First Nat. Bank v. Northern P. Ry. Co.
| Decision Date | 25 April 1902 |
| Citation | 28 Wash. 439,68 P. 965 |
| Parties | FIRST NAT. BANK OF PULLMAN v. NORTHERN PAC. RY. CO. |
| Court | Washington Supreme Court |
Appeal from superior court, Whitman county; William McDonald, Judge.
Action by the First National Bank of Pullman against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Stephens & Bunn, for appellant.
W. J Bryant and H. W. Canfield, for respondent.
Action by respondent, a bank, to recover the value of two consignments of wheat carried by the appellant railway company from Whelan to Spokane. The wheat was shipped by Chambers, the owner. The railway company delivered to Chambers two bills of lading exactly alike except in the quantity of wheat described therein, one of which is as follows:
The case was tried by the court without the intervention of a jury. The railway company, defendant, carrier, set up some matters affirmatively in defense. This portion of the answer was stricken before trial, and error is assigned upon such ruling of the court. But, as this defense went to the construction and effect of the bills of lading, the error will be considered in the determination of the merits on the facts as found. These are that Chambers was the owner of the wheat, and consigned the same to the Centennial Mill Company at Spokane, and that no other names appeared in the bill of lading that 'Chambers' and 'Centennial Mill Company'; that Chambers, upon the shipment, sold assigned, transferred, and set over the bills of lading to the bank by indorsing his name on the back thereof, for the actual consideration of the purchase price of the wheat which was paid in cash to Chambers, and which Chambers used to pay for the purchase of the wheat, and that plaintiff is the owner of the bills of lading and entitled to the delivery of the wheat; that defendant carried the wheat to Spokane, and, without any order or authority of plaintiff or Chambers, and without demanding or receiving a surrender of the bills of lading, wrongfully delivered the same to the Centennial Mill Company; that before the commencement of the action plaintiff demanded of defendant the delivery of the wheat, which delivery was refused. It was further found that in the spring of 1898 Chambers, Price & Co., doing business at Pullman, contracted to ship to the Centennial Mill Company a certain number of bushels of No. 1 wheat; that the wheat, when shipped, was subject to inspection at the terminal by the mill company, and was also subject either to rejection or dockage in weights and grades; that Chambers, Price & Co., pursuant to the contract, had shipped a sufficient number of bushels of grain to fill their contract with the mill company, but by reason of dockage and discount for claimed shortage in weights and deficiencies in quality the mill company claimed a balance due in money in the sum of $665.58; that thereafter, in July, 1898, Chambers, who was a former partner of the firm of Chambers, Price & Co., the said firm having become insolvent, and having been theretofore dissolved, agreed with the mill company to carry out the firm contract of Chambers, Price & Co., and himself shipped the amount of grain necessary to fill the amount agreed to be delivered to the mill company at Spokane, and it was then agreed between Chambers and the mill company that he should draw against said shipments 50 to 55 cents per bushel in money to cover the purchase price of said grain, and no more; that Chambers and the Centennial Mill Company had, during a term of years, and it was the fixed and established custom between them, for Chambers, as shipper and vendor, to draw drafts through a banking house for the price of the commodities so shipped, and to attach the bills of lading thereto, and at the time of the transaction in controversy Chambers had no notice of any repudiation thereof, or of any change on the part of the Centennial Mill Company in said settled course of business between them; that plaintiff, upon the receipt of the bills of lading and a draft upon the Centennial Mill Company for the price of the wheat, forwarded such bills of lading, with the draft attached, for collection from the mill company, but the mill company refused to receive the bills of lading or pay the draft, and they were returned to plaintiff; that at the time of the delivery of the wheat to the mill company it knew that plaintiff held the draft and bills of lading. The court concluded that the refusal of defendant to deliver the wheat to plaintiff on presentation of the bills of lading was conversion, and found the value of the wheat, and gave judgment in favor of plaintiff against the defendant for such amount.
1. The principal controversy between counsel is the function and construction of the bills of lading. It is urged by counsel for appellant that, if there be no reservation by the shipper, the title presumptively rests in the consignee, and a number of authorities are cited to support the view that in an ordinary shipment of commodities the duty of the carrier is to deliver to the consignee; that the consignee is presumptively the party to recover for breach of the contract of carriage. As illustrative of and supporting the view among others the following authorities are mentioned: 2 Daniel, Neg. Inst. (4th Ed.)§§ 1743, 1744; 4 Elliott, R. R. § 1426; Pennsylvania Co. v. Poor (Ind. Sup.) 3 N. E. 253; The Sally Magee, 3 Wall. 451, 18 L.Ed. 197; Benj. Sales (6th Ed.) 332; Agricultural Co. v. Strand, 8 Wash. 647, 36 P. 682; Mattress Co. v. Rudebeck, 15 Wash. 336, 46 P. 392; Izett v. Mill Co., 22 Wash. 300, 60 P. 1128. Authorities are also cited which well support the contention that, where the carrier is ignorant of the fact that the consignor was the owner of the property, and the consignment is an absolute one, he has a right to assume that the consignee is the owner, and to settle a claim for loss with him. See Scammon v. Wells, Fargo & Co. (Cal.) 24 P. 284. But it is also urged that, where the consignor drew a sight draft on the consignee, and attached it to the bill of lading, and forwarded them to a third party for collection, and the company had no notice from the consignor to retain ownership and control of the shipment, and the company delivered it to the consignee without requiring production of the bill, the company was justified in presuming that the consignee was the owner, and that the company was discharged by the delivery to the consignee at the designation specified in the...
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