A., in St. Louis, having a standing agreement with B. & Co.,
in New Orleans, to ship produce to them, drawing against the
shipments -- the balance of any draft on one shipment not
discharged by its proceeds, to be paid
from the proceeds of any other shipment -- bought of C.,
residing at Cairo, on the Mississippi, a hundred miles and more
below St Louis, a specific number of sacks of corn, then lying at a
landing on the river somewhat above Cairo, though much below St.
Louis, and received an order for its delivery. He did not pay for
it, though the transaction was impliedly one for cash. A. delivered
his order to the agents of a steamer at St. Louis, then about to go
down the river to New Orleans. These gave to him a regular bill of
lading, agreeing to deliver the specified number of sacks of corn
to B. & Co., in New Orleans. On the same day, A. drew his bill
of exchange on B. & Co., in New Orleans, telling them to charge
the draft to the account of this specific shipment; and attaching
to his bill of exchange, the bill of lading thus received, sold the
draft in the market. Being forwarded, it was paid at maturity by B.
& Co., in New Orleans; they having had no notice of any
difficulty. They were at the time in advance to A. on account of
other shipments. The steamer set off on her voyage, and stopping
at
Page 78 U. S. 561
the place where the sacks of corn were, took them on board.
Proceeding further on her voyage she came to Cairo, C.'s residence.
C., having learned that A. had failed, had not paid for the corn,
and was insolvent, issued an attachment, and on the arrival of the
steamer seized the corn and took it off the boat. On suit brought
by B. & Co., for damages,
held that after the boat
took the corn on board, a transfer of the property to B. & Co.
was effected, and that C. had made himself liable for his act of
seizure and asportation.
In 1867, Sherwood, Karns & Co., commission merchants of St.
Louis, had a standing agreement with Hamilton & Dunnica, of New
Orleans, to ship produce to them and to draw drafts on the
shipments, which they were to accept and pay. In case the proceeds
of any shipment left a balance due to Hamilton & Dunnica, they
were to apply the surplus of any other shipment in payment of it.
At this time Cole Brothers were the correspondents in St. Louis of
Hamilton & Dunnica, and were advertised to make advances on
shipments made to them, and often during the season of 1867 made
advances upon shipments to this house by Sherwood, Karns & Co.
In this condition of things the transaction occurred which was the
subject of this controversy.
On the 31st of August, 1867, Sherwood, Karns & Co. purchased
of Halliday Brothers, of Cairo, Illinois, through their agent (one
Booth) in St. Louis, 1250 sacks of corn, lying at Price's Landing
on the Mississippi River, a hundred and fifty miles, more or less,
below St. Louis, and a short distance above Cairo, and obtained an
order for the delivery of the corn. This order they handed over to
the agent of the steamboat
Bee, then at her wharf in St.
Louis, who issued a regular bill of lading to deliver the corn to
Hamilton & Dunnica at New Orleans. On the same day Sherwood,
Karns & Co. drew their bill of exchange for $2500 on Hamilton
& Dunnica, and in it told them to charge the same to account of
this specific shipment. At this time, there was a large balance due
Hamilton & Dunnica on account of previous shipments of produce.
This bill of exchange was
Page 78 U. S. 562
taken to Cole Brothers for discount, and sold, endorsed, and
delivered to them with the bill of lading attached, by Sherwood,
Karns & Co., to whom they paid the proceeds. Shortly after
this, Cole Brothers deposited the bill of exchange thus accompanied
by the bill of lading with a banking house in St. Louis, who sent
them forward, and Hamilton & Dunnica accepted the bill of
exchange without notice of any difficulty in the matter, and paid
it at maturity. In a day or two after the bill of lading was issued
and transferred to Cole Brothers, the steamboat
Bee
proceeded on her voyage to New Orleans as far as Price's Landing,
and, having obtained the corn, stopped at Cairo, arriving there
September 5. On the day, however, before she got there, Booth, the
agent at St. Louis of Halliday Brothers, telegraphing to them that
Sherwood, Karns & Co. had failed, had not paid for the corn,
and had no effects in St. Louis, directed them "to stop the
delivery of the corn." Thereupon Halliday Brothers got an
attachment, and upon the arrival of the steamer at Cairo, the corn
was levied on and taken from the possession of the boat by virtue
of the same. Halliday Brothers stated to their agent, Booth, his
impression was that "they attached the corn." These attachment
proceedings resulted in the sale of the corn and the payment of the
net proceeds by the marshal to Halliday Brothers. Hamilton &
Dunnica hereupon brought trespass against Halliday Brothers. The
court below charged generally in favor of the plaintiffs, and
refusing to charge as the defendant asked it to do, that the
defendants were not liable in this action unless they directed the
officer to seize the corn, or personally interfered with or took
control of it. The jury found for the plaintiff $3,436. Judgment
accordingly.
Page 78 U. S. 563
MR. JUSTICE DAVIS delivered the opinion of the Court.
There is no difficulty, on principle and authority, in
determining the rights of the parties to this controversy. On the
conceded facts of this case there can be no question that the legal
title to the 1,250 sacks of corn passed to Hamilton & Dunnica
before the levy of the attachment by Halliday Brothers, and if so,
the judgment of the circuit court must be affirmed.
It is not necessary to discuss the general doctrine relating
Page 78 U. S. 564
to the lien of a factor, because it has no application here. If
this were the case of a mere agreement to ship produce in
satisfaction of antecedent advances, which will not in general give
the factor or consignee a lien upon it for his general balance
until he obtains actual possession of it, the attachment would hold
the property. But the agreement in question is of a different
character, and rests on a different legal principle. It
appropriates specifically 1,250 bags of corn to Hamilton &
Dunnica, with an intention that they shall sell it to pay the draft
drawn against it, and, if there is any surplus remaining after this
is done, to apply it in liquidation of the advances previously made
for Sherwood, Karns & Co. And this appropriation did not rest
in intention merely, for it was executed, so far as the parties in
St. Louis could execute it, by the transmission of the bill of
lading to Hamilton & Dunnica. As soon as the corn was deposited
with the common carrier, who was the bailee for the purpose, the
title to it and right of property in it was changed and vested in
Hamilton & Dunnica, to whom it was to be delivered. This is the
effect of all the cases on the subject. [
Footnote 1] A contrary rule would defeat the object
which the parties to the agreement intended to accomplish by it,
and would seriously embarrass commercial men in their dealings with
each other, for it can be readily seen that the mode of transfer
adopted in this case is necessary for the purposes of commerce. If
Hamilton & Dunnica had purchased the corn outright, they could
not have got a better legal title to it than they acquired under
the admitted facts of this suit. The legal title to the property
passed to them to carry out certain designated purposes, and they
had the right to the undisturbed possession of it until those
purposes were effected.
Page 78 U. S. 565
It may be said that Sherwood, Karns & Co. had an equitable
interest in any surplus that might remain of the proceeds of the
corn after the claims of Hamilton & Dunnica were satisfied, and
that this equitable interest was liable to attachment by the laws
of Illinois. "But that liability," says Chief Justice Taney in
Gibson v. Stevens, [
Footnote 2] "will not authorize the attaching creditor to
take the property out of the hands of the legal owner before his
claims upon it are discharged." Besides, it is clear from the
evidence that the proceeds from the corn fell far short of
liquidating the indebtedness due Hamilton & Dunnica from
Sherwood, Karns & Co.
It is argued that the bill of lading did not effect the transfer
of the property, because when it was executed the corn had not been
received by the transportation company. But it became operative as
soon as the corn was in the custody of the boat, and the legal
relations of Hamilton & Dunnica to the property were fixed from
that time, and it is unnecessary to consider what would have been
the rights of third persons if the attachment proceedings had
preceded, instead of being subsequent to, the delivery of the
corn.
It is urged that the circuit court should have instructed the
jury, as it was asked to do, that Halliday Brothers were not liable
in this action, unless they directed the officer to seize the corn,
or personally interfered with or took control of it. But the
refusal to give this instruction worked no harm to the plaintiffs
in error, for the court could have well told the jury that the
evidence was conclusive on these points against them. Indeed, so
conclusive is it that there is no room to doubt that they took out
the attachment to seize this very corn, and directed the officer to
delay the boat for that purpose. On the 4th of September, Booth,
their agent in St. Louis, having ascertained that Sherwood, Karns
& Co. had failed, and did not own any property there to attach,
and being unable to get the money for the corn, sent a telegram to
the Hallidays to stop its delivery. This they doubtless
Page 78 U. S. 566
found they could not do; but on the same day they applied for
the writ of attachment, which was issued and served on the
following day. No other persons in Cairo could have known of the
shipment of the corn, or Sherwood, Karns & Company's connection
with it, and it is idle to suppose the marshal would have made the
levy without the special instructions of the plaintiffs in the
suit. Besides, it was their interest to keep their proceedings as
secret as possible, for fear the officers of the boat might get
knowledge of them and avoid landing at Cairo. But this is not all,
for they told Booth that they attached the corn, and the marshal
paid them the net proceeds of the sale of it. Surely nothing more
is necessary to show that the levy and sale were at their instance,
and there is no evidence at all to the contrary.
These views dispose of the case, and the judgment is
accordingly
Affirmed.
[
Footnote 1]
Haille v. Smith, 1 Bosanquet & Puller, 563;
Desha v. Pope, 6 Ala. 690;
Gibson v.
Stevens, 8 How. 384;
Grove v.
Gilmor, 8 How. 429;
Bryans v. Nix, 4
Meeson & Welsby 775;
Anderson v. Clark, 2 Bingham 20;
Holbrook v. Wight, 24 Wendell 169;
Grosvenor v.
Phillips, 2 Hill 147;
Sumner v. Hamlet, 12 Pickering
76;
Nesmith v. Dyeing & Bleaching Company, 1 Curtis
130;
Valle v. Cerre, 36 Mo. 575.
[
Footnote 2]
49 U. S. 8 How.
384.
