J. H. Richardson & Co. v. Nathan

Opinion by Mr. Justice McCollum, We think the indorsements on the bills of lading cannot, under the circumstances shown by the special verdict, be justly considered as injuriously affecting the rights of the appellant to the property specified in the bills. The delivery of them was obviously made, accepted and intended as a pledge of the property as security for the sum advanced or paid on the draft to which they were attached, The purpose of the parties being evident, delivery without indorsement was sufficient to accomplish it: Holmes, Lafferty & Co. v. The German Security Bank, 87 Pa. 525. The indorsements which are thought by the appellee’s counsel to afford his clients some advantages and to abridge the rights of the appellant in this contest, were in the following words, to wit: “ Deliver to the order of J. H. Richardson & Co.” These indorsements were probably regarded by the consignor as nothing more than a direction to [518] the pledgee to deliver the property specified in the bills, to the appellees on their acceptance and pa3^ment of the draft, together with charges for transportation, storage, etc. His cancellation of the indorsements on their refusal to honor his draft is in accord with this view and with what we have seen was his purpose in delivering the bills. The indorsements were not intended to qualify the rights of the pledgee and we cannot assent to a construction of them which would defeat the common purpose of the parties to the transaction, which, we think, should be considered in the determination of this issue as if the indorsements had not been made. Thus considered, the effect of it was to invest the appellant with the rights of a purchaser of the property, so far as it might be necessary to exercise such rights for its protection: 2 Am. & Eng. Ency. of Law, p. 243, and cases there cited. In other words, the appellant, after the delivery of the bills, must be deemed and taken to have been the owner of the property for the accomplishment of the purpose for which it was pledged: Act of Sept. 24, 1867, P. L. 1363, Purd. Dig. p. 145. Having acquired this position by virtue of the delivery to it of the bills of lading it was made a garnishee of the property under the act of June 13,1874, P. L. 285, Purd. Dig. p. 146, and as such applied for and obtained, in conformity with its provisions, a dissolution of the attachment. . The dissolution thus effected released the property from the grasp of the attachment, and the garnishee sold it at public auction after having given due notice to the appellees of the time and place of sale. The latter alleging that the property was worth more than it was sold for were allowed to recover in this proceeding a judgment for the difference between the sum obtained for it and its actual value, on the ground that the sale was made without an order of court. Was such an order necessary to authorize and validate the sale ? We think it was not. A sale of the property or so much thereof as may be necessary to satisfy liens for advances and for freight and storage charges is evidently contemplated by the act under which the appellant became a party to the suit. The bond required on the dissolution of the attachment is in accord with this view. It provides for the retention by the garnishee for the purpose stated in it, of so much of the property or its proceeds as shall remain after the sale of the whole [519] or part of it and the payment of such liens. After seizure and prior to the dissolution of the attachment, the property was in custodia legis and could not be lawfully sold without an order of court, but after the attachment was dissolved the rights and powers of the appellant to and over it were the same as before the seizure, subject only to the duty of retention imposed by its bond. It follows from what has been said, that we regard the sale made as valid, and that the appellees cannot recover from the appellant the difference between the value of the property, and what it sold for. Ample opportunity was afforded them to become bidders at the sale, and if they had availed themselves of it, they would have acquired the property for less than its value or compelled the successful bidder to pay a fair price for it. Judgment reversed.