendi over the goods until the price is paid, or until the...