Bell v. Chicago & Northwestern Railway Co.

Eschweileb, J. The contention of defendant and appellant on this appeal is that because of the delivery of the bill of lading by the plaintiffs to the agent of the defendant at the board of trade in Milwaukee, and the giving of the misdirected order for the same to the intended customer, Charles F. Glavin, the plaintiffs no longer had control of the said car on April 8th, and that their subsequent order on the 10th to [280] bold tbe same while the car was still in the possession of the defendant could be disregarded, and that if was therefore justified in turning over the car to the Chicago, Milwaukee & St. Paul Railway Company on April 12th. As between the plaintiffs and the defendant the delivery of the bill of lading to the custody of defendant’s agent on the board of trade was not, under the undisputed facts, with the intention of passing title to the car to the defendant, and the court therefore properly found that such delivery was a mere matter of convenience. The bill of lading did not come into the actual possession of Charles E. G-lavin so that it might have been claimed that validity would be given to any transfer made by him under sec. 4425, Stats., which provides that such bill of lading may be transferred by delivery without in-dorsement or assignment and that the person so taking the same shall be deemed the owner of the property therein specified, as in the case of Fenelon v. Hogoboom, 31 Wis. 172. Upon the arrival of the car and plaintiffs paying for and obtaining the bill of lading they become the owners thereof and as vendors thereafter entitled to the right of stoppage in transitu. As against the defendant common carrier, the right of stoppage in transitu remained in plaintiffs until the goods arrived in the possession, actual or constructive, of the purchaser. Jeffris v. Fitchburg R. Co. 93 Wis. 250, 67 N. W. 424; Brewer L. Co. v. B. & A. R. Co. 179 Mass. 228, 231, 60 N. E. 548; State v. Intoxicating Liquors, 104 Me. 463, 72 Atl. 331, 23 L. R. A. n. s. 1020; Durgy C. & U. Co. v. O’Brien, 123 Mass. 12; Inslee v. Lane, 57 N. H. 454. Under the facts shown and as here stated, there was no such actual or constructive possession of the car in Charles E. Glavin as terminated plaintiffs’ right to prevent its further passing from the actual possession of the common carrier then holding it under the original bill of lading. The appellant contends that inasmuch as the complaint was based upon the theory that there was a breach of the con [281] tract duty of defendant to safely carry tbe goods from Iowa to Milwaukee and tbe facts disclose tbat tbe car did arrive there safely, they could not be required to litigate in tbis action tbe question whether, after tbe arrival of tbe car there, there bad been a tort committed by tbe conversion of tbe oats by tbe defendant, and tbat to do so would necessarily require a determination of tbe possible rights of persons not before tbe court, namely, tbe Chicago, Milwaukee & St. Paul Kail-way Company, Charles E. Glavin, and any person to whom be may have sold tbe car of oats or tbe new bill of lading issued by tbe latter company. No question can be raised, however, but tbat tbe court bad tbe power and tbat it was its duty, no matter what tbe form of complaint, to give judgment in accordance with tbe facts disclosed on the trial. No suggestions were made on tbe trial tbat any other person should be brought in as a party to tbe action, nor does tbe record disclose tbat there were any offers of proof or requests made by tbe defendant to have any other question determined than that which was determined. Tbe defendant relied then, as it does now, upon its contention tbat Glavin, not tbe plaintiffs, bad control of tbe car after defendant received tbe bill of lading and the giving of tbe misdirected order for tbe car. We cannot, however, adopt tbat view of it, and therefore upon tbe record as it stood tbe civil court was warranted in entering tbe judgment tbat it did, and tbe judgment should be affirmed. By the Gowrt. — Tbe judgment of tbe circuit court is affirmed.