Davis & Aubin v. Bradley & Co.

As contended by counsel in the case of Bryans v. Nix, the contract was destitute of almost all the essentials of a bill of lading. It was no voyage at all, but a mere transfer along a canal boat to Dublin, and from thence to Liverpool. But the court held that the consignees acquired a sufficient title to all the cargo which was actually put on board the boat by the consignors, before the shipping receipt was executed, and forwarded to the plaintiffs, but not to such as was then under their control and not shipped, so that the mere promise to ship certain articles set apart, would not be sufficient, but it must actually be done, and the shipper's receipts, according to most of the cases, forwarded and the bill accepted, or advances made upon the faith of such shipment, before any new destination is given to the cargo. Until that is done the matter is ambulatory, and dependent upon the will of the consignor. But afterwards, it is beyond recall. In that case the consignor altered his mind before the second boat was loaded and gave an order to the shipper to have its cargo delivered to another person, as also the first. And the court held that the first was beyond his control, and not the second because the order was countermanded before it was shipped.

It seems impossible to distinguish the present case, in principle, from the case of Bryans v. Nix. There are many cases where a symbolical delivery of goods with an advance, or acceptence upon the faith of the delivery of such symbol, has been held to create a lien upon the goods, the same as the actual delivery. In Hall v. Griffin, 10 Bing. 246, before referred to, one Willson was the owner of goods, which were about to be shipped from Stockton to London and took a wharfinger's receipt for them, which he handed over to the plaintiff upon an advance of money. The plaintiff showed this wharfinger's receipt to the wharfinger at London be✔fore the goods arrived, and he promised when they did arrive to deliver them to the plaintiff. And the court held, that the plaintiff acquired such an interest in the goods as would enable him to maintain trover. This is put, by the court, upon the ground, that it was a symbolical delivery of the goods, the same, says BOSANQUET, J., as if the goods passed from hand to hand.

In the case of Craven v. Ryder, 6 Taunton 433, the plaintiffs contracted to sell sugars to one French, and put them on board the

Davis & Aubin v. Bradley & Co.

ship for that purpose, but took a lighterman's receipt for them as shipped "for and on account of the plaintiffs," and although the master gave a bill of lading, certifying that the goods were shipped for French, or his assigns, it was held, that he did this in his own wrong until the lighterman's receipt was surrendered. That was the contract of consignment, until exchanged for the bill of lading.

So that, to give a factor a lien upon goods consigned, but not actually received, these incidents must concur. 1. The consignment must be, in terms, to the factor. That was so in the present case, as much as if a formal bill of lading had been made in his name, omitting assigns. So that the undertaking of Bradley & Co. is, in terms, to forward them to Davis & Aubin, and for their benefit. They are upon the face of the forwarder's receipt, (which is in fact a bill of lading, as far as one can properly exist in these inland transactions,) the party entitled to sue, and the instrument binds the defendants to forward the goods to the plaintiffs, and equally binds the carrier, to deliver to them, and, prima facie, the plaintiffs are the only party entitled to receive the goods, upon the face of the transaction. B. & H. Boynton had parted with their control over them. 2. But to the conclusiveness of such a contract against creditors and subsequent purchasers, it is requisite that the consignee should have made advances or acceptances, upon the faith of these particular consignments. That, too, we think is shown by the testimony, and found by the jury.

In addition to this, which seems commonly sufficient to give the factor a lien, and is all that existed in Holbrook v. Wight, 24 Wendell, 169, and which seems to us to be a sensible, and we see no reason to doubt, a sound case, in addition to all this, the present case does contain what all the cases and all the books upon this subject, as far as I can learn, have ever regarded as a symbolical delivery of the goods, the sending to plaintiffs the shipper's receipt, which is, in effect and in terms, a consignment, or bill of lading to the plaintiffs. For what is a bill of lading? It seems to be nothing more than an acknowledgment that the goods are put on board the ship, at one port, to be delivered to A. B. at another port, or to his assigns. This contract is commonly executed in triplicates, one of which is kept by the master for his own information, as to the nature of his undertaking, one is retained by the consignor, to show

Davis & Aubin v. Bradley & Co.

that he has shipped the goods, the other, 'which is the only one intended to be negotiated, is forwarded to the vendee or factor, and if these persons endorse such bill of lading, for value, it passes the title of the goods even to the defeating of the right to stop in transitu. The consignor may, if he choose, take the bill of lading in his own name, and then he can endorse it. But, unless he restricts the consignment to be delivered for his own use, the consignee is the party prima facie entitled to control the delivery, and the title. And this is the form of the present consignment. And the shipper's receipt, being delivered to plaintiffs, and acceptances made upon its faith, the plaintiffs' title was perfected to the extent of their lien, and this point is expressly put to the jury and found.

This point was considered and decided by the court when the case was last before us, and is reported in 24 Vt. 55, and the reargument and re-examination has confirmed our convictions of the entire soundness of the decision. We do not think the question is one susceptible of reasonable doubt, and it seems to us to have been properly submitted to the jury, so that we might here content ourselves by affirming the judgment; but we are induced to examine the cases further to some extent.

The case of Holbrook v. Wight, 24 Wendell 168, is a full authority for the decision of the county court in this case. There the plaintiffs were commission merchants in New York, and their correspondents manufacturers at Middlebury, Vermont. They advised the plaintiffs of the goods being in readiness to be forwarded to them, and that they would be sent to a house in Troy, as soon as consistently could be, to be forwarded to the plaintiffs in the spring. That was done, and the goods sent to a forwarding house in Troy, with instructions to forward them to the plaintiffs upon the opening of navigation. The consignors, about this time, drew upon the plaintiffs for $6,000, at different dates, which the jury found, as they did in the present case, the plaintiffs accepted relying upon these consignments. The consignors, being pressed by other creditors, made a different disposition of the goods, while remaining in the hands of the forwarder, at Troy, and ordered them into other hands, and to be delivered to other parties. But the court held that the lien of the first consignees was perfected, and the subsequent disposition of the property could not defeat their rights. In

Davis & Aubin v. Bradley & Co.

this case there was nothing like a symbolical delivery which does exist in most of the English cases upon this point, and equally in the present case, and which seems to be regarded, by most jurists and merchants, as an essential element in a consignment to a factor, in order to perfect his lien for advances made upon the faith of such consignment, and which fact is regarded as amounting, in all cases, to a substantial change both of title and possession. The case of Taylor v. Kymer, 3 B. & Ad. 320, is a very elaborate and well considered case, where this distinction is fully recognized. It may be here noticed that some of the English cases treat a formal bill of lading as strictly negotiable, notwithstanding the omission of the word assigns; Renteria v. Reuding, 1 M. & M. 511. But no question of that kind arises in the present case; see 1 Smith's Leading Cases, 260, note to Miller v. Race, where the proposition is attempted to be maintained that no instrument, by the English common law, is strictly negotiable, unless in terms made to assigns, or order, or bearer, &c., that is, unless its negotiable quality appears, in terms, upon the face of the instrument. None of the principles laid down in the case of The Frances, 8 Cranch, 335 et seq., have much application to this subject, as the questions there discussed have reference to prize cases, nor does any general principle there laid down conflict at all with our decision here. Mitchell v. Ede, 39 Eng. Com. Law, 260, 11 Ad. & Ellis, 888, is decided chiefly upon the question of the intention to consign the particular goods, and the effect of endorsing a bill of lading, as passing the absolute title, and so far as the symbolical delivery is concerned, is an authority for our present decision. In the case of Elliott & Boynton v. the defendants, 23 Vt. 217, there was no advance or acceptance upon the faith of any particular consignment, and nothing like a symbolical delivery, which leaves the case wholly dissimilar to the present. No shipping list or receipt was ever delivered to the plaintiffs in that case, by any one. The case of Whitehead v. Anderson, 9 M. & W. 534, where it is held that, to constitute a constructive possession in the consignee, the forwarder or carrier must enter into some new and specific contract to deliver to the consignee, is this very case, as we understand the shipper's undertaking. The case of Gardner v. Howland, 2 Pick. 599, seems to us a full authority for the decision we here make. Here,

Thorpe v. Peck

the delivery of the invoice, with an assignment, is regarded as a symbolical delivery of the ship. Without speaking in detail of the other cases, which seem to us more remote from the very points involved in this case, we conclude by saying that no case, and, so far as we can perceive, no principle conflicts with the plaintiff's right to recover.

It is scarcely needful to advert to any criticisms which were attempted at the bar, upon the opinion of the court in the 24th of Vt. in the same case. We have shown that the decision is sound and tenable, we think; and, if it were not, it must, according to the settled practice of this court, govern the same case; but we do not consider that the opinion of the court, as there reported, is fairly open to the objection that it is extra-judicial, and mere obiter dictum, because the judge does not confine his argument to the single point urged by counsel. That might have been sufficient, but it was by no means so entirely free from all cavil, as the reason urged by the learned judge, which, so far from being his own individual speculation, was the very ground, and the chief ground upon which the case was rested by the different members of the court at the consultation, and is too well and too convincingly stated, to require any attempt at support or commendation from me, Judgment affirmed.

EDWARD THORPE v. J. & J. H. PECK & Co.

Promissory note. Dishonor and notice to endorser.

A note payable at a bank may be presented there for payment at any time during banking hours on the day of its maturity, and if not paid when so presented, it may be treated as dishonored; and a notice thereof, given immediately and before the close of banking hours on the same day, will charge the endorser.

ASSUMPSIT against the defendants as endorsers of a promissory note signed by H. W. Catlin. Plea, the general issue; trial by the court, March Term, 1855,-PIERPOINT, J., presiding.