Central National Bank ex rel. Styer & Bro. v. Gallagher

Opinion by Mr. Justice Dean, This is an action of trespass against the defendant, sheriff of Chester county, for selling a car load of oats. It appears from the evidence that, on October 3, 1890, E. D. Hemphill, of West Chester, purchased from Bryan & Co., of Peoria, Illinois, a car load of oats at the price of 44 cents per bushel. The oats was shipped (car 3666) by Bryan & Co., on October 11th following, consigned to Hemphill, the shippers receiving from the carrying company a bill of lading. To this bill, the shippers attached a draft on Hemphill for $268.43, the price of the oats, and transmitted it through the Central National Bank of Peoria, to the First National Bank of West Chester for collection; delivery of the bill of lading to be made [462] on payment of draft by consignee. The draft and bill of lading reached the West Chester bank October 22d, and inclosed with it'was another draft and bill of lading from the same shippers, Bryan & Co., on Hemphill for another car, No. 1292. This last draft was properly indorsed, and was at once paid. The bill of lading for the oats in the car 3666 had not been indorsed lay Bryan & Co., and the railroad company would not deliver the oats without such indorsement. Hemphill then requested the West Chester bank to return the bill for indorsement, and the same day wrote to Bryan & Co., informing them of their neglect, stating that he had requested'the bank to return the bill for indorsement, and as soon as that was' done, and the bill was returned, the draft would be paid. The West Chester bank, as requested, did return the bill to the Peoria bank, informing it that the railroad company would not deliver the car without the indorsement of Bryan & Co. on the bill of lading. On October 25th, Bryan & Co. replied to Hemphill’s letter of the 22d, that their indorsement of the bill of lading was unnecessary, and on the 28th Hemphill replied, that he had sent back the bill and draft, because the railroad company would not deliver the oats without such indorsement, and that he could do nothing else. On the receipt of the bill and draft by the Peoria bank, they handed them over to Bryan & Co., but instead of indorsing the bill of lading for return to West Chester, they destroyed the draft, took the bill of lading to the railroad agent at Peoria, surrendered it, took another of same date, October 11th, consigning same car to Styer & Bro., Manayunk, Pa. This conduct of Bryan & Co. is explained by the fact that in the interval oats had advanced in price about ten cents per bushel; as they had consigned to Hemphill at 44 cents, they now made a new draft on Styer & Bro. at 53-J cents per bushel for the same car, making, instead of the $268.43 drawn for on Hemphill, $332.50, drawn for on Styer & Bro. Bryan & Co. had this draft discounted by the Peoria bank, and indorsed the bill of lading to the bank. On the 29th of October, the car arrived on Hemphill’s siding, and he tendered the railroad company a certified check for the price of the oats, to save carrier’s demurrage,' but they declined to deliver it. On the 7th of November, Hemphill, as a creditor of Bryan & Co., issued a foreign attachment against [463] them, and levied it on the car load of oats; on the 11th,of same month, at his instance, the Court of Common Pleas of Chester County ordered its sale as perishable property and the Peoria bank had due notice of this order. On the 18th, the oats was sold by the sheriff, in pursuance of the order of the court, for #229.91. The Peoria bank then brought suit, for use of Styer & Bro., against the sheriff for trespass. He contended at the trial that the sale to Hemphill could not be defeated until he refused to pay, and the bank, having knowledge of Hemphill’s position, stood in no better position, and that the facts were for the jury. The court, being of opinion that the return of the draft and bill of lading for indorsement was a refusal to pay, gave peremptory instructions for the plaintiff, and further instructed the jury that the measure of damages was the amount of the draft on.Styer & Bro., #832.50. The jury rendered a verdict accordingly, and defendant appeals, assigning, for-error the instructions as to liability of defendant, and as to measure of damages. The purpose of Bryan & Co. in shipping this oats, and drawing on Hemphill for the price, with bill of lading attached, the oats to be delivered on payment of the draft, was to retain title only for purpose of securing payment. The course of business and correspondence show this, beyond question. For every other purpose the title was in Hemphill, had he chosen to so regard it. The oats was in the same situation, as to title, as a consignment of goods delivered to a common carrier C. O. D. The fact that the carrier was not directly the agent of, the consignor for collection of the price, and that the end was attained by transmitting the bill of lading attached to a sight draft through banks, does not distinguish the transaction in its legal effect, from that, where the carrier is the agent for collection. There was just one reservation by the consignor, and that was that the physical possession of the goods should not pass to the consignee until he paid for them.' If Hemphill, on notification of the consignment and arrival of the oats, had declined to pay for them, the right of action in Bryan'& Co. against him for the price would have been complete. And when the. oats • arrived, if Hemphill had tendered the price to Bryan & Co., his title and right to possession would have been complete. There is not a break in the authorities on this point. This was [464] not, as contended by the appellee, “ an arrangement ” for the sale of the oats to Hemphill; it was a sale, with a special reservation in the consignor of delivery, only, on payment of price ; and that reservation could only be exercised on Hemphill’s refusal to pay when notified of the arrival of the oats for delivery. Hemphill was ready to pay, but the carrier, because of an informality in the indorsement of the bill, declined to deliver. Then, while Hemphill was seeking to have this corrected, that he might pay for and receive the oats, the consignors, with a disregard of business honesty highly discreditable, re-consigned to another purchaser at a higher price. Hemphill, instead of tendering the price and asserting title, instituted suit against Bryan & Co., and levied a foreign attachment on the oats as theirs; then moved for the sale of the oats as the perishable property of Bryan & Co. In so doing, he deliberately disclaimed title in himself, averred title in Bryan & Co., and stamped the transaction with the same legal impress as that put upon it by appellees.. All the evidence, bearing on the knowledge of the bank, as to Bryan & Co.’s want of good faith, and tending to show collusion between them and the bank, as well as the numerous authorities selected and presented with so much discrimination by counsel for appellant, become -wholly immaterial in view of this unequivocal attitude taken by Hemphill. And the court was bound to take the same view of it, and assume, as Hemphill did, that Bryan & Co., the vendors, had resumed complete possession of the property, and exercised their right of disposition, when they re-consigned to Styer & Bro., and sold the draft on them with bill of lading attached to the Peoria bank. But we think the rule as to the measure of damages adopted-by the learned judge of the court below, in view of the facts, was not a correct one. The suit is against a public officer who obeyed his writ,'and seized the goods on the attachment. This was, technically, a trespass, and for.it the plaintiff is entitled to only nominal damages, for there were no circumstances of. outrage or oppression. The real damage was by reason of the sale, and this was by the direct orders of the court to save loss of perishable property, pending litigation. The sheriff had no choice and no recourse to parties; his duty was simply to obey. And the order of the court is a complete protection to him: [465] 1 Am. & Eng. Ency. Law, 929; Zacharias v. Totten, 90 Pa. 291. In the case.last cited, the sale was by order of the court, of perishable property, pending interpleader proceedings, and this Court held that: “ All that, took place' subsequently to the granting of the rule appears to have been done under the direction of the court, and for everything so done the sheriff may justly claim protection, and plead that fact in justification.” As the levy of the attachment was the mere indorsement on the writ, the car not being disturbed, and the railroad company summoned as garnishee, the jury should have been instructed that plaintiffs were entitled to only nominal damages. The appellant’s 6th and 7th assignments of error are sustained, the others are overruled; the judgment is reversed, and a v. f. d. n. is awarded.