U.S. Supreme Court The Frances, 12 U.S. 8 Cranch 354 354 (1814)
12 U.S. (8 Cranch) 354
APPEAL FROM THE CIRCUIT
COURT OF RHODE ISLAND
A case of further proof. Goods shipped by a British to an American house, partly in conformity with orders and partly without orders, who had an option to accept or reject the whole invoice in a limited time, remain the property of the shippers until the election be made to accept them.
This is another case of goods by the Frances, captured by the Yankee and condemned in the Circuit Court of Rhode Island, brought up to this Court on appeal.
Messrs. Dunham & Randolph merchants of New York, claimed three bales and nineteen boxes of goods shipped by Alexander Thompson of Glasgow, a British subject, and consigned to Dunham & Randolph. The bill of lading is in their names, and the invoice purports to be on their account and risk. A letter from Thompson to Dunham & Randolph dated Glasgow, 11 July, 1812, after describing the goods and the labor he had employed in the business and stating that the goods were sent partly in the Fanny and partly in the Frances, says
"I have exceeded in some articles, and have sent you others not ordered. . . . I leave it with yourselves to take the whole of the two shipments, or none at all, just as you please. If you do not wish them, I will thank you to hand the invoices and letters over to Messrs. Falconer & Co. I think twenty-four hours will allow you ample opportunity for you to make up your minds on this point, and if you do not hand them over within that time, I will of course, consider that you take the whole."
On 15 July, Alexander Thompson again wrote to Dunham & Randolph a letter in which he mentions the information that a bill declaring war had passed the House of Representations. He then adds,
"Considering the circumstances of the times, I thought it best to inform Messrs. Falconer, Jackson & Co. fully of the conditions on which I have shipped you the goods by the Fanny and Frances. "
In a letter to Messrs. Falconer, Jackson & Co. of the same date, he explains in full the proposition he had made to Dunham & Randolph and directs how those gentlemen are to act for him should Dunham & Randolph reject the consignment.
This property was condemned in the courts below, and from the sentence of condemnation the claimants appealed to this Court.
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case, delivered the opinion of the Court as follows:
It has been argued for the appellants that, by the invoice and bill of lading and the true construction of the letter of Alexander Thompson, the property was vested in Dunham & Randolph liable to be divested by their rejecting the consignment within twenty-four hours after receiving the letters. That the condition annexed to the transfer is subsequent, not precedent.
The Court cannot concur in this reasoning. It has been very truly urged for the captors that to vest this property in Dunham & Randolph a contract is necessary and that to form a contract, the consent of two parties is indispensable. In this case no such contract appears. Had Thompson, in execution of the orders of Dunham & Randolph consigned to them unconditionally such goods as they had directed, the contract would have been complete, and the goods would, on being shipped, have become the property of Dunham & Randolph. But Thompson has not done this. With the goods which were ordered he has consigned other goods, expressly stipulating that Dunham & Randolph shall not take the goods they had ordered unless they consent to take the whole quantity put on board both vessels. This, then, is a new proposition, on which Dunham & Randolph
are at liberty to exercise their discretion. They may accept or reject it, and until they do accept it, the property must remain in Thompson. The sentence of condemnation, therefore, in this case, was warranted by the evidence before the circuit court.
But the claimants pray an order for further proof, and say that before the capture of the Frances, the Fanny had arrived and Dunham & Randolph had consented to take both cargoes.
This application is opposed on the principle that, were the fact even true, as alleged by the claimants, belligerent property cannot change its character in transitu.
Reserving any opinion on the law of the case until the facts alleged shall be substantiated, if it shall be in the power of the claimants to substantiate them,
The cause is ordered to stand for further proof.