Garner v. St. Louis, Iron Mountain & Southern Railway Co. , 79 Ark. 353 ( 1906 )

Hill, C. J.

The Garners were merchants at Lamar, and contracted to sell Lesser Cotton Company 100 bales of cotton at seven and one half cents f. o. b. the railroad platform. When delivered to the railroad, a bill of lading was issued, and Garner would attach it to a draft drawn on Lesser Cotton Company, and collect the draft at his bank. The details of the sale are not otherwise important. The Garners had eight bales of cotton at Knoxville,” and directed it shipped. It was delivered upon the railway platform, the numbers checked by the agent preparatory to issuing a bill of lading, and shipping instructions were delivered to the agent. The night of the day when the cotton was put on the platform the station burned, and this cotton was destroyed. The Garners sued the railroad company for its value, and the court directed a verdict for the railroad company, and the Garners have appealed.

A carrier’s liability begins when it receives freight for immediate shipment, and is not dependent upon the issuance of a bill of lading. Railway Company v. Neil, 56 Ark. 279; Railway Company v. Murphy, 60 Ark. 333; Little Rock & Ft. S. Ry. Co. v. Hunter, 42 Ark. 200. There.was ample evidence to go to the jury on the contention that the cotton was received for immediate shipment, although a bill of lading had not been issued.

Appellee’s counsel has not favored the court with a brief, but appellants’ counsel states that his theory was that from the evidence of J. S. Garner it was shown that the cotton belonged to Lesser Cotton Company, and not to the Garners. This was evidently the theory upon which the verdict was directed.

A bill of lading represents the property. It is a muniment of title, and is both a receipt and contract. Turner v. Israel, 64 Ark. 244; Ray on Negligence -of Imposed Duties of Freight Carriers, §■ 25. When such instruments are attached to drafts, then the title to the property passes with the draft, and the pledgee or purchaser of the draft has a special ownership in the goods, which he may assert against every one. Ray, Id. § 31. But this principle can not control here. The testimony of Garner shows that he was not entitled to receive anything on the cotton under this contract with Lesser Cotton Company until he received his bill of lading. Then he was entitled to draw for the money. In this way Lesser Cotton Company was protected, for it could hold the cotton against the world upon such an instrument. It would pay the draft,- or a bank would cash it in reliance upon such payment, only when the bill of lading was attached thereto conveying the title. Until the Garners furnished Lesser Cotton Company with the muniment of title, they were not entitled to receive a cent on the cotton under the contract. This cotton was being prepared to follow a .course of affairs when the title would pass to the cotton company. The first step was delivery to the carrier, the next securing a muniment of title, and finally to deliver that muniment either directly to the Lesser Cotton Company or to a bank with draft attached when in due commercial course it would reach the Cotton Company. In this case only the first step had been taken, the delivery to the railroad company. None'of the other necessary acts to change the title to Lesser Cotton Company had been performed.

Appellant’s counsel say that appellee relied upon “opinions of this court in certain liquor cases in support of his contention.” Doubtless, reference is made to State v. Carl, 43 Ark. 353, and cases following it, where it was held delivery to the carrier completed the contract. Burton v. Baird, 44 Ark. 556, is another instance where delivery to the carrier in pursuance of directions from the other party completed the contract. But those cases do not reach to this one. Here the mere delivery to the carrier with shipping directions was not the termination of Garner’s conduct to complete his sale. He had to get a bill of lading and attach it to a draft before he was entitled to a cent, and hence his sale was not complete when he delivered the cotton to the carrier. This was not the final act in consummation of his contract. This was Garner’s evidence. It was reasonable and consistent with a common business practice, and, if given credit, the cotton was appellants’ at the time of the fire. The case should have gone to the jury.

Judgment reversed, and cause remanded.