Brown v. Max Malter Co.

Mr. Justice Scanlan delivered the opinion of the court. There is no dispute between the parties as to the quality of the sample eggs sent to the plaintiff by the defendant. The plaintiff in his brief says that the evidence of both parties proves that the sample cans of eggs contained first-class eggs that were fit for consumption as food. The defendant in his brief speaks of the sample eggs as “good and wholesome and fit and suitable for food purposes.” The first question for us to decide is, was Chicago or Boston, under the facts of this case, the place of delivery to the plaintiff of the 574 cans of frozen eggs? “The effect of a consignment of goods in a bill of lading is to vest the property therein in the consignee. A delivery of goods to a common carrier consigned to a particular person, without specific directions different from ordinary usage, is constructively a delivery to the consignee. Where the vendee is the consignee the delivery of goods to a common carrier without qualifications, consigned to that vendee, is in law a constructive delivery to the consignee from the time of shipment and the commencement of the carriage. ‘It is well settled that delivery of goods to a common carrier * * * for conveyance to him (the purchaser) or to a place designated by him constitutes an actual receipt by the purchaser. In such cases the carrier is, in contemplation of law, the bailee of the person to whom,—not by whom,—the goods are sent, the latter, in employing the carrier, being considered as an agent of the former for that purpose.’ Benjamin on Sales,— 2d Am. Ed.—par. 693, p. 648. In Merchants’ Despatch Co. v. Smith, 76 Ill. 542, we said: ‘Where goods are consigned without reservation on the part of the consignor, the legal presumption is the consignee is the owner.’ (Angell on Carriers, sec. 497.) This court held in Diversy v. Kellogg, 44 Ill. 114, that when goods were delivered to a carrier under a contract of sale, the title to the property vests in the consignee, subject to stoppage in transitu, but with no other lien unless expressed in the terms of sale.” Lake Shore & M. S. Ry. Co. v. National Live Stock Bank, 178 Ill. 506, 515. Numerous authorities to the same effect might be cited but it is not necessary to do this, for the reason that neither side to this controversy disputes the correctness of the principles laid down by the Supreme Court in the last mentioned case. Had the defendant carried out the terms of the contract between the parties, there is no doubt but that Chicago would have ■been the place of delivery to the plaintiff. It is apparent, however, that the defendant did not carry out the terms of the contract. Instead of shipping the eggs from Chicago and making the plaintiff the consignee in the bill of lading, the defendant had the eggs shipped from Milwaukee, Wisconsin, and it obtained a bill of lading for the eggs from the carrier, in which the defendant was made the consignee. The defendant then drew a draft upon the plaintiff for the amount of the bill for the eggs, attached the bill of lading to the same, and caused the draft, with the bill of lading attached, to be sent to a bank in Boston for collection. This draft was paid by the plaintiff, and thereupon the draft and the bill of lading were handed to him. It seems clear, from the authorities, that the delivery of the eggs by the defendant to the railroad company, under these circumstances, did not constitute a delivery to the plaintiff; that it was in fact merely a delivery to the carrier as bailee for the defendant; that the defendant retained the jus disponendi over the property, and that the title to the same did not pass from the defendant to the plaintiff, nor was there any delivery in law to the plaintiff until he paid the draft in Boston, and received from the bank the bill of lading. Jones & Co. v. Brewer, 79 Ala. 545, 549; Dorns v. National Exch. Bank, 91 U. S. 618; First Nat. Bank of Cairo v. Crocker, 111 Mass. 163. Where a shipper of goods makes himself the consignee in a bill of lading, the carrier is but a bailee for the shipper. The shipper retains title and control of the property and there can be no delivery of the goods to another party, under such circumstances, until that other, party has received from the shipper the bill of lading for the goods. Kitchin v. Clark, 120 Ill. App. 105, 107. The defendant by its conduct waived Chicago as the place of delivery, and substituted Boston in its place. Both parties agree and it is undoubtedly the law that the condition and quality of the 574 cans of eggs at the time and place of delivery to the plaintiff is the basis for determining whether the eggs sold were equal to the samples. In determining, therefore, the question as to whether the 574 cans of eggs sold to the plaintiff were equal to the samples furnished him, the question is, not whether the eggs sold when they left Chicago were equal to the samples, but whether they were equal to the samples when they arrived in Boston. The defendant during the trial and now insists that Chicago was the delivery place, and that the only question to determine was: Were the 574 cans of eggs, when they left Chicago, like the samples ? The defendant offered no evidence as to the condition of the eggs when they arrived in Boston. The testimony, in our judgment, is conclusive that the eggs when they arrived in Boston were unfit for food purposes. In addition to the testimony of witnesses as to the condition of the eggs when they arrived in Boston, the plaintiff offered in evidence the record of the proceedings in the in rem case. From this record we leam the following facts: The information in the case charged that the eggs in question “consisted in part of filthy, decomposed and putrid animal and vegetable ’ substance. ’ ’ A default was taken in the case and a decree of forfeiture entered, and the eggs were destroyed by the United States marshal, in pursuance of an order of the United States District Court. Because of the action of the government the plaintiff never had physical possession of the eggs. The plaintiff strenuously insists that the judgment of the United States District Court condemning the eggs in question is res adjudicaba as to the physical condition of the eggs at the time of the shipment. In the view that we have taken of this case, it is not necessary for us to pass upon this contention of counsel. The judgment in the in rem case was res adjudicaba as to all parties as to the condition of the eggs at the time of the seizure by the government. Makins Produce Co. v. Callison, 67 Wash. 434. The trial judge (in order to be on the safe side, as he stated in his decision) held with the defendant that the place of delivery of the eggs was Chicago, and that the decree of the United States Court was not res adjudicaba as to the condition and the quality of the eggs at the time of the shipment. The Court held, however, that the evidence in the case proved to his satisfaction that the eggs at the time of the shipment were very bad and valueless to the plaintiff, and that they were not like the samples that had been sent to the plaintiff by the defendant. We have examined the evidence in this case with great care, and we are satisfied that if we followed the law of the trial court (the law contended for by the defendant in this case), we would arrive at the same conclusion that the trial court did in reference to the facts. That the eggs when they arrived at Boston were very bad and unfit for human consumption is undisputed. In addition to the plaintiff, several able and disinterested witnesses, holding responsible positions with the United States government, testified that the bad condition of the eggs at Boston was not the result of changes in the condition of the eggs after they were shipped, hut that the same conditions that were found in Boston existed at the time the egg fluid was placed in the cans, and that this condition of the frozen eggs was caused by the use of decomposed eggs, known as “rots” and “spots,” or was due to insanitary handling of the eggs at the time of the breaking of the eggs and the placing" of the liquid material into the cans. The defendant had two witnesses testify as to the condition of the eggs at the time of the shipment. Max Malter, the president of the defendant corporation, was one, and Charles Lindloff, an employe of the Milwaukee firm, from whom the defendant bought the eggs, was the other. The witness Malter testified that he was present at the time the eggs were loaded on the car at Milwaukee, and that he made a test of 50 or 75 cans of the 574 cans that were shipped, and that the eggs tested by him were all No. 1 eggs and of good quality,—better in quality than the sample eggs. When the government seized the eggs in Boston, the plaintiff notified the defendant of that fact, told it where the eggs were in storage, and demanded of it a check for the amount of the draft that had been paid by the plaintiff, and for the amount of the freight on the eggs that had also been paid by the plaintiff. In response to this letter, the defendant through Max Malter wrote a letter to the plaintiff containing the following: “We are in receipt of yours of the 9th inst. and are very sorry to note what you say. In reply will say we have immediately taken this matter up with our Milwaukee party and are awaiting their answer. As soon as we hear from them will let you know immediately. We are very sorry to cause you all this trouble, but you see that it is not our fault, as on the strength of the sample that we shipped you ive bought the balance when we heard from you,. The eggs were shipped direct from Milwaukee loaded by said party direct to the car and never came to our possession.” In a later letter to the plaintiff, the defendant said: “What we are trying to do is to connect the Milwaukee party with this, as you know well that we acted in this only as brokers. On the strength of the sample that we shipped you, we then on your acceptance bought the remainder of the eggs and shipped it direct from there. You saw according to their guarantee what they think of it.” A number of letters dictated by Max Malter passed between the plaintiff and" the defendant after the seizure of the eggs, and in none of these was there any suggestion made that the witness Malter had inspected the eggs prior to the shipment from Milwaukee. From a reading of the entire correspondence, we are not satisfied that, the attitude of the defendant Company towards the plaintiff in this transaction was frank and honorable. The position of the defendant at first was that it had purchased the eggs from the .Milwaukee concern under a guaranty, and that it intended to look to the Milwaukee people for reimbursement for any loss that it might sustain in the matter. Finally, after the matter had been dragged out for months through the evasive tactics of the defendant Company, it ended the correspondence by notifying the plaintiff that it would not be held responsible for any loss the plaintiff might sustain in the matter. The affidavit of merits of the defendant Company in this case was subscribed and sworn to by the witness Max Malter. In this affidavit •appears the following: “Whereupon the said Gfrossenbach & Company, by direction of the defendant consigned about 10,000 pounds of frozen eggs to the plaintiff at Boston, Massachusetts, and the said Grossenbach & Company then and there guaranteed to the defendant here that the said frozen eggs were in all respects equal to the samples so received by the defendant from said Grossenbach & Company, and affiant says that he is informed and believes, and so states the fact to be, that the frozen eggs so consigned by the said Grossenbach & Company by and under the direction of the defendant were in all things equal to said sample.” When all the evidence is considered together, it is exceedingly doubtful, in our judgment, if the witness Halter made a test of the eggs at the time of the shipment. We are satisfied, that the evidence proves that the eggs at the time of the shipment from Milwaukee were not of a good quality and fit for human food, and that they were not equal in quality to the samples that had been forwarded to the plaintiff by the defendant. Therefore, if we adopt, as did the trial court, the defendant’s theory of the law, we are nevertheless forced to the conclusion that the judgment of the Municipal Court in this ease is a just one and that it should be affirmed. The judgment of the Municipal Court will therefore be affirmed. Affirmed.