Skilling v. Bollman

• Decision Date: 30 April 1881
• Citation: 73 Mo. 665
• Parties: SKILLING v. BOLLMAN et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 665

SKILLING

v.BOLLMAN et al., Appellants.

Supreme Court of Missouri.

April Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Noble & Orrick for appellants.

The title to the highwines did not pass to plaintiffs by the delivery of the bill of lading. The bill was indorsed to Gregory & Stagg, not to plaintiffs; and plaintiffs paid no money to the company as proceeds for the drafts, but simply took them for collection. This is shown by the fact that when the drafts were returned unpaid, plaintiffs charged the amount of the drafts back to the company. Plaintiffs could only have gotten title by paying value. Davenport Bank v. Homeyer, 45 Mo. 145; Newson v. Thornon, 6 East 17; 1 Parsons on Shipping, 194. The failure of Gregory & Stagg to accept the drafts, remitted the title to the bill of lading to the company, and not to the bank. When the draft is not accepted, but the bill of lading is retained, the bill of lading acquired in that manner gives no right of property to the person so acquiring it. In re Yglesias, L. R., 10 Chan. App. Cas. 639. Bills of lading by the laws of Illinois not being negotiable, the bank took the bill indorsed by the distilling company to Gregory & Stagg, subject to all equities in favor of appellants, as owners, under the other bill of lading, the carrier having the right to deliver the highwines upon either of the two bills; no title passed to the bank through the receipt of one, the delivery of the property under the other having been made to appellants, who are innocent purchasers for value, and paying a present consideration.

Finkelnburg & Rassieur and Garland Pollard for respondents.

The delivery to the respondents of the bill of lading with the drafts drawn against the proceeds of the shipment attached as security for the payment of the drafts, transferred the title to the highwines to respondents as completely and effectually as though there had been an actual delivery of the highwines themselves, subject to the acceptance of the drafts by Gregory & Stagg. Mich. Cent. R. R. Co. v. Phillips, 60 Ill. 190; West. U. R. R. Co. v. Wagner, 65 Ill. 197; Broadwell v. Howard, 77 Ill. 305; Peters v. Elliott, 78 Ill. 321; O. & M. Ry. Co. v. Kerr, 49 Ill. 458; Bank v. Homeyer, 45 Mo. 145; Nat. Bank v. Dearborn, 115 Mass. 219; s. c., 15 Am. Rep. 92; Nat. Bank v. Bayley, 115 Mass. 228; Newcomb v. B. & P. R. R. Co., 115 Mass. 230; First Nat. Bank v. Crocker, 111 Mass. 163; 3 Parsons on Contracts, p. 487. It is not necessary that the bill of lading be indorsed on delivery, or that the name of the transferee in any manner appear upon it; a simple, manual delivery of the bill, unindorsed, with the intention of thereby transferring the property therein mentioned, either absolutely or as a pledge to secure a draft, passes the title to the property to the transferee of the bill. 45 Mo. 145; 78 Ill. 321. An antecedent debt is a sufficient consideration for the delivery of a draft and bill of lading to secure the same. 78 Ill. 321. The person who first gets the bill of lading (though only one of a set of three) gets the property which it represents; he need not do any act to assert his title which the transfer of the bill of lading itself renders complete, and any subsequent dealings with the others of the set are subordinate to the rights passed by that one. Barber v. Meyerstein, L. R., 4 H. L. Cas., Eng. & Ir. App. 317; Caldwell v. Ball, 1 T. R. 205; Valle v. Cerre, 36 Mo. 587; 3 Kent Com., (12 Ed.) 208.

HENRY, J.

This suit was instituted in the circuit court of St. Louis county by plaintiffs, to recover of defendants the value of 150 barrels of highwines, and the following are the facts on which the controversy arose: Skilling, Carter & Ahrenz were bankers at Beardstown, Illinois, and the Beardstown Distillery Company was a corporation doing business at the same place. In 1874, and subsequent years, said bankers had loaned large sums of money to the distilling company, amounting in February, 1876, to about $20,000. On the 25th of that month, the distilling company shipped to St. Louis, by steamboat, 200 barrels of highwines, and triplicate bills of lading were executed by the boat to the order of the distilling company, of which two were delivered to Blumb, its secretary, one of which he placed and locked in his desk, but Sheber, the vice-president and general manager of the company, also had a key to the desk, and furtively took the bill of lading, and, under the false pretense of going elsewhere, took passage on the boat and accompanied the highwines to St. Louis, where he sold and delivered 150 barrels to the defendants. The boat arrived at St. Louis on the 26th of February, and between nine and ten o'clock a. m. of that day, Sheber sold and delivered 100 barrels, and subsequently fifty barrels to the defendants. On the same day, and about the same hour, Blumb indorsed the bill of lading in his possession, ordering the delivery of the wines to Gregory & Stagg, of St. Louis, and drew two drafts on them, against the wines, for $7,000 each, payable to plaintiffs, to whom, at the same time, the bill of lading and drafts were delivered. Gregory & Stagg refused to accept the drafts, and plaintiffs, who, on receiving them, had credited the amount on the distilling company's account, re-charged it against said company.

The evidence proved that Sheber was vice-president and general manager of the business of the distilling company, and as such, authorized to sell the wines; and that, by the by-laws of the corporation, Blumb had no authority to draw checks, or notes, or drafts, or indorse bills of lading, for the corporation, but there was evidence that he did so, in all transactions with the plaintiffs, with the knowledge and acquiescence of the corporation, and the question of his authority to draw the drafts, and to indorse and dispose of the bill of lading in question, was properly submitted to the jury.

That the bill of lading was delivered to the plaintiffs as collateral security for a pre-existing indebtedness cannot be controverted, and we are of opinion that the controlling question for determination by the jury, on the evidence as preserved in the bill of exceptions, is, whether the delivery of the bill of lading to plaintiffs, or the sale to defendants, was prior in point of time. “Bills of lading, by the law merchant, are representatives of the property for which they have been given, and the indorsement and delivery of a bill of lading transfers the property from the vendor to the vendee; is a complete legal delivery of the goods; divests the vendor's lien.” Benjamin on Sales, § 813. I...