Merchants & Manufacturers Bank v. Phillip J. Toomer Lumber Co.

Sykes, J., delivered the opinion of the court. The W. M. Carter Lumber Company, of Laurel, Miss., received an order for some lumber from the Ganahl Lumber Company, of St. Louis, Mo., and had their agent, the Louin Lumber Company, of Louin, Miss., consign to the Ganahl Lumber Company a carload of lumber. The order for this lumber placed with W. M. Cartel Lumber Company by the Ganahl Lumber, Company, is. not set out in the record, and we do not know what terms or conditions it contained. The Ganahl Lumber Company was named as the consignee in the bill of lading. The Louin Lumber Company, .on the day of shipment, May 22, 1914, mailed to W. M. Carter Lumber Company this bill of lading and an invoice, or [654] bill of sale, of the lumber contained in the car. On May 23d the W. M. Carter Lumber Company made out its invoice of the lumber or bill of sale, addressed to the Ganahl Lumber Company, in which invoice it is stated that the terms are: “Cash, less two per cent, off in ten days. No discount on bills less than car lots.” This invoice or bill of sale is indorsed as follows: “Pay to the order of Merchants’ & Manufacturers’ Bank of Ellisville, Miss. “ (Signed) W. M. Carter Lumber Co.” All of these invoices and the bill of lading were at that time delivered to the appellant bank. On May 25th the Merchants’ & Manufacturers’ Bank, in a letter written the consignee, inclosed the bill of lading and invoice of this lumber, making the following notation on said letter: * ‘ This invoice and bill of lading is the • property of the M. & M. Bank, and must be returned at once or remitted to them direct and at terms at which lumber was purchased. “Note. — Terms, two per cent, discount will.be allowed only on amounts paid us within ten days from this date; one per cent, on amount within thirty days. ’ ’ A corrected invoice of the lumber was also inclosed in this letter. On the 26th day of May, or the day after the bank mailed the bill of lading and invoices to the consignee, this ear of lumber, while in transit from Louin, Miss., to St. Louis, was seized under an attachment at Houston, Miss, by the appellee Philip J. Toomer Lumber Company,, a creditor of the consignee, Ganahl Lumber Company. The bank filed a claimant’s issue. Judgment by default was taken against the' Ganahl Lumber Company, and the claimant’s issue was decided adversely to the appellant bank in the justice of the peace court.. An appeal from-that judgment was prosecuted to the circuit court, where the case was tried by [655] the judge, acting as both judge and jury, when again a judgment was rendered against claimant, the appellant bank, from which judgment this appeal is prosecuted. The sole question' presented to us for decision is whether or not the title to this carload of lumber was in the appellant bank at the time the attachment was sued out and its claim made. The controversy here is between a creditor of the consignee and the bank. No rights of innocent bona-fide purchasers for value are involved. It is well settled'that, if there was an unconditional sale of the property by the W. M. Carter Lumber Company to the Ganahl Lumber Company, the title passed to the Ganahl Lumber Company in this case upon tiie delivery of the car for transportation to the consignee at Louin, Miss. It seems to be the law that the bill of lading in this case is prima facie evidence of an unconditional delivery to the consignee. The intention of the consignor as to whether or not he meant the title to pass to the consignee upon delivery to the carrier is the real question in controversy. “Where goods are delivered by a vendor to a common carrier, consigned to the vendee, the question whether the title thereby passes from the vendor to the vendee depends upon the intention of the vendor, which intention is to be gathered from all the circumstances of the transaction.” Emery Sons v. Bank, 25 Ohio St. 360, 18 Am. Rep. 299, See, also, for ■ a discussion of this question, Mechem on Sales, vol. 1, secs. 788, 789 and 790. The assignment or transfer of the invoice or bill of sale by the W. M. Carter Lumber Company to the appellant bank, together with the delivery of the bill of lading, vested in the bank whatever title the Carter Lumber Company had to said lumber. Bank v. Jones, 4 N. Y. 497, 55 Am. Dec. 290; Emery Sons v. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; American National Bank v. Henderson, 123 Ala. 612, 26 So. 498, 82 Am. St. Rep. 147; Bonner v. Marsh, 10 Smedes & M. 376, 48 Am. Dec. 754. This assignment and delivery constituted a symbolical delivery of the carload of lumber. The reten [656] tion of the bill of lading by the W. M. Carter Lumber Company and the delivery of it, together with an assignment of the invoice of the lumber, to the bank, in the absence of any testimony as to ah absolute sale of the property to the consignee,'shows that the W. M. Carter Lumber Company did not intend to part with its title or its right of jus disponendi over this carload of lumber by the consignment to the Ganahl Lumber Company. The bank, upon becoming the purchaser of the same, as above stated, inclosed the bill of lading, together with the invoices, to the consignee, expressly stating in its letter to the consignee that the invoices and bill of lading were the. property of the bank, and must be returned at once or remitted to them direct, and at the terms at which the lumber was purchased. The testimony, uncontradicted, for appellant, was that this notation by the bank was a notification to the customer of their ownership of the property covered by the bill of lading and invoice. We construe this to mean that the bank retained title, to the carload of lumber until its terms were accepted. There was no acceptance of the-shipment by the consignee before the seizure under the attachment. Before the title to the lumber could have passed to the consignee in this case, an acceptance of the terms as shown in the letter and invoices of the bank was necessary. The authoritiés above cited are in point upon this proposition. The entire record shows that the consignor never intended to part with thejus disponendi of this car, or the title to the same, by the mere consignment to the consignee. Since the bank was the owner of the ear of lumber, and had the legal title thereto, its claimant’s issue should have been sustained. The doctrine of stoppage in transitu, as invoked by appellee, is not applicable, because the legal title to the lumber was in the appellant. Judgment should have been entered in favor of the appellant bank. Reversed, and judgment here for appellant. Reversed.