
    Grosvenor & Starr vs. Phillips.
    Where goods were put in charge of a carrier by M. to be transported to G. & S., commission merchants, to meet advances made by them, and in pursuance of a special agreement for that purpose, M. sending by mail to G. & S. at or about the same time an invoice of the goods: Held, that a vested interest in the goods passed to the consignees, G. & S., entitling them to maintain replevin against a sheriff who had, after the delivery to the carrier, levied upon the goods in virtue of an execution against M.
    
      Semble, that if G. & S. had been mere factors or commission merchants, not having made advances on the credit of the goods, they would have acquired no property in them except in virtue of their lien, which could not attach till the goods came into their actual possession.
    Where there is an agreement between the consignor and consignee, that the latter shall make advances on the credit of goods sent to him by the former, and hold and dispose of them upon commission for his reimbursement, the consignee acquires a vested interest in the goods, although they fail to come into his actual possession. His interest attaches the moment the goods are put in charge of the carrier for transportation.
    Such an agreement may be inferred from circumstances, or shown by direct and positive testimony.
    
      Replevin in the cepit may be maintained for a tortious tailing of goods in which the plaintiff has either a general or a special property.
    Replevin, tried at the Onondaga circuit, April 1841, before Moseley, C. Judge. The action was for taking and detaining certain brown manufactured cloths. On the trial it was admitted that the taking complained of, was a levy-on the goods by the defendant, sheriff of Onondaga, in virtue of two writs of fi. fa. against Robert Muir. Muir was introduced as a witness by the plaintiffs, and testified that the goods in question had, before the levy, been forwarded by him to the plaintiffs, merchants in the city of New-York, trading under the style of S. Grosvenor & Co., pursuant to their instructions, by being delivered to the agent of the Auburn & Syracuse Rail-Road Company. This was on the 17th of October, 1840; and the plaintiffs’ instructions were received from the 6th, to the 12th, of the same month, while Muir, the witness, was in the city of New-York. Witness was not to advance money for the transportation, and they were accordingly sent subject to charges, first by the rail-road, whence they were to be taken by boatmen on the canal, who were to pay the rail-road company their charges to .Syracuse ; they to get their pay on delivering the goods in New-York. No bill of freight was sent. Muir further testified, that the plaintiffs were commission merchants in New-York, and sold goods for him, of his manufacture, at six and a half per cent, commission. He had manufactured the goods in question, and did business in Auburn, and had been doing business in that way with the plaintiffs, from the preceding month of May; ' after which time, he had sent. the plaintiffs all the brown goods he had made. The plaintiffs were in the habit of furnishing him from time to time with an account of sales. He had not settled with them, between May and October; but an account current was furnished by them, on the 8th of July, 1840, which the witness read. He had other accounts of sales. Under an agreement between witness and the plaintiffs, they furnished him with cotton, for which he was to send them brown cloths. This agreement was made in June. The goods he sent were to cover advances. If these goods had been sold for more, the surplus would have been his. The goods were-all sent in the same way. There was no alteration of the terms upon which they were to sell. He produced an account of sales, to which was attached a letter, dated August 15th, 1840, concerning the prices at which the plaintiffs were selling and proposed to sell; also an account and letter of the plaintiffs of the 1st October, 1840. These two latter accounts were produced at the request of the defendant’s counsel, and the last shewed a considerable balance in favor of the plaintiffs, and claiming to have goods shipped in order to cover it. Among other things, they claimed to have goods shipped against Muir’s note of $2000. The witness had sent an invoice of the goods in question by mail on the 17th or 18th of October, 1840. To this was attached a note stating them at eight bales, “sent you this day per rail-road, after some little delay. They will now be crowded through.” The plaintiffs paid transportation and charged it to the witness. These were the goods in question, and they were worth about $300.
    In June the plaintiffs discounted a note for Muir, of $2000 at four months, which was to be paid by the proceeds of goods from time to time. The goods were not sent in season to pay it. The plaintiffs were always in advance. They had the control of the goods when sent to them, to do with them as they chose. They paid for the witness a bill of cotton in the fall of 1840, of about $700, and were to take their pay in goods as they were sent. He was -to remit them goods for it about the 1st of October. They purchased thirty-one bales of cotton and sent to him. Witness said he considered that he sent the brown goods to them to pay for cotton purchased and notes discounted. , He did not consider that he had any control over the goods in the invoice, after they hád been delivered to the carrier. He engaged when in New-York, in October, to send them goods to pay for the discounted notes, and cotton purchased. The goods in question were shipped pursuant to that agreement. Some of these advances are referred to in their letter of October 1st. The goods in question were marked with the number of the bale, number of pieces and yards, and directed to S. Grosvenor & Go., and this had been the usual mode of directing goods from the witness to them.
    Upon this evidence the plaintiffs rested, and the defendant’s counsel moved for a nonsuit on the ground that the plaintiffs had not proved that they had any such interest in the goods in question, nor had they proved such possession of the goods, nor such wrongful taking of them from their possession, as would justify a recovery in this suit. The motion being granted, the plaintiffs’ counsel now moved to set aside the nonsuit, and for a new trial, on a case.
    
      N. Beardsley, for the plaintiffs.
    
      W. T. Worden, for the defendant.
   By the Court,

Cowen, J.

Whether the plaintiffs had a vested interest in the goods, on their passing into the hands of the rail-road agent, is the main question to be considered.

That the plaintiffs were acting as factors or commission merchants for Muir, in respect to the goods in question, need not be denied; nor that if they were mere factors or commission merchants, they could have no such interest as interfered with the defendant’s right to levy, except in virtue of their lien, which could not attach till after the goods came into their actual possession. (Cross on Lien, 251. Bruce v. Wait, 3 Mees. &c. Welsh. 15. Kinlock v. Craig, 3 T. R. 119, 783. Nichols v. Clent, 3 Price, 547. Vid. also Sess. Laws of N. W. 1830, p. 203, and 1 R. S. 762, 2d ed.) But it is now entirely settled that the relation between the principal and his agent for selling goods, for Instance, where the consignor sends the goods to be sold, taking their risk in transitu, and allowing commissions of sale, does not necessarily preclude the passing of such a vested property in the consignee as entitles him to the usual remedies of an absolute vendee. Such cases occur where there is an agreement between the consignor and consignee, that the latter shall make advances on the credit of the goods, and hold and dispose of them upon commission for his re-imbursement. (Vid. the opinions of the judges in Patten v. Thompson, 5 Maule & Selw. 350; Vertue v. Jewell, 4 Campb. 31; Cuming v. Brown, 9 East, 506; Cross on Lien, 252.) An agreement to this effect; may be either inferred from circumstances or shown by a direct and express agreement. An instance of the former may be seen in the late case of Holbrook v. Wight, (24 Wendell, 169;) of the latter in Haille v. Smith, (1 Bos. & Pull. 563,) in the exchequer chamber. In both cases, the goods had failed actually to reach the hands of the consignees; and in both a great effort was made to show that although the goods were transmitted with the view to secure advances by the agent, he was yet a mere commission dealer. But he was held to be more; viz. a qualified vendee or pledgee; perhaps a vendee in trust, as was said in Haille v. Smith. But in whatever terms he be characterized, there passes to him a vested interest. Eyre, J. said of the last case, From the moment the goods were set apart for this particular purpose, why should we not hold the property in them to have been changed, it being in perfect conformity to the agreement, and such an execution thereof as the justice of the case requires? I see no reason why we should not expound the doctrine of transfer very largely upon the agreement of the parties, and upon their intent to carry the substance of that agreement into execution. This will lead to the conclusion that the moment the goods were put on board the Hawke, and the bill of lading was endorsed and remitted to Smith & Atkinson, (the agents,) the property was changed and was to remain in their hands, clothed with the trust expressed in the agreement.” (And see Vertue v. Jewell, 4 Campb. 31, 33, per Lord Ellenborough; also Cross on Lien, 253.) It was said in argument, that there was a bill of lading in Haille v. Smith; but there is no magic' in such a document, especially as between the original parties. (Cross on Lien, 253. Bryans v. Nix, 4 Mees. & Welsh. 791.) It may be endorsed for various purposes, not only as evidence of an absolute sale, but of a trust, a pledge or a mere agency, either of which is always provable by paroi. The facts so fully shown by Muir’s testimony in the case at bar, viz. that the plaintiffs being in advance for him in a sum far beyond the value of the goods, he agreed to send them for sale as a satisfaction, and placed them with the rail-road agent for that purpose, transmitting an invoice, and declaring his purpose by mail, was entirely equivalent to a similar transaction accompanied with a bill of lading. (Id. id.) The case cannot possibly be distinguished in principle from that of Ilaille v. Smith, which has never been questioned ; and Holbrook v. Wight, is still stronger for the plaintiffs. The case of Anderson v. Clark, (2 Bing. 300.) of which I was not aware when examining Holbrook v. Wight, also goes the. full length of that case. (And vid. Cross on Lien, 253.)

The cases cited in support of the nonsuit, are, nearly all, either those of a mere factor or commission merchant, and no interest ultra, or of stoppage in transitu. The latter depends on considerations entirely different •; coming in where the title to the goods has confessedly passed by a constructive delivery to a carrier, for the vendee. The right to stop, assumes that the vendee has acquired a title, such as would enable him to bring trover, were it not for his insolvency. The latter is held to raise a lien for the purchase money. Such cases are in favor of the plaintiff’s claim in the case at bar; for they had actually advanced the money.

Holbrook v. Wight, was replevin in the detinet; but whether we regard the transaction as a pledge or sale in trust, it is quite plain that the talcing was tortious, in such a sense as will sustain the action in the cep it. The latter lies for tortiously taking goods in which the plaintiff has either a general or special property. The claim is not that the plaintiffs had an implied lien for their general balance. That they could not have without actual possession; but it is otherwise of a conventional lien by way of express pledge or mortgage. This may as well be raised in the hands of a carrier as a right by absolute sale. Haille v. Smith, was no more. The goods were there delivered to a carrier, with a view to their being collateral security in the hands of the commission merchants, for their advances to their principals.

The nonsuit must be set aside, and a new trial granted; the costs to abide the event.

New trial granted.  