Empire Transportation Co. v. Steele

The opinion of the court was delivered, January 9th 1872, by Thompson, C. J. We shall notice the third assignment of error first. It presents the most material point in the case. Neither party has furnished us with a copy of the bills of lading in the case, and they are the instruments out of which this controversy has ax-isen. We must presume, therefore, that they are in the ordinary form of such instruments, without special or unusual exceptions or provisions. A. J. Thompson, it appears, was the shipper of the oil in controversy, axxd shipped by the Empire Transportation Company. Bills of lading were delivered to him for the oil, which was consigned by him to one Saxton, agent, in New York, he paying freight. Thompson drew two drafts on him, which were discounted by the plaintiff’s bank, and he assigned as collateral the bills of lading. If Thompson was the owner of the oil at the time, it is not to be doubted but that the assignment passed the property in the oil to the plaintiff. But if he was not, what intex’est in it did the assignment pass ? Lord Loughborough, in Mason et al. v. Lichlarrow, 6 East 21, delivering the opinion of the Exchequer Chamber, held that the endorsement of bills of lading had never been regarded in the commercial law as resting on the footing of bills of exchange, or other strictly commercial paper; that inquiry was a duty, and consequently that the endorsee took such paper on the credit of the endorser. So is the case of Kingsford v. Merry, 11 Exch, 577. In the Mechanics’ Bank v. The New Haven R. R. C., 3 Ker. 628, and in Mower v. Peabody, Id. 121, the same thing is contained, in the principle announced that as a bill of lading is a mere symbol, its delivei-y or negotiation px’oduces no greater effect than would the delivery of the goods it represents, and that the right conferred by the endorsement will [191] be limited to that which might have been exercised by the endorsee had the goods themselves been transferred instead of the bill. That principle is also recognised in Decan v. Shipper, 11 Casey 239; also in Schumacher v. Eby, 12 Harris 521. It must be remembered, that we are here speaking of the general commercial law, without reference to our factor act, or to the act approved 24th September 1866. It is well known that there being no market overt in this state, or in New York, had the oil been delivered to plaintiff in fact, he would have taken only such title as Thompson had, and any party having a right to contest that title would be authorized to show that he had none. That was what defendants proposed to do, as to the transfer of the bills. If the one is only the equivalent of the other in vesting title, it must follow that the offer should have been received. If Thompson had no title, the bank got none. The question was raised by a party legally claiming the oil for unpaid freights. It seems unquestioned that they had this right, for the plaintiffs claiming it, tendered the balance due defendants on that score. Had the testimony been admitted, it is possible that the plaintiff might have shown such a state of facts arising out of the conduct of Thompson and Saxton as would have been in law equivalent to title. But we cannot say how that may be, or what new aspects the case may assume on another trial. We can only treat of the exception as it appears, and we think it is sustained. On the question of the secondary evidence to supply the lost bills of lading, the proof of search was, in my opinion, deficient. It was made by Saxton’s clerk only. Had the testimony clearly shown that they had been received by Saxton, and the proof had shown a diligent search among his papers by the clerk, this, with Saxton’s testimony that he had them not, and that they were lost, might have been sufficient; but the clerk does not say whether he searched among Saxton’s business-papers or not. He only says he made diligent search for them. Saxton made none at all. If a paper be traced to a custodian and is lost, as a general thing, his search is all that is required. In addition, the depositor or owner of the paper ought to be asked to purge himself of its possession. We notice this as the case goes back for another trial. Standing alone, we perhaps would not, under the circumstances of the case, reverse on this ground; for the presence of the bills of lading could not be said to have been of vital importance. So thought, no doubt, the learned judge. But more care should be taken on another trial. For the reasons given on the 3d assignment of error, this judgment is reversed. We see no other error in the case. Judgment reversed, and new trial awarded.