Opinion
(December Term, 1830.)
Where there is no allegation of fraud the transfer of property in the hands of a consignee may be presumed from letters of the owner and vendee to the consignee, directing him how to hold the property, without an actual delivery, and without proof of a consideration.
The plaintiff had sued out an attachment against the effects of one J. E. Burrell, a resident of New York, and summoned the defendant, a resident of Washington county, as a garnishee. The summons was executed 12 November, 1828. Upon his garnishment the defendant stated that he had no money or effects of J. E. Burrell in his possession at the time of his being summoned as a garnishee; that prior to the 26th of July he had thirty barrels of gin in his hands, the property of J. E. Burrell; but that by a letter of that date he, the garnishee, was directed by J. E. Burrell to hold the gin unsold, and the proceeds of that which had been sold, subject to the order of George T. Burrell, and that by letter of the 5th of August following he, the garnishee, had acknowledged that he held the gin and proceeds on account of George T. Burrell; that the same was all sold, and a sum equal to the demand of the plaintiff was in his hands.
The Attorney-General, for the plaintiff.
No counsel for the other side.
FROM WASHINGTON.
The plaintiff having recovered final judgment against J. E. Burrell, took issue upon this garnishment, which was tried before his (523) Honor, Judge NORWOOD.
On the trial of this issue the evidence consisted of the following letter from J. E. Burrell to the garnishee, dated 26 July, 1828: "Having declined business in favor of my brother, Mr. G. T. Burrell, I wish you to hold the property shipped by me and now in your hands subject to his order." And on the same paper, and of the same date, G. T. Burrell also wrote to the garnishee as follows: "On the other side, you have a letter from Mr. J. E. Burrell, to which please refer. Do me the favor, on receipt of this, to state what remains unsold, and what balance will probably be due on the shipment. It is desirable to close the sales as soon as practicable. For the present, please direct to the care of Mr. J. E. Burrell."
His Honor instructed the jury that these letters did not prove a sale, or legal transfer by J. E. Burrell of his property in the gin to George T. Burrell. A verdict was returned for the plaintiff, and the defendant in the issue appealed.
It is to be observed in this case that there is no allegation of fraud in the transaction. It must, therefore, be taken as honestly conducted. It is true, there was no actual delivery of the gin, nor has it been proved what was the consideration upon which the transfer was made. But the letters are evidence of an agreement between the Burrells that the right to the gin should be transferred from the one to the other; and title to it should be passed by contract, although no delivery was made of it. Nor (524) was it necessary that a consideration should be proved. It is sufficient that the garnishee should be directed to transfer it to the credit of G. T. Burrell.
What would it be natural for an agent to do in such a case? Surely, I think, he would consider himself as acting under the direction of G. T. Burrell, and the proceeds of the sale he would consider himself authorized and bound to pay over to him, as he did in the present case, as appears from his garnishment. J. E. Burrell could have no claim upon him; he would be repelled by his letter. His accountability was with G. T. Burrell, to whose credit it appears he transferred the right to the gin. I think, therefore, in the absence of fraud in the transaction, the letters of the garnishee were evidence of the transfer of the gin from J. E. Burrell to G. T. Burrell, and that a new trial should be granted.
PER CURIAM. New trial.