Law v. Hatcher, 4 Blackf. 364

Blackford, J. This was an action of assumpsit by Hatcher against Law, before a justice of the peace. The following is the statement of the cause of action: Mr. John Law to Archibald Hatcher, Dr. June 29th, 1836. To damage on 30 clocks, 37 dollars. The defendant pleaded the general issue. The justice gave judgment for the plaintiff. The defendant appealed to the Circuit Court, and the cause was there tried upon the merits Avithout a jury.

The following was the evidence before the Circuit Court:— Runyan & Pharis purchased in the state of Connecticut, a quantity of clocks with cases, and ordered the same to be sent to them at Lafayette, in the state of Indiana, by the way of Chicago. The clocks were accordingly sent .to Chicago; and the forwarding merchant there delivered them to the defendant, to be taken by him in a wagon to Runyan & Pharis or their assigns, at Lafayette, they paying freight. The defendant signed bills of lading and delivered them to the forwarding merchant at Chicago.

Whilst the clocks were on their way from Chicago to Lafayette, they were sold, at Lafayette, by Runyan & Pharis to the plaintiff. By the contract of sale, the plaintiff was to pay Runyan Sf Pharis the Connecticut prices for the clocks, and also to pay the expenses of carriage. The defendant having arrived with his Avagon at Lafayette, informed the consignees, Runyan & Pharis, that he had brought the clocks for them from Chicago. They informed the defendant, that the clocks belonged to the' plaintiff, to whom they must be delivered.

The defendant, accordingly, delivered the clocks to the plaintiff, in his Avarehouse at Lafayette, and received from him the charges for carriage. The boxes containing the clocks were opened on the next day after their receipt by the plaintiff, when the clocks and cases were discovered to have sustained an injury by water, to the amount of 37 dollars. - Upon this testimony, the Circuit Court gave judgment for the plaintiff.

This is an action of assumpsit which the plaintiff, who had bought certain goods from the consignees and owners, has brought against a carrier by land for an injury to the goods whilst they were in the carrier’s possession. There is on the threshold of the cause a fatal objection to the plaintiff’s recovery. The record does not contain any satisfactory evidence to show, that, at the time the clocks received the injury complained of, they were the property of the plaintiff.

According to the statute of frauds, no verbal sale of goods for the price of 30 dollars or upwards is valid, unless the buyer accept and actually receive part of the goods, or give something in earnest to bind the bargain or in part of payment. Rev. Code, 1831, page 274 .

The sale in question was to an amount above 30 dollars, and, for any thing that appears by the record, it was made by parol, without any payment whatever, and without a delivery of any part of the goods-^ Under these circumstances, it is impossible for us to say, that any change of property in the clocks took place until the defendant actually delivered them, at Lafayette, to the plaintiff.

Previously to that time, they must be considered as the properly of Runyan Sf Pharis; and it is to them alone, that the defendant is responsible for any injury to the clocks, which they may have received on the way from Chicago to Lafayette. A. S. White and R. A. Lockwood, for the plaintiff. J. Pettit, for the defendant. The plaintiff’s remedy, if he have any, for the defective state of the clocks when he received them, is against Runyan & Pharis, and their remedy, if they have any, for the injury in question, is against the carrier who had charge of the clocks at the time they received the injury.

If the bill of lading, by which the defendant was bound to deliver the goods to the consignees or their assigns, had been endorsed to the plaintiff at the time of his contract with Runyan & Pharis, the property would then, by virtue of the endorsement, have vested in the plaintiff. Abbott on Shipp. 308. In that case, the plaintiff might -have sued the carrier for any injury to the goods for which he was liable, provided the injury took place subsequently to the endorsement.

There does not appear, however, to have been any such endorsement of the bill of lading, nor, indeed, any other written evidence of the sale., We are of opinion, that the judgment of the Circuit Court against the defendant is not sustained by the evidence, and that he is consequently entitled to a new trial. Per Curiam. The judgment is reversed with costs. Cause remanded for another trial. The mere circumstance that the

article sold is not to he delivered until a future period, does not take the case out of the statute. Rondeau v. Wyatt, 2 H. Bl. 63.—Cooper v. Elston, 7 T. R. 14.—Jackson v. Covert, 5 Wend. 139. Aliter, where the

article is to be manufactured, or labour performed on it to prepare it for delivery. Ibid.—Bennett v. Hull, 10 Johns. 364,—Crookshank v. Burrell, 18 id. 58.—Sewall v. Fitch, 8 Cowen, 215.