tember, 1823, the plaintiffs bought of Messrs. Moberly and Bell, by contract, 300 casks of tallow, at 40s. per cwt. On the 27th September, in part fulfilment of the contract, Messrs. Moberly and Bell sent to the plaintiffs a transfer note signed by the defendants, who were wharfingers, in these words: "Messrs. J. and B. Hawes, we have this day transferred to your account (by virtue of an order from Messrs. Moberly and Bell) 100 casks tallow, ex Matilda, with charges from October 10th, 1823. H. and M. 100 casks." Upon receipt of this, the plaintiff's gave Messrs. Moberly and Bell their acceptance for 28804., the amount of the tallow, which was paid when due, and shortly afterwards re-sold twenty-one casks to a third party, which the defendants delivered in obedience to their order so to do. On the 11th October, Messrs. Moberly and Bell stopped payment, and on the 14th October, Messrs. Raikes and Co. the original vendors, sent notice to the defendants not to deliver the remainder of the tallow to Messrs. Moberly and Bell, or their order. The defendants in consequence refused to deliver the remainder of the tallow to the plaintiffs, on their demand, and the present action was brought. On the part of the defendants, it appeared, that on the 26th September, Messrs. Moberly and Bell had bought these same 100 casks of tallow of Messrs. Raikes and Co. landed out of the Matilda, lying at Watson's wharf, at 41s. per cwt. to be paid for in cash, allowing two and a half per cent. discount, and fourteen days for delivery; and on that day, Messrs. Raikes and Co. gave them a written order upon the defendants "to weigh, deliver, transfer, or rehouse" the tallow. Messrs. Moberly and Bell never paid Messrs. Raikes and Co. for the tallow, nor was it ever weighed after the delivery of that order. It was contended for the defendants, that the tallow not having been weighed, the delivery of it to Messrs. Moberly and Bell had never been completed, and consequently that Messrs. Raikes and Co. had a right to stop it in transitu in the hands of the defendants, who were bound to retain it as their agents. The IS24. HAWES v. WATSON. 1824. HAWES v. WATSON. learned Judge, however, was of opinion that the defendants having by their transfer note acknowledged that they held the tallow as the property of the plaintiffs, were estopped from afterwards disputing their title, and directed the jury to find their verdict for the plaintiffs. Copley, A. G., now moved for a new trial, on the ground of misdirection. This case falls within the rule of law laid down in Hanson v. Meyer (a). The tallow was sold at a certain price per cwt. and therefore the act of weighing was necessary, in order to complete the transfer. Then, until it was all weighed, Raikes, the original vendor, clearly had a right to stop it in transitu, and if he had that right, the defendants, who were his agents and representatives, had it also. What was said by Lord Ellenborough in Hanson v. Meyer, is strictly applicable to the defendants here: "The order stated in the case, from the defendant to the Bull porters, his agents, is to weigh and deliver all his starch. Till it was weighed, they, as his agents, were not authorized to deliver it." [Bayley, J. There the goods remained during the whole time in the name of the seller, and he paid the warehouse rent.] In this case the seller paid the warehouse rent for the tallow during a part of the time. [Bayley, J. But it did not continue in his name; on the contrary, there is an express acknowledgment by the defendants that it belonged to the plaintiffs. Abbott, C. J. Here Raikes's delivery order is, " to weigh, deliver, transfer, or rehouse" to Moberly and Bell; then there is a similar order from Moberly and Bell to the defendants; and there is the acknowledgment of the defendants to the plaintiffs, stating, "we have this day transferred to your account, by virtue of an order from Messrs. Moberly and Bell, 100 casks tallow, ex Matilda, with charges from October 10th, 1823.] The case of Shepley v. Davis (b) is a direct authority for the defendants in this case. There the plaintiff having hemp at his wharfinger's, sold a part of it, and gave the wharfinger an order to weigh and deliver, which he en(a) 6 East, 614. (b) 5 Taunt. 617. tered, and transferred the hemp in his books. Before the hemp was weighed, the buyer became insolvent; but it was held, that, as the weighing was a condition precedent to the delivery, the vendor was entitled to recover the hemp in an action of trover against the wharfinger. [Best, J. In that case, there was no acknowledgment by the defendants that they held the goods on account of the buyer; here there is; besides, there the original seller was the plaintiff, whereas here the plaintiff is an innocent and bonâ fide purchaser. Bayley, J. There are two material distinctions between that case and this; first, the contract there was confined to the original vendor and vendee, and the action was brought by the vendor, who had a right to rescind the contract; and second, the property was never transferred to any third person, nor did the wharfingers acknowledge that they held it on account of any third person.] It seems clear, from both these cases, that Raikes and Co. the original vendors, had a right to stop the delivery of the goods until they were paid, and if that be so, it follows that the defendants, as their wharfingers, were justified in retaining them at their order, and on their account. [Bayley, J. The contract here was complete between the plaintiffs and Moberly and Bell; they had paid Moberly and Bell the price of the goods; the defendants had held the goods as the property of Moberly and Bell, and therefore they cannot afterwards turn round and repudiate that act. Best, J. Upon the point of the transfer note given by the defendants to the plaintiffs, Stonard v. Dunkin (a) seems decisive of this case. Sup pose the goods had been burnt after that transfer note was given, could it be contended that Raikes and Co. would have been the sufferers? I apprehend clearly not.] The contract between Raikes and Co. and Moberly and Bell was not complete when the latter sold to the plaintiffs; the former, therefore, were at liberty to rescind it, and to stop. the goods as against all the world. Then the defendants were at liberty to hold the goods, when so stopped, on ac(a) 2 Camp. 344. 1824. HAWES WATSON. HAWES WATSON. 1824. count of Raikes and Co. A contrary decision must work the greatest hardship upon the wharfingers, and that most undeservedly, for they have acted bonâ fide for the interest of their employers. [Bayley, J. Raikes and Co. might have rescinded the contract, and stopped the goods as against Moberly and Bell, the original vendees; but their right so to do was gone when the interest of a third person intervened. That was decided in Stoveld v. Hughes (a), and other cases which might be mentioned, and that distinguishes this case from both those cited.] Still if the goods are resold by the original vendee before they are properly his, while they are yet actually in transitu, which is the fact here, that cannot bar the right of the original vendor to stop them. ABBOTT, C. J.-I am of opinion now, as I was at the trial, that after a party has paid his money upon a transfer note, such as that given in evidence on the present occasion, we should be enabling the defendants to do that which I cannot suppose they desire to do, namely, to cause an innocent man to lose his money, if we were not to hold that these plaintiffs are entitled to recover; and I cannot help thinking, that to treat this as a case of stoppage in transitu, would have the effect of putting a stop to a very large portion of the commerce of the city of London. It seems to me, therefore, that there is no ground for disturbing the verdict. BAYLEY, J.-I am of the same opinion. This appears to me to be perfectly different from the ordinary case of vendor and vendee. In the case of vendor and vendee, the justice is that the vendee shall not have the goods, unlesshe pays the price; and it is just and honest that, if the vendee cannot pay the price, the vendor shall have his goods back; but if the question arises, not between the original vendor and the original vendee, but between the original (a) 14 East, 308. Vide 6 East, 19 et seq. in notis. vendor and a purchaser from the vendee, that purchaser having paid the full price for the goods; then what is the justice, and honesty, and equity of the case: The honesty is, that the vendee who has paid the price, shall be entitled to have the possession of the goods. When Raikes and Co. signed a delivery order" to transfer, weigh, and deliver," that, according to the settled course and usage of trade, enabled Moberly and Bell to resell the goods; and there are many cases, one of which I have already mentioned, which decide, that if the first vendor does any act which can be considered as sanctioning the sale by his vendee, that destroys all right to stop in transitu. HOLROYD, J.-I think the transfer note given by the defendants to the plaintiffs makes an end of the present question. After that, the property in the goods was in the plaintiffs, and they were held by the defendants as the property of the plaintiffs, for which the plaintiffs were to be liable to the charges from the day mentioned in the transfer note, that is, from the 10th of October. This case is very different from that of Hanson v. Meyer. In that case, there was a sale of a large quantity of starch at a fixed price; the order was to weigh and deliver a part, and that having been delivered, but not the residue, the great question before the Court was, whether the weighing and delivery of a part was or was not, in point of law, a transfer of the property in the whole. The Court held, that it was not, and rightly so held; the price could not be ascertained, until the whole was weighed; the delivery of a part, therefore, was not a delivery of the whole; part being weighed and delivered, the order was complied with pro tanto, and the property in the residue remained surcharged until something further was done. It was not a delivery of a part for the whole, nor did the consequence follow by operation of law that it was a delivery of the whole, so as to deprive the vendor of his right to stop in transitu. But here, on receipt of the order to transfer, weigh, and deliver, the wharfingers sent an acknow 1824. HAWES V. WATSON. |