
    John E. Furman, App’lt, v. The Union Pacific Railway Company, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Carrier—Bill of lading—Delivery of goods to wrong person— Liability op.
    The assignors of the plaintiff delivered to the Baltimore Steam Packet Company for shipment to Denver, Col., certain hags of peanuts marked “ Y,” and said company delive-ed to plaintiff’s assignors a receipt therefor, of which the material part is as follows: “The Baltimore Steam Packet Company, R. L. Poor, general freight agent, Baltimore Steam Packet Company, Norfolk, Feb’y 25,1880. Received of Weller & Co., one hundred (100) bags peanuts, weight 10,460 lbs., shippers’ weight, frt. to Denver, Col., $3.14 per 100 lbs., marked “ Y”—order notify Zueca Bros., to be transported to Denver, Col., he or they paying freight for the same,' etc. In the course of transportation.to Denver the peanuts were received by the defendant, which also received a “transfer sheet” from another railroad. The peanuts were delivered by defendants to Zueca Bros. The defendant had no actual knowledge of the delivery of the receipt as aforesaid. Zueca Bros, having failed to pay the draft which was sent with said receipt, it was not delivered to them, and the peanuts were subsequently demanded from the defendant, Weller & Co., who declined to deliver them or pay their value. This suit was brought for the value of said peanuts as for a conversion thereof, upon the theory that defendant had made an illegal delivery of the goods. Held, that plaintiff was entitled to recover.
    2. Same—Duty to find whether bill of lading was given to shipper.
    It is the duty of a carrier to ascertain whether a bill of lading was delivered to the shipper, and, if so, he should retain the property until demanded, by one claiming under that title. Until this is done, the goods could be properly placed in store.
    8. Same—Factors’ act—Duty and liability of carrier under.
    Our factors’ act makes it the duty of a carrier, etc., not to deliver goods except upon production and cancellation of the bills of lading. And, for delivery to a consignor without the production of the bill of lading, which provided for a delivery to him, but which he has, in the' meantime, endorsed and negotiated, the carrier is liable to the holder of the bill.
    4. Same—Common law—Duty and liability of carrier under.
    The common law makes it the duty of the carrier to deliver in accordance with the bill of lading, and, if delivery of the goods is made without it, the carrier runs the risk of showing that the delivery was in accordance with its directions.
    5. Same—Construction of bills of lading—Notification in.
    To place in the bill of lading a direction to notify certain persons to whom, if consignees, it was the carrier’s duty to deliver, or, at least, notify of the arrival of the goods, is a plain notice that (in the absence of further directions) they are not consignees.
    S. Same—Who not consignees.
    
      Held, the words “ Y--order notify Zueca Bros.," in the order in which they are written, show that the goods weie not to be delivered to the order of Zueca Bros.
    7. Same—Cannot rely on “transfer sheets” of immediate predecessor.
    A carrier, situated like defendant, cannot safely rely upon papers re- . ceived from its immediate predecessor, when it delivers without a bill of lading (where one was made out) and to a wrong person.
    Appeal from an order of the supreme court, general term, first department, reversing the judgment of the New York county circuit. The facts sufficiently appear in the opinion.
    
      Robert L. Harrison, for app’lt; Geo. H. Adams, for resp’t.
    
      
       Reversing 35 Hun, 669, mem.
      
    
   Peckham, J.

—The following facts were proved or agreed upon on the trial: On the 25th of February, 1880, the assignors of the plaintiff, being partners, did, at the city of Norfolk, Virginia, deliver to the Baltimore Steam Packet Company for shipment to Denver, Colorado, 10,460 pounds of peanuts contained in 100 bags, and marked “ Y,” and that company then delivered to plaintiffs a receipt therefor, of which the material part is as follows:

“The Baltimore Steam Packet Company, B. L. Poor, general freight agent, Baltimore Steam Packet Company.

“Norfolk, February 25, 1880.

“Beceived of Weller & Co., one hundred (100) bags peanuts, weight 10,460 lbs., shipper’s weight. Freight to Denver, Col., $3.14 per 100 lbs., marked Y—order notify Zueca Bros., to be transported to Denver, Col., he or they paying freight for the same,” etc.

That in the course of transportation to Denver the peanuts were transported to the Missouri state line, where they were received by the defendant, a duly incorporated railroad company, on the 6th day of March, 1880. It did not receive any bill of lading, or copy thereof, with the peanuts from the preceding carrier, but it received them from a railroad corporation known as the Hannibal and St. Joseph Bailroad Company, and for the purpose of transporting said goods over the line of defendant’s railroad to their destination at Denver; that at the same time, and together with the delivery of the goods to the defendant by the Hannibal and St. Joseph Bailroad Company, the latter company delivered to the defendant a paper writing known as a transfer sheet, of which the following is a copy: ,

“Hannibal and St. Joseph Transfer Sheet,

“Kansas City, 3, 6, 1880.

“Consignee Y,’ order Hup, Zueca Bros.,

“Denver, Col.

“8. No. 662. From Chic. Date 3, 4, W. B., 1,205, car 2803. 100 bags peanuts.

Weight. Charges.

All single sacks, good many with holes in,

etc., wasting........................... 10,460 $63 81

Back charges................................... 82 63

$146 44

Consignor, Union Fine, Baltimore.” .

A way-bill or manifest was made by the agents of defendant at the forwarding station of defendant and sent to the receiving station, either by mail or accompanying the freight; it is usually made up either from the shipping bills furnished by the shipper when shipments originate at points on the Union- Pacific Bailway, or from transfer sheets when freight is received from connecting lines. The way-bill made up and relating to this particular matter, together with entries relating to other shipments, is as follows. viz.:

Excepting the transfer sheet, the defendant received from the Hannibal and St. Joseph Railroad Company no other writing or bill of lading or notification as to the ownership or disposition of the goods. The peanuts were delivered by defendant to Zueca Bros., upon their order, without the production or surrender of the bill of lading for the same, and subsequently Weller & Co. demanded them of defendant or their value, and defendant declined to deliver them or to pay their value.

The defendant, at no time prior to the delivery of the goods to Zueca Bros., had actual notice of the delivery of the receipt to Weller & Co., at Norfolk, or of the contents of said receipt, or that the said receipt was held or possessed by any one, and at no time prior to such delivery’ had it actual notice or knowledge of any right or interest qr ownership in the goods, or of their intended disposition, than as they were notified or had knowledge from the transfer sheet received from the Hannibal and St. Joseph Railroad Company.

j The parties also stipulated as facts in the case that iminediately upon the shipment of the merchandise by the $rm of Weller & Co. they drew a draft upon Zueca Bros, for the value of the shipment, and attached the same to the receipt or bill of lading endorsed by W eller & Co. as Security for the same.* Weller & Co. then procured the #raft to be discounted in Norfolk, and, with the bill of lading attached, it was forwarded by the bank in Norfolk to |heir correspondent in Denver for collection. It was not paid and thereupon Weller & Co. repaid the amount thereof to the bank and received it and the bill of lading pack.

2 It was also stipulated that no evidence was offered tending to prove that the defendant, or the original or any parrier of the merchandise, had any knowledge or notice pf the transactions of Weller & Co. in relation to the draft, |ts discount or the disposition made by them of the receipt pr bill of lading, or any of the facts in relation to the bill pf lading hereinbefore set forth under the stipulation.

; The plaintiff, as assignee, brought this action to recover pf the defendant the value of .the peanuts as for a conversion thereof, upon the theory that defendant had made an ¡illegal delivery of the goods to Ziicca Bros, without the production of the bill of lading. He recovered at the circuit, ¡but the judgment was reversed at the general term and a pew trial ordered, and the plaintiff appealed from that ¡order to this court.

The question to be decided here depends upon what are ¡the duties of a common carrier regarding the delivery of goods which he has undertaken to transport, and also what is the proper construction of the bill of lading.

It has been stated that too great caution cannot be exercised by the carrier in respect to the right of the person to whom delivery is made. No obligation of the carrier is more rigorously enforced than that which requires delivery to the proper person, and the law will allow in fact of no excuse for a wrong delivery except the fault of the shipper himself, and when there is any doubt and it can be determined by documentary evidence, its production should be required. Hutchinson on Carriers, § 130: Angelí on Carriers, § 324.

Bills of lading are now quite as universally issued by carriers by land as by water. In this case the first carrier was by water, and such carrier did actually issue a bill of lading, a copy of the material portion of which has already been given. And it has been stated too that it is the duty of a carrier to ascertain whether a bill of lading was delivered to the shipper, and, if so, he should retain the property until demanded by one claiming under that title. City Bank v. Rome, W. and O. R. R. Co., 44 N. Y., 136; Howard v. Shephard, 9 M’Gr. & Scott, 296; Tindall v. Taylor, 4 E. & B., 219; Bank of Peoria v. Northern R. R. Co., 58 N. H., 203.

This defendant received from its immediate predecessor goods marked “ Y,” Denver, Colorado. The address upon the goods themselves, therefore, gave no notice as to whom the consignee was. There was a mere mark of identification upon them, together with a statement of their destinar tian, as Denver, Colorado. Something further was necessary in order to determine to whom delivery should be made. The only source of information then in the possession of the defendant at Denver was the transfer sheet which it had secured from the preceding carrier which contained the statement | above quoted. By the transfer sheet it was stated “Consignee ‘ Y,’ order Hup. Zueca Bros., Denver, Col.” The word “notify” in the original bill of lading had become “Hup.” in the transfer sheet. Whose fault it was does not appear, but from facts in the case it can be said that it was not that of the defendants nor of the plaintiff’s assignors, for it occurred before the goods came to the defendants, and it was in papers which plaintiff’s assignor had nothing to do with. It maybe noticed, however, that in defendant’s way bill which was made from the transfer sheet in the column headed “consignee and destination,” no consignee is mentioned. It is simply “Den. 100 bags P. Nuts, Holes in same, cts. wasting.”

^ This is some evidence that it did not regard Zueca Bros. under the language of the transfer sheet as really the consignees. Its way bill was made up from the transfer sheet and it evidently was supposed by the person who made it up that at least the language of the transfer sheet was too blind to show beyond doubt that Zueca Bros, were such consignees. The information which the defendant procured, therefore, as to the consignee was of a doubtful nature so far as the transfer sheet was concerned. Being thus doubtful, it would seem a most negligent act to deliver the goods to persons named in that transfer sheet who did not plainly appear td be the consignees. Under such circumstances it would seem that a delivery should be at the peril of the carrier. He could protect himself perfectly well by refusing to deliver until a bill of lading should be presented and delivery made in accordance therewith.

If there were no bill of lading, inquiry would develop that fact, and in all probability would also show who was the proper party to whom to make delivery. Until this was done, the goods could be properly placed in store, as was stated to be the true course in Bank v. Bissell, 72 N. Y., 615. ,Our factors’ act makes it the duty of a carrier, etc., not to deliver goods except upon production and cancellation of the bills of lading, and for a delivery to a consignor without the production of the bill of lading, which provided for a delivery to him, but which he had in the meantime indorsed and negotiated, the carrier was held liable to the holder of the bill. Colgate v. Penn. Co., 102 N. Y., 120; 1 N. Y. State Rep., 166.

. If this-delivery had been made in this state, therefore, there would have been no doubt of the propriety of the recovery in this action, assuming that Zueca Brothers were not the consignees. We think that the common law makes it the duty of the carrier to deliver in accordance with the bill of lading, and if delivered without it, the carrier runs the risk of showing a delivery in accordance with its directions.

It is argued here that, even by the terms of the original bill of lading,. Zueca Brothers were the consignees, and that, being such, they were presumptively the proper parties to whom to make delivery, and that there was no written, or any notification to the contrary, and hence defendants were justified in such delivery.

We do not. agree to the correctness of this construction óf the bill of lading. It acknowledges the receipt of the goods, their weight, and states the amount of freight to their destination, Denver, Col., and says the goods are marked, “Y—order, notify Zueca Brothers.”

Here is no statement that Zueca Brothers are the consignees. The very presence of the word notify, in its re-lotion to them shows that they are not intended as the consignees. If they were, the word is wholly unnecessary. It is the duty of the carrier to notify the consignee of the arrival of the goods. Price v. Powell, 3 N. Y., 322. To place in the bill of lading a direction to notify certain persons to whom, if consignees, it was the carrier’s duty to deliver, or at least to notify, of the arrival of the goods, is a plain notice that, in the absence of further directions, they are not the consignees.

In this bill no one is named as consignee, and that makes it obvious that no delivery should be made to anyone who does not produce it. The words, “Y—order, notify Zueca Brothers,” in the order in which they are written, show that the goods are not to be delivered to the order of Zueca Brothers, because after the word order in relation to Zueca Brothers, is the word notify, which notification is all the duty the defendant had to perform under the bill. The word Í order, ” therefore, must relate to what preceded, and it must have meant that delivery was to made to the order of the consignors or else to the order of “ Y,” which, being altogether fictitious, does not mean to the order of Zueca Brothers, unless they produce the bill of lading. Zueca Brothers, not being the consignees, therefore, all the cases showing that prima facie the consignee is the owner, and a delivery to him protects the carrier, unless he has been notified to the contrary, do not apply here.

The opinion of the learned judge at the general term proceeds, as it seems to us upon- the erroneous theory that the defendant was only bound to know what was imparted to it by the directions on the goods and the papers it received from its immediate predecessor, and that from such papers it discharged its obligations by delivering to Zueca Bros., even on the papers received from the Hannibal and St. Joseph Railroad we do not think the defendant was justified without inquiry in making the delivery, and we do not think that a carrier situated like defendant can safely rely upon the papers received from its immediate predecessor, when it delivers without a bill of lading (where one was made out), and to the wrong person, although justified in its delivery by the papers received from its predecessor which differed as to the consignee from the person named in the bill. These papers are made out for the convenience of the carriers as between themselves. The owner or consignor of the goods has nothing to do with them, and probably never sees them. If he has placed a direction upon the property showing where it is to be transported, and obtained a bin of lading for it, he has the right to assume that delivery will only be made in accordance with the terms of the bill, and the duty of the carrier is only thereby discharged.

In this case as Zueca Bros, were not consignees, the whole loss was sustained by the negligence of the defendant in not demanding the bill of lading before delivering the property, which bill Zueca Bros., could not have produced, unless they had paid the draft which accompanied it. By neglecting this plain duty the defendant caused the loss and by failing to deliver on plaintiff’s demand it has. converted the goods, and it should, therefore, be responsible for their value.

The order of the general term reversing the judgment of the circuit and granting a new trial should be reversed, and the judgment at circuit affirmed, with costs.

All concur, except Danforth, J., not sitting.  