Judah v. Kemp — 2 Johns. Cas. 411

Majority

p. 411

*Judah and others against Kemp.

Headnote

Where A. shipped goods by B. the master of a vessel at London for New York, and the consignee assigned the bill of lading to C. who demanded the goods and tendered a sum of money for the freight, but whether enough did not appear; B. refused to deliver the goods, assigning as a reason that he was ordered by the ship-owners not to deliver them, and made no objection as to the tender of the freight; in an action of trover against B. it was held, that he had waived any tender of the freight; and that his refusal was evidence of a conversion.

This was an action of trover for goods shipped by one of the plaintiffs, residing in London, on board of the ship Factor, of which the defendant was master, for New York. The ship arrived at New York on the 22d of December, 1799, and on the next' day the consignee assigned the bill of lading to the plaintiffs, who are partners, some of whom reside in New York. The endorsement on the bill of lading was as follows : “ For value received, I assign the cases and goods within mentioned to Benjamin S. Judah and brothers or order. 23d December, 1799. N. Judah.” The goods were entered at the custom house by the plaintiffs, anda permit for landing them obtained, and delivered by them to the custom house officer.

On the 3d January, 1800, the plaintiffs demanded the goods of the defendant, who refused to deliver them, alleging that he had orders from the ship-owners not to deliver them. At the time of the demand, a sum of money was tendered to the defendant for the freight, but whether it was equal to the freight or not, did not appear; nor was the permit then shown or presented to the defendant.

It appeared that the goods had been previously sold by the ship-owners, and that the permit was in the hands of the custom house officer when the goods were landed, who did not observe the persons who took away the goods.

A verdict was taken for the plaintiffs, subject to the opinion of the court, on a case containing the above facts.

The counsel for the defendants, contended, 1. That the assignment endorsed on the bills of lading, and the delivery thereof, did not transfer the property so as to support this action. 2. That the plaintiffs did not show that the freight had been tendered. 3. That the permit to *land the goods ought to have been presented to the defendant.

B. Livingston, for the plaintiffs.

Hamilton, contra.

When the defendant refused to deliver the goods on the ground that his owners had ordered him not to deliver them, a tender of the freight was not necessary. The plaintiffs, however, did tender a sum of money for freight, though the amount does not appear ; but as the defendant did not make any demand of freight, nor object to the tender, it was sufficient. The goods were not detained by the defendant on the ground of his lien, but for a different reason, which amounted to a waiver of the tender.(^[1] ) His refusal, therefore, is evidence of a conversion, and the plaintiffs are entitled to judgment.(^[2] )

Judgment for the plaintiffs.

a a (а) See note to Coit v. Houston, infra, vol. 3, p. 243.

b b (b) The books are so full of cases confirmatory of this principle, that no references are needed. See, however, Archbold’s Nisi Prius, 457, 458. 3 Stephens’ N. P. 2682, et seq. 3 Harrison’s Dig. Am. ed. 1846, p. 6405, et seq. 5 id. 1702, et seq. 4 New York Digest (Clerke’s) ed. 1845, p. 1159. Minot’s Dig. 084, et seq. 3 United States Digest, 587, et seq. 2 Supplement to United States Dig. 878, et seq.