7 Mont. 150 | Mont. | 1887
The opinion states the case.
The complaint in this case was filed on the third day of June, 1879. It is an action of claim and delivery, which was brought to recover the possession of five boxes of silver bullion shipped to the bank by the Northwestern Company of Philipsburg, and seized, en route, by virtue of an attachment at the suit of Larrabie against the Northwestern Company. The case was once before brought to this court on appeal of the defendants, and will be found reported in 5 Mont. 325 et seq.
The findings of the court on the first trial were as follows: “ 1. That the bullion described in plaintiff's complaint was produced from the Northwestern Company, and shipped by it to Helena, consigned to plaintiff; 2. That the same was seized by defendants, McAndrews and Smith, under a writ of attachment, while in transit, in an action by defendant Larrabie against the Northwestern Company, and that defendants, McAndrews and Smith, were, at said time, the sheriff and deputy sheriff of Deer Lodge County, Montana, and that all the proceedings to obtain said writ were regular, and that judgment was entered in favor of said Larrabie against said Northwestern Company, in said action, and defendants held said bullion by virtue of said writ of attachment; 3. That at and prior to the shipment of the bullion in controversy in this case, there was an express contract between plaintiff and the Northwestern Company that, in consideration of advances to be made by plaintiff to said company, in carrying on its mining operations, said company would ship to plaintiff its products of bullion, which were to be credited to its account; 4. That at the time said
On these findings, this court, at its January term, 1885, on the appeal of the present appellant, reversed the judgment of the court below, and remanded the case for a new trial. On the second trial in the district court, the same findings were made as the first, with these additional, to wit: “9. That said plaintiff had in no other way, by purchase or otherwise, become the owner of or acquired any interest in said property; 10. There was an express agreement between the Northwestern Company and the plaintiff (the First National Bank of Helena), that the bullion should be delivered to Gilmer & Salisbury, as agents for the bank, and that the
It will be observed, on an examination of this case in 5 Mont. 325, that this court decided in substance as follows (quoting from the syllabus): “The transmission of a bill of lading by the consignor to the consignee is a delivery of the possession of the goods covered by it, and the title to the property shipped thereby passes from the former to the latter. But the mere shipment of goods, in pursuance of a contract between the consignor and consignee, whereby the former was to pay the freight, and the latter, after he had sold the goods, was to credit the proceeds to the account of the consignor, does not vest the title to the property shipped in the consignee, in the absence of a bill of lading, or notice of the shipment to him.” First National Bank v. McAndrews, 5 Mont. 325.
Let us notice the points of difference in the facts of this case as found by the court at these two trials. These can be readily seen from findings 9, 10, and 11, made at the second trial, in addition to the eight made at the first trial. The ninth finding is negative in its character, and may be noticed later on in the course of this discussion. The tenth finding adds a new feature to the case, in showing the express agreement between the mining company and the bank that the bullion should be delivered to the common carriers, Gilmer & Salisbury, as the agents of the bank, under a contract to be made between the bank and the carriers. The eleventh finding shows that such a contract was made between the bank and the carriers, and the bullion delivered to them under it, and the bank was notified by mail of such delivery. Do these additional facts, found by the court be
As to the first two defects mentioned above, it clearly appears from the opinion of the court that the proof of either would suffice, as one is, for the purpose of this case, equivalent to the other. The opinion of Chief Justice Wade, in reference to these points, uses the following pertinent language: “ If a bill of lading had evidenced the intent and purpose of the consignor in shipping the bullion, or if this intent had been evidenced by any other conclusive unconditional act, such as notice of the shipment to the consignee, then a delivery to the carrier, in pursuance of such a bill of lading or notice, would have vested the title in the consignee.” 5 Mont. 331. In the eleventh finding quoted above, we see that this notice was given by mail of the shipment, or rather of the delivery by the consignor, of the bullion to the carriers, under the contract constituting the carriers the agents of the bank. This certainly supplies the first and second defects in the proof pointed out by this court on the former appeal.
As to the third of those defects, it seems, by the first-finding, that the mining company was, in consideration of the advancements, to ship to the bank its products of bullion. This was broad enough to cover this particular consignment; but if it were not, on the second trial the court found, in its tenth finding, that the bullion was
As to the fourth defect in the proof pointed out by the former chief justice, it seems, from the tenth and eleventh findings, to have been amply supplied. There was a delivery by the consignor to the carriers as agents for the bank, under a contract made between the bank and the carrier, in pursuance of the contract made by the mining company and the bank. A delivery to a special agent appointed to receive the goods, and a taking and carrying away by such agent, is certainly not only a delivery to the principal, but an acceptance by the principal of the goods delivered. Were it not so, there would be an end to all transactions through agents; and the maxim, Qid facit per alium facit per se, would never have become household words in courts of justice.
The tenth and eleventh findings also supply the fifth and last defect in the proof appearing on the former appeal; for it seems that on the second trial a specific contract was shown between the plaintiff and Gilmer & Salisbury, under which the bullion was to be delivered to them as agents of the bank, and it was so delivered.
As to the ninth finding quoted above, there is a seeming contradiction between it and the two following, which we must harmonize if we can. This can easily be done by reading the ninth with reference, not only to those preceding it, but also to those following it. And this is a proper method of construction; for the findings must be taken as a whole, in order to properly understand any one of them. The ninth finding would then mean that the plaintiff had not, by purchase or otherwise, become the owner of or acquired any interest in the bullion, except as pointed out in the other ten findings made by the court. This construction makes this negative finding limit all the other affirmative findings, and is equivalent to saying that they express all that was proven on the subject of the interest or ownership of the plaintiff in the property involved in this controversy. Such seems to us the only legitimate and proper construction of the language used by the trial court.
Looking at this case in the light of the former opinion of this court, and the authorities quoted and cited therein, and taking into consideration the additional facts found by the court on the second trial, and applying these facts to the principles of law announced in those authorities, we must yield to the irresistible conclusion that the court below erred in rendering judgment for the defendants, who are here respondents, on the findings of fact made herein. It is objected by the respondents, however, that the findings of fact do not support the plaintiff’s case as set out in its complaint; that the plaintiff brings this action as the absolute owner; and that the findings, construed in their most favorable light, only
Then let us examine the case independently of the opinion rendered by this court on the former appeal, and apply the law to the facts set out in the findings, as if it were a case of first impression in this tribunal, and
Under this state of facts, the title to the property passed to the consignee, the appellant now before the court. Gibson v. Stevens, 17 Curt. 635. And certainly there is nothing lacking to complete the title of the plaintiff in the bullion. The price was prepaid; the delivery was complete. It is true, the exact amount which
But it is not necessary to the reversal of this judgment that the appellant should have a perfect title to the' bullion seized. If it had the possession, and the right to the possession, the seizure of the property by the respondents was wrongful, and cannot be maintained. Suppose the goods had been seized by respondents on a writ of attachment issued against some party not connected with this case, and the Northwestern Company had brought this action of claim and delivery, it could not have been maintained under the facts found by the court; for it has parted with all right to the bullion. It could not even stop it in transitu on the bankruptcy of the consignee. Walsh v. Blakely, 6 Mont. 199. It could not countermand the orders given to the carrier for its delivery. All it could do would be to demand that an amount of money equal to the value of the bullion, less
This supposed case is entirely similar to the case of Wetzel v. Power, decided by this court at its January term, 1884 (5 Mont. 214), in which it is held that “ goods in the hands of a common carrier, sent by the consignor to the consignee, under an arrangement that that the consignee should receive the same, pay the freight thereon, and apply the proceeds of the sale thereof in payment of advances already made, in the ordinary course of trade, are in the constructive possession of the consignee, and he alone can maintain an action for damages for any wrongful taking of the same from the hands of the common carrier.” See also Hutch. Carr., sec. 135; Halliday v. Hamilton, 11 Wall. 563; Gibson v. Stevens, 8 How. 384. Then the Northwestern Company would have been nonsuited if it had brought such a suit, just as Wetzel was in the case cited. The consignee alone could bring such an action and prevail therein. Then, certainly, the respondents here, having no better right to these goods than the attachment debtor, cannot recover on the strength of their writ and levy, when the alleged owner itself could fail.
But aside from all principles of the law applicable to common carriers, and consignors and consignees, with or without bills of lading, this case can rest on the express contracts found by the court, the fact of the advances of the money, and the delivery of the bullion to the agents of the appellant; and there is no escape from the conclusion that the respondents have no right to detain the property attached, and the plaintiff should have prevailed in this action.
The court below erred in not rendering judgment in favor of the appellant, on the findings of fact made herein; wherefore the judgment of the court below is reversed, and judgment here rendered on the findings of
Judgment reversed.