
    (First Circuit — Hamilton Co. O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    ROBERT HOWE v. THE C., H. & D. R. R. and THE C., B. & Q. R. R.
    
      Common Carrier — Stoppage in transitu — Delivery of goods to wrong party — Liability of carrier—
    (1) . H. of Cincinnati consigned to G. at Omaha, Nebraska, by common carrier two barrels of whiskey, purchased on credit, and after the consignment and before delivery of the goods, learning G. was insolvent, H. stopped the goods in transitu and ordered them delivered to O., his agent in Omaha. The carrier had notice, and agreed to deliver the goods to said agent, bat notwithstanding said notice and agreement, delivered the goods to a person other than the consignee or agent as directed, and the goods were lost to H.
    Held: In an action against the carrier to recover the value of’ the goods, that it was not necessary for 11. to show that the consignee was insolvent at the time of the consignment, became insolvent after the consignment was made, or that he had received such information as acting in good faith, led him to believe the consignee was insolvent at the time of consignment, or had afterwards become insolvent.
    
      Same- -
    
    (2) . After stoppage in transitu the carrier acts at his peril in delivering the goods either to the consignor or consignee, and to protect itself from liability,may by action bring the goods into court and require the claimants to determine the right of possession.
   Swing, J.

This was an action by Howe against the C., H. & D. R. R. Co. and the C., B. & Q. R. R. Co. in the court of common pleas, the petition alleging that the defendants were common carriers between the city of Cincinnati, Ohio, and the city of Omaha, Nebraska. That as such the plaintiff delivered to said defendants at Cincinnati, Ohio, on the loth day of November, 1895, two barrels of whiskey of the value of 8166.40, to be transported to one J. Gee at Omaha, Nebraska, and that the defendants received said whiskey and agreéd to transport the same to the person at the place named for and in consideration of certain charges agreed upon.

That while said whiskey was in transit and was in the custody of said defendants,the plaintiff learned that said J. Gee, to whom it was consigned, was financially irresponsible, and said whiskey not having been paid for by said Gee, the plaintiff requested said defendants when said whiskey reached Omaha to deliver the same to one Edward O'Con-nor instead of said Gee, which said defendants agreed to do. That said whiskey arrived at Omaha, but it was not delivered to said Edward O'Connor, nor to any other person representing said plaintiff, but said defendants delivered said whiskey to one not authorized to receive the same, contrary to the instructions of the plaintiff and the agreement of the parties, whereby plaintiff was damaged in the sum of $166.40.

The evidence showed that Howe delivered to the C., H. & D. Railway Co. at Cincinnati two barrels of whiskey consigned to J. Gee, Omaha, Nebraska, That this whiskey was delivered by said Railway Company to the C., B. & Q. Railway Co., a connecting line from Chicago to Omaha. That said whiskey had been purchased by said Gee of said Howe on credit. That after said whiskey had come into the possession of said C., B. & Q. Railway Co., the plaintiff notified the C., H. & D. Railway Co. not to deliver said whiskey to said Gee, but to deliver it to Ed. O'Connor, Attorney, at Omaha. The notice was given to the C., B., & Q. Railway Co., and said latter company, acting under said instruction, did not deliver said whiskey to said Gee, nor did it deliver said whiskey to said O’Connor, but did ■deliver said wiskey to some transfer company at Omaha, by whom said whiskey was lost.

At the conclusion of the evidence of the plaintiff the ■court, on motion of the C., B. & Q. Railway Co., directed .a verdict for the defendant.

This action is brought in this court to set aside said judgment.

The general rule of law is, that upon the consignment of goods the title becomes vested in the consignee, subject only to the carrier’s lien for freight and the consignor’s right of stoppage in transitu upon the consignee’s insolvency. This rule is elementary and without exception. Growing out of this general rule of law are certain other rules, among them are these;

First.. The duty and liability of carriers after notice. In Hutchinson on Carriers, §421, it is said;

“The insolvency of the buyer is essential to the existénce of the right of the vendor to stop the goods. If, therefore, the former be solvent at the time of its attempted exercise, the carrier,if he knew the fact,will,be not only justified in refusing to give up the goods or pay attention to the notice, but it would be his duty to do so, He obeys the order or demand at his peril in any case. For while a rightful stoppage protects the carrier against the claims of the consignee, yet if it should turn out that the purchaser of the goods was solvent, the notice or demand would be entirely without authority. If therefore the carrier refuse to give up the goods to the consignee, who is solvent, upon his demand, the latter might maintain an action of trover against him at once. If on the other hand the carrier fail to withhold the goods upon a notice to do so, or to surrender their possession to the vendor upon his demand, or if after such notice or demand he should deliver them to the buyer and it should turn out that the latter was insolvent, the carrier will be liable to the vendor, at least to the extent of the buyer’s indebtedness for the goods.’’

Second, at section-422, of the same author, it is said,

“The law of stoppage in transitu therefore becomes of great importance to the common carrier, and when a notice is given or a demand is made upon him for the goods by a vendor who claims the right to avail himself of it in the particular case, it places him in very nearly the same situation as when a demand is made for the goods by one who .claims adversely to the bailor or his consignee. If it be doubtful whether the right exists to stop the goods,the carrier may, as in that case, instead of refusing to comply with-the notice or the demand, require that he shall be allowed a reasonable time to investigate the condition of the buyer, and if after inquiry he shall be unable to satisfy himself and does not choose to assume the responsibility of a delivery to either seller or buyer, or to act upon the demand of the vendor that the goods shall be withheld from the consignee, he may for his own security resort to legal proceedings to have the question determined as in the case of adverse claimants of property,”

On this latter subject it is said in 2 Rorer on Railways, p. 1339,

“After notice it becomes the duty of the carrier to hold the goods and not deliver them to the consignee. The law will then afford the parties, consignor and consignee, or the assigns of the latter, such opportunity of asserting and enforcing their rights to the property as will effectually guard the interests of the carrier from the responsibility of delivery to either when not entitled to receive the same. We do not conceive it to be the duty of the carrier to decide between them and actually deliver the goods to the alleged consignor,or that it is required by law. for as much as the carrier can seldom, if ever, know,and is not made the-judge to decide, whether or not the circumstances exist which re-invest the property in the consignor, or, indeed, whether the person claiming to be the consignor be in fact such or not; and especially on long lines of railway, is personal knowledge the more impracticable, After notice he occupies the position of a stake-holder between the parties.’'

But in this case the carrier did not proceed to act in accordance with either of the above provisions. It did not deliver the goods to either the consignor or the consignee,, or assume the position of a stake-holder and have the parties set up their claims to the goods and have their respective rights determined — in fact, there is nothing to show that Gee, the consignee, ever asserted any claim to.the goods. Neither is there anything to show whether Gee, the consignee, is insolvent or not.

It is urged by the Railway Company that Gee not having been shown to be insolvent,that the plaintiff can not recover; but it seems to us that the time to have raised this question that Gee was not insolvent, was when the plaintiff demanded of the company that the goods be not delivered to Gee. If the company had said to the plaintiff when the demand for stoppage in transitu was made, [that Gee was solvent, and had gone on and delivered the goods to Gee, the plaintiff would have had his remedy against Gee and against the Railway Company if he had failed to collect from Gee; he could have collected from the company if insolvency of Gee could have been shown. Or, if the Railway Company had refused to deliver the goods to either the consignor or consignee, and had called upon the parties to establish their rights to the goods, as it had a right to do, all parties would have been protected in their rights. But the company, acting upon the demand of the consignor, stopped the goods and did not deliver the same to the consignee. After stopping the goods and directing that they be not delivered to the consignee, the consignor could have no claim against the consignee for the goods, for while the goods were sold and delivered by the consignor to the consignee,as between the two, when the consignor stopped the goods in transitu, under a claim of ownership, this in'effect annulled the sale, and re-invested the property in the consignor, and thereby destroyed any right of action by the consignor against the consignee for the value of the goods

It may be that Gee would have a right of action against the company, but none has been asserted, and if the company had any reason to fear a claim by Gee, it was its duty to bring the goods into court and ask that the claimants interplead and establish their rights. But this the company did not do, but on the contrary, it recognized the right of the plaintiff to stop the goods from being delivered to Gee, and undertook to re-deliver the goods to the plaintiff, but failed to re-deliver the goods as directed, and delivered the goods to somebody other than either the consignee or consignor. Under this state of facts it seems clear to us that the company is liable to the plaintiff for the value of the goods, and that when the court directed a judgment for the defendants, it erred.

Milton Sater, for Plaintiff in Error.

A. B. Benedict, for Defendant in Error.

The facts not having been agreed to, this court can not render judgment for the plaintiff, but a judgment will be entered reversing the judgment for the reason that the same is against the law and the evidence, and remand the cause to the court of common pleas for further proceedings.  