Finch v. . Gregg

Clark, J. In January, 1899, the defendant Gregg, in Chicago, Ill., sold to plaintiffs, Finch, Richardson & Co., at Springhope, N. C., a carload of “good corn.” Said Gregg drew- a draft on plaintiffs for the price of the corn, and sold it to the Seymour-Danne Company, to which was attached the bill of lading, Avhich was made out to his order, and which he assigned by endorsement to the purchasers of the draft. The-plaintiffs paid said draft, but the carload of corn was injured,, and the damages sustained thereby is the ground of plaintiff’s action. Love v. Miller, 104 N. C., 582. In May, 1899, the defendant Gregg sold another carload of com to Finch, Richardson & Co., Springhope, N. C., and also a carload to Woodard & Copeland at the same place. Aa wdth the Janua-ry shipment, the bills of lading were made out to the order of shipper, who endorsed them to Seymour-Danne Co., with a draft attached, drawn on the purchasers in Springhope. On arrival the two carloads were attached *178 before a Justice of the Peace (the amount claimed being less than $200) for the damages above stated, as sustained on the January shipment. To this proceeding Joseph Gregg alone was defendant, but the Seymour-Danne Co. appeared before the Justice of the Peace, through their attorney, and were “allowed to make themselves parties-defendant and interven-, ing they defended said action.” In the Superior Court on appeal, the plaintiffs were allowed to amend the attachment proceedings by making the Seymour-Danne Co. parties thereto. When the bill of lading, payable to order of shipper, was assigned, by him, for value (i. e. cashing of draft upon purchaser, attached), to the Seymour-Danne Co., the latter became owners of the corn, as against all the world except the shipper, as to whom the assignment was a security for the amount of the draft. Dows v. Bank, 91 U. S., 618; Daniel on Neg. Inst., sec. 1734a. Upon the arrival of the corn shipped in May, at Springhope, Gregg had no interest therein which could be attached (Emery v. Bank, 25 Ohio St., 360), unless, possibly, it had been shown that the amount to be paid for the corn was greater than the amount for which the Seymour-Danne Co., held the bill of lading as security — but that" point does not arise here. i Put when the Seymour-Danne Co., took the bill of lading' on both occasions equally they took the contract of the shipper, and they stood in his shoes, with the same rights, no greater, no less. Bank v. Bank, 91 U. S., 92. The rights of the purchasers, the plaintiffs, “were not impaired or disturbed by the change of ownership in the property.” They have the same defenses against the assignee of the bill of lading as against the shipper. Bank v. White, 65 Mo. App., 679. When the January carload arrived, the plaintiffs could *179 ■either have refused to receive and pay for the corn, or they could have received it upon notification of defects to the vendor in a reasonable time, have offered to return the goods, or, if sued for the price, have set up loss by reason of such defects. Kester v. Miller Bros., 119 N. C., 475; McKinnon v. McIntosh, 98 N. C., 89. But here the corn being shipped on a bill of lading, with draft attached, the vendee was compelled to pay upon the delivery of the corn (if it was otherwise, liberty to inspect should have been shown), and an action lays.to recover back money paid for defects in the corn, unless the claim was waived by delay to demand damages from January till this attachment in May.” Lewis v. Rountree, 78 N. C., 323. Whether there bad been a waiver was an issue of fact for the jury, to have been proven by the party alleging it. Both parties have agreed upon the facts as set out in the Justice’s return, and no waiver is therein found. The plaintiffs had therefore the same ground of action for damages against the Seymour-Danne Co. for the defects in the January carload that they would have had against their assignor, Gregg, and on the arrival of two carloads in May, likewise assigned to Seymour-Danne Co., while plaintiffs could not attach them as the property of Gregg nor for damages due by Gregg, they could attach said carloads as the property of Seymour-Danne Co., and for the damages sustained by delivery of a defective carload of corn to them by that company in January. Landu v. Lattin, 46 S. W. Rep., 48, which we find a. very clear and able discussion of a case “on all fours” with this. It is true the action was originally begum against Gregg alone, which could not be sustained as no jurisdiction as to him was obtained by attaching the two carloads of grain which by the assignment of the bills of lading had become the prop *180 erty of the Seymour-Danne Co., but the latter came in and were made parties before the Justice, by which the court was seized of jurisdiction as to them, and on appeal, the Judge properly permitted the attachment proceedings to be amended to embrace them, as they were already parties and claiming an interest, in the subject matter of the action. Code, sec. 184. The entry before the Justice was, as the Judge found, of a general appearance by the Seymour-Danne Co., but if it had been an appearance merely “as intervenors” to contest the title -to the property, it would not have been an unauthorized change of the action, in a proceeding quasi m re-rn, by attachment of property, to permit the plaintiffs to amend their attachment to embrace the same cause of action against the interveners as _ they had averred against the original defendant. Why turn the property loose to be again attached by the same plaintiffs, for the same cause of action eo instanti it is determined that tírese defendants (or intervenors, if such), are the real owners of the attached property instead of the original defendant? The judgment must be modified by dismissing the action as to Joseph Gregg, who entered a special appearance, with ,his reasonable costs, but as to' the Seymour-Danne Co., it is Affirmed.