¶1The plaintiffs, doing business at Jackson, Mississippi, ordered thirty coils of rope from the defendant, a dealer at Louisville in wool, hemp, bagging, rope, twine, &c.
¶2The latter made out an invoice of the goods and took a bill of lading for them from the steamboat Republic on the 2d August, 1854, signed by “ P. Lns. Barlmn, agent, per 8. Bomer ” by which the merchandize was to be delivered to plaintiffs agent at Vicksburg, Mississippi. The plaintiffs in payment remitted their bill of exchange upon the house of Fearn, Ponnegan & Go., of New Orleans, which was accepted by them. The merchandize never having come to hand the bill of exchange was protested for non-payment, but was finally paid by the acceptors on the 20th December, 1855.
¶3This action is brought by the plaintiffs to recover back this sum of money as paid in error.
¶4The proof shows that the Ohio river is usually low in August, and that in low water the custom of the trade is to take bills of lading from the agents of the boats in Louisville, and forward the goods by drays to the boats at Portland, accompanied by dray tickets addressed to the boats on which parties intend to ship, giving the marks and numbers of packages. Sometimes the bill of lading has the condition inserted, “ subject to dray tickets.”
¶5It appears from the correspondence of the parties, which has been produced and on which the case must he determined, that the Republic did not receive the goods, but that they were taken by a boat called the Odd Fellow, and reshipped on the steamer Dresden and finally delivered to Messrs. J. O. Griffin & Bro. Memphis, Tennessee. They were claimed by a Mr. Ford, as belonging to his brother who had failed, and whose business he was winding up. He took six coils of the rope to his plantation, and the rest of it he sold to Griffin & Bro. The parties doubting their respective rights to recover of Griffin & Bro. and Ford, have canvassed in their correspondence the question on whom the loss must fall. The defendant contends that he was only an agent, that he took a bill of lading from the boat and sent the goods to Portland for the boat, and that he did his duty and was discharged. The plaintiffs contend that the goods were never properly shipped and delivered. It is not important to consider whether the defendant must be considered as a dealer on his own account or as a factor. In either case it was his duty to see the goods shipped. It has been held that in ordinary cases the captain of a vessel is without authority to bind the *753owners by signing a bill of lading unless the goods are actually delivered or put on board the vessel. Abbott on shipping, p. 823, note 3. But the custom of trade at Louisville it seems, is to sign the bills of lading before the goods are sent by the drays to Portland. In such cases the bills of lading must be considered as conditional and only binding in the event the goods are really delivered to the boat at Portland.
¶6It would thenee seem that that the production of a bill of lading alone, signed by the agent in Louisville, does not show a delivery to the steamboat, but that the production also of the dray receipts are required in order to fix the liability of the owners of the boat. The defendant has not therefore shown that ordinary care and diligence which was required of him, whether he be considered a vendor of the goods or a mere agent. He should have shown that the dray receipts were signed by the clerk or other officers of the Republic, and he did not exercise proper care, inasmuch as he does not appear to have examined the dray receipts, on the return of the drays from Portland, in order to ascertain whether the goods had been delivered, and if so, whether they had been delivered to the right boat.
¶7But the defendant further contends that at the time the draft was paid the plaintiffs did not pay in error, for they had full knowledge of the whole transaction and are therefore precluded from recovering. O. 0.2280. It is admitted that the draft was paid by Fewrn, Donnegan & Go., the acceptors, We think, therefore, the payment must be considered as relating to the date of the draft, and that epoch must be considered its date between the parties on the question before us.
¶8The garnishees have sufficient funds in their hands to pay the debt.
¶9It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that the plaintiffs do recover and have judgment against the defendant, for the sum of three hundred and sixteen 47-100 dollars, with legal interest thereonfrom the 28th day of December,
¶101855, until paid, and costs of both courts, and it is further ordered, that said garnishees, Pmmele & Brother', pay said sum of money, interest and costs, out of the funds attached in this suit, and admitted by their answers to be in their hands.