Freeman v. Kraemer

CANTY, J.

On November 26, 1894, plaintiff shipped a car load of oats and a car load of hay from Roberts, Wisconsin, to one Stevenson, a commission merchant at Duluth, Minnesota. A bill of lading or shipping receipt, whichever it may be called, was issued by the railway company to plaintiff (as C. F. Freeman & Co.) for each car. One of these bills of lading, as far as here material, reads as follows:

“Chicago, St. Paul, Minneapolis & Omaha Railway Co. No. car, 12,444. Roberts Station, Nov. 26, 1894. Received from C. F. Freeman & Co., in apparent good condition, marked, Geo. T. Stevenson, Duluth, Minn.; Articles, bailed hay, weight 20,400; as described above, contents and value unknown, to be transported by the Chicago, St. Paul, Minneapolis & Omaha Railway Company to the destination named above. * * * T. E, Bethel, Agent.”

The other bill of lading is in the same form. A few days prior to this, Stevenson wrote plaintiff offering $12 per ton for one car of hay, and 31|: cents per bushel for one car of oats, and the shipment to him was in response to his offer. Immediately on shipping the two cars, plaintiff drew one draft for the price of the hay, and attached it to the bill of lading for the car of hay, and drew another draft for the price of the oats, and attached it to the bill of lading for the car of oats. These drafts were drawn on Stevenson in favor of plaintiff’s banker at Roberts, who forwarded them, with the attached bills of lading, to another banker at Duluth, for collection, but the drafts were not discounted.

These drafts arrived in Duluth and were presented to Stevenson for payment on November 28, but he refused to pay them, giving as an excuse that the cars had not yet arrived. The cars had arrived on the 27th, and on the 28th the railway company, on the order of Stevenson, delivered them to defendants, who claim that they bought *246 the oats and hay from Stevenson in good faith, and paid him in full for the same. November 29 was a legal holiday, and on the next day the Duluth banker attempted to find Stevenson, and again demand payment of the drafts from him, but he could not be found. Thereupon the drafts and bills of lading were returned to plaintiff, who proceeded to Duluth, and demanded the oats and hay of defendants, who refused to deliver the same to him, and this action was brought for damages for the conversion of the same by defendants. On the trial the court ordered the jury to return a verdict for plaintiff for the value of the property, and from an order denying their motion for a new trial defendants appeal.

We are of the opinion that the order appealed from should be affirmed.

It clearly and conclusively appears from the evidence that the sale or contemplated sale from plaintiff to Stevenson was to be a cash transaction. No indicia of ownership were given to Stevenson. On the contrary, the bills of lading were forwarded by plaintiff, with the drafts attached to them, in such a manner as to make the intended delivery of the bills to Stevenson concurrent with the payment of the drafts for the purchase price of the property. From the circumstances; it conclusively appears that plaintiff did not intend to vest the title to the property in Stevenson until the goods were paid for.) Of- course, where, on an absolute sale of goods, credit is given, so that the delivery and payment of the purchase price are not intended to be concurrent acts, the delivery is absolute, and, in the absence of fraud or mistake, there is no way of revesting the goods in the vendor, except by the exercise of the right of stoppage in transitu. Where it is a conditional sale on credit, the title not to pass until paid for, it is void as against subsequent purchasers in good faith for value, unless the proper evidence of the transaction is filed of record, pursuant to G. S. 1894, §§ 4148, 4149. Bht this statute has no application to cash sales. National Bank of Commerce v. Chicago, B. & N. R. Co., 44 Minn. 224 , 46 N. W. 342, 560 . Where the sale is to be a cash transaction, if the vendee gets possession before the purchase price is paid, his possession will, at least for a short period, be regarded as merely conditional, and of such a character that he cannot vest a purchaser from him with title. National Bank of Commerce v. Chicago, B. & N. R. Co., supra; Benjamin, Sales (6th Ed., Am. *247 notes) 282. See, also, Emery v. Irving Nat. Bank, 25 Ohio St. 360 ; First Nat. Bank v. Kelly, 57 N. Y. 34 ; Cayuga Co. Nat. Bank v. Daniels, 47 N. Y. 631 ; Bank v. Jones, 4 N. Y. 497 , — which are cases similar in principle to this.

2. Appellants contend that plaintiff had conferred indicia of ownership on Stevenson, and that this gave Stevenson power to vest title by estoppel in appellants. In view of the authorities just cited, it is hardly necessary to say that merely shipping the goods addressed to the consignee, while retaining the bills of lading, confers no indicia of ownership on the consignee.

3. It is also contended that the instruments delivered to plaintiff by the railway company in this instance were not bills of lading, but what counsel terms mere “shipping receipts,” and that the retention by the consignor of these receipts was not a retention of the indicia of ownership, but that the same passed to the consignee. Whether, if counsel’s premises were correct, his conclusion would be, we need not consider. These instruments consist each of a receipt for the goods, and an agreement to transport them to a certain place, and, in our opinion, are bills of lading. See Union Pac. Ry. Co. v. Johnson, 45 Neb. 57 , 63 N. W. 144 .

4. There is nothing in the point that plaintiff failed to establish his ownership or right to possession of the property. He must have been in possession of the property when he shipped it. It is true that it appears from the evidence that, in answer to Stevenson’s first inquiry for hay, plaintiff stated that he had no hay, but that another party at Roberts had some, which he was going to press. In response to Stevenson’s second inquiry for hay and oats both, plaintiff shipped the two cars, but never in any manner claimed to be acting for said third party (whose name is nowhere disclosed), nor for any one but himself, in making such shipment.

This disposes of the case, and the order appealed from is affirmed.