Chicago, Rock Island & Pacific Railway Co. v. McElhany
| Decision Date | 17 November 1917 |
| Docket Number | 31217 |
| Citation | 165 N.W. 67,182 Iowa 1035 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee, v. FRANK MCELHANY et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 15, 1918.
Appeal from Superior Court of Cedar Rapids--C. B. ROBBINS, Judge.
ACTION in replevin to recover the possession of a certain automobile. Opinion states the facts. Judgment for the plaintiff in the court below. Defendant appeals.
Affirmed.
Crosby & Fordyce, for appellants.
Grimm & Trewin, F. W. Sargent, R. J. Bannister, and J. G. Gamble, for appellee.
This is an action in replevin, to recover the possession of a certain automobile which it is alleged was taken from the possession of the plaintiff, a common carrier, without its knowledge or consent, and without the surrender of a negotiable bill of lading covering its transportation. The petition was in the usual form of replevin.
After denying the allegations of plaintiff's petition defendants interposed the following defense: That the defendant purchased said automobile from one Cowley, who, at the time of said purchase, had possession of it with the consent of the plaintiff; that he paid Cowley full consideration therefor, without notice or knowledge of plaintiff's claim. In an amendment to the answer, defendant alleged that, for a long time prior to the happening of the matters herein complained of, Cowley had been in the business of purchasing automobiles and having the same transported to him over plaintiff's railroad to Cedar Rapids, and there selling them at retail; that Cowley maintained a place of business in Cedar Rapids for the sale of automobiles; that all this was known to plaintiff; that it had been the custom and practice of plaintiff company to deliver Cowley automobiles without the prepayment of freight charges, and without requiring him to produce or deliver bills of lading, relying on Cowley's credit; that, pursuant to said custom and practice, Cowley obtained the possession of said automobile, with the knowledge and consent of plaintiff company, and had the same in his possession in his place of business at the time defendant purchased it; that the defendant purchased it from Cowley, and paid him in full therefor without notice of plaintiff's claim; and that plaintiff is now estopped from claiming that Cowley had no right to the possession of said automobile, and no authority to sell it.
Upon the issues thus tendered, the cause was tried to a jury, and a verdict returned for the plaintiff for the possession of the automobile. Defendant appeals.
The record discloses the following, without controversy: That, at the time of the transaction, Cowley was a retail dealer in Cadillac automobiles in Cedar Rapids, transacting business for himself in the name of the Iowa Auto & Tire Company; that the automobile in question was shipped by the Cadillac Company from its factory at Detroit, routed over plaintiff's lines, and consigned to itself or order at Cedar Rapids, with instructions to notify Cowley of its arrival. A bill of lading was duly issued by the initial carrier to said consignor. The bill of lading, with draft attached, was deposited in the bank in which the Cadillac Motor Company made its deposits, to be forwarded in turn to the bank upon which the draft was drawn. The bill of lading contained this:
"The surrender of this original order bill of lading, properly endorsed, shall be required before delivery of the property."
The bill of lading was endorsed in blank. Cowley was notified, and at his request, the car containing the automobile was spotted at a place convenient for unloading. Cowley did not get possession of the bill of lading, never had possession of the bill of lading, and never paid the draft. There is no direct evidence that the bill of lading and draft were, in fact, forwarded to the bank on which the draft was drawn. The natural inference from the evidence is that it was so forwarded. It is shown that the general custom was to so forward it, but the jury might well find that there was no direct evidence that it was so forwarded. If not forwarded, it remained in the bank in which it was deposited, and, being endorsed in blank, it invested the party to whom it was delivered with title to the automobile, nothing further appearing. There certainly is no evidence that the bill of lading was ever delivered to Cowley, and it is not claimed that Cowley ever had this bill of lading in his possession. There is evidence from which the jury could find that he did not; that he never took it up, and never paid the draft. There is no evidence, therefore, that Cowley ever obtained any title or any right to the possession of this automobile. Up to this time, Cowley was a stranger to the title, and with no right to the possession of the automobile covered by the bill of lading. The evidence directly negatives the thought that Cowley ever had any title to this automobile, or any right to its possession as against either the Cadillac Company, the person holding the bill of lading, or the plaintiff company, holding the property for transportation. The defendant's defense rests solely on the thought, that, notwithstanding the fact that Cowley had no title to the automobile, no right to its possession, the plaintiff company, in whose possession it was, delivered it to him without requiring him to give any evidence of his title or right to possession. This was purely a fact question, and was for the jury. On this, the jury found for the plaintiff and against the defendant.
It is contended, however, by the defendant that he pleaded and introduced evidence to show that the company, under like conditions and circumstances, had previously delivered automobiles to Cowley, and that it was now estopped, as against this defendant, an innocent purchaser, from asserting that Cowley did not have the right of possession, and did not have the right to receive and dispose of the property in the usual course of business.
Cowley did not get possession of, and never presented the bill of lading to the plaintiff. There is no evidence that he notified plaintiff that he intended to take the automobile before delivering the bill of lading. There is no evidence in this case that the company consented to the taking of the automobile from the car without the delivery of the bill of lading. The only evidence of consent is that the car in which the automobile was shipped was placed at an unloading station at the request of Cowley. The automobile was removed from the car by one of Cowley's agents without notice to the plaintiff, and without first obtaining the bill of lading. Subsequently, Cowley sold this...
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