Gibson v. Stevens, 49 U.S. 384 (1850)
U.S. Supreme CourtGibson v. Stevens, 49 U.S. 8 How. 384 384 (1850)
Gibson v. Stevens
49 U.S. (8 How.) 384
Where personal property is, from its character or situation at the time of the sale, incapable of actual delivery, the delivery of the bill of sale or other evidence of title is sufficient to transfer the property and possession to the vendee.
Where articles of commerce were purchased in the State of Indiana, and the vendors in whose warehouses they were lying gave a written memorandum of the sale, with a receipt for the money, and an engagement to deliver them on board of canal boats soon after the opening of canal navigation, these documents transferred the property and the possession of the articles to the purchasers.
These documents, being endorsed 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 title and constructive possession of the property.
Therefore an attachment subsequently issued at the instance of a creditor of the original purchasers, which was levied upon the property in question, could not be maintained.
This Court will judicially recognize this branch of trade. It has existed long enough to assume a regular form of dealing, and its ordinary course and usages are now publicly known and understood.
The New York merchant stood in the position of an actual purchaser to the extent of his advances, and not in that of a factor who had made advances upon goods in his possession.
A guarantee by the first sellers that the articles should pass inspection did not change the original sale into an executory contract. It was nothing more than the usual warranty of the soundness of the goods sold.
This was an action of replevin brought by Gibson, a citizen of New York, against Stevens, the Sheriff of Allen County, Indiana, who had in his custody sundry articles of property which he had taken by virtue of a writ of foreign attachment issued under the state laws of Indiana.
The facts in the case were agreed upon by the counsel in the circuit court as follows.
"Be it remembered, that at the May term of said court, A.D. 1844, the above cause was submitted to the decision of the court, without the intervention of a jury, upon the following agreed facts, to-wit:"
"The parties mutually agree that the following are the facts in this case:"
"That McQueen & McKay, citizens of the City of Detroit, State of Michigan, about 20 March, 1844,
by false pretenses, fraudulently procured the branch of the State Bank of Indiana, at Indianapolis, to loan to them the sum of about eleven thousand dollars. The money thus loaned consisted of notes of the Indianapolis branch of said State Bank of Indiana, payable to bearer, and transferable by delivery. With part of the money thus obtained, McQueen & McKay purchased of Hanna, Hamilton & Co. three hundred and fifty barrels of mess pork for the sum of $2,908.50, and at the same time paid to the said Hanna, Hamilton & Co. the said purchase money, and thereupon the said Hanna, Hamilton & Co. executed and delivered to the said McQueen & McKay the memorandum of said purchase, receipt, and guarantee thereto appended, which are herewith filed and marked A and made a part of this agreement, and are in the words and figures following, to-wit:"
"Fort Wayne, April 4, 1844"
" Messrs. McQueen & McKay"
" Bought of Hanna, Hamilton & Co."
"350 barrels mess pork, to be delivered on board of canal boats soon after the opening of canal navigation, at $8.31 . . . $2,908.50."
" Received payment in full,"
"HANNA, HAMILTON & CO."
" We guarantee the inspection of the above pork at Toledo, and the delivery on board of canal boats at this place soon after the opening of canal navigation."
"HANNA, HAMILTON & CO."
" Fort Wayne, April 4, 1844"
"The said barrels of pork were, at time of said sale to McQueen & McKay, lying in the warehouse of said Hanna, Hamilton & Co. in the Town of Fort Wayne in the State of Indiana about twenty feet from the Wabash & Erie Canal, marked and branded 'Mess Pork,' together with a large number of other barrels of pork, marked and branded 'Prime Pork' and 'Clear Pork.'"
"Said three hundred and fifty barrels being all the mess pork in said warehouse at that time or at any other time since, and all the barrels marked 'Mess Pork,' but were not seen by McQueen & McKay. Said barrels of prime, clear, and mess pork laid in said warehouse promiscuously, and so remained up to and at the time of the assignment of said writing marked A; but after the assignment and before the levying the attachment hereinafter mentioned, said Hanna, Hamilton & Co. had
shipped off all of the said barrels of pork marked and branded 'Prime Pork' and 'Clear Pork.'"
"Said McQueen & McKay at the same time purchased of D. & J. A. F. Nichols, of Fort Wayne, Indiana, two hundred barrels of superfine flour, for the sum of $712.50, and at the same time paid the said D. & J. A. F. Nichols the said purchase money, and thereupon said D. & J. A. F. Nichols executed and delivered to said McQueen & McKay a memorandum of said purchase, receipt, and guarantee, in the words and figures following, to-wit:"
"Fort Wayne, April 4, 1844"
" Messrs. McQueen & McKay,"
" Bought of D. & J. A. F. Nichols."
" Two hundred barrels of superfine flour at $3.56 1/4 . . . $712.50"
" Received, Fort Wayne, April 4, 1844, payment in full."
"D. & J. A. F. NICHOLS"
" Received the above flour in store, at Fort Wayne, April 4, 1844, which we agree to deliver on board of canal boats here soon after the opening of the navigation, subject to the order of McQueen & McKay."
"D. & J. A. F. NICHOLS"
" We guarantee the inspection of the above flour in New York as superfine flour."
"D. & J. A. F. NICHOLS"
"Which are herewith filed and marked B, and are part of this agreement. Said barrels of flour were, at the time of said sale, lying in the warehouse of said D. & J. A. F. Nichols, in the Town of Fort Wayne, Indiana, on the bank of the Wabash & Erie Canal, and there remained until they were seized and taken under the attachment hereinafter mentioned. Said purchases were both made in the Town of Fort Wayne, in the County of Allen in the said State of Indiana, on 4 April, 1844."
"On 17 April, 1844, said McQueen & McKay presented the said memorandums of purchase, receipts, and guarantees thereto appended as above set forth and marked A and B to the said Gibson in the City of New York and requested of said Gibson an advancement upon the flour and pork therein mentioned, whereupon the said Gibson did advance to the said McQueen & McKay, on the faith of said flour and pork and the evidences of title thereto, the sum of $2,787.50, and took from said McQueen & McKay an assignment of said
memorandums of purchase, receipts, and guarantees, respectively, endorsed on the back of each in the words and figures following, to-wit:"
" Deliver the within two hundred barrels of flour to E. T. H. Gibson, or order."
"McQUEEN & McKAY"
"New York, April 17, 1844"
" Deliver the within 350 barrels of pork to E. T. H. Gibson, or order."
"McQUEEN & McKAY"
"Which are also part of this agreement."
"Said McQueen & McKay at the same time delivered to the said Gibson the original memorandums of purchase, receipts, and guarantees above set forth and marked A and B, in whose possession they now remain."
"At the same time, McQueen & McKay wrote, signed, and delivered to said Gibson the letter which is herewith filed, marked C, and made a part of this agreement, and is in the words and figures following, to-wit:"
"New York, 17 April, 1844"
" MESSRS. LUDLOW & 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 have the goodness to deliver to his order, and to comply with his instructions relative to the shipment, to-wit:"
"365 bbls. mess pork"
" from warehouse of Walker, Roger & Co."
"225 do. prime do."
" 11 do. mess do. from warehouse of Benbridge & Mix."
"300 do. do. do. do. do. Hamilton & Williams."
"350 do. do. do. do. do. Hanna, Hamilton & Co."
"200 do. flour, from warehouse of D. & J. A. F. Nichols."
" Respectfully, Gentlemen, your obedient servants."
"McQUEEN & McKAY"
"On 18 April, 1844, Gibson enclosed the letter above referred to in another letter written by himself, directed to Mott & Co., at Toledo, Ohio, and mailed the same on said 18 April, 1844, in the post office in the City of New York, which said letter, with the enclosure, said Mott & Co. received by due course of mail and handed said enclosed letter, as requested by said Gibson, to Ludlow & Babcock at Toledo, Ohio."
"Said Gibson also, on said 18 April, 1844,
mailed in the post office in the City of New York a letter written by himself and directed to said Ludlow & Babcock at Toledo, Ohio, which said Ludlow & Babcock received by due course of mail, which letter is herewith filed, marked D, and made a part of this agreement, and is in the words and figures following, to-wit:"
"New York, April 17, 1844"
" MESSRS. LUDLOW & BABCOCK, Toledo, Ohio:"
" Gentlemen -- I have this day made McQueen & McKay, of Detroit, an advance on twelve hundred and fifty-one barrels of pork, and two hundred barrels of flour, which is stored at different points on the line of the Wabash Canal and which they state is to be shipped to your care and held by you at Toledo until you receive instructions from them respecting it. They have given me an order on you for it, which I have sent to Mott & Co. I wish you to ship the pork and flour to me immediately on its arrival at Toledo, at the lowest possible rates of freight, and send me a bill of lading of the same. There is one lot of three hundred barrels of pork in Hamilton & Williams' warehouse on which there is due from McQueen & McKay, on its arrival at your place, $550.00. This amount you may draw on me for so soon as I receive bill of lading of the pork. Let me hear from you by return mail respecting it."
" I remain truly and respectfully yours."
"E. T. H. GIBSON"
"At the time of the assignment of said memorandums of purchases, receipts, and guarantees, said Gibson was a commission merchant in said City of New York in the State of New York, and it was usual and customary for commission merchants residing and doing business in the City of New York to make advances on Western produce upon the assignment of the proper evidences of title thereto."
"On 23 April, 1844, said Gibson, having on that day learned that McQueen & McKay had suffered some of their bills to be protested for nonpayment, dispatched one William Hoyt to the Town of Fort Wayne aforesaid to see to the shipping of said pork and flour, and the said Hoyt arrived at said Town of Fort Wayne on 29 April, 1844, for that purpose, having in his possession the said writings marked A and B."
"At the time of the assignment of said writings marked A and B, the said Wabash & Erie Canal was navigable at and from the said Town of Fort Wayne to the said Town of Toledo."
"On 27 April, 1844, a writ of attachment issued
from the Allen Circuit Court in the State of Indiana, in due form of law, at the instance and in the name of the State Bank of Indiana, against the goods and chattels, lands and tenements, of the said McQueen & McKay (William McQueen and James McKay), which said writ of attachment, and all the proceedings in and about the issuing of the same, are admitted to have been regular, and the production of the same, and of the record thereof, is hereby waived."
"This said writ was directed to the defendant in this suit, who then was and still is Sheriff of said County of Allen and came to his possession as such sheriff on said 27 April, 1844, on which said 27 April, 1844, the sheriff aforesaid, by virtue of said writ of attachment, levied upon, seized, and took into his possession the said pork and flour described in said writings, marked A and B, the return day of which said writ has not yet elapsed. And it is also agreed that the proceedings of the said sheriff in executing the writ of attachment were in all respects, regular. It is not, however, admitted by the plaintiff that the property levied on was, at the time levied on or at any time since, the property of the said McQueen & McKay or that McQueen & McKay had an attachable interest therein. And that the defendant shall have the full benefit of all the proceedings in the said attachment, in the same manner as though the record thereof was produced before this court. And it is further agreed that the said sheriff kept and retained the possession of the said flour and pork, so levied on by said writ of attachment, until the same was replevied out of his possession by virtue of the writ of replevin in this case. The said writ of attachment was issued and sued out for the purpose of coercing the payment of the said money obtained by the said McQueen & McKay as above stated."
"It is further admitted by the parties that the said pork and flour are of the value mentioned in the affidavit of William Hoyt, now on file in this court, on which said writ of replevin was issued."
"The said Ludlow & Babcock were, on 17 April, 1844, the forwarding merchants of the said McQueen & McKay, at Toledo, Ohio, one hundred and four miles from Fort Wayne, and that Mott & Co. were on the same day the forwarding merchants of said Gibson at same place, Toledo."
"It was understood between the said Gibson and the said McQueen & McKay at the time of said assignment of said writings marked A and B that the said Gibson should sell the said pork and flour, and after retaining his said advancement and his legal commission, and interest and outlays, pay the remainder of the
proceeds of said pork and flour to said McQueen & McKay according to the usage and custom of commission merchants. The pork and flour mentioned in said writings marked A and B, and that levied upon by virtue of said attachment, and that replevied by virtue of said writ of replevin, in this cause issued, and purchased by McQueen & McKay with the money obtained from said bank, as aforesaid, are the same pork and flour, and not other or different. The said levy, seizure, or detention of said pork and flour happened at and within the County of Allen in the State of Indiana; a legal demand was made before the commencement of this suit, and after the said levy, upon the defendant, by said Hoyt as the agent of said Gibson, for the said pork and flour, and the said defendant refused to surrender the same. The said Gibson was at the time of the commencement of this suit and still is a citizen of the State of New York, and the defendant a citizen of the State of Indiana."
"The said advancement, so made by said Gibson, corresponds with the usual advancing rates of commission merchants in the said City of New York at the time of said advancement."
"The said writ of attachment was levied on the said property at the instance of the said branch of said State Bank of Indiana, and it was known to the State Bank of Indiana at the time of and before the levy of said writ of attachment that the said loan had been procured from her said branch at Indianapolis fraudulently by said McQueen & McKay and that the said McQueen & McKay had invested the said money so obtained in the purchase of said pork and flour, and that said attachment is still pending, and that the original bills on which said money was obtained fell due after the levy under said attachment, and that none of said bills on which said money was obtained or any part thereof have ever been paid, but were at maturity protested for nonpayment."
"It is also admitted, if the court should consider the circumstance legitimate or material, which the defendant denies, that in 1843 the said McQueen & McKay and said Gibson had a similar transaction in New York in which the said McQueen & McKay acted with integrity, but with which the bank or the other parties had no connection."
Upon this case stated, the circuit court gave judgment for the defendant in replevin. The counsel for the plaintiff took an exception, and brought the case up to this Court.