Shepard & Morse Lumber Co. v. Burroughs

• Decision Date: 07 November 1898
• Parties: SHEPARD & MORSE LUMBER CO. v. BURROUGHS et al.
• Court: New Jersey Supreme Court

41 A. 695

62 N.J.L. 469

SHEPARD & MORSE LUMBER CO.

v. BURROUGHS et al.

Supreme Court of New Jersey.

Nov. 7, 1898.

(Syllabus by the Court.)

Case certified from circuit court Hudson county, for advisory opinion.

Replevin by the Shepard & Morse Lumber Company against Samuel B. Towner. Horace F. Burroughs was admitted to defend the action. The cause was referred to a referee, who reported in favor of plaintiff, and a motion to set aside the report was certified to the supreme court for its advisory opinion.

Argued June term, 1898, before LUDLOW and DIXON, JJ.

Charles L. Corbin, for plaintiff.

Flavel McGee, for defendant Burroughs.

DIXON, J. The plaintiff, having sold 27 car loads of lumber to Samuel B. Towner, shipped it between March 3 and March 8, 1890, at Ottawa by the Canada Atlantic Railroad Company, to H. P. Burroughs, 21 Beaver street, New York, to whom Towner had sold it. On its arrival at Weehawken, via the West Shore Railroad, seven car loads were delivered on board of lighters to Burroughs; but the other 20 cars were detained by a block on the railroad more than a mile from the place of transshipment. While so detained, on March 29, 1890, the plaintiff seized these 20 car loads by a writ of replevin issued out of the Hudson circuit on the ground that Towner had become insolvent, and the lumber was still in transit Burroughs having been admitted to defend this action, the cause was referred to W. B. Williams, Esq., who reported in favor of the plaintiff. A motion to set aside this report has been certified by the circuit to this court for its advisory opinion. In such cases the supreme court deals only with questions of law. Destefano v. Calandriello, 57 N. J. Law, 483, 31 Atl. 385; Murray v. Railway Co., 39 Atl. 648.

Several questions of law are presented:

First, the defendants urge that the transit was ended. On this point, we think, the proofs fully sustain the referee. The railroad company had certainly not completed its duty as a carrier while it remained unable to get the cars to the place where the lumber should be delivered to the consignee.

Second, it is insisted that the lumber was in the custody of the United States, under bond for export, and therefore was not subject to seizure under process from a state court. No representative of the United States appears in the cause, and no issue of this character was raised by the pleadings. For this reason, we think, this claim was rightly discarded by the referee.

Next it was claimed by Burroughs that he had purchased the lumber from Towner bona fide and for value, and hence the plaintiff's right of stoppage in transitu for Towner's insolvency had expired. The referee reported that he rejected this claim on two grounds, viz.: Because the bills of lading, which the plaintiff had sent to Towner, had not been by him turned over to Burroughs, and because Burroughs, when he purchased, knew that Towner had not paid therefor, and merely gave Towner credit for the price on a preexisting debt.

With regard to the bills of lading, the general rule is thus stated...