
    Robinson & Ledyard v. Pogue & Son.
    
      Statutory Detinue for Goods, by Vendor against Sub-Purchaser.
    
    
      1. Sale of goods; when title passes to purchaser. — On a sale of goods, which are forwarded by railroad consigned to the purchaser, the title at once passes to him, although the bill of lading is sent by mail to the seller’s agent, by whom the contract was made in the city of the purchaser’s residence, and is never delivered, being retained until the money should be paid; and the purchaser, having received the goods, may transfer 'to a bona fide sub-purchaser a title which will prevail against the seller.
    2. Offer to rescind, unaccepted. — An offer to rescind by the purchaser, unaccepted, or his declaration to the seller’s agent, before the receipt of the goods, that he did not want them, to which no reply was made, does not amount to a rescission, nor impair the title of the purchaser.
    Appeal from the Circuit Court of Montgomery.
    Tried before tbe Hon. John P. Hubbard.
    This, action was brought by E. H. Pogue & Son, merchants and partners, doing business in North Carolina, against the appellants, a partnership doing business in Montgomery, to recover several boxes of tobacco; and was commenced on the 18th December, 1885. The tobacco, which was 340 lbs. in weight, was the third and last installment of a lot of 1,000 lbs. sold by plaintiffs, or contracted to be sold, to Bushton & Co., merchants in Montgomery, in July, 1885; the other installments not being involved in the suit. The contract was made by plaintiffs’ agents in Montgomery, J. Simon & Brother. Said Simon testified, on the part of the plaintiffs, that before' making the contract, on the 25th July, he went to the “B. G. Dun Commercial Agency” in Montgomery,’! to ascertain the standing and financial condition of Bushton & Co., “and made the sale of the tobacco relying on the statement” shown by the books of said agency; that in the fall of 1885, before the last installment of the tobacco was forwarded by plaintiffs, Bushton “told him that he did not want any more tobacco, and not to ship the last installment.” The defendants objected to this statement as evidence, and excepted to its admission. The witness testified, also, that he received the bill of lading for the tobacco from plaintiffs, by mail, about the 7th or 8th December, and immediately informed Rushton of the fact, “who answered, that he did not want the tobacco;” and this evidence was admitted by the court, against the objection and exception of the defendants. The tobacco was forwarded by railroad by plaintiffs, consigned to Rushton & Co.; and Simon testified, that the words, “Shipped to Rushton & Co., Montgomery,” were written on the bill of lading which he received. The bill of lading was never delivered to Rushton & Co., but was retained by Simon & Bro.; the witness testifying that, “at the time of the negotiations between him and Rushton touching the sale of the tobacco, it was agreed that Simon & Bro. were to retain the bill of lading until each installment was' paid.” The tobacco “was delivered by the railroad company, without the production of the bill of lading, nor was the bill of sale shown;” but it was not shown when, or to whom, the tobacco was delivered. On the 16th December, 1885, the defendants bought out the entire stock of goods of Rushton & Co., with outstanding notes and accounts, in payment of a debt for moneys previously loaned and advanced, amounting to $9,000; and the validity of this purchase was not impeached. They immediately took an inventory of the goods, and removed them to their own warehouse, the tobacco here sued for being a part; and the writ in this suit was levied on the tobacco on the next day. “Said Rushton testified, that in the sale to defendants he did not sell, nor intend to sell, any goods which did not belong to Rushton & Co.”
    The court charged the jury, among other things, as follows: “If the jury believe from all the evidence that- the plaintiffs, by sending the bill of lading to Simon & Bro. with the bill for the goods, intended that the title should not pass until Simon delivered the bill of lading to Rush-ton & Co., then the plaintiffs would be entitled to recover.”
    The defendants excepted to this charge, and also to the refusal of several charges asked by them in writing, among which were the following: (3.) “The delivery of the tobacco to the carrier, consigned to Rushton & Co., would pass the title to the tobacco to Rushton & Co., even though the bill of lading was sent to Simon & Bro., in the absence of proof that the bill of lading was not to be delivered to Rushton & Co., except upon payment, or performance of some other act or duty on their part.” (4.) “If the jury believe from the evidence that the tobacco was delivered to the railroad company, and the bill of lading was made consigning tbe goods to Busbton & Go.; tben the title to tbe goods passed by tbis delivery to Busbton & Co., although tbe bill of lading was sent to Simon & Bro., in tbe absence of proof that tbe contract of sale required tbe performance of something on tbe part of Busbton & Co., before tbe goods were delivered.”
    Tbe charge given, tbe refusal of each of tbe charges asked, and several rulings on evidence to which exceptions were reserved, are now assigned as error.
    Tompkins, London & Troy, for appellant,
    cited McCormick v. Joseph & Anderson, 77 Ala. 236; Pilgreen v. State, 71 Ala. 368; People v. Haynes, 28 Amer. Dec. 530; Jones v. Sims, 6 Porter, 138.
    Rice & Wiley, contra,
    
    cited Benjamin on Sales, vol. 1, § 580; 4 N. Y. 497; 59 N. Y. 510; 108 Mass. 291; 115 Mass. 224; 25 Ohio St. 360; 69 N. Y. 273; 25 Nans. 128.
   SOMERVILLE, J.

The bill of sale from Busbton & Co. to Bobinson & Ledyard, tbe appellants, bearing date December 16th, 1885, and transferring to them tbe stock of merchandise of tbe vendors, in absolute payment of a pre-existing debt, is tbe same instrument construed by us in tbe case of Robinson & Ledyard v. Fairbanks & Co., 81 Ala. 132, and again in Robinson & Ledyard v. Levi, 81 Ala. 134. Upon a state of facts substantially tbe same as those appearing hr the present record, we tben observed, that there could be no question about tbe fact, that tbe defendants, if tbe evidence was to be believed, “were bona fide purchasers of tbe goods for value, and without notice of any alleged defect in tbe title of Busbton & Co., just as fully as if they bad paid tbe cash for them.” No controversy was- made upon tbe trial- raising any question as to tbe correctness of tbis ruling.

There are many assignments of error in tbe present record. We do not propose to notice any of these, except such as are insisted on in tbe brief of appellant’s counsel, tbe others appearing to be without merit.

Tbe main contention here insisted on, and raised by tbe rulings of tbe Circuit Court, relates to tbe title acquired to tbe goods in controversy by Busbton & Co., the consignees of the plaintiffs. If the sale of tbe tobacco to them was ■ completed, by an actual or constructive delivery,' and tbe intention of the vendors was that tbe title should unconditionally pass, then tbe appellants, Eobinson & Ledyard, acquired a good title; otherwise not.

" Tbe contract for tbe sale of tbe goods was made by Simon & Bro., of Montgomery, Alabama, as agents of tbe plaintiffs. Tbe shipment was made by railroad, and a bill of lading was taken in which Eusbton & Co. were named as tbe consignees. This bill of lading was mailed to Simon Bros., with a bill for tbe goods, on which were written tbe words, “Shipped to Eusbton & Oo., Montgomery, Ala.” It was agreed between Eusbton & Oo. and Simon & Bro. that tbe latter were to “retain tbe bill of lading” until tbe goods were paid for; but there is no evidence that tbe goods themselves were to be retained until tbe price was paid. The Evidence, on tbe contrary, tends to prove that tbe sale was made on credit, after closely inquiring into tbe financial status of tbe consignees. Tbe tobacco was delivered by tbe railroad to tbe consignees, without tbe presentation of tbe bill of lading.

Where goods have been sold, and are delivered by tbe vendor to a common carrier, consigned without reservation to tbe vendee, tbe question as to whether tbe title, eo instanti, passes to such consignee, depends upon tbe intention of tbe vendor, .to be gathered from all tbe circumstances of tbe case. There is no doubt as to tbe correctness of tbe general rule, that where tbe bill of lading shows a consignment by tbe vendor to tbe vendee, in ordinary form, and no other circumstance appears as to tbe intention, tbe prima facie legal presumption is that an unconditional delivery to tbe consignee is contemplated. But this presumption of fact may be rebutted by evidence showing a contrary intention. Jones v. Sims, 6 Porter, 138 (1837); Ezell v. English, Ib. 307; Emery v. Irving Nat. Bank, 25 Ohio St. 360; s. c., 18 Amer. Rep. 299; 2 Amer. & Eng. Encyc. Law, 212; People v. Haynes, 11 Wend. 516; s. c., 28 Amer. Dec. 530; Everett v. Coffin, 6 Wend. 603; s. c., 22 Amer. Dec. 551; Ostander v. Brown, 15 John. 39; s. c., 8 Amer. Dec. 218, note; American Ex. Co. v. Greenhalgh, 80 Ill. 38. Tbe title of tbe goods is commonly retained in the consignor by taking tbe bill of lading to bis own order, or in blank, or by drawing on tbe consignees with tbe bill of lading attached to tbe draft, or other like procedure, indicating an intention to retain in himself a jus disponendi over tbe goods until tbe price is paid, or until tbe happening of some other contingency. — McCormick v. Joseph, 77 Ala. 236; Ala. Gr. So. R. R. Co. v. Mt. Vernon Co., 84 Ala. 173; Chandler v. Sprague, 38 Amer. Dec. pp. 417-421, note; Bank of Rochester v. Jones, 55 Amer. Dec. 299, note; Dows v. Nat. Exch. Bank, 91 U. S. 618.

The delivery to the common carrier, in cases of the former class, is deemed prima facie a delivery to the consignee, not only when the consignment is made to a carrier named by the consignee, but also when made to some carrier in the usual course of trade, who thus becomes, impliedly, the agent of the consignee to receive and transport the goods at his risk; the sale thus becoming presumptively complete at the point of shipment, although the price is not to be paid until the goods reach their destination. — Garbracht v. Com., 96 Penn. St. 449; s. c., 42 Amer. Rep. 550; Bilgreen v. State, 71 Ala. 368; Sarbecker v. State, 65 Wis. 171; s. c., 56 Amer. Rep. 624; Hausemanv. Nye, 62 Ind. 485; s. c., 30 Amer. Rep. 199. Hence it is commonly held, that the consignee in a bill of lading, where there is no reservation of title by the consignor, has vested in him such a property in the goods as to authorize him to sue the carrier, in his own name, for their injury, loss or recovery, in trover, detinue, or other appropriate action. — Chandler v. Sprague, 38 Amer. Dec.423, note; Rotter v. Lansing, 3 Ib. 310, 318, note ; Angelí on Common Carriers, § 497; Griffith v. Ingleden, 9 Amer. Dec. 444; So. Ex. Co. v. Armistead, 50 Ala. 351; M. & G. R.R. Co.v. Williams, 54 Ala. 168.

Under these principles of law, 'the refusal of the fourth charge requested by the appellants was error. If the facts, hypothesised in this charge, were believed by the jury, the consignees could have recovered the goods from the railroad company. Hence their delivery, without presentation of the bill of lading, did not presumptively prejudice the rights of the consignees. The case presents no question whatever involving the rights of a transferree of the consignor, claiming an interest by purchase in the property as holder of the bill of lading. If the sale was on credit, and the goods were not to be retained until the price was paid, the mere retention of the bill of lading by the agent of the consignor would not prevent the sale from becoming complete.

We can not perceive that the case is affected by Eushton . & Co.’s declaration made to Simon, before delivery of the goods by the railroad, that they did not want the goods; in as much, as there was no evidence tending to show the assent of Simon & Bro., or their principals, the consignors, to release the consignees from the purchase, or to rescind the trade. It required the concurring assent of both contracting parties to rescind the trade, just as fully as it did originally to make it. Neither alone could do so. The evidence on this point was irrelevant, and should have been excluded.

The judgment is reversed, and the cause remanded.  