Williams v. Hodges, 113 N.C. 36 (1893)

Sept. 1893 · Supreme Court of North Carolina

113 N.C. 36

H. G. WILLIAMS & CO. v. JOHN S. HODGES et al.

Stoppage in Transitu — Possession of Consignee.

1. Where there is an actual or constructive delivery of goods to the purchaser before demand of the vendor, the right of stoppage in tran-situ is at an end.

2. If the carrier, by reason of an arrangement with the consignee, or, for any cause, remains in x>ossession, but holds the goods only as the agent of the consignee and subject to his order, such possession is the possession of the consignee.

Action of Claim and. Deliver}^, tried before Bynum, J., at Spring Term, 1893, of Beaueout Superior Court, upon case agreed, the facts set forth in which were substantially as follows :

The plaintiffs, merchants doing business in Norfolk, Va., on the 17th December, 1892, on the order of the defendant Hodges, a merchant doing business in Washington, N. C„ sold and shipped to the latter certain articles of personal property, delivering the same to the Old Dominion Steamship Company, a common carrier between Norfolk and Washington. The goods arrived at Washington on or about the 20th day of December, 1892, and were placed in its warehouse, where they remained until the beginning of this action, excepting one package, which was delivered, on the order of Hodges, before the 28th day of December, 1892. Hodges was insolvent at the time of the sale of the goods, but his insolvency was unknown to the plaintiffs or to himself.

On the 28th day of December, 1892, Hodges executed a deed of trust to his co-defendant Chauncey, whereby he conveyed to him all of his goods and personal property in trust to pay the debts of said Hodges, the deed of trust including, and being intended to include, the goods claimed by plaintiffs. Immediately upon the execution of the assignment the defendant Chauncey went to the said company, and, through one of its employees, a night watchman, who then had charge of the warehouse and its contents, including these goods, directed the said goods to be put on storage for him. The next day, to wit, the ‘29th day of December, 1892, Chauncey went to the agent of the said transportation company and paid the freight on the goods and asked the agent of the company to move them to another warehouse owned by the said agent, and to put the same on storage. The agent said that the other warehouse was full, but that he would store them for him in the warehouse where they then were, and Chauncey directed him so to do, and the goods were left in the said warehouse with the agent of said company, together with other goods described in the trust, and both Chauncey and the agent of said company considered them as stored for Chauncey, and charged him storage thereon from that day, to-wit, 29th of December, 1892.

On the 30th day of December, 1892, the plaintiffs demanded of the carrier company that the goods be delivered to them. The compan}1", through its agent, disclaimed any property in the goods, and stated that it held them for and subject to the order of the defendant Chauncey. At the time of the demand the goods had not been removed from the warehouse in which they were first placed, and have not since been removed. On the 31st day of December, 1892, the plaintiffs instituted their action of claim and delivery, and in their affidavit stated that the defendants were in possession of the goods and wrongfully detained them. The goods having been seized by the Sheriff, they were replevined by the defendant Chauncey, who at the time of the trial held them in the warehouse of the carrier company.

His Honor adjudged the defendant Chauncey the owner of and entitled to the possession of the goods, and the plaintiffs appealed.

Mr. W. B. Rodman, for defendants.

No counsel, contra.

Shepheud, G. J.:

The principles governing this case are fully discussed in Farrell v. Railroad, 102 N. C., 390, and it is well established that if there be an actual or constructive delivery of the goods to the purchaser before the demand of the vendor, the right of stoppage in transitu is at an end. In this case there was no actual delivery, but according to the statement of facts agreed there was an express agreement between the carrier and the assignee of the vendee that the former should hold the goods on storage as the agent of the latter. The goods were no longer in transitu, and the rights of the plaintiffs were, therefore, defeated. The doctrine that the goods must come to the “corporal touch” of the vendee, as was once said by Lord KeN^ok, has long been exploded. “ If the carrier, by reason of an arrangement with the consignee, or for any cause, remains in possession, but holds the goods only as an agent of the consignee and subject to his order, this is the possession of the consignee.” 1 Parson Cont., 603; 2 Benjamin on Sales, sec. 1117; 2 Addison Cont, sec. 600; Whitehead v. Anderson, 9 M. & W., 517.

The judgment m-ust be Affirmed.