24 N.Y. 638, Dows v. Greene

Citation24 N.Y. 638
Party NameDOWS et al. v. GREENE et al.
Case DateJune 01, 1862
CourtNew York Court of Appeals

Page 638

24 N.Y. 638

DOWS et al.

v.

GREENE et al.

New York Court of Appeal

June 1, 1862

Page 639

COUNSEL

William D. White, for the appellants.

Lyman Tremain, for the respondents.

OPINION

DAVIES, J.

This is an action for the claim and delivery of 2, 565 bushels of corn, and damages for the detention. The plaintiffs claim as consignees, and as the bona fide owners and holders of the bills of lading thereof, upon which they had made advances. The facts in this and other cases, growing out of the same transactions appear in the reported cases of Dows v. Greene (16 Barb., 72), Dows v. Perrin (16 N. Y, 325), Dows v. Rush (28 Barb., 157), and Dows v. Greene (32 Barb., 490). This case has been retried before one of the justices of the Supreme Court, without a jury, who has found certain facts, which having been affirmed at general term, are conclusive upon this court. He finds that Niles & Wheeler, from whom both parties claimed title to the 2, 565 bushels of corn in question, were partners, dealing in produce in Buffalo, during the year 1848, and were also engaged with one Caleb in the transportation business; and that Niles & Wheeler, as produce merchants, were the owners of the corn. That on the 7th of August, 1848, the corn was on board the lake boat Montezuma, and that on that day, one Bloss made a contract of purchase of the same, with Niles, one of the partners, for cash, half to be paid on Friday, the 11th, and half on Saturday, the 12th of August. That Niles & Wheeler were to ship the corn for Bloss on board the boats of the transportation company, owned by them and Caleb, for New York, and to transport the same there for thirteen cents a bushel, to be paid by Bloss. That the contract was in fact made by Bloss, as the agent of one I. F. Mack, but he did not disclose the fact of such agency until after the agreement had been made, and until after the bill of lading had been issued. In pursuance of this agreement the corn was transhipped from the Montezuma

Page 640

to the canal boat Neptune, on the 7th of August. That on that day Bloss obtained from Walker, a clerk in the office of Niles & Wheeler, a bill of lading for said corn, which stated that the corn had been "shipped in good order by Niles & Wheeler, agents, on board the boat Neptune, -------, master, marked and consigned as in the margin, to be delivered as addressed without delay. " In the margin was as follows:

Account I. F. Mack, Freight to New York, a bushel, 13 cents.

care of [Signed] NILES & WHEELER.

Dows & Cary. per E. H. WALKER.

That Bloss obtained said bill of lading in good faith, and Walker had authority to execute it for Niles & Wheeler, and it was so in fact executed by Walker with the knowledge and sanction of one of the firm of Niles & Wheeler. That said shipping bill was by said Bloss, sent to Mack at Rochester, who, on the 8th of August, at Rochester, obtained from the agent of the plaintiffs there, an advance on said bill of lading, upon the faith thereof, and that such advance was made by the plaintiffs in good faith, upon said bill of lading, without any notice or knowledge of any kind to them or their agent of any fraud having been committed or intended by any one in the purchase of said corn, or in obtaining said bill of lading. That on the 10th of August, Bloss gave notice to Niles & Wheeler that he had not received the money from Rochester to pay for said corn, as he had expected, and for that reason could not complete the purchase for it, and then first informed them that he was acting as the agent of Mack in the purchase and not on his own account. Bloss proposed to Niles & Wheeler to send a man to Rochester to get the money, and if it could not be obtained, he would give up the corn. A person in the employ of Niles & Wheeler went to Rochester, and he and Bloss arrived there on the 11th, and found that Mack had failed and absconded the day previously, and had on that day made a general assignment. On the 12th of August, Niles & Wheeler assumed to sell the corn to Durfee & Co., who paid them for it, and they, Durfee & Co., delivered the

Page 641

corn to the defendants. The judge found as conclusion of law that the plaintiffs were the consignees of the corn and obtained a lien thereon under the factor's act for the sum advanced upon the faith of the said bill of lading. That the plaintiffs as bona fide purchasers for value to the extent of their advances were entitled at common law, as well as under the statute, to the possession of the corn at the time of the commencement of this suit.

A similar transaction was under consideration in this court, in the case of Dows v. Perrin (supra).We then held that a paper similar in all respects to that in the present case, was a bill of lading, and it now being found as a fact, that Walker had authority to issue the bill for Niles & Wheeler, the objections to a recovery in that case, based on Walker's want of authority, have now no force or application. The bill of lading was therefore put in circulation by the authority of Niles & Wheeler, and we deem the law to be well settled that in such a case, a bona fide assignee for value, can hold the goods represented by the bill. We entirely concur in the wisdom and force of the remarks made by Lord CAMPBELL in Gurney v. Behrend (3 Ellis & Bl., 622), that ever since the great case of Lickbarrow v. Mason, the law has been considered to be that the bona fide transferree for value of a bill of lading, indorsed by the shipper or his consignee, and put into circulation by the authority of the shipper or consignee, has an absolute title to the goods freed from the equitable rights of the unpaid vendor to stop in transitu as against the purchaser, and we believe it to be of essential importance to commerce that this law should be upheld. "

But the facts found by the referee bring the present plaintiff directly within the protection of the factor's act. In this case, the corn was shipped in the name of Mack and he is to be deemed the true owner, so far as to entitle the plaintiffs, who were the consignees thereof, to a lien thereon for the money advanced by them for the use of Mack, in whose name the shipment was made. Such lien is not impaired by the second section as it is proved as matter of fact, that the consignees

Page 642

had no notice by the bill of lading or otherwise, at or before the advancing of the money, or at or before the receipt thereof by Mack, in whose name the shipment was made, that he was not the actual and bona fide holder thereof. (Chap. 179 of 1830.) The judgment appealed from...

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