Adoue & Lobit v. H. Seeligson & Co.

Citations

• 54 Tex. 593
• 1881 Tex. LEXIS 69

Syllabus

<p>1. Attachment — Constructive delivery — Commercial usage.—A cotton factor in Galveston procured an advance of money from a banker on “cotton in press,” for which he gave his order on the press to deliver the cotton to a vessel then in port loading for Liverpool. The order was notified to the press, and the master of the vessel made and delivered to the cotton factor, as the shipper, a bill of lading for the cotton, which the factor indorsed and delivered to the banker, with his exchange on Liverpool, in favor of the banker, attached. Afterwards a third party, who was a creditor of the cotton factor, sued out an attachment against him and levied it on the cotton, which was still in press. In a contest between the banker, as claimant of the cotton, and the attaching creditor, held—</p> <p>1. The execution of the bill of lading for the cotton by the master of the vessel in favor of the cotton factor, and the transfer and delivery thereof by the factor to the banker, constituted constructive delivery of the cotton.</p> <p>. 2. An actual manual delivery of the cotton was not necessary to pass its possession, nor was it necessary that the delivery should have been made to the pledgee in person.</p> <p>3. The special requisite of delivery is, no matter in whose hands the property was a deposit, that it he no longer subject, in fact or in law, to the dominion, possession or control of the pledgor, but to that of the pledgee.</p> <p>4. The execution of the delivery order by the factor to the vessel for the cotton in press, and the recognition and acceptance thereof by the press, before the levy of attachment, constituted a delivery of the cotton, so as to except it from attachment by the creditor.</p> <p>5. The transfer of the bill of lading to the banker was as effectual a transfer of the cotton as its manual delivery could have been.</p> <p>6. The attaching creditor acquired no greater right in the attached property than the factor had at the time of attachment.</p> <p>