166 Iowa 361 | Iowa | 1914
— The material facts are undisputed. The shipment in question originated in Indiana with the Pennsylvania Railroad Company, and was billed for Fulton, Ill., over the railway of the defendant. It consisted of a “ power bale press ’ ’ of the value of $340, consigned by the plaintiff to itself as consignee, and bill of lading was issued accordingly. It arrived at its destination under a waybill containing the following
Dated at Fulton, Ill., Oct. 15, 1909.
To Famous Manufacturing Co., East Chicago, Ind.
I hereby order of you, to be shipped on or before the 20th day of October, or as soon thereafter as possible, via C. & N. W. Ry., in care of yourselves at Fulton, state of Illinois, machines as follows:
One “Champion” detached, power baling press, size 16s 18 complete with 4 H mounted power, complete with metal truck wheels and such fixtures and extras as you usually furnish, also the following attachments; Gong & bale length indicator & bale weighing attachment.
In consideration whereof, the undersigned agrees to receive the above ordered machinery on arrival, and to pay freight and charges, and to pay to your order, at the time of delivery, the sum of three hundred forty ($340.00) dollars, as follows:
Cash in hand .-...$85.
Note due first day of March, 1910. 85. 7% interest
Note due first day of November, 1910. 85.
Note due first day of March, 1911. 85.
The above notes to bear interest at the highest legal rate from date until paid.
And further to give in security of the foregoing notes a first mortgage on the above named machinery.
When man is sent to start press, settlement must in all eases be made with him as soon as press is set to work and performs as warranted. Failing to pay said money or execute and deliver said notes, this order shall stand as purchasers’ written obligation, and have the same force and effect as notes, for all sums not paid in cash.
It is also fully understood and agreed that if the purchaser does not make full settlement for the hay press with cash or notes as above provided, upon its delivery to him, he thereby waives all claim under this warranty.
Said machinery is purchased upon and subject to no
C. J. Bugbee.
The warranty referred to in the foregoing order, contained the following provision:
The purchaser shall have a trial of two successive days from day of receiving same, and, should the purchaser fail to make the machine perform as above, immediate notice must be given to us and to the agent from whom the machine was purchased, subject to a second trial in our presence. Then, if the failure has not arisen from any defect in the machine, the purchaser to pay the expenses of the trip. But should the defect be in the machine, and person sent is unable to make it work as warranted, the purchaser is to return it to place of delivery and money paid will be refunded.
The plaintiff did not send the bill of lading to Bugbee., It did send the same duly indorsed in blank to the First National Bank of Lyons, Iowa, the city of Lyons being located just across the river from Fulton. The purpose of sending such bill of lading to the bank was to enable it to make settlement with Bugbee for the plaintiff for the purchase price. Plaintiff’s letter of instructions to the bank contained the following:
According to the terms of our warranty, he is to have two days in which to try the machine. You will therefore hold the payment and settlement papers until such a time has elapsed, and, if you are not advised to the contrary by him, you will then mail all to us in the self-addressed stamped envelope.
The bank was in possession of the, bill of lading duly indorsed by the plaintiff. It called up 'the defendant’s railway office at Fulton by telephone and advised the depot agent that it had the bill of lading, and directed the depot agent to deliver the shipment to Bugbee. It also advised the depot
The argument of the plaintiff, in brief, is that the bank had no authority to direct the delivery of the property to Bugbee, and that the railway company was bound to ascertain the extent of its authority, and that its delivery of the property to Bugbee without an ’ actual surrender of the bill of lading was unauthorized, and rendered the railway company liable for conversion of the goods. There are, however, several reasons that stand out prominently in the record why the plaintiff is not entitled to recover upon such theory or upon any other.
I. By delivering to the bank the bill of lading duly indorsed, the plaintiff clothed the bank with the apparent legal title to the property, and with the undoubted right to
"What the right of the bank was as between it and the plaintiff was not material, in the absence of any knowledge or notice to the railway company. If the bank through an appropriate officer, had appeared at the railway office at Fulton with the bill of lading in its possession duly indorsed,
We think it quite immaterial whether the bank be deemed for the purpose as the mere agent of the plaintiff or whether as the holder of the legal title or of the right of possession of the consignment under the indorsed bill of lading. If it was the mere agent of the plaintiff, the indorsed bill of lading measured the extent of its agency, so far as the defendant was concerned. In the presence of the indorsed bill of lading, the railway company was legally justified in good faith to deliver the consignment in accord with the directions of the holder thereof, and it became thereby entitled to a surrender of such bill of lading. Such is the sum of this case.
Appellant relies upon a provision in the bill of lading requiring the surrender of the original before the delivery of the property, as follows:
The surrender of this original order bill of lading properly indorsed shall be required before the delivery of the property.
But this provision here quoted added nothing to the rights of the consignor. His right to appropriate delivery was complete without such provision. Such provision was for
In Hutchinson on Carriers the rule is stated as follows:
And, although a bill of lading providing for a delivery to the consignor or his order contains an express provision that the carrier shall require its surrender or production before making delivery of the goods, such requirement, it is said, will be considered as having been inserted for the benefit of the carrier, and as between himself a/nd the consignor cannot subject the carrier to liability for failing to require the production of the bill of lading or making delivery to one to whom the consignor has ordered that the goods shall be delivered. Section 181, vol. 1.
In Chicago Packing Co. v. Railway Co., supra, the bill of lading was indorsed by the consignor as follows:
Delivery to Hobbs & Tucker, or order, for collection.
Hobbs & Tucker directed the railway company to 'deliver the consignment to one Ragan, such direction being in writing as follows:
E. N. Clark, Agent: Let N. L. Ragan have ear meat on dry track, and I will be responsible for bill of lading.
[Signed] A. W. Tuckeb.
Delivery was made in pursuance of such direction. The consignor repudiated the ■ delivery to Ragan, and sought to hold the railway company liable for delivering without a surrender of the hill of lading. This point was disposed of in the opinion of the court as follows:
The contention was that Hobbs & Tucker were special agents of the Chicago Company, and that in dealing with them as such the railway company was bound to inquire into
It is urged by appellant that the bank exceeded its authority in delivering, or directing a delivery of, the consignment to Bugbee before a settlement had by the execution of
The bank was directed by the plaintiff to make the settlement with Bugbee. Its possession of the consignment was essential to such settlement so that delivery could be made