Hieskell v. Farmers' and Mechanics' Nat. Bank

• Decision Date: 05 May 1879
• Citation: 89 Pa. 155
• Parties: Hieskell <I>versus</I> Farmers' and Mechanics' National Bank.
• Court: Pennsylvania Supreme Court

89 Pa. 155

Hieskell versus Farmers' and Mechanics' National Bank.

Supreme Court of Pennsylvania.

February 14, 1879.

May 5, 1879.

February 14th 1879.

Before SHARSWOOD, C. J., GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ. MERCUR, J., absent

Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1876, No. 79.

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James E. Gowen and J. B. Townsend, for plaintiff in error.— Ball, Hutchings & Co. did not take as purchasers or owners of the title to the cotton, but as pledgees to secure the payment of their advances. The right which Morey & Co. passed to them by the endorsement of the bill of lading was that of pledgees merely, and no greater right accrued to the bank. No assignee or endorsee of a bill of lading can have a higher right than the shipper to whose order it is issued. The bank, therefore, had no right to retain the bills of lading after the acceptance of the drafts: Bank v. Bank, 1 Otto 92.

The carrier was the agent of the holder of the bill of lading for preserving the lien of the latter on the goods, and if he takes the responsibility of delivering the goods to a party whom he knows to be the buyer, without requiring the production of the bill of lading, especially where the course of previous dealing has led the carrier to infer that the holder of the bill of lading consents to the delivery to the buyer of the goods, the title to the buyer passes so far as to give protection to bona fide purchasers from him, and to protect the carrier: Ontario Bank v. New Jersey Steamboat Co., 59 N. J. 510.

The court erred in refusing to answer defendant's points, and in taking away from the jury the questions of the nature of the bank's title, whether by way of pledge or otherwise; as to Morey & Co.'s power without Hellen's assent to bargain for the retention of the bills of lading; whether the laches or omission of the bank had not contributed to cause the Hieskells to make their transaction with Hellen; all questions of usage of the port as to the deliveries of cotton by the carrier, and as to the course of dealing which impliedly recognised formerly deliveries of cotton to Hellen; and the questions resulting from Hieskells being bona fide purchasers or pledgees for value, without notice; and therefore standing in a new and stronger position than Hellen.

John G. Johnson and Richard L. Ashhurst, for defendant in error.—The court ought not to submit a point to the jury when there is no evidence to sustain it: Inkett v. Coryell, 5 W. & S. 60. The court is not bound to answer any question which is not pertinent to the issue and does not arise fairly out of the evidence.

The carrier's unauthorized delivery of the cotton to Hellen did not enable him to pass a good title to the Hieskells as bona fide purchasers for value. There could be no delivery except in accordance with the bill of lading: Dows v. Milwaukee Bank, 1 Otto 618; Meyerstein v. Barber, L. R. 2 C. P. 38; Stollenwerck v. Thatcher, 115 Mass. 224.

Mr. Justice STERRETT delivered the opinion of the court, May 5th 1879.

The bills of lading, taken by J. M. Morey & Co. for delivery to their order, were symbols of property in the cotton, and when properly endorsed and delivered by them to Ball, Hutchings & Co. operated, in law, as a delivery of the cotton itself; thus investing the endorsees with a constructive custody which served all the purposes of an actual possession, and so continued until there was a valid and complete delivery of the property, under and in pursuance of the bills of lading, to a person entitled to receive the same. The special property and possession thus acquired by Ball, Hutchings & Co. were transferred by them to the National City Bank of New York for collection of the drafts to which the bills of lading were attached, and by it, in turn, to the Farmers' and Mechanics' National Bank, defendant in error.

There was no dispute as to the material facts of the case. It was clearly shown, inter alia, that the cotton was purchased by J. M. Morey & Co., of Galveston, Texas, for account and by direction of J. F. Hellen, of Philadelphia, and shipped via New York, from the former to the latter port; that Morey & Co., not having been provided with funds, requested Ball, Hutchings & Co. to advance money to buy the cotton, which they agreed to do, upon the express condition that they should be furnished with the insurance certificates and drafts drawn on Hellen for the price, together with the bills of lading, and that they should hold the latter, as well as the cotton, until the drafts were not only accepted, but paid; that, with the funds thus advanced on the faith of this arrangement, Morey & Co. purchased and shipped the cotton in their own name, drew on Hellen at thirty days' sight for the amount, and according to agreement, endorsed the drafts and bills of lading to Ball, Hutchings & Co., who transmitted them, duly endorsed, to the bank in New York, by which they were sent to the defendant in error; that both banks were instructed to retain the bills of lading until actual payment of the drafts, to each of which was attached a bill of lading with a slip of paper on which was written: "Hold bill of lading until draft is paid;" that the drafts with the bills of lading thus attached were duly presented to and accepted by Hellen, who neither then nor afterwards demanded the bills of lading; that in due time the cotton arrived at Philadelphia and was delivered by the Express Steamboat Co. to Hellen, without the knowledge of the bank or presentation of the bills of lading; that Hellen immediately stored the cotton with the plaintiff in error and received an advance thereon of $10,000; and as soon as the bank learned that the cotton had been delivered and stored the writ of replevin was issued.

The court, after calling attention of the jury to the testimony as to the terms on which Morey & Co. procured the money with which the...