Our conclusion Is that the case of VatterUen v. Sneed. 441, was not correctly decided, and should not be adhered to as authority. It follows from the principles already announced that the'defendant's payment to Pollard & Co., the original payee of the note suedoDI made before its maturity, but a,fter the date of its indorsement and transfer,to the plaintllf as collateral security, constitutes no valid defense to the plaintiff's suit upon said note, although the defendant may have had no notice of such transfer at the time oftnakiilg such payment. It r.esults, therefore, that the judgment of the circuit court must be -reversed, and that the plaintllf have judgment here upon the note,with cost, of suit.
others "'. 'PHILBRICKo_
(Oircuit Gourt. 8. D; ;FlfJrirJ,a. December13,l886.)
OF LADING AlID·DBAM'-Loss. On March 16,1886, S. "Offer 2, cal'S sacked oats. Can ship next sj;eame,r. 40 cents, f. o. b.;' to wbich P. answered: received. ,Sh.iP as BioHas Possible,'.; if good and offex: f.'o.' b. Last car poor; short weig.ht.badly sacked." On JlIth, perstea;mer two car-loads oats to shIpper's ordet. and indorsed bIll of ladmg, "DelIver to order of B. H. & Co., .. and attached a sight'draft on P. for price and marine insurance· . ,;.B.H.& Co;.indorsed the bill ofladingto.a bank, and forwarded it with draft forcolle,ctlon. No bill of lading was forwarded to P" but S. wrote him of the shipment, and sent invoice and. certificates of weil?;hts.The oats arrived ,before hiding, of the steamer P. that were two car-loads of oats that he could have on presentuig mdorsed bIll ot lading. On 29th the bank received and presented to P. the bill of lading, and attached draft for coIlection, but the draft was not paid, and the bill of lading -was not· delivered. The· oats were put in the steaUl,ship warehouse. and h!l<d not pused, and ,the saUle· night. destroyed by ure. Held, that the . the loss must fallon So .
At Law. A88ilJmpmt. By the court without jury, by stipulation. W. a. Maloney, for plaintiffs. Bowne PatterSon, for defendant.
LoCKE, J. On the sixteenth. March, 18M, plaintiffs,. merchants of Galveston, telegraphed to defendant, at Key West: "Offer two cars sltcked Oats. .Can ship next steamer; 40 cents, f. o. b. Reply by wire qUickifwantedj" to which he replied: "Telegram received. Ship as soon as. possibl,e, if quality good and offer f. o. b. Last car poor j short weight, badly On the 19th plaintiffs shipped per steamer two car·loads of oats to KeyWest, consigned to shipper's order, and indorsed the bill of lading,"Deliver to order of Ball, Hutchings & Co.," and attached a sight draft on defendant for price of oats,. and marine insurance, whicfit'hieyhad paid. Hall. Hutchings & Co. indorsed the bill of ladipgto the order ,of the Bank of Key West, and forwarded it to that draft tor collection. No bill of lading was forwarded defendant, but plai,ntiffs wrote informing him that they had shipped him two
BEELIGSON '0. PHILBRIOL
car-loads of bats, and sentinvoioe and certificate ·of weights. The oats reached Key West before the letter containing the 'bill of lading, and the agent of the steam-ship informed defendant that there were two car-loads. of oats that he could have by presenting an indorsed bill of lading. Neither ofthe banks at that time held the bill of lading or draft, so that the defendant could not obtain the property. On 29th the Bank of Key West, having received the bill of lading with draft attached, presented the same for collection, but the draft was not paid,nor the bill of lading delivered. The :merchandise remained in the steam-ship warehouse, and that night was destroyed by fire. This is a suit to recover the .. .The principle of law is well established that, where property is destroYed by accident, the loss falls upon the holder of the legal title, (Grant ,v. U. S., 7 Wall. 331j) and the question here is, in whom was the title to the property destroyed, at the time of its destruction? Had there beena full and perfected sale, which passed the property fromtha plaintiffs to the defendant,so that he became bound to pay the price? :M:r. in his tteatise on Sales of Personal Property, has so clearly laid down what may safely be acceptedasthe.Jaw upon the subject that it necessary to examine the facts of the case in question in the light of his rules. ' The rules that would apply in this case are, first, where the goods, in purSuance of an order; are delivered to a carli:ver to' the l;>uyer, the carrier is presumed to act as agent of the rier to d, buyer, 'and delivery to the carrier is delivery to the buyer; but where goods are delivered on board of a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a deWiery to the buyer, but to the captain, as bailee for delivery to the person indicated by the bill of lading;' The fact of making the bill of lading deliverable to the order of the vendor is, when not rebutted by evidence to the contrary, almost decisive to show his .intention to reserve the jus diJponendi, and to prevent the property from passing to the vendee. Where a bill of exchange for the price of goods is inclosed to the buyer for acceptance, together with a Qill of lading, if he refuse f1Cceptance, he acquires no right to the bill of lading, or the goods of which it is the symbol. When the vendor deals with a hill of lading only to secure the contract price, the property vests in the buyer upon payment thereof. See Benj. Sales, (4th Ed.) § &99. and numerous cases there cited. These propositions of law are accepted as established by numerous decisions, and the supreme court has settled beyond any question what .should control in case. In DOW8 v. National Exch. Bank, 91 U. S.618, the question upon which the final determination of the case rested was almost precisE'ly the same as in this one, namely, whether the title passed from the shipper to the vendee before the payment of the drafts drawn 'against the shipment. In that case, as in this, the consignment was made to a third party,with drafts for collection, although invoices were sent to the party ordering the purchase. The cou,rt says: "It is true they sent invoices; 'rhat, however, is of no significance of itselt The position taken on behalf of the defendant, that the transmission of
the involoos paSsed the property in the wheat without the acceptance and payment of the against it, is utterly untenable., An..fnvoice is not a bill of sale, nor is it evidence of a sale. Standing alone, it is never regarded as .evidence of title." It istrue that in that pasethe from the shipper to the con-
signee were that, unless the drafts were paid, the wheat was to be held; but that only established beyond a that which is the presumption of Jaw in all such cases where shipments are made in such manner, namely, that it is the intention to hold the title arid jus disponendi until the draft£! are paid. This is .the prima facie conclusion, where the shipment is to shipper's order. In this case there is nothing to rebut such presumption, but, on the contrary, much to strengthen it. One of the plaintiffs testified that such class of goods was always cash on delivery. .'I;he order of defendant was accompanied with conditions regarding the. quality. oftha ,goods,and complaints concerning previous shipments. The agent of the steam-ship required an indorsed bill. of lading before he would deliver the goods, although they were marked with defendant's initials. The bank which held the bill of lading retained it because the draft was qot paid. Considering the l,anguage of the order, the complaint regarding former lots, and the manner of shipment, there can be no doubt l;mt w,hat the :vendor intended that all questions should be settled by payment before any title passed by delivery.. There had been no selection or appropriation by the defendant, and it must be held .that there was no delivery, and that no title had passed No person can hold the title to merchandise shipped another, for his protection from loss by non-payment, and not II:t the same time bear the risk of accidental loss. . Verdict and judgment must· be for defendant, and $0 it is ordered.
F A'lRBANKS, Assignee,l1. AMOSKEAG NAT. BANK.
(Oircuit Oourt, D. Ne'IJJ Hamp8hirs.
March 1. 1887.)
Decision on Motion to Quash writ of mandamus aqd certiorari. This was a writ to Daniel Clark, judge, and Benj. F. Clark, clerk, of district court of New Hampshire; commanding them to perfect a record in district court by e-ntering on the docket the term when an opinion was filed in the above case. C. R. Morri.son and Briggs & HUSB, for complainant. Wood & Clark, for defendant.