
    The National Commercial Bank of Albany, Appellant, v. The Lackawanna Transportation Company, Respondent.
    
      Conversions it does not lie, for the failure of a common carrier to take up a bill of lading’on delivery of the goods to the holder thereof, in favor óf a subsequent transferee of the bill of lading. ■' .1
    
    Where goods, shipped under a bill of lading containing a provision that the bill shall-be surrendered upon the delivery of the'goods2 are delivered by the carrier to the lawful holder of the bill of lading without requiring the surrenderdhereof, the carrier is not-liable, as for the conversion of the goods, to a ' subsequent transferee of the bill of lading who took the same without knowledge that the goods had been delivered".. The functions of the bill ceased upon the delivery of the goods, and it could not thereafter operate To vest the title of the goods in the subsequent transferee^ "
    The liability, if any, of the- carrier to the subsequent transferee of the bill of lading, for the former’s failure to take up the bill when it delivered the goods, cannot be enforced in "an action based solely upon the theory of a conversion of the goods, : • - ~ "■
    Appeal by the plaintiff, The National Commercial Bank of Albany, from a judgment.of the -Supreme Court in favor of the' defendant, entered in the office of the clerk of the county of Albany on the 12th day of April, 1900, upon the decision of the court, rendered after a trial at the Columbia Special Term, pursuant to' an adjournment from the Albany Trial Term,. dismissing the complaint/ upon the merits.
    
      The facts, as they appeared upon the trial of this case, are substantially as follows :
    In October, 1891, Counselman & Co., at Chicago, shipped by the defendant’s line to Buffalo 50,000 bushels of oats, for which it took a bill of lading. Such bill contained a provision that, when the goods were consigned in a certain specified form, the bill should be surrendered to the carrier upon the delivery of the goods. It may be conceded that this bill required a surrender of the goods when delivery was made.
    The oats were consigned to the order of Counselman & Co. and such bill of lading, indorsed in blank by them, was sent annexed to their draft on E. Gallagher for the price of the oats, to the Marine Bank of Buffalo. When the oats arrived in Buffalo that bank held the bill of lading as security for such draft, and the defendant delivered the oats to it, but did not take up the bill of lading. Gallagher, acting for the Fort Orange Milling Company of Albany, subsequently paid the draft, and took the bill of lading and the oats and delivered them to the milling company. The oats were delivered to the Marine Bank on or about November 6, 1891. On ■ November 23, 1891, such milling company transferred such bill to .. this plaintiff, as security for a debt of some $15,000, then due to it, and the plaintiff, in exchange therefor, surrendered valuable secu- - rities which it held in pledge for the same debt. The plaintiff discovered in February, 1892, that the oats had been delivered to the Marine Bank, and by it to the milling company, before the said - transfer of the bill of lading to it, and that such milling conrpany ' had perpetrated a fraud upon it by inducing it to take such bill. Subsequently, in October, 1897, it demanded the oats from this defendant, and produced and offered to surrender to it the bill of 'lading in question. Upon the defendant’s refusal to deliver the same, it brought this action for their conversion. On the trial the complaint was dismissed upon the merits, and from such judgment of dismissal this appeal is taken.
    
      John G. Milburn and James McC. Mitchell, for the respondent.
    
      John M. Bowers, William Lansing and Latham G. Reed, for the appellant.
   Parker, P. J.:

We concur in the conclusion reached by the trial court, that the plaintiff could not maintain an action against the defendant for a conversion of the oats. '

The Marine Bank was the holder of the bill of lading and the owner of the oats when the defendant delivered them to it. It was the party to whom the defendant, by its contract in the bill of. lading, had undertaken to deliver them, and upon such delivery the functions of such bill of lading ceased. Thereafter it was a spent ” bill and could not be operative to transfer the title of the oats to any one. (4 Am. & Eng. Ency. of Law [2d ed.], 548, 549; Colgate v. Pennsylvania Company, 31 Hun, 300.) And this is so, although the defendant had violated a part of its contract contained therein, by not requiring its surrender when it delivered the oats. Notwithstanding that neglect, the bank was none the less the rightful owner of the oats and entitled to' their possession, and the bill of lading could never thereafter operate to deprive it of such rights. Thus, the delivery of the oats to the rightful owner was not a conversion of them by the defendant; and the plaintiff, which then had no interest whatever in them, has no just complaint against it for so doing. And inasmuch as the plaintiff, by the assignment to it of the bill, of lading) acquired no title whatever to the oats- therein mentioned, it has never obtained any right to demand the possession thereof from the defendant. The facts, therefore, do not sustain an action against the defendant for converting its property.

The precise ground of complaint which the plaintiff now makes against the defendant is, not that it delivered the property to the. Marine Bank, but that it neglected to take up the bill of lading when it made such delivery. It argues that the provision in such bill to' the effect that it would do so, was a contract with all those to whom it might thereafter come, that the defendant would retain the oats and hold them ready to be delivered to whoever should produce and surrender the- bill; that, by breach of that contract, the plaintiff has been induced to take a spent ” and worthless bill of lading, instead of a transfer of the oats, which, under the defendant’s contract, it naturally supposed it was acquiring, and that an action lies against the defendant for the damages so sustained.

It also further argues that such provision was at least a representation to whomsoever the bill might thereafter come, that the defendant still held the oats and would do so, so long as the bill was outstanding, and that thus it is analogous to the case where a common carrier issues a bill of lading for goods that have never been put into its custody or possession, and it claims that it may recover against the defendant for leaving this bill of lading outstanding after the goods were delivered, upon the same principles that would allow it to recover against a carrier who issued a fictitious bill of lading. (Griswold v. Haven, 25 N. Y. 595.)

It further claims that the leaving of such bill of lading outstanding after having delivered the oats was a direct violation of section ■633 of the Penal Code, and that, therefore, an action arose to the plaintiff for the damages caused thereby. -

These claims present a very serious question, whether the defendant, by its neglect to take up the bill of lading, did not incur a liability to the plaintiff for the losses sustained by reason of its reliance upon the provision referred to. But we are not able to see how ¡such question can be made available to this plaintiff in this action, and much less can we see how it is to avail it on this appeal.

It is very clear that this action is one for the conversion by the •defendant of the plaintiff’s property, and for that only. But two facts appear in the complaint which bear at all upon the claim now made — one, the fact, appearing in a copy of the bill of lading, that the defendant undertook to take up the bill upon delivery of the oats, the other that prior to the plaintiff’s demand the defendant had delivered the oats to another party, without the plaintiff’s knowledge and without a surrender of such bill.

But there is no averment in the complaint, nor does it appear therefrom, that such delivery was before the bill of lading had been assigned to the plaintiff, nor that the plaintiff, by reason of the defendant’s neglect to take it up, had suffered any injury whatever. On the contrary, it would appear therefrom that the bill had regularly come in due course of business into the plaintiff’s ownership and possession before the delivery of the oats, and, instead of being a “ spent ” and worthless bill, that it was qne operative to transfer to the plaintiff the title to the oats. The complaint contains no suggestion that the defendant has done any act causing injury to the plaintiff, save that it has unlawfully refused to deliver up the oats when demanded, and had prior to that' time converted them to its own use by an unauthorized delivery to another without plaintiff’s knowledge or consent. The whole theory of the complaint is that the . plaintiff had acquired title to the oats through the bill of lading, and that the defendant had unlawfully converted the plaintiff’s property so acquired. That was the sole issue which the defendant was called upon to meet at the trial, and that was the sole theory upon Which the plaintiff tried and rested its case. The facts upon which the plaintiff would now. establish a. cause of action are facts proven . by the defendant to defeat the one upon which the plaintiff’s complaint is based. They are facts which are not set forth in such ' complaint, and which would not have been admissible as a cause of action under it, and if from such .facts any cause of action whatever accrues to the plaintiff, it is one which differs in its entire scope and meaning from the one therein contained. The request of the plaintiff, after the case had been finally submitted,- that the trial judge find certain questions of fact and conclusions of law in harmony with the claim it now makes, does not alter the situation. Fo application was made to amend the complaint so that it would conform to the new facts upon which the new claim was based, and had the . trial judge rendered a judgment for the plaintiff, based upon such new facts, it would evidently have been for a cause of action which. had never been presented to the defendant, and concerning which, it had never been heard.

It is a familiar rule that “ a party coming into court asserting one cause of action cannot recover on another and different one.” (Reed v. McConnell, 133 N. Y. 426, 434; Southwick v. First Nat. Bank of Memphis, 84 id. 420; Romeyn v. Sickles, 108 id. 650, 652; Terry v. Munger, 121 id. 171.)

Upon the facts,, as they were established by the defendant, it did not. convert any of the plaintiff’s oats. Whether the defendant was estopped from proving any of those facts is a question that was not raised upon the trial. The evidence to establish them'was admitted without objection, and, therefore, it was properly considered by the trial judge, and must be considered here. That the facts established utterly- defeated the plaintiff’s claim, as set forth - in his complaint, we think theró can be no doubfi

The trial judge passed only upon the cause of action set up in the complaint,'and upon that, we think, his decision was correct. We do not examine, therefore, as to the correctness of the claim now made, that from the whole evidence in the case a cause of action appears against the defendant. The judgment which the trial court rendered was a correct one and should be affirmed.

Judgment unanimously affirmed, with costs; Edwards, J., not sitting.  