Van Camp Hardware & Iron Co. v. Plimpton
| Decision Date | 07 September 1899 |
| Citation | 54 N.E. 538,174 Mass. 208 |
| Parties | VAN CAMP HARDWARE & IRON CO. v. PLIMPTON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
L.M. Friedman, for appellant.
L.S Dabney and F. Cunningham, for appellee Frederic Leyland & Co., Limited.
The defendants are described in the writ as of Liverpool England, and as doing business under the name of J.C Plimpton & Co. The plaintiff is an Illinois corporation. Suit was brought here by a trustee process, in which Frederic Leyland & Co., a corporation established under the laws of Great Britain, was summoned as trustee of the defendants. The trustee answered, and, after a hearing upon the answer, the superior court ordered that the trustee be discharged. The plaintiff appealed from that order, and the sole question before us is whether, at the time of the service of the writ upon it, on May 3, 1898, the trustee had in its hands or possession any goods, effects, or credits of the defendants. It appears from the trustee's answer that it owns and runs a line of steamships between Boston and Liverpool, and is engaged in the transportation of freight between those two cities. On April 29, 1898, it received from the Boston & Albany Railroad, under through bills of lading to J.C. Plimpton & Co., Liverpool, a car load of lawn mowers in cases marked "J.C.P. & Co." On April 29th and 30th these cases were laden on board the steamship Cestrian, belonging to the trustee, which was taking in a cargo for Liverpool. The cases were stowed "in different places in different hatches holds, and decks, to fill up small spaces, by what is commonly known as 'broken stowage,' and had been so laden and stowed in different places, and among and underneath other cargo," before the writ was served on the trustee. In order to unload the lawn mowers, it would have been necessary to unload substantially all of the ship's cargo, except the grain and provisions, and would have cost at least $2,000, and would have delayed the ship at least three days. Provisions and other perishable cargo had been laden on board the steamship before the service of the writ, and cattle were on the wharf, ready to be laden on board, which would have suffered great damage by any delay in sailing and the expense of feeding, which would have been at least $500 per day. The expense of unloading, and the loss which the trustee would have suffered by the delay, would have amounted to more than the value of the lawn mowers. The trustee also alleges, if that is material, that the plaintiff had knowledge of the whereabouts of the lawn mowers before they were laden upon the steamship, and an opportunity to attach them, if they were the property of the defendants. We think that the action of the superior court in discharging the trustee was right. We assume in favor of the plaintiff that the mere fact that the goods were in transit would not of itself entitle the trustee to be discharged. Adams v. Scott, 104 Mass. 164. We also assume in its favor that when the goods were put on board the steamship the title to them was in the defendants, and that the goods are to be regarded as intrusted to or deposited in the hands or possession of the trustee, within the meaning of the statute. But it does not follow that the trustee should be charged. The object of the trustee process is to enable a creditor to attach goods or credits of his debtor in the hands of a third person. When goods are attached, the trustee is required to hold them till judgment is obtained, or the action is otherwise disposed of, in order that they may be taken on execution if the plaintiff obtains judgment against the defendant. But it is well settled that the trustee is not to be put in any worse position pecuniarily by reason of the attachment than he would otherwise have occupied in respect to the goods or credits attached. Foundry Co. v. Mortimer, 7 Pick. 166, 168; Smith v. Dyer, 19 Pick. 20, 22; Waldron v. Wilcox, 13 R.I. 518; Drake, Attachm. (2d Ed.) § 462. If, for instance, he has advanced on goods of the defendant in his possession their full value, or has a lien on them for their full value, he will not be charged as trustee, and will not be obliged to deliver up the goods to be taken on execution. Burlingame v. Bell, 16 Mass. 318, 324; Grant v. Shaw, Id. 341, 344; Curtis v. Norris, 8 Pick. 280. Or if, before final answer, the defendant becomes indebted to him on a contract entered into before the service of the writ, he will be chargeable only with the final balance, if any, that may be due. Lannan v. Walter, 149 Mass. 14, 20 N.E. 196. We regard this case as analogous to those. The defendant could not have compelled the trustee to unload the goods without tendering full indemnity for the expense to which it would thereby be put, and without offering to pay the freight. McGaw v. Insurance Co., 23 Pick. 405; Lord v. Insurance Co., 10 Gray, 109, 119, 120; Violett v. Stettinius, 5 Cranch, C.C. 559, Fed.Cas....
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