Salant v. Pennsylvania Railroad

Smith, J. (dissenting):

The plaintiffs sent some shirt materials to one Shirk at East Earl, Penn. Shirk was under a contract with the plaintiffs to make up shirts from those materials at a stipulated price per dozen to be paid for the next week after delivery. These shirts were made up and were sent to the plaintiffs over the defendant’s road, with an order notify bill of lading, to which was attached a sight draft. The draft and bill of lading were presented to the plaintiffs in advance of the arrival of the shipment with a demand for the payment of the draft before three p. m. the same day, as a condition of the indorsement of the bill of lading, which indorsement was made a condition of the right to deliver by the defendant company. Plaintiffs, however, refused to honor the draft and began an action in replevin against these defendants for the goods. The sheriff took the goods under replevin process, tendering to the carrier the amount of the carrying charges, which tender was refused. This motion was then made by the defendants to have this replevin process set aside and for a return of the property taken thereunder. The motion was denied and from the order denying the motion this appeal hag been taken.

Section 23 of the Federal Bill of Lading Act provides: “ That if goods are delivered to a carrier by the owner or by a person whose act in conveying the title to them to a purchaser for value in good faith would bind the owner, and an order bill is issued for them, they can not thereafter, while in the possession of the carrier, be attached by garnishment or otherwise or be.levied upon under an execution unless the bill be first surrendered to the carrier or its negotiation enjoined. The carrier shall in no such case be compelled to deliver the actual possession of the goods until the bill is surrendered to him or impounded by the court.” (39 U. S. Stat. at Large, 542, § 23.) This provision also is found in section 210 of our Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], § 210, as added by Laws of 1911, chap. 248).

Two questions then arise for determination: ' First. Was the property delivered to the carrier by the owner or a person whose act in conveying title to them to a bona fide purchaser for value in good faith would bind the owner? In Abe v. Pennypacker, in the Passaic County, N. J., Circuit Court (not yet reported), this exact question was presented. One Penny-packer, who was a bailee of the plaintiff in Pennsylvania, shipped from Pennsylvania to the plaintiff in New Jersey, with an order notify bill of lading, goods which, in fact, belonged to the plaintiff. It was held in that case by Judge Minturn that the instructions to the bailee to ship to the owner constituted the bailee the agent of the owner, so that the shipment in question was in reality delivered to the carrier by the owner himself, Qui facit per alium facit per se, and that such goods could not be taken from the carrier by replevin process. The same rule was held in the case of Salant v. Pennsylvania Railroad Company, by Judge Wilson in the Municipal Court of New York city in a decision dated March 15, 1917. Even if this delivery to the carrier be not deemed to be made by the owner through his agent, nevertheless the agent was authorized to make the shipment. The taking of the bill of lading, as it was taken, was within the scope of his authority, and his negotiations of that bill of lading would pass title to a purchaser for value. (Pers. Prop. Law, §§ 217, 218, 224, 237, as added by Laws of 1911, chap. 248.) As was said by Vice-Chancellor Lane, in the case of Brimberg v. Hartenfeld Bag Co. (N. J. Eq., unreported): “ The purpose of the legislation undoubtedly was to protect goods in transit and in possession of a carrier against seizure until the carrier should be first liberated from, liability and attack by the surrender of the order bill. The Legislature has made the bill the res rather than the goods.” While then a mere bailee ordinarily has not authority to pass title to a purchaser in good faith, where that bailee is authorized to make shipment, he may take a bill of lading which he may negotiate and, in this way, give good title to a purchaser for value and in good faith as against the owner. In either aspect, therefore, whether the shipment be deemed to be made by the owner or by a person whose act in passing title to them to a purchaser for value would bind the owner, the case comes within the statute.

Second. Is replevin process included within the terms of this statute? It is claimed that because the expression is used “ by garnishment or otherwise,” the process there referred to is simply in the nature of an attachment in a proceeding brought, not by the owner, but by a creditor, in support of a right of action for moneys due. But the section also protects such property from levy by execution. If judgment be obtained in this replevin action, the only way to enforce it is by execution. (Code Civ. Proc. §§ 1240, 1373, 1731.) If, then, this property cannot be taken by execution in enforcement of the final judgment which this plaintiff seeks, it would be a strange anomaly to hold that it could be taken by mesne replevin process and thus held to no purpose. This fact gives significance to the expression of the statute that the goods cannot be attached by garnishment “ or otherwise.” The statute was passed to meet all phases of interference with the possession of the railroad company through different States wherein different legal proceedings are applied to the impounding or attachment of property, so that the words “ or otherwise ” are not necessarily interpreted by the word “ attachment ” as indicating like process. And this was so held in the cases of Salant v. Pennsylvania Railroad Company and Abe v. Pennypacker (supra).

This conclusion, I believe to be within the principle of the statute. Where goods are shipped and a bill of lading is taken, as said by Vice-Chancellor Lane in the Brimberg Case (supra): “The Legislature has made the bill the res rather than the goods.” Even if the bailee were not authorized to take a “negotiable” bill-of lading, with authority to ship the goods and take a bill of lading, the taking of a negotiable bill was within the scope of his authority and its negotiation to a purchaser for value would bind both the bailee and the bailor, the consignor and the consignee therein. (Pers. Prop. Law, §§ 224, 237, as added by Laws of 1911, chap. 248.) If the policy of the statute be as expressed, to protect the carrier as against interference with those goods except upon a surrender or impounding of that bill of lading, the necessity therefor exists in the case at bar to as great an extent as to any case which could come within the provisions of the statute.

In my judgment, therefore, this replevin process was improperly issued and the motion to set the same aside should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Philbin, J., concurred.