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to sue the defendant after the partnership has been dissolved; for, it may be that the defendant was induced to enter into the contract by reason of the personal confidence which he reposed in the party with whom he contracted (&).
(A) Robson v. Drummond, 2 B. & Adol. 303. See Davies v. Hawkins, 3 M. & S. 488.
RIGHTS AND LIABILITIES OF VENDEE IN RESPECT OF BAILEES.
It has been stated, that as soon as goods sold have been delivered into the custody of a carrier or other bailee, on behalf of the purchaser, the property vests in the purchaser and remains thenceforward at his risk (a). It becomes material, therefore, to consider in what cases he has a remedy over against the bailee, in the event of accident or loss(£).
(a) Greaves v. Hepke, 2 B. & A. 131; Wallet/ v. Montgomery, 3 East, 585. Supra, pp. 257, 262.
(6) Sir W. Jones, in his Treatise of the Law of Bailments, divides the subject into the following heads:—I. Depositum, which is a naked bailment or custody of the goods for the bailor: II. Mandatum, or commission: III. Commodatum, or loan: (These three are without reward.) IV. Pignori acceptum, or pledge: V. Location, or hiring for reward, which is subdivided into: 1. Locatio rei, where the hirer obtains the temporary use of the chattel: 2. Locatio operis faciendi, where the bailee for reward performs some work on the chattel, or merely keeps it in his custody on behalf of the bailor; and" herein of Warehousemen, Wharfingers, and the like: 3. Locatio operis mercium vehendarum, (which is in fact but a species of the preceding;) wherein of Carriers, public and private. The two last-mentioned subdivisions of Locatio, (i. e. bailments for reward received by the bailee,) are the only species of bailment which it is necessary to consider in reference to the present subject.
It must be observed, however, that under certain when
. \ i vendor may
circumstances the vendor (or his agent) may be bring the made the plaintiff, and in one or two special cases he is the only party who can be made plaintiff. Thus, where by the terms of the agreement it is expressed, that the bailee is to hold the goods on the account of the vendor, the latter has such a special property in the goods as will be sufficient to maintain the action (c). So, where the agreement was expressly between the carrier and the consignor, that the latter was to pay for the conveyance, (although such agreement may not necessarily, as between the vendor and vendee, imply that the former is to stand the risk (d),) the consignor may bring the action (e). So, the action may be brought in the name of the shipper, who is expressed in the bill of lading to have paid the freight(/). Again, where the contract was not complete by the delivery to the carrier; as, where goods are forwarded for sale on approval (g), or, where the property has been prevented by fraud
(c) Woodley v. Brown, 1 C. & P. 593.
(d) King v. Meredith, 2 Campb. 639. But if the consignor ■was to be at the risk, the case is stronger, and the consignor must be made plaintiff, Sargent v. Morris, 3 B. & A. 277.
(e) Davis v. James, 5 Burr. 2680; Moore v. Wilson, 1 T. R. 659. See Tagliabue v. Wynn, Selw. N. P. 416, (8th Ed.)
(J) Joseph v. Knox, 3 Campb. 320.
(g) Swain v. Shepherd, 1 Moo. & Rob. 223. But see Haynes v. Wood, Bull. N. P. 36.
whommt from vesting in the consignee(A), the consignor
be plaintiff. - . . .
must be made the plaintiff in an action against the carrier. Where, on the intermediate insolvency of the consignee, the consignor stops the goods in transitu, the right revests, and the consignor, (or the party to whom' he indorses the bill of lading,) may sue the captain or ship-owner who detains the goods (i). So, where the consignee has prevented the property from vesting in himself, by a refusal to fulfil his part of the stipulated contract (&), or, where the contract has been mutually rescinded by the parties before the arrival of the goods (/), the consignor must necessarily be the plaintiff in an action against the bailee.
General On the other hand, where the vendee orders the
vendee* goods to be sent by a particular carrier, the propiamtiff. e perty vests in him immediately on the delivery to the carrier, and remains thenceforth at his risk; the action therefore against the bailee can clearly be in the name of the vendee only (m). So, where goods consigned to a merchant abroad, are expressed in the bill of lading to be shipped by order
(h) Duff v. Budd, 6 B. Moore, 469; S. C. 3 B. & B. 177. Stephenson v. Hart, 4 Bingh. 476; S. C. 1 M. & P. 357.
(i) Morison v. Gray, 2 Bingh. 260; Thompson v. Trail, 6 B. & C. 36. Supra.
(k) Brandt v. Bowlby, 2 B. & Ad. .032.
(0 Richardson v. Goss, 3 B. & P. 119.
(m) Dawes v. Peck, 8 T. R. 330. 2 Wm's. Saund. 47k.
and on account of the consignee, in an action who must against the ship-owner the consignee must be the pamt'' plaintiff(»). And it is now clearly settled, that, even where no particular mode of conveyance is directed, the delivery to a carrier will vest the property in the purchaser (o); who ought therefore in all cases (except in the few special cases above adverted to) to be the plaintiff (p).
The liability of a common carrier diners in several respects from that of other bailees, and may therefore be more conveniently considered under a separate head.
I. BAILEES GENERALLY (y).
A warehouseman, or other bailee of the like Warehouse
description, is only bound to take such reasonable similar
(n) Brown v. Hodgson, 2 Campb. 36; Moores v. Hopper, 2 N. R. 411.
(o) Dutton v. Solomonson, 3 B. & P. 582; Godfrey v. Turzo, 3 P. Wms. 185.
(p) Snee v. Prescott, 1 Atk. 248; Jacobs v. Neilson, 3 Taunt. 423; Fragano v. Long, 6 D. & R. 283; S. C. 4 B. & C. 219; Evans v. Martlett, 1 Ld. Raym. 271; Colston v. Woohton, Selw. N. P. 1370, (8th Ed.)
(q) Under this head are intended to be included only bailees for reward for the custody of goods,—falling within that species of locatio, called locatio operisfaciendi. It has been already observed, that, in strictness, the locatio of carrying of goods is but a species of the same; but as the law varies in respect of each, it is more convenient to consider them as distinct from each other. See above, p. 414, note (b).