
    The Bank of Commerce in Buffalo, Respondent, v. Amos A. Bissell et al., Appellants.
    (Argued February 12, 1878;
    decided February 22, 1878.)
    This action was brought against defendants as common-carriers upon a bill of lading of a boat load of wheat, stated in the bill of lading to have been shipped at Buffalo by Sears & Daw, as agents and forwarders, for transportation to New York, on account and order of plaintiff. The bill of lading contained this direction, “notify E. S. Brown, New York.” It was given to plaintiff as security for a time draft drawn by Sears & Daw on said Brown, discounted by plaintiff. The wheat was delivered by defendants to Brown. The bill of lading with the draft annexed was forwarded by plaintiff to New York, with an endorsement thereon by its cashier, to the effect that it was subject to payment of the draft, and to be delivered only on payment of draft. A small sight draft drawn at the same time by Sears & Daw was paid by Brown on presentation; the time draft was accepted, but not paid. Before it fell due Brown became insolvent. Held, that defendants were not warranted in delivering the wheat to Brown, by the bill of lading, nor did the discount of the drafts, the acceptance of one and the payment of the other justify such delivery. (Ontario Bank v. H. J. S- B. Co., 59 N. Y., 510.)
    The case of Marine Bank V. Wright (48 N. Y. 1), distinguished.
    Also, held, that the fact that plaintiff did not indorse over the bill of lading to any one in New York city, authorizing them to receive the wheat, did not relieve defendants from the duty of holding the wheat as plaintiff’s property or subject to its lien; that defendants could have notified Brown, as they did, and if neither he nor any one else came with authority to take delivery they could, and it was their duty to have put the wheat in store.
    Defendant offered to prove a custom in New York to deliver property under similar bills of lading to the person to be notified. The evidence was rejected. Held, no error; that if the custom was established it could not subvert a positive unambiguous contract.
    Also, held, that the indorsement or memorandum put upon the bill by plaintiff’s cashier did not alter or affect it.
    A replevin suit was commenced by plaintiff against the 'firm of Slcinker & Co., to whom the wheat had been delivered by Brown, and who claimed by purchase from him, by agreement of the parties Skinker & Co., paid to plaintiff three-fourths of its claim, it agreeing to sue defendants and prosecute to final judgment, and if judgment was recovered and collected, to return the sum so paid, the replevin suit in the meantime to be suspended. Held, that the suit, stipulation and payment so made, did not affect defendants’ liability.
    
      W. S. Bissell for appellants.
    
      Henry B. Greene for respondent.
   Folger, J.,

reads for affirmance.

All concur.

Judgment affirmed.  