Ayres, Weatherwax & Reed Co. v. Dorsey Produce Co.

Ladd, J. 1 2 In an action brought upon a delivery bond, the defense is sufficient if it be shown that, at the time of the levy of the writ of attachment, the property belonged to some person other than the defendant. Section 2998 of the Code. In this case, the answer alleges that the berries released by the execution of the bond were, at the time of the levy, the property of the First National Bank of Geneva, N. Y., and not of the defendant in the attachment proceedings. The district court so found. The plaintiff insists that the bank did not, and could not, become the owner thereof. The bank took the bill of lading on which the berries were shipped from Geneva to Sioux City, in its own name, as security for the money advanced on the draft drawn upon the purchaser. Its position would not have been different had it taken an assignment of the bill for such purpose. The method is one commonly made use of in commercial transactions, when it is proposed that goods sold shall not be delivered before payment of the purchase price. The bill of lading represents the goods while in the possession of the carrier for transportation, and its assignment operates as a transfer of the title. Bank v. Logan, 74 N. Y. 568; Dows v. Bank, 91 U. S. 618; Garden Grove 143 Bank v. Humeston & S. Railway Co., 67 Iowa, 526 (25 N. W. Rep. 761). The bank, in this case, received the bill of lading for the very purpose of transferring title and delivering the berries to the purchaser on the payment of the purchase price. It could not so do without first having received the title. 3 II. The appellant also calls in question the authority of a national bank to take title to any property except in satisfaction of a previous indebtedness. The bank had received the bill of lading and advanced the money before the attachment proceedings were begun. At that time the appellant was a stranger to the transaction. As such, he cannot complain. 5 Thompson, Corp., 6030; 2 Morawetz, Priv. Cor., 707; Bank v. Matthews, 98 U. S. 621; Insurance Co. v. Smith (Mo. Sup.) 38 Am. St, Rep. 656 (23 S. W. Rep. 623). It appearing that appellant is not in a position to insist that the bank was acting ultra vires, we need not consider the provision of the national banking act authorizing the loan of money on personal security. 4 III. It is contended that notice of ownership, as required by chapter 45, of the Acts of the Twentieth General Assembly, should have been served on the sheriff before this action was begun. The notice there referred to is for the protection of the officer making the levy. It would serve no such purpose where a delivery bond has been executed, and is not required by the statute permitting the release of property thereby. — Affirmed.