Greenwood Grocery Co. v. Canadian County Mill & Elevator Co.
| Decision Date | 17 October 1905 |
| Citation | 52 S.E. 191,72 S.C. 450 |
| Parties | GREENWOOD GROCERY CO. v. CANADIAN COUNTY MILL & ELEVATOR CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenwood County; Gary Judge.
Action by the Greenwood Grocery Company against the Canadian County Mill & Elevator Company. From an order refusing to dissolve an attachment, defendant appeals. Affirmed.
W. K Blake and Caldwell & Giles, for appellant. Sheppards, Grier & Park, for respondent.
The complaint in this cause is to recover damages for breach of a contract to deliver a car load of flour to the plaintiff. The defendant being a foreign corporation, an attachment was issued to obtain jurisdiction and under the warrant the flour was seized in the hands of the railroad company at Greenwood, S.C. The defendant moved to dissolve the attachment, on the ground that it appeared from the complaint and the affidavit the flour was the property of the plaintiff and not of the defendant, and hence the court was without jurisdiction. The motion was refused and defendant appeals.
The essential facts stated in the complaint and the affidavit are as follows: The defendant, Canadian County Mill & Elevator Company, a corporation resident in El Reno, Okl., contracted to sell and deliver to plaintiff, Greenwood Grocery Company at Greenwood, in this state, 250 barrels of flour at $4.50 per barrel. The defendant consigned to the plaintiff the flour, and sent draft on plaintiff, with bill of lading attached, to the Bank of Greenwood, but the draft required payment for the flour at $5.50 per barrel, instead of $4.50, the contract price. Plaintiff tendered to the bank the contract price and demanded the bill of lading, but the bank refused to accept less than the full amount of defendant's draft, and, upon plaintiff's refusal to pay more than the contract price, withheld the bill of lading. Thereupon the plaintiff brought this action for damages, attaching the flour in the hands of the railroad. The defendant's position is that when the flour was delivered to the carrier consigned to the plaintiff, it ceased to be the property of the defendant, and became the property of the plaintiff, subject only to the right of stoppage in transitu, and that therefore the attachment must fall.
1. The general rule is that an attachment will not be dissolved, on the ground that the defendant has no title to the property, or that it is the property of the plaintiff. The defendant's lack of interest in the property would affect the title of the purchaser under the attachment, but not the validity of the process. Drake on Attachments, § 417. As said in Metts v. Insurance Company, 17 S.C. 120, 123: "The attachment is based on facts disconnected with the property, and it must stand or fall upon these facts." But it is manifest this reasoning does not apply where the court obtains jurisdiction of a nonresident by virtue of the attachment of his or its property in the state. In such case, the jurisdiction and the validity of the attachment depend upon the defendant having property in the state, and if this fact does not appear, it is fatal. 4 Cyc. 775. In this case the flour is the property in this state alleged to belong to defendant, and if the title to that has passed from the defendant to the plaintiff, the attachment should be dissolved.
2. The sole question, therefore, is whether by drawing on the plaintiff with the bill of lading attached to the draft and refusing to deliver the bill of lading without payment of the draft, the defendant retained title and right of possession of the property. The effect of a bill of lading issued by the carrier who is a third party, on the title to the property as between the consignor and consignee is a question of fact depending not only on the terms of the paper itself, but on the intention of the parties as expressed by their dealings with each other. 1 Benjamin on Sales, § § 568, 579, 580; Emery v. Irving National Bank (Ohio) 18 Am. Rep. 299; 24 A. & E. Enc. Law, 1066; Hobart v. Littlefield, 13 R.I. 341; Merchants' National Bank v. Bangs, 102 Mass. 291; Kentucky Refining Co. v. Globe Refining Co. (Ky.) 47 S.W. 602, 42 L. R. A. 353, 84 Am. St. Rep. 468; Chandler v. Sprague, 38 Am. Dec. 418, note; 23 Eng. Rul. Cases, 383, note. The fact that the bill of lading is taken, making the goods deliverable to the order of the vendor, who is himself the consignor, is very strong prima facie evidence that the vendor in delivering the goods to the carrier intended to reserve the title until payment of the purchase money; and when a draft for the price is drawn on the purchaser with such bill of lading attached, the title does not ordinarily pass to him until the draft is paid. Bank v. Rowan, 23 S.C. 339, 55 Am. Rep. 26; 1 Benjamin on Sales, § 567; Porter on Bills of Lading, § 482; Dows v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214; Kentucky Refining Co. v. Globe Refining Co. (Ky.) 47 S.W. 602, 42 L. R. A. 353, 84 Am. St. Rep. 468; Hopkins v. Cowen (Md.) 44 A. 1062, 47 L. R. A. 124; Emery v. Irving National Bank, 18 Am. Rep. 299; National Bank v. Crocker, 111 Mass. 167; Bank v. Cummings (Tenn.) 18 S.W. 115, 24 Am. St. Rep. 618; Farmers' & Merchants' National Bank v. Logan, 74 N.Y. 568; Lanfear v. Blosman, 45 Am. Dec. 76; Stollenwerck v. Thacher, 115 Mass. 224; Erwin v. Harris, 87 Ga. 333, 13 S.E. 513. But this presumption may be rebutted by other circumstances and previous dealing of the parties evidencing a different intention. Porter on Bills of Lading, § 485.
In this case, however, it seems by the terms of the bill of lading the goods were deliverable to the consignee. The presumption therefore was that the consignor intended the title to pass. Emery v. Irving National Bank, 18 Am. Rep. 299; 1 Benjamin on Sales, § 586. If, therefore, the railroad company had delivered the goods to the consignee without the surrender of the bill of lading and without notice of any reservation of title and possession, it would not be liable to the consignor, though he actually intended to reserve the title and possession until payment of his draft for the price. Bank v. Railway Co., 25 S.C. 224. As between the vendor and purchaser, the authorities leave no room to doubt, however, that even if the bill of lading provides for delivery to the consignee, yet if the consignor draws for the price attaching the bill of lading to the draft, this is sufficient evidence of his intention to reserve the title and right of possession until the draft is paid, and the consignee is not entitled to the goods until payment. Emery v. Irving National Bank, 18 Am. Rep. 299; Chandler v. Sprague, 38 Am. Dec. 419, note; Bank of Rochester v. Jones, 55 Am. Dec. 290; Cayuga County National Bank v. Daniels, 47 N.Y. 631; Marine Bank v. Wright, 48 N.Y. 1; Halsey v. Warden, 25 Kan. 128; First National Bank of Green Bay v. Dearborn, 15 Am. Rep. 92. That the intention of the shipper as evidenced by his action in respect to the bill of lading is controlling, is supported by the elaborate opinions in Shepherd v. Harrison, 23 E. Rul. Cases, 349, especially the opinions of Kelly, C. B., and Lord Chelmsford. Here, according to the statement of the complaint and the affidavit, not only did the defendant, the consignor, express its intention to reserve the jus disponendi by presenting through a bank the draft with the bill of lading attached, but the plaintiff expressed this to be also its understanding of the contract by offering to pay the price, as it claimed it to be, as a condition precedent to acquiring possession of the bill of lading, and through it of the flour.
It is argued, however, that according to the complaint,...
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