Skilling v. Bollman

Decision Date21 May 1878
PartiesDAVID SKILLING ET AL., Appellants, v. F. W. BOLLMAN ET AL., Respondents.
CourtMissouri Court of Appeals

1. The delivery of a bill of lading is a symbolical delivery of the property represented by it; and the person who, by a legal title, first gets one of a set of bills of lading executed in triplicate, has the right to the property, and need do nothing further to secure his title.

2. The delivery of the bill of lading, indorsed to the order of the consignor's factor, accompanied with drafts of the consignor upon the factor for the proceeds, is a complete delivery of the goods, and divests the title of the consignor and vests it in the person to whom the bill of lading was delivered; and, as against a subsequent innocent purchaser of the goods for value, this title will not be affected by the mere fact that no advance or acceptance was expressly made upon the particular consignment.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

FINKELNBURG & RASSIEUR and G. POLLARD, for appellants: The delivery of the bill of lading, together with the drafts drawn against the proceeds, transferred the title to the goods.-- Railroad Co. v. Phillips, 60 Ill. 190; Railroad Co. v. Wagner, 65 Ill. 197; Broadwell v. Howard, 77 Ill. 305; Railroad Co. v. Kerr, 49 Ill. 458; Bank v. Dearborn, 115 Mass. 219; Bank v. Bailey, 115 Mass. 228; Newcomb v. Railroad Co., 115 Mass. 230; Bank v. Crocker, 111 Mass. 163. It is not necessary that the bill of lading be indorsed.-- Bank v. Homeyer, 45 Mo. 145; Peters v. Elliott, 78 Ill. 321. The person who first gets the bill of lading (though one of a set of three) gets the property which it represents; any subsequent dealing with the others of the set is subordinate to the rights passed by that one.-- Barber v. Meyerstine, L. R. 4 H. L. Cas. 317; Caldwell v. Ball, 1 Durnf. & E. 205; Valle v. Cerre, 36 Mo. 587.

NOBLE & ORRICK and W. J. SHARMAN, for respondents, cited 1 Pars. on Ship. & Ad. 192, 195; Dan. Neg. Inst. 632; Newsom v. Thornton, 6 East, 17.

BAKEWELL, J., delivered the opinion of the court.

This is an action to recover the value of one hundred and fifty barrels of highwines, valued at $11,000, which it is alleged the defendants had converted to their own use. The answer is a general denial. There was a verdict and judgment for defendants. Plaintiffs appeal.

Plaintiffs were private bankers in Beardstown, Illinois, and the Beardstown Distilling Company was an incorporated institution, carrying on a distillery business at the same place. In 1874, the company and plaintiffs agreed in writing that plaintiffs would advance money to the company for the purposes of their business, to secure which advances all the bills of lading for highwines shipped were to be made out to plaintiffs and delivered to them. After the limit named in the agreement was reached, plaintiffs continued their advances under an oral understanding to the same effect, which was carried out until a mortgage was made, in May, 1875, to secure to plaintiffs $12,000; and in February, 1876, a deed, intended by the parties as a mortgage, though absolute on its face, was made of the whole property to plaintiffs; the consideration named was $18,000, which was $4,373 less than the actual amount due plaintiffs for advances to the company at that time. Afterwards $2,000 more was advanced; and on February 22d, $12,750 more, to buy stamps for government tax on two hundred barrels of highwines, of which the one hundred and fifty barrels in question in this suit were a part, making the unsecured debt of the distillery company to plaintiffs $19,123. One Blumb was secretary of the distillery company, and Sheerer was its vice-president, and would seem to have been the general manager, at least of all the outside business of the company. Blumb drew checks and notes, and indorsed bills of lading; and it would seem that he alone did so in all transactions with plaintiffs, and that there was an understanding between plaintiffs and the company that this should be so. On February 25th, the distillery company shipped for St. Louis, by boat, the two hundred barrels of highwines for which they had purchased stamps with plaintiffs' money, and the boat executed bills of lading in triplicate to the order of the distillery company, of which two were delivered to Blumb. This was in the afternoon, the boat leaving at four o'clock; and Blumb locked one copy of the bill of lading in his desk, of which Sheerer had also a key. Blumb went to the plaintiffs' bank next morning, shortly after it opened, which was at nine o'clock, and delivered to plaintiffs one copy of the bill of lading, indorsed to Gregory & Stagg, who were the regular factors of the distillery company at St. Louis; and at the same time delivered to plaintiffs two drafts on Gregory & Stagg, made by the distillery company to order of plaintiffs, for $7,000 each. The other copy of the bill of lading, Blumb supposed to be still in his desk; but, in fact, Sheerer had taken it out without being observed, and gone to St. Louis in the same boat with the whiskey, pretending to his business associates that he was only going a few miles down the river to buy grain for their business. The bill of lading which Sheerer thus took with him was not indorsed by Blumb.

Sheerer arrived in St. Louis on the boat, on the morning of the next day, February 26th, and at once proceeded to find a business friend to introduce him to defendants. The acting member of the firm was not in when Sheerer first called, at about a quarter before nine; he returned in half an hour, and sometime shortly after nine o'clock sold to defendants the one hundred barrels of whiskey in question, at a cent or two below the market price, which were delivered to the defendants from the boat about ten o'clock. At the time the whiskey was purchased, Bollman, one of the defendants, asked Sheerer if he had the bill of lading; and Sheerer thereupon drew the bill of lading from his pocket, showed it, and put it back. This was on Saturday. On Monday following, the defendants bought of Sheerer fifty-nine barrels of the same lot. No bill of lading was ever delivered to defendants. The clerk of the boat delivered the whiskey to defendants on the direction of Sheerer and his written orders indorsed upon the bill of lading which the boat had kept. As soon as Sheerer received pay for the last lot, of fifty barrels, on Monday, he absconded with the money that he had received.

The bill of lading and drafts received by plaintiffs were mailed by them on the same day to their correspondent at St. Louis. Gregory & Stagg refused to accept, and the drafts were returned protested. At the time plaintiffs received the drafts from the distillery company, they credited the company with the amount, $14,000, on the general account.

It is claimed by plaintiffs that if the Beardstown Distillery Company was the owner of these highwines at the time the bill of lading and drafts were delivered to plaintiffs on February 26th, and the bill was delivered with the drafts and as security for the drafts, for value, the title to the highwines then passed out of the distillery company and passed to plaintiffs, subject to the acceptance of the drafts by the consignees. The court refused so to instruct, but declared the law to be, that in order that title should pass to plaintiffs under the bill of lading, as against defendants, there must have been an advance made by plaintiffs to the distillery company at the time, or else notice to defendants that there was another bill of lading outstanding and delivered to plaintiffs for the same goods, at the time of defendants' purchase.

Since the case of Lickbarrow v. Mason, the common-law rule is well settled that the property of goods in transitu passes by indorsement of the bill of lading to a bonâ fide holder for a valuable consideration. 2 H. Black. 257; 4 Bro. P. C. 57. And where several bills of lading are signed, the person who first gets one by legal title from the owner or shipper has the right to the consignment. This is also the well-settled rule of the common law. Caldwell v. Ball, 1 Durnf. & E. 121. The person who first gets one bill of lading out of a set of three, gets the property it represents, and need do nothing more to secure his title. It is a symbolical delivery, and has the effect of an actual delivery of the property, neither less nor more. Unless where the bill of lading is made negotiable by statute, the indorsement and transfer of the bill of lading can convey to the indorsee or assignee no greater rights than those of the indorser or assignor; but such rights as the indorser or assignor has in the goods pass with the bill of lading, and nothing further need be done to insure the title of the assignee, which is then complete, and to which any subsequent dealing with the other bills of the set is subordinate. Benj. on Sales, 763; Lickbarrow v. Mason, Bro. P. C. 64. In Meyerstein v. Barber, 13 Jur....

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  • Foristel v. Security Nat. Bank
    • United States
    • United States State Supreme Court of Missouri
    • 21 Junio 1928
    ...Burrton State Bank v. Milling Co., 163 Mo. App. 135; Dickson v. Elevator Co., 44 Mo. App. 498; Clary v. Tyson, 97 Mo. App. 586; Skilling v. Bollman, 6 Mo. App. 76, 73 Mo. 665; Kirkpatrick v. Railroad, 86 Mo. 341; Valle v. Cerre, 36 Mo. 575; Davenport Nat. Bank v. Homeyer, 45 Mo. 145; Mo. Pa......
  • Foristel v. Security Nat. Bank, Savings & Trust Co.
    • United States
    • United States State Supreme Court of Missouri
    • 21 Junio 1928
    ...... Burrton State Bank v. Milling Co., 163 Mo.App. 135;. Dickson v. Elevator Co., 44 Mo.App. 498; Clary. v. Tyson, 97 Mo.App. 586; Skilling v. Bollman,. 6 Mo.App. 76, 73 Mo. 665; Kirkpatrick v. Railroad,. 86 Mo. 341; Valle v. Cerre, 36 Mo. 575;. Davenport Nat. Bank v. Homeyer, 45 Mo. ......
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    • United States
    • Court of Appeal of Missouri (US)
    • 7 Diciembre 1880
    ...by the delivery of the warehouse receipt.-- Erie, etc., Dispatch v. Compress Co., 6 Mo. App. 172; Rice v. Cutter, 17 Wis. 351; Skilling v. Bollman, 6 Mo. App. 76. Where the payee of a negotiable promissory note, payable to his order, transfers the same by delivery only, without indorsement,......
  • Skilling v. Bollman
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    • Court of Appeal of Missouri (US)
    • 21 Mayo 1878
    ...6 Mo.App. 76 DAVID SKILLING ET AL., Appellants, v. F. W. BOLLMAN ET AL., Respondents. Court of Appeals of Missouri, St. Louis.May 21, 1. The delivery of a bill of lading is a symbolical delivery of the property represented by it; and the person who, by a legal title, first gets one of a set......
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