62 Mo. App. 531 | Mo. Ct. App. | 1895
This is an action for damages for failure to deliver three car loads of corn and two of flax, in pursuance of bills of lading held by plaintiff. The cause was tried by the court sitting as a jury, resulting in a finding and judgment for plaintiff in the sum of $1,443.21, and defendant appealed.
The facts giving rise to the controversy are substantially as follows: Prior to October 28, 1891, the Currier Commission Company was engaged in the-grain and commission business m Kansas City, Missouri. It did its banking business with the plaintiff, and had done so for several years prior to its failure. The commission company, not having sufficient funds, of its own to carry on the business to its satisfaction,, arranged with the plaintiff for accomodations, which were represented by notes for a fixed amount, and by an overdraft for an additional amount, that would vary from day to day. An agreement had been made between the plaintiff and the commission company, as a part of the arrangement, for credit, by which the amount of the latter’s indebtedness to the bank should be kept constantly secured, by a pledge of original shipper’s bills of lading and 'elevator receipts. The agreement also provided that the collateral should be subject to change, by withdrawing such original shipper’s order bills of lading as the commission com
During the months of July, August and September, 1891, one Follansbee, a purchasing agent of the Currier Commission Company, shipped at different times, from Burlington, Kansas, and over defendant’s road, the three cars of corn and two car loads of flax seed. The former were consigned to Kansas City, “shipper’s order” with instructions to notify Currier Commission Company, Kansas City, and the latter were consigned to Chicago, “shipper’s order, notify Currier Commission Company,” and so the bills of lading were made out to “shipper’s order, notify Currier Commission Company.”
In payment Follansbee drew his drafts on the Currier Commission Company, and attached to each draft the proper bill of lading. When such drafts and bills of lading made their appearance in Kansas City, the Currier Commission Company paid such drafts by its checks on the Midland Bank, and took up the bills of lading. Plaintiff’s evidence tends to prove that the
It seems undisputed that, when these five car loads •of grain and seed arrived at Kansas City, the defendant company delivered the same to the Currier Company, •or, which was, in effect, the same, at Currier’s request, rebilled same to other points; and this, too, without the production, surrender, or cancellation of the original shipper’s order bills of lading. On the twenty-eighth day of October, 1891, the Currier Commission Company failed in business, and, at the time, owed the plaintiff bank in excess of the collaterals. Thereupon the plaintiff demanded the grain and -seed called for by the bills of lading. The defendant was unable, of course, to produce it, because already delivered to the commission company. This suit was then brought,with the result before stated.
The declarations of law given by the trial court, when considered in the light of the judgment rendered, clearly indicate what were the facts found. For, by instruction number 4, the court declared the law to be: “That if it appear from the evidence that the defendant received at Burlington, Kansas, from E. E. Follansbee, the grain and, flax mentioned in the bills of lading read in evidence, and the defendant thereupon executed and
And further, by defendant’s instruction number 14, the court declared the law to be: 1‘That if the court believes from the evidence that the bills of lading mentioned in the petition were delivered to the Currier ■Commission Company, at the direction and on the written order of the shipper, Follansbee, and that the said Currier Commission Company, while it was the holder of said hills of lading, directed.the defendant as to the places and manner of delivery of the car loads of ■corn mentioned in said bills of lading, respectively, and that defendant delivered the same in accordance with .said directions, and that said Currier Commission Company receipted to defendant therefor, and that plaintiff, .after such delivery and receipt, obtained possession of said bills of lading respectively, then your finding must be for defendant.”
Since, now, under these instructions, the court entered its judgment for the plaintiff, we must assume that it found that the bills of lading, so made by the ■defendant to the order of the shipper, Follansbee, were indorsed by said shipper and delivered to the Currier
On this state of facts it is difficult to understand on what theory the defendant can hope to defeat this-action. Much of the argument of defendant’s counsel is made on facts different from those found by the-court. After a careful reading and consideration of the entire evidence, we find not only ample to sustain the-court’s finding, but fail to discover any reason to-question its correctness.
When Eollansbee, the shipper, indorsed and delivered the bills of lading to the Currier Company, it. became the owner thereof, with full power of disposition; and, while so the owner, it had the absolute right, by the transfer of these bills of lading, to convey its-title to the plaintiff bank. And this was done; the delivery of the bills of lading to the bank effected a pledge-of the property, to the same extent and with the same-validity as if it had been actually delivered. The bills of lading were symbols of the grain — represented it — ■ and their transfer by delivery stood as an actual change-in the possession of the grain itself. The plaintiff bank held the property as collateral security for the advances-made to the Currier Company; and so far as it was necessary to the holder’s self-protection, plaintiff had the-legal title-and was vested with all the rights and remedies of a purchaser for value. Porter on Bills of Lading, sec. 510. et seq., Hutch, on Carriers, sec. 129; Dymock v. Railroad, 54 Mo. App. 400.
The case of Skilling v. Bollman, 73 Mo. 665, cited and relied on by counsel, fails to save the defense here. There a distilling company at Beardstown, Illinois, consigned two hundred barrels of high wines to St. Louis, taking triplicate shipper’s order bills of lading-therefor. The secretary of the distilling company attached one of these bills of lading to a draft of $7,000' on the consignee at St. Louis, and deposited the same with the plaintiff bankers at Beardstown, as collateral security for a pre-existing indebtedness. About the same time (and whether before or after the delivery of the bill of lading to the plaintiff was not clear) an officer of the distilling company appeared at St. Louis and took charge of and sold the liquors to the defendant. The contest arose then between the plaintiff, the holder of the bill of lading, and the defendant, the purchaser at St. Louis, as to who had the better title to the goods. The supreme court held that the controlling question was whether the delivery of the bill of lading to plaintiffs, or the sale to defendants, was prior in point of' time. After discussing the law as to the effect of transferring the bill of lading — whether in the way of an absolute purchase or as collateral security for a present- or a pre-existent debt — Judge Henry-uses this language : “If, therefore, the delivery of the bill of ladingto plaintiffs occurred before the sale to the defendants, it makes no difference that it was for a pre-existing debt, or whether it was an absolute sale of the goods, or intended as a collateral security for the debt. On the other hand,
Treating, now, the defendant railroad with the same consideration as was awarded to the St. Louis purchaser in the Bollman case, and yet the plaintiff in the case at bar is clearly entitled to recover, if we concede the fact, as found by the trial judge, that said bank acquired the bills of lading prior to the delivery ■of the goods to the Currier Company, Judge Biggs in Alabama Nat’l Bank v. Railroad, 42 Mo. App. 284, thus correctly states the rule: “If the carrier delivers the goods even to the original owner (when he is the consignee), orto the consignee himself, without the surrender of the bill of lading, it takes upon itself the risk of the previous transfer of the bill of lading to some innocent party.”
The further objection that some or all of these bills of lading were delivered to the plaintiff without the written indorsement of the Currier Company, is of no consequence. A delivery of a bill of lading without indorsement, for value, transfers the property in the goods it covers. Davenport Nat’l Bank v. Homeyer, 45 Mo. 145.
The judgment, therefore, will be affirmed.