Hewlet v. Flint

Burnett, J., delivered the opinion of the Court—Murray, C. J., concurring.

The decision of this case will turn upon the meaning of the following contract: #

“ Sold to Mr. C. L. North, for account of Mr. J. C. Hewlet, (247) two hundred and forty-seven bales brown drills, as follows : price, (9|) nine and three-quarter cents per yard; terms, payable fifteenth day of July next; said North to receive, from time to time, as he may want for manufacturing into bags, all the entire purchase, he (North) depositing the manufactured bags in a fireproof warehouse to the order of said Hewlet, from day to day as they are manufactured, said North delivering the warehouse receipts to said Hewlet as he receives them, said North having [265]the privilege of drawing from warehouse the manufactured bags upon said Hewlet’s order, as he may want, by making such payment as may be mutually agreed upon. Said North to have the benefit of the present month’s unexpired storage of the drills, after which month’s storage said North is to pay for such storage as may accrue upon the said drills. It is also understood the storage upon the manufactured bags shall be paid by the said North.

“Approved by both parties this (28) twenty-eighth day of April, 1856.

“Hunt & G-ray, Brokers, 91 Front street.”

After delivery, and before payment of the purchase money, or storage of the sacks by North, in whom was the title of that portion of the property delivered vested, so as to make a sale valid to a bona fide purchaser ? Could North have sold the sacks before storage, and the bona fide purchaser obtain a good title ?

It is clear from the agreement that it was a sale to North, not a mere hiring of North to make the sacks. The sacks were not the property of plaintiff. The goods were to be delivered to North from time to time as he needed them, and he was to store the sacks and deliver over the receipts to plaintiff. These stipulations were intended to secure the plaintiff from incurring the risk of a delivery of all the goods at one time. By delivering only a portion at a time, the plaintiff only incurred the risk of losing the portion delivered. But it would seem to have been the intention of the parties that the title to the drills should vest in North, from time to time, as they were delivered. When the material was made up into sacks, and the sacks stored and the receipts delivered, plaintiff would then have a lien upon the sacks. Before the delivery of the bales, the property was in plaintiff, and any loss by accident would have fallen upon him. After delivery, the loss would have fallen upon North. The plaintiff was willing to trust North for the portion of the goods first delivered, and then upon his pledging the sacks manufactured from that portion, he was willing to trust him for another portion. That he was willing always to trust North personally for one portion of the goods, would seem clear from the fact that the first delivery to North was without security, while the other portions, by the terms of the contract, were only to be delivered upon a pledge of the sacks. If, then, the plaintiff delivered the second portion without the performance of the conditions mentioned, he waived their performance, and the title vested in North in the same way as it would have done had these conditions been fully performed. The view we take of the contract is this : Upon the first delivery, the title of the portion delivered vested in North, and he could sell to any bona fide purchaser. And so in reference to any portion subsequently delivered.