
    193 F. 363
    DEXTER HORTON NAT. BANK OF SEATTLE, WASH., v. HAWKINS et al.
    No. 2,018.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 5, 1912.
    See, also, 190 F. 924.
    
      A. R. Heilig and Peters & Powell, for appellant.
    Louis' K. Pratt, Thos. R. White, and Albert Fink, for appellees.
    Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.
   GILBERT, Circuit Judge

(after stating the facts as above).

The whole question of the right of the receivers to stop the money and bullion in transitu depends upon the answer to the question: To whom did the money and bullion belong while in the possession of the express company? Many decisions are cited concerning the title to property while in the hands of a carrier, on its way from the seller to the buyer, and they sustain the general rule that a delivery of goods by the seller to a carrier designated by the buyer, or to the carrier usually employed in the transportation of goods from the place of the seller to that of the buyer, is prima facie a transfer of title to the buyer, subject to the carrier’s lien for freight, and to the seller’s right to stop in transitu goods that have not been paid for, in case of his discovery of the buyer’s insolvency. The appellant contends that the general rule is applicable here, and that the delivery to the express company was a delivery to the appellant. The appellee contends, on the other hand, that the question is determined by the intention of the parties, and that the facts found by the court and the facts disclosed by the evidence indicate that the intention was that the title to the property should not pass until the actual receipt of the property by the appellant.

In United States v. Andrews, 207 U.S. 229, 240, 28 S.Ct. 100, 104, 52 L.Ed. 185, it was said: “That as a general rule the delivery of goods by a consignor to a common carrier for account of a consignee has effect as delivery to such consignee is elementary. That where a purchaser of goods directs their delivery for his account to a designated carrier, the latter becomes the agent of the purchaser, and delivery to such carrier is a legal delivery to the purchaser, is also beyond question. Certain, also, is it that when on the delivery of goods to a carrier bills of lading are issued for the delivery of the goods to the consignee or his order, the acceptance by the consignee of such bills of lading constitutes a delivery. Of course the presumption of delivery arising from the application of any or all of these elementary rules would not control in a case where by contract it clearly appeared that, despite the shipment, the goods should remain at the risk of the consignor until arrival at the point of ultimate destination.”

In McNeal v. Braun, 53 N.J.Law, 617, 23 A. 687, 26 Am.St.Rep. 441, after reviewing the decisions, the court said: “It will also be found that the rule uniformly adopted in the line of decisions is that the risk of loss in transportation depends upon the nature of the transaction, the terms of the contract, and the intention of the parties. In Dunlop v. Lambert, 6 Clark & F. 600, Lord Cottingham said: ‘When the party' undertaking to consign undertakes to deliver at a particular place, the property until it reaches that place and is delivered according to the terms of the contract is at the risk of the consignor.”

In some of the decisions controlling evidence of the intention of the parties has been found in the disposition made of the bill of lading; that is to say, whether the bill of lading was sent to the consignee or retained by the consignor. In others it has been found in the proof of the method of former similar transactions between the parties. Such evidence is found in the record here. Four months before the consignment of money and bullion in this case, the Alaska Bank had shipped to the appellant two boxes of bullion for credit on its account. While in transit the contents of one of the boxes were stolen. The appellant, acting as the agent for the Alaska Bank to collect the insurance on the stolen bullion, required the latter to give it a written authorization to collect the money due on the policy and a written release from all liability in giving a receipt therefor, and it was not until the money was so collected from the insurance company that the appellant gave credit therefor on its books. The appellee points also to other circumstances as indicating the intention, such as the fact that no bill of lading was transmitted to the appellant, that the Alaska Bank insured the money and bullion while in transit, that the appellant charged interest against the Alaska Bank until the actual receipt of.money in Seattle, and it argues that the appellant, being amply secured, had no inducement to assume the risk of the loss of money and bullion in transit.

But we think that decisions in cases arising under sales of goods and the transportation thereof, while they tend, upon the analogous principles involved, to sustain the decision of the court below, are not necessarily controlling of the question here under consideration. The case is not that of a sale of goods by the Alaska Bank to the appellant, but it is a case of an attempt to pay a debt. The Alaska Bank was indebted to the appellant in a large sum of money. The debt was payable at the appellant’s bank in Seattle.' The’Alaska Bank placed $101,000 in the hands of the express company to be transmitted to the appellant at its place of business in Seattle, to be there received and credited on the account. If the money and bullion had been lost iij transit, whose loss would it have been? There can be no doubt that it would have been the loss of the Alaska Bank. That bank could not say that the appellant had been paid from the mere fact that-it had placed the money in the hands of the express company, consigned to the appellant at the place where the debt was payable. The express company might, it is true, have been made the agent of the appellant to receive and transmit the money; but there is nothing in the evidence to show that that was done.

In 22 Am. & Eng. Enc. of Law (2d Ed.) 535, it is said: “When a remittance is made through a third person, the question whether the money while in transit is at the risk of the debtor or the creditor depends entirely upon the question of the agency of the person through whom the money is sent. If he is acting as the authorized agent of the creditor, the money is at the risk of the creditor; but if he is acting as the agent of the debtor; or was not authorized by the creditor to receive the money, it is at the risk of the debtor.”

The money and bullion being in the possession of the express company as the agent of the Alaska Bank, the latter had the right to recall the shipment and take possession of the money and bullion at any time before the delivery thereof to the appellant,- and the receivers of the Alaska Bank succeeded to that right.

We find no ground for sustaining the appellant’s contention that it has a lien upon the money and bullion, or an equitable right to the possession thereof from the fact that it honored checks and drafts of the Alaska Bank, and extended. credit to that bank in a large sum, relying upon the shipment of the money and bullion. The credit so extended was given in the ordinary course of business, pursuant to an arrangement that had been made between the parties, and not in reliance upon any shipment which had actually been made. It was given upon the promise of the Alaska Bank to send a large remittance; but, before that remittance was actually sent, the overdraft on which it was to apply amounted to more than the sum here involved.

The judgment is affirmed.  