
    Bank of Batavia, Resp’t, v. N. Y., L. E. and W. R. Co., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    1. Principal and agent—Freight agents authority—Bill op lading,
    Where it is the duty of a local freight agent to receive and forward freight, but having no right to issue bills of lading except on the actual receipt of the property for transportation, and he conspires with another to fraudulently issue to him bills of lading, without receiving the freight, so that the latter could obtain money on such bills, the bank or person from whom the money is obtained may rely upon the representations contained in the bill of lading and the railroad is estopped from denying its truth.
    .2. Same—“ Hon-negotiable.” •
    If a common carrier desires to limit his responsibility to the named consignee alone, he must stamp his bills as “ non-negotiable,” and where he does not do so he must be understood to intend a possible transfer of the bills.
    S. Same—“Contents unknown.”
    A recital in the bill of lading that the contents of the package was unknown, leaves the carrier free from responsibility for a variance in the actual contents from those described in the bill, but is no defense where nothing is shipped and the bill is wholly false.
    
      E. C. Sprague, for app’lt; H. E. Sickels, for resp’t.
    
      
       Affirming 36 Hun, 642.
    
   Finch, J.

It is a settled doctrine of the law of agency in this state that, where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth, to his prejudice. North River Bank v. Aymar, 3 Hill, 262; Griswold v. Haven, 25 N. Y., 595; New York and N. H. R. Co. v. Schuyler, 34 N. Y., 30; Armour v. Michigan Cent. R. Co., 65 N. Y., 111. A discussion of that doctrine is no longer needed or permissible in this court, since it has survived an inquiry of the most exhaustive character, and an assault remarkable for its persistence and vigor. If there be any exception to the rule within Our jurisdiction, it arises in the case of municipal corporations whose structure and functions are sometimes claimed to justify a more restricted liability. The application of this rule to the case at bar has determined it in favor of the plaintiff, and we approve of that conclusion.

One Weiss was the local freight agent of the defendant corporation at Batavia, whose duty and authority it was to receive and forward freight over the defendant’s road, giving a bill of lading therefor specifying the terms of the shipment, but having no right to issue such bills except upon the actual receipt of the property for transportation. He issued bills of lading for sixty barrels of beans to one Williams describing them as received to be forwarded to one Comstock as consignee, but adding, with reference to the-packages, that their contents were unknown. Williams drew a draft on the consignee, and procured the money upon it of the plaintiff by transferring the bills of lading to secure its ultimate payment. It turned out that no barrels, of beans were shipped by Williams, or delivered to the defendant, and the bills of lading were the product of a conspiracy between him and Weiss to defraud the plaintiff or such others as could be induced to advance their money upon the faith of the false bills.

It is proper to consider only that part of the learned and very able argument of the appellant’s counsel which questions the application of the doctrine above stated to the facts presented. So much of it as rests upon the ground that no privity existed between the defendant and the bank may be dismissed with the observation that no privity is needed to make the estoppel available other than that, which flows from the wrongful act and the consequent-injury. New York and N. H. R. Co. v. Schuyler, supra.

While bills of lading are not negotiable in the sense applicable to commercial paper, they are very commonly transferred as security for loans and discounts, and carry with them the ownership, either general or special of the property which they describe. It is the natural and necessary expectation of the carrier issuing them that they will pass freely from one to another, and advances be made: upon their faith; and the carrier has no right to believe, and never does believe, that their office and effect is limited to the person to whom they are first and directly issued. On the contrary, he is bound by law to recognize the validity of transfers, and to deliver the property only upon the production and cancellation of the bill of lading.

If he desires to limit his responsibility to a delivery to the named consignee alone, he must stamp the bills as “ nonnegotiable; ” and where he does not do that he must be understood to intend a possible transfer of the bills, and to affect the action of such transferees. In such a case the facts go far beyond the instances cited, in which an estoppel has been denied because the representations were not made to the party injured. Mayenborg v. Haynes, 50 N. Y., 675; Maguire v. Selden, 103 id., 642. Those were cases in which the representations made were not intended, and could not be expected, to influence the persons who relied upon them, and their knowledge of them was described as purely accidental and not anticipated. Here they were of á totally different character. The bills were made for the precise purpose, so far as the agent and Williams were concerned, of deceiving the bank by their representations, and every bill issued not stamped was issued with the expectation of the principal that it would be transferred and used in the ordinary channels of business, and be relied upon as evidence of ownership or security for advances. Those thus trusting to it and affected by it are not accidentally injured, but have done what they who issued the bill had every reason to expect. Considerations of this character provide the basis of an equitable estoppel, without reference to negotiability or directness of representation.

It is obvious, also, upon the case as presented, that the fact or condition essential to the authority of the agent to issue the bills of lading was one unknown to the bank, and peculiarly within the knowledge of the agent and his principal. If the rule compelled the transferee to incur the peril of the existence or absence of the essential fact, it would practically end the large volume of business founded upon transfers of bills of lading. Of whom shall the lender inquire? And how ascertain the fact? Naturally he would go to the freight agent who had already falsely declared in writing that the property had been' received. Is he any more authorized to make the verbal representation than the written one? Must the lender get permission to go through the freight-house or examine the books? If the property is grain, it may not be easy to identify; and the books, if disclosed, are the work of the same freight agent. It seems very clear that the vital fact of the shipment is one peculiarly within the knowledge of the carrier and his agent, and quite certain to be unknown to the transferee of the bill of lading, except as he relies upon the representation of the freight agent.

The recital in the bills that the contents of the packages were unknown- would have left the defendant free from responsibility for a variance in the actual contents from those described in the bill, but is no defense where nothing is shipped and the bill is wholly false. The carrier cannot defend one wrong by presuming that, if it had not occurred, another might have taken its place. The presumption is the other way, that, if an actual shipment had been made, the property really delivered would have corresponded with the description in the bills. The facts of the case bring it, therefore, within the rule of estoppel as it is established in this court, and justify the decision made.

The judgment should be affirmed, with costs.

All concur.  