Jacob Dold Packing Co. v. G. Ober & Sons Co.

71 Md. 155 | Md. | 1889

Irving, J.,

delivered the ojoinion of the Court.

The facts of this case are settled by an agreed statement of them, upon which the lower Court heard and decided the case without the intervention of a jury. This appeal grows out of qn attachment suit instituted by James Hough Cottman vs. Sigmund Kapy, a non-resident of the State. The property attached was certain tankage to which both appellant and appellee interposed a claim. The Court below decided the property attached was not the property of the defendant in the suit, 'but was the property of the appellee. The appellant contends that the Court erred in .rejecting certain prayers offered on its behalf and in granting certain propositions of law submitted by the appellee and in declaring certain legal propositions of its own motion. The controversy in this Court is entirely between the claimants of the property attached, and neither the plaintiff below no'r the garnishee are represented in this Court, neither of them having appealed.

Cottman, the plaintiff, in the summer of 1888, agreed to huy of Sigmund Kapy, of Kansas City, certain tank-age, including that made by the appellant. In the latter part of September, 1888, Kapy telegraphed to Cottman that he was ready to ship four car loads of tankage. Cottman immediately sold this tankage to G. Ober & Sons Co. the appellee, and instructed Kapy to “ship” the tank-age direct to G. Ober & Sons Co. Kapy bought the tank-age of J. Dold & Son, who, according to directions, forwarded the same to G. Ober & Sons Co., Baltimore, by the Chicago, Rock Island and Pacific Railroad, from which it was transferred to the Baltimore and Ohio Railroad, and was brought to its destination, Baltimore. Kapy Avas given a receipted invoice and bills of lading. Before the bills of lading had been forwarded by Kapy to Ober & Sons Co., it Avas discovered that some of Kapy’s checks for the tankage Avere dishonored and were not paid, and Kapy had been arrested for forging bills of lading. Thereupon the appellant, which is a corporation, successor to and assignee of Dold &S011, induced Kapy to assign the bills of lading to it in part payment of his indebtedness to Dold & Son. Having secured this transfer, appellant telegraphed G. Ober &Sons Co. that they could have the tankage if they Avould honor a draft on them for the price. This Avas declined, and the goods were claimed as theirs by purchase from Cottman. Cottman had made large remittances to and acceptances of drafts from Kapy, and, discovering that he had been paying on forged bills of lading, he attached this tankage as soon as it arrived in Baltimore. The Court ruled that the tankage had passed away from Kapy, and was not his to be the subject of attachment, and no appeal was taken on behalf of the plaintiff in the attachment; so that the question is, does it belong to appellant or appellee ?

• The statute of this State, 1816, ch. 262, sec. 1, makes hills of lading negotiable so as to pass title to the property mentioned in them, to the same extent as promissory notes. The closing words of the statute are that the title to the property mentioned therein, “shall inure to and be vested in each and every bona fide holder thereof for value, altogether unaffected by any rights or equities whatsoever of or between the original or any prior holders of or parties to the same, of which such bona fide holder for value shall .not have had actual notice at the time he became such.’’ -

The appellee contends that the appellant had such information as put him on inquiry, and was equivalent to actual notice, and the learned Judge of the Superior Court sustained this view, and so ruled. A majority of the Court think that ruling was right.

The bills of lading issued by the railroad by the direction of Jacob Dold & Son had three columns. The first was headed, “Marks and Consignees;” the second “Articles;” and the third was marked “Actual Weights.” In the column headed “Marks and Consignees” these entries appear: “Account and order Jacob Dold & Son. To order S. Kapy & Co. Notify Gr. Ober & Sons Co., Locust Point, Baltimore, Md. ” The goods were therefore consigned by his direction to Gr. Ober & Sons Co.; and Dold & Son knew they had some interest in the goods. What that interest was, if he did not already really know, Dold could have ascertained by asking Kapy. That he did know by enquiry from Kapy, or so suppose from the'order to send to Gr. Ober & Sons Co., is evident from the fact that after getting the bills of lading transferred to himself, Dold telegraphed Ober & Sons Co., that they could have the goods, if they would honor a draft for the price of the goods. This telegram clearly shows that Dold &• Son thought the tankage was really for Ober & Sons Co, who were notable fertilizer manufacturers, and most likely so known to Tbe by Dold & Son. It is true, this occurred after the transfer of the bills of lading to Dold & Son, and it does not appear that the information which led to this telegram was acquired before or at the time of the transfer of the bills of lading, but if he had not the knowledge then he could have had it before the transfer; and if he had enquired he would have gotten the knowledge, and would have been told of the sale to Oottman, and by him to Ober & Company, and the direction to ship to Ober & Co. direct, and to send papers to him, Oottman. He would have learned also of the sale-notes which were sent to Kaq>y & Co. by Oottman. It appearing that he had enough to put him on enquiry with respect to the interest Ober & Co. had in the goods, it needs no citation of authority that such notice was equivalent to actual knowledge; and if he did not follow up the enquiry and learn all about the transaction it was his own fault, and he has no right to complain.

(Decided 12th June, 1889.)

It follows from what we have said that the rulings of the lower Court appealed from must be affirmed. This is the view of the majority of the Court, but Judges Alvky, Bryan, and the writer of this opinion, do not think that the appellant had such notice of the appellee’s claim or interest as rendered the transfer of the bills of lading ineffectual to pass the property to the appellant.

Judgment affirmed.