Sproule v. McNulty

• Decision Date: 31 May 1841
• Parties: SPROULE & AGNEW v. MCNULTY AND OTHERS.
• Court: Missouri Supreme Court

7 Mo. 62

SPROULE & AGNEW

v.MCNULTY AND OTHERS.

Supreme Court of Missouri.

May Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

NAPTON, J.

This was an attachment by appellants against McNulty, Shaw & Mitchell, which was levied upon a cargo of lead. The appellees, Crawford & Carson, at the return term of the writ, filed their interpleader, claiming the property attached. On the trial of the interpleader, an agreed case was submitted, and the court found for the interpleaders and gave judgment accordingly. From that judgment an appeal has been taken to this court. The agreed case is found on the record in the following words: “On the 11th July, 1840, the defendants shipped on board the steamboat Omega, 700 pigs of lead, weighing 49,000 lbs, to the interpleaders William Crawford, jr., and Th. J. Carson, at Baltimore, Maryland, for the express purpose of paying in part a note past due and unpaid, from defendants to interpleaders. The lead was assigned to Kennett, White & Co., commission and forwarding merchants of St. Louis, with instructions accompanying it to forward the same to the interpleaders at Baltimore, through Hugh C. Hasson, their agent, a commission and forwarding merchant at New Orleans, Louisiana, as early as possible. Four bills of lading were executed for the lead between the defendants and the carriers, at the time of shipment; one of which was retained by the shippers, the defendants; another was forwarded to said Hugh C. Hasson; another was forwarded to Kennett, White & Co., and another to the interpleaders, accompanied with a letter informing them of the shipment of the lead, and requesting them to receive the same, dispose of it for the interest of defendants, and apply the proceeds in liquidation of the aforesaid note due and unpaid. That accordingly the interpleaders immediately insured the lead on their own account. When the lead arrived in St. Louis, on its passage to Baltimore to the interpleaders, and came into the possession of Kennett, White & Co., and before it was forwarded by them to interpleaders, as above directed, it was attached by the plaintiffs in this suit. The only question arising in this case is, who were the owners of the lead, at the time it was attached, the shippers, or the interpleaders? A great many authorities have been presented to the court, consisting of decisions made both in England and in this country. These decisions, and the opinions of learned jurists, have satisfied me, at least, that the lex mercatoria, is of a very plastic nature, adapting itself very much to the peculiar circumstances of each case. It appears impossible to draw any general rule of a binding and conclusive character, as applicable to the clase of cases under which the present case might be included. There is no settled and determinate test of ownership, either in England or this country. To complete a contract of sale, there must be a delivery, either actual or implied. A delivery to the carrier, where there has been an order for the goods, is undoubtedly a delivery to the consignee. Where a debtor consigns property to his creditor, in payment of his debt, and there is any assent on the part of the creditor, a delivery to the carrier in this case, has also been held a delivery to the creditor. So far the doctrine appears very reasonable. But it has also been held, both in England and some of our State tribunals, that if a debtor consigns property to his creditor, though the creditor be entirely ignorant of the fact, the delivery to the carrier is a delivery to the creditor, and his assent will be presumed. This was, for the first time I believe, declared to be law by the judges in the case of Atkyn v. Barwick, 1 Strange, 165. The same doctrine was recognized by Lord Mansfield in the case of Anderson and others v. Temple, 4 Burr, R. 1768. In this case Lord Mansfield maintained the following doctrine: “The most desirable object in all judicial determinations, especially mercantile ones (which ought to be determined upon natural justice and not upon the niceties of the law), is to do substantial justice. And therefore I will avoid laying the stress that might properly be laid upon the assent being necessary to complete the contract, or the want of a delivery; the solid ground of which is, that a contract shall be presumed complete upon any distinction where the justice of the case requires it, though there is no actual delivery. And it is settled, that if a man sends bills of exchange, or consigns a cargo, and the person to whom he sends them has paid the value before, though he did not know of the sending them at the time, the sending of them to the carrier will be sufficient to prevent the assignees from taking these goods back, in case of an intervening act of bankruptcy: but if goods or bills of exchange are sent, and the consideration has not been received, the court of chancery always interposes. In the case in Strange, there is no doubt but the honesty of the case inclined the court to the judgment they gave, the reason given turns upon a subtlety. I think the case was well supported upon...