An intention, clearly proved, of a consignor of goods to vest
the right of property in the consignee is not sufficient to effect
such a change of property until the goods are received by the
consignee or some evidence is given of his agreement to take them
on his own account; until that time, the goods are at the risk of
the shippers, and if they are enemies, the goods, if captured, are
good prize. No difference, though the consignee were the agent of a
third person who had directed him to order the goods, unless it
appears that he actually did order them.
William French, the appellant, a citizen of the United States,
claimed fourteen boxes of merchandise shipped on board the
Frances by James Auchencloss, of Paisley, in Scotland, to
A. & J. Auchencloss of New York, on their account and risk,
with orders to remit the proceeds to the shipper for payment. The
claimant
Page 12 U. S. 360
alleged that the goods had been previously ordered by him
through A. & J. Auchencloss, to be imported on his account and
risk.
Further proof was ordered by the court below, to consist of the
original order for the merchandise and all the letters and
correspondence relating to it and of all the proofs of property in
the claimant.
Under this order, the claimant produced a letter dated
Baltimore, 20 February, 1812, signed by himself and addressed to A.
& J. Auchencloss, requesting them to order from their friends
in Scotland good not exceeding in value �1,000 sterling, to
be shipped so soon as the orders in council should be revoked.
On 20 September, 1812, A. & J. Auchencloss wrote a letter to
the claimant advising him of the capture of the
Frances
with the goods, said to be shipped on his account to their address
and desiring him to take the necessary steps to have his property
cleared.
To these letters were added affidavits of the claimant tending
to prove the property in him, together with an affidavit of Darius
Hodson, that he forwarded the above last mentioned letter to the
claimant at Providence, by his request, and that when he took it
from the file, it was a whole sheet directed to the claimant from
New York by J. Auchencloss, Jr., but that in order to save postage,
he, the deponent, tore off the outside leaf, not thinking, at the
time, of its being of any importance.
Upon this proof, the claim was rejected in the court below, and
the property condemned to the captors.
WASHINGTON, J. delivered the following opinion of the Court:
Page 12 U. S. 361
This is the claim of William French to a part of the cargo of
the
Frances, shipped by James Auchencloss, of Paisley, in
Great Britain, to A. & J. Auchencloss, of New York, on their
account and risk. By the correspondence between the consignor and
consignees, which was exhibited to the court below under an order
for further proof, it is somewhat doubtful whether these goods were
to be sold as the property of the consignor, or of the consignees.
In the letter from the former to A. Auchencloss dated 17 July,
1812, he says
"You will lose no time to transmit immediately, on the receipt
of the invoice by the
Fanny as well as by the
Frances, to the full amount of the invoices, as thereby
and no other way is your credit and John's to be restored here.
Also remit, as I have often told you, to clear off your old debt,
and for God's sake let us have no more failing in the family. You
will observe that the goods per
Fanny and
Frances
are principally bought upon a credit of 3, 4 and 5 months -- this
the consequence of failing."
In another letter of the same date, from the same to the same,
he says
"By this ship, the
Frances, I have shipped you 14 boxes
of different kinds of goods, which I beg you will lose no time to
dispose, as by early remittances you will undoubtedly strengthen
your credit."
In another part of this letter he says "I beg you will lose no
time to remit largely, say 3 or 4,000 pounds. Remember the old cash
account with the Paisley Banking Company." These letters, so far as
they throw light upon this transaction, intimate very strongly that
A. & J. Auchencloss was to dispose of these goods upon its own
account and as the purchasers of them. But to produce a change of
property from the shipper to the consignee, it was essentially
necessary that the goods should have been sent in consequence of
some contract between the parties by which the one agreed to sell
and the other to buy. Had the language of these letters been more
explicit than it is to prove that the intention of the consignor
was to vest the right of property in the consignee, it would not
have been sufficient to effect such a change until the goods were
received or some evidence given of the agreement of the consignee
to take them on his own account. No order from A. & J.
Auchencloss to the
Page 12 U. S. 362
consignor of this cargo, authorizing the shipment of it, was
produced or offered to be produced in the court below, and this
Court therefore is warranted in believing that none such was ever
given. Indeed no interest whatever in these goods is asserted to
have existed in A. & J. Auchencloss, but the same is claimed by
Wm. French, a citizen of the United States who, under the order for
further proof, produced in support of his claim a letter from
himself to A. & J. Auchencloss dated 20 February, 1812, in
which he requests them to order from his friends in Scotland a
quantity of goods enumerated in the letter not to exceed
�1,000 sterling, to be shipped as soon as the orders in
council should be revoked, and adding that he should consider the
goods at his risk from the time they should be shipped; also an
invoice of these goods sent by A. & J. Auchencloss to Wm.
French, together with a letter from them, dated 20 September, 1812,
advising him of the capture of the
Frances with the goods
shipped on his account and recommending it to him to take the
necessary steps to vindicate his right to the property. This letter
made its appearance in the court below, with the outer leaf, on
which the postmark would have been placed, had there been any, torn
off. To do away the suspicion which this circumstance might well
excite, the affidavit of Darius Hodson was produced, in which he
states that he forwarded this letter to the claimant at Providence,
having first torn off the outer leaf with a view to lessen the rate
of postage.
The affidavit of the claimant is added, which is fully to the
purpose of supporting his interest in these goods, so far as his
order to A. & J. Auchencloss can vest such an interest in him.
But passing over those observations which might fairly be made upon
the mutilated state of the letter from A. & J. Auchencloss to
the claimant, and the suspicious manner in which that circumstance
is attempted to be explained, it may be observed that the claim of
Wm. French is in no respect stronger than if it had been made by A.
& J. Auchencloss. Admit that he wrote to A. & J.
Auchencloss the letter of 20 February, 1812, and received from them
that of 20 September, the inquiry still remains to be answered
where is the order for this
Page 12 U. S. 363
shipment from A. & J. Auchencloss as the agent of the
claimant?
The truth is that in whatever light this question is viewed,
these goods were at the risk of the shippers until they should be
received by the consignee, and consequently were, by the capture,
made good prize as property belonging to the enemy.
