Durgy Cement & Umber Co. v. O'Brien
Massachusetts Supreme Judicial Court
Replevin of 771 barrels of cement attached by the defendant, as a deputy of the sheriff of Suffolk, on a writ against a firm doing business in Boston under the name of Downing & Co. At the trial in the Superior Court, before Wilkinson, J., it appeared that the plaintiff had sold the cement to Downing & Co., and claimed the right to stop it in transitu, on account of the insolvency of Downing & Co. The judge reported the case for the consideration of this court.
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Replevin of 771 barrels of cement attached by the defendant, as a deputy of the sheriff of Suffolk, on a writ against a firm doing business in Boston under the name of Downing & Co. At the trial in the Superior Court, before Wilkinson, J., it appeared that the plaintiff had sold the cement to Downing & Co., and claimed the right to stop it in transitu, on account of the insolvency of Downing & Co. The judge reported the case for the consideration of this court. If, upon the evidence reported, there was any question for the jury, the case was to stand for trial; otherwise, judgment was to be…
1Opinion of the CourtMorton, J.
The report in this case is in some respects irregular. It sets out the evidence given at the trial, which upon some points is conflicting. If these points were material, we could not consider them, but the only proper course would be to discharge the report and have the conflicting evidence submitted to a jury. But, upon a careful examination of the report, we are satisfied that sufficient undisputed facts are disclosed to enable us to determine the rights of the parties.
By a familiar rule of law, a vendor of goods has the right, in case of the insolvency of the buyer, to stop the goods in…
2Cases cited2 opinions
- Mohr v. Boston & Albany RailroadMassachusetts Supreme Judicial Court · 1870
- Seymour v. NewtonMassachusetts Supreme Judicial Court · 1870
3Cited by5 opinions
- Coleman v. New York, New Haven, & Hartford RailroadMassachusetts Supreme Judicial Court · 1913
- Brewer Lumber Co. v. Boston & Albany RailroadMassachusetts Supreme Judicial Court · 1901
- Bell v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1916
- C. C. C. & St. L. Ry Co. v. M. Degaro Co.Ohio Court of Appeals · 1930
- Lincoln v. United StatesUnited States Court of Claims · 1915