10 Ga. App. 157 | Ga. Ct. App. | 1911
(After stating the foregoing facts.) It is well settled that to support a recovery in an action of trover the plaintiff must show either title in himself, prior possession, or right of possession. Mitchell v. Georgia & Alabama Ry., 111 Ga. 760 (36 S. E. 971, 51 L. R. A. 622). In this case the plaintiffs rely upon title to the shipment in question. They contend that the payment of the deposit of $10 and the delivery of the goods to the carrier operated to fix this title in them; that the contract of sale was fully executed and was not in any sense executory; and that the railroad company held possession of the goods as their agent and not as the agent of the consignor.
Unquestionably it is a general rule that delivery to the carrier of goods purchased is delivery to the consignee; but this general
Section 4134 of the Civil Code (1910) provides that in such case no title passes until the drawee pays the draft thus drawn upon him. “When a bill of lading is attached to a draft drawn on a third person, it will be treated as security for the draft, and neither title to the goods, nor right to the bill of lading, will pass to the drawee until, as required therein, he accepts, or accepts and secures, or pays the draft, as the case may be. ” When the Johnson Manufacturing Company consigned the shipment to itself, with order to “notify Strozier & Waters,” this was equivalent to a positive statement that it did not intend to part either with the title to the shipment or the possession thereof until this draft was paid.
'The case of Erwin v. Harris, 87 Ga. 335 (13 S. E. 513), seems to us controlling on this point. In that case a sale of oats was offered by a party in Texas to the vendee in Georgia. The vendee replied, offering to take five car-loads f. o. b. at a Texas point, and the offer was accepted. The vendor shipped the oats, sending a draft for collection, with the bill of lading attached, 'and the vendee claimed title. The court ruled as follows: “The general rule is that when one orders goods from a distant place to be shipped by a common carrier, and the order is accepted and the goods shipped, a delivery to the common carrier is a delivery to the purchaser, the common carrier being the agent of the purchaser to receive them; and, when this is done, the title, without more, passes from the vendor to the vendee.” Now note the exception: “If, however, the vendor of the goods is not satisfied of the solvency of the purchaser, or is doubtful thereof, or wishes to retain the title in himself, he may vary this rule, when he makes the consignment and delivers the goods to the carrier, by taking a bill of lading from the carrier to his own order. When the vendor does this, it is evidence that he does not part with the title of the goods shipped, but retains the same until the draft which he sends with the bill of lading is accepted or paid; and, when the title is thus reserved in the vendor or consignor, the carrier is his agent and not the agent of the consignee, and the risk is the consignor’s and not the
We might rest the decision of the case here, since by the authorities cited applicable to the facts, which are not in dispute, the plaintiffs in the court below not only failed to show any title in themselves to the shipment, but expressly showed that the vendor, Johnson Manufacturing Company, had reserved title in itself until the draft was paid. The carrier had knowledge of the method of shipment. It had' the absolute right to refuse to deliver the ship
We conclude, therefore, that the trial court erred in not award-; ing a nonsuit, and that the judgment against the defendant was-unauthorized. Judgment reversed.