Sturtevant v. Orser (24 N.Y. 538, 1862)

Smith, J.

The delivery of the oil on board the vendee’s ship at ¡New Bedford was unquestionably a delivery to Wing, and vested the property in him. The property, it is true; was to be transported to blew York for sale, but it was to be transported by the vendee himself, who could have changed its destination or sold it absolutely on shipboard. After such delivery it was not subject to stoppage in transitu, for it was not in the hands of a carrier or middleman. (Inglis v. Usherwood, 1 East:, 515; Turner v. Trustees of Liverpool Docks, 6 Eng. Law and Eq., 515; Ogle v. Atkinson, 5 Taunt., 759.)

But if this were not so, the vendee could not exercise the right of stoppage in transitu, and the vendor made no attempt to do so. (Story on Cont., § 816.) The plaintiff’s right to recover the oil must, therefore, be put upon other grounds to be sustained.

The case is quite .parallel to that of Atkins v. -Barwick (1 Strange, 165). In that case the defendants were mercers,. living in London; and OrippS & Co., the assignors of the plaintiff, were traders at Penoyer, in Cornwall. On the'7th of April,. 1715, the defendants, upon the order of Cripps & Co., sent them the goods in controversy, and gave them credit on their books for the amount. On the 18th of May, Cripps & Co., without the knowledge of the defendants, deposited the goods with a third person for the use of the defendants. On 'the 6th of June, Cripps & Co. wrote a letter to the defendants, stating that their affairs were in a bad condition, and that, for that reason, they thought it hot reasonable that the last goods should go to other creditors; and that they had, therefore, not entered them in their books, .but left them with a Mr. Penhallow, who had orders to deliver them to the defen-. dants. On June 9th, a commission of bankruptcy was issued against Cripps & Co., and their effects assigned to the plaintiffs. The letter of Cripps & Co. to the defendants was not received by them till the 13th of June, which was the first notice they had of the delivery to Penhallow; and they immediately signified their consent to take the goods again.

■ This case, in all its essential particulars, is like the present ease. The goods, as in this case, were delivered to, and the title vested in, the vendee-; they were deposited with a third person, by the vendee for the use of the vendor before the rights of creditors attached, and written notice of such deposit and of the failure of the vendee given to the vendor, and the goods actually attached before the vendor attempted to reclaim them. ■

In tie decision of the case of Atkins v. Barwick, the chief justice held that “ the delivery to Penhallow to the use of the defendants before the act of bankruptcy, and grounded on a good consideration, transferred the absolute property to them.” Fortescve, J., said, that payment in satisfaction of the debt was a good consideration, and “ we will intend an acceptance till the contrary appears.” Eyre, J., said: “The precedent debt is a sufficient consideration, and it vests before notice [the title, he means] ; for it being to his benefit, a disagreement shall not be presumed.”- ■

I have quoted this case thus fully because it is a leading one, and, if good, law, is quite conclusive of the case now under consideration. This case of Atkins v. Barwick has been much discussed and much questioned, but not in any case overruled.. In Harmon v. Fishar (1 Cowp., 125), Lord Mansfield said of it, that, “ with respect to the case of Atkins v. Barwick, the judgment seemed right, but the reasons, wrong.” In Neate v. Ball (2 East., 117), Lord Kenyon discussed it, and said that Lord Mansfield had extracted the true ground on which that judgment, if it did not proceed, ought to have proceeded; namely, that the trader, finding himself in failing circumstances, very honestly did not accept the goods, but returned them. But this distinction is obviously unsound and untenable. The bankrupt had th.e goods in possession for some time. They were sent him the 7th of April, and were in his possession, and sent by him for deposit with the third person on the 18th of May, more than forty days after being delivered to the vendee, or to the carrier for him; and were in his. actual possession when so deposited. The title to them had absolutely vested before such deposit. They were not intercepted by. the way, or the order of- purchase countermanded before the actual receipt of the goods. But Lord Kenyon, and the. whole Court of King’s Bench, did recognize the case of Atkins v. Barwick as sound law in Saltz v. Field (5 Term, 211). Speaking of the case under consideration, Lord Kenyon there said: “ I cannot distinguish this case from Atkins v. Barwick on principle; for in that case there had been a delivery of the goods by the seller, with the concurrence of all the. parties interested. But the agreement of the parties to rescind that contract put an end to the sale, as if it had never taken place.” Ashhurst, J., said:. “ The case in Strange applies to the present case,” Buller, J., said: “ The principle on which the case of Atkins v. Barwick w.as decided governs this.” In Smith v. Field (5 Term, 402), the same court again affirmed the case of Atkins v. Barwick, and recognized it as sound law. The case has also been questioned in our courts. In Berly v. Taylor (5 Hill, 581), Judge Bronson discusses it, and, after referring to the various cases, says of it, that, “ although it seems never to have been overruled, it would be difficult to supp.ort it upon principle without altering some of the facts.” But this was in a dissenting opinion. And in the same case, Judge Cowen, who gave the opinion of the court, considers and discusses the case, and declares that it has never been overruled, adopts its reasoning, and affirms the principle upon which it was decided,