
    J. P. Straus & Brother v. H. R. Wessel & Co.
    S., residing in Indiana, received frora'W., a commission merchant of Cincinnati, $6,000, advanced on account of pork, to be thereafter cut and sbipped by S. for sale on commission. In pursuance of the contract S. shipped by rail a car load of the pork, consigned to W. at Cincinnati, to whom he also sent an invoice of the shipment with a letter of advice stating: “We deliver this load on our indebtedness.” The value of the shipment was less than the amount of such indebtedness. The bill of lading was taken by S. in his own name, and was not forwarded to the consignee. Held — Under these circumstances the delivery of the pork by S. to the carrier was equivalent to a delivery to the consignee, and that after such delivery S. retained no such interest in the pork as could be subjected to attachment at the suit of a creditor.
    Error to the Superior Court of Cincinnati.
    In November, 1869, H. H. Wessel, then and for several years before, doing business as a commission' merchant at Cincinnati, Ohio, under the name of H. H. Wessel & Co., advanced to Stephens & Brother, pork packers, at Shoals, Indiana, about 150 miles distant, on the Ohio and Mississippi Railway, $6,000, upon their agreement that they would ship to him all the pork they would cut that season, to he sold by him, and the proceeds, after deducting freight and commissions, to he applied in repayment of the money advanced, and the surplus to be accounted for and paid to Stephens & Brother.
    In pursuance of this agreement, Stephens & Brother commenced cutting and shipping pork, by said railway, to Wessel at Cincinnati. They regularly advised Wessel, by letter, of such shipments, but did not forward the bills of lading. The several shipments were each consigned tó H. H. Wessel & Co. who being well-known to the carriers, readily obtained the pork, from time to time, on its arrival at the depot, in Cincinnati. Cn the 24th day of March, 1870, Stephens & Brother wrote to H. H. Wessel & Co. advising them of a shipment of pork by said railway under said agreement. The bill of lading for this shipment was dated March 26, 1870, and in it Stephens & Brother were designated as consignors, and IT. II. Wessel & Co., Cincinnati,' Ohio, as consignees. Stephens & Brother retained the bill of lading, and II. II. Wessel & Co. within two days after its date received said letter of advice of which the following is a copy:
    “ Shoals, Ind., March 24,1870.
    
      “Messrs. H. II. Wessel Co. — Genis:'
    “Shipped to-day car No. 761.
    7 tierces lard, No. 1..............................2,164
    1 bbl. grease...................................... 200
    4 bbls. cracklings................................ 913
    353 hogs’ heads (with the fat.....................1,970
    143 smoked jowls..................................... 745
    120 bacon hams.......................................1,412
    183 hogs’heads (skinned).........................1,460
    128 bacon shoulders.................................1,805
    “ The balance of meat we will ship whenever you order. We think it best to hold the lard. I send you two kinds of hogs’ heads — one with fat on, the other skinned, which notice ; we deliver you this load on our indebtedness. Bo the best you can. Tours truly,
    “ Stephens & Brother.”
    On the 28th day of March, 1870, soon after this shipment of pork reached the depot in Cincinnati, and whilst it was in the custody and possession of the railway company, it was taken in attachment by the sheriff of Hamilton county, at the suit of ,J. P. Strauss & Co., the pi’esent plaintiffs in error, who, as creditors of Stephens & Brother, procured said attachment to issue, in an .action brought by them against said Stephens & Brother on a claim for some $470. On the same day, and soon after the levy of the attachment, II. II. Wessel & Co. paid to the railway company the freight bill on the shipment, which was made out against them in the usual way. On the next day, Wessel & Co. commenced the original action in this case, in the Superior Court of Cincinnati, in replevin, against the sheriff’ and the present plaintiffs in error, for the .recovery of the possession of the pork in question. Their right to such possession was denied by the answers of defendants below.
    The case was submitted to the court below, in special term, for trial, without the intervention of a jury. There was no material conflict in the testimony adduced by the parties on the trial, which all tended to show the foregoing state of facts, and also that the pork in question was insufficient in value to satisfy and discharge the advances made by plaintiff below to Stephens & Brother.
    The court below, thereupon, found the issues in favor of the plaintiff below, and assessed his damages at one cent. Strauss & Bro. moved for a new trial and this motion was reserved for consideration in general term, where it was overruled, and judgment entered for the plaintiff below._
    Strauss & Bro. now seek a reversal of this judgment, on the ground that the property in controversy, at the time it was attached, belonged to Stephens & Bro., and that H. H. Wessel & Co. had no right thereto, nor interest therein.
    
      Stallo & Kittredge, for plaintiffs in error,
    cited: Emery’s Sons v. Irving Nat. Bank, 25 Ohio St. 360; Maine Bank v. Wright, 46 Barb. 45 ; Cayuga Co. Nat. Bank v. Daniels, 47 N. Y. 631; Blossom v. Champion, 28 Barb. 217; Gibson v. Stevens, 18 Howard (H. S.) 384; Nat. Bank of Toledo v. Walbridge, 19 Ohio St. 419; Mitchell v. Ede, 11 Ad. & Ell. 888; Turner v. Trustees of Liverpool Docks, 6 E. L. & E. 507.
    
      John Johnson, for defendant in error,
    cited: Stanton v. Eaper, 16 Pick. 467; Grovesnor v. Bhillips, 2 Hill, 147; Schmertz v. Dr oyer, 53 Penn. St. 335 ; 1 Binn, 106; 12 S. & R. 183; 1 Str. 1701; Story on Sales, sec. 306; Angelí on Car., sec. 497.
   Scott, J.

It is clear that the rights and interests of the plaintiffs in error, in the property which they, as creditors of Stephens & Bro., caused to be attached, can be no greater than those of their alleged debtors, Stephens & •Bro. They could attach only the interest of their debtors, in the property, and in this controversy must stand in their shoes. Now, for whom was the pork in question held by the carrier at the time of the levy of the attachment ? It had been delivered by Stephens & Bro. to the carrier for transportation to Cincinnati and delivery to the consignee, H. H. Vessel & Co. By the express terms of their bill of lading, it was the duty of the carrier to deliver it only to the consignee named therein. By the.invoice and letter of advice sent to the consignees, immediately before the shipment, it is very clear that the consignors had appropriated the pork shipped and the net proceeds of its sale to the partial discharge of their indebtedness to the consignees, for cash previously advanced. They expressly say : “ we deliver you this load on our indebtedness.”

The consignors of this shipment had not only the right, but, under their contract with the consignees, it was their duty so to appropriate it.

The relation of the parties to this shipment differed in no substantial respect from that of the case in which goods are shipped by a ven dor to a purchaser, who has previously ordered and paid for them. And in such a case it is well settled that the delivery of goods to a common carrier for conveyance to the purchaser is equivalent to a delivery to the purchaser himself. The carrier is, in that case, in contemplation of law, the bailee of the person to whom, not by whom, the goods are sent; the latter, in employing the carrier, being considered as the agent of the former for that purpose. Benj. on Sales, sec. 181, and the numerous authorities there cited. By the terms of the letter of advice, in this case, there can be no doubt that Stephens & Bro., by delivering the pork to the carrier, intended thereby to invest the consignees, Vessel & Co., with the full and rightful possession, and the absolute jus disponendi of the property, for the purposes of their contract.

They intended to retain no interest even in the proceeds of its sale, other than the right to have the net amount applied in partial satisfaction of their indebtedness to the consignees. And to this intention a controlling effect must be given. Emery’s Sons v. Irving National Bank, 25 Ohio St. 360.

It is claimed, however, by counsel for plaintiff in error, that, irrespective of the intention of Stephens & Bro,. in their shipment of the pork, by taking the bill of lading in their own name, and retaining its possession, they reserved for themselves the power to dispose of the property, and vest the title thereto in any bona ficle purchaser by a simple delivery of the bill of lading, and that they, therefore, remained the owners of the property, in contemplation of law, until it came to the actual possession of the consignees. But we think this position can not be maintained. A bill of lading, though transferable by delivery, like commercial paper, “is unlike commercial paper in this — the assignee can not acquire a better title to the property thus symbollically delivered, than his assignor had at the time of assignment.” Emery’s Sons v. Irving National Bank, supra, p. 368; Benj. on Sales, sec. 864.

Hence, as Stephens & Bro., under the circumstances of this casé, had parted with all right of control ovér the property in question, they could confer no such right on another by a transfer of the bill of lading.

¥e think the evidence in the case shows that at the time of the levy of the attachment, the property in question was constructively in the possession of defendant in error, who had the full and sole power of disposition over it, and the right to retain the proceeds of its sale.

The authorities cited by counsel for defendant in error fully sustain these views, and justify us in saying that the judgment of the court below must be affirmed.

Judgment affirmed.  