Part IV. was induced to do so. To the plaintiff Smidt and Co. wrote, advising him that they had shipped the goods for his account and risk, and enclosing invoices in which he was charged a commission on their amount. This letter they sent to Lehr, their own agent in this country, informing him that they had remitted to Messrs. Ruckers, bills drawn on the plaintiff, and that they should make the bills of lading to order-that in the event of his not accepting the drafts, Messrs. Ruckers might receive the goods. Lehr, in pursuance of these instructions, called upon the plaintiff before the ship arrived, delivered to him the letter enclosing the invoices, stated that Smidt and Co. had drawn upon him bills for 1,500l., which were in the hands of Messrs. Ruckers, and requested the plaintiff to accept them. The plaintiff refused, and Lehr, in consequence, endorsed a bill of lading which had been transmitted to him to Messrs. Ruckers. On the ship's arrival in England, Messrs. Ruckers claimed the goods as endorsees of the bill of lading, but the captain refused to deliver them, and delivered the goods to the plaintiff, who deposited them with the defendants, as warehouse-keepers, on his account. The question was, In whom the property was vested? And this involved the further question, Whether the master, under the circumstances, was justified in making delivery to his employer, the shipowner and consignee, contrary to the tenor of the bill of lading? "It is true," said Chief Justice GIBBS, "that the goods might have been delivered aboard the ship on the terms on which the defendant contends they were delivered, and if they had been, no doubt Ogle (the plaintiff) could not have obtained the goods without accepting the bills-but were they so delivered? Smidt and Co., in their letter to Ogle, never make mention of any bills to be accepted by Ogle. The case states that the captain received them as the plaintiff's own goods, which means his own goods absolutely, without any qualification. Smidt and Co. had said 'we deliver the goods to you to be the goods of Ogle, if he accepts certain bills,' the defence would avail, but no such thing passes. The goods go on board-bills of lading are tendered to the captain to sign in blank-the captain objects. According to the defendant's argument, the answer should have been, 'I leave the bills in blank, because it is as yet uncertain to whom the bills may be deliverable, for the cargo is to go to Ruckers' unless the plaintiff accepts certain bills;' but the answer given is, "The blank in the bill is immaterial, for the goods are, at all events, to be delivered to your owner.' If the blank was immaterial, it imported no alteration in the terms of delivery; if it was material, a fraud was practised on the captain which cannot avail the consignors.' If The case of Van Casteel v. Booker and Co. (a) may also be referred to in this place. The defendants were assignees of bankrupts, whose correspondents, L. S. and Co., at Rio, had purchased goods, partly on their own (a) 2 Ex. 69. credit, partly on the credit of the bankrupts, for which the bankrupts had sent a ship of which they were the owners. L. S. and Co. shipped the goods on board the ship, drew bills for the amount of the purchase on their own credit on the bankrupts, had the invoices made out as for shipment "by order and on account and risk of the bankrupts," and promised the captain to sign bills of lading, making the goods to their own order or assigns "freight free." One of these bills they endorsed in blank, and sent it to the bankrupts. Shortly after, the agents in England of L. S. and Co. asked the principal member of the bankrupt firm to cause the bill of lading to be placed in their hands, to secure the bills drawn on account of the purchase, to which he assented, and gave a written order to that effect. After the bankrupts had committed an act of bankruptcy, the bill of lading arrived, and was delivered after the fiat, in pursuance of this arrangement, to a third party, who pledged it for a large advance with the plaintiffs. On the arrival of the cargo, the defendants got possession of it, and the plaintiffs brought this action of trover for it, as endorsees of the bill of lading. The Court of Exchequer, on these facts, held, that although the contract was primâ facie made on behalf of the vendors, it was a question for the jury, looking at the form of the bill of lading and language of the invoice, whether the goods were not really delivered on board to be carried for and on account and risk of the bankrupts; and, if they were, that the right of stoppage in transitu, and also the power of rescinding by the bankrupts, so as to defeat the rights of their creditors, were at an end; but that if the jury should think, from the form of the bill of lading, that it was intended to preserve the rights of the unpaid vendors until some further act was done, by transferring the bill of lading, the right to stop the goods in transitu, and also the power of rescinding, would continue until the bill of lading, endorsed, reached the hands of the bankrupts, in which case it was competent for them to give the unpaid vendors a lien on the whole for the part not paid. Where the defendant, the shipper of goods which had been purchased by him of W. on account of P., wrote to C. and P. enclosing the bill of lading, endorsed, desiring them to follow the instructions of W. respecting the goods, and informing them that he had valued upon them on W.'s account, but not making their acceptance of the drafts a condition of their right to transfer the bill of lading, and P. having got possession from them of the bill of lading, transferred it to persons who advanced money to him upon it, and who transferred it to the plaintiffs for valuable consideration, and C. and S. having refused on P.'s failure to accept the drafts-the defendant claimed to stop the goods in transitu, and obtained possession of them from the master of the ship, it was held in an action of trover that the plaintiffs were entitled to recover (b). (b) Gurney v. Behrend, 3 E. & B. 622; 23 L. J. Q. B. 265; Coventry v. Glad stone, 37 L. J. Ch. 30; the Argentina, L. R. Chap. 4. Part IV. 4. Cases of Conditional Consignment, the Condition having been performed. In determining by whom an action can be maintained against the shipowners for the loss or injury of goods, cases of conditional consignment (the condition being unperformed) must be carefully distinguished from those in which, by the terms of dealing between the consignor and consignee, the property in the goods vested in the latter at the time of shipment (defeasible only by the former's right of stopping them in transitu); and also from those cases in which the conditions attached to the delivery of the goods have been performed by the consignee. In the case of Coxe v. Harden (a), the consignors abroad, upon receipt of orders from their correspondents in England, shipped goods on account and at the risk of the consignee, and took bills of lading from the master to their own order, transmitting one of such bills, unendorsed, with the invoice to the consignee, enclosed in a letter, informing him that they had drawn upon him for the amount, and adding, "We close this account in course." Another bill of lading was sent by them, endorsed to their own agent, but of this they did not inform the consignee. The master having improperly delivered the goods to the consignee on production of the unendorsed bill of lading, it was held, that the property, which was defeasible before delivery in case of the consignee's insolvency, had vested in him by the delivery, and that the holder of the endorsed bill of lading could not maintain trover against him. This case is materially distinguished from that of Brandt v. Bowlby (b), by the absence of all intimation to the consignee that a bill of lading, endorsed, had been sent to the agent of the consignor; an intimation which in that case evinced a clear intention on the part of the consignor that the property should not vest absolutely in the consignee. In another case, goods were shipped to order, on account and risk of the consignee. An invoice of them and bills of lading to order or assigns, endorsed in blank, were also transmitted to the plaintiff, who was the consignee, in a letter of advice, informing him that the consignor had drawn bills on him at three months for the value of the cargo. Another bill of lading was afterwards sent to the agent of the consignor, under which he obtained the goods from the master, and insisted on immediate payment by the consignee, as a condition of delivery to him. The consignee offered his acceptance at three months, and on that being refused, brought an action of trover against the agent for the goods. It was held, that by the delivery of the goods to the master, and the transmission of the bill of lading and invoice to the plaintiff, the property had passed to him, and that he was entitled to recover (c). (a) 4 East, 211. (b) Ante, p. 262. (c) Wallie v. Montgomerie, 3 East, 585. 5. Of the Effect of Bills of Lading transmitted as Security for Advances, or to indemnify against Acceptances. When bills of lading to shipper's order, or to, or order, endorsed by the shippers, or bills of lading by which goods are made deliverable to a consignee by name, are transmitted to him as security for antecedent advances, or to indemnify him against liabilities in respect of the particular consignment which they represent, they are evidence of such a destination and appropriation to him of the specific goods as will vest in him a property, absolute or special in them, at the time of their delivery on board, and so render the master responsible to him for their loss or injury. Thus, where bills of lading to shipper's order, endorsed in blank, were forwarded to the consignees to secure advances agreed to be be made by them to the consignors, and the latter becoming bankrupts, their assignees claimed and obtained the goods from the captain, it was held that he was liable in trover to the consignees (d). So where goods were shipped, and bills of lading signed and transmitted to a factor, making them deliverable to him; upon proof by correspondence of the intention of the principal to vest the property in the factor, as security for antecedent advances, it was held, that the latter had acquired a special property in the goods the instant they were delivered on board, and that he might sue the master of the ship for their non-delivery (e). And where a manufacturer at Newcastle consigned goods to his factors in London, who had remonstrated with him on the state of his account, specifically to meet a bill drawn upon them, transmitting to them a receipt signed by the mate of the vessel, acknowledging the goods to have been received on board to be delivered to them, it was held that the appropriation was complete, and that the shipowners were liable in trover to the consignees (f). Where a consignee at Liverpool on receipt of a boat receipt, or bill of lading, by which goods actually laden at Longford were made deliverable to certain persons at Dublin "in care for, and to be shipped to," him, accepted on the faith of the consignment a bill of exchange, it was held, that the boat receipt was evidence of an intention on the part of the consignor at the time of the lading to vest in the consignee the property in the specific chattels laden, and that he might maintain an action of trover for them against a person to whom they had been delivered, under a subsequent order of the consignor (g). In respect of the goods thus actually laden at the time the boat receipt was signed the case was distinguished from those in which, there being (d) Haille v. Smith, 1 Bos. & Pul. 513. (e) Anderson v. Clark, 2 Bing. 20. And see the observations of PARKE, B., on that case in Bryans v. Nix, 4 M. & W. 775. See also the remarks of Lord ELLENBOROUGH in Patten v. Thompson, 5 M. & S. 356; and in l'ertue v. Jewell, 1 Campb. 31 (f) Evans v. Nicholl, 4 Scott, N. C. 43. Chap. 4. Part IV. no documentary or other evidence to prove an intention on the part of the consignor to vest the property in the consignee at the time of delivery to the carrier (a), it had been held not to have passed to him. Goods which were proved not to have been actually laden, or specifically appropriated to the consignee when the boat receipt was signed, were held, in the same case, not to have vested in him, but in the holder of another boat receipt, regularly signed by the boat master after the goods were on board. Where the bill of lading, indorsed in blank, was sent to the consignee, accompanied by a bill of exchange drawn against the cargo, for acceptance by him,-Held, that it was the duty of the consignee either to approbate or reprobate the transaction in toto; and that he could not accept the bill of lading and the cargo unless he also accepted the bill of exchange for its value (b). 6. Of Actions by Consignees, being only agents of the Owners of Goods. If the person to whom the delivery is ordered is only an agent of the shipper, and has no property in the goods, it has been thought that he cannot maintain an action in his own name against the master for not delivering them—not in assumpsit, for the contract in the bill of lading was not made with him, but with a third person, the consignor of the goods-not in trover, because no property having passed to him, he can have no right to complain of their non-delivery or conversion as an injury to himself (c). Yet in one case, where the consignor of goods, upon the insolvency of the consignee, endorsed the bill of lading to the plaintiff without consideration to enable him to stop the goods in transitu, it was held that the plaintiff had a sufficient property to maintain trover against the wharfingers (d) in whose custody the goods were. But, whatever may be the contract between the consignor and the consignee, the agreement for the carriage is between the carrier and the consignor (e). And if a special contract be made between the consignor and the carrier, the consignor may sue upon it without showing his ownership in the goods (ƒ). (a) Kinloch v. Craig, 14 East, 582. Nichols v. Clint, 3 Price, 547. Bruce v. Wait, 3 M. & W. 15. (b) Shepherd v. Harrison, 40 L. J. Q. B. 148. (c) Waring v. Cox, 1 Campb. 369; Coxe v. Harden, 4 East. 211. (d) Morrison v. Gray, 2 Bing. R. 260. But see the note to the case of Waring v. Cox, 1 Camp. 369. And see this subject very ably discussed in STORY on Agency, pp. 349-356. (e) Moore v. Wilson, 1 Term Rep. 659; Davis and Jordan v. James, 5 Bur. Rep. (f) Dunlop v. Lambert, 6 Cl. & Fin. 600. Since the Judicature Acts the question whether the consignor or consignee should sue is not of so much practical importance as it was before those Acts, as now where there is a doubt who should sue both may be joined as plaintiffs-a misjoinder of plaintiffs is not fatal to the action-and a non-joinder of a plaintiff, or bringing the action in the name of a wrong person, may in general be cured by amendment. (Judicature Act, 1875, order 16; Arch. by Prentice, p. 197.) |