Thomas Cox v. James Gordon,
From Washington.
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 pro' perty, without an actual delivery, and without proof of a consideration .
The Plaintiff liad 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 Nov. 12th, 1828. Upon his garnishment, the Defendant stated, that be 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 Juiy, he bad thirty barrels of gin in his hands, the property of J. E. Bur-rell; but by a letter ofrhat date, he, thegarnishee, was directed by J. E. Burrell to hold thé gin unsold, and the proceeds of that which fiad been sold, subject to the order of George T. Burrell, and that by letter of the 5th of August following, he, the garnishee, fiad acknowledged that he held the gin and proceeds on account of George T. Burrell — that the same was all sold, and a sura equal to the demand of the Plaintiff was in his hands.
*523The Plaintiff having recovered final judgment against J. E. Burrell, took issue upon this garnishment, which was tried before his Honor Judge Norwood.
Dec. 1830.
On tiie trial of this issue, the evidence consisted of the following letter from J. E. Burrell to the garnishee, dated the 26th July, 1828 : Having declined business s< in favor of my brother Mr. G. T. Burrell, I wish you “ to hold the property shipped by ine, and now in your (l 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 re- “ mains unsold, and what balance will probably be due (i 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 Geo. T. Burrell. A verdict was returned for the Plaintiff, and the Defendant in the issue appealed.
The Attorney-General, for the Plaintiff, submitted the ease without argument.
No Counsel appeared on the other side.
Hall, Judge,
after stating the case as above proceeded : — 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 agree* ment between the Burrells that the right to the gin should be transferred from the one to the other; and title to it could be passed by contract altho’ no delivery was made *524of if:. Nor 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 ag-nt ¡o do m such a case. Surely I think he would consider himself as acting under the directions 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 garnisment. J. E. Burrell could have no claim upon him; he would be repelled by his letter. His accountability was with G. T. Burrell, to w hose credit it appears he transferred the righ'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. — Let the judgment below be reversed* and a new trial granted.