Hodges & Co. v. Kimball

on rehearing.

Day, J.

Within the time authorized, upon the petition of plaintiffs, a rehearing was granted in this case. The defendants answered the argument of plaintiffs, and the plaintiffs, by John W. & M. B. Cary (counsel not before appearing in the case), filed a reply. The cause is now again submitted for final determination. In the petition for rehearing, and the reply to defendants’ argument, counsel cite the following authorities not referred to in the original argument: Anderson v. Clark, 2 Bingham, 20; Cuming v. Brown, 9 East., 506; Virtue v. Jewell, 4 Campbell, 31; Patten v. Thompson, 5 Maule & Selwyn, 350; Wade & Co. v. Hamilton, 3 Georgia, 450; Grove v. Brien, 8 Howard, 429; Bryan v. Nix, 4 Mees. & W., 774; Evans v. Nichol, 3 Man. & G., 614; Alderson v. Temple, 4 Bun., 2235; Berly v. Taylor, 5 Hill, 577.

We have examined all of these authorities with care. The most of them are cases where a bill of lading or receipt, or letter of information, was forwarded to the consignee, or, *588advancements were made upon the faith of the particular consignment, and they fall within the principle of the cases reviewed in the foregoing opinion. If it should even be conceded that some of them would support a conclusion different from that reached in the foregoing opinion, still, it cannot be denied that other cases, more directly in point, equally well considered, and of equal authority, support the doctrine of the opinion.

It is not denied that the case of Elliott v. Bradley, 23 Vt., 217, decided in 1851, directly supports our opinion in this case; but the authority of that case is assailed. It is stated that it was overruled in Davis v. Bradley & Co., 28 Vt., 118, and that “courts and text-writers have shunned it with contempt” ever since it was announced, some twenty-seven years. This statement, so far as we are able to discover, is altogether without support. The case of Elliott v. Bradley is not only not overruled in Davis v. Bradley & Co., 28 Vt., 118, but its correctness is there, at least impliedly, recognized. In the sixth edition of Parsons on Contracts, edited in 1873, the case is referred to in support of the doctrine of the text, without any note of disapprobation. See page 98. In addition to the authorities alluded to in the foregoing opinion, the case of Bonner v. Marsh, 10 Smedes & Marshall, strongly supports the view therein announced. See, also, Bank of Rochester v. Jones, 4 Coms., 497. We are fully content with the doctrine announced, and the conclusion reached in our former opinion. The opinion before announced is adhered to.