
    Graff & Co. vs. R. & A. P. Caldwell.
    New trial ordered for the third time for error in the instructions of the Recorder to the jury.
    IN THE CITY COURT OF CHARLESTON, MAY TERM, 1855.
    The report of his Honor, the Recorder, is as follows:
    “As I understand this case, (all the facts in which, have been submitted to a jury, upon two several occasions,) it is simply this, the plaintiffs merchants in Baltimore, sold to one Bingley, then being in Baltimore, several casks or hogsheads of brandy, which under his (Bingley’s) direction, were shipped to the defendants, Auctioneers and Commission Merchants, in Charleston. The usual bills of lading for these goods, were signed by the masters or authorized officers, of the Schooner Maryland. They were consigned directly to the defendants. Previously to the arrival of the goods, the defendants, had received from Bingley, by mail, one of the bills of lading, upon the faith of which, it would appear, they had made advances to Bingley, to the amount, or nearly so, of the value of the goods. Bingley’s name did not appear in the bill of lading, that is to say, the goods, were consigned, not to Bingley or his order, but directly to the defendants, without any notice, or intimation from the plaintiffs to the defendants, in regard to any supposed right of property or interest of the plaintiffs, in the shipment, previously to its arrival.
    “Upon the arrival of the goods, and after part delivery of the same, the agent, of the Schooner Maryland, received instructions, not to deliver the same, to the consignees. He communicated his instructions to the defendants, they claimed the right of possession to the goods shipped to them, as the consignees and as having already advanced to the party, from whopi they had received the bill of lading, and knew nothing of the plaintiffs in the transaction. The goods were afterwards sold at auction, on account of Bingley, and the proceeds were placed to the credit of his account with the defendants. The plaintiffs now claim to recover in this action, the amount of the sales (either in whole or in part) from the defendants as accountable to them, and not to Bingley. The gist of their claim, appeared to depend upon the allegation, that as between themselves and Bingley, the sale being a conditional one, and the terms of the sale not complied with, that the possession of the bill of lading, was no absolute transfer of the property, either to him, or to the persons to whom, under his (Bingley’s) directions, the goods were consigned. It was-not pretended by the plaintiffs-, that the defendants acted otherwise, than in the utmost good faith, in the entire transaction. Their complaint seemed rather to be, that they had been deceived by Bingley, in the sale, and that he had not complied with the conditions as understood between them. As between Bingley and the plaintiffs, the condition of the sale referred'to, appeared to be cash, before or on delivery of the goods; the cash was not paid, but the goods were shipped by the plaintiffs, under the direction of Bingley, to the consignees, (the defendants) in Charleston, and received by them as already stated. This case has been already before the Court of Appeals upon two previous occasions; — upon the first', trial, the Court below, granted a nonsuit, (see 7 Bichardson, page 383) the Court of Appeals set the nonsuit aside, and ordered a new trial, the cause was retried, and under the view of the case expressed by the Court of Appeals, the jury found a verdict for the defendants; this was also appealed from, and for the reasons assigned in the opinion of the Court of Appeal (see 8 Bichardson, page 130) a new trial was again ordered; that trial was had, in May Term, 1855, and taking the opinion of the Court of Appeals previously expressed in the same case, as settling all the legal principles involved, the jury under my instructions as to the law, (they being the judges of the facts,) found a verdict for the defendants. The testimony upon all these trials has been substantially the same, except upon the last, in which was introduced on the part of the defendants for the first time, the testimony of R. M. Alexander, in regard to an interview between Mr. Corkey, either one of the plaintiffs, or the acknowledged agent of the firm. I regarded his testimony as important, (although by no means conclusive,) and entitled to great consideration. The jury, consisting in part of some of the most intelligent merchants in Charleston, familiar with the ordinary mercantile transaction of business, found a verdict for the defendants. I have received a notice of appeal from the plaintiffs’ attorneys, which will be hereto annexed. I will also endeavor to subjoin a statement of the evidence, written and oral, which were introduced upon this (as yet) last trial of the cause of Graff Co. vs. B. A. P. Caldwell, if I should find it necessary or proper to do so. The following are the grounds of appeal served on me by the plaintiffs’ attorneys, which I suppose dispenses with any further representation, or detailed statement of the case, than the grounds of appeal properly call for.
    “ Grounds of appeal.
    “ His Honor, the Recorder, will please take notice, that a motion for a new trial in this case, will be made before the next ensuing Court of Appeals, on the following grounds, viz.:
    
      “1. Because his Honor erred in charging the jury that R. & A. P. Caldwell were in law, not responsible upon the bill of lading to Graff & Company, and were therefore not bound to account to them for the proceeds of the goods sold by them as auctioneers.
    
      “2. Because his Honor in commenting on the opinion expressed by the Court of Appeals, and reported in 8 Rich, page 133, erred in stating that the doctrine of stoppage in transitu 
      was involved in this case, and was the only pretext for the action of Graff & Company, and that there being no insolvency alleged in this case, the right could not be exercised.
    “3. Because his Honor erred in charging the jury that the possession of the bill of lading by Bingley, was a constructive delivery of the goods to Bingley, and that plaintiffs were bound to, rebut that presumption.
    “ 4. Because his Honor erred in charging that the sale as shown by the letter of Graff & Company, was not a conditional sale, but was rendered unconditional by the delivery of the bill of lading to Bingley.
    “ 5. Because the Court did not present to the jury one single aspect of the case in which the plaintiffs could by possibility recover.
    “ 6. Because in other respects, the verdict was contrary to law and evidence.
    Brown & Porter,
    
      Appellants’ Attorneys. •
    “ In answer to the first ground of appeal, I have to state, that although in giving a history of the case, or in commenting upon it, I must have necessarily said that I had originally doubted the plaintiffs’ right of recovery against the defendants, upon the simple force and effect of the mere bill of lading to them, unaided by any extrinsic evidence, yet, as the Court of Appeals had decided otherwise, and that the defendants were accountable to the plaintiffs prima facie at least, and bound to show and submit their defence to the jury, that point should be regarded as settled and beyond question.
    
      “ As to the second ground of appeal, I may have remarked to the jury, that I thought the plaintiffs’ claim against the defendants in this case, was founded upon, or more or less connected with, the exercise of the right of stoppage in transitu ; but in all my instructions to the jury, I called their attention to the cardinal principles upon which the Court of Appeals had decided the cause should turn. Among these, the main one seemed to be the fact (if established), of an actual sale, and a delivery, either real or constructive, of the goods in question, to Bingley in Baltimore.
    
      “ As to the third ground, I did think under the circumstances, and so instructed the jury, that, as between the plaintiffs and the defendants, the actual shipping of the goods on board the schooner Maryland, consigned to the defendants, under the direction or sanction of Bingley, and a bill of lading therefor given to Bingley, amounted to, if not a real, at least, a constructive delivery to Bingley, and that the defendants were, under the circumstances, fully warranted in regarding and treating with Bingley as the real owner.
    “ As to the fourth ground of appeal, I have to state, the argument of the plaintiffs’ counsel, upon this branch of the case, was, that it appeared, from the letter of Graff & Co., to the .defendants, that the sale of Bingley was a conditional one, to wit: a sale for cash, and that the cash not having been paid, the sale was either void or voidable as to them ; and therefore no right of property was acquired by Bingley in the goods sold. However this may have been as between the original parties, vendor and vendee, even though a fraud had been practised, not to say a mere noncompliance, with the conditions of the sale, it could have no effect upon the position of third parties without notice, who had dealt in good faith upon the usual and legal force and effect of the evidence of his title to the goods. I failed to discover anything in the law which forbade a vendor to waive if he pleased, any specific or precedent condition in the contract of purchase, by an actual or even constructive delivery of the goods to the vendee, at least, as affecting the interest of third parties dealing with him as the true owner.
    “On the subject of a conditional sale, the defendants’ counsel cited the case of 'Dupre vs. Harrington, Harper’s Law Reports, page 391. I do not see the application of that case to this. In that case it was a part of the contract of sale, and understood between the parties, that the article sold, although the possession of it was delivered to the vendee, should nevertheless be subject to a certain pledge in the way of mortgage, and liable to be reclaimed by the vendor, upon the failure on the part of the vendee to comply with the condition of the sale; he sold to a third party, but it appeared that he was entirely cognizant of the condition of sale, had full notice of the facts, and was therefore to be regarded as standing precisely in the position of the original vendee. .
    “ As to the fifth ground of appeal, I admit that I failed to perceive, and therefore did not suggest to the jury, any possible aspect of the case, in which I could consider the plaintiffs entitled to recover ; this may have been my misfortune, or if a fault, one I submit to the Court of Appeals for their correction.
    “I have already referred to the testimony of Mr. Alexander, introduced for the first time on this last trial af the cause ; he testified to an interview, between a Mr. Corkey, one of the firm, or admitted to' be the person referred to in the letter of the plaintiffs to the defendants. This was after the misunderstanding had occurred between the plaintiffs and the defendants. The goods had been sold, and the proceeds placed to the credit of Bingley. I give the substance of his evidence below :
    “ ‘ H. M. Alexander, sworn. — A man by the name of Corkey, representing the plaintiffs, came to the house of the defendants, in regard to this matter, in the winter of 1852, in December, shortly after this business occurred with Bingley about this brandy. Corkey said he had called on Caldwell, to see about this brandy — represented himself as one of the firm — said that they had sold Bingley the brandy, and he (Bingley) had represented himself as the agent of Caldwell — they considered Bingley as a d — d rascal, and they would make him pay for the brandy — there was discussion between the parties — the result of which was, Mr. Corkey expressed himself satisfied with Messrs. Caldwell’s correctness in the transaction, and that they were not liable to them, but would be glad to open a more extended business.
    “ ‘ Oross-examined. — Brandy was received in November— there was some hindrance in the delivery of the brandy.
    “ ‘ In reply. — Parties were talking about half an hour— knows Bingley — would have advanced at this time — defendants retained the proceeds.’
    “ A copy of the bill of lading sued upon, and one of the three offered in defence, may be hereto annexed, if thought necessary by the counsel in the cause; also a copy of the letter of the plaintiffs to the defendants, which seems to be material to the decision of the matter involved. I have not at present before me, nor been furnised with copies of either document, but think they have been in the previous recorded history of the case, sufficiently stereotyped.
    “ Outside of the grounds of appeal, with which I have been served, I do not think it improper to state, that assuming upon the facts, there might be a balance in the hands of the defendants, arising from the sale of the brandies, over and above their advances to Bingley, upon that shipment, yet that the plaintiffs were not entitled to recover in this form of action, whatever amount.may have remained in their hands, after their reimbursement of the advances made to Bingley. That supposing this to be the fact, (of which the jury were to judge upon the evidence submitted to them,) the result would be, that the defendants having no privity of contract with the plaintiffs, in regard to the goods in question, or their proceeds, would simply stand in the relation of debtors to Bingley, and the funds in their hands liable to be attached by the plaintiffs, in Bingley’s absence, as attaching creditors.”
    
      Brown, Porter, for appellants.
    
      MeCready, contra.
   The opinion of the Court was delivered by

O'Neall, J.

In this case it is with deep regret that we • are constrained to order it back for a third examination in the City Court. This regret arises, not from the number of times that this case has to pass the review of this or the City Court. For justice ought to be attained, no matter how many trials may be necessary for that purpose. But.our regret is, that the Recorder should so manifestly set himself to obtain a result directly in opposition to the unanimously expressed views of this Court. How useless such a course is, may be seen in the sequel of this, as it has been in many other cases. Two things have been settled by the previous adjudications. 1st. That the defendants were liable to account to the plaintiffs for the proceeds of the goods, unless they (the defendants) could show that the right of these plaintiffs has been transferred to some other person. 2d. That the mere possession of the bill of lading by Bingley, did not authorise the defendants to consider him as owner. 7 Rich. 333; 8 Rich. 129.

Nqither of these propositions seem to have met the approbation of the Recorder. For under the third head of his charge as stated in his report, he attached all the consequences of ownership to the bill of lading, delivered to Bingley. For as to the shipment at Baltimore and consignment to the defendants neither constituted any evidence of ownership on the part of Bingley. Yet the Recorder found in them and the possession of the bill of lading, a constructive delivery of the goods to Bingley. In considering the question of a conditional sale, we think the Recorder was also in error.

If the facts showed, as the plaintiffs contended, that their sale was conditional, I have no doubt that the defendants could not set up any rights of Bingley against it. Eor they are not purchasers. They are the consignees of the plaintiffs undertaking to show that they were right in paying a part of the proceeds of the goods sold by them as auctioneers to another person. So, too, it appears that they had funds of Bingley to an amount very nearly sufficient, if not quite enough to reimburse their advance. In either point of view this is substantially an attempt to protect Bingley as the purchaser of the plaintiffs’ goods, when he has not paid a dollar for them, and therefore has failed to comply with the condition of the sale. How does a defence thus set up ancl maintained comport with mercantile fairness and justice ? The Recorder tells us he' failed to perceive any aspect of the case in which he thought the plaintiffs entitled to recover, and therefore did not present any grounds to the jury in which they might recover. This is, to say the least, rather a strange submission to a jury. Every case, litigated as this has been, one would think had two sides to it deserving of being looked at by a jury. To me it seems the plaintiffs have a great deal to present to the consideration of the jury to show that they are entitled to recover.

Beyond all doubt they were once owners. So, too, they shipped the goods to the defendants. Resting there, the decision in 7 Rich. 333, gave them a plain right to recover. How has that been defeated ? It could only be defeated by showing a sale to Bingley. Has this been done ? The bill of lading received by defendants from Bingley does not prove it. It may be that that fact, coupled with Mr. Alexander’s testimony, may bring a jury to that conclusion. But it must be remembered the case was not thus submitted to the jury.

The plaintiffs, however, are entitled to have opposed to this view, their letter, which was in evidence, showing a conditional sale to Bingley in the first instance, and then'a shipment on their own account to the defendants, and the statement in one of Mr. Baker’s letters, that the defendants promised to keep the nett proceeds of the sale of brandy subject to the plaintiffs’ order, and in another, “ if Bingley would pay to ■ them (the plaintiffs) the defendants’ advance, they (the defendants) would account for the remainder.”

The motion for a new trial is granted.

Wardlaw, Withers and Whither, JJ., concurred.

Motion granted,  