Lowitz v. Chicago, St. P. M. & O. Ry. Co.

• Decision Date: 23 February 1917
• Docket Number: Nos. 20,198-(292).,s. 20,198-(292).
• Parties: E. LOWITZ AND ANOTHER v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

136 Minn. 227

E. LOWITZ AND ANOTHER v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY.¹

Nos. 20,198-(292).

Supreme Court of Minnesota.

February 23, 1917.

Action in the district court for Hennepin county by the partners doing business as E. Lowitz to recover $1,100 paid by plaintiffs upon a draft to which was attached a bill of lading issued by defendant for a car of corn, shipped from Minneapolis to Chicago. The answer alleged that when the purported bill of lading was delivered to the shipper the car of corn had not been received by defendant for transportation, and that the bill of lading was void. The case was tried upon stipulated facts before Jelley, J. who ordered judgment in favor of plaintiff. Defendant's motion for amended findings of fact was granted in part and its motion for amended conclusions of law or for a new trial was denied. From the judgment entered pursuant to the order for judgment, defendant appealed. Reversed.

Richard L. Kennedy and James B. Sheean, for appellant.

Kerr, Fowler, Schmitt & Furber, for respondents.

HOLT, J.

Plaintiffs' complaint set out that R. J. Johnston was doing business in Minneapolis, there owning and in possession of a carload of bulk corn which, on March 1, 1915, he delivered to defendant, a common carrier, who thereupon, while so in possession, executed and delivered to Johnstone its order bill of lading, whereby defendant did state that it had received at Minneapolis, Minnesota, on said date, said corn from Johnstone and did undertake to carry the same to Chicago, Illinois; that upon receiving said bill of lading Johnstone drew a draft on plaintiffs for $1,100 payable to a bank in Minneapolis; that concurrently therewith Johnstone indorsed the bill of lading in blank and delivered the same with draft annexed to the bank, which in good faith advanced the money stated to Johnstone; that, on March 2, 1915, the bank presented the draft with the bill of lading annexed to plaintiffs, who then duly accepted and paid the draft and received the bill of lading; and that the car of corn should have reached Chicago within a week after March 1, 1915, but that at divers and sundry times thereafter plaintiffs have tendered defendant the bill of lading and without avail have demanded delivery of the corn. The answer was that when Johnstone applied for and came into possession of the bill of lading he did not have or own the car of corn and it was never received by defendant. The stipulated facts, embodied in the findings, make it clear that on the day stated an agent of defendant, duly authorized to issue and deliver order bills of lading upon freight received for transportation, did issue the bill of lading in question, but no corn was delivered to or received by defendant. A mistake had been made by Johnstone and it was not discovered until after plaintiffs in good faith and without notice of the mistake, had for value become the owners and holders of the bill of lading. The court gave plaintiffs judgment for the value of the corn. Defendant appeals.

Had the bill of lading represented an intrastate shipment defendant would unquestionably have been liable under chapter 414, p. 501, Laws 1909 (sections 4322-4329, G. S. 1913), which makes it unlawful to issue a bill of lading until the whole of the property therein described has been actually received by the carrier and makes the latter liable to a goodfaith holder of a bill of lading issued in violation of the statute for all damages suffered by him. Previous to the enactment of this statute the rule in this state permitted the carrier to show that the freight mentioned in an order bill of lading, issued by it, had never been received from the shipper, and such proof constituted a good defense, even against a good-faith holder of the bill of lading. National Bank of Commerce v. Chicago, B. & N. R. Co. 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. 566; Swedish Am. Nat. Bank of Minneapolis v. Chicago, B. & Q. Ry. Co. 96 Minn. 436, 105 N. W. 69. The Federal decisions are to the same effect. Schooner Freeman v. Buckingham, 18 How. 182, 15 L. ed. 341; Pollard v. Vinton, 105 U. S. 7, 26 L. ed. 998; St. Louis, I. M. & S. Ry. Co. v. Knight, 122 U. S. 79, 7 Sup. Ct. 1132, 30 L. ed. 1077; Friedlander v. Texas & Pac. Ry. Co. 130 U. S. 416, 9 Sup. Ct. 570, 32 L. ed. 991; St. Louis, I. M. &...