Neimeyer Lumber Co. v. Burlington & M. R. R. Co.

• Decision Date: 17 March 1898
• Citation: 54 Neb. 321,74 N.W. 670
• Court: Nebraska Supreme Court
• Parties: NEIMEYER LUMBER CO. v. BURLINGTON & M. R. R. CO.

54 Neb. 321

74 N.W. 670

NEIMEYER LUMBER CO.

v.BURLINGTON & M. R. R. CO.

Supreme Court of Nebraska.

March 17, 1898.

Syllabus by the Court.

1. Where delivery of property sold is to take place is to be determined by the contract between the vendor and vendee.

2. If the contract between the parties expressly provides that delivery shall be made at a certain place, then the vendor's title to the property is not devested until delivery is so made.

3. Where the contract between a vendor and vendee is silent upon the subject of the place of delivery, then the delivery of the property by the vendor to a carrier for transportation, consigned to the vendee, devests the vendor's title to the property, and the vendee's title from the moment of such delivery to the carrier attaches.

4. In such a case the carrier is, in contemplation of law, the bailee of the person to whom, and not by whom, the goods are consigned.

5. Where a vendor of goods delivers them to a carrier for transit to his vendee, and causes the goods to be consigned in the bill of lading to himself, his agent, or his order, the presumption arises that he thereby intended to retain the title in himself to the goods. By Ragan, C.

6. Where a vendor of goods delivers them to a carrier for transit, and causes his vendee to be named in the bill of lading as the consignee of the goods, the presumption arises that the vendor by that act intended the title to the goods to vest in the vendee on their delivery to the carrier for shipment. By Ragan, C.

7. The prepayment of freight by a vendor on goods sold and shipped to his vendee is prima facie evidence of an intention on the part of the vendor to retain the title to the goods while in transit. By Ragan, C.

8. The contract between a vendor and vendee set out in the opinion construed, and held (1) that the delivery of the property sold took place at the place of its shipment, and that the title to the property vested in the vendee on its delivery by the vendor to the carrier for transit to the vendee. By Ragan, C.

9. In order that a vendor of goods may exercise the right of stoppage in transitu, it is essential that the goods at the time be in transit from such vendor to his immediate vendee. By Ragan, C.

10. D., of Omaha, ordered a bill of lumber of S., of Dallas, Tex. S., not having the lumber in stock, sent the order to N. at Waldo, Ark., requesting him to ship the lumber to D., at Omaha, on account of S., and send him the invoice and bill of lading. This was done. While the lumber was in transit, S. failed, and N. notified the carrier in possession not to deliver the lumber. The carrier delivered to D., the consignee, and N. sued the carrier for conversion. Held (1) that the transaction amounted to a sale and delivery by N. to S. at Waldo; (2) a resale and delivery by S. at Waldo to D.; (3) that the lumber, when it left Waldo, was not in transit from N. to S., but from S. to D.; (4) that N. was not D.'s vendor, but consignor merely, and could not exercise the right of stoppage in transitu. By Ragan, C.

Error to district court, Douglas county; Ambrose, Judge.

Action by the Neimeyer Lumber Company against the Burlington & Missouri River Railroad Company to recover the value of certain timber. Defendant had judgment, and plaintiff brings error. Affirmed.

Norval, J., dissenting.

A. S. Churchill, for plaintiff in error.

C. J. Greene and C. V. Miles for defendant in error.

RAGAN, C.

C. N. Dietz is a lumber merchant in the city of Omaha, Neb., and will be hereinafter designated as Dietz. The A. J. Neimeyer Lumber Company is a corporation engaged in the manufacture and sale of lumber at Waldo, Ark., and will be hereinafter designated as Neimeyer & Co. Simpson, Perkins & Co. are lumber merchants in the city of Dallas, Tex., and will be hereinafter designated as Simpson & Co. The Burlington & Missouri River Railroad Company in Nebraska is a railway corporation organized under the laws of this state, and will be hereafter designated as the Railway Company. About the 1st of January, 1892, Dietz ordered of Simpson & Co. a large quantity of a certain class of lumber. It appears that Simpson & Co. did not have the material ordered on hand, and purchased the lumber to fill the order from Neimeyer & Co., and they, in pursuance of the directions of Simpson & Co., shipped it by rail to Dietz, the bills of lading issued by the initial carrier being made out to Dietz, consignee. Soon after the shipment of this lumber, which consisted of 17 car loads, Simpson & Co. failed, and Neimeyer & Co. then notified the Railway Company, into whose possession as a common carrier the lumber shipped had come as the last carrier in the line of transit, of the insolvency of Simpson & Co., that the 17 cars of lumber belonged to them, Neimeyer & Co., to hold such lumber, and not to deliver it to Dietz. It seems that when the Railway Company received this notice it had already delivered 6 car loads of the lumber, and, disregarding the notice of Neimeyer & Co., delivered the other 11 cars also to Dietz; and thereupon Neimeyer & Co. brought this suit against the Railway Company in the district court of Douglas county to recover the value of the 11 cars of lumber delivered by it to Dietz after receiving notice not to deliver. The Railway Company had a verdict and judgment, and Neimeyer & Co. have filed here a petition in error to review the same.

1. Neimeyer & Co. contend that, by virtue of the contract existing between them and Simpson & Co., the delivery of the 17 cars of lumber shipped to Dietz was to take place at Omaha, Neb., and that until the lumber reached that place the title thereto remained in Neimeyer & Co., and that the Railway Company, all the time it had such lumber in its possession, held it as the agent and bailee of Neimeyer & Co. A vendor's title to property sold by him is devested on its delivery to his vendee, and immediately upon such delivery the title to the property vests in the vendee. But where deliveryof property sold is to take place is, of course, to be determined by the contract between the vendor and vendee; and, if the contract between the parties expressly provides that delivery shall be made at a certain place, then the vendor's title to the property is not devested until delivery is made at such place. But the universal holding of the courts is that, where the contract between the vendor and vendee is silent upon the subject of the place of delivery, then the delivery of the property by the vendor to a carrier for transportation to the vendee of itself then and there devests the vendor's title to the property, and the vendee's title to such property from the moment of such delivery to the carrier attaches. 21 Am. & Eng. Enc. Law, 528-530; Benj. Sales (2d Ed.) §§ 181, 682; 2 Chit. Cont. (11th Am. Ed.) § 1201; Smith v. Gillett, 50 Ill. 290;Krulder v. Ellison, 47 N. Y. 36, and cases there cited; McKee v. Bainter (Neb.) 72 N. W. 1044;Congdon v. Kendall (Neb.) 73 N. W. 659. In such case the carrier is, in contemplation of law, the bailee of the person to whom, and not by whom, the goods are sent.

Keeping in view these principles, we now proceed to an examination of the contract existing between Neimeyer & Co. and Simpson & Co., which resulted in the former selling to the latter the 17 car loads of lumber involved in this controversy. The contract existing between these parties is found in certain letters which passed between them. It would seem that prior to the 8th of January, 1892, Neimeyer & Co. had sent out to the lumber dealers of the country statements showing the various kinds of lumber which they manufactured and had for sale; and it was prior to this date that Dietz had ordered of Simpson & Co. the bill of lumber, which the latter did not have on hand. On this date, January 8, 1892, Simpson & Co. wrote Neimeyer & Co., saying: “We received your stock sheet some time since, and herewith send you two orders, which you will find very nice ones. Please name your figures as low as possible on these orders. * * * Also inclose us your lowest f. o. b. price list.” Accompanying this letter were the two orders mentioned therein. These orders, so far as material here, were as follows: “A. J. Neimeyer Lumber Company, Waldo, Ark.: Ship to C. N. Dietz, Omaha, Nebraska,” 17 cars of certain described lumber. “If for any reason you cannot ship promptly, advise. Please also send bill of lading and invoice to us at Dallas.” Neimeyer & Co. at once filled the order of Simpson & Co. by shipping the 17 car loads of lumber, as already stated, to Dietz, and on the 9th of January, 1892, wrote to Simpson & Co. as follows: “Your valued order of Jan. 8th received and filed for prompt shipment, with the exception of two items. * * * We have filled your order as follows: [Here follow the description and price of the lumber in the seventeen cars.] Prices f. o. b. Omaha, Nebraska.” It is to be observed that in the correspondence between Simpson & Co. and Neimeyer & Co. the question of the place of delivery of this lumber was not inquired about nor discussed. The place of the delivery of the lumber was not the subject of the negotiations. The expression in the Neimeyer & Co. letter of January 9th, “Prices f. o. b. Omaha, Nebraska,” they insist, affords conclusive evidence that the intention of the parties was that the delivery of this lumber to Simpson & Co. should take place at Omaha, Nebraska. Three witnesses testified on the trial as to the meaning among railroad men and shippers of the expression, “Prices f. o. b. Omaha, Nebraska.” One of them said it meant “that the price named in the shipper's invoice is the price at Omaha.” Another said it meant “to be delivered at Omaha free on board cars.” Neimeyer himself, president of Neimeyer & Co., testified: “If we say f. o. b. Omaha, that means that it is the price delivered at Omaha.”

We think the true construction of the contract is the one placed thereon by the district court, and...