
    Pierce v. Gibson.
    Merchants of another state, through A. and B., who were in the warehouse business in this state, purchased a certain amount of pork. The vendors gave written memoranda of the sales, and receipts for the money paid, and A. and B. agreed, in writing, to deliver said pork at Toledo to the order of said merchants as soon as navigation opened. Held, that these documents transferred the possession and property of the pork to the purchasers. Held, also, that these documents, being indorsed and delivered to a merchant in New York in consideration of advances of money in the usual course of trade, transferred to him the legal possession of the property and made him an actual purchaser to the extent of his advances.
    
      Held, also, that an attachment issued subsequently to said transfer to said merchant, at the instance of a supposed creditor of the original purchasers, could not be maintained; and the mere fact that the attachment issued, was no evidence of indebtedness to the attachment-plaintiff.
    The statute does not require a delivery of goods sold where the contract is in writing, or where the purchase-money, or a part of it, is paid.
    APPEAL from the Tippecanoe Circuit Court.
    
      Tuesday, January 7, 1851.
   Blackford, J.

-This was an action of replevin commenced on the 8th of May 1844, by Edmund T. H. Gibson against Martin L. Pierce.

The declaration contains two counts. The first states that the defendant, on, &c., at, &c., wrongfully took the goods and chattels, viz., 375 barrels of mess pork and 221 barrels of prime pork, of the plaintiff’s, of the value of 3,840 dollars, and unlawfully detained the same. The second count is for unlawfully detaining the same quantity of other pork of the plaintiff’s, of the same value.

The defendant pleaded non cepit to the first count, and non detinet to the second. He also pleaded to the whole declaration, property in the State Bank of Indiana; property in Benbridge and Mix; property in Walker, Rogers, and Company; property in the defendant; property in McQueen and McKay. There was also a plea alleging that the property was in McQueen and McKay, and stating that the defendant was sheriff of Tippecanoe county; that the State Bank of Indiana sued out a writ of foreign attachment against the property of McQueen and McKay; that the defendant, by virtue of said writ, attached the said pork, as he lawfully might do; that he duly returned said writ; and that the attachment-suit was still.pending.

Replications were filed in denial of the special pleas.

Yerdict and judgment for the plaintiff.

The material facts are as follow :

On the 28th of March, 1844, Benbridge and Mix, of Lafayette, in this state, as agents of McQueen and McKay, of Detroit, in Michigan, bought eleven barrels of mess pork of J. TV. Powers; which pork was in the warehouse of said Benbridge and Mix at Lafayette. Also, on the same day, said Benbridge and Mix, as agents of said McQueen and McKay, bought of R. and D. N. Darlinton 365 barrels of mess poi’k, and 225 barrels of prime pork. The pork, thus bought of Darlintons, was, at the time of the sale, in the warehouse of Walker, Rogers, and Company, in Lafayette; and the Darlintons gave to Benbridge and Mix an order for the same on said Walker, Rogers, and Company, which order the latter verbally accepted. This pork was marked with the letter B. After such sale, Walker, Rogers, and Company charged the storage to Ben-bridge and Mix.

The whole of said pork, purchased of Powers and of the Darlintons by Benbridge and Mix, was paid for with money furnished by an agent of McQueen and McKay. At the time of said purchases, Benbridge and Mix, in the name of McQueen and McKay, took from the vendors bills of parcels, with receipts for the purchase-money; and, at the same time, they, Benbridge and Mix, gave warehouse receipts to McQueen and McKay for the said pork.

Afterwards, on the 17th of April, 1844, McKay, of said firm of McQueen arid McKay, called on the plaintiff, Gibson, at his store in the city of New York, he, Gibson, being a commission-merchant there. McKay then produced to Gibson the said bills of parcels with receipts for the purchase-money, and said warehouse receipts, and requested him, Gibson, to make an advance on the produce. Gibson agreed to make an advance upon the indorsement and delivery to him of the said warehouse receipts. It was agreed that the property mentioned in the receipts should come into the hands of Gibson to be sold by him; that he should deduct from the proceeds the advances made by him, with the expenses, charges, and commissions; and that the residue should be subject to the, order of McQueen and McKay. The warehouse receipts were accordingly indorsed by McQueen and McKay to Gibson; and the latter thereupon advanced to the former 3,306 dollars and 25 cents. At the time of this transaction, McQueen and McKay's credit and character in New York were good; and there is nothing to show but that Gibson acted in the affair with good faith.

The following are copies of said papers and indorsements :

“Lafayette, Mar. 28, 1844. Messrs. McQueen and McKay, bot. of J. W. Powers, eleven barrels of mess pork, at $7 50- — -$82 50. Rec’d payment. — J. W. Powers.”
“ Received the above in store to be shipped to Toledo, so soon as the navigation opens, to the order of Messrs. McQueen and McKay of Detroit, Michigan. — Benbridge and Mix.'' (Indorsed as follows:) “ New York, April 17, 1844. Deliver the within to E. T. H. Gibson or order.— McQueen and McKay.''
“Lafayette, 28 March, 1844. Messrs. McQueen and McKay, bot. of R. and D. N. Darlinton, “ 365 bis. mess pork, at 7 50 ............. • • • 2,737 50 “225 do. prime do., 5 60 ................ 1,260 00
“3,997 50
“ Rec’d payment. — R. and D. N. Darlinton."
“ Received, Lafayette, March 28, 1844, the above pork' in store to be shipped on opening of the canal navigation to Toledo, to the order of Messrs. McQueen and McKay, of Detroit, Michigan. — Benbridge and Mix" (Indorsed as follows:) “New York, April 17, 1844. Deliver the within 590 barrels pork to E. T. H. Gibson or order. (Signed) McQueen and McKay.”

At the time of said indorsements by McQueen and McKay of said warehouse receipts, they wrote a letter to Ludlow and Babcock, their shipping agents at Toledo, Ohio, and delivered the same to Gibson to be forwarded; and Gibson, accordingly, forwarded it by mail. That letter is as follows:

New York, 17 April, 1844. Messrs. Ludlow and Babcock, Toledo: Gentlemen — We have this day received an advance from E. T. H. Gibson, Esq., on the following lots of pork, which you will please have the goodness to deliver to his order, and to comply with his instructions relative to the shipment, viz.:
“365 barrels mess pork ) From warehouse of Walker, “ 225 do. prime do. ) Rogers, and Co.
“ 11 do. mess do. Benbridge and Mix.
“ 300 do. do. do. Hamilton and Williams.
“ 350 do. do. do. Hanna, Hamilton, and Co.
“ 200 do. flour, D. and J. A. F. Nicholls.
“Respectfully, Gentlemen, your obedient servants.— McQueen and McKay.”

The plaintiff, Gibson, having heard that some of McQueen and McKay’s drafts had been protested, sent, on the 23d of April, 1844, one of his clerks (Hoyt) to attend to the shipping of said pork. Hoyt arrived at Lafayette in the evening of the 1st of May, 1844. He could not get the pork mentioned in the declaration, and which is included in said warehouse receipts, as an attachment had been levied on the same, on the lash-named day, by the defendant as sheriff of Tippecanoe county. The attachment was in favor of the State Bank of Indiana against McQueen and McKay.

The question presented by this case is, was the pork levied on by the defendant, at the time of the levy, the property of Gibson?

There is no doubt but that McQueen and McKay, at the time of their indorsement of the warehouse receipts, were the owners of the pork. The title of Gibson depends upon the effect, under the circumstances, of the indorsement to him of those receipts. The effect of such indorsements has been recently • decided by the Supreme Court of the United States. Gibson v. Stevens, 8 Howard, 384. According to that decision, it must be considered that Gibson, to the extent of his advances in this case, was purchaser, from McQueen and McKay, of the pork in question; and that the legal title to the pork was conveyed to him to protect his advances. The subject is fully discussed in the case first cited, and we concur in the opinion there given.

J. Morrison and S. A. Major, for the appellant.

Z. Baird, for the appellee.

Considering the transaction in New York in the character of a sale, the case is without difficulty. There is nothing to show but that Gibson acted with good faith. The defendant relies on the want of delivery of the pork to the purchaser. But when the purchase was made the pork was at a considerable distance from the place of sale; and there was no want of diligence on Gibson's part, after his purchase, to obtain the possession. Besides, a delivery of the goods sold is not essential, at common law, to the validity of the sale; nor does the statute of frauds require a delivery, where the contract is in writing, or where the purchase-money or a part of it is paid.

The present case is more favorable to the plaintiff than that of Gibson v. Stevens, above referred to. In the case cited, it appeared that McQueen and McKay were indebted to the attachment-plaintiff; but there was no such indebtedness shown in the case before us. There is nothing in the record on the subject, except the mere fact of the issuing of the attachment. That fact is no evidence, in this case, that the bank was a creditor of McQueen and McKay.

There are here no creditors of, nor purchasers from, McQueen and McKay, in the way of the plaintiff’s claim to the property.

We are satisfied from the facts of the case, that the judgment for the plaintiff is right.

Per Curiam.

The judgment is affirmed with 5 per cent. damages and'costs.  