63 Md. 179 | Md. | 1885
delivered the opinion of the Court.
The appellee being a commission merchant in Baltimore, between the month of August, 1881, and the month of January, 1882, received consignments of flour from Oliver Merion, of Minneapolis, Minnesota, for sale upon commission. Upon the 21st of January, 1882, Merion shipped to Corner & Co., without order, a car-load of' “ Champion ” flour, being one hundred and twenty-five barrels, by Milwaukee and St. Paul Railroad and Baltimore and Ohio Railroad via Chicago. On the same day he wrote Corner & Co. advising of this shipment, and naming a price at which Corner, his factor, should sell the same. No hill of lading was sent to Corner & Co.; hut at the time of the shipment a shipping receipt was taken from the railroad for the flour, and that with a draft on Corner & Co. for five hundred dollars was placed in hank for transmission to Baltimore, hut was subsequently withdrawn, and was never sent. Subsequent to the shipment to Corner & Co., Merion received an order for flour from Conrad Ruhl & Son of Baltimore, and decided to change the shipment and to send to Ruhl & Son this car of flour on their order. Accordingly, on the 24th of January, 1882, the
Corner says in the testimony he sold the flour on the 9th of February, although on the 27th of February he wrote Merion he had received no offers, and does not apprise him of a sale until the 4th of March.
The bill of lading, though issued on the 30th of January, was dated back to the 21st of January to correspond with the actual shipment. This hill of lading in favor of Ruhl & Son, with draft on them for $615, was presented by Merion to the Security Bank of Minnesota, and the
Upon this state of facts the question arises, who was entitled to this flour — the appellants, or the appellee ? It is conceded that no bill of lading or invoice was ever sent to or received by Corner; whereas it is equally well established and not denied, that Ruhl & Son did receive a hill of lading, and did pay a draft on them for $615 on it.
The appellants insist, that although the flour was originally shipped to Corner & Co., it was so shipped without their order, and that afterwards, and while it was in the power of the shipper to do so, the consignment was changed, and the flour was sold to Ruhl & Sons, to whom a bill of lading and draft were sent, and who paid therefor. They claim that title never passed from Merion to Corner & Co., hut that it did pass to Ruhl & Son. The appellants further and strongly relied on the Act of 1816, chap. 262, in respect to bills of lading, and the effect of the possession of such bills of lading upon title. But the decision of this case does not involve any consideration by the Court of the effect of the Act of lS^, of what construction shall be given it; for there are .well settled principles established and acted upon in very many cases, which will control the decision of this case irrespective of any Act of Assembly.
It is the well-settled law, that the delivery of goods to a common carrier for one who has purchased and who has ordered them, is a delivery to the purchaser, though it does not amount to an acceptance of them. 1 Benjamin
The same principles are declared in Grosvenor & Starr vs. Phillips, 2 Hill, (N. Y.,) 147, and in Bank of Rochester vs. Jones, 4 Comstock, 500. In Bonner, et al. vs. Marsh, et al., 10 Sm. & Mar., 376; Chaffer vs. Miss. R. R., 59 Miss., 185; Woodruff vs. Nashville and Chattanooga R. R. Co., 2 Head, 87, and several other Tennessee cases, the law is laid down more stringently, as against the factor, than the weight of authority justifies. There can he no doubt, upon the weight of authority, that if the factor have claims
If the present case by the proof, measured up in its facts to these last considered cases we should think the
The Court below erred in granting the, defendant’s prayer. It is entirely at variance with the law of the
The question raised by the first bill of exception needs no discussion. The proof tendered was wholly immaterial, and without bearing upon the issue. The previous admission of irrelevant testimony, without objection, did not render its rebuttal competent. There was, therefore, no error in its rejection.
The objection which has been raised by the appellee’s counsel, that the first and second bills of exception are not sufficiently connected, by apt language, to entitle the Court to look at the evidence in the first bill of exception, for the purpose of determining upon the correctness of the Court’s rulings upon the instructions, cannot be maintained. All the evidence was in, and the prayers were not intended to be mere abstractions. They were offered with reference to the proof, as their form shows. The most appropriate
Judgment reversed, and new trial awarded.