32 Barb. 490 | N.Y. Sup. Ct. | 1860
By the Court,
The action in this caséis replevin, to recover 2565 bushels of corn alleged to -have been unlawfully -detained by the defendants from the plaintiffs. Both parties claim title to the corn, and through the samé persons, Hiles & Wheeler, who were at 'one. time confessedly the owners thereof. The plaintiff’s title, if otherwise valid, is prior in point of time to that of the defendants, and in such, case must prevail. The question is upon the validity of thó plaintiff’s title; which is always the question in an action of replevin, and especially so in this case, as the. defendants’.title is in no- way' impeached, if the plaintiffs’ title fails. The plaintiffs make title as alleged bona fide holders of the bill of lading, relying upon- which as the evidence of title to the property, they made advances to the shipper of the goods, and they claim a lien , to the extent of these advances as against the defendants, (who are subsequent purchasers of the Corn from Hiles- Wheeler,) both at common law- and under the statute “ relative to principals and factors-and agents.” (3 R. S. 76, §§ 1, 2.) The important inquiries;,
■ 1. The instrument under which the plaintiffs claim was a bill of lading. If not exactly formal, it was substantially such. It did not detract from its force or validity that it purported to be the act of the- owners of the goods and also of the carrying vessel, instead of their agent, the master or captain. Hot only from its similarity to other bills of lading has this been-argued to possess the character of such a paper, but this very instrument has in several instances been adjudged to be a bill of lading. That question, therefore, is no longer open to discussion. (Dows v. Perrin, 16 N. Y. R. 328, 9. Dows v. Greene, 16 Barb. 72. Dows v. Rush, 28 id. 183. Bank of Rochester v. Jones, 4 Comst. 497.)
2. The paper does not purport to have been executed by Hiles & Wheeler personally, but by them “ per E. H. Walker.” We must therefore inquire into the authority of Walker to execute and deliver the instrument. He had no express authority. He was not instructed by his principals to execute thé paper. But there is much evidence of implied authority. He was a clerk in the employ of Hiles &-Wheeler, the only indoor clerk at that time. He was a clerk in the shipping or carrying business; a clerk to make out bills of lading; a clerk to sign those of a particular character, to wit, where Hiles & Wheeler were mere freighters and not owners of the goods. He does not recollect before to have signed any, where Hiles & Wheeler were the owners; but this nice distinction, it seems to me, cannot affect his real authority, or prejudice the
Assuming the bill of lading to have been well executed by Walker in behalf of Hiles & Wheeler, and to have gone into the possession of Bloss lawfully, did the plaintiffs make advances upon it to Mack in good faith, relying upon the bill of
,. It remains to consider another question of some importance, made so. by the decision of .the court of appeals in the case of Dows v. Perrin, (16 N. Y. Rep. 325,) to wit, whether, assuming the bill of lading to have been executed under proper authority and to, have-been lawfully and intentionally delivered to. BMss, and to his principal Mack, and the plaintiffs as the indorsees of the bill of lading and the consignees of the goods, to have ma.de advances thereon to Mack in good faith without notice that he was not the owner of the goods, the plaintiffs’ title to. the corn is.good, notwithstanding Mack may have intended a fraud in acquiring possession of the goods and purchased with a preconceived intention not to pay. For the purpose' of"considering this question, I assume that the intentions of Mack, though not of Bloss, were fraudulent, there being sufficient evidence in the case, perhaps, to justify such an inference, although the judge has not found the fact, and there is room for debate whether the fraudulent intent on the part of Mack was conceived until after Bloss had sent on to him the bills of lading from Buffalo. The court of appeals, in the case last cited, are reported to have decided that a bill
Now the first remark to be made in reference to that decision is, that the case called for no such adjudication. The court, before announcing the principle just quoted, had decided that the judge at the trial should have nonsuited the plaintiff for want of evidence of authority on the part of Walker to execute the bill of lading, and then proceeded to declare this principle in anticipation of the state of facts which might be presented upon a new trial. While the principle thus announced is, therefore, entitled to the greatest respect as the opinion of the highest judicial tribunal in the state, it does not possess the force of authority, as a rule of action in other cases.
Nor is it necessary to dispute the position maintained by the learned chief justice who delivered the opinion of the court, that Mack, as the fraudulent purchaser of the goods, was not in a situation to dispute the title of Niles & Wheeler or that of their bona fide assignees. He acquired no title by the purchase, on account of the fraud, and was liable to an action of replevin for the goods.
But the important question is, what right did the bona fide purchaser from him acquire; for such is the situation of the plaintiffs. I take it to be very well settled that a bona fide purchaser for value from a fraudulent vendee obtains a superior title to a subsequent bona fide purchaser from the vendor, where possession accompanies the sale from the fraudulent vendee. And in this case I think Mack must be deemed
Properly speaking, therefore, the question discussed in the case of Dows v. Perrin did not arise. The plaintiffs were not the indorsees of the bill of lading, but the original parties thereto, the very persons in whose favor the bill was made; and it seems unnecessary to discuss the question whether a subsequent indorsee receiving the transfer of the bill simply by indorsement or assignment from a fraudulent shipper or consignee of the goods, as a security for cash advances made in good faith, acquires a title untainted with the original fraud. In one sense, indeed, the plaintiffs may be said to be subsequent parties; that is, they are not the original purchasers from Hiles & Wheeler, but purchasers from their fraudulent vendee. And although this assimilates them, somewhat, to mere indorsees in good faith of the bill of lading, yet I think the fact that the plaintiffs are the actual consignees of the corn—
But let it be conceded that the plaintiffs occupy the position simply of bona fide indorsees of the bill of lading, making advances in good faith upon the strength of Mack’s supposed ownership of the goods, is it true that the law is, and “ that the courts have gone no farther upon this subject than to hold, that the bona fide indorsee of a bill of lading for value is not liable to have the property which it represents stopped in transitu by his consignor on account of the non-payment of the purchase price,” and “ that the holder of such a bill void [voidable P] on account of fraud, cannot confer a better title than he had himself” ? (16 N. Y. Rep. 332.) By the use of the term void, I presume is here meant voidable; for in the connection here used, a bill of lading is never absolutely void, but only voidable at the instance of the aggrieved party, and in that sense it is every day’s experience that a fraudulent vendee can confer upon a bona fide purchaser a better title than he himself had. And for the purpose of this argument, a bona fide indorsee of the bill of lading for value stands in all substantial respects in the attitude of a purchaser of the goods. The bill of lading is the symbol of title, and the evidence of possession. It is the hey of the canal boat warehouse. The master of the boat holds the goods'for, and as being in the possession of, the party named as owner in the bill of lading. The party then has all the possession of which the nature of the thing is capable, while in the act of transportation by another party for his benefit. And the advance upon the credit of the goods, whether to the full or only the partial value, makes him pro tanto the purchaser of the goods—the conditional purchaser—the purchaser until the amount of the advances is reimbursed, or what is the same thing, the lien-holder or mortgagee. The indorsement of the bill of lading is the bill of sale of the goods. By commercial usage it has this effect, in the same manner and to the same extent as if the bill of sale or transfer of title was written out
3. Assuming the facts of the case to be such as have been before mentioned and such as have been found by the trial court, I am of opinion that the right of the plaintiffs to .recover stands firm upon the 1st and 2d sections of the factor’s act. (3 R. S. 76, 5th ed.) That act in substance provides that every consignee of merchandise shall be entitled to a lien thereon for any money advanced or negotiable security given by such consignee to or for the use of the person in whose name the shipment thereof shall be made, and that such last
Gould, Hogeboom and Bockes, Justices.]