Louisville & Nashville Railroad v. Hartwell

JUDGE PAYNTER delivered the opinion oe the court. On the 9th of September, 1892,' Hartweil delivered to the appellant for shipment to A. Pennington & Co., of St. Louis, Mo., one hundred and seventy barrels of apples, for which he received from it a bill of lading. On the day following,. Hartwell made a draft in favor of the First National Bank of Elizabethtown, Ky., on the consignee, A. Pennington & Co., for three hundred dollars and at the same timé time delivered to it the bill of lading. He then notified the appellant not to deliver the apples to the consignee unless he presented the bill of lading and paid the draft which he had drawn in •favor of the bank. In violation of Hartwell’s order the appellant delivered to A. Pennington &• Co. the apples without requiring them to present the hill of lading and pay the draft. The bank gave Hartwéll credit for the draft, but Pennington & Co., failing to pay it, this action was brought to recover the amount of it of the appellant. The answer denied that Hartwell was the owner of the apples and alleged that they were owned by Pennington & Co. The shipper of goods may, even after the delivery to the carrier and after the bill' of lading has been signed and delivered, alter their destination and direct their delivery to another consignee, unless the hill of lading has been forwmrded to the consignee, or some one for'his use. However, [439] this would not be the case if a state of facts existed which made the delivery of the goods to the carrier a delivery to the consignee and the owner of them. (Hutchinson on Carriers, 2d ed., sec. 134.) While the consignee in the bill of lading is presumptively the owner of the goods and must be treated by the carrier as the owner, unless he has notice to the contrary, when goods are shipped deliverable to the order of the con-. signor, for and on account of the consignee, the carrier can not deliver them to such consignee, except upon the production of the bill of lading, properly rendered by the consignor. When the goods are thus shipped and deliverable the carrier must take notice that the consignee intended to retain the control of the disposition of the goods. (Hutchinson on Carriers, sec. 130.) So when the shipper gives notice after they have been received by the carrier for transportation and before they are delivered to the consignee, that he is not to deliver them to the consignee he must take notice that the consignor intends to retain control of their ultimate disposition. After such notice the presumption no longer obtains that the consignee is the owner of the goods. Bills of lading are assignable. When properly rendered and delivered with the intention of passing the title to them, it is a constructive delivery of the goods. (Hutchinson on Carriers, sec. 129.) In the same way they could be pledged to pay a debt and thus give the assignee control of the goods. There was no proof as to the value of the apples. It was essential that such proof should have been made before there could be a verdict and judgment for the plaintiff. (Sub-section 126, Civil [440] Code.) Unless they had a value the appellant could not have been damaged, except nominally on account of the appellant’s delivery of the apples to Pennington Co. It can not be said because the draft was for three hundred dollars, therefore the apples were of equal value, and that there is an implied obligation on the part of railroad company to pay that amount. The company can only be made to pay the bank such damages as it sustained, not exceeding in amount the value of the apples, but in no event more than three hundred dollars. Section 329, Civil Code, provides that “if, by a general verdict either party be entitled to recover money of the adverse party, the jury, in their verdict, must assess the'amount of recovery.” In this case the verdict must be general, and, if anything, the plaintiffs were entitled to recover money of the defendant. The court failed to^ tell the jury that if they found for the plaintiff they should assess the amount of recovery, and the jury did not fix it. The verdict is as follows: “We of the jury find for the plaintiff.” Although there had been proof as to damages the court was not authorized to render a judgment on the verdict, because the jury had failed to assess the amount of recovery. The testimony of Crimes and Talbot in rebuttal should have been given in chief. The judgment is reversed for further proceedings in conformity with this opinion. The following response was delivered to the petition for a modification and extension of the opinion, per curiam. The only question in this case, under the pleadings and [441] proof, is as to who owned tbe apples when they were delivered to the carrier. There is no evidence tending to show that Hartwell had any authority as the agent of Pennington & Co. to draw the draft. In fact, the theory of the hank is that Hartwell bought the apples on his own account, and it furnished the money to pay for them. It follows that instruction No. 4 should not have been given.