S.C. & P. R. Co. v. First Nat. Bank of Fremont

• Decision Date: 11 November 1880
• Parties: S. C. & P. R. CO. v. FIRST NAT. BANK OF FREMONT.
• Court: Nebraska Supreme Court

10 Neb. 556

7 N.W. 311

S. C. & P. R. CO.

v.FIRST NAT. BANK OF FREMONT.

Supreme Court of Nebraska.

Filed November 11, 1880.

Error to the district court of Dodge county. Tried below before Post, J.Joy & Wright and N. H. Bell, for plaintiff in error, cited, inter alia, B. & O. R. Co. v. Wilkins, 44 Md. 11;Grant v. Norway, 10 C. B. 665; Hubbersty v. Ward, 8 Exch. 330; Coleman v. Riches, 16 C. B. 104; 1 Parson's Shipping & Admiralty, 187; Schooner Freeman v. Buckingham, 18 How. 182; 2 Daniell on Negotiable Instruments, 623; The Lady Franklin, 8 Wall. 325;The Joseph Grant, 1 Biss. 193;Sears v. Wingate, 3 Allen, 103;Dawes v. Perrin, 16 N. Y. 325;Emery v. Irving Bank, 25 Ohio St. 360;La Bank v. Lavielle, 52 Mo. 380;Fellows v. Steamer Powell, 16 La. Ann. 316;Walter v. Brewer, 11 Mass. 9; Hutchinson on Carriers. 101; 2 Redfield on Railways, 164, § 10.

Marlow & Munger and Marshall & Sterrett, for defendant in error, cited Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125;Merchants' Bank v. State Bank, 10 Wall. 604;Griswold v. Haven, 25 N. Y. 565;Michel v. Ware, 3 Neb. 229; Dickinson v. Seeley, 12 Barb. 99;Savings Bank v. A., T. & S. F. R. Co. 20 Kan. 519; Howard v. Tucker, 20 Eng. C. L. 661; The J. W. Brown, 1 Biss. (U. S. C. C.) 76; Relyia v. The N. H. R. M. Co. 42 Conn. 579;Life Ins. Co. v. McGowan, 18 Kan. 300; Armour v. R. Co. 65 N. Y. 111.

MAXWELL, C. J.

In the year 1879 the First National Bank of Fremont brought an action in the district court of Dodge county against the Sioux City & Pacific Railroad Company to recover the sum of $1,500, with interest from the fourteenth day of November, 1877, upon the following bills of lading, of which it was the assignee:

“SCRIBNER, NEB., November 13, 1877.

List of articles received of George B. Watkins, in apparent good order, by the Sioux City & Pacific Railroad Company, to be transported to Mo. valley, as marked and described below, subject to the conditions and regulations of tho published freight tariff of said company, and the rules and conditions printed on the back of this manifest. It being expressly agreed and understood by the consignor that the said Sioux City & Pacific Railroad Company, in receiving the said packages to be forwarded as aforesaid, assumes no other responsibility for their safety than may be incurred on their own line:

+-------------------------------------------------------------+
                ¦MARKS AND CONSIGNEE.        ¦No.  ¦DESCRIPTION OF ARTICLES.  ¦
                +----------------------------+-----+--------------------------¦
                ¦H. W. Rogers, Jr., and Bro.,¦12061¦Two cars of wheat in bulk,¦
                +----------------------------+-----+--------------------------¦
                ¦Chicago, Ill.               ¦988  ¦M. or L.                  ¦
                +----------------------------+-----+--------------------------¦
                ¦                            ¦     ¦C. A. Helm,               ¦
                +----------------------------+-----+--------------------------¦
                ¦                            ¦     ¦Agent.”                   ¦
                +-------------------------------------------------------------+
                

Watkins, on the 13th of that month, drew on H. W. Rogers, Jr., & Bro. for the sum of $600 in favor of the bank, and attached the bill of lading to the draft as collateral securtty therefor, and delivered the same to the bank, which cashed the draft less the exchange, and transmitted the draft and bill of lading to Chicago. The draft was afterwards protested for non-payment. Car No. 12,061 contained 239 bushels and 40 pounds of No. 3 wheat. Car No. 988 contained 330 bushels and 10 pounds of barley.

The second bill of lading is as follows:

“SCRIBNER, NEB., November 15, 1877.

Received from George W. Watkins, in apparent good order, by the Sioux City & Pacific Railroad Company, to be transmitted to Missouri valley, the following articles, as marked and described below, subject to the conditions and regulations of the published freight tariff of said company, and the rules and conditions printed on the back of this receipt, it being expressly agreed and understood by the consignor that the Sioux City & Pacific Railroad Company, in recelving the said packages to be forwarded as aforesaid, assumes no other responsibility for their safety than may be incurred on their own road:

+-----------------------------------------------------------------------------+
                ¦MARKS AND CONSIGNEE.     ¦No.      ¦DESCRIPTION of ARTICLES GIVEN BY         ¦
                ¦                         ¦         ¦CONSIGNOR.                               ¦
                +-------------------------+---------+-----------------------------------------¦
                ¦H. W. Rogers, Jr., &     ¦12061    ¦Three cars bulk wheat,                   ¦
                ¦Bro.,                    ¦         ¦                                         ¦
                +-------------------------+---------+-----------------------------------------¦
                ¦Chicago,                 ¦988      ¦M. or L.                                 ¦
                +-------------------------+---------+-----------------------------------------¦
                ¦Ill.                     ¦2437     ¦C. A. Helm,                              ¦
                +-------------------------+---------+-----------------------------------------¦
                ¦                         ¦C. E.N.W.¦Agent.”                                  ¦
                +-----------------------------------------------------------------------------+
                

On the fifteenth of November, 1877, Watkins drew on H. W. Rogers, Jr., & Bro. for the sum of $900, in favor of the bank, and attached the bill of lading to the draft as collateral security therefor, and sold and delivered the same to the bank, receiving $900 therefor, less exchange. This draft was also protested for non-payment. No wheat was in fact shipped by Watkins in the cars described in the second bill of lading. After receiving the money on the second draft from the bank Watkins absconded, and has no property in the state. On the trial of the cause in the district court, the jury rendered a verdict in favor of the bank for the sum of $977.75, and also found specially that at the date named No. 2 wheat was worth in Chicago $1.10 per bushel; No. 3, $1.03 1/3; rejected, 94 cents; and that the general grade of wheat shipped from Scribner at that time (November, 1877) was No. 2. A motion for a new trial having been overruled, judgment was rendered on the verdict. The case is brought into this court by petition in error.

It will be seen that the object of the action is to hold the railroad company liable on two bills of lading executed by its station agent to one Watkins, one of said bills being dated November 13, 1877, for two cars of wheat, and the other dated November 15, 1877, for three cars of wheat, which bills of lading were transferred to the bank, which bought and paid for them, relying on the statements therein contained that Watkins had shipped five full cars of wheat, when, in fact, the cars mentioned in the first receipt contained about one-half a car load of wheat and about one-half a car load of barley, and the three cars mentioned in the second receipt were never in fact shipped, and no wheat was, in fact, received by the railroad company at the time the receipt was given. Is the company liable, under such circumstances, upon the bills of lading? In the case of Grant v. Norway, 2 Eng. Law and Eq. 337, it was held that the master of a ship has no general authority to sign a bill of lading for goods which are not put on board the vessel; and, consequently, the owners of the ship are not responsible to parties taking a bill of lading which has been signed by the master without receiving the goods on board. This case was decided in the common pleas in 1851. No authorities are cited by the court to sustain its position, the court saying: “There is but little to be found in the books on this subject; it was discussed in the case of Berkey v. Watling, 7 Ad. and El. 29; but that case was decided on another point, although Litledale, J., said in his opinion the bill of lading was not conclusive under similar circumstances on the ship-owner.”

This decision was followed in Hubbersty v. Ward, 18 Id. 551, in the court of exchequer, Pollock, C. B., placing the decision upon a lack of power in the master. See, also, Coleman v. Riches, 29 Id. 329. These decisions were followed by the supreme court of the United States in the case of the Schooner Freeman v. Buckingham, 18 How. 182. In that case the claimant, being the sole owner of the schooner named, contracted with one John Holmes to sell it to him for the sum of $10,000, payable by instalments at different dates. By the terms of the contract John Holmes was to take possession of the vessel, and, if he should make all the agreed payments, the claimant was to convey to him. The vessel was delivered to Holmes under this contract, and he had paid one instalment, the only one which had become due. Holmes permitted his son, Sylvenus Holmes, to have the entire control and management of the vessel, and to appoint the master. Sylvenus Holmes transacted business under the style of S. Holmes & Co., and the...