Pacific Lumber Agency v. National Aircraft Materials Corporation

• Decision Date: 07 January 1936
• Parties: PACIFIC LUMBER AGENCY v. NATIONAL AIRCRAFT MATERIALS CORPORATION
• Court: Vermont Supreme Court

182 A. 192

108 Vt. 10

PACIFIC LUMBER AGENCY v. NATIONAL AIRCRAFT MATERIALS CORPORATION

Supreme Court of Vermont

January 7, 1936

Special Term at Rutland, November, 1935.

Motion for Directed Verdict, Consideration by Supreme Court of Evidence and Inference---Effect of Opposing Inference on Direction of Verdict---Consignee as Prima Facie Owner of Cargo---Bill of Lading, Rebuttable Presumption of Ownership in Consignee---Effect of Evidence as to Contents of Bill of Lading on Burden of Evidence on One Claiming Title in Consignee, on Burden of Proof Where Evidence to Contrary Introduced---Question as to Direction of Verdict Where Presumption of Ownership in Consignee Raised by Bill of Lading and Countervailing Evidence Introduced---Countervailing Evidence Sufficient to Warrant Directed Verdict---Invoices as Evidence of Title in Person Charged---Necessity of Delivery to Pass Title to Personal Property---Rule as to Inference from Failure to Produce Evidence Peculiarly within Knowledge of Party---Duplicate Bills of Lading Obtainable from Railroad Company Equally Available to Both Parties---Effect of Testimony That One Gave His Notes in Payment on Question of Ownership.

1. In passing upon a motion for a directed verdict Supreme Court not only takes the evidence in the most favorable light for the party against whom the motion is made, but also gives consideration to such inferences as might reasonably be drawn by the jury from the facts appearing in the evidence.

2. Where the evidence affords room for opposing inferences on the part of reasonable men, it is error to direct a verdict but where the evidence is so conclusive in character as to admit of no opposing inferences, the question is one of law and not of fact.

3. A bill of lading being regarded in law as the symbol and representation of the cargo specified therein, the fact that one is the consignee named therein is prima facie evidence that he has title to the cargo.

4. The presumption of ownership in the consignee named in a bill of lading may be rebutted by other evidence, including parol evidence, showing where the real ownership lies, or showing that the bill of lading was intended as evidence of some other transaction than that of an absolute sale to the consignee.

5. One having the burden of proof and claiming that title to a cargo covered by a bill of lading is in the consignee, is relieved as respects the burden of the evidence, from doing more in his opening to establish the fact of ownership than to show the contents of the document, and if nothing further appears the proof is sufficient; but when evidence tending to show the contrary is introduced, the burden of proof remains as before to show the title is as claimed.

6. In action for purchase price of cargo, where plaintiff shows title in defendant consignee by means of bill of lading and countervailing evidence is introduced by defendant, the question on defendant's motion for a directed verdict is whether the statements in the bill of lading are so completely rebutted and explained that no issue as to the ownership of the cargo being in defendant is left for the jury.

7. In such action, where corporation, for debts of which defendant corporation was alleged to be liable by reason of conveyance to defendant of corporate property, was shown to be consignee named in bill of lading, held that uncontradicted evidence of plaintiff's witness tending to show title to cargo in such witness was sufficient to rebut presumption of title in consignee, and that defendant's motion for a directed verdict was properly granted.

8. Invoices standing alone furnish no proof that title to property covered thereby is in person charged therein, but taken in connection with other evidence, they have corroborative force.

9. As between the parties to a sale of personal property, an actual delivery to the purchaser is not an essential to the passing of title.

10. Where evidence peculiarly within the knowledge of a party is not forthcoming, an inference unfavorable to such party may be drawn from his failure to produce it, but this rule does not apply where the evidence is equally available to both parties.

11. In action for purchase price of two carloads of lumber, where when plaintiff demanded production of bills of lading covering shipment to a subsequent purchaser, defendant's counsel admitted bills had been in their possession but stated that they could not be found and the railroad company had promised to furnish duplicates, such duplicate being equally available to both parties and the existence of apparently the same bills being admitted by the plaintiff, held that no inference of the non-existence of the bills could be drawn under the circumstances.

12. In such action, though testimony of a third party that he gave his notes in payment for the lumber may not be sufficient to show that the plaintiff accepted them as such, this will not affect the right of defendant to a directed verdict since the point is not whether the lumber was paid for by the notes but whether the title to it was transferred to such party by the plaintiff.

ACTION OF CONTRACT to recover purchase price of two carloads of lumber. Plea, general issue. Trial by jury at the September Term, 1933, Rutland County, Bicknell, J., presiding. Verdict directed for the defendant at the close of plaintiff's case, and judgment thereon. The plaintiff excepted. The opinion states the case. Affirmed.

Judgment affirmed.

William L. Scoville and George M. Goddard for the plaintiff.

Mavelle C. Webber and Christopher A. Webber for the defendant.

Present: POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, J., and BUTTLES, Supr. J.

OPINION

MOULTON

The plaintiff seeks to recover the purchase price of two carloads of airplane spruce lumber, which it claims to be due from the defendant as the purchaser of the assets of the National Pulpwood Corporation, the consignee named in the bills of lading covering the shipments. Trial below was by jury. At the close of the plaintiff's case a verdict was directed for the defendant, and the plaintiff excepted.

The testimony of Perley R. Eaton and certain exhibits constitute all the evidence in the case. Eaton was the president and a large stockholder in the National Pulpwood Corporation, which owned a mill at East Dorset, Vermont. The two carloads of lumber were ordered from the plaintiff by Eaton on October 12, 1926, and December 9, 1926, respectively, with directions to send them to the Pulpwood Company at East Dorset, as consignee. Accordingly the plaintiff shipped the material, with the bills of lading made out to the Pulpwood Company as consignee, and invoiced the shipments to Eaton. The invoices stated in each instance that the merchandise was sold and charged to Eaton, and shipped to the Pulpwood Company, and, with regard to the shipment of December 9, the terms were cash less 2% "after sale to & unloading by my customer," (quoting in this respect the wording of the order.) The first shipment was ordered by telegraph; the second by a printed and typewritten order blank, bearing the heading "Perley R. Eaton, Wholesale Lumber Merchant * * * dealer in all kinds of Pacific Coast Lumber," and contained a request that it should be arranged that each connecting railroad should advise Eaton when the car passed their division points, "so I can be informed where car is all the time."

Eaton had a billing in transit privilege at East Dorset whereby he was enabled to re-sort the rough lumber at that point and forward it on the same bill of lading without extra charge, except the railroad company's charge for the stop over, and the shipments were billed to the Curtis Company in accordance therewith by the Pulpwood Company's mill superintendent. While the first carload was in transit Eaton sold it to the Curtis Airplane and Motor Company, and by virtue of his billing in transit privilege, it was sent on from East Dorset, without unloading, to the purchaser at Garden City, Long Island, and Eaton received the price agreed upon. The second carload was disposed of, and the purchase price received, in the same manner except that Eaton obtained the Curtis Company as a customer before ordering it. Eaton gave the plaintiffs his personal notes for the lumber, but these notes appear to be unpaid. The Pulpwood Company was not in the business of manufacturing airplane parts, and had never done so, although the machinery at its mill in East Dorset could have been used for this purpose. On or about October 1, 1928, the National Aircraft Materials Corporation was organized, Eaton being its president and a large stockholder. On October 8, 1928, the Pulpwood Company deeded to the Aircraft Company its mill and equipment at East Dorset, the conveyance being executed by Eaton as agent of the grantor, under authorization of a vote of the stockholders of that corporation. By this transaction the Pulpwood Company did not divest itself of all of its assets, since it still owned a large amount of lumber at East Dorset, other lumber in Maine, New Hampshire and New Brunswick and machinery and mill equipment at Millerton, New Brunswick.

The plaintiff's position is that the evidence tended to show that Eaton in making the purchase of the lumber from the plaintiff, was acting in behalf of the Pulpwood Company, as his undisclosed principal, which ratified his act by receiving it; that the plaintiff transferred the title of the merchandise to that company which received the benefit of the contract and became the debtor, although after...