HOFFMAN v. GOSLINE et al., 172 F. 113

WARRINGTON, Circuit Judge (after stating the facts as above). The assignments of error are numerous, but need not be noticed in detail. Each side presented charges, requesting among other things a directed verdict. The leading issue presented by the record and by counsel is whether title to the coal passed to Hoffman. It is conceded by both sides, as under settled law it must be, that in an action like this — declaration on the common counts — recovery was not permissible unless title had passed.

It is claimed on behalf of plaintiff in error that title did not pass for several reasons: In the first place, that the contract in terms re-quirad the coal to be consigned to Hoffman by name. In the next place, that consignment of the coal to Gosline & Co. disclosed 'a purpose in them to retain title, and so be able, as was customary under conditions like those threatened, to divert the coal to others at higher prices. And, finally, that Hoffman’s refusal to receive the coal prevented transmission of title, and consequently recovery in an action like this.

It is maintained on behalf of defendants in error that consignment to Gosline & Co., with intent to transfer title to Hoffman, giving notice to that effect to him and the carrier, was consistent with the contract, and that they anticipated and met the other claims by evidence (1) explaining that the sole object of so consigning the coal was to avoid revealing the name of their customer to the mine operators, and that it was customary so to do, as Hoffman well knew; and (2), if we understand it, showing that the coal had been delivered to the railroad company at the mines when notice of Hoffman’s effort to cancel the contract was received.

We are not persuaded that the contract' required consignments to be made only in the name of Hoffman. Of course, consignments made in his name would have been in harmony with the contract. But did the language so restrict consignments? As it seems to us, the words “ship to Jules G. Hoffman, at Junction Yards, Mich. Route M. C. R. R.,” meant that the coal should be placed in Hoffman’s actual possession at Junction Yards, rather than that it should be placed at his disposal in transit.

Expressly naming destination necessarily meant dominion of the coal in Hoffman at that place; but mentioning only a portion of the route, and omitting any point of origin or any route leading thence to the Michigan Central Railroad excluded demand for control in transit, and left the. consignment open to any explanation which was consistent with transfer of title at the mines. If control in transit and possession at destination were intended to be made alike material, surely that intent should have been distinctly expressed.

The words “ship to” a person named, “at” a specified-place, are hardly calculated to reveal a purpose to control in transit, so much as an order for delivery of the thing at the place named. Indeed, it is hard to see why it would not have been a compliance with the language we are considering, if. Gosline & Co. at the time of receiving and accepting the order of Hoffman had been in control at Junction Yards of 50 cars of coal of the kind required, and had tendered the same to Hoffman.

We therefore think any construction of the contract which would restrict consignment exclusively in the name of Hoffman would attach unusual rigor to the meaning of the words “ship to,” and would also bring them into conflict with the usual effect accorded to the intention of the parties where passing of title is in question. In Harrison v. Fortlage, 161 U. S. 57, 63, 16 Sup. Ct. 488, 490, 40 L. Ed. 616, it was held that a contract “to ship by a certain vessel for a particular voyage” did not necessarily mean that the goods must be carried in that vessel throughout the voyage. See, also, Fisher and Another v.

Minot, 10 Gray (Mass.) 260, 262; Mora y Redon v. Havemeyer, 121 N. Y. 179, 186, 24 N. E. 297, 8 L. R. A. 245; Clark v. Lindsay, 19 Mont. 1, 4, 47 Pac. 102, 61 Am. St. Rep. 479. The foregoing views are strengthened, we think, by the law applicable to consignments made by consignors to themselves instead of their vendees. Nothing perhaps is better settled than that the intention of the parties must be given controlling effect in issues concerning the passing of title to chattel property.

It is not open to serious dispute that the contract under review discloses a common intent in the parties to transfer title to the coal, when placed upon the cars and delivered into the custody of the carrier. This is but the ordinary effect to be given tó “f. o. b. mines.” If the consignments had been made in the name of the vendee, there could have been no question so far as this contract is concerned as to passing title to all coal loaded on cars and seasonably delivered into the custody of the carrier at the mines.

In that event the appropriation of the coal to the buyer would have been complete; for in our view the contract did not make weighing a condition precedent to the passing of title. Now, since no rights of creditors had intervened, and no question of vendee’s ability to pay had been made, it was open to the vendor, by pertinent facts and circumstances, to rebut the presumption of intent to retain title by consigning the coal in the firm name. Dows v. National Exchange Bank, 91 U. S. 618, 633, 634, 23 L. Ed. 214; Joyce v. Swann, 17 C. B. (N. S.) 83; Browne v. Hare, 4 H. & N. 821, 828; Gibbons v.

Robinson, 63 Mich. 146, 150, 154, 29 N. W. 533; Emery’s Sons v. Irving National Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Straus v. Wessel, 30 Ohio St. 211; Merchants National Bank v. Bangs, 102 Mass. 291; Hobart v. Littlefield, 13 R. I. 341; Neimeyer Lumber Co. v. Burlington & M. R. R. Co., 54 Neb. 321, 74 N. W. 670, 40 L. R. A. 534; McKay & Co. v. McKenna, 173 Pa. 581, 34 Atl. 236. This reduces the case to an issue of fact. Under our view of the evidence, this issue was one for the jury.

It follows that the requests made on behalf of the parties respectively for charges directing a verdict were properly overruled. But we are constrained to think, with deference, that the general charge failed to submit to the jury the precise lines of inquiry into the facts which they were to determine. We think that this amounted to prejudicial error, and that the case should be retried under appropriate instructions concerning the passing of title. The judgment is accordingly reversed, and a new trial awarded.