Louisville & N.R. Co. v. National Park Bank of New York

• Decision Date: 12 May 1914
• Docket Number: 694
• Citation: 65 So. 1003,188 Ala. 109
• Parties: LOUISVILLE & N.R. CO. v. NATIONAL PARK BANK OF NEW YORK.
• Court: Alabama Supreme Court

65 So. 1003

188 Ala. 109

LOUISVILLE & N.R. CO. v. NATIONAL PARK BANK OF NEW YORK.

No. 694

Supreme Court of Alabama

May 12, 1914

Rehearing Denied June 18, 1914

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Action by the National Park Bank of New York against the Louisville & Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

The following is amended count 5:

Plaintiff claims of defendant the other and further sum of $150,000 damages suffered by it as a proximate result of a wrongful conspiracy entered into, to wit, the year 1905, by and between Knight, Yancey & Co., a partnership, doing business at Decatur, Ala., and the defendant Louisville &amp Nashville Railroad Company, which conspiracy was as follows Knight, Yancey & Co. were engaged in the business, among other things, of buying cotton, and of shipping it to various importers in Europe. Such export business is ordinarily and legitimately carried on, so far as making the payments for cotton is concerned, by the seller drawing drafts on the purchaser for the price of the cotton, and to these drafts attaching bills of lading issued by carriers to the shipper's order for cotton, which drafts with such bills of lading so attached are discounted by the shippers to banks. Such practices prevailed at all the times referred to herein. Defendant was and is a common carrier, and was and is engaged by itself, and in connection with other carriers, in the transportation of cotton from points on its line and railroad to various European ports. Knight, Yancey & Co., and defendant through its agent John A. Bywater, or other agents of it, whose names are to plaintiff unknown, all of whom were therein acting within the line and scope of their employment, in, to wit, the year 1905, wrongfully conspired that thereafter said Knight, Yancey & Co. would make up and utter false and spurious documents purporting to be defendant's bill of lading for cotton shipped by them over defendant's railroad, and the same use and dispose of it in the conduct of their cotton exporting business as if they were defendant's genuine bills of lading issued for cotton received by it; and defendant would through the influence of its business relations with its connecting carriers aid and assist in causing delivery to be made by such connecting carriers to the holders of such false and spurious bills of lading of any cotton, which said Knight, Yancey & Co. might subsequently to the issue of such false and spurious bills of lading ship over defendant's railroad and connections, marked and consigned in substantial conformity with the purported marks and consignment of the cotton purported to be shipped under such false and spurious documents, and pursuant to and as a part of such conspiracy the said Knight, Yancey & Co., between, to wit, April 7, 1910, and April 30, 1910, made up and issued false and spurious documents purporting to be defendant's bill of lading calling for the carriage by defendant and connecting carriers of, to wit, 1,950 bales of cotton from points in Alabama to Liverpool, England, shipped by Knight, Yancey & Co. to their own order; and plaintiff says that said Knight, Yancey & Co. attached said false document to negotiable drafts drawn by them on drawees in Liverpool, England, for the face amount of $150,000, and the same discounted or caused to be discounted with plaintiff which was and is a bank doing business in New York City, to wit, the sum of $150,000. And plaintiff says that it discounted said drafts in the usual course of business, and in good faith believing that the documents thereto attached were defendant's genuine bills of lading, and plaintiff says that drafts and said bills of lading were wholly worthless, and that the said sum paid by it for said draft with said bills of lading attached has been wholly lost by it, and that said draft and bills of lading attached are its property.

Gregory L. Smith, of Mobile, and Eyster & Eyster, of New Decatur, for appellant.

Percy, Benners & Burr, of Birmingham, Callahan & Harris, of Decatur, and Harrington, Bigham & Englar, of New York City (Louis F. Doyle, of New York City, of counsel), for appellee.

ANDERSON C.J.

Amended count 5 of the complaint, being the only one submitted to the jury, and which will be set out by the reporter, seeks to charge the defendant with liability for injury resulting to the plaintiff from the purchase by it of a certain bill of lading for 1,950 bales of cotton, purporting to have been issued by said defendant railroad company, but which was false and spurious, having been made up and uttered by Knight, Yancey, & Co., resulting from a conspiracy entered into between said Knight, Yancey & Co. and defendant's agent Bywater, or other of defendant's agents whose names are unknown.

There are other averments, as to what the defendant's agents were to do, in pursuance and execution of the conspiracy, but the performance of which is not averred; and, if that feature as to the delivery of the cotton upon said spurious bill of lading had been complied with, we doubt the bringing of this suit.

The result is that the gravamen of the action, when sifted down to its final analysis, is that the plaintiff purchased a bill of lading purporting to have been issued by the defendant for cotton which was never delivered to the defendant, and that the said bill of lading was therefore worthless; that said bill of lading was issued by Knight, Yancey & Co. to themselves, in the name of the defendant and in pursuance of a conspiracy entered into between said Knight, Yancey & Co. and its agent John A. Bywater, or other agents of the defendant, all of whom were therein acting within the line and scope of their authority.

The complaint avers, in general terms, that the said Bywater and other agents were "therein"--that is, in entering into the conspiracy--acting within the line and scope of their employment, but does not charge that the things they conspired to do were within the scope of their employment. A charge that an agent entered into a conspiracy to do a wrong when acting within the scope of his employment falls far short of charging that the acts which he conspired to...