Gass v. Mills

There is no substantial dispute as to the facts in this case. The plaintiff, on or about the 3d day of January, 1905, ordered from one John B. Wickery, an agent of the International Mahogany Company, 25,000 feet of cypress lumber of specified quality and size, to be delivered to plaintiff free on board the dock in the city of New York, at the price, of $27 per 1,000 feet, the plaintiff to pay therefor by paying cash for the freight charges at the. time of delivery and the balance by his promissory note payable in 90 days thereafter. On or about the 4th day of March, 1905, a carload of cypress lumber was shipped from Gibson, La., by the Gibson Cypress Lumber Company, by way of the Morgan’s Louisiana & Texas Railroad & Steamship Company, consigned to the International Mahogany Company at the city of New York. On the 18th of the same month the International Mahogany Company assigned its claim for payment of the purchase price of said bill of lumber to the defendant; the plaintiff assenting. This car load of lumber arrived at the Morgan Steamship Company’s dock in the. city of New York on the 30th day of March, 1905, and was completely discharged on said dock at 3 p.

There is no question libre that the lumber delivered was of the quality and character contemplated, or that there was the amount agreed upon, and under well-settled rules the plaintiff, on the delivery of the' lumber at the point fixed in the contract, became vested with the title to such lumber. It may be assumed that there was, as between the vendor and purchaser, a right on the part of the plaintiff to inspect the lumber, and to reject the same if it did not come up to the requirements; but there can be no presumption that the sellers violated the obligations of their contract, and clearly, in the absence of allegations and proofs showing that the lumber was not such as the contract called for, -there can be no doubt of the fact that upon the delivery by the carrier at the point designated in the contract the title would vest immediately in the plaintiff, and the lumber would thereafter be at the risk 'of the plaintiff. Pierson v. Crooks, 115 N. Y. 539 , 548, 22 N. E. 349 , 12 Am. St. Rep. 831 . Under the facts as they must be presumed here, the lumber was just what the plaintiff had bargained for, and, if this is true, the fact that the plaintiff did not have an opportunity to inspect the lumber previous to the time that the steamship company refused to deliver the same to him has no possible bearing upon the case. He owned the lumber; it had not only been delivered,to him-at the point designated, but he had been given the bill of lading, with the intention on the part of all parties that it should be effective; and it is settled beyond dispute that in such a case the delivery of the bill of lading not only passes title to the party receiving the same, but, in the eye-of the law, the transfer of the bill of lading is regarded as an actual delivery and an actual change of possession of the" property. Commercial Bank of Keokuk v. Pfeiffer, 108 N. Y. 242 , 250, 15 N. E. 311 , and authorities there cited.

With the title to the lumber thus vested in the plaintiff a complicating transaction took place, although we do not see that it really made any particular difference with the merits of the case. On Monday evening, April 3, 1905, three days after the delivery on the dock, and two days after notification of such delivery and the delivery of the bill of lading, representatives of the defendant went to the office of the plaintiff- and the latter requested Mr. Williams, secretary of the defendant, to loan him $214.50, the amount of the freight. An arrangement was entered into by which the plaintiff borrowed of Mr. Williams the above-mentioned amount, giving his promissory note therefor, at the same time delivering his other promissory note for $538.12, the agreed amount of the bill for said lumber. At the same time the ‘plaintiff gave a chattel mortgage upon certain machinery to secure the payment of these notes; it being agreed that the chattel mortgage should not be recorded, and. that it should be surrendered, together with the said note for $538.12, upon the payment of the smaller note and the delivery to the defendant of a-new note for the larger amount, indorsed by one John Mulstein and payable in 90 days from the 3d

Whether we regard the note here involved as resting upon the original consideration, or as having vitality through the consideration of the surrender of its predecessor, does not seem important. The title to the lumber vested in the plaintiff, as a matter of law, as early as April 1, 1905, if not on the 31st day of March. From that time forward he owed the purchase price of the lumber to the defendant, and it remained in the possession of the steamship company at -the risk of the plaintiff. If the plaintiff had secured the cash upon the check on the 4th day of April, and had tendered the same, with the shipping-papers, there is no reason to believe that the lumber would not have been delivered. Certainly at that time the steamship company did not refuse delivery because of any stop orders, but because the plaintiff had tendered a check instead of cash. The plaintiff appears to have persisted in tendering a check on the 5th day of April, and it was not until the 6th day of April that, upon a tender of cash, the steamship company refused to deliver because of the alleged stop order. There is no question raised that the plaintiff had a perfect right to receive the lumber on all of these days so far as the defendant is concerned. It had done everything that was required to’ vest title and possession in the plaintiff, and if the latter had paid the freight, as he was

The judgment appealed from should be reversed.

Judgment reversed, and new trial granted; costs to abide the final award of costs. All concur, except HOOKER, J., who dissents.