Marine Bank v. . Fiske

Allen, J. At the time of the fabrication of the false bills of lading of wheat purporting to have been shipped by Nims at *357 Buffalo on board the canal boats, Hattie Eliza and Littlefield, consigned to the defendants at New York for account of Nuns, and the acceptance and payment by the defendants of the drafts drawn by Nims against the supposed cargoes, the wheat which is the subject of this action was on board the Empire State in transit between Milwaukee and Buffalo, under the bill of lading which had been transferred to the plaintiff as a security for the payment of the note of Nims, discounted to enable the latter to pay the draft drawn on him, against and for the purchase-price of the wheat. The plaintiff was the pledgee and special owner of the wheat, and in the possession thereof, the possession of the carrier being the possession of the plaintiff, the special owner, and the assignee of the bill of lading. The general owner had not the possession, or the right to the possession, or to dispose of or control the wheat. Any possession which he might obtain, or dominion he might exercise over the wheat without the assent of the plaintiff, would have been tortious, and he could transfer no title to another. (Dows v. Nat. Ex. Bk. of Milwaukee, 91 U. S. Rep., 618; Jenkyns v. Brown, 14 Q. B., 496; City Bk. of Rochester v. Jones, 4 Comst., 497.) The defendants, therefore, did not make their advances on the security of the wheat now claimed by the plaintiff, but upon false and simulated bills of lading representing and covering no merchandise and the fraudulent representations of Nims, the alleged shipper, and Bissell & Co., the pretended carriers and boat owners. The bills of lading represented no value, and were of no more significance as affecting the property of innocent persons, strangers to the transaction, than if the canal boats named had not been in existence, and the pretended boat owners had been myths, or their names had been forged. The plaintiff was no party to the fraudulent transaction, and in no way facilitated the perpetration of the fraud upon the defendants, or by any act or declaration gave colorable validity to the pledge of any wheat, or to the right or authority of Nims to make title to the' wheat specified in the bills of lading. The owner of property tortiously *358 taken from him is not estopped from reclaiming it by the fraudulent act of the tortious taker, to which he is not a party, or by a fraud and deception in which he has not participated, and which he has not in any way facilitated or aided. The plaintiff had not clothed Mims or the pretended carriers with the apparent title to or authority to dispose of the wheat then laden and being on board the Empire State, subject to the bill of lading then owned by it and in its possession ; and as there was no such apparent authority in Mims at the time the defendants made their advances, there can be no estoppel of the plaintiff from reclaiming its property subsequently delivered to the defendants by Mims without authority, the defendants not parting with value upon the faith of such delivery. (Barnard v. Campbell, 55 M. Y., 456.) The owner, of merchandise must have done some act by which another is clothed with the apparent jus disponendi, in order to create an estoppel upon his rights; some act which will operate as a fraud upon innocent persons dealing with the individual having the apparent right of disposal, if the true title is asserted. In other words, he must have enabled the wrong-doer to perpetrate the fraud. Had the wheat of the plaintiff been actually trans-shipped. from the propeller to the canal boats under circumstances, connecting the plaintiff with such trans-shipment before advances were made by the defendants, other questions would have arisen similar to those passed upon in Bowley v. Bigelow (12 Pick., 307). In that case the bill of lading had been given before the shipment of the corn, which at that time was owned and in possession of the plaintiff. But before the defendants accepted the draft drawn upon them against the shipment, the corn was actually on board the vessel, and the court held, that having been shipped as and for the corn embraced in the bill of lading, the bill of lading would, as against the master and owner of the vessel, operate on such corn by way of relation and estoppel, and the plaintiffs having parted with the possession of the corn and delivered it on board the vessel designated by the fraudulent purchaser under circum *359 stances terminating the right of stoppage in transitu as against a bona fide purchaser, the consignee accepting drafts on the faith of such consignment acquired a valid title to the corn as against the true owner. The elements of estoppel existing in that case are wanting in this. The defendants here did not acquire a title to the wheat in controversy by an advance made upon a spurious bill of lading, while yet the wheat was in the actual possession of the plaintiff, the true owner, and a subsequent fraudulent and unauthorized shipment of the wheat, as and for the'wheat mentioned in the bill of lading could not and did not operate by relation and estoppel to cut off the title of the owner not assenting to, or authorizing the shipment. It is not necessary to consider the other interesting questions discussed- by the learned counsel for the defendants, as the facts stated are conclusive, against the claim of title by the defendants as against the plaintiff. The demand upon, and the refusal by the defendants to deliver the wheat wore evidence of a conversion. The demand was general, and embraced the entire cargo of both canal boats, including a few hundred bushels of wheat to which the plaintiffs were not entitled. The refusal, however, proceeded on the ground that no part of the wheat belonged to the plaintiff, and clearly imported that the defendants would part with none of it. Abington v. Lipcomb (1 Ad. & E. [N. S.], 776), passed off on the ground that no title to any particular five of the seven beasts demanded as horiots were shown to have been lawfully seized as such, and not on the ground that the demand was too large. But there was an actual conversion of the wheat by a sale thereof by the defendants. The judgment must be affirmed. All concur. Judgment affirmed.