Jasper Trust Co. v. Kansas City, M. & B.R. Co.

• Decision Date: 21 November 1892
• Citation: 99 Ala. 416,14 So. 546
• Parties: JASPER TRUST CO. v. KANSAS CITY, M. & B. R. CO. [1] SOUTHERN EXP. CO. v. JASPER TRUST CO.
• Court: Alabama Supreme Court

14 So. 546

99 Ala. 416

JASPER TRUST CO. v. KANSAS CITY, M. & B. R. CO. ^[1]

SOUTHERN EXP. CO. v. JASPER TRUST CO.

Supreme Court of Alabama

November 21, 1892

Appeal from circuit court, Walker county; James B. Head, Judge.

Actions by the Jasper Trust Company against the Kansas City, Memphis & Birmingham Railroad Company on a bill of lading, and against the Southern Express Company for the failure to deliver a package of money. From a judgment for the railroad company, and a judgment against the express company plaintiff and the express company respectively appeal. Affirmed.

McClellan J., dissenting.

The causes of action in each of these two cases arose out of the same transaction, and, being so intimately connected, they were considered together. In the first case the Jasper Trust Company sued the Kansas City, Memphis & Birmingham Railroad Company to recover damages alleged to have been suffered by the plaintiff by reason of the alleged issue of a fraudulent bill of lading by an agent of the said railroad, said bill of lading acknowledging the receipt of 30 bales of cotton, on the faith of which receipt and acknowledgment the plaintiff advanced the amount for which the action was brought, no cotton, in fact, having been received by the defendant. In this case there was judgment for the defendant, and plaintiff appeals. In the second case the Jasper Trust Company sued the Southern Express Company for the failure to deliver a package of money to R. H. Sanford & Co.

In the case against the Kansas City, Memphis & Birmingham Railroad the defendant, after the introduction of all the evidence requested the court, in writing, to give the general affirmative charge in its behalf. The court gave this charge, and the plaintiff duly excepted.

In the case against the Southern Express Company the complaint contained two counts. The first seeks to recover for the failure of the defendant to deliver certain moneys sued for, which were delivered to it, as a common carrier, to be delivered to R. H. Sandford & Co. The second count claims the same sum for money had and received. Upon the introduction of all the testimony, the court, among other things, instructed the jury as follows: "If D. R. Sandford, being the agent of the railroad company, made out and signed the bill of lading in question for the purpose of defrauding or imposing on plaintiff, without having any cotton for shipment thereunder, or expecting to have any, but that the bill of lading was spurious and fraudulent, and if D. R. Sandford fraudulently procured plaintiff to ship the money to R. H. Sandford & Co., and if D. R. Sandford, as agent of defendant, received the money, it was his duty, as agent of defendant, to hold the money, when it came into his hands as agent of the express company, for the use of plaintiff, and, if he failed to do so, the defendant is liable in this action." The defendant excepted to this portion of the court's general charge, and also separately excepted to the court's refusal to give each of the following charges requested by it: (1) "It was the duty of the Jasper Trust Company to ascertain with whom it dealt, and in shipping money to R. H. Sandford & Co. at their request it was the duty of the Jasper Trust Company to ascertain with whom it dealt, and who R. H. Sandford & Co. was; and if, by failure to make such proper and necessary inquiries, the money was delivered to a fictitious firm, then the plaintiff has no right to a verdict." (2) "If the jury believe from the evidence that D. R. Sandford, or D. R. Sandford and his brother, composed the firm of R. H. Sandford & Co., and if the jury further believe that the money was delivered to D. R. Sandford for R. H. Sandford & Co., then the Jasper Trust Company is not entitled to a verdict." (3) "The burden of proving that the money was not delivered to R. H. Sandford & Co. is on the plaintiff; and if the plaintiff, the Jasper Trust Company, has failed to prove that the money was not paid over or delivered to R. H. Sandford & Co., the verdict must be in favor of the Southern Express Company." (4) "If D. R. Sandford, under the name of R. H. Sandford & Co., wrote the Jasper Trust Company to send the money, and Jasper Trust Company sent the money to R. H. Sandford & Co., and D. R. Sandford received the money from the express company, then the express company is not liable." (5) "If the jury believe the evidence, they must find a verdict in favor of the defendant, the express company."

E. W. Coleman, for appellant Jasper Trust Co. Wallace Pratt and Hewitt, Walker & Porter, for appellee Kansas City, M. & B. R. Co.

J. J. Altman, for appellant Southern Exp. Co. Coleman & Sowell, for appellee Jasper Trust Co.

STONE C.J.

These two cases are so intimately connected with each other that we will consider them together. The Jasper Trust Company, located at Jasper, was engaged in banking. On the Kansas City, Memphis & Birmingham Railroad, distant from Jasper some 60 miles, is a railroad station known by the name of Sulligent, and the Southern Express Company has an office there. D. R. Sandford was a depot agent of the railroad at that place, and was also agent of the express company; he filling both offices at that station. On September 9, 1890, D. R. Sandford, as agent of the railroad company, signed a bill of lading, using one of the railroad's blanks, by which he acknowledged to have received from R. H. Sandford & Co. 30 bales of cotton, weighing 15,000 pounds, in apparent good order, to be delivered to Barry Thayer & Co. at Boston, Mass. On the back of this bill of lading is this indorsement, without date: "Deliver to Jasper Trust Co. R. H. Sandford & Co." The original bill of lading has been sent up, under the trial court's order, for our inspection. We find a very striking resemblance and similarity in the two signatures,-D. R. Sandford to the bill of lading, and R. H. Sandford & Co. to the indorsement. Soon after the issue of this receipt, a draft was drawn on Barry Thayer & Co., Boston, Mass., bearing the signature of R. H. Sandford & Co., for a sum approximating the value of 30 bales of cotton, in favor of the Jasper Trust Company; and this draft, with the bill of lading attached, and indorsed to it as copied above, were forwarded to the trust company, and by it discounted. That company thereupon attempted to remit the proceeds of the draft (something over $1,100) to R. H. Sandford & Co. at Sulligent, and to that end delivered the money to the Southern Express Company, taking its receipt and obligation to pay and deliver the same to R. H. Sandford & Co. Soon afterwards D. R. Sandford, the agent alike of the railroad and the express company, absconded, carrying with him said sum of money, together with other moneys obtained by similar practices. The bill of lading acknowledging the receipt of the 30 bales of cotton to be shipped was false and fraudulent, no cotton in fact having been received. Nor was there such a firm as R. H. Sandford & Co. The entire transaction was planned and carried into effect by D. R. Sandford, the agent. He issued the false bill of lading; issued it to R. H. Sandford & Co., when there was no such firm or business house. He indorsed the pretended name of this fictitious firm on the bill of lading, to give it negotiability, and to enable him to consummate his fraudulent scheme. The money consigned to this fictitious firm, in due course of business, came to him as the express company's agent at Sulligent, and he did not deliver it to R. H. Sandford & Co. He could not, for they were a fiction.

The Jasper Trust Company instituted these two suits,-the one against the railroad company for the nondelivery of the 30 bales of cotton. This suit, under the trial court's ruling, terminated in favor of the defendant. The facts were all agreed on, and at the written request of the defendant the railroad company, the court charged the jury that, if they believed the evidence, they should find for the defendant. They so found. There can be no question that before February 28, 1881, the trust company was without right to maintain this action. Advancing money on a false bill of lading given by the railroad's agent would have placed them upon no higher ground than the person to whom it was improperly issued would have occupied. It was in no sense a negotiable instrument. Moore v. Robinson, 62 Ala. 537. On February 28, 1881, (Sess. Acts, p. 133,) the act was approved, "to prevent the issue of false receipts," etc. The principles of that statute have carried into the Code of 1886, commencing with section 1175. We quote from section 1179: "If any common carrier, not having received things or property for carriage, shall give or issue a bill of lading, or receipt, as if such things or property had been received, *** such carrier *** or person is liable to any person injured thereby for all damages, immediate or consequential, therefrom resulting." An argument, prepared with great labor and research, has been submitted by the appellee. Its contention is that, while D. R. Sandford was the accredited depot agent to execute bills of lading for freight to be transported on the railroad, he had no authority to execute such bills unless the thing or merchandise to be transported was in fact received; that, as the cotton specified in the bill of lading was not received, Sandford transcended his delegated authority when he gave the receipt, and fastened no liability on the railroad company. This ingenious argument is followed by many citations of authority. In the absence of our statute, the foregoing argument would be conclusive. The bill of lading not being, in any sense, a negotiable instrument, the indorsee could asert no greater rights than the indorser could have asserted. 2 Am. & Eng. Enc. Law,...