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Davis & Aubin v. Bradley & Co.

given the defendants notice to produce the original articles of copartnership. But the defendants had no such right. That original agreement was in their possession, and under their control ; or, at least, such is the legal presumption. It was their duty, therefore, to produce the original agreement, to prove the provisions of that contract, on which rested their defense, as that instrument afforded the highest evidence of the terms of their copartnership. The case of Brogart v. Brown, 5 Pick, 18, is similar to this case on this point, and, we think, is decisive on this question. We see no ground upon which we can sustain this judgment, by treating this deposition as a cross-examination of the witness, or as a continuance of the depositions of the witness, which were taken by the plaintiffs. For this matter, the judgment of the county court must be reversed, and the case remanded.

Davis & AUBIN v. JOHN BRADLEY & Co.

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Factor's lien upon consigned goods. Bills of lading and shipping

receipts.

To give a factor a lien upon goods consigned to, but not actually received by him,

the consignment must be to him in terms, and he must have made advances or acceptances upon the faith of it.

B. & H. B. delivered to the defendants, who were storage and forwarding merchants, several sacks of wool, for which the defendants gave receipts, specifying that they were for the plaintiffs, or to be forwarded to the plaintiffs. These receipts were sent to the plaintiffs, and they, upon the credit of, and with reference to said wool, accepted drafts drawn upon them by B. & H. B. Held, that the plaintiff's thereby obtained the constructive possession of the wool, and had a lien upon it for the amount of their acceptances.

Consideration of the law respecting the transmission and endorsement of bills of lading and shipping receipts.

Where the forwarding merchant gives a shipper's receipt or inland bill of lading

for goods shipped on board a boat. on Lake Champlain, acknowledging to have received them to be forwarded to the consignees by name, and this is sent to the consignees, aud they make advances upon the faith of it, the title and possesion of

Davis & Aubin v. Bradley & Co.

the goods are thereby so far vested in the consignees, that they are not liable for the consignors' debts, or, if so, only subject to the consignees' lien for advances.

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TROVER for thirty-one bales of wool. Plea, the general issue ; trial by jury, March Term, 1855,-PIERPOINT, J., presiding.

The wool originally belonged to Sanborn & Catlin, of Swanton, and was sold by them to B. & II. Boynton, of Hinesburgh, and forwarded to the defenants, who were storage and forwading merchants, at Burlington, early in the spring of 1848; and was attached by the defendants on a writ in their favor against B. & H. Boynton, on the 20th of June, 1848, and on one in favor of Vilas & Noyes against B. & H. Boynton, on the same 20th of June, 1848; and was left by the officer making said attachments in the possession of the defendants, where said wool remained until it was sold on the execution of the defendants, issued on the judgment obtained in the suit on which the attachment was made.

The plaintiffs, to sustain the issue on their part, introduced, among other papers, four receipts signed by the defendants, of which the following are copies,

“Received of B. & H. Boynton thirteen bales wool, to forward “ Davis & Aubin, Boston, via Western Railroad. Burlington, “ May 30th, 1848."

“ Received of B. & H. Boynton, June 9, 1848, six sacks wool, weighing twelve hundred and eighty-five pounds, to be shipped to Davis & Aubin, Boston. Burlington, June 9, 1848.”

“ Received of B. & H. Boynton, twenty-one bales wool, to be 6 forwarded to Davis & Aubin, Boston. Burlington, June 13, “ 1848."

“ Received in store, June 15th, 1848, of B. & H. Boynton, for “ Davis & Aubin, Boston, two bales wool, by W. R. R. from Green“ bush." and three drafts drawn by B. & H. Boynton upon the plaintiffs, in favor of Jedediah Boynton, at three months, one for $400, dated May 30, 1848, one for $500, dated June 5, 1848, and the other for $500, dated June 9, 1848, all of which the plaintiffs had accepted and paid ;-also, letters from B. & H. Boynton to the plaintiffs, dated May 30th, June 2d, June 10th, and June 13th, containing invoices of different lots of the wool, referring to the above receipts as enclosed, and advising the plaintiffs of the drawing of

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Davis & Aubin v. Bradley & Co.

the above drafts, &c. ;--also, the shipping book of the defendants, showing that twenty-nine bales of said wool was shipped on board of the boat Empire, on Lake Champlain, on the 15th of June, 1848, consigned to the plaintiffs; and it appeared that said wool was attached while it was on board of said boat on Lake Champlain, and brought back to the defendants' store-house, where it remained till it was sold on their execution against B. & H. Boynton; and that the remaining bales had never left the defendants' store-house, and were attached while there. The testimony of Phillip I. Aubin, one of the plaintiffs, tended to show that the plaintiffs were commission merchants in the city of Boston ; that in the fall of 1846, they entered into a contract with B. & H. Boynton, by which the said Boyntons were to forward to the plaintiffs wool, and invoices and receipts of wool, and the plaintiffs were to accept their drafts to the amount of two-thirds or three-fourths of the value of the wool sent forward; that this contract went into effect and continued up to the time of this transaction; that they opened a general aca count with the Boyntons, kept debt and credit, charged the drafts when accepted, and charged freight and expenses, and gave credits for sales made; that Boyntons sent their drafts, all along during said time, and they accepted them in reference to and in regard to what wool they had on hand and what was on the way to them; in short, in reference to the general statement of their account; that they had five per cent commission and charged interest on general average.

The plaintiffs also introduced testimony showing a demand of the property on the 30th of June, 1848, and a refusal by the defendants to give it up.

The defendants then introduced their writ of attachment, judgment and execution, and the officer's return thereon ; and claimed that the plaintiffs were not entitled to recover; and, at all events, that the question should be submitted to the jury whether the drafts were accepted by the plaintiffs, specially on the wool in question, or upon general account, and that, in the latter case, the plaintiffs were not entitled to recover.

The court charged that if the jury found that it was agreed that the Boyntons were to consign the wool, and forward to the plaintiffs the shipper's receipt or bill of lading, and the plaintiffs were to

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Davis & Aubin v. Bradley & Co.

accept the drafts as stated by Aubin, and the wool was so shippped and consigned, and the bill of lading or shipper's receipt forwarded and drafts drawn and accepted upon the credit of, and with reference to the wool so forwarded, that the plaintiffs would have the constructive possession of the wool on hand, and that the same was not subject to attachment as the property of B. & H. Boynton, and the plaintiffs would be entitled to recover the value of the wool unless it exceeded the amount of the plaintiffs' lien, if so, the amount due them on the three drafts. Exceptions by the defendants.

D. A. Smalley and F. G. Hill for the defendants.

The facts in this case did not give to the plaintiffs a constructive possession, and at most would only have that effect as between the consignor and a third party who had acquired a right from the consignee. 3 T. R. 119–123, Kinloch v. Craig; 1 Eng. Ex. R., 422, 3 Price 547, S. C., Nichols v. Clent; 39 Common Law 260, Mitchell v. Ede ; 5 Maule & Selwin 350, Patten v. Thompson; 3 Mees. & Wels. 15, Bruce v. Wait; 2 Washington, C. C. R. 283, Walter v. Ross; 23 Vt. 217, Elliott & Boynton v. J. Bradley & Co.; 1 Smith's Leading Cases 760.

The defendants' receipts, forwarded by the Boyntons, made no change in the title or possession of the wool, and cannot be treated as bills of lading which carry title by delivery and endorsement, and the plaintiffs had no legal right to rely upon them as such. 11 Eng. C. L. 309, Akerman v. Humphrey; 49 Eng. C. L. 699– 700, S. C. cited and approved by TINDALL, C. J.

G. F. Edmunds and L. E. Chittenden for the plaintiffs, cited Davis & Aubin v. Bradley & Co., 24 Vt. 55; Bryans v. Nix, 4 Mees. & Wels. 774; Haille v. Smith, 1 B. & P. 563; Holbrook v Wight, 24 Wend. 335; The St. Jose Indians, 1 Wheaton ; Gardner v. Howland, 2 Pick. 599.

The opinion of the court was delivered by

REDFIELD, CH. J. The question in the present case is in regard to the right of a factor to a lien upon goods consigned to him and upon which he has made advances. Ashurst, J., in giving the opinion of the court in Lickbarrow v. Mason, 1 H. B. 357 ; 2 T. R. 63; 6 East 21, a very leading case upon this sub

Davis & Aubin v. Bradley & Co.

ject, says in regard to a bill of lading, “ If the consignor had intended to restrain the negotiability of it, he should have confined the delivery of the goods to the vendor only, but he has made it an endorsable instrument.” The judge seems to consider the fact, that the bill is made to deliver to assigns, essential to its validity, in the hands of a bona fide -purchaser of the goods; 3 B. & Al. 282; 1 Ld. Raym. 271. And in Chitty on Contracts it is said, p. 485, "if the bill of lading be to deliver to A, he should be plaintiff. The bill of lading will decide who shall sue the carrier," citing Bryans v. Nir, 4 M. & W.775. The form of expression used by Mr. Chitty as indicating who is to bring the suit, upon the face of the contract of consignment, or receipt by the carrier, is the very identical language of two of these receipts. “ June 13, 1848. Received of B. & H. Boynton, twenty-two bales of wool, to be forwarded to Davis & Aubin.” The one of May 30, is “ to forward to Davis & Aubin,” and that of the 15th June, is, “ Received in store, &c., of B. & H. B., for Davis & Aubin,” which is still more explicit, if possible. In the case of Bryans v. Nir, the paper called indifferently a shipping receipt, and a bill of lading, was not made to assigns, but only to the plaintiffs, and the effective part of the contract was to be delivered to Delany & Co. at Dublin, in care for and to be shipped to the plaintiffs in the action, which is certainly no more express in its undertaking to forward the goods to the plaintiffs, than the contract of the defendants in the present case. In either case it is an express promise to deliver to the consignees. It can, by no kind of refinement, be made to signify anything else. And according to all the cases, if the plaintiffs had been purchasers, this would have vested the absolute title in them, subject only to the right to stop in transitu, which right might have been defeated by a bona fide transfer of the bill of lading for value. In Hall v. Griffin, 10 Bing. 246, it was held, that the transfer of a wharfingers's receipt was a transfer of the property. And Tindall, CH. J., said, “it had been the practice to consider money advanced, upon a wharfinger's receipt, in the same light as if advanced on the actual delivery of goods.” And the holder of a lighterman’s receipt is said to have a control over the goods till he can obtain a bill of lading; Craven v. Ryder, 6 Taunton, 433.

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