Frame v. Oregon Liquor Co.

Mr. Chief Justice Bean

delivered the opinion.

There are many assignments of error, but they may be grouped under substantially three heads: (1) The admission in evidence of a letter written by the plaintiff to the defendants on December 30, 1903, notifying them of the order from Olsen to return the goods to the consignors and asking for a copy of the order which they had represented they had from Olsen for the possession of the goods, and intimating that if they did not have such an order plaintiff would be constrained to commence legal proceedings to recover the goods or their value; (2) the admission of evidence tending to show that Meyer, Mish & Co. and Palm, Whitman & Co. demanded of the plaintiff possession of the goods consigned by them to Olsen, and of plaintiff’s subsequent settlement with such firms; (3) instructions of the court concerning the right of a seller of goods to stop them in transitu.

1. The letter complained of was a part of the correspondence' had between the plaintiff and the defendants concerning the goods in question, and was clearly competent testimony. It was a part of, and explanatory of, the transaction between the parties, and stood practically on the footing of a conversation between them: Lee v. Cooley, 13 Or. 433 (11 Pac. 70).

2. The evidence that Meyer, Mish & Co. and Palm, Whitman & Co. had demanded possession from plaintiff of the goods consigned by them to Olsen was competent as tending to show that they had exercised the right of stoppage in transitu, and that plaintiff .had been compelled to settle with them for the goods of which' the defendants had wrongfully obtained possession.

3. The objection to the instructions concerning the right of Meyer, Mish & Co. and Palm, Whitman & Co. to stop the goods ordered from them by Olsen in transit is two-fold. First that the right of stoppage in transitu ceased when the goods were delivered by the railroad company to the plaintiff, and second such instructions were outside of the issues made by the pleadings. In ease of a sale of goods on credit the vendor may resume possession of the goods while they are in the hands of a carrier or middleman in transit to the vendee or consignee on his becoming insolvent: Buckley v. Furniss, 15 Wend. 137; Newmark, Sales, § 413; Hutchinson, Carriers (2 ed.), § 415. This right continues until the delivery of the goods'to the consignee or his agent is completed (26 Am. & Eng. Encyc. Law (2 ed.), 1088; 2 Mechem, Sales, § 1537), and cannot be impaired or extinguished during its existence by seizure under legal process on behalf of the buyer’s creditors: 2 Mechem, Sales, § 1571; Buckley v. Furniss, 15 Wend. 137; Chicago, etc. R. Co. v. Painter, 15 Neb. 394 (19 N. W. 488).

4. Now, the goods in controversy were consigned by the sellers to Olsen at Drewsey, a point 60 miles from Huntington. The plaintiff is engaged in the warehouse and forwarding business at Huntington. He had authority from Olsen to receive from the railroad company all goods consigned to him, and forward them to their destination when ordered to do so. He could not change the destination of the goods, nor make any disposition of them except to forward them to Drewsey. He was, therefore, a mere forwarding agent, and the goods were in transit while in his possession, and subject to the right of the seller to take possession thereof on the consignee becoming insolvent: Hutchinson, Carriers (2 ed.), §416; Newmark, Sales, §414; 2 Meehem, Sales, §1547. The transit of the goods had, therefore not terminated at the time the consignors demanded the return thereof and the instructions upon that question were pertinent.

Decided 21 August, 1906.

5. Nor was it necessary for the plaintiff to aver that the goods had been stopped in transitu by the vendors to entitle him to prove that fact, and the court to instruct the jury in reference thereto. The defendants set up as a defense that the goods wére the property of Olsen, and -had been attached as such. To overcome this defense it was competent for the plaintiff to show that the goods had never been delivered to Olsen, but were still in transit at the time the defendants wrongfully obtained possession thereof, and that subsequently the sellers had exercised the right given by law to cancel and annul the sale and thereby terminate any rights secured by the defendants under their attachment.

It follows that the judgment of the court below must be affirmed, and it is so ordered. Affirmed.