183 Iowa 1046 | Iowa | 1918
I. We need not consider whether ‘ it would help the plaintiff if its allegation that the defendants colluded were proved. There is absolutely no evidence of any collusion or bad faith.
All the authorities agree that, if a shipment is to be delivered only upon the surrender of the bill of lading, and the carrier delivers without obtaining such bill, the shipper
What and who caused loss? It is only depriving one of property by ¡pi unauthorized act that constitutes conversion. Kreher v. Mason, 33 Mo. App. 297, citing Addison on Torts (0th Ed.), Section 525. To be sure, the bank has not paid the shipper. But does that malte the delivery of the bill of lading to the buyer an unauthorized act, in such sense as that the carrier who delivered without presentation of the < bill is responsible as for a conversion ? The damage is not due to the fact that the bill was not presented before the goods were turned over, but because the bill was turned over by the bank, and the bank did not pay the draft. The vital question is whether the shipper is in position to say that delivery of the bill by the bank to the buyer was, as to the carrier, an unauthorized act. The bank only was responsible to the shipper if it voluntarily gave up the bill of lading without collecting the purchase price. State Nat. Bank. v. Thomas Mfg. Co., 17 Tex. Civ. App. 214 (42 S. W. 1016). If the bank had been paid the actual cash by the buyer, the shipper could not claim anything of the carrier. But it was not thus paid. A large part of what the bank received from the buyer was the check of a third person, which both the depositor and the bank believed to be good. This check, later, went to protest. If the carrier is liable, it is because the bank accepted in payment a check which proved worthless. What the situation would be, had the carrier known that the bill was obtained by turning over said check therefor, we need not determine. It is not claimed it had any such knowledge. We think that, as between the carrier and the shipper, the transfer from the bank to the buyer gave the buyer title to the bill of lading; that the case is the same as if the bank had taken the note of the buyer, and the note’ had proved uncollectable.
The case stands precisely as if the buyer had deposited
We hold that the carrier has the contract acquittance. It did obtain the bill of lading. The person who surrendered it had title to it, even though the bank had a cause of action against the presenter because of nonpayment of the check deposited to pay the purchase price,- and though the shipper had a cause of action against the bank for its failure to remit the amount of the draft. We hold, also, that it is immaterial that the bill was not surrendered until after the shipment had been delivered, so long as it was surrendered at some time when the presentor had title to it; and that it is immaterial that, thereafter, the buyer obtained the bill from the carrier for some such purpose as showing it to the bank, and its physical possession was not thereafter restored to the carrier.
For the claim that the contract does not cover misde livery, it is said that misdelivery is a conversion, and that the contract does not cover conversions. It may be conceded that this position is supported by Merchants & Miners Transp. Co. v. Moore & Co., 124 Ga. 482 (52 S. E. 802); Cleveland, C. C. & St. L. R. Co., v. C. A. Potts & Co., 33 Ind. App. 564 (71 N. E. 685); and perhaps by other decisions. The reasoning in the Moore case indicates that a wilful act is referred to when speaking of conversion, and it may be doubted whether these cases have any application to' anything but where the delivery is knowingly made to the wrong person. Be that as it may, this was an interstate shipment, and the construction of this contract is a Federal question, upon which the pronouncement of the Supreme Court of the United States controls. See Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. Rep. 541). That case settles, not only that the construction of this provision is a Federal question, but also that it applies to misdeliveries. It is a case where delivery was made without payment of the draft and surrender of the bill of lading, though these were ultimately remitted to the shipper; and the
“It necessarily follows that the effect of the stipulation could not be escaped by the mere form of the action. The action is in trover, but, as the state court said, £If we look beyond its technical denomination, the scope and effect of the action is nothing more than that of an action for damages against the delivering carrier.’ ”
See also, as giving some support, Lee v. Coon Rapids Nat. Bank, 166 Iowa 242; and Richter & Sons v. American Exp. Co., 180 Iowa 1037.
3-a
Our conclusion is that the trial court erred in holding defendant railroad liable. The cause is remanded, with direction that, judgment be entered in favor of the defendant Chicago Great Western Railroad Company, as between it and the plaintiff. The motion to dismiss appeal, made by de