Robinson v. Memphis & C. R. Co.

• Decision Date: 24 April 1883
• Citation: 16 F. 57
• Court: U.S. District Court — Western District of Tennessee
• Parties: ROBINSON and others v. MEMPHIS & C.R. CO.

16 F. 57

ROBINSON and others v. MEMPHIS & C.R. CO.

United States Circuit Court, W.D. Tennessee.

April 24, 1883

This is the same case reported, as to the facts relating to the issuance of the bill of lading, in 9 F. 129, and those facts are omitted here. On the trial it was proved that Chiles had on hand at the time the bill of lading was issued, five or seven bales of cotton, marked as described in the plaintiff's bill of lading, and already in the hands of the railroad agents; that subsequently and prior to the first of July he sent from time to time to the agents at the depot 21 or more bales, making in all 27 bales; that from their mode of doing business with Chiles and other brokers, this cotton was understood by the agents to be delivered for account of plaintiff's bill of lading, to be held until the complement called for by the bill of lading was received and then shipped. Chiles had absconded, and the defendant sought to prove by circumstances, not necessary to detail here, that he understood that he still had control of the cotton, and might change his orders until final closing by shipment; while the plaintiffs sought to prove by the direct testimony of the agents of the railroad, other brokers, and detailed circumstances, that Chiles understood the cotton to be delivered for account of plaintiffs' bill of lading. The mode of doing business between the railroad company and the cotton shippers generally, at that time and place, and particularly with Chiles, and especially with reference to this transaction, was fully proved, and on the testimony the jury found that the cotton had been delivered to account of plaintiffs' bill of lading, as the carrier's agents understood it to be.

It was further proved that at this place and time it was the invariable custom of the cotton shippers to take out bills of lading, as the plaintiffs' was taken out when no cotton was on hand; that these bills would be attached to drafts, as plaintiffs' was, and negotiated with the local banks, and with funds so supplied the cotton brokers would proceed to buy, deliver, and complete the shipment in the method above stated; and that this continued successively, and with numerous bills of lading and various brokers throughout the cotton season.

It was also proven that on July 1, 1879, Chiles, being overdrawn at the Bank of Madison, with which he did his business, and with which he had negotiated plaintiffs' bill of lading,-- the draft thereto attached for value of 32 bales of cotton having been paid by plaintiffs,-- drew another draft on plaintiffs for the value of 42 bales of cotton, described in the bill of lading as marked 'J.E.T.,' which, with the bill of lading attached, was also negotiated by said bank, and the proceeds passed to Chiles' account, leaving him a small balance to his credit. The bank had enveloped the draft and bill of lading attached, to be sent by mail to its correspondent, to be presented to plaintiffs for payment, as Chiles' other drafts had been during the season, then about closed for cotton shipments; on the second day of July before the letter was mailed, the railroad agent went to the bank and advised it that Chiles had no cotton on hand to meet this new bill of lading, nor fully to meet the former bill held by plaintiffs, and requested that the bill of lading be not forwarded to New York, and it was withheld and negotiations commenced immediately for a settlement with Chiles, who took up the bill of lading of the day before marked 'J.E.T.,' and procured another from the railroad agent calling for cotton marked 'W.W.,' as in plaintiffs' bill of lading; he then gave the bank an order to the railroad agents for the cotton, claiming that he still had control over it.

The evidence offered by the defendant tended to show that, in interviews among all the persons concerned, including attorneys, there was an agreement by the railroad agents to surrender the cotton to the bank,-- and a constructive surrender; but the testimony offered by the plaintiffs-- the witnesses being the railroad agents themselves-- tended to show that the agents did not yield to these importunities, and were misunderstood on that point; and there was no dispute that they did ultimately refuse to surrender the cotton to the bank, but promised to hold it until legal proceedings could be commenced. The bank on July 5, 1879, sued out a writ of replevin, under which the cotton was seized and delivered to the bank, and in which the railroad agents personally were named as defendants, the affidavits alleging that the cotton belonged to the bank and was wrongfully detained by them. The bank gave bond, as required by law, payable to these agents as defendants in the replevin suit, in double the value of the cotton, to indemnify them against the wrongful suing out of the writ; but at the first term of the court the railroad company was, on its own motion, substituted under the statute as defendant. On March 11, 1880, the plaintiffs brought this suit against the railroad company, and in October, 1881, after the decision on the demurrer, they appeared in the state court, and on their motion were, under the statute, admitted as co-defendants in the replevin suit, which is still pending and undetermined.

The record of the replevin suit was read in evidence by the railroad company. There was no proof offered of any notice to the plaintiff of the seizure of the cotton at any time by the defendant. The verdict of the jury was for the value of the 27 bales of cotton and interest, and the defendant moved for a new trial.

H. W. McCorry and J. W. Buford, for plaintiffs.

A. W. Campbell and Humes & Poston, for defendant.

HAMMOND J.

The judgment of this court upon the demurrer to the defendant's pleas having been recently confirmed by an opinion of the supreme court, the further consideration of the questions raised by the demurrer becomes unnecessary, except that made in regard to the right of an assignee of a bill of lading to sue in his own name; and as to that, upon a reconsideration, in the light of the argument on the motion for a new trial, the court is satisfied with the opinion then expressed. Pollard v. Vinton, 105 U.S. 7; Robinson v. Memphis & C.R. Co. 9 F. 129; Forbes v. Boston, etc., 26 Alb.Law J. 457. And it seems to me that the case of The Idaho, 93 U.S. 575, is equally conclusive of the question, so much argued at the trial and on this motion, about the subsequent delivery of the cotton. The facts as to this feature of that case were almost precisely like those here, and the decision there disposes of the argument that the bill of lading in this case was void, and being a nullity, could not by subsequent delivery be validated.

The argument made on this point is a misapprehension of the principle of Pollard v. Vinton, supra, applied by this court in the judgment on the demurrer. Because the carrier is not bound by a bill of lading issued by an agent, unless the goods are on hand and delivered for shipment, it does not follow that the principal is not bound by the bill of lading if the goods be in fact subsequently delivered to be transported according to the terms of the contract. There is no element of illegality or any such vice in the contract that it is void or incapable of confirmation by acts of the parties taken for that purpose; and the old bill of lading is as good as a new one issued on delivery of the goods if the parties choose to make it so. It is a question of fact in each case, and that issue was fairly submitted to the jury here, and the court is well satisfied with the verdict that the cotton was delivered by Chiles under the bill of lading held by plaintiffs. The jury was distinctly told that Chiles could do with his cotton as he choose, deliver it to the carrier for the plaintiffs or for any other consignee he might name, but having delivered it for one he could not afterwards divert the cotton and deliver it to another; and it was so decided in The Idaho, supra.

The remaining ground for this motion is that based on the replevin proceedings. Whatever limitations may be found in the law of bailment, as applied to common carriers, in relation to the right of the bailee to set up the jus tertii as an excuse for non-delivery, according to the terms of the bill of lading, this court is, it seems to me, precluded by the decisions of the supreme court from applying the doctrine-- so much urged by counsel for the plaintiffs-- that the carrier is held to an extraordinary responsibility arising from public policy or growing out of the terms of his contract, where, having an opportunity to insert all reasonable exceptions, he makes only such as provide against loss by 'the act of God or the public enemy;' and that at most, in any case he takes always the peril of sustaining the title of the adverse claimant to whom he delivers, whether voluntarily on the simple demand of the claimant, or by compulsion of legal process at his suit. It seems to be quite universally conceded that the carrier may deliver to the true owner, but the precise consequences to the carrier of his delivery, through compulsion of legal process, to the wrongful claimant, when a controversy arises as to ownership, are by no means settled. Where the rightful owner is the consignee, as the verdict has satisfactorily established in this case, authorities may be found that hold the carrier to delivery, or to damages for non-delivery, at all hazards, unless the excuse falls within the specific exceptions in the contract of carriage itself; and compulsion of legal process is not one of these in the general form of bills of lading like that in this case; but if the process be against the consignee at the suit of some one claiming the consignee's own title by...