Pennsylvania R. Co. v. Stern & Spiegel

Opinion, Mr. Justice Paxson : The only error assigned is to the charge of the court.. It was in substance that the defendant company could only deliver the merchandise upon the production of the bill of lading, and that as there was nothing to excuse delivery without a [29] compliance with the terms, the jury should find for the plaintiffs. We see no error in this. The plaintiffs shipped this carload of dry bones from Bay City, Michigan, to Landenburg, Chester county, Pa., consigned to themselves. At the same time they drew on Whann for the amount, at forty-five days. There was a bill of lading attached to the draft showing that Stern & Spiegel, the shippers, had consigned said car to themselves. The letter of the latter to Whann, and the invoice, both of which were shown to the agent of the defendant company at Landenburg, were notice that there was a draft and bill of lading, and that Whann was required to protect the draft. The agent delivered the car to Whann without the bill of lad ing, and without an acceptance of the draft. This he had no right to do. The title to the property remained in the consignors until delivery in accordance with the conditions. Bills of lading are symbols of property, and when properly indorsed operate as a delivery of the property itself, investing the indorsers with a constructive custody, which serves all the purposes of an actual possession, and so continues until there is a valid and complete delivery of the property, under and in pursuance of the bill of lading, and to the persons entitled to receive the same: Hieskell v. National Bank, 89 Pa. 155. There could be no delivery except in accordance with the bill of lading. Dows v. Milwaukee Bank, 91 U. S. 618; Stollenwerck v. Thatcher, 115 Mass. 224. The invoice standing alone furnishes no proof of title: Benjamin on Sales, § 332; Dows v. Milwaukee Bank, supra. It was urged, however, that there was a course of dealing. between the parties that would take the case out of the rule above stated. The attention of the court below does not appear to have been called to this matter upon the trial. No reference to it is to be found in the charge, nor was any point submitted which would call it forth. There was evidence that the defendant company had on more than one occasion delivered goods from the same shippers to Whann prior to the acceptance of the drafts. No harm came of this because the drafts were afterwards accepted and paid. But this course of dealing between the company and Whann was not brought home to the knowledge of the plaintiffs in a way that would [30] justify the jury in finding that they had acquiesced in such an arrangement, and that they had consented to the delivery of this particular carload without the production of the bill of lading and acceptance of the draft. The company delivered in their own wrong and assumed the risk. Nor can we say as matter of law that plaintiffs suffered no loss by reason of the improper delivery. If the draft had been accepted it might have been paid, notwithstanding the failure of Whann, or the plaintiffs might have sold it without recourse. Judgment affirmed.