Southwestern Freight & Cotton Press Co. v. Stanard

• Decision Date: 31 March 1869
• Citation: 44 Mo. 71
• Parties: THE SOUTHWESTERN FREIGHT AND COTTON PRESS COMPANY, Appellant, v. E. O. STANARD, Respondent.
• Court: Missouri Supreme Court

44 Mo. 71

THE SOUTHWESTERN FREIGHT AND COTTON PRESS COMPANY, Appellant,

v.E. O. STANARD, Respondent.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

The facts are fully set out in the opinion of the court.

Jones & Anderson, with Dryden & Lindley, for appellant.

I. As the right and title of the appellant to the flour in controversy is derived from Lamb & Quinlin, the main question is, was there a sufficient sale and delivery by the respondent to them, in construction of law? The delivery of this order by the defendant (the seller) to Lamb & Quinlin (the purchasers) was a delivery of the property. The law does not require manual delivery, especially in the case of ponderous or bulky articles; and if the goods be placed in the power of the buyer, or his authority as owner be acknowledged by some formal act or declaration of the seller, it will amount to a sufficient delivery. (Bass et al. v. Walsh, 39 Mo. 199.) The delivery must be such as the case admits; if the seller does in any case what is usual, or what the nature of the case makes convenient or proper, to pass the control of the goods from himself to the buyer, it is sufficient. (3 Pars. Cont. 44; 2 Kent's Com. 699.) To determine what would be practicable or convenient in any case, the circumstances of the case must be considered -- the situation of the parties and the nature and situation of the goods sold; and where, from the nature or situation of the goods sold, manual delivery would be difficult, slight acts are sufficient to constitute a delivery. (Pars. Merc. Law, 50; Calkins v. Longwood, 17 Conn. 164; Bates v. Conkling, 10 Wend. 389; Jewett v. Warren, 12 Mass. 300.) A manual delivery is not necessary, but the law does not require parties to perform acts that would be inconvenient; “it accommodates itself to their business and to the nature of the property;” and where manual delivery would be difficult, the seller is only expected to make a constructive delivery, which may be done by performing any act which will show an intention on his part to relinquish his claim to the goods and to transfer the right to control the same to the buyer. (Boynton v. Vesey, 24 Me. 286; Whitehouse, Ass., v. Frost, 12 East. 614.) E. O. Stanard, the vendor, was the sole owner and proprietor of the mill, and, up to the time of sale, of all the flour in it. The person in charge was his employee, and was bound to obey his orders. When he gave this order, the effect of it was to direct that employee to consider the two hundred barrels of flour the property of the purchasers, and to permit them to take it away at once. No acceptance was necessary. The sanction of an agent is not needed to make any act of his principal effectual.

II. When goods are in the warehouse, storehouse, or in the possession of a third party, an order given by the vendor and accepted by the third party would be a delivery. (Sto. on Sales, § 289; Hatch v. Bailey, 12 Cush. 27; Sahlman v. Mills, 3 Strob. 384; Stoveld v. Hughes, 14 East. 308; Whitehouse v. Frost, 12 East. 614; Sigerson v. Harker, 15 Mo. 101.) Now, an order given by a vendor on his own mill, the effect of which is a command to his employee to permit the purchaser to take the property away at once, must be deemed as good as an order given on a third party and accepted by him. In one case the order is a direction by the vendor to the third party to consider certain goods in his house the property of the purchaser, and his acceptance is but an admission of the right of the purchaser to take them out of his house. In the other case the order of the vendor is an admission that the purchaser has goods in his own house, and that he has the right to take them away. This seems to be the practical view of the question, and it is one that is supported by authority. When the elementary writers lay down the rule that when goods are in the vendor's own house the delivery of an order, so long as he actually retains possession of them, will not defeat his lien, they evidently intend to lay it down as applicable only to those cases in which it was not contemplated by the parties that there should be an immediate change of place. Whenever the terms of the contract of sale are inconsistent with the existence of a lien, as where the agreement is that the vendee shall have immediate possession, the seller has no lien. (Story on Sales, §§ 292, 339.) In the case at bar the act of the seller in giving this unconditional order, and the act of the buyer in turning that order over to the carrier for the purpose of putting the carrier in possession of the property, that it might be forwarded at once to New York, show that it was the intention of both parties that there should be an immediate change of place.

III. It can make no difference that the property was in the mill of the vendor and not in the house of a third party. If the warehouse had belonged to a third party, and the order had been given on that third party and accepted by him, it would without doubt be held that the delivery was complete in construction of law. There is nothing in reason or in principle to make the case different simply because the goods were in the defendant's own mill and the order was given on that mill. The unconditional order shows the intention of the seller to part with the goods. The act of the purchaser in turning it over to the carrier, and applying, upon the strength of it, for a bill of lading, shows not only his intention to receive possession at once, but that he considered the order as equivalent to the possession; and when the act done shows this intention, it is sufficient, no matter what the act is. (Barrett v. Goddard, 3 Mason, 107; Chapman v. Searle, 3 Pick. 38; Scudder v. Worster, 11 Cush. 573; Frazier & Co. v. Hilliard, 3 Strob. 308; Arnold v. Delano, 4 Cush. 39.)

IV. There are decisions of the courts to the effect that a delivery which will pass title to property does not necessarily defeat a lien. But it will appear, we think, that most if not all the cases in which the courts so held were cases in which it was not intended that there should be an immediate change of place; or where it appeared from the evidence that between vendor and vendee something remained to be done to make the delivery complete--as in Arnold v. Delano, 4 Cush. 33, referred to in Sigerson v. Kahmann, 39 Mo. 206, where the buyer was to go on defendant's land within a year and take the wood away; or where it appeared by the terms of the sale that cash was a condition, and the delivery was made sub conditione. But in all cases of constructive delivery, where the intention of the seller to give up his claim and to give complete possession at once to the buyer is apparent, the delivery will annul the lien. (Story on Sales, p. 323, § 290, and all the cases above referred to.)

V. The order given by defendant, either on the day or day after the day fixed for the delivery, was an admission that the goods were ready for delivery, and he can not now be permitted to contradict it. This act of his was such as to induce others to believe that the goods were ready, and to act upon that belief and to alter their circumstances. The rule of law is clear that where one by his words or conduct induces or causes another to believe in the existence of a certain state of things, and to act on that belief so as to alter his own previous position, that person is concluded from averring a different state of things existing at the same time. But if this view as to the admissibility of the evidence is incorrect, it is insisted that the other view taken must be correct; that this order, coming into the hands of the purchaser under the circumstances mentioned, is prima facie evidence that the flour was ready, that everything had been done to it that had to be done to it to put it into deliverable condition; and it remains for the defendant to show to the contrary. This he has failed to do; he has failed to show that any separation was necessary; he has failed to show that there was any larger number of barrels of the same brand from which it had to be separated. There is no evidence tending even to show that there was any more flour of the same sort in the defendant's mill. The brand “Eagle Steam” distinguishes it from all other flour of a different brand; that identification is sufficient. (Scudder v. Worster, 11 Cush. 573.) The “separate identity” of the goods is sufficiently shown. More than all this, the general rule that, where goods are mixed with a larger quantity of the same sort, the property does not pass, does not apply in all cases. The intention of the parties, as shown by the evidence, must be looked to; and if it appears to have been their intention that the property should pass, the fact that something remained to be done will not control that intention. (Story on Sales, § 298; Kimberly v. Patchin, 19 N. Y. 330; Horr v. Barker, 8 Cal 603; Whitehouse v. Frost, 12 East. 614.)

VI. It does not appear that the condition of the sale was cash, and that delivery was made sub conditione. At the time of the agreement nothing was said as to when payment should be made, but the acts of the parties and their previous course of dealings show that there was no such condition; and it will be inferred from these previous dealings with each other that it was not expected that payment and delivery should be simultaneous. But even though it was a condition of the sale that the goods should be paid for on delivery, and they are delivered without demanding payment, the presumption is that payment is waived. (Smith v. Lynnes, 5 N. Y. 41; Carleton v. Sumner, 4 Pick. 516; Shindler v. Houston, 1 Den. 51.) It is submitted that the authorities referred to are conclusive that the delivery of this order after the agreement of sale was a delivery of the property, independent of any custom. And it is insisted that the evidence shows that this was a customary mode of delivering property of that...