Bonds-Foster Lumber Co. v. Northern P. Ry. Co.

• Decision Date: 27 May 1909
• Citation: 53 Wash. 302,101 P. 877
• Parties: BONDS-FOSTER LUMBER CO. v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

101 P. 877

53 Wash. 302

BONDS-FOSTER LUMBER CO. v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

May 27, 1909

Appeal from Superior Court, Pierce County; C. M. Easterday, Judge.

Action by the Bonds-Foster Lumber Company against the Nothern Pacific Railway Company. From a judgment for plaintiff defendant appeals. Reversed, and dismissal ordered.

Geo. T Reid and J. W. Quick, for appellant.

Denman & Fishburne, for respondent

GOSE J.

This action was instituted by the respondent, as plaintiff against the appellant, a common carrier, for the recovery of the value of a car load of lumber. The case arose out of the following facts: On November 6, 1907, one William McDonald shipped a car of lumber to Savage Bros. at Tacoma, Wash., and received the following bill of lading as evidence of such shipment:

Northern Pacific Railway Company. No. Car. N. P. bx. 42390 Pac. Division, McMillan, Wash., 11/6, 1907. Received from Wm. MacDonald, in apparent good Consignee and Description of condition. Destination Property. Weight. Savage Bros. 25057 ft. Fir Lbr. 80000 Tacoma, Wash. M. L. S. L. & E. NOT NEGOTIABLE Loaded to visible OR ASSIGNABLE. capacity. Received $-- to apply in prepayment of charges on property described hereon. Advances $---- for ------ ------------ Agent. As described above, contents and value unknown, to be transported by the Northern Pacific Railway to station -------- ready to be delivered to the part--- entitled to the same and it is expressly stipulated and agreed that the above property is transported on the conditions endorsed hereon, which form part of this contract, and of the consideration for carrying the same, and not otherwise. Northern Pacific Railway, by C. L. Pitt, Agent, No. ----. per C. M.

The words 'Not negotiable or assignable' were printed across the face of the bill in large black type. The lumber reached Tacoma on November 9th following, and on that date the carrier delivered it to Savage Bros., who subsequently paid McDonald the purcnase price. On November 13th following the respondent received the bill of lading without indorsement, and the invoice properly assigned, from the Citizens' State Bank of Puyallup, and on the 15th day of November paid said bank therefor the sum of $243.10. Thereafter, and for a period of two months or more, the respondent sought to collect the value of the lumber from Savage Bros. Its efforts in this behalf proving unsuccessful, it demanded payment from the appellant on September 2, 1908. This demand proving unavailing, it instituted this action, which terminated in a judgment in its favor. From such judgment this appeal has been taken.

Numerous questions are argued in the respective briefs, but the view we take of the question brings it within a reasonably narrow compass. The applicable provisions of our Code are as follows:

'A bill of lading or warehouse receipt is an instrument in writing signed by a carrier, warehouse properietor, or his agent, describing the freight so as to identify it, stating the name of the consignor or owner, the terms of the contract for carriage or storage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place.' 1 Ballinger's Ann. Codes & St. § 3590 (Pierce's Code, § 6780).

'* * * And all bills of lading, and transportation receipts of every kind, are hereby declared negotiable, and may be transferred by indorsement of the party to whose order such check or receipt was given or issued, and such indorsement shall be deemed a valid transfer of the commodity represented by such receipt, and may be made either in blank or to the order of another.' 1 Ballinger's Ann. Codes & St. § 3598 (Pierce's Code, § 8920).

'When a bill of lading or warehouse receipt is made to 'bearer' or in equivalent terms, a simple transfer thereof by delivery conveys the same title as an indorsement.' 1 Ballinger's Ann. Codes & St. § 3600 (Pierce's Code, § 6781).

'A bill of lading or warehouse receipt does not alter the rights or obligations of the carrier or warehouse proprietor as defined in this chapter, unless it is plainly inconsistent therewith.' 1 Ballinger's Ann. Codes & St. § 3601 (Pierce's Code, § 6782).

At common law a delivery of goods to the carrier billed to a named consignee vested the title in such consignee. Osborne & Co. v. Van Atten, 3 Wash. T. 53, 13 P. 242; Whitman Agricultural Co. v. Strand, 8 Wash. 648, 36 P. 682. In such case, aside from the statute, unless the consignor stipulated otherwise in the bill of lading, or the carrier has notice to control the effect of the document, it is exonerated from liability by a delivery to the consignee. Lawrence v. Minturn, 58 U.S. 100, 15 L.Ed. 58; The Sally Magee, 3 Wall. 457, 18 L.Ed. 197; Southern Express Co. V. Dickson, 94 U.S. 549, 24 L.Ed. 285; Nebraska Meal Mills v. St. Louis, S. & W. R. Co., 64 Ark. 169, 41 S.W. 810, 38 L. R. A. 358 ; 62 Am. St. Rep. 183; Orange Co. Fruit Exchange v. Hubbell, 10 N.M. 47, 61 P. 121; Scharff v. Meyer, 133 Mo. 428, 34 S.W. 858, 54 Am. St. Rep. 672; Scammon v. Wells Fargo Express Co., 84 Cal. 311, 24 P. 284; Southern Express Co. v. Williams, 99 Ga. 482, 27 S.E. 743; Weisman v. Philadelphia W. & B. R. Co., 22 R.I. 128, 47 A. 318; Nashville, C. & St. L. Ry. Co. v. Grayson County National Bank, 100 Tex. 17, 93 S.W. 431; 1 Hutchinson on Carriers (3d Ed.) par. 181; 6 Cyc. 468. It is true that the books speak of the bill of lading as a symbol of the property, and statements are found to the effect that a delivery of the bill of lading is a symbolic delivery of the property, and a transfer of such property to the holder of such bill of lading. We apprehend that the true meaning of this language is that such delivery by the consignor only operates as a transfer of property or some interest in it, when there is a stipulation in the bill itself whereby an ownership is retained in the consignor. It would certainly involve an absurdity to say that, where the goods are consigned to a named consignee, title passes to such consignee, and at the same time to announce that an indorsement or delivery of such bill to a third party by the consignor passes an interest in the property. It is only a symbol of the property where the consignor upon the face of the bill reserves an interest.

The first point urged by the appellant is that no title passed to the respondent, for the reason that the bill of lading was not indorsed. At common law the bill of lading was regarded as a symbol of the property, and the interest of the consignor in the property passed either by an indorsement or a delivery of the bill of lading. City Bank v. R. W. & O. R. Co., 44 N.Y. 136; National Bank of Green Bay v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92; Barnum Grain Co. v. Great Northern Ry. Co ., 102 Minn. 147, 112 N.W. 1030, 1049. It has been held that the statute does not change this rule. Scharff v. Meyer, 133 Mo. 428, 34 S.W. 863, 54 Am. St. Rep. 672. We think that this view would be sound where the bill of lading was in its terms in conformity with the statute, but the conclusion we have reached as to the effect of this particular bill of lading renders it unnecessary for us to determine this question.

The respondent contends that First National Bank v. N. P. Ry Co., 28 Wash. 439, 68 P. 965, is controlling in its behalf. In that case a quantity of wheat was billed to a named consignee without any reservation or stipulation in favor of the consignor, and the bill of lading contained no words of negotiability. An examination of this case discloses: That the consignor upon the shipment sold and indorsed the bill of lading to the plaintiff for the actual consideration of the purchase price of the wheat; that the carrier, without actual notice of the interest of the plaintiff, delivered the wheat to the consignee, who refused to pay therefor; that the plaintiffs demanded the delivery of the wheat from the carrier, which delivery it refused. Upon these facts we held that the refusal of the carrier to deliver the wheat to the holder of the bill of lading was...