Winslow v. Norton

| Me. | Apr 15, 1849

Howard, J.

The property, which is the subject of contest in this suit, was shipped by Carroll, at New York, for Portland, January 10, 1848, and consigned to Robinson, or his assigns; and a bill of lading, in the usual form, with a draft on Robinson for the amount, payable at sight, were transmitted at the same time. Robinson received the bill of lading, and accepted the draft, and not being prepared to pay it, indorsed and delivered the bill of lading to the plaintiff, upon the verbal promise of his agent, N. Winslow, to pay it. The draft was paid on that, or the following day, by the agent, for the plaintiff, from the funds of the latter, and several days before the arrival of the vessel, in which the property was shipped.

The agent testified that he made frequent inquiries for the vessel; that he was on the lookout for her, and having heard, about noon, of her arrival one day, he called on the master, for the property, and was then informed that it was attached by a creditor of Robinson. The defendant was the attaching officer, and defends this suit for such creditor.

Bills of lading are transferable by indorsement, according to well settled principles of commercial law; and when thus transferred by a consignee, whether buyer or factor, or the mere agent for the owner, to a bona fide purchaser, for a good consideration, without notice of adverse claims, they pass the legal title of the property to the indorsee.

The indorsement of the bill of lading, by Robinson, appearing to have been bona fide, and for a valuable consideration, operated as a sale and transfer of the property, then at sea, to the plaintiff. Abbott on Shipping, 381, 382; Walley v. Montgomery, 3 East, 585; Cuming v. Brown, 9 East, 506; Evans v. Marlett, 1 Ld. Raym. 271; Newcomb v. Thornton, 6 East, 22, (Day’s Edition) note, opinion of Btjlleii, J. in Lickbarrow v. Mason, before the House of Lords; Conard v. Atlantic Ins. Co. 1 Peters, 445; 2 Kent’s Com. 548, 549; Gardner v. Howland, 2 Pick. 599; Peters v. Ballistier & al. 3 Pick. 495; Lanfear v. Sumner, 17 Mass. 112.

But the agent of the plaintiff being on the lookout, took possession of the property, as soon as its arrival was known to him; or was prevented in effecting actual possession, by the interference of the defendant. No laches can be imputed to the plaintiff, in this respect, by which the sale to him can be defeated. Joy v. Sears, 9 Pick. 4; Turner v. Coolidge, 2 Metc. 350; Brinley & al. v. Spring, 7 Greenl. 241; D’Wolf v. Harris, 5 Mason, 515.

After the assignment of the bill of lading, Robinson ceased to have any interest in the property, either as consignee, or owner. The attachment, therefore, was inoperative, and the defendant a mere stranger.

Objection was made to the competency of N. Winslow, as a witness for the plaintiff; but this objection was fully obviated by the plaintiff’s release at the trial. Greenl. Ev. <§> 416.

The nature and extent of N. Winslow’s agency for the plaintiff, although disputed by the defendant, is not now properly in controversy. It is sufficient for the disposition of this case, and for these parties, that the plaintiff recognized, ratified and adopted his acts as agent, in purchasing the property, and in commencing and prosecuting this suit to recover it.

Upon the law of the case, and the evidence submitted to us, the defendant must be defaulted, and the plaintiff must have judgment for the value of the property claimed, when converted, deducting freight, with interest since that time.