44 N.Y. 136, City Bank v. Rome, Watertown & Ogdensburgh Railroad Co.

Citation44 N.Y. 136
Party NameTHE CITY BANK, Respondent, v. THE ROME, WATERTOWN, AND OGDENSBURGH RAILROAD COMPANY, impleaded, etc., Appellant.
Case DateDecember 28, 1870
CourtNew York Court of Appeals

Page 136

44 N.Y. 136

THE CITY BANK, Respondent,

v.

THE ROME, WATERTOWN, AND OGDENSBURGH RAILROAD COMPANY, impleaded, etc., Appellant.

New York Court of Appeal

December 28, 1870

Argued Sept. 26, 1870.

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[Copyrighted Material Omitted]

Page 138

COUNSEL

John Ganson, for the appellant, cited Rawles v. Deshler (3 Keyes, 572); Smith v. Lyons (1 Seld., 41); Wait v. Green (36 N.Y. 556).

Starbuck & Sawyer, for the respondent.

HUNT, C.

Many points were raised upon the trial, and argued in the court below, that are not now insisted upon. The determination of the questions of fact was of more difficulty than the disposition of the questions of law. The latter are all that are presented for our consideration. I will take up, in their order, the objections to the recovery now presented by the counsel for the appellants.

It is alleged that the plaintiff failed to establish any title to the wheat in question, because the bill of lading was not indorsed to the plaintiff, but to C. P. Egert. If I understand the implication of the appellant's points, it is substantially conceded that the transaction amounted to an hypothecation of the wheat as security for the payment of the debt in the event that Egert failed to accept and pay the draft. In the defendant's supplemental points, it is expressly conceded that a special property in the wheat passed to the plaintiff. Three cases are cited to show that a special property will not authorize an action for its recovery. (Rawles v. Deshler, 3 Keyes, 572; Wait v. Green, 36 N.Y. 556; Ballard v. Burget, 40 N.Y. 314.) These cases do not sustain the position. The contrary has been held in this State many times. (Dezell v. Odell, 3 Hill, 215; Miller v. Adsit, 16 Wend., 335;

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Wheeler v. McFarland, 10 Wend., 318.)This title is sufficient to justify the plaintiff's claim and sustain their recovery of the value of the wheat.

I suppose, however, that the title to the wheat passed to the plaintiff by the delivery of the bill of lading. The delivery of a bill of lading with intent to pass the title has that effect, although it be not payable to "assigns, " or although if so payable, it be not indorsed. (Par. Merc. Law, 346; 2 Kent's Com., 207; see also Chandler v. Belden, 18 J. R., 157.) The Bank of Rochester v. Jones (4 Com., 497) is quite in point to this question. One Foster shipped 200 barrels of flour from Rochester to B. P. Jones in Albany, taking from the master of the boat a receipt simply in these words:

"Received, Rochester, July 15th, 1843, of W. C. Foster, two hundred barrels of flour to be forwarded to B. P. Jones, Albany, in good order without delay, subject to forty-five cents freight.

R. D. HANNAH. "

To enable Foster to buy and ship this flour, it was agreed between him and the plaintiff, that the plaintiff would advance $950 for the purpose, Foster to procure the forwarder's receipt of the flour to be purchased, and leave such receipt with the bank as security for the acceptance of a draft to be drawn on Jones, the defendant. Foster delivered the draft and receipt to the bank and received the money on the draft. It was a part of the parol agreement that the flour should be held by the bank as security; that Jones should accept the draft, the bank to have the right to hold and sell the flour. If accepted the receipt was to be for Jones' security, and the bank was to look to him. The bank forwarded the draft for acceptance with the receipt pinned to it, which was presented to the defendant, Jones, for acceptance. Jones took off the receipt, retained it and refused to accept the draft. He then sent his clerk to Utica, who there met the flour and sold it. It was held, 1. That Jones obtained no title to the flour. 2. That the discount of the draft by the plaintiff, and the delivery to it of the receipt, amounted to a transfer of the flour to the

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bank, in trust to deliver it to the defendant in case he accepted the draft, or in case of his refusal, in trust to sell the flour and pay...

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36 practice notes
  • 103 So. 343 (Miss. 1925), 24601, Colonial Lumber Co. v. Andelusia Nat. Bank
    • United States
    • Mississippi Supreme Court of Mississippi
    • March 16, 1925
    ...N.Y. 34; Holmes v. German Security Bank, 87 Pa. 525; Clary v. Tyson, 97 Mo.App. 586, 71 S.W. 710; City Bank v. Rome, W. & O. R. Co., 44 N.Y. 136; Canandaigua Nat. Bank v. Southern R. Co., 64 Misc. 327, 118 N.Y.S. 668. Drawn to the consignee or bearer; Allen v. Williams, 12 Pick. 297. Dr......
  • 252 S.W. 486 (Tex.Com.App. 1923), 401-3748, American Ry. Express Co. v. Voelkel
    • United States
    • Texas Court of Commission of Appeals of Texas
    • June 13, 1923
    ...the state of the title shown by such documents." In support of above rule, Cyc. cites the following authorities: Bank v. Railway Co., 44 N.Y. 136; Decan v. Shipper, 35 Pa. 239, 78 Am.Dec. 334; Bank v. Cummings, 89 Tenn. 609, 18 S.W. 115, 24 Am.St.Rep. 618; Shaw v. Bank, 101 U.S. 557, 2......
  • 79 S.W. 1094 (Tex.Civ.App. 1904), Grayson County Nat. Bank v. Nashville, C. & St. L. Ry.
    • United States
    • Texas Court of Appeals of Texas Court of Civil Appeals of Texas
    • March 3, 1904
    ...shipper, and, if delivered, he must retain the property until it is demanded by one claiming under that title. City Bank v. Railroad Co., 44 N.Y. 136; Furman v. Railroad Co, 106 N.Y. 579; 13 N.E. 587. And where goods have been transferred from one carrier to another, as was done in this cas......
  • 102 N.Y. 120, Colgate v. Pennsylvania Co.
    • United States
    • New York New York Court of Appeals
    • April 13, 1886
    ...of Canada v. U. R. R. & T. Co., 69 id. 378; Alderman v. E. R. R. Co., 115 Mass. 233; City Bank v. R., W. & O. R. R. Co., 44 N.Y. 136, 141; Farmers and Merchants' Bank v. E. Ry. Co., 72 id. 188; Abbott on Shipping [12th Eng. ed.], 277.) It is as a receipt that the bill......
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36 cases
  • 103 So. 343 (Miss. 1925), 24601, Colonial Lumber Co. v. Andelusia Nat. Bank
    • United States
    • Mississippi Supreme Court of Mississippi
    • March 16, 1925
    ...N.Y. 34; Holmes v. German Security Bank, 87 Pa. 525; Clary v. Tyson, 97 Mo.App. 586, 71 S.W. 710; City Bank v. Rome, W. & O. R. Co., 44 N.Y. 136; Canandaigua Nat. Bank v. Southern R. Co., 64 Misc. 327, 118 N.Y.S. 668. Drawn to the consignee or bearer; Allen v. Williams, 12 Pick. 297. Dr......
  • 252 S.W. 486 (Tex.Com.App. 1923), 401-3748, American Ry. Express Co. v. Voelkel
    • United States
    • Texas Court of Commission of Appeals of Texas
    • June 13, 1923
    ...the state of the title shown by such documents." In support of above rule, Cyc. cites the following authorities: Bank v. Railway Co., 44 N.Y. 136; Decan v. Shipper, 35 Pa. 239, 78 Am.Dec. 334; Bank v. Cummings, 89 Tenn. 609, 18 S.W. 115, 24 Am.St.Rep. 618; Shaw v. Bank, 101 U.S. 557, 2......
  • 79 S.W. 1094 (Tex.Civ.App. 1904), Grayson County Nat. Bank v. Nashville, C. & St. L. Ry.
    • United States
    • Texas Court of Appeals of Texas Court of Civil Appeals of Texas
    • March 3, 1904
    ...shipper, and, if delivered, he must retain the property until it is demanded by one claiming under that title. City Bank v. Railroad Co., 44 N.Y. 136; Furman v. Railroad Co, 106 N.Y. 579; 13 N.E. 587. And where goods have been transferred from one carrier to another, as was done in this cas......
  • 102 N.Y. 120, Colgate v. Pennsylvania Co.
    • United States
    • New York New York Court of Appeals
    • April 13, 1886
    ...of Canada v. U. R. R. & T. Co., 69 id. 378; Alderman v. E. R. R. Co., 115 Mass. 233; City Bank v. R., W. & O. R. R. Co., 44 N.Y. 136, 141; Farmers and Merchants' Bank v. E. Ry. Co., 72 id. 188; Abbott on Shipping [12th Eng. ed.], 277.) It is as a receipt that the bill......
  • Request a trial to view additional results