Thompson v. Baltimore & O.R. Co.

• Decision Date: 17 March 1868
• Citation: 28 Md. 396
• Parties: HENRY A. THOMPSON and CHARLES L. OUDESLUYS, Garnishees of GILL, HARDMAN & STEPHENS, and DANIEL WILSON, Claimant, v. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.
• Court: Maryland Court of Appeals

28 Md. 396

HENRY A. THOMPSON and CHARLES L. OUDESLUYS, Garnishees of GILL, HARDMAN & STEPHENS, and DANIEL WILSON, Claimant, v. THE BALTIMORE AND OHIO RAIL ROAD COMPANY.

Court of Appeals of Maryland

March 17, 1868

AN APPEAL from the Superior Court of Baltimore City.

At the trial below, the appellee, the Baltimore and Ohio Rail Road Company, offered four prayers, which were granted. No question is raised as to the granting of the first, third and fourth prayers, and they are therefore omitted; the second prayer is as follows:

That if the jury shall believe from the evidence that the said William Whitman, mentioned by the witnesses was in the month of May, 1855, the possessor and owner of the Fanny Furnace and its appurtenances, and of the pig iron then and there being, and that he was indebted then and there, on previous transactions, to the defendants, and that he did then and there in consideration of said indebtedness, and in good faith assign, among other property, said pig iron to the said defendants, that a part of said iron was at said furnace, and a part on the road to Independence, on the Baltimore and Ohio Rail Road, and that in pursuance of the said agreement, and for the purpose of making a delivery of the said iron to the defendants, he directed the witness, Baker, to show the same to the witness, Lamb, and that said Lamb was accordingly shown the said iron which was at the furnace, and upon the road, by the said Baker, or by some other person, and the persons showing said Lamb the said iron, were the agents of the said Whitman in so doing, and that the said Lamb was the agent of the defendants, and that the said Whitman then and there directed the said Lamb, to have the said iron charged on the books of the said Whitman, against the defendants, and that it was so charged, then there was in law such a delivery of said iron to the said defendants, as precluded the said Whitman from the exercise of any acts of ownership over it without the assent of the said defendants, even though subsequent to such agreement and delivery of said iron, the jury should find that the said defendants failed in business and were under protest.

The appellant, Wilson, also offered four prayers, the third of which was admitted to be correct and properly granted. The other prayers are as follow:

1st. If the jury shall find from the evidence that Hardman and Whitman were co-partners in the management and ownership of the Fanny Furnace, from about the 1st of January, 1855, and as such co-partners, were responsible for the debts of the said furnace, then existing, and that the said copartnership was insolvent, and on or about the 23d of May, of that year the said Whitman and Hardman entered into an agreement by which, for the purpose of protecting the property of said furnace from the claims of creditors, or to procure against the will of said creditors, a longer time for the payment of said debts than they could otherwise procure, to execute a deed of the said property to a trustee for the benefit of the said Hardman, and to charge the iron in controversy on the books of said Whitman to the said defendants, so as to effect an apparent but fraudulent transfer of the property in the same, then the jury are at liberty to find that the said agreement in so far as it relates to the said iron, and all that was done in pursuance thereof, is fraudulent and void and the plaintiff is not entitled to recover upon the second issue.

The Court refused the prayer as offered, but granted it with this modification:

"Provided the jury shall find that the claimant was a creditor of Whitman at the time of the assignment."

2d. If the jury find from the evidence, that, on or before the 22d of May, 1855, Hardman was a secret partner of Whitman in the ownership and carrying on of the Fanny Furnace, and that on the said 22d of May, the said Whitman and Hardman agreed that the pig iron in controversy in this cause should be considered as sold to the firm of Gill, Hardman & Stephens, of Wheeling, and shall also find that said iron was pointed out by Baker to Lamb, as stated in said Lamb's evidence, and counted by him, and was afterwards forwarded by direction of said Hardman to Sandy Creek, on its way to Wheeling, and that while said iron remained at Sandy Creek, at Fanny Furnace, and at points on the road between these places, the said firm of Gill, Hardman & Stephens, became insolvent without having paid for said iron, that then Whitman had the right to repossess himself of said iron, either by taking possession of it himself, or by authorizing and directing Daniel Wilson to do so.

This instruction the Court refused as offered, but granted with the following modification:

"This prayer is granted as to the stoppage in transitu, unless the jury find the facts to be true as stated in the plaintiff's second prayer."

4th. If the jury shall find from the evidence that the iron in controversy was delivered to the defendants, by being shown to their agent Lamb, and by being charged on the books of Whitman to the defendants, but in fact remained at the furnace and on the road-side without being taken away or otherwise put into the possession of the defendants, and that the said delivery was made against certain notes of the defendants given to the said Whitman in advance for the said iron, which notes were then outstanding and unpaid, and that the title to said iron remained in the same condition as between said Whitman and said defendants, without the intervening claim of any third party at the time it was sold to Wilson, if the jury shall find such sale, and that whilst the said iron so remained, the said defendants were insolvent and unable to pay their said notes, then the said Whitman had a right to re-take the said iron before it came into the actual possession of the defendants, and if the jury shall find that the said Wilson did re-take it, either by himself or an assignment to Wilson, who, under said assignment, re-took it, then the plaintiff cannot recover on the second issue.

And the verdict and judgment being in favor of the plaintiff, the defendants and the claimant Wilson appealed.

The cause was argued before BARTOL, C.J., STEWART, GRASON and MILLER, J.

I. Nevett Steele, for the appellant, contended:

1st. That the mere showing of the iron by the vendor's agent to the agent of the vendees, without any act of ownership or possession on their part, was not a sufficient delivery of the iron to pass the title and complete the sale. Van Brunt vs. Pike and Ward, 4 Gill, 270; Atwell vs. Miller and Mayhew, 6 Md. Rep., 10; Story on Sales, sec. 311.

2d. That by such a delivery, the actual possession of the vendor was not so parted with as to defeat his lien; nor was such a possession acquired by the vendees as to prevent stoppage in transitu: that so long as no act of ownership or possession has been exercised by the vendees, the vendor had the right to assert his lien. Hall and Loney vs. Richardson, 16 Md. Rep., 396; McEwan vs. Smith, 2 H. L. Cases, 309; Parks vs. Hall, 2 Pick., 206; Gibson vs. Carruthers, 8 M. & W., 321, 328, 334; Miles vs. Gorton, 2 Crompt. & M., 504; Newhall vs. Vargas, 15 Maine, 314; 2 Kent's Com., 541; Cross on Law of Lien, 34 Law Lib., 243, 244; Dixon vs. Yates, 5 Bar. & Adolph, 313; O'Brien, et al. vs. Norris, Caldwell & Co., 16 Md. Rep., 131; Story on Sales, secs. 286, 287, 290; Karthaus vs. Owings, 4 H. & J., 269; Lickbarrow vs. Mason, 1 Smith's Leading Cases, 711.

3d. The modification of the appellant's first prayer by the Court below, was erroneous.

Ferdinand C. Latrobe and John P. Poe, for the appellee:

The second prayer of the appellee defines what amounted to a delivery in connection with the facts in the case; and if the definition be correct, the judgment below must be affirmed, inasmuch as the sale to Gill, Hardman & Stephens antedates, in such event, that under which Wilson claims. Van Brunt vs. Pike & Ward, 4 Gill, 270; Atwell vs. Miller & Mayhew, 6 Md. Rep., 10; 1 Bouvier's Law Dict., 396; 2 Kent's Com., 500, 503; Hall & Loney vs. Richardson, 16 Md. Rep., 396.

The first prayer of the claimant, Wilson, raised the question of the good faith of the assignment of Whitman to the defendants, and was to that extent the converse of the plaintiff's second prayer; but it had this defect, it had no reference to Wilson's claim. It left the jury to find for him, without previously finding that he was a creditor, whose debt was the consideration of the assignment under which he claimed.

The theory of the claimant's second prayer was, that there was no such delivery, as prevented the application of the law of stoppage in transitu. But it being clear, that the moment there was a delivery, this law became inapplicable, the Court modified the instruction by making it available, only in the event of the jury failing to find a delivery, as defined in the plaintiff's second prayer. But there was objection to the granting of the prayer, even with the Court's modification. Stoppage in transitu implies necessarily an existing debt as between the vendor and the...