The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-01-27
Superior Court--ln Baneo.


Florida sent an order by mail to plaintiffs merchants in
this city, to forward them bill Of goods The order ala
The plaintiff. commenced hIiins up the ordsr seven
boxes and four bales Of goods amounting $1,000
sent by plaintiffs. cartman to the brig RspuSiic in hi:
port vessel loading for Pensacola receipts were
Z, KNEW and ns s.
In the hands of the PLAINTIFF to be completed by adding
some nor: good. On the same Day ooh ssptspbsrl:
against Riley and Walker, resident debtors, In
favor Of the defendant Palmer took these goods from
tsmbsr the plaintiffs sent the receipts which had besn
thus given BY the mate down to the ship and prsssnts4
demanded bill Of adng for the goods which had been
put board of the vessel and which were mentioned
fused This was about 10 or ii O'Clock the morning
S ase OF ss The es.s w.. sS ss.
Judge Vanderpoel in April 1916 and verdict taken for
ns nS Sn of a s n
was delivered by Judge yanderpoel. Of which the fol-
lowing Is copy.
Marsh and sturtsvan for plaintiffs N B. Blunt for Dc.
Judge vAsprnrorL-The question is, whether a. the
time tho defendant Jones seized the goods virtue Of
the attachment against Riley and Walker, they wsre
ps,ion Of law delivered to Riley and Walker. S'': The
plaintiffs cannot the ground Of any right Of
that the validity Of this right stop snstu depends
entirely upon the insolvency Of the vendee knloch
IL Id Kent Com, b43) There Is not evidence enough
justify the conclusion that Riley and Walker In
the plaintiffs replevied them. Mr.. Dixon, a wiz,
ness for the defendant testified that the standing Of
plaintiffs cannot thersiore, repose themselves upon
the right to stop the goods in frdtu Indispensable
iG edent to constitute this right tho insolvency OF the
vandee, being wanting.
Were the goods, when they were attached in the eye
@w in the PLAINTIFF possession and under h; s
proven in this case, the law upon this point
cuve in favor Of the PLAINTIFF The receipts delivered
to the carman he delivered the loads Of goods the
Of tho vessel Acknowledged that they recsiv
cd from the plaintiffs This brings the present
another va. Ryder,e Tauuton 4ss, which seems 70 bs
as good authority BY the most approved sls
ping abbot Cart B. eso) says sometimes happsns
that goods intended for expectation, are sold under
the buyer. In such CASE the seller may retain II.
property by taking receipt for them from tho person
ceipt his hands the shipment not being under
such circumstance complete delivery to tho buy.
retain his right to the goods as Against the mas.
ter Of the ship, if he demand receipt in his own
.. s the a..
deliver bill of lading to the buyer, who becomes insol
vent before the departure Of tho ship.
Chief Justice Abbot, abbot on shipping ses) after
stating the practice Of taking receipts from the master
person board of the vessel further remarks that the
master must make out his bill Of lsdng cordng the
direction Of shipper goods Or tho holder Of the
receipt given on the shipment that the shipper has the
i
oflading, although it may not be expressed In the
receipt that the goods are shipped for his account this
being tacily understood; and II the master signs bill OF
adng for delivery to another person. and deliver &C.
coTdngy he may be answerabs to the shipper for tho
vade Of the goods.
This surely must be the rule applicable this case
The selection and shipment Of the goods here had
yet been completed A portion OF the goods or
dered yet unaffected and unshipped. No bills
or invoices had yet 6sen forwarded to Riley Walk
er; and it is difficult, consistently with the plain
est dictates OF common sense TO conclude, that tbs
tiile to- control over the goods had 40 completely
passed out Of the plaintiffs, to preclude them from
maintaining an action for taking or converting them.
Hsd Riley Walker designated directed the
by which the goods to be forwarded, and had the
plaintiffs pursuant to such direction put the goods
board Of such vessel with bill OF lsding for Riley and
Walker, the plaintiffs case would have been entirely
different the presented Then the principle
urged by the defendants that the delivery Of goods to
carrier master Of vessel when they are to 20 sent
tho purchaser might have applied Though the boxes
here were marked Riley Walker, Milton Fla yet
was for the plaintiff h before tho delivery
to do what they subsequently did in respect to these
very goods consgnse residing at Pensacola
with directions to him not to deliver the goods to Riley
Walker. without their complying with such terms
10 pay mont as the plaintiff. saw fit to prescribe IT,
the seller until the selection and shipment Of the goods
are competed-the receipts given up, and the bill Of
ladng given, in lieu Of them.
The rules of the law are therefore suiicien,
for the purposes Of the plaintiffs without the aid Of thu
local usuago here attempted to be proved But the
law s would materially aid the plaintiff It Is not
cessary that these ususges trade should like customs
nave existed mmemotiay. II Is sufficient, they be
established known certain uniform reasonable and not
! contrary to law Greenlesi on Ev ao7. Todd vs.
Q Reed, Barn and Aid 40 Colern Hope. Warb
100. Watts l75 Indeed. IL has been held that par
cuiar usuage IN reference to contract in question may
be proved influence its though contrary
to some general rule Of law, and then will be ques
OF fact whether the parties contracted In reference
there cited. Such ususges must be proved by witnessed
who have had frequent and actual experience Of the
nsuaRe and do not speak from report alone. I'd Green
| dQd nv fha 1Afsu dQ nj
that the evidence and the ususge in this city only
what the rtns,,s Aemseoes who called. prove II.
usuage did yet the evidence strikes strong enough
to prove Its general existence here Four Of the mos
extensive dealers Of our city called to prove
MI. Leroy Nj. Wiley testified, that whsn goods to
be shipped coastwse they taken the vessel and
receipts signed TO be kept and the other ia
be given up when the bill OF ladng is signed; and whes
the bill of ladiDg sgnod the receipts given up
whom the bill oflading made deliverable If the sals
Is made ior city acceptances the seller controls tbs
goods until the conditions Of sale complied with II
NOT or city scceptances he makes them deliverable Il
his own practice; and those whom he has known pursu
tho same course lie further says that the goods
in tho possession Of and under the control Of the seller
until ne surrendes the receipts and has bill Of ladiDg
made out to the purchaser or consgnee. THIS 10 abou
the substance Of the testimony Of four extensive dealers
ana being entirely uncontradctod, ii is sufficient Il
show the existence Of the usage.
II commended for the defendants that the OF this
People vs. Haynes Ia Wend. SAC, is analogous to the
present. There, Haynes, who resided In Boston. wal
indicted for obtaining goods by false pretences from
whether the delivery was complete before the repre-
sensations were made upon which the indictment
was founded and the Court Of Errors decided that the
goods had become the property Of Haynes before the al
legged false representations made and that tho de
iendan therefore, could not be considered guilty Of tn,
crime charged against him Tho leading features Of the
case dIstogush IL conclusvey from the present Ther
Haynes was in tho city. and purchased he goods him
se and directed them 10 DO sent 10 the Providence steam
boat to DO forwarded to his residence and the Court hell
that otter this tho sale was complete The delivery o.
the goods board Of the vessel designated by Haynes
was tan'amount to delivery TO himself personsly and
the purchase was complete. Riley and Walker DID not
make the purchase in this in person They never
designated vessel by which they 10 be forward
ed; and moreover, the whole order was not yet salts
fed About three hundred dollars worth OF goods were
yet unsolicited Tho two are Therefore, entirely
dissimar Besides there not in that case any evi
dencs of the local usage here relied upon As the good
m the under consideration still under the
troll of the plaintiff whom they attached by the she
lf snding their delivery on board OF the ves