Wells v. Am. Express Co.

• Decision Date: 07 February 1882
• Citation: 55 Wis. 23,11 N.W. 537
• Parties: WELLS v. AMERICAN EXPRESS CO.
• Court: Wisconsin Supreme Court

55 Wis. 23

11 N.W. 537

WELLS

v.AMERICAN EXPRESS CO.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Racine county.

Fish & Dodge, for respondent.

Finches, Lynde & Miller, for appellant.

ORTON, J.

In this case, reported in 49 Wis. 224, [S. C. 5 N. W. REP. 333,] it was held that the amended complaint, on which the action was last tried, was for money had and received, and substantially charged that the money was the property of the plaintiff, and that, notwithstanding the former complaint set out the contract of consignment, the amendment was proper. The action under the amended complaint is not, therefore, based upon the terms of the contract of consignment; and the finding that the defendant received the money to the use of the plaintiff, although strictly contradictory to the contract and the direction of the package, may not only be true, but warranted by the pleadings. When the cause was before this court, as reported in 44 Wis. 324, it did not appear from the evidence that the money belonged exclusively to the plaintiff, and it did appear that it belonged to Wells and Cartright jointly, and that, therefore, the package was properly directed to them both. But it now appears from the evidence, and the circuit court has so found, that the money was the property of the plaintiff alone, as alleged in the amended complaint, and the circuit court rendered judgment in favor of the plaintiff alone, virtually holding that, notwithstanding the package was consigned to Wells and Cartright jointly, and so directed, the company was liable to Wells alone as the real and exclusive owner of the money, and could not defend against his right on the ground that the package was otherwise directed. This is a very important question, and one which has not before been decided by this court, so far as I can find.

In respect to the manner in which the package was made up and directed by Downs, the consignor, the evidence is the same as on the former trial, that the package was directed jointly to the plaintiff and one Cartright by the partnership designation of “Wells & Cartright.” There was no assigment by Cartright of his apparent interest in the package to Wells, and no written order by Cartright to deliver to Wells, and no offer of any receipt or acquittance from both. There was a verbal demand by Wells, and a verbal statement by Cartright that Wells owned the money. The defendant refused, under such circumstances, to deliver to Wells alone, and insisted also that the money had been subjected to garnishee proceedings against Cartright. Irrespective of the garnishment, the first and important question arises, whether the plaintiff alone can recover this money upon proof of his individual and exclusive ownership of it in disregard of the directions of the consignor. The question is the same as if a third person had claimed the package as against the consignees or the person to whom it was directed.

As a general principle it is unquestionably the law, as stated by the authorities cited by the learned counsel of the appellant, “that it is the duty of the company to make personal delivery in accordance with the address on the package; and if it is delivered elsewhere than as addressed, or to the wrong person, the company is liable for the consequent loss.” In this case the delivery of the package to “Wells & Cartright,” the consignees, and to whom it was addressed, or to either of them for both, would have been a proper, and only proper, delivery under the operation of this general principle. But to this general rule of law there are exceptions, one of which is that the true owner of the property may enforce his right to it as against the consignor or consignees or the carrier, or against the bailor or bailee, whenever he sees fit so to do, before its delivery as directed. His right is paramount to the claim of all others, no matter what may be their relations to each other, unless it is lost, or, for the time being, suspended by his own conduct of surrender or estoppel. The terms of the contract of consignment, and the directions of the consignor, and the address upon the package, are all subject to the jus tertii whenever it is sought to be so enforced.

The exception, as stated by Browne, Law of Carriers, 221, is that “the bailee must not give up the goods which actually belong to a third person, if he have notice of the fact, to the person who bailed them to him;” or, as stated by Mr. Redfield, C. & B. § 318, “otherwise he would pay in his own wrong if it should turn out the property was in another, since the contract by construction is with the party entitled to claim the goods;” or, as it is held in Ogle v. Atkinson, 5 Taunt. 759, “a warehouseman receiving goods from a consignee who has had actual possession of them, to be kept for his use, may, nevertheless, refuse to redeliver them if they are the property of another and the latter prohibits the redelivery.” This statement of the law is disapproved by Ang. Carr. § 355, based upon an intimation in the late editions of Story, Bailm., differing from the view of that learned author as expressed in his first work on that subject. But this principle is recognized by all the other elementary works on this subject as being established by the great weight of authority.

This change of opinion upon the question by Mr. Justice Story is fully considered by Mr. Justice Willes in the leading case of Sheridan v. New Quay Co. 4 C. B. (N. S.) or 93 Eng. C. L. 617, and the first opinion of our learned author is approved. Perhaps it would not be proper to say that Mr. Angell fully disapproved of this principle, for the reason he gives for differing from the opinion in Ogle v. Atkinson does not really touch the question, for he says: “But this doctrine seems now to be untenable, and it is said that, in general, an agent has no right to set up an adverse title against that of his principal,” etc. This reason does not militate against the principle above stated, for it is not claimed that the bailor can “set up;” or, in other words, of his own motion, claim the property for a third person as the real owner.

Mr Hutchinson, in his work on Carriers, § 405, says: “And if the carrier or other bailee, while still holding possession of the property, would defend against the claim of his bailor by setting up the paramount title of another, he must at least show that it is done by his authority and in his behalf, otherwise the bailee might avail himself of the title of a third person which might never be asserted by such person, and thus be enabled to keep the property for himself without a shadow of title, when by his contract he had undertaken to return to the bailor or to deliver it according to his directions. The learned author, after thus admitting the reason which seems to have changed the view of Mr. Justice Story on the main question, proceeds to state the principle as follows: “But while it is not enough that the carrier has become aware of the title or claim of a person other than the bailor or consignee to entitle him to set up such claim or title against the demand of the latter, yet if he has been notified by the claimant of his title, and has been requested not to deliver the goods according to his undertaking, he would no doubt be permitted, in an action against him by the bailor or consignee, to prove that such claimant was entitled to the goods, and had forbidden their delivery to the bailor, or according to his directions.”

This statement of the principle embraces the present case most fully, for here the individual claimant, Wells, has not only claimed this package of money as his exclusive property, but has demanded it, and now brought this suit under the amended complaint for it as so much money had and received by the defendant company to his use as the real owner. It is admitted by all of the courts and by the elementary writers that it becomes a difficult question for the bailee or carrier to determine as to whether he should deliver the consignment or deposit according to the strict terms of his contract, or to the claimant, and that his position is perilous, but he must act at his own risk. It is suggested by the English authorities that he may protect himself by a bill of interpleader, in which the rights of all of the parties may be determined. But,...