
    
      Graff & Co. vs. R. & A. P. Caldwell.
    
    Plaintiffs, in Baltimore, consigned certain goods to defendants, in Charleston, who were auctioneers and commission merchants, and they sold the goods. The action was for the prooeeds of tho sale. Defendants, when the goods arrived, did not claim as owners, but said to a witness, they had a lien by reason of advances to one B., who had possession of one of the set of bills of lading. On this evidence the plaintiffs were non-suited, and the Court of Appeals set the non-suit aside, holding, that tho evidence entitled the plaintiffs to go to the jury.
    
      In the City Court of Charleston, October Term, 1853.
    The report of his Honor, the Recorder, is as follows:
    “ This was an action brought by the plaintiffs, merchants in Baltimore, against the defendants, auctioneers and commission merchants in Charleston. The counts in the declaration are framed to meet the supposed liability of the defendants to the plaintiffs, in regard to certain packages or casks of brandy, shipped by plaintiffs from Baltimore to Charleston, and consigned to the defendants. The testimony offered by the plaintiffs was as follows :
    
      “ First: A bill of lading, in the usual printed form, a copy of which (as far as a copy can well represent such an original document) is annexed :
    “ ‘Shipped, in good order and condition, by Graff & Co., in and upon the good schooner called the Maryland, whereof North is master for the present voyage, and now lying in the port of Baltimore, and bound for
    G. &. CO. Charleston, S. C., viz: Twenty-five packages of Brandy, being marked and numbered in the margin;
    No. 1 to 25. and are to be delivered in the like good order and condition, at the aforesaid port of Charleston, S. C.,
    25 (the dangers of the seas only excepted,) unto R. & On H ,30 A. P. Caldwell, or to assigns, he or they paying -freight for the said Goods, at the rate of thirty cents 7,50 per package and , with primage and average 50 accustomed. Wharfage 50c. In witness whereof, -the master or purser of the said schooner hath af-8,00 firmed to 3 Bills of Lading, all of this tenor and date; one of which being accomplished, the others to stand void. Signed, E. SPEDDEN,
    
      Fated at Baltimore, October 26th, 1852. For the Master,’
    
      
      “ It was admitted that the defendants were in receipt of the above goods, and that they had been sold. An account of sale of the same by the defendants was produced, showing the net amount to be $204 97.
    
      “ H. F. Baker (sworn). — Witness was agent of the owners of the schr. Maryland ; recollects her arrival here; defendants received the brandy from the ship ; witness stated to defendants that he had received a letter from plaintiffs ordering him to hold on to the goods; defendants stated they had already made advances on the shipment to a Mr. Bingley; defendants said something about an adjustment of the matter; Bingley’s name did not appear on the bill of lading.
    “ Cross-examined. — Defendants were solvent; Graff & Co. directed witness not to deliver it, (the brandy,) because the party to whom they had given the bill of lading had not complied with contract of sale ; the advance spoken of by the defendants, was spoken of as having been already made; the first conversation was when the defendants had already received a part of the brandy, and while they were taking away the balance; witness thought he had no right to refuse delivery of the goods to the defendants; Bingley was not a resident of Charleston at this time.
    
      “ Here the testimony closed. The defendants’ counsel moved for a non-suit, which was granted, and I have received the annexed notice of appeal. The questions involved in the motion for a non-suit, were entirely questions of law; there was no dispute in regard to the facts; and in such a case, if in any, (and perhaps only in such,) as there was nothing in the way of fact to submit to the jury, I thought the Judge might as well decide the law in this form as in any other. The argument on the part of the defendants, mainly placed the case upon the application of the principles in regard to stoppage of goods in tran-situ, Many authorities were cited; some of which seemed to decide that where, as between the vendor and shipper, and the vendee, the goods had reached the ultimate port of delivery, or their final destination, the right of stoppage in transitu ceased; or, in other words, no longer existed. The plaintiffs’ counsel placed the right of plaintiffs to recover from the defendants mainly, if not entirely, upon the bill of lading. I could not see in that instrument, alone, any obligation imposed upon the defendants, the consignees, to account to the plaintiffs, the consignors, for the goods consigned, or their proceeds, upon or after a delivery to them, in pursuance of the bill of lading. Prima facie, (at least,) I regarded the bill of lading as transferring the legal title in the goods to the consignees, and in the absence of any case made out by extrinsic circumstances, or removal of legal presumptions, I could perceive no possible application of law to the admitted facts of the case, upon which the plaintiffs could found their action.”
    The plaintiffs appealed and now moved this Court to set aside the non-suit, on the following grounds:
    1. Because his Honor erred in holding that the possession of the bill of lading by the defendants, who were auctioneers, operated as a transfer of the property to them, and prevented the plaintiffs from recovering against them.
    2. Because his Honor should have submitted the case to the jury, to determine upon the evidence whether there was a transfer of the property, instead of granting a non-suit.
    Brown, for appellants.
    
      McCrady, contra.
   The opinion of the Court was delivered by •

Wardlaw, J.

The defendants urge that they were consignees of the goods — that the plaintiffs had no right of stoppage in transitu, as that right exists only between vendor and vendee, and where the latter is insolvent; and that a consignment without explanation, transfers the ownership to the consignee, and there can no more be an action by the consignor against the consignee on a bill of lading, than one by a maker of a prom-isory note against a payee, on the note itself. Admit all this. It results that there was a delivery of goods by the plaintiffs to the defendants ; and the admissions and proofs show that the defendants are auctioneers and commission merchants, and have sold the goods; that they did not pretend to claim as owners, but only to have a lien by reason of advances made by them to one Bingley. who had possession of one of the set of bills of lading. The defendants must then account for the sales ; and they 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. Whether a third person’s possession of a bill of lading, even although the possession of it may have been acquired from the consignors, will, of itself, furnish sufficient evidence of the right of that person to give directions concerning the goods, or to receive the proceeds of their sale, is' a question which may arise in the future trial of the case. We now see that the plaintiffs had furnished such prima facie evidence as ought to have gone to the jury, even if it was not clearly sufficient for their recovery, until it was rebutted by evidence in defence.

The non-suit is set aside, and new trial ordered.

O’Neall, WxtheRs, Whitner, Glover and Munro, JJ., concurred.

New trial ordered.  