Fuller v. Claflin

¶1(dissenting.) The phrase, “sold to arrive,” in mercantile contracts, does not import an executed sale. The sale is conditional, and, incase the events take place upon which its execution depends, the right of the vendee, in case of non-delivery of the goods, is to recover damages therefor. He cannot maintain replevin. The title is in the vendor until the sale is completed, in th.e same manner as other sales. Anderson v. Read, 106 N. Y. 333, 13 N. E. Rep. 292. It follows, therefore, that the agreement of Brennan & Co. did not transfer to Claflin a present title to the goods. That remained in the vendors, and, upon the appointment of the receiver, vested in him as the representative of the court, as did the other assets of the estate. After that time the title of the goods could only be transferred by the receiver, or by order of the court. It also appears that on August 30th, when the contract was made, there were no goods of Brennan &Co. on the schooner M. C. Decker. There was therefore, at that time, nothing which answered the description of the contract. Before the goods were placed on board, they had vested in the receiver. They were not at any time before the receivership set apart or specified, or in any way appropriated, to the fulfillment of the contract,—all of which was necessary to be done before the title could pass. Hot till those steps were completed could any one tell which of the goods were to go to the vendee. The goods vested in the receiver before these things were done, and whatever was done by the agents of Brennan & Co. after that time had no validity. It follows that the goods were the property of the receiver, who must have judgment upon the agreed statement of facts for $3,724.65, and interest from October 16, 1888, and his disbursements in the action.