
    BRAND against FOCHT.
    
      Court of Appeals ;
    
    
      March Term, 1868.
    Statute of Feauds. —Delivebt of Bill of Lading.
    A delivery of property, to satisfy the requirements of the statute of frauds in respect to oral contracts of sale, must be a delivery by the vendor, with the intention of vesting the right of possession in the vendee; and there must be an actual acceptance by the latter, with the intent of taking possession as owner.
    If the facts do not indicate such mutual intention of the parties, the rule is not satisfied.
    If the buyer obtains a bill of lading from the seller, without any intention on the part of the seller to deliver it, and insists on retaining possession, against the remonstrance of the seller, he cannot avail himself of it to> make out his title.
    Appeal from a judgment.
    This action was brought by Christian Brand against Hiram Focht and Robert Glunson, to recover possession of a boat-load of coal.
    The complaint averred that the plaintiff was the owner of 172 tons of coal, laden on board the barge Ocean Queen ; that the defendants became possessed of the same, and detained it from the plaintiff, wherefore plaintiff demanded that the defendants should deliver the same to him or pay him the value thereof. The defendants denied all the allegations of the complaint, and set up that the property in question belonged to two other persons. On the trial it appeared that in March, 1863, the plaintiff, who was a coal- dealer, purchased of the defendants, also dealers in coal, a boat-load of coal, and the price agreed on was $6 a ton. “ It was to be delivered in from twelve days to two weeks—within two weeks.” The coal did not arrive in the city of ISTew York until May 8. The defendants then proposed to sell the coal to the plaintiff at $6.50 per ton, and made out a bill therefor, amounting to $774, and annexed it to the bill of lading for the coal, and sent the same by their clerk to the plaintiff, telling him he could have the coal at that price. Plaintiff refused to receive and take it at that price, insisting that he had purchased it at $6 a ton. He then detached the bill of lading from the bill rendered, and returned to the clerk the latter, but retained the bill of lading. The clerk demanded it from him, but he refused to deliver it, insisting that the bill of lading was his. The clerk then told him he could not have the coal. The plaintiff then commenced this action.
    At the trial the complaint was dismissed ; and on appeal the judgment of dismissal was affirmed by the superior court at general term. Their judgment, which is now affirmed, is reported in 3 Rob., 426.
    The plaintiff appealed to the court of appeals.
    
      Benjamin T. Kissam, for the plaintiff, appellant. appellant.
    —I. The first question raised by the pleading was whether the plaintiff had such an interest in the coal as to entitle Mm to maintain this action (Selden, J., in Fitzhugh v. Wiman, 9 N. Y. [5 Seld.] 559). The purchase of the coal, in March, 1863, from the defendant Focht, at $6.00 per ton (the then market price,) the orders given to A. C. Miller & Co. by the defendant Focht in respect to the shipment thereof, and the subsequent shipment and consignment to plaintiff in pursuance., of such orders, fully and absolutely vested the title of the coal in the plaintiff; the evidence of which is the bill of lading. “It is the document and title of the goods sent” (3 Kent Com., 207-214, marg. p ; Chandler v. Belden, 18 Johns., 157 ; Dows v. Green, 24 N. Y., 638-643 ; Lachrisson v. Ahman, 2 Sandf., 73-74). “ The consignee is presumed in law to be the owner” (Selden, J., in Fitzhugh v. Wiman, 9 N. Y. [5 Seld.], 562 ; Sweet v. Barney, 23 N. Y., 335). “The only legitimate construction of the bill of lading is that the delivery was to be to the consignee named, and, excepting as to quantity of prop erty received, cannot be varied by parol” (Johnson, J., in Fitzhugh v. Wiman, 9 N. Y. [5 Seld.] 565). And in Bank of Rochester v. Jones (4 N. Y. [4 Comst.], 497), Paige, J., says: “If the bill of lading had been delivered to him (Jones) by Foster, he would then have acquired a general or special property in the flour.” The defendant Focht lost all control of the property, excepting for the purpose of protecting himself against the insolvency of the plaintiff by stoppage in transitu (3 Kent Com., 216, marg. ; People v. Hays, 14 Wend., 565). The coal, in judgment of law, was constructively in the possession of the plaintiff, and at his risk (United Ins. Co. v. Scott, 1 Johns., 115 ; 2 Kent Com., 499 ; The Merrimack, 8 Cranch, 317-327). Delivery to defendant Gunson was equivalent to a delivery to the plaintiff (2 Kent, 499, m. p. ; Fitzhugh v. Wiman, 9 N. Y. [5 Seld.] 559 ; Dows v. Green, 24 N.. Y., 638; Gibson v. Stevens, 8 How. U. S., 384 ; Stanton v. Small, 3 Sandf., 230). If any question, under the statute of frauds, exists in this case, it is fully and sufficiently answered, and every objection removed, by the delivery of the coal to the carrier, and also by the delivery of the bill of lading to the plaintiff, and his acceptance thereof (McKnight v. Dunlop, 5 N. Y. [1 Seld.], 537 ; Waldron v. Romaine, 22 N. Y, 368; Boutwell v. O’Keefe, 32 Barb., 434). In case there was any doubt as to a delivery and acceptance, the question should have been left to the jury to determine (Gray v. Davis, 10 N. Y. [6 Seld.], 285).
    II. There is nothing in the whole case to warrant the conclusion of the court below, that the possession of the bill of lading by the plaintiff, “if not tortious, conveyed no rights or benefit upon him.” There is no allegation or evidence that the defendants fraudulently or improperly obtained the bill of lading. It was sent to him at 43rd Street, freely delivered to him, and properly retained by him as an evidence of his title to the coal. The delivery of it was not qualified in any manner. The mere simultaneous handing to plaintiff of a bill or invoice of the coal, stating price at $6.50 instead of $6.00, did not affect the delivery of the bill of lading, or plaintiff’s right to it. The coal was, in judgment of law, delivered to the plaintiff on the 27th of April, 1863, without any condition whatever annexed to it; the title then vested in the plaintiff, and the bill of lading was the evidence of such title. If there was any condition in respect to the sale or delivery of the coal, it was not alleged nor proved—and in any event was waived (Smith v. Lynes, 5 N. Y. [1 Seld.], 41).
    III. The production of the bill of lading, the tender of the freight, the demand and his refusal, gave plaintiff a good cause of action against Gunson (3 Kent, 214 ; Fitzhugh v. Wiman, 9 N. Y. [5 Seld.], 559.
    IV. The defendant Focht prevented the defendant Grunson from putting the plaintiff in actual possession of the coal, and was the chief actor in the whole matter. The tender to Focht, and the demand refused, gave plaintiff a good cause of - action against defendant Focht (Lattimer v. Wheeler, 30 Barb., 485 ; Van Neste v. Conover, 20 Id., 547 ; Nichols v. Michael, 23 N. Y., 264).
    V. The court below erred in excluding the undertaking executed on behalf of the defendants, for obtaining the return of the coal to them by the sheriff (Black v. Foster, 28 Barb., 387, decided at N. Y. gen. term).
    VI. There was no evidence that the defendants had parted with the possession or control of the property, at the time of the commencement of this action ; but the contrary.
    D. Hawley, for the defendants, respondents.
    —I. The alleged contract was void under the statute of frauds (Shindler v. Houston, 1 N. Y. [1 Comst.], 261; Ely v. Ormsby, 12 Barb., 570).
    
    II. There is no evidence that plaintiff directed as to the' mode of conveyance, so as to make a delivery to the carrier a delivery to the plaintiff’s agent, to take the case out of the statute of frauds, the title and the risk remaining with the consignor (Meredith v. Meigh, 22 Eng. L. & Eq., 91 ; Frostburgh Mining Co. v. N. E. Glass Co., 9 Cush., 115 ; Jones v. Bradner, 10 Barb., 193).
    III. Inserting plaintiff’s name in the bill of lading conferred no right until the delivery of the bill of lading to him (Bank of Rochester v. Jones, 4 N. Y. [4 Comst.), 497 ; Mitchell v. Ede, 11 Ad. & Ell., 888; Williams v. Allen, 12 Pick., 297 ; Buffington, v. Curtis, 15 Mass., 528).
    IV. There was no such delivery of the bill of lading as satisfied the statute of frauds, as a delivery of the “evidences” of the coal, and as would thus affirm, the contract, or pass the title of the coal to the plaintiff (Philips v. Bristolli, 2 Barne. & Cress., 511 ; Clark v. Tucker, 2 Sandf., 157 ; Acraman v. Swift, 8 Man., Gr. & Scott, 449 ; Shindler v. Houston, 1 N. Y. [1 Comst.), 261). The plaintiff’s retaining the bill of lading was illegal and fraudulent (4 Comst., 497, supra)—not assented to by the vendor, and an illegal and fraudulent possession will not take the contract out of the statute of frauds (2 Kent, 496 ; Baker v. Cuyler, 12 Barb., 667 ; Brackett v. Barney, 28 N. Y., 333 ; Harris v. Smith, 3 Serg. & R., 20 ; Seymour v. Davis, 2 Sandf., 239).
    V. The consignor had the right to impose a condition on the delivery of the bill of lading, that plaintiff must pay $6.50 (Mitchell v. Ede, 11 Ad. & Ell., 888; Abb. on Shipp., 328).
    VI. It is presumable from the evidence that defendants are only agents for A. C. Miller & Co., and their possession is the possession of the principal (Clark v. Skinner, 20 Johns., 465).
    YII. The defendant G-unson, an innocent bailee, is not liable without a previous demand of the coal, and no demand is alleged or shown (Fuller v. Lewis, 3 Abb. Pr., 383).
    Till. The court committed no error in rejecting the undertaking as evidence. It was not signed or executed by the defendants, or either of them, and no statement of facts contained in it could be considered as admitted by them. A general offer of the same as evidence, and a general exception, raises no question of error here. Besides, the alleged contract being void under the statute of frauds, the dismissal of the complaint was right, and if any error was committed in excluding the undertaking, its admission would not help the plaintiff.
   Davies, Ch. J.

(After stating the facts). —This case presents no serious difficulty. The case of Shindler v. Houston (1 N. Y. [1 Comst.], 261) is quite decisive. . In this case, as in that, the contract of sale not being in writing, and as no part of the purchase money was paid by the vendee, the contract was void by the statute of frauds (2 Rev. Stat., 136, § 3, subd. 3), unless the buyer ‘‘ accepted and received” the whole or a part of the property. In the present case it is not asserted that any part of the purchase money was paid, or that there was any delivery of the property in whole or in part, except the alleged symbolical delivery, evidenced by the bill of lading which the plaintiff got into his possession.

A delivery of the property, to satisfy the requirements of the statute, must be a delivery by the vendor, with the intention of vesting the right of possession in the vendee, and there must be an” actual acceptance by the latter, with the intent of taking possession as owner; and this rule can only be satisfied by something done subsequent to the sale, unequivocally indicating the mutual intentions, of the parties (Shindler v. Houston, supra). How, it is quite clear that these vendors never did, and never intended to, make any delivery of the coal in whole or in part, to this plaintiff, upon the contract of sale which he sets up. And it is equally clear that they never delivered the bill of lading with any intent to complete and perfect the sale. Nay, it is very manifest that they never intended to part with the bill of lading, except upon the condition and understanding that the plaintiff would purchase'the cargo of coal therein mentioned, at the rate of $6.50 a ton. This he peremptorily declined to do, and detained the bill of lading, against the remonstrance of the defendant’s agent. He clearly had no right so to detain it, and now setting it up as evidence of the delivery of the coal, under the contract of sale made in March, is a fraud upon the defendants. They never delivered it to the plaintiff with any such intent or for any such purpose, and it cannot now be permitted to the plaintiff that he should avail himself of this bill of lading, thus improperly retained by him, to make a title in himself to this coal.

The contract of sale not being in writing, as no part of the purchase money was paid, and as there was no delivery in whole or in part, of the property purchased, and no symbolical delivery, it follows that the plaintiff was never vested with the title to this coal. He never had possession of it, actual or constructive ; he was not the owner, and cannot, therefore, maintain this action. On the contrary, the evidence conclusively established that the plaintiff was not the owner of the cargo of coal in controversy, and that he was not entitled to the possession thereof. He never acquired any title thereto. This difficulty is fundamental with the plaintiff’s right of recovery, and it therefore becomes unnecessary to examine the other question suggested.

The nonsuit was properly granted, and the judgment should be affirmed.

All the judges concurred.

Judgment affirmed.  