Collins v. Seaboard Air Line Ry. Co.
| Decision Date | 22 January 1924 |
| Docket Number | 448. |
| Citation | 120 S.E. 824,187 N.C. 141 |
| Parties | COLLINS v. SEABOARD AIR LINE RY. CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Lyon, Judge.
Action by A. Collins against the Seaboard Air Line Railway Company the Georgia & Florida Railway Company, and John Skelton Williams, receiver. Judgment for defendants, and plaintiff appeals. No error.
Where in the sale of a carload of lumber, subvendor consigned the shipment to vendor's customer at his request, that customer was named as the consignee in the bill of lading did not vest title in him; the bill of lading not necessarily determining the contract between consignor and consignee and, if an admission of consignor's purpose, it was subject to rebuttal, and explanation by other circumstances attending the transaction.
On October 4, 1920, the Dunham Lumber Company of Albany, Ga contracted to sell the Charlotte Lumber Company a carload of lumber at the price of $1,062.53, and, not having the lumber on hand, contracted to purchase it from the Madison Lumber Company, of Madison, Fla. On October 14, 1920, the Madison Company delivered the lumber to the Georgia & Florida Railway Company, to be carried on its lines and the lines of the Seaboard Air Line Railway Company to the Charlotte Lumber Company at Monroe, N. C., instead of the Dunham Lumber Company. The defendants contend that it was agreed the title to the lumber should not pass from the Madison Company until the purchase price was paid, but this was denied by the plaintiff. The initial carrier issued its bill of lading to the Madison Company, which thereupon drew a draft on the Dunham Company for the agreed price of the lumber, attaching the original bill of lading, and forwarded them to a bank in Albany, Ga., for collection. The Dunham Company refused payment, and the papers were returned to the Madison Company, who demanded the return of the lumber. Pursuant to this demand, the Seaboard Company returned the lumber through the initial carrier to the Madison Company. The Dunham Company drew a draft on the plaintiff with bill of lading or copy attached, and the draft was paid. There was evidence that the Madison Company had previously dealt with the Dunham Company and had always forwarded a draft for the purchase price of the lumber with bill of lading attached. In the shipment in question the Dunham Company requested that it be named as consignor and the plaintiff as consignee in the bill of lading, and this was done.
The suit was commenced by attachment, and bond was given by the defendants.
The verdict was as follows:
(1) Did Madison Lumber Company agree to sell to Dunham Lumber Company the car of lumber in question upon condition that title thereto should not pass from Madison Lumber Company until the purchase price therefor had been paid to Madison Lumber Company? Answer: Yes.
(2) If so, did Madison Lumber Company, pursuant to said agreement, obtain a bill of lading from defendant Georgia & Florida Railway Company, in the name of Dunham Lumber Company, as consignor, and Charlotte Lumber Company, as consignee? Answer: Yes.
(3) If so, did Madison Lumber Company, pursuant to said agreement, and according to custom between it and Dunham Lumber Company, draw draft upon Dunham Lumber Company for the purchase price of said car of lumber, and attach same to the original bill of lading covering said car of lumber, and cause same to be presented in the course to Dunham Lumber Company for payment? Answer: Yes.
(4) If so, was said draft and bill of lading duly presented to Dunham Lumber Company for payment, and payment thereof refused? Answer: Yes.
(5) If so, was said draft in due course returned to Madison Lumber Company with the original bill of lading for said lumber attached because of the failure and refusal of Dunham Lumber Company to pay said draft? Answer: Yes.
(6) If so, did Madison Lumber Company, after the return of said draft and original bill of lading to it, surrender same up to defendant Georgia & Florida Railway, and order said lumber returned to the Madison Lumber Company? Answer: Yes.
(7) If so, did said defendants Georgia & Florida Railway and Seaboard Air Line Railway Company, upon the surrender of said original bill of lading and draft and pursuant to order of Madison Lumber Company, return said car of lumber to said company? Answer: Yes.
(8) Did the Charlotte Lumber Company in the meantime notify the Dunham Lumber Company that it would not receive said lumber unless the contract price therefor was reduced $10 per thousand feet? Answer: No.
(9) If so, did Dunham Lumber Company, upon receipt of said notice, cancel the order for the car of lumber and so notify the Charlotte Lumber Company? Answer: No.
(10) Did the defendants wrongfully return said car of lumber to the Madison Lumber Company? Answer: No.
(11) If so, what damages, if any, is plaintiff entitled to recover of defendants? Answer: None.
Henderson & Roberts, of Charlotte, for appellant.
Cansler & Cansler, of Charlotte, for appellees.
It is unquestionably true as a general rule that delivery of goods by the seller thereof to a common carrier, for transportation to the buyer, is prima facie a transfer of title, and such goods while in the carrier's possession are presumed to be the property of the consignee; but if, before delivery to the consignee, the seller notifies the carrier not to deliver the goods, the carrier's duty then depends upon the actual facts as to whether the relation between the consignor and the consignee was such that delivery to the carrier constituted a transfer of title. 10 C.J. 228, § 317; Moore on Carriers, 188; Aydlett v. Railroad, 172 N.C. 47, 89 S.E. 1000; Gaskins v. Railway Co., 151 N.C. 19, 65 S.E. 518; Asheboro W. & M. Co. v. Railway Co., 149 N.C. 261, 62 S.E. 1091; Stone v. Railroad, 144 N.C. 220, 56 S.E. 932. Such relation, it has been said, may be determined, not only by the terms of the bill of lading, but by the intention of the parties as expressed by their dealings, and by all the circumstances of the transaction. Emery's Sons v. Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299.
The Madison Lumber Company delivered the lumber in question to the Georgia & Florida Railway Company, and obtained from it an open bill of lading, in which the Dunham Company was named as consignor and the Charlotte Lumber Company (afterwards acquired by the plaintiff) as consignee; and the appeal is based on the contention (the name of the Madison Company not appearing in the bill of lading) that the Dunham Company was the consignor, that neither the Dunham Company nor the consignee demanded a redelivery of the lumber, and that the defendants were without authority to divert or return the shipment. The contention of the defendant is diametrically the opposite. So the immediate question is this: When the Dunham Company refused to pay for the lumber and to accept the bill of lading, were the defendants justified in returning the shipment to the Madison Company upon its demand? Embraced in this question are two others: (1) May the seller retain title to goods shipped upon an open bill of lading in which his name does not appear and in which the buyer is called the consignor and the person to whom the buyer has contracted to sell is called the consignee, in the absence of a stipulation in the bill of lading that title shall be retained? (2) If so, is there sufficient evidence that the title was retained by the Madison Company?
Eminent authorities in other jurisdictions maintain the general doctrine that when a draft is attached to a bill of lading whether the bill of lading is made out in the name of the consignor or consignee, title to goods usually does not pass to the consignee upon delivery to the carrier. The consignee cannot refuse to pay the draft and at the same time claim title to the property. Hopkins v. Cowen, 90 Md. 152, 44 A. 1062, 47 L. R. A. 124; Spence v. N. & W. Ry. Co., 92 Va. 102, 22 S.E. 815, 29 L. R. A. 578; Bank v. Jones, 4 N. Y. 497, 55 Am. Dec. 290. See, also, note to Ramsey &...
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