3 Keyes 572 | NY | 1867
On the 18th of September, 1860, one A. 1. Griffin, of Buffalo, purchased of the defendant a quantity of white corn. The defendant had the corn on storage at the Hatch elevator. He gave Griffin an order for the corn in these words:
*573 “ Buffalo, September 18, 1860.
“ Hatch Elevator,
“ Deliver A. L. Griffin, Esq., or order 4,328 47-100 bushels white corn, cargo Potomac, subject to my order until paid for. • Johh G. Deshlee.”
The corn was delivered to Griffin on production of this order, and he, Griffin, shipped the corn on the 18th of September on board a canal-boat at Buffalo, and received the following bill of lading:
“ Buffalo, September 19, 1860.
“Shipped in good order by A. L. Griffin, on board of canal-boat L. B. Trowbridge, B. T. Co. Line.
Master.
“The following articles to be carried under deck and delivered in like good order as addressed, without delay, towing day and night, damage and deficiency to be deducted from charges by consignors.
“ Account A. L. Griffin, or order, 4328 47-100 bushels of white corn.
“ Care of Rawls & Seymour,. New York.
“ Freight to New York 14J¿ cents per bushel, free of lighterage. Consignees paying towing.
“JAMES VAN BUREN,
“ Entered September 21, 1860, S. Per Noble?
Indorsed, “ A. L. GEiFFnsr.”
It appeared that Van Burén had an office in Buffalo and carried on business there under the name of The Buffalo Transportation company. That Van Burén was a public carrier and had a regular line and had an interest in some of the boats, he was what they call a scalper, he gets a cargo from the owner, and gets a boat to take it and receives- a commission from the boats. That Noble was the agent of the company and had authority to sign the bill of lading. On the 19th of September, 1860, Griffin advised the plaintiffs of the shipment of corn to them, and that he had drawn on them for the corn. This letter the plaintiffs received in
The plaintiffs now bring this action, claiming to be the. bona fide owners of said corn, to recover the value thereof. On the trial in the Buffalo Supreme Court, the jury were directed by the judge to render a verdict for the plaintiffs, and judgment thereon was affirmed at the General Term.
It may be conceded that as between Griffin and the defend-' ant the title to the corn did not pass to Griffin, until the same was paid for. Notwithstanding this, the defendant intrusted . Griffin with the possession and. control of the property. There is some evidence tending to show that the sale was in fact a sale , upon credit, and that both parties understood that the money to pay the purchase-price was to be raised by a shipment of the corn by Griffin, and the discount of a draft drawn on the faith of the bill of lading thereof. The defendant himself testified on the trial: “ It happens very often on the dock that purchasers buy grain and get the bill of lading and raise money on fit to pay the purchase-price; that witness knew ¡M¡r. Griffin did that business.” Taking the most
It is difficult to withdraw this case from the doctrine of Hollingsworth v. Napier (3 Caines, 182), and the leading and controlling facts in each are nearly identical. Hapier sold to one Kinworthy from whom the plaintiff derived title, ten bales of cotton, under the following circumstances:
The cotton was lying in the public store at the quarantine ground at Staten Island, and the defendant sold it to Kin-worthy in the city of Hew York, “for cash payable on delimery.” Defendant made out a bill of parcels for the cotton, marked in the margin “ cash,” but containing no receipt for the money. This, together with an order on the storekeeper for the cotton, had, either by the defendant or his clerks, been delivered to Kinworthy. He, without either paying for the articles or having taken possession of them,
The principles settled in the case of The Bank of Rochester v. Jones (4 Comst. 497), would seem to be decisive of the present case. In July, 1843, Foster applied to the bank to ■ borrow $950 for the purpose of buying 200 barrels of flour of W. Ely. The cashier refused to make the loan without security. Foster proposed to procure the forwarder’s receipt for the 200 barrels of flour to be purchased with the money received from the bank on the loan, and to leave such receipts with the bank as security for the acceptance of the draft to be drawn on the defendant. Foster delivered the draft and the forwarder’s receipt to the cashier, and the bank discounted the draft. The bank forwarded the draft with the receipt attached, to their collecting agent at Albany, to be presented to the drawee, Jones, for acceptance. Jones took off the receipt and refused to accept the draft. Jones received the flour and before the commencement of the suit the bank demanded the flour of Jones. The bank recovered; and the following proposition may be considered as settled by this court:
*577 1. The delivery of the carrier’s receipt to the bank was a symbolical delivery of the flour.
2. The delivery of the carrier’s receipt or bill of lading to the bank for a valuable consideration passed, to the bank the legal title to the same.
In the present case, the White bank had the legal title to this corn, and the plaintiff, by the acceptance and payment of the draft of "Griffin, and the delivery and transfer to them, of the bill of lading, succeeded to all the rights of the bank, and the legal title to the flour passed to them.
It is insisted, on the part of the appellant, that the instrument produced was not properly a bill of lading, as it was not signed by the master of the boat.
In Dows v. Greene (32 Barb. 490), the bill of lading was signed by the agent of Hiles & Walker, who were partners dealing in produce, and agents of a transportation company and members thereof. Bloss obtained the bill of lading in good faith, who transmitted it to one Hack, who obtained from the plaintiffs in that action an advance upon the faith thereof. The Supreme Court held that the instrument under which the plaintiffs claim was a bill of lading. If not exactly formal it was substantially such. It did not detract from its force or validity that it purported to be the act of the owners of the goods and also of the carrying vessel, instead of their agent, the master or captain. Hot only from its similarity to other bills of lading, has this been argued to possess the character of such a paper, but this very instrument has in several instances been adjudged to be a bill of lading. That question is, therefore, no longer open for discussion. (Citing Dows v. Perrin, 16 N. Y. 328; Dows v. Greene, 16 Barb. 92; Dows v. Rush, 28 id. 183; Bank of Rochester v. Jones, 4 Comst. 497, to which may be added Dows v. Greene, 24 N. Y. 638.)
In this connection the remarks of Baron Park in Bryan, v. Mix (4 Mees. & Welsb. 789), are apposite and conclusive. He says: “ The true question is, what is the meaning and effect of the two • documents by whatever name they are called, coupled with the letter from Tempany of the 2d of
It seems to me that the principles settled in the case of Davis v. Greene, and affirmed in this court, establish the plaintiffs’ right to. recover.
In Crocker v. Crocker (31 N. Y. 507), this court held that when a plaintiff, by his own voluntary act, has, through misplaced confidence, conferred the apparent right of property in bank stock upon a third party, a bona fide purchaser of such stock from such party will be protected against any secret trust in favor of the plaintiff. In that case, a learned judge of this court said: “ The plaintiff had, by his own
If there could be any doubt on this point, I am unable to see why the first section of the factors’ act does not meet this precise case. (Laws of 1830, chap. 179, p. 203.) It is as follows: “ Seo. 1. After this act shall take effect, every person in whose name any merchandise shall be shipped, shall be deemed the true owner, so far as to entitle the consignee of such merchandise to a lien thereon. First, for any money advanced or negotiable security given by such consignee, to or for the use of the person in whose name the shipment' shall have been made.” How, in the case at bar, all these requirements are combined.
2. The statute declares in such an event he, the shipper, is to he deemed the true owner of such merchandise.
3. These plaintiffs advanced the amount of this draft to and for the use of Griffin, in whose name the shipment was made, and they have, therefore, a lien upon such merchandise for the money so advanced.
These plaintiffs had no notice by the bill of lading or otherwise, at or before the said advance of money, .that the person in whose name the shipment was made, was not the actual and bona fide owner of said merchandise.
That lien was not divested or impaired by the action of the defendant in taking the corn from the canal-boat, by the instrumentality of an action of replevin, or by the proceedings in that action. They were res inter alios acta, and not affecting the rights of these plaintiffs.
The judgment of the Superior Court of Buffalo was correct, and should be affirmed with costs.
All concur.
Judgment affirmed.