Southern Flour & Grain Co. v. Central Texas Exchange National Bank

Hill, J. (After stating the foregoing facts.) 1. Under well-settled law and the repeated rulings of the Supreme Court, the undisputed evidence proved that the plaintiff bank held title to the two carloads of oats involved in the suit. “ Where a consignor of goods delivers them to a common carrier to be transported to a distant point, consigned to the order of the shipper, with direction to notify a designated person at the place of delivery, and a bill of lading is duly issued by the carrier to the consignor, and the latter attaches the bill of lading to his draft for the price of the goods on the person to be notified, and delivers it with bill of lading, which is indorsed in blank, to his bank to be placed to his credit on his general account, and the amount of the deposit is credited to the depositor’s general account and' drawn against by him, the bank acquires title to the goods represented by the bill of lading.” Alexander v. First National Bank of Fresno, 140 Ga. 266 (2) (78 S. E. 1071). The undisputed evidence in this case places the plaintiff bank clearly within the principle of law here announced. See also National Bank of Webb City v. Everett, 136 Ga. 372 (71 S. E. 660). The plaintiff having proved title and conversion, refusal to deliver or to pay on demand, it was entitled to a verdict, unless the matters of defense set up caused such a conflict in the evidence as would require solution by a jury. 2. It may be conceded that the defendant company proved, as claimed, that-an agreement had been entered into between it and McKie, representing McKie & Tilton, from whom it had purchased, that it could keep the two carloads of oats as an indemnifying margin against off-grades of the oats contained in the other seven cars. But it must be conceded also that this arrangement constituted no defense unless McKie was acting for, or on behalf of, the plaintiff bank. And this is the claim of the defendant company. But this mental attitude is not only not based on evidence relating to the subject of agency between McKie and the plaintiff bank, but the only evidence on the subject is directly and positively to the contrary. The officer of the bank testified positively that the bank had never, directly or through any authorized agent, surrendered its claim of ownership over the two cars of oats covered by the bills of lading, and the only other witness on the subject is the president of the defendant company, who testified [529] that McKie had positively told him, when he was endeavoring to adjust the differences arising out of the off-grades of the oats, that they belonged to McKie & Tilton. This is the only evidence on the subject of agency between McKie, of McKie & Tilton, and the plaintiff bank, and, instead of tending to establish that relationship, this evidence expressly negatives it. 3. The defendant grain company insists that if the plaintiff bank did hold title to the two carloads of oats, it surrendered the title when they authorized the Third National Bank to deliver to the- defendant the bills of lading covering the two cars, and that the circumstances were sufficient to authorize the inference that the surrender was made for the purpose of enabling McKie, representing McKie & Tilton, to adjust the matters of difference between the defendant and McKie & Tilton, and that the arrangement which had thereupon been entered into by the defendant and by McKie was binding upon the plaintiff. This contention is not supported by the evidence. To determine whether or not the plaintiff had surrendered title to the two cars, we must consider the evidence which is not in conflict. This shows that the defendant company got possession of the cars as a bailee for the plaintiff bank and for the sole purpose of storing the ears to prevent the ruin of the oats. This was the purpose of the bailment, and, as far as the evidence discloses, the plaintiff bank relied solely on this fact. The purpose of this bailment was afterwards, without any authority whatever, changed by McKie, of McKie & Tilton, who authorized the grain company to hold the two ears as a margin for security for alleged claims against other cars already paid for. This, apparently, was a fraud perpetrated not by the bank, or with knowledge on the part of the bank that it was being perpetrated, but it was perpetrated by a third party without the slightest authority from the bank and after this party had sold to the bank the oats in question and to induce the grain company to pay the drafts for the other oats. 4. Learned counsel for the plaintiff in error, in their able and exhaustive brief, failing to establish any agency whatever between McKie & Tilton and the plaintiff bank that would authorize the inference that the bank intended to release its title to the two carloads of grain or change the temporary character of its bailment in any manner, insist that if neither the Texas bank nor [530] the grain company was guilty of fraud and both were in a legal sense innocent, the loss should fall on the Texas bank, ,011 the principle that when one of two innocent persons must suffer by an act of a third person, he who put it in the power of the third person to inflict the injury must bear the loss. This is a sound principle of'equity, but we do not think, under the evidence, that it can be invoked against the legal rights of the, plaintiff bank. It may be conceded that the grain company was under the impression that McICie & Tilton were the owners of the oats in question, and therefore had a right to make any arrangement with reference to them, but the evidence is undisputed and irresistible that the plaintiff bank had the title to the oats in question and consented to their delivery to the grain company for the sole purpose of storage, and never at any time, either directly or through any authorized agent, surrendered this claim of ownership. We do not feel warranted in concluding that the defendant grain company obtained possession of the bank’s property under false pretenses of a bailment with intent to appropriate the property to i ts own use. It is clearly shown that the act of the third person which might result in injury to one of two innocent persons was the act of McTCie in untruthfully claiming to be the owner of the oats in question. The evidence clearly shows that the plaintiff bank as an innocent party would suffer great loss if the grain company, ^ after getting possession of these oats under the pretense of storing them in order to save them from ruin, and at once beginning to sell them at a price from twenty to twenty-four cents a bushel greater than the original purchase-price, should be allowed to retain possession of this money to pay the alleged counter-claim of about $800 against McKie & Tilton. This would amount to an appropriation of the property of the bank that is wholly unwarranted by the facts, the' law, or equitable principles. 5. In an action of trover the plaintiff has the option to demand a verdict either for damages alone, or for the property alone and its hire, if any. Civil Code (1910), § 5930. In the present ease the plaintiff elected a money verdict for the highest proved value of the property. And the evidence from the grain company’s books showed that it had sold all the oats in question for an amount exceeding the amount of the original drafts, which, was the amount sued for in this ease. The learned trial judge ruled [531] that the minimum of the plaintiff’s recovery' was the amount of the drafts, and fox this amount the verdict was directed. A careful consideration of the evidence in the case convinces us that the verdict as directed by the court was demanded; and certainly the defendant cannot be heard to complain as to the amount of the verdict, as its own evidence proves that it has received from the sale of the oats not .only a profit over the contract price, but a sum exceeding the amount of the drafts for which the verdict was directed. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.