First Nat. Bank of Helena v. Mcandrews

• Decision Date: 29 January 1885
• Parties: FIRST NAT. BANK OF HELENA v. McANDREWS and others.
• Court: Montana Supreme Court

5 Mont. 325

FIRST NAT. BANK OF HELENA

v.McANDREWS and others.

Supreme Court of the Territory of Montana.

Filed January 29, 1885.

Appeal from Second district, Deer Lodge county.

J. C. Robinson, for appellants.

E. W. & J. K. Toole, for respondent.

WADE, C. J.

This was an action of claim and delivery, in which the plaintiff sought to recover the possession of certain cases of silver bullion shipped to it, by the Northwestern Company, at Phillipsburg, and, while en route, seized by attachment in an action by Samuel E. Larrabie against said Northwestern Company. The case was tried to the court, who made certain findings of fact, and thereon rendered a judgment in favor of plaintiff, from which, and an order overruling a motion for a new trial, the defendants appeal to this court. The facts found by the court are as follows:

(1) That the bullion described in plaintiff's complaint was produced from the Northwestern Company, and was shipped by it to Helena, consigned to plaintiff.

(2) That the same was seized by defendants McAndrews and Smith under a writ of attachment, while in transit, in an action by defendant Larrabie against the Northwestern Company; and that defendants McAndrews and Smith were, at said time, the sheriff and deputy-sheriff of Deer Lodge county, Montana; and that all proceedings to obtain said writ were regular, and that judgment was entered in favor of said Larrabie against said Northwestern Company in said action, and defendants held said bullion by virtue of said writ of attachment.

(3) That at and prior to the shipment of the bullion in controversy in this case, there was an express contract between plaintiff and the Northwestern Company, that, in consideration of advances to be made by plaintiff to said company in carrying on its mining operations, said company would ship to plaintiff its products of bullion, which was to be credited to its account.

(4) That at the time said bullion was shipped said plaintiff had advanced to said company upon the faith of said contract about the sum of $6,000, which stood as a charge against said company, and is yet unliquidated and unsettled.

(5) That said bullion was, in accordance with the terms of said contract, billed, shipped, marked, and consigned to said plaintiff, and placed in possession of and received by Gilmer & Salisbury, common carriers of freight and express matter, upon a contract at special rates to be paid at Helena, Montana, by plaintiff, upon receipt of said bullion by it at said place; said charges for freight to be charged to the account of said company.

(6) That said bullion was to be credited to the account of said company upon a sale thereof by plaintiff, and that said account was a running account.

(7) That after said bullion was so shipped and consigned to said plaintiff, and while in possession and custody of said carriers en route to its destination, the same was attached at the suit of Larrabie and levied upon by his co-defendants, as the officers charged with the execution of said process, on the thirty-first day of May, 1879, at Deer Lodge City, Montana.

(8) That said property was at said time of the value of $3,000, and was and still is detained by defendants.

The bullion in question having been “billed, shipped, marked, and consigned” to the respondent, under and by virtue of the contract mentioned in the findings of fact by the court, and placed in the possession of the common carrier, did the possession of and property in the bullion thereby become vested in the respondent, or did such possession and property remain with the Northwestern until the bullion had been actually received by the respondent and credited to the account of the company? There was no bill of lading transmitted to the bank, and no letter or notice informing it that the bullion had been shipped. The advances by the bank had been made prior to the shipment, and the situation was as if the shipment had been made under a contract in satisfaction of antecedent advances.

We will have to consider what effect the absence of a bill of lading and of notice of the shipment to the bank had upon the rights of these parties. A bill of lading is a commercial instrument, and is a written acknowledgment signed by the master of a vessel, or by a common carrier, that he has received the goods therein described from the shipper to be transported on the terms therein expressed to the described place of destination, and there to be delivered to the consignee or parties therein designated. Abb. Shipp. (7th Amer. Ed.) 323; O'Brien v. Gilchrist, 34 Me. 558; 1 Pars. Shipp. 186; Macl. Shipp. 338; Emirig. Ins. 521. A bill of lading is a symbol of the ownership of the goods covered by it, -a representative of the goods. It is regarded as so much cotton, grain, iron, or other articles of merchandise.The merchandise is very often sold or pledged by the transfer of the bill of lading which covers it. Shaw v. Railroad Co. 101 U. S. 564, 565. Hence it is held by the authorities that the transmission of a bill of lading by the consignor to the consignee is a delivery of the possession of the goods covered by it, and that thereby the title to the property passes from the consignor to the consignee. See Haille v. Smith, 1 Bos. & P. 563; Desha v. Pope, 6 Ala. 690; Gibson v. Stevens, 8 How. 384;Grove v. Brien, Id. 429; Bryans v. Nix, 4 Mees. & W. 775; Anderson v. Clark, 2 Bing. 20; Holbrook v. Wight, 24 Wend. 169;Grosvenor v. Phillips, 2 Hill, 147;Sumner v. Hamlet, 12 Pick. 76;Nesmith v. Dycing Co. 1 Curt. 130;Valle v. Cerre's Adm'r, 36 Mo. 575.

The transmission of a bill of lading amounts to the actual delivery of the possession of the property described in it, and is a compliance with the statute of frauds as to the sale and delivery of property. The contract mentioned in the findings was an executory contract to be completed by the delivery of the bullion therein described. Knight, the cashier of the bank, testified that the bullion was to be delivered to the bank at Helena. In the absence of a bill of lading or a letter, or notice from consignor to consignee informing him of the shipment of bullion, is the fact that the bullion in question was “billed, shipped, marked, and consigned” to the respondent, such an appropriation of the property to the contract as completes a bargain and sale, and delivers the possession thereof to the purchaser? If the consignor had done some conclusive unconditional act by which the consignee was, or was to be informed that the bullion shipped was to be applied on the consignor's account for money advanced, then undoubtedly the delivery of the property to the common carrier, properly marked and addressed, would have been a delivery to the consignee, and an appropriation of the property to the contract. But the mere shipment of the property, without notice, was not such conclusive act. The shipment did not bind the consignor. He did not thereby lose his control over the property. He might have stopped it while en route to its destination, and sent it to some other place or person. By the terms of the contract, the company, the consignor, was to pay the freight, and the bullion was not to be credited to the account of the company until it had been received and sold by respondent. There was something to be done besides a delivery to respondent. “Said bullion was to be credited to the account of the company upon a sale thereof by plaintiff.” The respondent had no right to make this credit until a sale of the bullion. When the property was sold, the proceeds belonged to the respondent. If there was to be no credit until a sale, what property passed until a sale had been made? There must be an acceptance as well as a delivery. Suppose this bullion had been “billed, shipped, and marked” at double its value? Would the consignee have been bound by the valuation of the consignor? The carrier had no right to accept of the property for the consignee. The value was to be ascertained by a sale, and then, and not until then, had the consignee any right to make the credit. In the case of Johnson v. Cuttle, 105 Mass. 449, the court says:

“A common carrier, whether selected by the seller or by the buyer, to whom the goods are intrusted, without express instructions to do anything but to carry and deliver them to the buyer, is no more than an agent to carry and deliver the goods, and has no implied authority to do the acts required to constitute an acceptance and receipt on the part of the buyer, and to take the case out of the statute of frauds. ** The steam-boat company having no authority to receive and accept the goods so as to bind the buyer, and there being no evidence that the buyer, in person or by any authorized agent, ever had actual possession of the goods, or opportunity to see them or ascertain whether they conformed to his order, or ever exercised any control over them by sale or otherwise, or ever received any bill of lading of the goods, the case is within the statute of frauds and the action cannot be maintained.”

If a bill of lading had evidenced the intent and purpose of the consignor in shipping the bullion, or if this intent had been evidenced by any other conclusive unconditional act, such as a notice of the shipment to the consignee, then a delivery to the carrier in pursuance of such bill of lading or notice would have vested the title in the consignee. But in a case where the consignee had never seen or accepted the property, where there was no bill of lading or any notice of shipment, the consignor paying freight, and having the right to recall the goods or to change their destination, and the agreement under which they are shipped providing that the property shall not be credited to the account of the consignor until the same has been actually received and sold by the consignee, then the mere act of shipment would not have the effect to vest the title in the consignee. In the case of Halliday v. Hamilton, 11 Wall. 564, the...