29 Wis. 482 | Wis. | 1872
Lead Opinion
Tbe following opinion was delivered at tbe June term, 1871:
This cause was most ably and exhaustively argued at the bar on both sides, as well on the first appeal as on this, and I thought at that time and so I still continue to think, that the tender or offer by the defendant to deliver to the plaintiffs tbe same parcels and barrels received by the defendant in
The receipt of a warehouseman or wharfinger, and the receipt or bill of lading of a common carrier, are contracts of precisely the same general nature and effect, and should obviously be governed by the same rules and principles as to the application of the doctrine of estoppel or negotiability, which, with respect to such contracts, mean one and the same thing. They
Both tbe carrier and tbe warehouseman are bailees for hire, tbe former agreeing to carry and deliver tbe identical goods or property received at tbe place designated or agreed upon, and tbe latter to forward, or redeliver or return tbe very same goods or property on presentation of tbe receipt, unless there be some express agreement, or known usage, or custom of trade or business, showing that tbe parties otherwise intended. It is of tbe very essence of both agreements that tbe very same property received shall be carried, delivered or returned to tbe party who may be entitled thereto, in discharge of tbe obligation of tbe bailees. Tbe delivery or return of tbe same property, and of no other, will discharge sucb obligation or duty and satisfy tbe terms of tbe contract. Even in case of fraud, or willful untruth, or misrepresentation on tbe part of tbe bailee, or, in a case like tbe present, where be is himself deceived or misled, without fault on bis part, by tbe fraudulent concealment or devices of tbe bailor, no other or corresponding property or
“ It seems to be thus well established,” says Chief Justice . Shaw, in bis most elaborate opinion in Blanchard v. Page, 8 Gray, 281, 295, “ that a bill of lading is a written simple contract between a shipper of goods and a ship-owner, tbe latter to carry tbe goods and tbe former to pay tbe stipulated compensation for that service.” And tbe same is true of a warehouseman’s receipt. It is a written simple contract between tbe owner of tbe goods and tbe warehouseman, tbe latter to store tbe goods and tbe former to pay tbe compensation for that service. Such is tbe contract here. Tbe language is: “ Received in store from McLaren for account of bearer fifty-four bbls. mess pork, deliverable on return of this receipt and payment of storage.” Tbe meaning of this clearly is, that tbe same fifty-four barrels received in store, and described as mess pork, are deliverable or to be delivered to tbe bearer of tbe receipt on return of tbe same and payment of storage; and tbe warehouseman, not less than tbe ship-owner or carrier, is bound to deliver tbe identical goods received in fulfillment of bis contract. Nothing short of this discharges tbe obligation or amonnts to a performance, and, in tbe absence of fraud, or misrepresentation, or negligence on bis part in giving tbe receipt, nothing more than this can, in my judgment, under any circumstances, be demanded of him, unless indeed bebas failed to properly care for and store tbe goods, a point not involved in this case.
Tbe words “mess pork,” in this receipt, are clearly words of description. They are descriptive of tbe barrels received, and inserted for tbe purpose of identification. They signify no more in that connection than that tbe fifty-four barrels received, and which are to be delivered to tbe bearer on return of tbe receipt and payment of storage, are described, marked or
That such is the legal obligation and duty of the carrier, unless under certain circumstances, as where he has good reason to believe that the package tendered contains something dangerous, or hurtful, or otherwise of a character not proper to be carried, was expressly decided in Couch v. The London & Northwestern Railway Company, 11 C. B., 255 (78 E. C. L., 254, 290, 292, 294). See also the language of Lord Campbell, C. J., in Bross v. Maitland, 6 El. & Bl., Q. B., 482 (88 E. C. L., 482), and the opinion of Sawyee, J., in Barrett v. Barney, 2 Abbott’s U. S. Cir. & Dis. Ct. R., 197; S. C.,S Albany Law Journal, 246, 247. And of necessity this must be so; for, otherwise, business of the kind could not be transacted. The usages and course of
I know of no authority, and do not think any can be found, to justify or uphold the contrary of this proposition, and I certainly can see no good reason for upholding it. The books, to the-extent of my examination — and I believe I am correct about it — make no distinction between the two instruments so far as their negotiable qualities or characteristics are concerned. The English courts place both on the same footing, as will be seen by the discussion and references in Coleman v. Riches, 16 C. B. (7 J. Scott), 104, [81 E. C. L., 103], which was a case upon a wharfinger’s receipt; and so do the courts of this country, in which it has been held that the endorsement and deliv
Having thus concluded that there is no difference, and no distinction can be made, between this receipt and tbe receipt or bill of lading of a carrier, with respect to negotiability, and that it is negotiable to tbe • same extent, under tbe sanie circumstances, and upon tbe same principles, as a carrier’s receipt, I shall next endeavor to show, if it were a carrier’s receipt and the defendant a earner, that a delivery or offer of delivery, in good order, to tbe plaintiffs as assignees or bona fide holders for value of tbe receipt, of tbe same identical barrels for which tbe receipt was given, would have absolved tbe defendant Norn all further liability upon tbe contract, and would have been an exact and legal performance of it.
If this bad been a carrier’s receipt in tbe same words, except to provide for tbe carriage and rate of compensation, and containing, in addition to tbe description, “ fifty-four bbls. mess pork,” tbe further statement or description “in good order and well conditioned,” it would not then have constituted a warranty or representation binding tbe defendant that such were tbe actual contents of tbe barrels, and such actually tbe order and condition of tbe pork in them.' It is settled, beyond reach of cavil or doubt, that these and all like expressions or statements contained in tbe bill of lading or receipt of carrier, relate only to “ circumstances which are open to inspection and visible ” to tbe carrier at the- time; but they do “ not preclude tbe carrier from showing, in case of loss or damage,, that tbe loss proceeded from some cause which existed, butwas not- apparent, when be received tbe goods, and which, if shown satisfactorily, will discharge tbe carrier from liability.” This is.the language of Chief Justice Shaw, in tbe third position stated in Hastings
The answer or argument, then, is this, that the rule or principle of construction is inapplicable when the bill of lading or receipt has been transferred, or, in other words, that it is to receive one construction as between the original parties to it, and another and very different construction as between third persons. As between the' original parties, and as intended by them at the time of making and signing the instrument, the language is to be understood and applied only to those facts and circumstances which were open to inspection and visible to the carrier, so that the carrier may rebut the prima facie case made against him, by showing latent defects, or that the contents were not what, they purported or were represented to be; but, as between the carrier and third persons, a different construction must prevail, and the words must be understood and applied, not to the facts and circumstances as they appeared externally and were seen by and represented to the carrier — the open, visible condition of things — but to those facts and circumstances which were hidden from and unknown to him, and which he. could not know — to the true and actual contents and internal condition of the packages or parcels, so that the carrier shall be estopped or absolutely concluded with respect to them by the language of his receipt It would be something very strange, to say the. least of it, and I think new, if the language
It will be observed, in examining the cases above cited, that the courts lay down the principle or rule generally, or as generally or always applicable; and that they do not anywhere state or suggest the exception or distinction contended for by counsel., Such a distinction is not anywhere hinted at, and it is clear to my mind that there is no good reason or foundation for it. On the contrary, the very opposite position, and that there exists no such distinction, is clearly stated and shown by some of the cases. The second rule laid down in Sears v. Wingate, 3 Allen, 107, and which applies to the point now under consideration, is in these words: “The master is estopped, as against a consignee who is not a party to the contract, and as against an assignee of the bill of lading, when either has taken it for a valuable consideration upon the faith of the acknowl-. edgments which it contains, to deny the truth of the statements to which he has given credit by his signature, so far as those statements relate to matters which are, or ought to he, within his knowledge.” This is a clear statement and recognition of the true and just limit or extent of the carrier’s liability to third
And counsel are mistaken too, I think, when they assert that all are cases arising between the original parties to the contract. The case of Nelson v. Woodruff, 1 Black., 156, also cited by counsel, was not such an one. It was a controversy between the carrier and, in the language of the above rule, a consignee who was not a party to the contract, and who had taken it for a valuable consideration, upon the faith of the acknowledgments which it contained. Such a consignee, who advances money upon the faith of the bill of lading or receipt after it is made out and delivered to the consignor, stands in the same relation to the carrier, and is entitled to the same protection, as an assignee or holder in good faith for value of the bill of lading. But the court in that case refused to hold the carrier liable for secret defects, or leakage, or loss of contents arising therefrom, or for diminution or absence- of contents, unknown to the carrier at the time the goods were shipped. The bill of lading recited that the barrels and tierces “ had been shipped in good order and condition,” etc. That case is an authority clearly against the position here assumed by counsel.
And so also is the case of Marden v. Green, 6 Watts, 421, likewise referred to most approvingly by the court in Nelson v. Woodruff, and with which it was said Mr. Angelí had made us all familiar. The following language occurs in the opinion: “ Some difficulty arose as to whether the. owners could contradict the bill of lading. This is not generally permitted, but cases may occur in which it may be proved there was imposition on the captain, or a mistake of both consignor and captain. The captain does not open or otherwise examine the casJcs. Suppose he receives a barrel of corn instead of a barrel of coffee; or a barrel of cider instead oj Madeira wine; or a package of cotton linen instead of flaxen linen ; it would seem his bill of lading would not and ought not to exclude him from proving this, whether it arose from mistalce or fraud in the consignor." Here then we have the
And to tbe same effect is all tbe reasoning of Mr. Justice NelsoN in Bradstreet v. Reran, where, as be says, tbe respondents in that case, who were the consignees of tbe cotton, stood in tbe light of bona fide purchasers, who became sucb on tbe faith of tbe representations contained in tbe bill of lading. He states tbe question there to have been, whether tbe loss and injury existed in tbe shape of external damage, at and previous to tbe loading of tbe cotton on ship-board, and was readily visible on inspection; or whether tbe damage was occasioned by tbe internal bad condition of tbe cotton, wbicb was invisible to tbe eye at tbe time of tbe shipment, and could only be detected by cutting and inspecting tbe bales. Tbe court found that tbe damage was of tbe former kind, and so decided against tbe carrier.
Anri in Bisset v. Price, tbe party suing bad made advances on tbe faith of tbe bill of lading. Tbe principles governing in sucb cases are ably discussed, and tbe court say: “ Tbe forwarding business would become impracticable if tbe carrier, when be receives tbe goods, is bound to open and examine every package, before be signs tbe bill of lading for them.” And sucb, also, I understand to have been tbe case of Shepherd v. Naylor, where Chief Justice Shaw says: “In general the interior condition of goods, packed as usual and necessarily so
It would seem that I might pause in the consideration of this case just here, and that enough has been said to show that, in my judgment, the plaintiffs cannot recover. But as the great question argued in the case was that of negotiability, and as it was claimed for the plaintiffs that these receipts are negotiable, like bills of exchange or promissory notes, or like bonds for money payable to bearer, and passing from hand to hand by delivery, and as I concede their negotiability to the same extent and for the same purposes as bills of lading or carrier’s receipts are or may be said to be negotiable,, it is necessary and proper that I should speak more particularly on that subject. A bill of lading or carrier’s receipt is not negotiable like a bill of exchange or promissory note, within the meaning of the law merchant. The indorsement or delivery of it does not convey the contract itself, but only the property represented by it. It is the property which is transferred by the indorsement and delivery ; and, in the hands of the indorsee or holder, the bill of lading becomes mere evidence of his title or ownership. He can demand, sue for and recover the property, producing the bill of lading or receipt in proof of title. The carrier must deliver the property to him as the owner, and he can maintain an action against the carrier, founded on his right of property, if he does not do so. He cannot, however, sue upon the bill of
“But it is now fully settled, tbat a bill of lading is not negotiable in tbe sense stated, so as to constitute a legal obligation between the ship-owner and tbe indorsee; though in many cases of tbe indorsement of tbe bill of lading, whilst tbe goods are in tbe possession of tbe carrier, of wbicb tbe shipper is owner, or tbe goods have been shipped on bis account, tbe effect is to transfer tbe right of possession connected with tbe right of property, in virtue of wbicb, as before stated, tbe in-dorsee may have bis remedy as owner. But in law, tbe original contract of tbe carrier with tbe shipper is like any other right or chose in action: it may- convey an equitable interest, but cannot transfer the legal right of action.
“ This question came before tbe court in a comparatively recent case, Thompson v. Dominy, 14 M. & W., 403, in wbicb it*498 was Reid that a Rill of lading is not negotiable like a bill of exchange, to enable an indorsor to sue in bis own name; tbe effect of tbe indorsement being only to transfer tbe property in tbe goods, but not tbe contract itself. It was put expressly on tbe ground, that tbe original contract for safe carnage is witb tbe shipper, and that contract is not transferable, although an in-dorsement of tbe bill of lading by tbe consignee, who has in himself tbe right of property in the goods, will pass tbe right of property to tbe indorsee, witb all tbe rights incident thereto. Since that decision, by an act of parliament, St. 18 and 19 Yict., c. Ill, a bill of lading has in effect been made transferable by indorsement, so that an action may be brought upon it in tbe name of tbe indorsee. Tbe statute, of course, cannot affect tbe law of America.”
Tbe act of parliament above spoken of, and which only makes tbe bill of lading transferable by indorsement “as against tbe master or other person signing tbe same,” has been before tbe English courts, for consideration in two recent cases. Valieri v. Boyland, L. R. 1 C. P., 382 ; Jessel v. Bath, L. R. 2 Ex., 267. Tbe act is printed at length in a note to tbe former ease, and contains a proviso in these words: “ Provided that tbe master or other person so signing, may exonerate himself in respect of such misrepresentation, by showing that it was caused Without any default on bis part, and wholly by the fraud of tbe shipper, or of tbe bolder, or some person under whom tbe bolder claims.” It appears, therefore, under tbe act, that cases of this description, if this were a bill of lading and negotiable, are saved, as they obviously should be, from its operation, or from 4be effect given to tbe transfer of negotiable paper to a purchaser for value without notice. And so tbe courts held in ■tbe cases ¿referred to.
Tbe provisions of our code relating to tbe assignment of cboses in action and.tbe bringing of suits thereon in tbe name of 'tke real party in interest, do not effect tbe question. If assignable, -.and if tbe assignee of tbe bill of lading may sue in
I should not close this opinion without reference to tbe recent well considered decision of tbe supreme court of our sister state, Minnesota, which fully sustains tbe views I have taken, and is not cited in tbe briefs of counsel. It was a case much like tbe present, a suit for property specified in a warehouseman’s receipt, which receipt bad been transferred; and tbe action was by tbe bolder against tbe warehouseman. Tbe case is Robson v. Swart, 14 Minn., 371. I concur in the general principles there held, but tbe decision goes much farther than we are required to go in this case. Tbe wheat was open to inspection, and tbe warehouseman supposed to know its quality. Tbe receipt was for “ No. 2 wheat,” and I doubt, therefore, whether tbe tender of wheat of a quality inferior to No. 2, though tbe same wheat for which the receipt was given, ought to have been held a satifaction of the contract, or discharge of the obligation of the warehouseman to a holder for value of the receipt, who bought without knowledge of the quality of the wheat, except as stated in the receipt, and relying upon such statement.
The case of McNeil v. Hill, Woolworth’s Cir. Ct. R. (vol. 1), 96, cited by counsel for the plaintiffs since the above was written, contains nothing in conflict with the views I have taken. I fully agree that the case was correctly decided, and refer to it as sustaining my conclusions here, so far as it has any application to the questions under consideration. And two recent cases, one in Illinois and the other in Ohio, are fully to the point, and I make especial reference to them. Burton v. Duryed, 40 Ill., 320; Second Nat. Bank v. Walbridge, 19 Ohio St, 419 ; S. C., 2 American R., 408.
And the case In re Bahia & San Francisco Railway Co., L. R., 3 Q. B., 583, in like manner cited, is clearly distinguishable. The certificates of shares there issued by the company were, in
Every light in which this case presents itself to my mind, compels me to say, that the judgment should be reversed, and that the plaintiffs have established no cause of action.
The other justices concurring, the judgment is reversed, and a venire de novo awarded.
Rehearing
A motion for a rehearing was denied, and the following opinion delivered, at the January term, 1872 :
Counsel for the plaintiffs move for a rehearing, and ash a decision whether warehouse receipts are not negotiable by ch. 840, Laws of 1860, and the amendment, see. 1., ch. 78, Laws of 1863 (2 Tay. Stats., 1846, 1847, §§ 42, 45 and 46). An examination of those statutes, and particularly of the provisions of § 45, which are chiefly relied upon, will show that they contain no words making the receipt itself transferable like a bill of exchange under the custom of merchants, or as promissory notes have been declared to be by statute. The transfer of the receipt “ by delivery, with or without endorsement thereof,” transfers no more than the property in the goods; it does not transfer the contract. This is so by the very language of the enactment, which is that “ any person to whom the same may be so transferred, shall be deemed and taken to be the owner of the goods, wares and merchandize therein specified, so far as to give validity to any pledge, lien, or transfer made, or created, by such person or persons.”
This language very clearly points out the extent and quality of negotiability which the instrument has by the statute, the object of which was, as is shown in Rice v. Cutler, 17 Wis., 358, to obviate the inconveniences which resulted from the rule that
The delivery of the receipt may operate to transfer and vest the title of the goods, or create a valid lien or pledge, where before it would not; hut in all other respects the nature of the instrument is untouched; and when the words not negotiable ” are employed in the statute, they necessarily refer, as it seems to us, to that kind of negotiability recognized and defined by the statute, and which is the very same the instrument possessed before the statute was enacted. The word “ negotiable ” is evidently not used in the sense in which it is used as
It follows that the plaintiffs in this case are not aided by the statute, and that a motion for a rehearing must be denied.
By the Court. — Motion denied.
