206 Mass. 373 | Mass. | 1910
The first case is an action of contract brought by trustee process, and the principal question raised by the exceptions is, whether the order discharging the trustees upon their answers to the plaintiffs’ interrogatories should.be reversed. The answers, which must be taken as true, show that at the date of the service of the writ the alleged trustees, who were a firm of wool brokers, received on account of the principal defendant a non-negotiable bill of lading for a quantity of wool
The sales act, upon which the plaintiffs rely, recognizes this distinction. A negotiable bill of lading is made a “ document of title ” which upon indorsement passes the property and operates as a direct delivery of the goods of which it is the symbol; Gardner v. Howland, 2 Pick. 599, 602, 603; Stollenwerck v. Thacher, 115 Mass. 224, 226; Forbes v. Boston & Lowell Railroad, 133 Mass. 154, 155; Shaw v. Railroad Co. 101 U. S. 557, 565; while, if unnegotiable, the bill of lading cannot be treated as negotiable and the indorsement confers upon the transferee no additional right. It does not control the possession of the goods, and there is no delivery. The transferee obtains only the title of the transferor, although by proper notice, where there are no intervening rights, he may require the carrier to hold possession of the property for him according to the terms of the bill. St. 1908, c. 237, §§ 31, 34. Hallgarten v. Oldham, 135 Mass. 1. See Williston on Sales, § 428, note 34. But it is not sufficient in an attachment of “ goods, effects or credits ” under R. L. c. 189, § 19, that the person who is
The alleged trustees were properly discharged, and as the court had no jurisdiction if the debt was established to enter judgment against the principal defendant, the motion to dismiss was rightly allowed.
In the bill in equity no service has been made on the defendant corporation, and it has not appeared to defend the suit. The plaintiffs in substance allege that the brokers, to whom for convenience we shall refer hereafter as the defendants, and who had been summoned as trustees in the action at law, hold the bills of lading, or have received the wool represented thereby, or disposed of it to warehousemen, from whom they have received and retained receipts therefor, and ask that by a sale either of the bills of lading and receipts, or of the wool which they represent, their debt may be ordered paid out of the proceeds. The defendants, instead of meeting the allegations of the bill by an answer, filed a plea presenting facts which they averred barred the suit. The plea not having been set down for argument, by which the plaintiffs would have admitted the truth of the facts while denying their sufficiency in law to prevent appropriate relief, they filed a replication, joining issue upon the averments. The trial judge, without making any specific findings or disclosing his reasons of decision, overruled the plea, and reported the case upon the evidence to this court. His conclusions upon