Arbuthnot v. Central Trust Co.

SEAMAN, Circuit Judge (after stating the facts as above). The transactions involved in these three appeals are several importations of coffee by the bankrupt from Brazil, on which the appellants respectively (London bankers) had advanced the purchase price, under provisions made for security of the appellants, through ownership of the goods, pending payment by the bankrupt of such advances. On arrival in Chicago, as consigned, the bankrupt received and stored the imported goods in public warehouses, taking the customary warehouse receipts therefor in his own name. The controversy arises out of negotiations by the bankrupt of these warehouse receipts—excepting one minor lot of coffee not: included therein—to certain of the appellees, hereinafter referred to as “American bankers,” who claimed ■ownership respectively of the coffee embraced in such negotiable receipts, and were so awarded ownership by the decree of the District Court. Paramount title, however, is asserted on behalf of the appellants under the provisions referred to for security of their advances, all of which are unpaid.' The legal status, therefore, of these conflicting claims presents the main question, if not the only one, for decision. All material facts in the transactions are undisputed, and the entire bona fides thereof on the part of both London bankers and American bankers is expressly conceded; and no question of unlawful preference arises in any branch of the case. [1] The argument in support of the appellants’ claim as paramount is directed to several propositions of the nature and validity of title vested in the appellants, under the doctrine generally upheld in transactions of like character, which may be summarized as follows: (a) That they “had title to the coffees and immediate right to possession” — 22 — when bankruptcy occurred; (b) that they were “unquestionably the owners of the bills of lading and of the goods covered” thereby; (c) that such title was made continuous and valid under the bankrupt’s trust receipt in evidence; (d) that, even if treated as a pledge, no release thereof was effected by delivery under the trust receipt, and “the appellants are pledgees superior in right”; (e) that they are not conditional vendors, nor subject to the Illinois law applicable to such relation ; (f) that their title is not that of mortgagees, nor affected by the Illinois Chattel Mortgage Act (Hurd’s Rev. St. 1913, c. 95, §§ 1-21); (g) that the bankrupt’s possession was that of “a bailee for sale,” and he could confer no.property rights “as against the appellants”; (h) that the “appellants are not estopped by any of the matters” offered in evidence; (i) and that their rights are unaffected by the Illinois Warehouse Receipt Act. We believe the authorities, federal and state, substantially concur in upholding the validity of transactions of like nature in the financing of importations, wherein (as stated in Century Throwing Co. v. Muller, 197 Fed. 252, 258, 116 C. C. A. 614, 620) the advances are made by the foreign banker in reliance “upon the security afforded by title to the goods until this liability had been discharged.” The cases are not harmonious in definitions of the nature of such title held by the banker, but we understand them to concur in its recognition as a special form of “security title,” both needful and well established in the importation of goods, entitled to the utmost of judicial protection for enforcement, not only as against the importer, but against bona fide claimants under him. Each of these precedents is necessarily governed, for interpretation and validity, by the particular facts there presented, but their consensus of ruling upon the character of the security (as above stated) must be observed in so far as applicable to the-case at bar. In Judge Geiger’s opinion, filed on the hearing of these claims, the facts are reviewed and discussed in the light of the leading authorities, with clearness and discrimination, to ascertain the nature of security thus obtained'.in favor of the appellants. As aptly pointed out therein, in substance: This “security title” of the bankers cannot have the force of an unqualified ownership of the goods, with complete right of disposition irrespective of the importer’s interest. The exporters having “relinquished the whole of their interest” on transmission of. the-bills of lading to the bankers, the title acquired by the bankers for security must leave a “residue of ownership” of some character in the-importer under the contract of purchase and consignment of the goods. The conclusions are thereupon stated in the opinion that the relation created between the bankers and the importer was not that of vendor and vendee of the coffees, but that the bankers’ security title was “analogous to that of pledgee or mortgagee,” wherein possession “was of the essence of their rights,” and that surrender of such possession, under the so-called trust receipts in evidence, gave the importer dominion over the property which was destructive of the bankers’ security as against the claims of the appellees (American bankers). Such, conclusions, however, are not made the sole basis of the decrees in favor of the appellees, as the opinion further holds the Illinois Ware — 23 — house Receipt Act (hereinafter considered) operative to that end, whatever view be adopted as to the nature of the security title. We believe the above-stated premises for definition of the title to be well founded, but do not understand them to authorize its classification either as a pledge or mortgage of the property, nor as requiring possession to be of the essence of the right. Its nature as exemplified in the authorities is apart from, the common-law forms of security, as we believe, arising out of modern conditions of trade and commerce, which have caused “exceptions to be made to the rigid rule founded on the policy underlying the. statute of frauds, by which the divorce of title from possession is declared either evidence of fraud or to be fraudulent per se” (Century Throwing Co. v. Muller, supra), so that it may not be definable within any form of security thus founded. Without attempting review of the long line of cases called to our attention, we are satisfied that the well-considered opinion in Century Throwing Co. v. Muller, supra, speaking for the Circuit Court of Appeals of the Third Circuit, presents both sufficient review thereof and clear exposition of this modern form of “security title” and of the general rule for upholding its validity. Concurrence, however, in such view of its validity under the general rule is far from decisive of the present controversy. It involves, nevertheless, the ultimate issues: (1) Whether the security provisions are subject to the laws of Illinois; and, if, so, (2) what is their effect upon the claims in suit? [2,3] 1. Undoubtedly transactions of the nature above described are subject to statutory regulation and control, when brought within the cognizance of state legislation, and the general rule referred to cannot override rules of public policy thus adopted, if applicable to the state of facts in evidence. So the primary inquiry arises: Are the transactions thus brought within the scope of the Illinois enactments? For denial of their force, however interpreted, we understand the appellants’ contentions are in substance: First, that the effect and validity of the appellants’ claims are questions of general commercial law, not subject to local law for enforcement of the security in the federal courts; and, second, on the assumption of subjection to local law, delivery of the goods occurred in New Orleans under the trust receipts in evidence, and the transactions are governed by the law of Louisiana, and not that of Illinois. We believe the first-mentioned contention must be set aside, under the uniform line of federal decisions which have settled this doctrine: (a) That ownership and transfer of and liens upon personal property which has come within the state are subject to and controlled by the policy adopted by the state for regulation and control thereof; and (b) that “whoever sends property to it impliedly submits to the regulations concerning its transfer in force there, although a different rule of transfer prevails in the jurisdiction where he resides.” Hervey v. R. I. Locomotive Works, 93 U. S. 664, 671 (23 L. Ed. 1003); Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, 22, 11 Sup. Ct. 876, 35 L. Ed. 613; Dooley V. Pease, 180 U. S. 126, 128, 21 Sup. Ct. 329, 45 L. Ed. 457; 8 Rose’s Notes U. S. R. 1029; Id., 1 Supp. 1229, and 4 Supp. 774. The well-known case of Swift v. Tyson, 16 Pet. 1, 10 L- Ed. 865, is cited as lending support to the appellants’ contention, but its doctrine — 24 — is plainly without force in the present inquiry. The other citations are Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359, and Kuhn v. Fairmont Coal Co., 215 U. S. 349, 30 Sup. Ct. 140, 54 L. Ed. 228, but in each of these cases the above-stated rule of state control over property rights is expressly recognized as binding, all rights which have accrued under the settled law of the state. Their rulings are directed alone, as we believe, to independent determination of rights which had not been so settled as the state rule or policy when they accrued. Neither of these cases, therefore, tends to support the first contention, nor enters into consideration if the pre-existing law of Illinois is both applicable and decisive. The further contention, that delivery of the goods at New Orleans renders the security subject to the law of Louisiana, and not that of Illinois, we believe to be equally untenable under the undisputed facts in evidence. The importer’s sole place of business was in Chicago, and the purchases and all arrangements with thb London bankers for financing the importations were made through correspondence on his part from Chicago. Each consignment was made for delivery to the importer at Chicago, subject to the arrangement for securing the bankers (appellants) for their advances, with such purpose and address exhibited in all the documentary evidence—in the invoices, bills of lading, letters of credit and drafts coming to the hands of the bankers. While New Orleans was the port of entry for the steamers in the course of shipment, the goods were immediately forwarded by rail (as consigned) to their Chicago destination. The so-called trust receipts taken up and deliveries made to the importer en route on arrival at New Orleans—although of undeniable force as proof of possession and rights thereby vested in the importer—neither intended nor effected stoppage of the goods there, but merely accomplished their forwarding as above designated, in conformity with the object of the transactions. Deliveries were there made by the personal agents of the bankers on receipts of the importer made and dated in Chicago, forwarded to such agent. We are advised of no statute of Louisiana which even purports to reach these transactions, and believe it to be unmistakable that no ground is afforded by the above-mentioned deliveries at New Orleans to render them amenable to any general rule or policy of Louisiana respecting transfer of or liens upon personal property within the cognizance of the state; and the discussions in the argument of counsel thereupon are beside the inquiry involved herein. The several importations arrived at their Chicago destination in due course, and were there stored by the importer in a public warehouse, so that we are of opinion that all claims of. interest therein in controversy are subject to the law of Illinois affecting their force and validity within the established doctrine above stated. [4, 5 ] 2. Primarily the statutory rule and policy of Illinois has long been settled in favor of possession as “one of the strongest evidences of title to” personal property, which “cannot be rightfully separated from the title, except in the manner pointed out by statute,” and will not “suffer without notice to the world the real ownership to be in one person and the ostensible ownership in another,” as giving “a false — 25 — credit to the latter” and thus open to “injury to third persons.” Hervey v. R. I. Locomotive Works, supra. In Harkness v. Russell, 118 U. S. 663, 678, 7 Sup. Ct. 51, 30 L. Ed. 285, the opinion of the court by Mr. Justice Bradley reviews the decisions thereunder as settling “a rule of property in Illinois” which must be observed there, and marks its distinction from the rule of many other states reviewed therein which had adopted a different policy, under which its rigid doctrine was inapplicable. So, in Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457, and Rock Island Plow Co. v. Reardon, 222 U. S. 354, 362, 32 Sup. Ct. 164, 56 L. Ed. 231, decisions of this court in Illinois cases, in conformity with the above stated rule, are affirmed on review of the authorities. The fundamental provision on which these rulings rest is preserved In section 1, c. 95, Ilurd’s Stat. Ill. 1913, as follows: “That no mortgage, trust deed or other conveyance of personal property having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interest of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall, for the purposes of this act, be deemed a chattel mortgage.” In the light of the foregoing references review of the Illinois decisions is unnecessary, but it may well be remarked that none is cited which departs from the above stated interpretation of this statute. For special applications to the claims in controversy, however, the later provisions adopted in Illinois in 1907, known as the “Negotiable Warehouse Receipt Act” (Hurd’s Stat. 1913, c. 114, arts. 241-300), are deemed decisive against the appellants’ so-called “security title,” under the trust receipts in evidence. These receipts differ in form, but we believe them to be of like effect in substance. In two of them the importer expressly agrees “to hold the same in storage” as the bankers’ property, and such understanding must be implied from the other receipt under the undisputed custom in evidence. Each expressly provides for right of sale by the importer, the proceeds thereof to be paid over to the bankers until their advances are discharged; and two of them state the intention of the agreement “to preserve unimpaired the ownership” of the banker, while the third states the intention “to preserve unimpaired the lien.” One of them specifies his agreement “to hold said goods in trust” for the banker and “to sell the same for their account.” Each receipt discloses the appellants’ title to be for security only, which would be divested at any stage on payment of the advances. The above-mentioned statute (see, also, 5 Ill. Stat. Ann. J. & A. 5355, etc.) appears to be in the general form adopted in various states, referred to as “Uniform Negotiable Warehouse Receipt Acts.” It is deemed sufficient to quote the following sections: “See. 25. If goods are delivered to a warehouseman by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner, and a negotiable receipt is issued for them, they cannot thereafter, while in the possession of the warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution, — 26 — unless the receipt be first surrendered to the warehouseman, or its negotiation enjoined. The warehouseman shall in no case be compelled to deliver up the actual possession of the goods until the receipt is surrendered to him or impounded by the court.” “See. 40. A negotiable receipt may be negotiated—(a) By the owner thereof, or (b) by any person to whom the possession or custody of the receipt has been intrusted by the owner, if, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of the person to whom the possession or custody of the receipt has been intrusted, or if at the time of such intrusting the receipt is in such form that it may be negotiated by delivery. “Sec. 41. A person to whom a negotiable receipt has been duly negotiated acquires thereby—(a) Such title to the goods as the person negotiating the receipt to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had or had ability to convey to a purchaser in good faith for value; and (b) the direct obligatipn of the warehouseman to hold possession of the goods for him according to the terms of the receipt as fully as if the warehouseman had contracted directly with him.” “See. 47. The validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the receipt was induced by fraud, mistake or duress to intrust the possession or custody of the receipt to such person, if the person to whom the receipt was negotiated, or a person to whom the receipt was subsequently negotiated, paid value therefor, without notice of the breach of duty, or fraud, mistake or duress.” “Sec. 49. Where a negotiable receipt has been issued for goods, no seller’s lien or right of stoppage in transitu shall defeat the rights of any purchaser for value in good faith to whom such receipt has been negotiated, whether such negotiation be prior or subsequent to the notification to the warehouseman who issued such receipt of the seller’s claim to a lien or right of stoppage in transitu. Nor shall the warehouseman be obliged to deliver or justified in delivering the goods to an unpaid seller unless the receipt is first surrendered for cancellation.” These provisions clearly denounce, as we belive, the security title set up in favor of the appellants, both in conformity with the pre-existing state policy as above defined and in terms which leave no room for doubt of applicability thereto. The breach of duty on the part of the importer (bankrupt) in “making the negotiation” of. the warehouse receipt (section 47) cannot aid their claim, as the power was unquestionably vested in him to convey title to the goods “to a purchaser in good faith for value” which “would bind the owner” of goods so “delivered to a warehouseman” (sections 25, 41, 49). Thus vested, through the transactions in evidence as an entirety, with possession and authority to sell, either in parcels, or in whole, we do not understand it to be open to question under these sections, whether consent was given to the storage. The undisputed circumstances, as we believe; afford no support for the contention that the transactions made the importer a mere factor, agent or bailee for sale of the goods. His interest as purchaser, although subjected to the security title, appears throughout and leaves no room for definition otherwise under the Illinois rule and policy. For interpretation of the above-mentioned sections 40, 41 and 47, counsel for appellants cites the case reported as In re Dreuil & Co. (D. C.) 205 Fed. 568—affirmed by the Circuit Court of Appeals for the Fifth Circuit, 211 Fed. 337, 128 C. C. A. 16—in reference to like provisions in a statute of Louisiana. But the facts involved in that — 27 — case are plainly distinguishable from those presented here, and we believe the rulings therein to have no bearing upon the applicability of the statute as above stated. Warehouse receipts were taken out and negotiated for value as we understand the record, for all the importations except as to seven bags of coffee. Under the provisions of the Warehouse Receipt Act, as thus interpreted, the decrees of the District Court must be affirmed accordingly in respect of all receipts so negotiated. The portions of coffee not covered by such receipts were decreed to belong to the trustee. We believe the ruling in respect thereof was not erroneous, and may rightly be upheld under the general doctrine above defined against secret liens and reservations of title. The trustee is vested with right to such award pursuant to section 47a (2) of the Bankruptcy Act, as amended in 1910, as ruled by this court. In re Gold, 210 Fed. 410, 127 C. C. A. 142. The several decrees of the District Court are therefore affirmed.