Hathaway v. Haynes
124 Mass. 311
Mass.
1878
Check Treatment
Lord, J.

This case does not involve the question so elaborately discussed in National Bank of Commerce v. Merchants' National Bank, 91 U. S. 92, whether the acceptor of a bill of exchange or draft, to which an indorsed bill of lading is attached, has the right of a simultaneous delivery of the bill of lading, as a condition of his acceptance of the draft or bill. For in this case the draft was protested, undoubtedly, for its non-acceptance by *313the drawee, and not for the reason that the bill of lading accompanying it was refused to him. The draft thus protested for non-acceptance was drawn by Haynes and discounted by the claimant bank. At the same time, the bill of lading consigning the goods to the drawee was indorsed in blank by Haynes & Co., attached to, and delivered with, the draft to the claimant bank. Such indorsement and delivery to one who advances money upon a draft has been so many times held to be a transfer of some interest in the goods shipped by such bill of lading, that a discussion of the subject is unnecessary. A leading case on this subject is De Wolf v. Gardner, 12 Cush. 19, which, though not identical in the form in which the property drawn against was secured to the holder of the bill, is in principle the same as in this case. In that case, the subject was considered by Chief Justice Shaw in his usual exhaustive manner, and the principle has been recognized in a great variety of cases, not only in this court, but in others. There can be no question that the assignment in blank of the bill of lading to the claimant bank, by reason of its discounting the draft, conveyed an interest in the property to the bank; and whether that interest was as security only that the bill should be accepted, or that it should be both accepted and paid, it is immaterial to inquire. The claimant bank, by the indorsement of the bill of lading, was entitled to hold it, and the property described in it, as against Haynes. The trustee is found in this case to be holding the proceeds of the property without right, and, though facts enough are not disclosed to show whether he would be liable, to any one in tort for the conversion of the property, yet, if so, the true owner might waive the tort, and claim the proceeds in an action of contract. As between Haynes and the claimant bank, the latter is the true owner. Exceptions overruled.