either on the receipt of the goods on board the Marietta, or on the receipt by the Anderton Carrying Company of the bill of lading, which is for some purposes the symbol of the goods. First: as to the receipt by the master of the sloop Marietta. It is to be observed that the verbal order was to send the goods by sea; but no vessel was named. It was left to the vendor to select what vessel he liked. A delivery to a carrier, even if selected by the vendor, is a delivery to the purchaser, if there is otherwise a binding contract: but the receipt by a carrier, even though selected by the purchaser, is not sufficient to bind the contract within the statute: Hanson V. Armitage (1), Acebal v. Lery (2), Johnson v. Dodgson (3). The contrary was ruled in Hart v. Sattley (4); but that case was always considered to be overruled, until it was mentioned, apparently with approbation, in the judgment of this Court in Morton v. Tibbett (5). Then the receipt of the bill of lading was after the loss of the goods; and it is not possible that there should be an actual receipt of a nonexisting thing. (On examining the note of the learned Judge, it appeared that there was some evidence, as stated above, that the bill of lading would, in course of post, be received in Liverpool, before the loss of the vessel on the same day.) The bill of lading is the symbol of the property. The receipt of the symbol cannot be an "actual" receipt of the goods: *Farina v. Home (6). (ERLE, J.: Suppose the person who has received the bill of lading were to sell it, whilst the goods were yet at sea, and so transfer the property. Would not that be an actual receipt of the goods?) The retention of the symbol would be evidence of an acceptance of the goods: Farina v. Home (6); and, if there was a dealing with the goods by the purchaser, or by some one under the authority of the purchaser, that would be sufficient evidence of actual receipt Morton v. Tibbett (7), Bushel v. Wheeler (8). And it may be that any actual dealing with the symbol, the bill of lading, so as to alter the property in the goods before they perished at sea, would have precluded the defendants from setting up as a defence that the goods, which they had dealt with as owners, had not vested in them. But, though they might, in such a case, be precluded from saying there was no actual receipt, it is not easy to see how there could really be an actual receipt consistently with Farina v. Home (6). (1) 24 R. R. 478 (5 B. & Ald. 357). (2) 38 R. R. 469 (10 Bing. 376). (5) 81 R. R. 666 (15 Q. B. 428, 440). (CROMPTON, J.: In Farina v. Home (1) the purchaser received a wharfinger's delivery warrant; and the COURT give this as the ground of their judgment. "This warrant is no more than an engagement by the wharfinger to deliver to the consignee, or any one he may appoint; and the wharfinger holds the goods as the agent of the consignor (who " in that case was "the vendor's agent), and his possession is that of the consignee, until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his possession that of the assignee, and then only is there a constructive delivery to him." It may be made a question, whether there is not a difference in this respect between the assignee of a delivery order, and the original consignee of a bill of lading. May it not be said that, though the orders were given by the vendor under a parol contract, and consequently not binding on the vendee, yet, that the bill of lading was an offer on the part of the captain to hold as bailee for the vendee, and that the retention of the bill of lading by the vendee is an acceptance of that offer, equivalent to the attornment of the wharfinger to the assignee of the delivery order. LORD CAMPBELL, Ch. J.: If the vendees choose in such a case to make the contract of sale good, they may sue the captain on the contract in the bill of lading without any further act on the captain's part.) That question does not arise; for the bill of lading was never received or dealt with by the defendants, or by any one having authority to bind the bargain on their account. It was transmitted by the plaintiff's agent Close to the Anderton Carrying Company, and received by them as agents to forward. Had the Anderton Carrying Company received the goods themselves, instead of the symbol, it would not have bound the bargain. Butt and Montague Smith, in support of the rule: The bill of lading was sent to the vendee's agent, and was not returned. That is evidence of dealing with the goods as owner, which is evidence of acceptance and receipt: Morton v. Tibbett (2). (LORD CAMPBELL, Ch. J.: The Anderton Carrying Company were agents to forward the goods, and no more. Where is the evidence that the defendants exercised any dominion over the goods ?) (1) 73 R. R. 433 (16 M. & W. 119). (2) 81 R. R. 666 (15 Q. B. 428). MEREDITH They had notice of the fact that the bill of lading had been forwarded v. MEIGH *371 ] to the Anderton Carrying Company, who were, if not agents to accept, at all events agents to receive the goods. Their silence is evidence that they accepted the bill of lading. (COLERIDGE, J.: If it was their duty to say anything, their silence would be important. But I do not see that they were called upon to say or do anything.) LORD CAMPBELL, Ch. J.: I am of opinion that there was no evidence on which the jury would have been justified in finding that any part of the goods in this case were accepted and actually received. The first consideration is, whether, where no ship is named by the vendee, but the goods are ordered to be sent by sea, the mere delivery on board a ship unnamed by the vendee, and the signing by the master of that ship of a bill of lading to carry the goods for the vendee, is a sufficient acceptance and receipt. I think it is not, and that the case of Hart v. Sattley (1) must be considered overruled and not law. That being so, the mere shipment on board the sloop Marietta, and the signing of the bill of lading by which the goods were, pursuant to the verbal orders of the defendants, made deliverable to the Anderton Carrying Company, are not enough to satisfy the statute. What are then the other circumstances? That the bill of lading was forwarded to the Anderton Carrying Company, and received and kept by them. That could be no evidence of an acceptance and receipt by the defendants; for the Anderton Carrying Company were mere carriers having no authority to accept and receive the goods. But, on a day, which I think we must for the purposes of this rule take to be the 25th April, the defendants had notice of the shipment, and that a bill of lading had been forwarded to the Anderton Carrying Company; and they did nothing till they heard of the loss of the vessel, on, as we must take it, the 5th May. And the question comes to be: Is the silence and nonfeasance of the defendants, from 25th April to 5th May, enough to prove that the defendants had constituted the captain of the Marietta their agent to accept and receive the goods, though he was not so before? I think it is not enough; for, as my brother COLERIDGE forcibly remarks, what were they called upon to say or do ? Their inaction did not cause the others to alter their position at all. (1) 3 Camp. 528. There are no other facts in the case. I think our decision is in conformity with all the cases except Hart v. Sattley (1), which I consider not law. In Bushel v. Wheeler (2) the vendee ordered the goods to be sent by a particular ship; and they were so sent and left lying in the warehouse of the owner of that ship for five months, with the vendee's knowledge. That was evidence that the vendee had constituted the owner of the ship, who had been agent to carry, his agent to keep the goods; and, if he had done so, he had received them himself. So in Morton v. Tibbett (3) the vendee resold the goods, and altered the destination of the goods in the carrier's hands: and that also was held evidence of a receipt. Farina v. Home (4) is an authority directly against the plaintiff. *I am therefore of opinion that this rule must be discharged. COLERIDGE, J.: I am of the same opinion, as I think that the plaintiff gave no evidence which would justify the jury in finding that the defendants accepted and actually received those goods. I think it will be best to consider the material facts by steps. The goods were, pursuant to the verbal orders of the defendants, delivered on board a ship chosen by the vendor; and a bill of lading was signed making them deliverable to the Anderton Carrying Company. Now it is clear, on the authorities, that, whatever was the agency of the Anderton Carrying Company, or even if they had themselves been the vendees, there was not yet either an acceptance or a receipt of the goods. But the bill of lading was sent on to the Anderton Carrying Company, and received by them. It now becomes material to see what kind of authority they had; and it appears that they were mere agents to forward; so that their receipt of the bill of lading comes to nothing. But the defendants had notice of all these facts; and they did nothing. Now, whenever a party has notice of facts which call upon him to act, forbearing to act is very important; but, in the present case, by the original verbal contract the vendor was to choose. the ship by which the goods were to be sent to the Anderton Carrying Company; and, when the defendants received notice that the vendor was doing this, they were not called upon to do anything, so that their nonfeasance is not of any weight. I think that, if the bill of lading had been received by the defendants themselves, especially if they had dealt with it, the case might have been different. (1) 3 Camp. 528. (2) 81 R. R. 675 (15 Q. B. 442, n.). R.R.-VOL. XCV. (3) 81 R. R. 666 (15 Q. B. 428). 39 v. MEIGH. [373] [ *374 ] The question reserved for our opinion is, Whether there was evidence on which the jury would have been justified in finding that the defendants had accepted part of the goods sold, and actually received the same? And I answer it in the negative. Placing goods ordered on board ship is good evidence of a delivery in support of a count for goods sold and delivered; but that is not the same as the question under the 17th section of the Statute of Frauds. I have no doubt that the bill of lading, which is the symbol of the property, may be so received and dealt with as to be equivalent to an actual receipt of the property itself: but in the present case the defendants neither acted, nor led the plaintiff to believe that they acted, as if they had received the goods, or were owners of them. CROMPTON, J.: The question reserved was, not whether there was any evidence for the jury, but whether a verdict for the plaintiff would have been justified. It is clear that a delivery to a carrier is a sufficient delivery in an action for goods sold and delivered, but not enough within the 17th section of the Statute of Frauds. Hanson v. Armitage (1) is not always considered to lay down the law correctly. Then the question comes to be, whether the communication to the defendants of the fact of shipment and transmission of the bill of lading to the Anderton Carrying Company and the silence of the defendants make any difference. These facts were such as the vendees who had given the order must have expected to take place; and therefore they were not called on to say anything on receiving notice that they had taken place. Where goods, or the indicia of the property in goods, remain long under the controul of the vendee, especially where the vendee has in any respect acted as owner of the goods, there may be sufficient evidence of an acceptance and receipt, although the goods themselves are not received. But in the present case there are no facts of that kind, on which the jury would have been justified in finding a verdict for the vendors. |