Raleigh & Gaston Railroad v. Lowe , 101 Ga. 320 ( 1897 )

Fish, J.

1. The law is well settled, that while a bill of lading stipulating for the delivery of the goods therein described to the consignor’s order is, in a general sense, “negotiable,” it is not so within the meaning of the term as applied to bills of exchange, but is rather a symbol or representative of the goods themselves. Except where the rules of the common law and mercantile usage have been modified by statute, the transfer of a bill of lading by endorsement and delivery passes to the endorsee only such rights to, or property in, the goods covered by the bill as the transferrer himself has and as it is the intention of the parties shall be conveyed. The rule that possession carries evidence of title so as to protect bona fide purchasers in the usual course of trade is, in the absence of a statute to the contrary, limited to negotiable paper, such as bills of exchange and promissory notes, and to money, bank-bills, or other recognized currency, and does not apply to bills of lading, which answer a different purpose and perform different functions. They are not the.representatives of money, are not used for transmission of money, nor for the payment of debts, nor for purchases. They are regarded as so much cotton, grain, iron or other articles of merchandise, in that they are symbols of ownership of the property mentioned in them, and a transfer of the symbol does not operate more than a transfer of what it represents. Gurney v. Behrend, 3 El. & Bl. 633; Stallenwork v. Thacher, 115 Mass. 224; Tison v. Howard, 57 Ga. 410; Planters’ Rice Mill Co. v. Merchants’ Nat. Bank, 78 Ga. 574; Haas v. Railroad Co., 81 Ga. 792; Shaw v. Railroad Co., 101 U. S. 557; Pollard v. Vinton, 105 U. S. 8; Friedlander v. Railway Co., 130 U. S. 424.

2, 3. As no sale of stolen goods, though to a bona fide purchaser for value, can divest the ownership of the person from whom they were stolen, it follows that the sale of a stolen bill of lading, the.symbol or mere representative of the goods it covers, can confer no title upon an innocent third person as against the owner, or those claiming under him. See authorities cited supra. Upon the same principle, if a carrier delivers the goods upon a stolen bill of lading, it will not be protected from liability to the owner as for a conversion, though the bill be endorsed in blank and the delivery made in perfect good faith. If, however, a' bill of lading, duly endorsed, is stolen by reason of the negligence or carelessness of the owner or his agent, the carrier in good faith delivering upon such bill of lading is not guilty of a conversion. See 130 U. S. 424; 101 U. S. 565; 91 U. S. 618; 65 Fed. Rep. 848; 3 El. & Bl. 635, and 4 Am. & Eng. Enc. L. (2d ed.) p. 551, where this doctrine is recognized. In such case the familiar principle would be applicable, that where one of two innocent parties must suffer by the fraud of another, the loss should fall upon him who enabled such third person to commit the fraud. Whether such negligence existed in a given case, of course, should be determined by a jury, unless the evidence on this subject unequivocally demanded a finding one way or the other. The defendants below, however, did not deliver the goods upon a presentation of the stolen bill of lading, but had, probably a month before it -was stolen by Hudgins from the Lowry Banking Co., agent of Lowe, consignor, delivered them to Gardner, Arnold & Co., for whom there was reason to believe they were ultimately intended; thus making both the defendants and Gardner, Arnold & Co. guilty of a conversion and giving Lowe a right of action against either of them. Realizing their liability, the defendants endeavored to protect themselves by taking from Gardner, Arnold & Co. an indemnifying check against loss by reason of such unauthorized delivery. Subsequently, when Gardner, Arnold & Co. procured the stolen bill of lading from Hudgins, by paying him for the goods — believing he was the rightful owner — and exhibited it to the defendants, they, thinking the transaction was lawfully ended, surrendered to Gardner, Arnold & Co. the indemnifying check. Under such circumstances, the Lowry Banking Co., which had no knowledge whatever of the facts above recited, was under no duty to the defendants to so guard the possession of the bill of lading as to protect the latter from loss occasioned by their return of the check upon the production of the stolen bill. Negligence of the bank in losing possession of tlie bill of lading was not a matter of which the defendants had any legal right to complain. When the defendants converted Lowe’s goods and arranged a scheme for their own protection, they did so at their peril, and neither Lowe, nor his agent, the bank, each of whom was without notice of the conversion or scheme, was bound to do anything to-prevent the miscarriage of defendants’ plans for indemnity.. The fact that Hudgins was the party to be notified of the consignment and whose name appeared upon the bill of lading, in this connection, does not alter the rule. The very presence of the words, “notify Hudgins, Atlanta, Ga.,” in the bill of lading, shows that Hudgins was not intended as the consignee. If he had been, then such words were wholly unnecessary, as it is the duty of the carrier to notify the consignee of the arrival of the goods without being requested or instructed to do so. Hutchinson on Carriers, 2d ed., § 131(b), and cases-cited. When the Lowry Banking Co. reimbursed Lowe for the loss of the goods, an action, in the latter’s name for the former’s use, was maintainable against the defendants.

4. In view of the undisputed facts disclosed by the record,, it follows, from the foregoing, that the court committed no error in refusing to allow the defendants’ special plea to be filed, or in ordering the same to be stricken, or in directing a verdict for the plaintiff.

Judgment affirmed; cross-bill of exceptions dismissed.

All the Justices concurring, except Cobb, J., disqualified.