Glidlen v. Lucas

7 Cal. 26 | Cal. | 1857

Burnett, J.,

delivered the opinion of the Court—Murray, C. J., concurring.

The plaintiffs, merchants of Boston, shipped three hundred kegs of lard to San Francisco, on the ship Goddess, one of their own line of packets, to be sold by Messrs. H. F. Cutter & Co., who were to receive one-half the net profits, in lieu of commission.

The bill of lading stated the goods were “ shipped by order,” and were to be delivered “ to order or assigns,” he or they paying the freight; and in case the freight was not paid within thirty days, a sufficiency was to be sold to pay freight and charges. The bill of lading was signed by plaintiffs for the captain, and the margin contained this statement, “ Glidden & Williams’ line California Packets, office, No. 39 Lewis Wharf, Boston. Agents in San Francisco, Flint, Peabody & Co.” The bill of lading was enclosed to Messrs. H. F. Cutter & Co., without endorsement, and by Reynolds, one of the firm, pledged to defendants, with other bills of lading, to secure a loan of money made before the ship arrived. The defendants paid freight and charges on the " lard, and then sold the same; and plaintiffs brought this suit to recover the amount received by defendants for the property. The Court found that defendants had no knowledge of the fact that plaintiffs were the owners of the lard.

The only question in the case is, whether the bill of lading, upon its face, and without endorsement, was sufficient to put the defendants upon inquiry as to the real owner of the property. The bill of lading was drawn in this manner, on purpose to conceal the fact of ownership from the agents, Flint, Peabody & Co., and the question is, whether the owners should not be responsible for all the consequences flowing from their own act. The goods being shipped “by order,” and deliverable “to Older or assigns,” how were the agents, Flint, Peabody & Co., to know to whom to deliver the goods ? And how could defendants know who were the real owners ? The only proof of ownership was the possession of the bill of lading. Even had the real owner endorsed the bill, this would not have shown that fact, any more than the bare possession of the bill of lading, for the reason, that the name of the owner was not given, and any one, therefore, in possession, could assume the ownership, and endorse the bill accordingly. This, Messrs. H. F. Cutter & Co. did, and passed the property to defendants. And it is well remarked by defendants’ counsel, that if they had searched the world round and round for the owners, with this bill of lading in their hands, surely Glidden & Williams were the very last persons they would have inquired for.

There was nothing in the bill of lading to put the defendants upon inquiry. The bill, upon its face, bore conclusive evidence of the intention to conceal the name of the owner, and to give the possessor of the bill of lading exclusive control over the property. And, as the owners did not wish to be known, it would certainly be very illogical to ask the defendants to ascertain that fact, for the protection of plaintiffs, and against their own will. There was nothing in the character of the business of II. F. Cutter & Co., to make them technical factors, and the defendants were not bound to know that they acted as factors in the particular case. This Court, in the case of Hutchinson v. Hours et al., has settled that question. As to the question, whether a factor can pledge the goods of his consignor, it is not necessary to decide. The reasoning of defendants’ counsel on this point is certainly very forcible, and founded in common sense. This case may be a hard one upon the plaintiffs, but it is the result of their own misplaced confidence, and of their own design to conceal their own transactions from their regular agents in San Francisco.

Judgment affirmed.