Barnum Grain Company v. Great Northern Railway Company
| Decision Date | 26 July 1907 |
| Docket Number | 15,251 - (141) |
| Citation | 112 N.W. 1030,102 Minn. 147 |
| Parties | BARNUM GRAIN COMPANY v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Rehearing Denied Sept. 13, 1907, Reported at 102 Minn. 158.
Action in the district court for Hennepin county, to recover $1,080 for the conversion of a carload of wheat. The facts were stipulated and the court, Holt, J., ordered judgment in favor of plaintiff for $1,000. Defendant's motion to amend the findings of fact was denied. From an order denying a motion for judgment notwithstanding the verdict and decision or for a new trial, defendant appealed. Affirmed.
This was an action to recover damages for the conversion of a carload of wheat. The facts were stipulated, and from the stipulation the court found: That during all the times mentioned in the complaint the plaintiff and the defendant were corporations, organized and carrying on the business therein stated. That on and prior to January 10, 1905, at the village of Hampden, North Dakota, a firm by the name of Iverson Bros. & Anderson were engaged in buying and selling grain. That on said January 10, 1905, this firm delivered to the defendant, as such common carrier, in said village of Hampden, sixty thousand pounds of No. 2 northern wheat, which was loaded by defendant into its car No. 77,524, consigned to McKinnon, Son & Co., at Duluth, Minnesota. That at the time of so receiving said wheat said defendant duly issued its certain bill of lading therefor, substantially in the following form:
GREAT NORTHERN RAILWAY LINE.
GREAT NORTHERN RAILWAY COMPANY.
Hampden Station, January 10, 1905.
Received from Iverson Bros. & Anderson, shippers.
The property described below in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned, and destined as indicated below which said Great Northern Railway Company agrees to carry to the said destination, if on its line; otherwise, to deliver to another carrier on the route to said destination.
It is mutually agreed that any service to be performed hereunder shall be subject to the terms and conditions of the Great Northern Railway Company's freight tariffs, and to all conditions, whether printed or written, indorsed thereon, and which are hereby agreed to by the shippers and by them accepted for themselves and their assigns as just and reasonable. Initials G.N.; car number 77,524; kind of grain wheat; weight, 60,000.
In apparent good condition. One car of wheat to be transported to Duluth station, subject to elevator delivery on this company's track, consigned to McKinnon, Son & Co.
Destination Duluth, loaded to the grain line.
That on the face of said bill of lading was stamped in red letters the following clause:
"Not negotiable unless delivery is to be made to consignee or order." That said bill of lading was duly issued by the defendant through its authorized agent at said Hampden.
That said Iverson Bros. & Anderson drew a draft for $1,000 upon the consignee, McKinnon, Son & Co., of Duluth, Minnesota, and attached the draft to the bill of lading so delivered to them by the defendant, and caused the same to be sent through the First State Bank of Hampden, North Dakota, and the First National Bank of Minneapolis. That on January 13, 1905, the consignee, McKinnon, Son & Co., requested the plaintiff herein to pay the draft with the bill of lading so attached and agreed to pay any overdraft to the plaintiff if the wheat represented by the bill of lading was not of sufficient value to pay the draft in full. That pursuant to said request plaintiff on January 14, 1905, paid to the bank at Duluth the draft of $1,000, and the bank thereupon delivered the bill of lading attached thereto to the plaintiff, and the plaintiff paid the draft in the sum of $1,000, and received and retained the bill of lading, in the belief that the wheat was being shipped in accordance with the bill of lading, and that it still holds the same, and has not been repaid said $1,000.
That the defendant never delivered the wheat, or any part thereof, to plaintiff, although plaintiff has duly demanded the same; but the defendant has always refused, and still refuses, to deliver the wheat, or any part thereof, to plaintiff, or any part of the draft so paid by plaintiff. That said car of wheat in the regular course of transportation would have arrived at the city of Duluth on January 20, 1905, and was worth in said city at that time more than $1,012.
It is further found: That upon January 13, 1905, said shippers, Iverson Bros & Anderson, after said bill of lading with the said draft attached had been deposited by them in said First State Bank of Hampden, requested the agent of the defendant to divert said car from Duluth to Minneapolis. That said defendant complied with said request and shipped said car to Minneapolis, instead of Duluth, without requiring said bill of lading to be returned or exchanged; and the defendant thereupon did not carry said wheat to Duluth, but carried the same to Minneapolis and delivered the same to E.L. Welch & Co. on January 20, 1905, under a general order given it by McKinnon, Son & Co. to deliver all grain shipped to the latter to said E.L. Welch & Co. at Minneapolis. That during said time said McKinnon, Son & Co. had offices in both cities of Minneapolis and Duluth and did business in each of said cities; and on said January 20, 1905, said McKinnon, Son & Co. sold said wheat upon commission through the said E.L. Welch & Co., and rendered an account to said Iverson Bros. & Anderson on February 16, 1906.
It is further found: That on January 14, 1905, the said shippers, Iverson Bros. & Anderson, notified the said consignees, McKinnon, Son & Co., at Minneapolis, that the destination of said wheat had been changed from Duluth to Minneapolis; but said plaintiff was not informed by said McKinnon, Son & Co. of such change in the place of destination of said wheat and had no knowledge whatever thereof. That on January 13, 1905, said Iverson Bros. & Anderson did notify said First State Bank of Hampden of the change in destination of said grain from the city of Duluth to the city of Minneapolis, and said Iverson Bros. & Anderson at the time of making said draft did notify said First State Bank of Hampden to send said draft to Minneapolis, to be there presented to said McKinnon, Son & Co., and that such notification was made in pursuance of a notice received from said McKinnon, Son & Co. some time prior to said January 10, 1905, that all drafts should be sent to Minneapolis and there presented to said McKinnon, Son & Co., whether shipments of grain were made to Duluth or Minneapolis; but that the said Barnum Grain Company had no notice or knowledge of the notification given by said Iverson Bros. & Anderson on January 14, 1905, of the change in the destination of said grain, or notification to send said draft to Minneapolis to be there presented to said McKinnon, Son & Co., except such notices, if any, as would be charged to said Barnum Grain Company from such as were given to the First State Bank of Hampden or to said defendant at the time of making the change as aforesaid, or to said McKinnon, Son & Co.; nor was said plaintiff informed by said McKinnon, Son & Co. of the notification by said Iverson Bros. & Anderson that all drafts should be sent to Minneapolis and there presented to said McKinnon, Son & Co.; nor did defendant, prior to the time of paying said draft by plaintiff, inform plaintiff itself of such change of destination.
Upon these facts the court ordered judgment against the defendant for the sum of $1,000, with interest thereon from January 20, 1905.
Bill of Lading -- Negotiability.
A bill of lading, upon which is stamped the words "not negotiable unless delivery is to be made to consignee or order," is exempt from the provision of section 7649, G.S. 1894, and the rights of parties thereunder are determined by common-law principles.
Bill of Lading -- Delivery by Carrier.
If a railway company, after issuing such a bill of lading, delivers the goods to the consignee named therein, without requiring the bill of lading to be produced, it does so at its peril.
Rome G. Brown and Charles S. Albert, for appellant.
There was plainly stamped upon the forwarding order which was delivered by the shipper to the carrier, the words "Not Negotiable." This was notice to the carrier that the bill of lading issued upon this forwarding order was not negotiable, and that delivery was to be made in accordance with the directions given by the shipper that the bill was not negotiable. In accordance with the shipping directions the defendant carrier issued and delivered to Iverson Bros. & Anderson a bill of lading, across the face of which was indorsed in red ink, so that it would be express notice to everyone inspecting the bill of lading, the words "Not negotiable unless delivery is to be made to consignee or order." By the terms of the bill of lading, delivery was not to be made to "consignee or order", but was to be made direct to "McKinnon, Son & Co." This delivery was made. The Barnum Grain Co., when it received the bill of lading, had express notice, first: That the bill of lading was "not negotiable", and second: That delivery was to be made to McKinnon, Son & Co. With this notice brought directly home to the Barnum Grain Co., it took the bill of lading at its peril. The notice brought home to the Barnum Grain Co. the knowledge that the Great Northern Railway Co. had the right to rely upon the fact that if delivery was made to the consignee, McKinnon, Son & Co., the Great Northern Railway Co. was then absolved from any liability with respect to the delivery of the wheat. In the face of this notice and knowledge and at...
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