54 Mo. App. 400 | Mo. Ct. App. | 1893
Lead Opinion
— This was an action of replevin to, recover possession of a car of sacked oats in the possession of the defendant railroad company. Under the writ of replevin the oats were delivered to the plaintiff. The Midland National Bank was made a party defendant, claiming an interest in the replevined property by
The facts disclosed at the trial were substantially as follows: Plaintiff was a grain dealer in Kansas City. On October 19, 1891, he made a contract with A. L. Brannock & Co. for the sale of the carload of oats in controversy. The contract was made with one Gr. B. Currier, who was a member of the firm of Brannock & Co., and also president of the Currier Commission Co. Nothing was said at the time of the sale, or at any other time, as to the terms upon which the oats were sold; but there was evidence tending to show that by a general custom existing in Kansas City sales of grain were to be paid for in cash on delivery. The carload of oats arrived in the city on October twenty-seventh, being shipped from Julesburg, Kansas, to plaintiff under a shipper’s order bill of lading. The sale by plaintiff to Currier was made upon the terms “Memphis rates,” which was shown to mean the price of the grain at Memphis, less the freight from Kansas City to Memphis.
On October twenty-seventh, in order to complete the terms of the sale, the plaintiff procured from the railroad company a bill of lading covering the car in controversy, whereby the oats were consigned to the plaintiff’s order at Memphis. The plaintiff then made out an invoice of the car in question and procured weighers’ certificates and certificates of inspection; he then indorsed this bill of lading by which the oats were consigned to Memphis, and delivered the bill of lading, invoice, inspectors’ and weighers’ certificates to Currier. Plaintiff received from Currier a check for the purchase price of the grain. This was shown by the evidence to be the usual and customary way of making sales of grain in Kansas City.
Since the decision of the case by us must, in a great measure, depend upon the nature of the transaction between the Currier Commission Company and the defendant bank, it becomes necessary to subject the evidence of that transaction to the closest scrutiny. The cashier of the defendant, bank testified that, “the course of business between the Currier Commission Company and the bank was that the latter being in the grain business would ship large amounts of grain to different parts of the country and we accepted from them on deposit, and gave them credit for drafts drawn against these shipments with bill of lading attached, the bills of lading being made to shippers’ order and covering
We must determine the nature and effect of this transaction in the light of the testimony of the cashier
This brings us to the consideration of the legal questions arising on the record before us. It may be as well conceded, as it is by the defendants, that as to the defendant railroad company leaving out of consideration the claim of the intervening bank, that upon the undisputed facts the plaintiff’s right of stoppage in transitu is clear enough. Hall v. Railroad, 50 Mo. App. 179.
In the view of the evidence which we have taken, the bill of lading was transferred to the bank to furnish security for the advances that were made upon the faith of the transfer. Eew transactions are of more frequent occurrence in the broad domain of commerce and trade than the transfer of bills of lading as collateral secur- ' ity to a bank making an advance upon the credit of the pledgee’s ownership therein indicated. It seems to have become the customary mode of purchase and sale between parties who require the services of a carrier for delivery for the consignor to draw a draft for the price upon the consignee which with bill of lading attached he procures to be discounted. It is held as security for the consignees’ acceptance or payment of the draft through the holder’s agent at the terminal point of the transit. Such a transfer of the bill of lading is a pledge of the goods themselves unless circumstances indicative of a different intention appear. The pledgee holds the legal title to the goods and in respect to them is entitled to all the rights and remedies of a purchaser for value. Dows v. Bank, 1 Otto (U. S.), 618; Tilden v. Muier, 45 Vt. 195; Bank v. Logan, 74 N. Y. 568; Bank v. Bagley, 115 Mass. 228.
A bona fide holder of a bill of lading as collateral security has a title to the goods which is paramount to
The statute of this state, section 744, prescribes that the manner of the negotiation of bills of lading shall be by indorsement and'delivery in the same manner as bills of exchange and promissory notes. And it is further provided in the section just referred to that no printed or written conditions, clauses or provisions inserted in or attached to any such bill of lading shall in any way limit the negotiability or affect any negotiation thereof nor in any manner impair the right and duties of the parties thereto or persons interested therein; and that every such condition, clause or provision purporting to limit or affeut the rights, duties or liabilities created or declared by chapter 18 shall be void and of no force or effect. The next section, 745, provides what shall be the effect of the transfer of a bill of lading by indorsement thereon in writing and delivery thereof so indorsed whether or not it contains any of the written conditions, clauses or provisions
By turning to the bill of lading received by the commission company of the defendant railroad and transferred to the defendant bank, and it' will be seen that in addition to what such an instrument would ordinarily contain (Porter on Bills of Lading, sec. 4), it contains a great number of clauses specially limiting and effecting the rights, duties and liabilities of the parties thereto. Many of these conditions under the provisions of chapter 18 are void and inoperative. The statute in so far as it disables a public carrier from inserting in its bill of lading provisions of the character mentioned in section 744 is in derogation of the carrier’s common-law right.
Now, when the carrier wishes to limit its liability to the extent allowed by the common law and to avoid the statutory prohibitions, it is required by the statute to have the words “not negotiable” plainly written or stamped across the face of the bill of lading so as to notify the shipper when he receives it that it is exempt from the operation of the statute. By this notice the shipper is warned to scrutinize the conditions of the policy and govern himself accordingly. The undoubted object of these words of the statute was not to affect any transfer of the bill of lading with notice that the
It is thus plain to be seen that the circuit court by its instruction erred in declaring that the plaintiff’s right of stoppage in transitu as vendor of the grain existed against the bank notwithstanding the transference of the bill of lading by the commission company,the shipper to it for value.
The order of the court setting aside the verdict on account of the giving of the instruction of which the plaintiff by his appeal complains was proper and must be affirmed.
Concurrence Opinion
(concurring.) — We do not wish to be understood as combatting the views expressed by Smith, P. J., but we prefer" to place our concurrence on the ground that plaintiff placed the apparent title to the property in Currier, clothing.him with the indicia of ownership and thereby putting it in his power to deal with the property as his own. Conceding that the bill of lading was not negotiable, it was at least assignable. The authorities are abundant here and elsewhere that by so doing he is estopped from asserting his real title as against a purchaser having no knowledge of such title. 18 American & English Encyclopedia of Law, 641; Bank v. Bank, 71 Mo. 183; Nehoff v. O’Rielly, 93 Mo. 162; Dows v. Kidder, 84