IMPORTANT DECISION.

Tuapeka Times, Volume V, Issue 256, 26 December 1872, Page 8

IMPORTANT DECISION.

As the points raised in the case Tnistees of Goodays Estate v. Gooday, heard in the District Court, Lawrence, on Tuesday and Wednesday, 10th and 11th inst., are of considerable importance, we publish the following resume of the judgment.

His Honor, in delivering judgment in this case, said that the plaintiffs, having declined to offer any evidence with regard to any other goods than the piano, that article' alone was now in question. Mr. Gooday, on the 12th of April last, executed" and filed in this court a deed of arrangement with his creditors, under part *L Bof the Bankruptcy Act. By that dsed he assigned to the trustees (the present plaintiffs) all his property of wliat UiiiU uutjver for Ujc benefit of his creditors; and tffe matter now at issue was whether thiS piano passed to the trustees under thkfr' assignment — in other words, whetneivat the date of the assignment, the piano was the property of Mr. Gooday. It was a gift from bis father to Mr. Gv>oday, and in the point that it was a ijift, and not a purchase, lay the special character of this case, aud the difficulty of determining at what precise time the property in the article had passed to Mr. Gooday. If it had been a purchased article, the difficulty would not exist. It had been laid down in many books, and actually decided in some eases, that although the property in goods purchased passes on the completion of the contract of sale and the specification *of the jirticle r 'sold, without any delivery being necessary a* the property in an article gratuitously given, and assigned without dead, does not pass to the donee until it has been actually, or, as some authorities put it, at least constructively delivered to the donee. The more modern dicta of judges incline to the doctrine that property in a gift may paps on. the mere acquiescence of the donee. His Honor reviewed at some 'length the cases upon this subject, and the dicta of certain writers and judges, adverting especially to the note of Serjeant Manning to the case of the London and Brighton Eailway Co. v. Fairclough, 2 Manning and Grainger 691* and certain dicta of Baron Parke, in subsequent cases, strongly approving of that note, the doctrine .of the note being that acquiescence ori^he part of the donee was sufficient without actual delivery ; but he „said that he did 'not think that in deciding this case it was necessary, in order to support the rights of plaintiffs, to adop^; the doctrine that acquiescence was sufficient. He thought tfhat, in point of fact, there had been such a delivery, on or about tho 4th of March, as passed the property, and consequently that the piano was the property 6f Mr. Gooday when he*executed the deed on the 12th of A pril. The short i'arts wpre these : — Mr. Gooday, the defendant, for a Ions: time previous to the 4th of March, had been in correspondence with his family in England respecting apresent which it was his father's wish to make .to him. To make tbe present; as acceptable as possible, Mr. Gooday"; senr., wished bis son to choose what the present should be. Tha son. chose that itwehould be a piano, and, if possible, apiantg made by a certain maker. The father, in compliance with the son's wishes, purchased ,a piano of this maker, and about the 4th of Mm-h had it shipped in a' general ship to Mr.

Gooday, and about the same date forwarded by post to Mr. Gooday the bill of lading,_ Which made the article deliverable to Mr.. Gooday, or order. On the 12th of April, as had teen stated, Mr. Gooday executed the deed of arrangement. The bill of lading reached Mr. Gooday on the 7th of June, and on the same day he endorsed it for value. On these facts it was contended on one side that the property in the. goods had not passed until Mr. Gooday had received and accepted the bill of lading; on the other, it was contended that the property had passed when the goods had been delivered on board ship and the bill of lading had been despatched. His Honor was of opinion that property had passed when the goods had been delivered on board ship and the bill of lading had been despatched. He said the whole number of cases to be found in the books respecting goods given gratuitously was small, and he looked for the principles that should govern this case in the analogous cases of goods bargained and sold, and goods sold and delivered. When goods were sold the property passed whenever the contract for sale was made, and the specific goods were ascertained with the consent of both parties ; and in the specifying and ascertaining of the goods, the vendor might act as the agent of the vendee, if the contract authorised him to do so. He thought the same principle of agency must apply in. tbe case of goods given. The donor might well be authorised by the donee to select and specify the goods; but in the case of goods given, it was further requisite (at least it was so held by many authorities) that to pass p^pperty the goods must be delivered. In enquiring whether these goods had been delivered, Ins Honor thought he might fairly be guided by the numerous authorities in actions for goods sold and delivered. In that action, as in cases of gifts, it must be proved that the goods have not only been specified but that they have been delivered ; and in such actions it had been uniformly held that goods had been delivered when, by the assent of tbe vendee, implied from the nature of the transaction, or the course of dealing, the goods had been delivered on board a general ship, the shipper not reserving to, himself, either by the contract or by the bill of lading, the powers of disposing of and .directing the delivery of the goods. His Honor here cited numerous cases which had been decided in actions for goods bargained and sold, and actions for goods sold and delivered. Hia Honor then referred to the bill of lading. He said a bill of lading was a very important , document, as an element evidencing the character of a transaction in goods ' and a subsequent consignment; but it : was not, itself the operative instru- I ment in iransferinjf the property. -It ; was the agreement behind the bill of lading that transferred the property, the bill o.f lading being frequently the most cogent evidence as to the nature of that agreement, but evidence only. l He then-referred to the case of Mitchell v. Bde, 11 Ad. and Ell. 833, which had been cited to show that a bill of sale was revocable, and from which it was argued for defendant that the bill of lading in. the present case ,was revocable by the elder Mr. Gooday up to the time that it had been'received and accepted by Mr. Gooday juor. His Honor referred to passages in the report of the case, and said that in that case a bill of lading had fe^en held to bo revocable in any sense in which the revocation of it could affect the property in the goods only so far as the revocation of it was consistent with the nature of the transaction respecting the goods which stood behind the bill of lading ; and he further, observed that it was a marked feature of the case of Mitchell v. Ede, and must be relied upon in the judgment, that the bill of lading had been re-, tamed by the consigner, and never forwarded to the consignee. In the present case, the bill of lading had been despatched to Mr. Gooday at the same time that the goods were delivered on boardJßhip, making the sjoods deliverable to his order, and Mr. Gooday senr. bad as perfectly divested himself of all control over the eroods as it was possible.to do. His Honor gave judgmentj udgment for "the plaintiffs, £60, but without • costs. Mr. Gooday, he said, had allt %long acted with great frankness, and* without any desire to conceal or withhold any fact from the trustees. Tho legal question which he had raised id his defence was one in which there 4 might.well be a difference of opinion^ and Ke had given every facility foi trying it in an inexpensive manner.' If Mr. Grooday desired to appeal frofc this judgment, hiR Honor K eai<l iifi would give him every facilityln doing so.

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