86 Ky. 176 | Ky. Ct. App. | 1887
deliverbd the opinion oe the court.
The appellee brought suit in the Louisville Chancery Court against the appellant and the firm of Moise, Barbour & Co., partners in the grain business, in the city of Louisville. The appellee sought by the suit to recover judgment against the firm of Moise, Barbour. & Co. on a note for five thousand dollars, which the firm executed to the appellee. The appellee also sought to-recover judgment against the appellant for the value-of corn and rye, the title to which was evidenced by six bills of lading, executed by the appellant as a common carrier, by which the appellant undertook to deliver to the firm of Moise, Barbour & Co., in the city of Louisville, the grain mentioned in the bills of lading. Each bill of lading shows that the grain therein mentioned was shipped to the order of the shipper, per-advice of Moise, Barbour & Co., and each bill of lading was indorsed by the shipper, and that the firm of Moise, Barbour & Co. was the owner of each of them.. It was alleged by the appellee that Moise, Barbour & Co., while they were the owners of these bills of lading, transferred and delivered them to it in pledge as collateral security to the above-named note; and that the note was due and unpaid; and that the appellant refused tp deliver the grain to the appellee. The ap pellee, upon the foregoing allegations, asserted its lien upon the grain, and sought judgment against the appel lant for its value. The appellant put in issue the alie gations of the appellee in reference to these matters, and a trial of the case resulted in a judgment against the appellant for the value of the grain. This appeal is prosecuted from that judgment.
Such instruments represent money in commercial usage, and the innocent holder for value in the usual course of trade is protected against all equities of the antecedent parties. Nor is such innocent holder’s right affected by any infirmity in such instruments. They are protected in some cases against the claim of th^ rightful owner; whereas, the indorsee or assignee of a bill of lading, which is made to the order of the shipper, must trace his title back to its true owner. He has no greater right than the true owner.
When it is said that such a bill of lading is negotiable, it is only meant that its true owner may transfer it by indorsement or assignment so as to vest the legal title in the indorsee. (See Pollard v. Vinton, 105 U. S., page 7.)
A sale and delivery of personal property by the owner perfects the title in the vendee. He thereby acquires a right to the property which is superior to antecedent equities and liéns of which he had no actual
Both a contract of sale and delivery of personal property are necessary to the completion of title in the vendee. He thereby acquires a right to the property which is superior to antecedent equities, liens or ■executory sales as between the vendor and third persons, of which he had, at the time of his purchase, no actual notice, or such notice as the law requires him to take cognizance of. And where the property is in transit by the carrier, the owner may deliver it to the purchaser symbolically. This may be done by the owner’s indorsement of the bill of lading to the purchaser.
It is said in Newsom v. Thornton, 6 East, 41, that “a bill of lading will pass the property upon a bona fide indorsement and delivery, when it is intended so to operate, in the same manner as a direct delivery of the goods themselves would do, if so intended. But it can not go further.” In Hatfield v. Phillips, 9 M. & W., 648, it is said: “As soon as the goods are landed and warehoused in the name of the holder, that holder then becomes possessed of the goods themselves in the eye of the law, and derives his power, not from the bill of lading, but from such possession.” But while the cargo is still at sea, or the transit continues in any other form, the bill of lading stands for and represents the goods themselves, and will, therefore, enable the assignee to do as much, but no more, than he could have done if they had actually arrived and come to his possession. In Meyerstein v. Barber, 2 L. R. C. P., 38 and 45, it is said: “The bill of lading represents them (the goods),
So, the assignment of a bill of lading for value, while" the goods are in transit, is limited to the effect of symbolizing their sale and delivery, and the assignee is thereby invested with all the rights of a purchaser with actual delivery of possession, but no more. It is also well-settled that the owner of a bill of lading may pledge the same as collateral security for a debt; and as it is indispensable to the validity of a pledge that the actual possession of the property pledged should pass to the pledgee, the possession of the property which is sought to be pledged while it is in transit may be effected by transferring the bill of lading.. Such transfer of the bill of lading is regarded as equivalent to investing the pledgee with the actual posses- J sion of the property. Such pledge does not invest the pledgee with title to the property; the title remains in the pledger; but the pledgee acquires*a lien upon the property for the security of his debt; and this lien, as long as he retains the possession of the property— either actual or symbolical — is a legal lien, which is paramount to, and will, therefore, prevail against, any prior equities existing on behalf of third parties, of/ which the pledgee had no notice, or of which he was not required by law to take notice. (Pettit & Co. v. First National Bank of Memphis, 4 Bush, 338.)
As before stated, the grain mentioned in the six bills of lading in controversy was made, by the terms of the bills of lading, deliverable to the shipper’s order.
I The appellant, the railroad company, delivered the grain to Moise, Barbour & Co.; and there is no doubt that, at the time of the delivery, they were the owners of the grain which the bills of lading represented. The appellee concedes this fact, but it contends that, at the time of the delivery, it was in the actual possession of the bills of lading, and was the owner of them as pledgee for the security of Moise, Barbour & Co.’s indebtedness to it, whereby it &ad a lien on the grain itself to secure said indebtedness.
If it be true that, at the time the railroad company delivered the grain to Moise, Barbour & Co., the appel
The railroad company’s cashier swears that the company’s place of switching its freight trains was in Jeffersonville, where the freight remained until orders were received where to deliver it. That the bills of lading, were presented by Moise, Barbour & Co. at the window' of the cashier’s office, and the numbers of the cars transcribed from the bills of lading to the books of the company, and the cars ordered over to Louisville, and the grain there delivered. While the cashier swears that he could not remember that these identical bills were presented at the cashier’s office by Moise, Barbour & Co., yet, he is positive that they were so presented, properly indorsed, for the reason that all bills of lading, made to order of the shipper, were required to be exhibited, properly indorsed, before the company would
The appellee is estopped to gainsay and undo what was authorized and sanctioned by its conduct.
The judgment of the lower court is reversed, and the case is remanded with directions to dismiss the appellee’ s petition.