KELLY V. DEMING.
677
the mutual mistake was discovered by the company the policy was rightfully marked "cancelled." Under the finding of the jury and the other undisputed facts, I am of opinion that there was no binding contract of insurance between the plaintiff and the Lycoming Company; that the plaintiff acted in the best offaith to the defendant company, and that there was no breach by him of the condition of the policy sued on in respect to other insurance. The motion for a new trial must therefore be overruled. And now, to-wit, January 21, 1881, the motion for a new trial is denied; and it is ordered that judgment in favor of the plaintiff be entered upon the verdict.
KELLY
and others v.
DEMING
and others.
(Circuit Court, E. D. Missouri.
January 17,1881.)
1.
ATTACHMENT VENDEE.
PROPERTY IN POSSESSION OF CARRmR-VENDOR AND
Certain property, payable in cash on delivery, was attached by the vendee's creditors while still in the possession of the carrier. Held, that such creditors could acquire no right in the property, Ol' to the possession thereof, as against the vendor, without, at least, payment of the price and charges.-[ED.
Trial without the Intervention of a Jury. .. TREAT, D. J. One Warriner, through false and fraudulent represeY;ltations, caused plaintiffs to ship to him the property in question; payable in cash on delivery. The property was shipped by rail, and, said Warriner having in the meantime absconded, was placed in the railway's storehouse, subject to order, etc. Thereupon creditors of Warriner caused the same to be seized by attachment, and the plaintiffs caused the same to be replevied out of the possession of said attaching creditors and the officers who at their instance had seized Chester Krum,for plaintiffs. Stewart d: Bakewell, for defendants.
678
FEDERAL REPORTER.
the same. Warriner never paid for said property, ,or claimed the same, while in the custody of the rail:way Gompany. As stated at. the trial, where property acquired by fraud has passed to· pur,chasers from the for value, after delivery' to the vendee, the vendor cannot as between reclaim the same. Yet the himself and sai4 right of stoppage in transit cannot be defeated by such sale before delivery. The cases cited turn mainly on the question of actual or constructive delivery, the bona fides, and where given by the alleged purchaser. The dispute as to a valuable consideration is a very old one; and pertains not to the purchase of goods alone, but to the transfer of commercial paper. As to the latter class of cases, the most noted are those in New York. The case the court does not call for any inquiry as to the nature of a valuable consideration when the same is for an antecedent debt, and the transferor makes the transfer for such consideration alone. Here the vendor made no transfer. He had not even received possession of the property. It was still in possession of the carrier, subject to stoppage in transitn. The shipment was ma-de for cash on delivery. The attaching creditors were subordinate in right to the shipper, and therefore the plaintiffs' replevy must hold. The property in question had never passed into the actual custody of Warriner, and he had never complied with the terms of shipment or purchase. His attaching creditors had never purchased this property from him, nor parted with value therefor, nor dealt with him on the faith of his ownership thereof. Indeed, he never became the owner of the property, for he never complied with the terms of the conditional sale nor exercised any right of possession. But it is contended that there was a right of possession vested in the vendee which passed to the attaching creditors, viz., a right on payment of the sale price and charges of transportation to the possession of the property; and consequently that the plaintiff, on taking the property by replevy, ought to respond to the attaching creditors for the difference in the price at
679
which the property was sold, with costs of transportation added, and the actual value of the property at the date of the replevy. The vendee had a right on payment of the cash price and charges to receive the property and thus become the, absolute owner thereof, {)r to take possession as consignee. He never paid the :price or charges, never received the property, and never claimed the same. It had been shipped to him on the terms stated, and by no act of his had rights been defeated. What legal complications might have arisen, if he had taken possession from the carrier,' it is not necessary to discuss. No such possession was was ever obtained or claimed by, nor was any sale made by, him in ,and tile property was still inpPssEll:lsion of ,the carrier. How then could his attaching creditors' acquire as against the vendor any right in the property or to the possession thereof, at least without payment of the price and charges? If they had any such right on such payment made, can they, without such payment or tender, hold the vendor to an ascertainm,ent of the value of the property replevied, with charges added, and answer over to them for the balance? Until the vendee had an acquired right in the property, irrespective of the vendor, his creditors could not defeat the vend:>r's demand, nor make the vendor who had reclaimed his own property responsible to them for all;y supposed or actual accessions in value intermediate the ,and replevy. This 'case is here free from. all questions as to an assignment of a bill of lading or bill drawn against the shi:pment. As no special damages for detention by defendants bave been proved, the court orders judgment for the piaintiff for nominal damages and costs.
(l80
nEPOnTEn.
THE MUSSEL SLOUGH CASE.
(Circuit Court, D. Oalifornia.)
It is not necessary to prove that the defendants came together and actually agreed, in terms, to have that design and to purSlle it by common means. If it be proved that the defendants pursued by their acts , the SBme obje(}ts, often by the same means,' bne perforining one part . and another another part of the same, so as to complete itwith a view to the attainme,nt of the same object, the jury will be justified in the conclusion'that they were engaged in a conspiracy to effect that object.
4;
<MARBHAL-OBSTRti'CTION AND RESISTANCE IN ExECUTING A WRIT.
-[ED. SAWYEn, C. J., (oral This long case is about drawing to a close.. Counsel have performed their duty; it now remains for the court to perform its dutv; and then it will devolve upon you to perform yours. It is the duty of the court to give you the law applicable to this case, and it is your duty to receive it from the court, and to act upon it as so given to you. The declaration, of the law is strictly and solely the province of the court, and your functions are simply to ascertain the facts. Of the facts you ltre t1;le sole judges. You are the judges of the weight of the testiinony, and the credibility of the witnesses, and it is for you, from all the testimony in the case, to determine the facts, and when you determine the facts it is your duty to announce that determination, whatever your sympathies may be. You will examine this case fairly, calmly, impartially, and declare the result as it strikes your minds from all the testimony in the case. You will not allow yourselves to be governed by sympathy or drawn aside from the issues by any outside considerations. You have nothing to do with the punishment;