Wigton v. Bowley

• Decision Date: 17 January 1881
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Mahar Wigton & others v. Edwin Bowley & another

130 Mass. 252

Mahar Wigton & others v. Edwin Bowley & another

Supreme Court of Massachusetts

January 17, 1881

Argued November 5, 1880

Essex. Tort for the conversion of 112 barrels of flour. Answer, a general denial. The case was submitted to the Superior Court and, after judgment for the defendants, to this court, on appeal, upon agreed facts, in substance as follows:

The plaintiffs are proprietors of flouring mills in Hart Michigan; and, on October 18, 1878, they received from Henry Fenno, who was then doing business in Boston, a letter asking for the price per car-load of their flour delivered on board the cars. On October 28, the plaintiffs sent to Fenno the figures requested; and, on October 31, Fenno ordered of the plaintiffs a car-load of the flour at the price named authorized them to draw on him for the amount at ten days' sight, and referred them to persons with whom he had dealt. The plaintiffs, having obtained satisfactory information from the persons indicated as to Fenno's pecuniary standing, on November 13, 1878, loaded a car with the flour ordered, directed and consigned to Fenno at Boston; and, at the same time, they drew on Fenno as directed. The draft and the bill of lading for the flour, in which Fenno was named as consignee, were sent to a bank in Boston, with the instruction to deliver the bill of lading to Fenno, if the draft was accepted. The draft was never accepted, and the bill of lading was never delivered. There is no evidence to show that it was ever presented to Fenno for acceptance.

On December 5, 1878, Fenno executed to the defendants an order on the freight agent of the Boston and Albany Railroad Company to deliver to the defendants the flour in question; and the defendants paid the full purchase price of the flour to Fenno. The defendants presented the order to the freight agent of said company, and he delivered the flour to them, according to the usage of that and other railroad corporations, without exacting the production of the bill of lading. On December 9, 1878, the bill of lading and the draft were returned to the plaintiffs by the bank. The flour so delivered to the defendants is the same flour which the plaintiffs had consigned to Fenno. The plaintiffs have never received anything in payment or part payment thereof. Fenno failed immediately after he executed the order to the defendants, and his testimony cannot be procured by either party.

If, upon the above facts and such inferences as a jury would be authorized to draw, the plaintiffs were entitled to recover, judgment was to be entered for them for $ 518.56, and interest from the date of the writ; otherwise, judgment for the defendants.

Judgment affirmed.

F. W. Griffin & S. T. Harris, for the plaintiffs.

H. Carter, for the defendants.

Colt J. Endicott, J., absent.

OPINION

Colt, J.

Upon the agreed facts, the court below was justified in finding that the property in the flour was transferred to Fenno, the purchaser, when it was delivered for transportation to the railroad company in Michigan.

It appears that Fenno, having obtained from the plaintiffs the price asked for their flour delivered on board the cars ordered a car-load at the price named, and authorized the plaintiffs to draw on him for...