102 Conn. 461 | Conn. | 1925
The rights and liabilities of the parties in this shipment are governed by the Federal Bills of Lading Act as interpreted and construed by the Federal tribunals, and by the terms of the bill of lading given to Mersky by defendant as accepted and applied by the Federal tribunals. Adams Express Co.
While the Federal Bills of Lading Act does not impose in terms the duty upon the carrier to secure the surrender of the bill of lading, it is not obliged under § 8 of the Act to make delivery except upon its production and surrender. If it makes delivery without such production and surrender, it does so at its peril, and if in consequence the shipper suffers a loss, the carrier is bound to indemnify him, and it is held that an action of conversion, not created by the Act but arising out of the obligation of the carrier created by the bill of lading, will lie against the carrier. Pere Marquette Ry. Co. v. French & Co., 254 U. S. 538, 41 Sup. Ct. 195. It is difficult to see why, under such circumstances, § 10 of the Act does not give to the shipper an action against the carrier for the delivery of goods to one not lawfully entitled to possession of them, when such delivery is not authorized by that section. The defendant carrier would have been justified, under § 9 of the Act, in delivering to Mersky, to whose order the car of rails was by the bill of lading deliverable, upon his
The plaintiff was required to prove the delivery of the.car of rails by Mersky to defendant and his receipt therefor of the order bill of lading as alleged; the indorsement and transfer of it to the plaintiff for value; the delivery of the car to the Foster Company by defendant without requiring the production and surrender of the bill, and the consequent damage. If the defendant had lawful excuse for such delivery, it was incumbent upon it to allege it and to assume the burden of proving it.
The facts set out in the complaint are not contested except as to the damage caused to plaintiff. The two special defenses are not supported by the finding.
The assignments of error pursued are: (1) The court erred in finding that the plaintiff was a bona fide purchaser of the bill of lading. (2) The court erred in refusing to hold that the bill of lading was spent at the time it was indorsed and turned over to plaintiff. (3) The court erred in refusing to hold that both the plaintiff and Mersky ratified the wrongful delivery to the Foster Company.
The claim that the plaintiff was not a bona fide purchaser, covers both the first and second of these assignments of error, and specifically is, (a) that defendant’s delivery to the Foster Company did not cause plaintiff any loss, since it did not cancel Mersky’s debt, and, as far as appears, he was able to meet it, and (b) that the goods described in the bill of lading when indorsed to plaintiff had already been delivered to the Foster Company, and the circumstances were such that it must have known that something was
The liability of the carrier under the Federal Bills of Lading Act as amended, is not that of an insurer, but that arising for some default in its common-law duty as a carrier, and is limited by the terms of the
■ The final claim of the carrier is that plaintiff and Mersky ratified the wrongful delivery to the Foster Company by the attempt of plaintiff to secure payment for the goods by drawing on the Foster Company by draft and later by offering to transfer to it the bill of lading. Defendant’s liability had already arisen for its wrongful delivery, and plaintiff was entitled to secure payment from the Foster Company for the shipment or to dispose of the bill of lading to it. In neither act was there basis for a claim that thereby the wrongful delivery was ratified. Plaintiff’s course was an attempt to secure payment for the shipment from the person to whom the goods were wrongfully delivered; had it succeeded in its attempt defendant would have been relieved of its obligation to plaintiff. The defendant should not be permitted to complain of plaintiff’s attempt.
There is no error.
Ip this opinion the other judges concurred.