119 Tenn. 729 | Tenn. | 1907
delivered the opinion of the Court.
This is a replevin bill, brought by the complainant bank to recover the possession of two cars of rye which had been attached as the property of the Young & Eresch Grain Company, a partnership of St. Louis, Mo. The grain in suit had been sold by the grain company to the Chattanooga Feed Company and T. H. Cheek & Co., of Chattanooga. This grain was attached on its arrival in Chattanooga by the firm of T. H. Cheek & Co. to satisfy an alleged indebtedness against said nonresident grain company. The Third National Bank of St. Louis, Mo., is asserting its right to the possession of said rye as purchaser of sight drafts drawn by the grain company, to which bills of lading were attached, against the vendee at Chattanooga.
T. H. Cheek & Co., the real party defendant to the bill, filed an answer and cross bill, averring:
“Defendant, on information and belief, denies that complainant purchased of the Young & .Fresch Grain Company two certain drafts dated August 24, 1903, one for |570, drawn on the Chattanooga Feed Company, the other for $573, drawn on T. H. Cheek & Co., but admits that such drafts were drawn, with bills of lading attached, calling for two cars of rye referred to in the first paragraph of complainant’s bill; but defendant avers and charges, on information and belief, that said drafts, with bills of lading, were simply discounted by said complainant bank to accommodate its customer, the*732 said Young & Fresch Grain Company, and that said bank is not a tona, -fide purchaser of the drafts, but that the said Young & Fresch Grain Company, a customer and depositor of said bank, is the real party in interest, and is responsible for backing the lawsuit of complainant, and employed and paid counsel in the cause, and indemnified complainant, who is only a nominal party, and not the real owner of the drafts. It admits that the drafts were forwarded through the mail to Chattanooga for collection, and avers that complainant bank acted as collection agent of said Young & Fresch Grain Company to said defendant, who had instituted the two suits herein referred to, attempting to collect said indebtedness, and attached the grain as the property of said firm on account of said indebtedness, which will more fully hereinafter appear. Defendant denies that complainant is entitled to or ought to have possession of the rye, and does not know whether the two cars were reasonably worth $1,143, or less, but denies that complainant has either title or lawful rights of possession.”
Cheek & Co. then proceeded by the cross bill to set up a claim for damage against the Young & Fresch Grain Company arising out of the purchase óf six car loads of corn in May, 1903, and seeking to subject the two car loads of rye attached herein to the satisfaction of said claim for damages. Proof was taken, and on the final hearing the chancellor, being of opinion that conrplainant bank was not entitled to the possession
(1) In dismissing complainant’s bill, and in failing to decree the right of possession to tbe property replevined to be in complainant bank.
(2) In decreeing that cross-complainants were entitled to tbe proceeds of tbe two cars of rye replevined herein.
Tbe facts disclosed in tbe record are that tbe Young & Frescb Grain Company, of St. Louis, Mo., consigned to their own order at Chattanooga, Tenn., two car loads of rye, Avith instructions to tbe carrier to notify tbe proposed purchasers, tbe Chattanooga Feed Company as to one car, and tbe said T. H. Cbeek & Co. as to tbe other, as shown by the respective bills of lading issued by tbe carrier. Tbe grain company drew sight drafts against this rye in favor of tbe Third National Bank of St. Louis, Mo., and attached thereto tbe bills of lading for tbe consignment of rye. These drafts were purchased by tbe complainant bank, and said grain company was given credit therefor by the bank, and checked against that credit in tbe regular way. According to the weight of tbe testimony, there was a straight purchase of these drafts by tbe bank; the drawers thereof
The question of law arising on the record is in respect of the superiority of the respective claims to the rye or its proceeds, propounded by complainant bank on the one side and the attaching creditor of the grain company on the other. It is. said on behalf of Cheek & Co. that “the title to goods does not pass to the purchasers on their delivery on board cars, where the seller consigns them to his own order at the place of final delivery.”
It is said the grain company both reserved and exercised the jus disponendi over said rye, and that at the time it was attached it was the property of the nonresident grain company, and therefore subject to be impounded for the satisfaction of an indebtedness due Cheek & Co.
It is said on behalf of the defendant that the discount of said drafts at St. Louis created no lien on the shipment of rye, and that complainant bank was simply a creditor at St. Louis of the grain company, with no rights superior to Cheek, who was a creditor at Chattanooga. The argument is that the property in the
In this contention we do not concur. In 6 Cyc., p. 426, it is said: “If the bill of lading is accompanied by draft on the consignee, and there is some reservation in the bill of lading of jus disponendi, the consignee does not become entitled to the possession of the goods until he accepts or pays the drafts in accordance with the terms imposed by the shipper; and an intermediate party, such as a banker purchasing the draft accompanied with the bill of lading, has a right to the goods as security until the consignee accepts or pays as the case may be. Such a transaction passes to the transferee of the draft and bill of lading a special title in the goods, and he has a better right thereto than one claiming under a prior or subsequent agreement with the shipper, but without having obtained actual or constructive possession of the goods.”
In 4 American & English Encyclopedia of Law (2d Ed.), p. 548, it is said: “Where the consignor draws upon his consignee for the purchase money, and the draft, with bill of lading attached, is indorsed or transferred to some one who discounts the bill of exchange, a special property in the goods thereby passes to the
Again it is said: “While tbe transfer of bills of lading may pass title to tbe goods, unless tbe common law bas been modified by statute, these instruments are not negotiable in tbe sense in which tbe term is applied to bills and notes and other negotiable instruments of a like character. Although it bas sometimes been said that a bill of lading is negotiable, nothing more is meant by this than that tbe transfer of tbe bill of lading passes to tbe transferee tbe title of tbe transferer to the goods described therein.” Id., p. 549; Thompson v. Dominy, 14 M. & W., 403; Baltimore R. R. Co. v. Wilkens, 44 Md., 11, 22 Am. Rep., 26; Douglas v. People’s Bank, 86 Ky., 176, 5 S. W., 420, 9 Am. St. Rep., 276.
Again, in 22 Am. & Eng. Encyc. of Law (2d Ed.), p. 858, it is said: “The property represented by tbe bill of lading may be pledged by tbe delivery of tbe bill of lading, because an assignment of sucb instrument gives to tbe assignee tbe means of obtaining possession. In the law of pledges, nothing is better settled than that the pledgee bas a right to -the possession of the property pledged until tbe payment of tbe debt secured. His right of possession is exclusive, and it yields to no other right which did not before the making of the pledge attach to tbe property.” Means v. Ran
In Means v. Randall Bank, supra, it was said: “As to the four car loads named in the bill of lading, that instrument represented the cattle; and the transfer of the ownership, as well as of the right of possession, was made as effectually by the transfer of the bill as itwould have been by the physical delivery of the cattle.” Conard v. Atlantic Ins. Co., 1 Pet. (U. S.), 386, 485, 17 L. Ed., 189; Dows v. National Exchange Bank, 91 U. S., 618, 23 L. Ed., 214.
“When the bill of lading was transferred and delivered as collateral security, the rights of the pledgee under it were the same as those of an actual purchaser, so far as the exercise of those rights was necessary to protect the, holder.” Halsey v. Warden, 25 Kan., 128; Emery v. Bank, 25 Ohio St., 360, 18 Am. Rep., 299; Dows v. National Exch. Bank, 91 U. S., 618, 23 L. Ed., 214; Bank v. Homeyer, 45 Mo., 145, 100 Am. Dec., 363; Bank of Green Bay v. Dearborn, 115 Mass., 219, 15 Am. Rep., 92; Bank of Rochester v. Jones, 4 N. Y., 497, 55 Am. Dec., 290; Holmes v. German Security Bank, 87 Pa., 525.
“The bank which makes advances on a bill of lading has a lien to the extent of the advances on the property in the hands of the consignee, and can recover from him the proceeds of the property consigned, even though the
To the same effect are the Tennessee authorities. The delivery of the bill of lading is the symbolic delivery of the property which it represents. It was said in Cornick v. Richards, 3 Lea, 25: “Indorsement of a bill of lading is held a good delivery in performance of a contract of sale, so as to defeat any action by the buyer against the vendor for nondelivery of the goods” — citing 5 Wait’s Actions & Defenses, p. 578.
In Ochs et al. v. Price, 6 Heist., 487, it was said: “A transfer and delivery of a bill of lading vests the property in the transferee, being regarded in law as a constructive delivery of the property itself” — citing 1 Parsons on Contracts, 485; 2 Parsons on Contracts, 639; Curry v. Roulstone et al., 2 Overt, 110, Fed. Cas. No. 3, 497; Kirkman v. Bank of America, 2 Cold., 403.
As opposed to these authorities counsel for Cheek &
An analysis of these cases will show that they really enunciate principles that apply to a case of factorage, and not to a case where the bill of lading has been pledged as security for an indebtedness either antecedent or concurrent. The principles of law announced, so far as they apply to a case of factor, are unquestioned; but they are inapplicable to the case of a purchaser of a ne
This question was incidentally involved in the case of Lewis, Leonhardt & Co. v. Small, 117 Tenn., 155, 6 L. R. A. (N. S.), 887. The facts were that Lewis, Leon-hardt & Co., who resided at Knoxville, Tenn., contracted to buy from W. H. Small & Co., who resided at Evansville, Ind., ten car loads of No. 1 timothy hay at $15 per ton f. o. b. cars at Knoxville. W. H. Small & Co. shipped ten car loads of hay to Knoxville on bill of lading-issued to their own order. They drew sight drafts on Lewis, Leonhardt & Co., payable to themselves, and attached one of said bills of lading to each of said drafts. They sold all of said drafts to the Citizens’ National Bank of Evansville, Ind., for full value and in the due course of trade, and these drafts were sold in turn by said bank to the Fourth National Bank of Cincinnati, Ohio, and by it to the Mechanics’ National Bank of Knoxville, Tenn., for full value and in due course of trade. The Mechanics’ National Bank presented the drafts to Lewis, Leonhardt & Co. for acceptance and payment, and they accepted and paid them all, and the drafts were delivered to them. When Lewis, Leonhardt & Co. unloaded the hay, they discovered that it was not No. 1 timothy hay, and that it was worth $300 less than
“The theory of complainants, which Avas adopted by the lower courts, is that when the defendant banks purchased said drafts they became the owners of the hay and responsible for the performance of Small & Co.’s contract for its sale as to quality, quantity, and delivery, and are liable for damages to the purchaser for Small & Co.’s breach of the contract in any of said respects, although the drafts were negotiable and said banks are innocent purchasers thereof, and on presentation to the drawees, Lewis, Leonhardt & Co., they unconditionally accepted and paid the drafts.”
This court held this view erroneous, saying: “They proceed upon the incorrect theory that the bill of lading so vests the property in the indorsing banks that they are substituted to all the liabilities of the original drawer, and are the absolute OAvners of the property, while the true rule is that the indorsing banks, hold the bills of lading simply as collateral to secure the drafts drawn against them,’’ etc.
In the case last cited the purchasers of the drafts, of course, did not have actual possession of the property; but they did have its constructive possession by the assignment or transfer of the bill of lading, and, while they did not become purchasers of the property, they were pledgees of the property as collateral security for the payment of the drafts.
If the collection of drafts with bills of lading attached .could be defeated by the attachment of creditors after the purchase of the drafts, the commerce of the country would be seriously obstructed. As said in Leonhardt v. Small, supra:
“It is a fact of common knowledge that a large part of the commercial business of the country is carried on through the medium of drafts, and that the immense crops of the South and West are marketed under contracts to draw for the purchase price, with bills of lading attached. If the courts shall adopt the rule insisted upon by the complainants, it will result in destroying this convenient method of handling, moving, and paying for the crops of the country; for the banks will necessarily be compelled to refuse to buy drafts with bills of lading attached, or to handle them as collateral security or otherwise.”
It is said, however, on behalf of cross-complainants,
We are of opinion that defendants Cheek & Co. have failed to establish the averments of their answer and cross bill, and that upon the record complainant is entitled to recover the amount of the two drafts, with interest. The decree of the chancellor will therefore be reversed, and a decree entered here in accordance with this opinion. Defendants will pay the costs of the appeal.