Isaac F. Williams versus Jacob B. Moore, 5 N.H. 235 (1830) - Opinion

Trover for two crates of crockery ware, and one crate of jogs. The cause was submitted to the decision of the court upon the following facts.

Previous to the 8th October, 1828, Shute and Benton, partners in trade, in Concord, agreed with the plaintiff, a trader in the same place, to purchase his crockery and glass ware, including what he then had in his store, and two crates of crockery, and one crate of jugs, for which lie had contracted in Portsmouth, but which he had not received; and it was agreed, that the plaintiff should not keep any crockery for sale for one year from that time.

On the 8th October, 1828, the ware, which the plaintiff had in his store, was removed to the store of Shute and Benton, and charged to them in the books of the plaintiffs.

The amount of the ware in the crates at Portsmouth was not known, and Shute and Benton were to pay the amount charged in the bills to be furnished by Taylor and Waldron, of whom the plaintiff purchased, deducting twenty-five per cent.

On the 11th of the same October, Shute and Benton failed. But previous to that day, the plaintiff contracted with a common carrier to transport the said crates from Portsmouth to Concord. On the 13th of the same month* the earner arrived at Concord with the said crates, and his team was standing about a quarter of a mile from the stores of the plaintiff and of Shute and Benton, when the defendant, the sheriff of the county, by virtue of a writ in favor of Maine and Southgate, against Shute and Benton, with the consent of Shute and Benton, attached said crates, and has since sold them on an execution obtained in that suit.

After said crates were attached, but before they were removed from the place where the attachment was made, the plaintiff claimed the crates as. his, and forbade the defendant to meddle with them..

JLletcher, for the plaintiff:

M-Martlet⅜ for the defendant.

delivered the opinion of the court..

This is a very plain case. The plaintiff sold to Shute and Benton all his crockery ware. It does not appear-, that the vendees were to have any credit for the price. The plaintiff then had a lien upon the goods for the price, and a right to retain them until the price was paid. He had also, alright to stop them in transitu, on the failure of Shute and Benton. 2 D. & E. 63, Lukbarrow v. Mason; 1 H. Bl. 357, S. C.; 6 East, 21, note, S. C.; 4 Bing. 516 and 579 6 B. & C. 422, Coates v. Railton; 2 Caine’s Rep. 44; 4 B. & C. 941, Bloxam v. Sanders; 7 Mass. Rep. 453.

A part of the goods were at Concord, and a part at Portsmouth; the-goods at Concord were delivered. With respect to these, the contract was completed, and the title vested in Shute and Benton. But this delivery pf the goods at Concord, was not a delivery of the good's at. Portsmouth, and within the principle that a delivery ©f part, is in law, a delivery of the whole. That princi-nle applies only where there has been a delivery of part ©fan entire cargo, or parcel, without any intent to sepa-yate, that part from the rest. 1 New. Rep. 69, Hammond v. Anderson; 2 H. Bl. 504, Slubey v. Hayward; 4 Starkie’s, Ev. 1641. The goods at Portsmouth were to be transported to Concord, and delivered to Shute and Benton, by the plaintiff', and until thus actually delivered to the ven-dees, they could not be considered as so in the possession of Shute and B&nton, as to put an end to the plaintiff’s lien, or to his right to stop in transitu. 2 M. & S. 397, Bush v. Davis; 15 Johns. 349, McDonald v. Hewett; 5 Taunt. 617, Shepley v. Davis.

: The carrier was the agent of the plaintiff, and it does not appear that he had any authority to deliver the goods to Shute and Benton. The circumstance that the goods were taken with their assent, is therefore wholly immaterial. The goods were in possession of the plaintiff', and he had a right, under the circumstances, to reclaim them. They could not then be legally attached as the property of Shute and Benton by the defendant. 2 Starkie’s N. P. C. 337, Houlditch v. Desanges.