By the Court,
Nelson, Ch. J.I do not see how this case
can be distinguished from several cases recently decided in this court, involving the same general doctrine applicable here, especially the cases Holbrook v. Wright (24 Wend., 169) and Grosvenor v. Phillips (2 Hill, 147), and which were founded upon Haile v. Smith (1 B. & P., 563), Verue v. Jewell (4 Camp., 31) and Anderson v. Clark (2 Bing., 20).
Both parties claiming the property in question are equally innocent, and one or the other must bear the loss; but in a court of law we can only inquire which has a prior and better title, and dispose of the case accordingly.
It is not necessary to say that the property in the flour changed and passed to the plaintiffs when shipped on board *217the canal boats at Akron, under the agreement of 20th Jactuary, though I think there are very strong considerations in favor of that conclusion. They had already advanced at the rate of three dollars, or two dollars and seventy-five cents, depending upon the particular brand per barrel, upon all the flour shipped, in consideration of which the consignors had agreed to forward it as soon as manufactured, with all due dispatch to their house in New York. Indeed, it appears that the full value of the flour had in point of fact already been advanced before it was shipped. It would seem reasonable, therefore, that from the moment it was set apart for the particular purpose of fulfilling the agreement, by marking upon each barrel the initials.of plaintiffs’ firm, putting it on board accompanied with a bill of lading, consigning it to their house, their interest in the property should be deemed to attach. This conclusion seems to accord both with the obvious intent of the parties as derived from the agreement and justice of the case.
The only argument against it is derived from the fact that the canal boats belonged exclusively to the house of Stan-dart, Chamberlin & Co., and were under the control and direction of their servants and agents, and hence the flour still in their actual possession and custody while in the course of shipment till it reached the carriers at Cleveland. But looking at the nature of the contract, and intent of the parties, I see nothing in this arrangement or mode of transportation, necessarily interfering with or forbidding the effect I have supposed fairly deducible from the acts of the house at Akron in separating the particular parcel from the general mass, in the way already stated, and starting it to the place of destination. A destination of the goods by the vendor to the use of the vendee; marking them, or making them up to be delivered; removing them for the purpose of being delivered, may all entitle the vendee to act as owner, to assign and to maintain an action against a third person into whose hands soever they may have come. 1 Hen. BL, „ 862, per Ld. Loughborough.
But be this as it may, there can be no doubt, I think, upon the cases above refered to, that the moment the flour reached *218Cleveland, and was received by the forwarders for the purpose of being sent on to the consignees, both the property and possession passed and were afterwards beyond the control of the consignors. They had no more right or .power to change its destination, or to appropriate it to any other use than the one to which it had been devoted, than an entire stranger. Even the right of stoppage in transitu, common to the consignor, did not remain to the shipper in this case, as he had already received by way of advance the full amount of the proceeds of the article. (Hodgson v. Loy, 7 T. R., 440.)
It was strongly urged on the argument in behalf of the defendant, that the flour in question could not be regarded as having been shipped under and in pursuance of the agreement of the 20th January, but that it was shipped to the plaintiffs as general factors or commission merchants who as such would acquire no interest or lien upon the property for previous advances, until the goods came into their actual possession. (2 Hill, 150, and cases there cited.)
The answer is, that all the testimony in the case leads to a contrary conclusion. It is true, the plaintiffs so far departed from the contract as to furnish funds at an earlier period, and exceeding the amount stipulated for; in other words, they fulfilled the agreement on their part, and something more, as they were not bound to make the advances until the receipt of the shipping bills. So far there may be said to be a modification of the contract which the course of dealing shows was assented to by all the parties concerned, and which it is not to be denied they were abundantly competent to make.
. Neither do I perceive how this modification could at all affect injuriously the rights of third persons; the receipt of the shipping bills before the advances, would not have advised the defendant of the interest of the plaintiffs in the cargo consigned, nor have prevented the fraudulent change of its destination by Standard through his forwarding house at Cleveland. The defendant would have been equally subject to the imposition under either aspect of the agreement.
New trial denied.