Hyperlawhypertext legal database Buckley v. Furniss 17 Wend. 504

← Cases

Buckley v. Furniss

17 Wend. 504 Court N.Y. Sup. Ct. English

Delivered by Bronson, J.

Contents

Majority

p. 284
Buckley vs. Furniss and Stickney.

Headnote

Where a party, residing at a distance from his correspondent, ordered a quantity of merchandise, directing it to be forwarded to an intermediate place, and the goods were accordingly ' forwarded ; and after their arrival at the intermediate place were delivered to a common carrier, employed by the purchaser, but before reaching his residence the possession of the goods was resumed by the vendor on the ground of the insolvency of the purchasers ; it was held, that the goods not having arrived at the place of their final destination, the transitas was not ended, and the vendor had a right to stop and detain them until their price was paid; and that he might do so, notwithstanding that & portion of the goods ordered had been actually received by the purchaser at his residence, previous to the exercise of the right of stoppage as to the residue.[1]
In this case a new trial was granted in January term, 1836 (see 15 Wend. 137 ), and a trial had accordingly. The only diffet ence in the facts on the new trial, from what they appeared on the former trial was, that the defendants offered to prove, 1. That one load of iron transported to Plattsburgh,
p. 285
had been taken from the warehouse there by a wagoner employed by Titus, and actually delivered to him at Titusville, a few days before the plaintiff replevied the 41 bars at Malone; and 2, That previous to the replevin Titus assigned his property, including the iron in question, to Furniss and. certain other creditors, and delivered a part of the property under the assignment: which evidence thus offered was rejected on the second trial; to which decision the defendants excepted and now moved to a second new [505] trial.
P. Gansevoort, for the defendants.
S. Stevens, for the plaintiff.

By the Court,

That the attachment did not defeat the vendor’s right to stop the goods, was decided when the parties were before the court on a former occasion (15 Wendell, 137). The assignment which the defendants now offered to prove, stands on the same footing.

The only new question arrising on this bill of exceptions, is that growing out of the fact that one wagon load of the iron had arrived at Titusville and. been delivered to the vendee before the plaintiff intercepted the residue. I see no reason why this should be deemed a delivery of all the iron, so as to destroy the right of stopping another parcel which was still on the way between the vendor and the vendee. Although the property was all ordered at one time and forwarded by one conveyance, it was separated on the journey; and from that time the vendor was, I think, at liberty to arrest any parcel of the property before.the transitus as to such parcel was at an end. The cases on which the defendants rely are distinguishable from the one at bar. In Shibey v. Heyward (2 H. Black, 504), the whole of the property arrived at the port of delivery, the consignees made a entry of the cargo at the custom house, and actually removed a part of it from the ship before the consignor attempted to stop the goods. He was then too late. In Hammond v. Henderson (4 Bos. & Pul. 69), the vendor and vendee both lived in the same town, and the goods lay at the wharf of a third person. The vendee, having received an order for the delivery of the property, went to the wharf, weighed the whole and took away a part, and it was held that the vendor had then no right to stop the residue. In each of these cases there was what Lord Eilenborough, C. J., in Hanson v. Meyer (6 East, 614), called “an unequivocal act of possession and ownership as to the whole [506] quantity sold on the part of the buyer,” before the vendor attempted to exercise the right of stopping the goods. In the case at bar there had been no such act on the part of the vendee as to the 4t bars of iron in question.' The case of Hanson v. Meyer, is an authority for saying, that a part of a quantity of goods purchased at one time and in one parcel, may be stopped by the vendor, notwithstanding the fact that another portion of the goods have been actually'delivered to the vendee. The plaintiff is entitled to judgment on the verdict.

Hew trial denied.

Cases cited