54 Tex. 593 | Tex. | 1881
That the questions involved in the case may be the more readily and correctly understood, we precede their consideration by the statement of the nature and result of the suit as furnished the court by appellee’s counsel in their brief, to wit:
“This suit involved the trial of the right of property under the statute. James Arbuckle, engaged in business in the city of Galveston as a commission merchant and cotton factor, under the firm name of Jas. Arbuckle & Co., owned one hundred and thirty bales of cotton, the property in controversy, on the 14th day of November, 1877, and had the same stored in one of the cotton presses of the city, known as the Taylor Press, holding the receipt of the press therefor. He proposed an advance of money on the cotton from Adoue & Lobit, bankers of said city, claimants and appellants in the case, who agreed to loan and advance him, and did loan and advance him, the sum of $6,113 on said cotton; and Arbuckle tendered to them a delivery order on the press for the cotton in their favor, which they declined to receive, but took in lieu thereof from Arbuckle his order on the Taylor Press to deliver the cotton to the brig ‘ Rana,’ then loading in port for Liverpool. This order was notified to the press, and thereupon, the cotton being still in the press, the master of the brig ‘Rana’ executed and delivered to Ar-buckle, as the shipper, a bill of lading, in the usual form, for the cotton, which Arbuckle indorsed and delivered to Adoue & Lobit, with his exchange on Liverpool in their favor attached. The transaction was begun on the 14th and concluded on the 16th day of November, 1877.
£ £ Adoue & Lobit made oath and bond, claiming that they were the owners of the cotton. The writ, with levy indorsed thereon, affidavit and bond, were duly returned to the district court, and formed the basis of this suit, under the statute. The issue tendered, joined and tried was: £Is the property levied on by virtue of the plaintiff’s writ of attachment subject to the said plaintiff’s writ; and if so, what is its value? ’ The case was tried by the judge, a jury being waived, and the court found upon the law and the facts, that the property was subject to the writ and was of the value of $6,013.66, and accordingly rendered judgment in favor of Seeligson & Go., the attaching creditors, against Arbuckle and his sureties on claim bond as prescribed by the statute. It does not appear in the judgment or elsewhere in the record, that the judge disclosed the grounds on which the judgment was rendered, other than that it was so rendered upon £the law and the facts.’ Motion for a new trial was overruled. Adoue & Lobit, claimants, excepted in open court, gave notice of appeal, and bring the same to this court.”
Appellees also state that: “It was proved that on the llth of November, 1811, appellees sued out from the district court of Galveston county, a writ of attachment in case No. 9,433, there pending, wherein they were plaintiffs and James Arbuckle was defendant, which was levied on same day on the cotton in controversy, then, in the pos
“Galveston, November 15, 1877.
“ Taylor Press will deliver to brig Rana one hundred and thirty bales cotton, received for our account, as per our weighing order No. 34, for 121 bales, 9 bales mixed packed. Jas. Arbuckle & Oo.
“ The brig c Rana ’ was in the port of Galveston loading with cotton for Liverpool. The lot of cotton in controversy, the property of Arbuckle, was in the cotton press, marked and waiting shipment, to be compressed and drayed to the vessel; the vessel to pay for compressing, and the shipper, personally, to pay for the drayage. The agent of the vessel went to the press before the execution of the bill of lading, and the press reported the cotton all
“At the time of the dehvery of the bib of lading, Adoue & Lobit, signing themselves ‘shippers,’ debvered to the agent of the brig ‘ Rana ’ a memorandum, reciting the ‘understanding that the cotton is now in the presses duly transferred to the vessel; that we keep the same duly covered by fire insurance until debvered on board; and that we replace it at once in case of rejection, bad condition, or other accident for which we are accountable, and debver said agents said press receipts as soon as the goods are shipped.’ This sort of memorandum was intended by Adoue & Lobit as a guaranty to the vessel, the cotton not being actuaby on shipboard, and was brought into vogue by the custom of vessels in giving bibs of lading for cotton in press.”
To enable us to reach a proper conclusion touching the merits of this controversy, it is essential that we have a clear and definite understanding of the nature and charac
The appellees took the initiative in bringing about this controversy. They were the plaintiffs in the district court. We will therefore commence our inquiry by considering the nature of their claim, the status of the property and issues respecting it, as they directly or secondarily arise from this standpoint.
Beyond question the cotton was in possession of the Taylor Cotton Press in the city of Galveston as bailee of Arbuckle, as whose property it was attached, and he was the owner of it less than three days prior to the date of the levy. And as the levy was made under process, the validity of which is not questioned, if the status of the property underwent no change between the 11th and 17th of November, 1877, the day of the levy, it was unquestionably subject to the attachment. And though the status of the property might have undergone a material change, if Arbuckle still retained any right or interest in it subject to levy and sale, appellants must fail in their claim. As the return of the attachment does not show that the cotton when levied upon was in possession of appellants, the burthen of proof was upon them to show that the cotton, prima facie at least, was not subject to levy and sale. To maintain then claim, it devolved upon them to show such title as precluded appellees from its seizure and sale under the attachment. This they claim they did by proof of a valid and bona fide transfer and delivery of it as a pledge by Arbuckle to themselves prior to the date of the attachment. And this presents the real, and indeed the only question in the case. For although appellees seem in one part of their brief to insist that if appellants had proved that the cotton had been bona fide transferred to them as a mortgage or pledge for
It was therefore incumbent upon appellants to maintain their claim to the property in dispute in this case, to show there had been a complete and absolute transfer of the property to them by way of pledge before the levy of the execution, because otherwise it cannot be denied that there was an interest in the cotton in the defendant in execution subject to sale. Wright v. Henderson, 12 Tex., 43; Gillian v. Henderson, id., 47; Wooten v. Wheeler, 22
Does, then, the evidence warrant the conclusion that the title and possession of the cotton had been bona fide transferred by Arbuckle to appellants previous to the levy of the attachment? That it was the purpose and intent of the parties to make such a transfer, and that they mutually supposed this intention had been accomplished, there cannot be the slightest doubt. Such transfer of property was a matter of daily occurrence. While a doubt of the bona fides of the transaction is suggested as a ground upon which the judgment of the court below might have been predicated, it can hardly be said that its correctness has been attempted to be maintained on this ground, and there is certainly nothing in the record to authorize its being so done. True, one of the appellees and one of the other witnesses say, for a short time before the transaction out of which this suit has grown, that Arbuckle “was regarded as weak in a financial sense.” But whether he was so regarded in commercial circles generally, or merely by these witnesses, is not stated; and there is no evidence that his weakness was known to or suspected by appellants. But, though Arbuckle may have been weak, he was not so weak that appellees were unwilling on the day upon which his negotiation with appellants began, to advance him upon his word $2,500. The other witness who says he was then financially weak, also says he had at that time $5,000 to his credit in witness’ bank, and even subsequent to the attachment this witness made him a similar advance, as had appellants on
But it is not sufficient to maintain appellants’ title, to show that the negotiation was supported by a valuable consideration, and fair in every respect, and that in the opinion of the parties it had been fully consummated in strict conformity with law, but this must be in all essential particulars the fact. Was it so? Appellees say it was not, because, as they maintain, there was no actual or valid delivery of the cotton to appellants prior to its attachment. That an actual delivery of the property to the pledgee is certainly of the very essence of this character of contract, is not to be denied. Until possession and right to control the property has passed from and been divested out of the owner, it is not a pledge, but a mere executory contract for one. Story on Bailm., sec. 297. But what constitutes a delivery is a question of law, and depends upon the nature, character and situation of the property, and in many cases upon the custom and usage of the particular locality and line of business in which the . transaction occurs. “There need not be,” says Judge Story, “an actual manual delivery of the thing. It is sufficient, if there are any of those acts or circumstances which in construction of law are deemed sufficient to pass the possession of the property. Thus goods at sea may be passed in pledge by transfer of the muniments of title; as by transfer of the bill of lading, or by a written assignment thereof. So goods in a warehouse may be transferred by a symbolical delivery of the key thereof.” Nor are we aware of any rule or principle of law requiring the delivery to be made to the pledgee in person. He may
When Arbuclde commenced the negotiation with appellants for an advance upon this cotton, it was on deposit with the Taylor Press, as his bailee, and, as must have been known to every one conversant with the cotton trade at the port of Galveston, it was held for sale or shipment. It is a matter of universal knowledge that the great bulk of cotton which passes through this port, is drawn against when shipped by the owner or shipper; that the magnitude of the cotton trade is so great that it is impossible to carry it on, or move the cotton to market, except by means of bills drawn upon it. These bills are secured by the owner, or factor, if entitled to make such negotiation, by the delivery to the banker making the advance of a transfer order on the cotton press in which the cotton is held, if it is to remain here, or by the transfer to him of the bill of lading when it has been or is to be immediately shipped elsewhere. But the quantity of cotton which is sold and pledged during a business season is such, that it is impossible to transfer it all by actual or manual delivery without incurring unreasonable trouble, expense and delay. Such a mode of delivery is therefore never thought of by any one, but its delivery is effected in accordance with long settled principles of law, and well established and universally recognized custom and usage, by delivery order, to the warehouse or press where the cotton is in store, or a transfer or assignment of the bill of lading, if a bill of lading has been given for it by the vessel by which it has been, or is to be shipped. The first of these modes of transfer is admitted to be legitimate and effectual. But it is denied that the second is, unless the cotton has been in fact placed
But the point decided in these cases is simply that bills of lading are not commercial or negotiable paper in the hands of an innocent party, which precludes or estops the owner from denying that the freight was received as therein admitted.
Here there is no question as to the liability of the boat or its owners; and certainly these cases in no way tend to show that by the custom and usage of a particular port or trade, a master may not be authorized to bind the boat or owners by receipt of freight, before it reaches the boat, or while’ it is in the warehouse waiting to be compressed for the convenience and benefit of the boat. Still less do they tend to show that although such bill may not bind the owners of the boat, if the freight does not in fact reach the boat, that the bill and its transfer is not valid and binding and operative as between other parties. (See cases referred to and those therein cited and commented upon.)
But suppose it is true, as claimed by appellees (which need not be considered until the question is before us for decision), that authority has not been given by law, or the custom or usage of the port of Galveston, to bind the boat by receipting for cotton while in press. How can this affect the question of delivery or non-delivery of the cotton as between Arbuckle and appellants; and if as between them the contract of pledge or bailment was con
“ The press is the bailee or custodian of the cotton for the owner, giving its receipt, and holding subject to his delivery order. The owner sells or pledges his cotton by executing a delivery order in favor of the buyer or pledgee on the press. The acceptance of this order by the press and corresponding entry on its books constitutes the delivery of the cotton, and is so treated and respected by bankers, factors, presses and all parties dealing in cotton. Upon acceptance of the order, the press holds the cotton for the party to whom the delivery order is made. If the order is in favor of an individual, the press holds for that individual; if in favor of a ship, the press holds for that ship, no other party being recognized by the press as having the right to interfere with or control the cotton. The vessel, ordinarily, is entitled to the cotton after she gets the order, and it is drayed to her wharf as soon as compressed, by the drays of the press, for which the press is paid by the shipper; the compressing is paid by the vessel and is done on its order; the cotton is then conveyed by the drays of the press to the wharf and actually delivered to the vessel on the wharf, and thereupon the vessel executes receipts to the press for the cotton, which receipts are surrendered by the press to the shipper, as vouchers or releases.”
And subsequently one of the appellees testifies: “Cotton is changed from one party to another by delivery order, accepted by the press. The press respects the order, enters it on its books, and holds the cotton for the party indicated in the order. It involves no change of locality in the cotton orders, for delivery to vessels are frequent. And then the press ceases to hold for the late owner, but holds for the vessel. The cotton being regarded as having passed into the control of the vessel, nobody except the vessel can have it removed.” Compress- ■ ing is done by the press on the order of the vessel for whose benefit it is done, and by whom it was paid for; evidently, therefore, it must be transferred by delivery order to the vessel, to enable the vessel to. have it compressed and delivered to itself. When this is done, it is certainly right and proper that the agent or master of the vessel should give to the owner, shipper or pledgee, a bill of lading, receipt or acknowledgment, showing for and on whose account the cotton had been transferred to it. And upon general principles of law, as well as the custom and usage of trade, the transfer of such bill of lading or evi
In the case of Bryans v. Nix, 4 M. & W., 774, the court uses the following pointed and emphatic language:
“ The transaction is, in effect, the same as if Tempany had deposited the goods with a stakeholder, who had assented to hold them, for the plaintiffs, in order to indemnify them. As evidence of such transaction, it is wholly immaterial whether the instruments are bills of lading or not; and it might equally be proved through the medium of carriers’ or wharfingers’ receipts, or any other description of document, or by correspondence alone. If the intention of the parties to pass the property, whether absolute or special, in certain ascertained channels, is established, and they are placed in the hands of a deposi- . tary, no matter whether such depositary be a common carrier, or ship-master, employed by the consignor, or a third person, and the chattels are so placed on account of the person who is to have that property, and the depositary assents, it is enough; and it matters not by what documents this is effected; nor is it material whether the person who is to have the property be a factor or not; for such an agreement may be made with a factor, as well as any other individual.”
See also National Bank v. Merchants’ Bank, 1 Otto, 92; Sampson v. Gazzam, 6 Porter (Ala.), 123; Cross v. O’Donnell, 44 N. Y., 661; Searle v. Keeves, 2 Espinasse, 598.
Although appellees strenuously maintain, because, as they claim, the master may not give a valid bill of lading until freight is received aboard the boat, the transfer of a bill which may have been prematurely executed will not operate as a transfer of the title and possession of the property covered by it, they have, however, cited no authority to sustain this proposition. Those relied upon are. the cases already referred to, to wit: The Louisiana National Bank v. Laveille, 52 Mo., 380; The Marine Bank
It is also urged that if the property can be transferred by the indorsement of this bill of lading, it will open the door for fraud. Certainly not more so than a transfer by bills given when the freight is placed aboard ship. And but little more than by transfer to an individual by delivery order when the cotton is in the press. In either case, if there is fraud, the transfer is void as against creditors and purchasers. That property may be transferred in this way unknown to creditors, and in some instances may be a cover for fraud, is one of the.incidents of trade and commerce. Ordinarily it seems not to be necessary that the bailee should know of the transfer to render it effective. Gibson v. Stevens, 8 How., 384. Here the transfer to appellants could hardly have been a secret. The delivery order to the ship could have scarcely left a doubt in the minds of persons engaged in the cotton busi
After a careful examination of the facts and law of the case, we are clearly of opinion that the judgment should be reversed, and judgment here rendered in favor of appellants for the cotton claimed by them, and for all costs in this behalf expended in this and the district court, and it is so ordered.
Reversed and remanded.
[Opinion delivered March 29, 1881.]