The Marine Bank of Chicago v. . Wright

The facts, as found by the referee, having been affirmed by the General Term, are conclusive upon this appellate court. Such facts, with such assumptions and inferences as may be necessary to sustain the report, and not inconsistent therewith, are to be taken by us as the facts upon which the decision is to be made. In this view, nearly the entire argument of the appellants' counsel fails of its application. It *Page 3 would have been pertinent and forcible before the referee, whose duty it was to determine the facts. It would have been quite appropriate before the General Term, where the right to review the facts existed. In this court, the facts are few and do not present the points argued. Viets made his draft on the defendants for $3,500 and presented it to the plaintiff for discount, with the bill of lading as security. The plaintiff advanced the money on the draft, and immediately transmitted it, with the bill of lading annexed, for the acceptance of the defendants. It was promptly presented to the defendants in that form. That the defendants happened to be absent from their office, and that their clerk failed to inform them that the bill of lading was annexed to the draft, was their misfortune. The fact, however, of legal notice that the draft and the bill of lading were thus connected together, that the one was security for the other, was thus clearly brought home to the defendants. The transfer of the bill of lading to the plaintiff, under the circumstances stated, transferred also the title to the corn described in it. The transfer was conditional and limited, to wit, to provide for, and until the acceptance of the draft. The title would then pass to the acceptors as their security, and the plaintiff's security would be transferred to the personal liability of the defendants as acceptors. The defendants having refused to accept the draft, the title of the plaintiff to the corn continued unimpaired. (Bank of Rochester v. Jones, 4 Com., 497; 2 Kent's Com., 207; Par. Mer. Law, 346; City Bank v.Rome, W. O.R.R. Co., decided December, 1870.) The defendants received the corn, subject to the rights of the plaintiff, and, having applied it to their own use, are liable to the plaintiff for the money advanced upon it. (Barry v.Longmore, 12 Ad. E., 639.) Under the principle stated, no allowance can be here made to the defendants for the $1,220 draft. The referee does not find that it was accepted on account of the corn shipped by the "Lummis." We cannot assume that it was. Indeed, the *Page 4 evidence is quite strong to the contrary, that draft being made on the 8th of November, and this corn not being shipped until the 17th of the same month. As the case comes before us, the judgment must be affirmed with costs.