
    Graff & Co. vs. R. & A. P. Caldwell.
    Plaintiffs in Baltimore consigned certain goods to defendants in Charleston, who were auctioneers, and who sold the goods. The action was for the proceeds of sale. Defence, that plaintiffs had a lien on the goods by reason of advances made to one B., who had possession of one of the bills of lading, and who claimed the goods, — Held, that the defendants could not read in evidence a letter received by them from B. which enclosed the bill of lading.
    That defendants could defend themselves by showing that plaintiffs had sold the goods to B., but that B.’s possession of one of the three usual bills of lading was not of itself sufficient evidence that he owned the goods.
    IN THE CITY COURT OF CHARLESTON, JULY TERM, 1854.
    The report of bis Honor, the Recorder, is as follows:
    “ On a former trial of this case, the Court below granted a nonsuit; which nonsuit was appealed from, set aside, and a new trial ordered bj the Court of Appeals. It may save much time and unnecessary repetition in this report, to refer to the report of the case in 7 .Rich. 130. The testimony on the new trial, on the part of the plaintiffs, was substantially the same as on the first. It will be perceived, by reference to the report of the case in 7 Rich., that the plaintiffs relied on that trial, simply upon the legal force and construction of a bill of lading of goods, to the defendants, commission merchants and auctioneers in Charleston, directly consigned by the plaintiffs to them, as devolving upon the defendants, the obligation to account to the plaintiffs for the sale or disposition of these goods.
    “I understand the decision of the Court of Appeals, in setting aside the nonsuit to be grounded upon this:—
    “ That, by the mere force of the bill of lading between the consignors and consignees, directly (at least, under the circumstances of this case, as developed on the trial), the defendants were bound to account to them for the sale and disposition of the goods consigned. Hence, that they were bound to show in discharge or defence, the true relation they occupied, in regard to any third person, from whom they alleged or pretended to have received the bill of lading, and on the faith of which it was said they had made advances. This was undertaken to be done by the defendants on this second trial. There was considerable evidence offered on their part, to meet this view of the case taken by the Court of Appeals. All the facts, as far as questions of fact were involved, were submitted' entirely to the jury, as belonging to their province to ascertain and determine — under instructions to the jury as to the law, which are complained of only so far as the two grounds of appeal of the plaintiffs are concerned. The jury found a verdict for the defendants, and I have received the annexed notice of appeal. The first ground complains, “ That his Honor erred in permitting defendants to introduce a letter directed to them, purporting to come from one C. W¡ Bingley — that the letter so introduced was not proven to be in the handwriting of Bingley, 
      
      by competent testimony.” It seemed to me clearly competent for tbe defendants to show, and that they were indeed called upon to sbow bow, and under wbat circumstances, they bad received tbe bill of lading from Bingley. Indeed, in tbe absence of any such showing by tbe defendants, the plaintiffs might well have urged, in the way of conjecture or presumption, a want of fairness on their part in tbe transaction. Tbe bandwriting of the supposed writer of tbe letter, C. W. Bingley, was proved in tbe usual way, by one or more witnesses, and as a question of fact, was submitted to tbe jury. Tbe letter objected to was therefore admitted. In regard to tbe second ground it appeared from a certain letter of plaintiffs to de- ' fendants, introduced in evidence, and which will be annexed, that the .said C. W. Bingley, bad made a purchase of these brandies from the plaintiffs in Baltimore; that tbe vendors, under bis direction, shipped them to Charleston, to tbe defendants, directly, without naming Bingley at all in tbe bill of lading. That tbe defendants had, as far as it appeared, in good faith, treated with Bingley as tbe lawful owner of the goods in question, and bad made advances to him on tbe bill of lading, before the arrival of tbe goods, equal to or exceeding their value. I did regard, under the circumstances, tbe defendants as not accountable to the plaintiffs for the proceeds of tbe sale, and so instructed tbe jury, in the absence of any imputation or suggestion of fraud-on their part, (which was not only not pretended, but expressly disclaimed).”
    Tbe plaintiffs appealed on tbe grounds :
    1. That bis Honor erred in permitting defendants to introduce a letter directed to them, purporting to come from one C. W. Bingley, and that tbe latter so introduced was not proven to be in tbe bandwriting of Bingley, by competent testimony.
    2. That bis Honor erred in charging tbe jury, that Bingley’s written letter to B.. & A. P. Caldwell, coupled with bis possession of the bill of lading, was sufficient evidence of ownership to authorise R. & A. P. Caldwell to make advances to him, and that the ownership of Graff & Co. was thereby determined-
    3. That the jury, thus misdirected, found their verdict against law and evidence.
    
      Porter, for appellants.
    
      MeOrady, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, as in many others, we are constantly reminded of mercantile law, as if it was some strangely mysterious science, known only to those who are constantly engaged in enforcing it. Rut, as was ruled by Lord Mansfield, and his associates, in Pillans & Rose vs. Van Mirop & Hopkins, Burr. 1665, I think we may reply to all such suggestions, the law of merchants and the law of the land is the same,” and, as in the administration of the latter, mistakes may occur in its application to facts not understood, or imperfectly stated. But, .generally, there is less difficulty in deciding a question of mercantile law, which is said to have been placed by Lord Mansfield on exact right,- than in more abstruse, and refined technical principles.

In this case, at this time, I first intend to consider, whether the letter of Bingley, and its contents, were admissible in evidence on the proof before the recorder, and if not, on what proof, and how far it may be evidence.

1. The recorder tells us, that it was received on the proof of the handwriting of Bingley. On such proof, it was no more than Bingley’s declarations, and was most clearly inadmissible. If it can be shown, as was said in the argument, that the letter of Bingley was received by the defendants, and that it contained the bill of lading, then this so far is admissible, as a fact, that the defendants thus became possessed of the bill of lading; but then the contents of the letter could not be read. The rule in this respect, may be better illustrated by supposing, that Bingley in person had delivered the bill of lading to the defendants. This fact may be proved, but the witness could not go on and state Bingley’s declarations, as to his title, or the disposition of it, until his right of disposition was otherwise shown.

2. The recorder says, that he instructed the jury, that the defendants, under the circumstances, were not accountable to the plaintiffs for the proceeds of the goods sold. This Court, when the case was before us a year ago, ruled that the defendants must account to the plaintiffs from whom they received the goods, unless they can show, that the right of the plaintiffs has been transferred to some other person. 7 Rich. 133.

It does not appear that the jury, under the instruction of the recorder, passed on any such question. Primarily, the accountability of the defendants to the plaintiffs, is shown by the shipment. For it must be remembered that a consignee’s right is not generally that of owner. Usually cotton is sent by the owner to a factor for sale, so goods are consigned to auctioneers for the same purpose: there is in such cases no right of property for any other purpose. That was the case here; the defendants were auctioneers; the goods were sent to them for sale, and hence the ruling formerly in this case.

The doctrine of stoppage in transitu, has nothing to do with this case. The inquiry is one of fact, did G-raff & Co. sell and deliver the consignment to Bingley? It is plain they once contracted to sell. But it may be, as they affirm, that they never delivered constructively the goods to him, and that their shipment to the defendants, with their private marks on the bungs, was enough to have so informed them. The bill of lading is strictly assignable only by the consignees; it is true, the shippers having the right of property, can by writing on it, or in any other manner, whereby they change the right of property, pass to another all their rights.

The possession of one of the three usual bills of lading, by a third person, neither consignor, consignee, nor master, does not of itself give the rights of the consignor to him. There must be other facts shown, such as that he was owner of the goods, having bought them from the consignor; or that the consignor delivered to him the bill of lading to give him the control of the goods, or their proceeds, in the hands of the consignee. .In either of these cases, or others of similar character and effect, it may be, that a payment to the holder of the bill of lading would be good.

It does not seem to me that the recorder properly understood the question under this second head, and that the case under it, as well as the first ground, should go back for another investigation.

The motion for a new trial is granted.

Warblaw, Withers, Whither, Glover, and Muhro, JJ., concurred.

Motion granted.  