Evans-Terry Co. v. Liberty Mills
| Decision Date | 21 November 1921 |
| Docket Number | 21937 |
| Citation | 127 Miss. 120,89 So. 809 |
| Court | Mississippi Supreme Court |
| Parties | EVANS-TERRY CO. v. LIBERTY MILLS |
1. SALES. Whether carrier is seller's agent depends on whether seller has assumed burden of making delivery.
Whether the carrier to whom a seller has delivered goods for transportation to the buyer is the agent of the seller or the buyer in so doing depends upon whether or not the seller has assumed the burden of making delivery; if he has, the carrier is his agent for that purpose.
2. SALES. Whether seller assumes burden of delivery is ordinarily a jury question.
Whether a seller who is to ship the goods sold to the buyer assumes the burden of delivery is, ordinarily, a question of fact for the determination of the jury, unless the contract of sale is in writing; but, if a verdict for the shipper on the theory that he had not assumed the burden of delivery would not be warranted by the evidence, the jury should be peremptorily instructed to find for the buyer.
3 SALES. Facts including consignment to shippers order held to show prima facie that seller was to deliver.
The shipment by a seller to the buyer of the goods purchased under a bill of lading in which the goods are consigned to the shipper's order with direction therein to the carrier to notify the buyer, and the drawing by the seller on the buyer of a draft for the purchase price of the goods less freight thereon, to which the bill of lading was attached to be delivered to the buyer on payment of the draft by him to the bank to which it was forwarded for collection on surrender of which bill of lading to the carrier and the payment of the freight on the goods it was authorized to deliver the goods to the buyer is prima-facie evidence that the delivery of the goods was to be made by the seller to the buyer at the point of destination.
4 SALES. Prima-facie case of contract requiring seller to deliver is not met by evidence of seller's uncommunicated contrary intention.
This prima-facie case is not met by evidence of an intention on the part of the seller to assume no responsibility of the goods after delivery to the carrier not communicated to the buyer.
5 SALES. Buyer not bound by printed memorandum at top of invoice not called to his attention declaring seller not responsible for goods delivered to carrier.
The buyer of goods to be shipped to him by the seller is not bound by a printed memorandum at the top of the invoice forwarded to him by the seller that the seller assumes no responsibility for the goods after he delivers them to the carrier for transporation to the buyer in the absence of evidence that such memorandum had been brought to the buyer's attention.
APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.
Suit by the Liberty Mills against the Evans-Terry Company. Verdict and judgment for plaintiff, and the defendant appeals. Reversed, and judgment rendered for appellant.
Judgment reversed.
W. S. Welch, for appellant.
In examining the question as to whether the railroad company was the agent of the shipper, or the purchaser, it is pertinent to look into the question of the place of delivery. If the point of destination is the place of delivery, then beyond a doubt, the railroad company is the agent of the shipper and not the purchaser. I do not know of a single exception to this rule. (35th Cyc. 332.)
The only case I have found in which a contrary rule was announced, is the case of Scharff v. Meyer, 133 Mo. 428. But in that case the articles purchased were consigned, not to the order of the shipper, but to the respective purchasers, drafts being drawn on the purchasers. From a reading of the syllabi in Scharff v. Meyer, the case would seem to be in point, but on a careful reading of the case, it will appear that this case is not in point, but a later case from the supreme court of Missouri is directly in point. I refer to the case of Hunter v. Stanley, 4 S.W. 869. Kentucky Refining Co. v. Globe Co., 104 Ky. 559, 47 S.W. 602, 42 L. R. A. 353, 84 Am. St. Rep. 468; Thick v. Ry. Co., 137 Mich. 708, 101 N.W. 64, 109 Am. St. Rep. 694; Southern Lumber Co. v. Mercantile Co., 89 Mo.App. 141; Ramsey v. Gore Mfg. Co., 22 L. R. A. 415.
The ordinary effect of passing title by delivery to the carrier may be controlled by taking a bill of lading. Bruce v. Wait, 3 Mees. & W. 15; Wait v. Baker, 2 Exch. 1, 17 L. J. Exch. ; Turner v. Liverypool Docks, Trustees, 6 Exch. 543, 20 L. J. Exch. 393; Ellershaw v. Magniac, 6 Exch. 570; The Aurora, 40. Rob. 218; Jones v. Brewer, 79 Ala. 545; Berger v. State, 50 Ark. 20; Seymour v. Newton, 105 Mass. 272; Farmers & M. Nat. Bank v. Logan, 74 N.Y. 568.
Agents for the purchase of goods may retain title in themselves until they are paid for, by taking a bill of sale in their own names and taking a bill of lading in such terms as to show their intention to retain the control and disposition of the property. Farmers & M. Nat. Bank v. Logan, supra.
Making goods deliverable to consignor's order. If the goods are sent by the consignor on his own account, subject to his own order, they remain his until some future act is done to transfer the title to the consignee. Baker v. Fuller, 21 Pick. 318. If the property is delivered to the carrier as that of the vendor and subject to his order, no title will pass to one claiming as vendee. Lester v. McDowell, 18 Pa. 91. If the goods are consigned to the shipper in the care of purchaser, the title will not pass so as to place them at the purchaser's risk. Ward v. Taylor, 56 Ill. 494.
The title does not pass if the property is shipped consigned to the seller. Sohn v. Jervis, 101 Ind. 578. If the shipping receipts direct the carrier to deliver the goods to the shipper's order, the title will not pass so as to authorize a delivery to the buyer until such order has been given. Libby v. Ingalls, 124 Mass. 503.
Taking the bill of lading in the name of the consignor prevents the title from passing until the bill of lading is assigned. McCormick v. Joseph, 77 Ala. 236. If, by the bill of lading, the goods are to be delivered to the order of the vendee, it clearly operates, in the absence of rebutting evidence, to retain the title in the vendor, and indicates an intention that the property shall not pass. Alabama G. S. R. Co. v. Mount Vernon Co., 84 Ala. 173.
If the contract is to deliver the goods on the rail or the vessel, the fact that after they are so delivered the seller takes a bill of lading in his name is merely evidence for the consideration of the jury as to whether he intended to deliver or not. Gibbons v. Robinson, 63 Mich. 146. If the bill of lading is attached to a bill of exchange and forwarded to a bank for collection the title will not pass. Seelingson v. Philbrick, 30 F. 601; Bank of Rochester v. Jones, 4 N.Y. 497, 55 Am. Dec. 290; Indiana Nat. Bank v. Colgate, 4 Daly, 41; Erwin v. Harris, 77 Ga. 333; Bergeman v. Indianapolis & St. L. R. Co., 104 Mo. 77; Sheppherd v. Harrison, L. R. 5 R. L. 116, 40 L. J. Q. B. 148, 24 L. T. (N. S.) 857, 20 Week Rep. 1 affirming L. R. 4 Q. B. 196, 38 L. J. Q. B. 105, 177, 4 Q. B. 196, 406, 493, 38 L. H. Q. B. 105, 177; Jenkyns v. Brown, 14 Q. B. 496, 19 L. J. Q. B. 286, 14 Jur. 505.
There is no other reported case from the supreme court of Mississippi, in point, except the case of Rosenbaum's Sons v. Davis & Andrews Co., 71 So. 389. This was the question involved in the case of J. and G. Lippman v. Foote-Patrick Company, which was affirmed without a written opinion. I had there the side of the contention on which my friend Hilbun finds himself. I lost in the lower court and the case was affirmed in the supreme court without opinion. I tried hard to convince the court that the consignment of the shipment to the order of the consignor made no difference and tried to invoke Planter's Oil Mill Manufacturing Co. v. Falls, et al., 29 So. 786, but without avail. There is, therefore, no decision in point in any reported case from Mississippi upon this particular phase of the case, except the Rosembaum case hereinafter referred to.
I think Strauss et al. v. National Parlor Furniture Co., 24 So. 703, is directly in point on the question of submission of the issues to jury. Thick v. Ry. Co., 109 Am. State Report 694; 35 Cyc. section B, 332; Jones v. Brewer, 79 Ala. 545; Bergman v. Indianapolis Ry. Co., 104 Mo. 77, S.W. 992; Hunter Bros. v. Stanley, 4 S.W. 869; Jones v. Brewer, 79 Ala. 545; Naimeyer Lumber Co. v. Burlington Ry. Co., 54 Neb. 321, 74 N.W. 670, 40 L. R. A. 543.
It is further held, that the fact that the seller not only has the goods consigned to his order, but the bill of lading is forwarded to the seller's agent with draft attached to be delivered to the buyer on payment of the draft, is an additional circumstance showing the seller's intention of not parting with the title to the property sold. 35 Cyc. 333; Ky. Refining Co. v. Globe Refining Co., 104 Ky. 559, 42 L. R. A. 353; see, also, 4 Ruling Case Law, page 15, section 18, Notes two and three; Benjamin on Sales (1 Ed.), section 455.
Leading case absolutely in point. For a leading case absolutely in point, I refer to the case of Greenwood Grocery Company v. Canadian County Mill & Elevator Company, 72 S.C. 450, 52 S.E. 191, 110 Am. St. Rep. 627, 5 Ann. Cases, 261, 2 L. R. A. (N. S.) 79; Bank of Rochester v. Jones, 55 Am. Dec. 290. See, also, the case of Means v. Randall Bank, 146 U.S. 620, 13 S.Ct. 186, 36 Lawyers Ed. See, also, Note to L. R. A. (N. S.) 79.
For an exceedingly clear and concise statement of the law applicable to this case, see sections 306 and 307, pages 43 and 44 of Vol. 24, Ruling Case Law. See, also, the long list of cases cited in support of the statements there found. My opponent seems to...
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