delivered the opinion of the court.
Thе verdict of the jury having established that the wheat came to the possession of the defendants below (now plaintiffs in error), and that there was a conversion, there is really no controversy respecting any other fact in this case than whether the ownership of the plaintiffs had been divested before the conversion. The.evidence bearing upon the transmission of the title was contained mainly in written instruments, the legal effect of which was for the court; and, so far as there was evidence outside of these instruments, it w'as either uncontradicted, or it had no bearing upon the construction to be given to them. We have, therefore, only to inquire .to whom the wheat belonged when it came to the hands of the defendants, .and when they, refused to surrender it at the demand of the plaintiff.
It is not open to question that McLaren & Co., having purchased it at Milwaukee and paid for it with their own money, became its owners. Though they had received orders fj'om Smith &'Co. to buy wheat fpr them, and to ship it, they had not been supplied with funds for the purpose, nor had‘.they assumed to contract with those from whom they purchased on behalf of their correspondents^ They were under no, obligation to givе' up their title or the possession oh any terms other than such as they might dictate. If, after their purchase, they had
*630
sold the wheat'to any person living in Milwaukee or elsewhere, other than Smith & Co., no doubt their vendee would' have succeeded to the ownership. Nothing in any agency for Smith & Co. would have prevented it. This we do not understand to be 'controverted. Having, then, acquired the аbsolute ownership, McLaren & Co. had the complete power of disposition and there is no pretence that they directly transmitted their ownership to Smith & Co. They doubtless expected that firm to become purchasers from them. They bought from their vendors with that expectation. Accordingly, they drew drafts for the price; but they never agreed to deliver the wheat to the drаwees, unless upon the condition that the drafts should be accepted a^d paid. They shipped it; but they did not consign it to Smith & Co., and they sent to that firm no bills of lading: on the contrary, they' consigned 'the 'wheat, to the cashier of the Milwaukee bank, and handed over to that bank the bills of lading as a security for the drafts drawn against it, — drafts which the bank purchased. Tt is true, they sent invoices. That, howevеr, is of no significance by itself. The position taken on behalf of the defendants, that the transmission of the invoices passed the property in the wheat without the acceptance and payment of the drafts drawn against it, is. utterly untenable. An invoice is not a bill .of sale, nor is it evidence óf a sale. It is a mere detailed. statement óf .the nature, quantity, and cost or price of thе things invoiced, and it is as appropriate to a bailment as it is to a sale. It. does not of itself necessarily indicate to whom the things are sent, or even that they have .been sent at all. Hence, standing alone, it is never regarded as evidence of title. It seems unnecessary to refer to authorities to sustain this position. Reference mayvhowever, be made to
Shepherd
v. Harrison, Law Rep. 4, Ap. Cas. 116, and
Newcomb
v.
The Boston & Lowell R.R.
Co.,
It follows that McLaren & Co. .remained the owners of the wheat, notwithstanding their transmission of the invoices to
*631
Smith & Co. As owners, thеn, they had a right to transfer it to the plaintiff as a security for the acceptance and payment of their drafts drawn against it. This they did by taking bills of lading deliverable to the cashier of the plaintiff, and handing them over with the drafts when the latter were discounted. These bills of lading unexplained .are almost conclusive proof of an intention to reserve to the shipper the
jus .
disponеndi, and prevent the property in the wheat from passing • to the drawees of the drafts. Stieh is the rule of interpretation as stated in Benjamin on Sales, 306; and in support of it he cites numerous authorities, to only one of which we make special reference, —
Jenkyns
v. Brown, 14 Q. B. 496. There it appeared that the plaintiff was a commission merchant, living in London, and employing Klingender & Co. as his аgents at New Orleans. Tbe agents purchased for the plaintiff a cargo of corn, paying for it with their own money. . They then drew upon him at thirty days’ sight, stating in the body of the drafts that they were to be placed to the account of the corn. These drafts they sold, handing over to the purchaser with them the bills of lading, which were made deliverable to the order of Klingender & Co., the agents; and thеy sent invoices and a. letter of advice to the plaintiff, informing him that the cargo was bought and shipped on his account. On this state of facts, the court ruled that the property did not pass to the plaintiff; that the taking of a bill of lading by Klingender & Co., deliverable to their own order, was nearly conclusive evidence that they did not intend to pass the property in the corn; and that, by indorsing the bills of lading to the buyer of the bills of exchange, they had conveyed to him a special property in the cargo, so that the plaintiff’s right to the corn could not arise until the bills of exchange were paid by him. That such is the legal effect of a bill of lading taken deliverable to the shipper’s own order, that it is inconsistent with an intention to pass the ownership of the cargo tо the person on whose account it may have been purchased,
even when the shipment has been made in the vessel of the drawee of the drafts against the
cargo, has been repeatedly decided.
Turner
v.
The Trustees of the Liverpool
Docks, 6 Exch. 543;
Schorman v. Railway Co.,
Law Rep., 2 Ch. Ap. 336;
Ellerslaw
v.
Magniac,
6 Exch. 570.
*632
In the present case the wheat was not shipped on the vessels of Smith ¿5 Co.,‘'.and the bills of lading stipulated for deliveries' to the cashier of the- Milwaukee bank. When, therefore, the drafts against the wheat were disсounted by that bank, and the bills of lading were handed over with the drafts as security, the bank became the owner of the wheat, and ha,d a complete right to maintain it- until payment. The ownership of. Mc-Laren & - Co. was transmitted to it, and it succeeded to their power of disposition. That the bank never consented to part ■with its ownership thus acquired, so long as the drafts it had discounted' remаined unpaid, is. rendered certain by the uncontradicted written evidence. It sent the drafts, with the bills of lading attached, to the Merchants’ Bank, Watertown, accompanied with the most positive instructions, by letter and by indorsement on the bills, to hold the wheat until the drafts were paid; and when, subsequently, the Merchants’ Bank sent orders’ to the masters of the carrying vessels to deliver if to the “ Corn Exchange' Elevator, Oswego, N.Y.,” they accompanied the. orders with letters'to. Smith & Co., the proprietors of the elevator, containing clear instructions to hold the grain, and “ deliver ” it only on payment of the drafts. To.these instructions ■ Smith ' & Co. made no objection.. Now, as it is certain that whether the property in the wheat passed to Smith & C.o. or not depends .upon the answer .which must be given to the question whether it was intended by McLaren & Co., or by the Milwaukee bank, their successors in ownership, that it should pass before payment of the drafts, where can there be any room for doubt? What is there upon which to base'an inference that if was intended Smith & Co. should become immediate .owners' of the wheat, and be clothed with a right to dispose of it at once ? Such an inferеnce -.is forbidden, as we have already •said, by the bills of lading made deliverable to W. Gr. Fitch, cashier pf the Milwaukee bank; and it is inadmissible, in view of the express orders given by that bank to their special agents, ■the Merchants’ Bank at Watertown, directing them to hold the wheat subject to the payment of the drafts drawn against it. No intent to vest immediate ownership in the drawees. of the : drafts cаn be Implied in the face of these express arrangements and positive orders, to the' contrary. It is true that Smith &
*633
Co. were the proprietors of the Corn Exchange Elevator, and that the wheat was handed oyer to the“ custody of the élevator ” at the direction of the Merchants’ Bank; but it cannot be claimed that that was a delivery to the drawees under and in pursuance of their contract to purchase. The Merchants’ Bank, having been only special agents of the owners, .had no power to make' such a delivery as would divest the ownership of their principals.
Stollenwerek et al.
v. Thatcher,
We agree, that where a bill of lading has been taken containing a stipulation that the goods shipped shall be-delivered-to ■the order of the shipper, or to some person designated by him . *634 other than the One on whose account they have been shipped, the inference that it was not intended the property in the goods should pass, except by subsequent order of the person holding the bill, may be rebutted, though it is held to be almost conclusive; and we agree, that where there are circumstances pointing both ways, some indicating an intent to pass the ownership immediately, notwithstanding the bill of lading, in other words, where there is any thing to rebut the effect' of the bill, it becomes a question for- the jury, whether the property has passed. Such was the case of Ogg v. Shuter, 10 Law Rep. C. P. 159. There the ordinary effect of a bill of lading deliverable to the shipper’s order was held to be rebutted by the court sitting with power to draw inferences of fact. The delivery to the carrier was “ free on board,” and the bill of lading was sent to the consignor’s agent. The goods were also delivered into the purchaser’s bags, and there was a part payment. But in this case there are no circumstances to rebut' the intent to retain ownership exhibited in the bills of lading, and confirmed throughout by the indorsements on the bills, and by the written instructions to hold the' wheat till payment of the drafts. Nothing in the evidence received or offered tended to show any other intent. Hence there was no necessity of submitting to the jury the question, whether there was a change of ownership. That would hаve been an invitation to find a fact of which there was no evidence. The circumstances as relied upon by the plaintiffs in error, as tending to show that the property vested- in Smith & Co., cannot have the significance attributed to them.
It is certainly immaterial that the wheat was consigned to W. G. Fitch, cashier, care of the Merchants’ Bank, Watertown, and that it was thus consigned at the request of Smith & Co., made to McLaren & Co. Had it been' consigned directly to that bank, and had there been no reservation of the jus disponendi accompanying the consignment, the case might have been different. Then an intent to deliver to the purchasers might possibly have been presumed; but, as the case was, no room'was. left for such a presumption. The express direction to hold the" wheat for the payment of the drafts, and to deliver it only on payment, removes the possibility of any presumed intent to *635 deliver it while the drafts remained unpaid. A shipment on the purchaser’s own vessel is ordinarily held to pass the property to the purchaser; but not so if the bill of lading exhibits a contrary intent, — if thereby the shipper reserves to himself or to his assigns the dominion over the goods shipped. Turner v. The Trustees of the Liverpool Docks, supra. There are many such decisions. A strong case may be found in the Court of Queen’s Bench, decided in 1840; It is Mitchell v. Ede, 11 Ad. & E. n. s. 888. A .Jamaica planter, being the owner of sugars, and indebted to the defendant, residing in London, for more than their value, shipped them at Jamaica, on the 4th of. April, on a ship belonging to the defendant which was in the habit of carrying supplies to Jamaica to the owner of the sugars, and others, and taking, back consignments from him and others. Oh the same day he took a bill of lading by which the goods were stipulated to be delivered to the defendant at London, he paying freight. Two days afterwards (April 6) the shipper made an indorsement on the bill that the sugars were to be ' delivered to the defendant only on condition of his giving security for certain payments, but otherwise to the plaintiff’s agent. He also drew drafts on the defendant. At the same time he indоrsed the bill of lading, and delivered it to the. plaintiff, to whom he was indebted. The bill was never in the defendant’s hands. The sugars arrived in London; and the defendant paid the drafts drawn .by the shipper, but did pot comply with the conditions of the indorsement of April 6. . Oh this state of facts, it was held by the court that the plaintiff was entitled to the sugars; that the shipper had not parted with the property by delivering it on boаrd the defendant’s ship, employed as it was, nor by accepting, the bill of lading as drawn-on the 4th of April; and that he was entitled to change the destination of the sugars till he had delivered them or the bill. In. the case now in hand, there never was an instant, after the purchase of the wheát by McLaren & Co., when there was not an express reservation of the .right to withhold the delivery from Smith & Co., and also an avowed purpose to withhold it until the drafts should be paid. Consent to"consign the wheat ■to W. G.'Fitch, cashier, care of Merchants’ Bank, amounts, ..therefore, to no evidence of consent that it should pass into the control and ownership of the purchasers.
*636 It has been argued on behalf of the plaintiffs in error that the correspondence between Smith & Co. and McLaren & Co. shows that thе wheat was wanted by the former to supply their immediate need; and that, therefore, it was a legitimate inference' that both parties to the correspondence intended an immediate delivery.' If this were so, it was still in the power of the vendors to change the destination of the property until delivery was actually, or at least symbolically, made; and that the intention, if any еver existed, was never carried out, the bills of lading prove. It may be that Smith & Co. expected to secure ecrly possession of the wheat by obtaining discounts from the Watertown bank, and then by taking up the drafts. If so, it would account for their request that the drafts and bills of lading might be sent through that bank; but that has no tendency to show an assent by either McLaren & Co. or the Milwaukee bank to an uncоnditional delivery of the property before payment of the drafts.
Nor does the fact that any engagement to hold themselves responsible for the safe keeping of the wheat for the- plaintiff, and subject to its orders until the drafts drawn against it should be paid, was exacted from the Watertown bank, have any tendency to prove such an assent. This was an additional protection to the continued ownership of the plaintiff; and the words of the engagement plainly negative any consent to a divestiture of that ownership.
Without reference, therefore, to the testimony of McLaren, —- whieh was, in substance, that, before the-shipments, "the agent of Smith & Co. was informed, that while the shipping firm would agree to send their time drafts through any bank he might designate, and consign the property to any responsible bank Smith & Co. might designate, they would adhere to their positive business rule in -such cases, and on no" account consent that any property so shipped should pass o.ut of the control of the banks in whose care it had been placed until all drafts made against it had been paid, — without reference to-this, we think it clear that the ownershiр of the wheat, for the conversion of which the defendants were sued, never vested in Smith & Go., never passed out of the plaintiff.
This-is a conclusion necessarily , drawn from the written an^l *637 uncontradicted evidence; and there is nothing in any evidence received, or offered by the defendants and overruled hy the court, which has any tendency to resist the conclusion. It is unnecessary, therefore, to examine in detail the numеrous as-signments of error in the admission and rejection of evidence. None of the rulings have injured the defendants.
■ If, then, the ■ Exchange Bank of Milwaukee was the owner ■ of the wheat when Smith & Co. undertook to ship it to the defendants, and when the defendants received it and converted it to their use, the right of the bank to recover in this action is incontrovertible. • Smith & Co. were incapable of divesting that ownership.. The defendants could acquire no title, or even lien, from a tortious possessor. However innocent they may have been (and they were undoubtedly innocent of any attempt to do wrong), they 'could not obtain ownership ■.of the wheat from any other than the owner. The owner of personal property cannot be divested of his ownership without his consent, except by process of law. It is not claimed, and it could not be, that the defendants were deceived or misled by any act of the plaintiff. They are the victims of a gross fraud perpetrated by Smith & Co.; and, however unfortunate their case may be, they cannot be relieved by casting, the loss upon the plaintiff, who is at least equally innocent with themselves, and who has usеd the extremest precaution to protect its title.
It is sufficient to add, that, in our opinion, there is no just reason for complaint against the instruction given by the circuit judge to the jury, and his rulings upon the subject of damages ' and interest. Judgment affirmed.
In the case of Dows et al. v. Wisconsin Marine and Fire Insurance Company, error to the Circuit Court of the United States'for the Southern District of New York, Me. .Justice Strong, in behalf of the court, remarked, “ This case differs in no essential particulars from' that of Dows v. National Exchange Bank, supra. It presents the same questions, and is controlled by the same rules of law. The judgment must, therefore, be affirmed.”