122 Mich. 223 | Mich. | 1899
The plaintiff is in the milling business, having its office and place of business at Cheboygan, this State. The First National Bank of Cheboygan does business there. The defendant does a banking business at Bay City. The plaintiff, at Cheboygan, on March 5, 1898, shipped a car load of wheat to Bay City, which had heen sold by it to J. N. McDonald & Son, of Bay City. Upon such shipment it received from the railroad company a bill of lading showing that the wheat was consigned to
“Cheboygan, Mich., March 7, 1898.
“Oii> 2d, Bay City.
“ Dear Sir: Inclosed as stated below for collection.
“Yours respectfully,
“A. W. Ramsay, Cashier.
“J. N. McDonald & Son. No P. $600. B. L. attached. Hold for arrival of goods, if necessary.”
The draft was dated March 5, 1898, made payable at sight, and indorsed by the Cheboygan Jiank: “Pay to Old Second National Bank, or order.” The bill of lading was in the usual form. In the body of the bill, under file-name of the consignee, was a statement to the railroad company: “Notify J. N. McDonald & Son, Bay City, Mich.” It described one car of wheat. No other information or direction was given to the defendant, and it appears 'that the defendant had no notice of the dealings between McArthur & Co. and J. N. McDonald & Son, except such as could be inferred from the papers above set-forth. The car load of wheat arrived in Bay City March 9th, and the railroad company, acting upon a waybill, which is a duplicate of the bill of lading, notified J. N. McDonald & Son of its arrival. The letter of instruction, draft, and bill of lading reached the defendant March 7th, and on that day.was presented to J. N. McDonald & Son; but, the wheat not having arrived then, nothing was done. On March 11th the bank presented the draft to J. N. McDonald & Son, who wrote their acceptance thereon, and the bill of lading was delivered to them by the defendant. They presented the bill of lading, with the indorsement in blank of McArthur & Co. thereon, to the railroad company, who immediately delivered to them the car load of wheat.- It appears that J. N. McDonald &; Son were in
It is the claim of defendant’s counsel that, under the: circumstances above stated, it was the duty of the defendant bank to deliver the bill of lading to the drawee upon acceptance of the draft. This claim is based upon the proposition that a sight draft is a time draft, as it is entitled to three days of grace, and that, the consignor having indorsed the bill of lading, and sent the same-forward with this time draft, with no instruction to hold the bill of lading until the draft was paid, such action conclusively negatives the presumption of intention to have the bill held until the. draft was paid. It is conceded that such presumption might arise from the fact that the shipment was made to the shipper as consignee, but it is urged that such presumption is conclusively rebutted by the above facts.
It is undoubtedly well settled that a sight draft is entitled to three days of grace. Story, Bills, § 342; 2 Edw. Bills & N. (3d Ed.) § 714; Cribbs v. Adams, 13 Gray, 597; Lucas v. Ladew, 28 Mo. 342; Thornburg v. Emmons, 23 W. Va. 334; Walsh v. Dart, 12 Wis. 635; Green v. Raymond Bros., 9 Neb. 295. It is also well settled that a blank indorsement upon a bill of lading is sufficient to pass the legal title to the goods, and that a delivery of goods by a common carrier to the consignee thereof is made at the peril of the carrier, unless, when made, the consignee surrenders the bill of lading either made to or indorsed to himself. Coleb. Coll. Sec. § 381; Hobart v. Littlefield, 13 R. I. 341; Gates v.
Counsel, however, contends that the case is no different than as though the wheat had been consigned to J. N. McDonald & Son. There is, however, this difference: In case the consignment had been made direct to J. N. McDonald & Son, and no directions given for the collection of the draft, no presumption would have arisen that it was intended as a cash transaction, and the title not to pass until payment; but, the property being consigned to the shipper himself, showing that something further was to be done, by him to pass the title, the presumption was that it was a cash transaction; and we think this presumption was not negatived by the fact that the draft was entitled to three days’ grace, and considered in law as a time draft. We are satisfied that the transaction did not import a sale of the goods upon credit. '
In Security Bank of Minnesota v. Luttgen, 29 Minn. 363, it appeared that a merchant, having received an order for goods from a foreign correspondent, shipped the goods by a common carrier, taking bills of lading, by the terms of which the goods were deliverable at their destination to the shipper or his order. The merchant then drew bills of exchange for the price of the goods on the
“ The taking of bills of lading making the goods deliverable to the order of the shipper, rather than to the person for whom they are ultimately destined, has been considered ‘ almost conclusive ’ proof of an intention on the part of the consignor to retain the jus disponendi, although subject to be rebutted;” citing Benj. Sales (3d Ed.), 382, 400; Dows v. National Exchange Bank, 91 U. S. 618; Farmers & Mechanics’ Nat. Bank v. Logan, 74 N. Y. 568; Seymour v. Newton, 105 Mass. 272; Jenkyns v. Brown, 14 Adol. & E. (N. S.) 496; Mason v. Railway Co., 31 U. C. Q. B. 73.
In the case of Bank v. Cummings, 89 Tenn. 609 (24 Am. St. Rep. 618), in an opinion written by Mr. Justice Lurton, it was held, upon a very similar state of facts as found in the Minnesota case, that, where bills of lading attached to time drafts left with a bank for collection are
Counsel for defendant cites many cases
The court very properly directed the verdict in favor of plaintiff. The judgment must be affirmed.
Viz.: Lanfear v. Blossman, 1 La. Ann. 148 (45 Am. Dec. 76); Moore v. Louisiana Nat. Bank, 44 La. Ann. 99 ( 32 Am. St. Rep. 332); Nat. Bank of Commerce v. Merchants’ Nat. Bank, 91 U. S. 92; Woolen v. Erie Bank, 12 Blatchf. 359; Marine Bank v. Wright, 48 N. Y. 1.