Baltimore & Ohio Railroad v. Rueter

Thomas, J., delivered the opinion of the Court. The appeal in this case is from a judgment in favor of the plaintiff, the appellee, in an action of replevin against the Baltimore and Ohio Railroad Company, the appellant, and the receiver of Stirling-West Company to recover “a car of lumber.” The receiver of Stirling-West Company did not defend the suit, and judgment by default was rendered against him, but the appellant filed four pleas in which it alleged: 1, that it did not take the property of the plaintiff; 2, that at the time of the issuing of the writ the property in the goods and chattels mentioned in the declaration was in the defendant; 3, that at the time of the issuing of the writ the property in said goods and chattels was “in Churchill and Sim, England;” and, 4, that at the time of the issuing of the writ the plaintiff had no property in said goods and chattels. Issues were joined on the first and fourth pleas, and replications were filed to the second and third pleas asserting property in the plaintiff. The undisputed facts of the case are as follows: The ajtpellee, Edward E. Rueter, trading as Diamond Lumber Co., who was engaged in the wholesale Lumber business in Basic City, Virginia, on the fifth of December, 1905, sold to Stirling-West Company, of Baltimore, a lot of lumber, and on the same day delivered the lumber to the Chesapeake and Ohio Railway Company at “Medium’s River,” Virginia, and received from said railway company a bill of lading for the transportation, over its own line and via the Baltimore and Ohio Railroad, and delivery of the lumber to the order of Stirling-West Company, at Locust Point, Baltimore, Maryland. c The appellee sent the bill of lading which was marked “not negotiable,” to Stirling-West Company, and deposited in the Basic City Bank a three-days’ draft on said' consignee for the price of the lumber.

Stirling-West Company re ⁶⁹² ceived. the hill of lading, and on the 6th of December surrendered it, properly endorsed, to the freight agent of the Baltimore and Ohio Railroad Company in Baltimore, and requested and received from the appellant a “through export” negotiable bill of lading to the order of Stirling-West Company, Liverpool, England, for the lumber described in the bill of lading issued by the Chesapeake and Ohio Railway Co. On the same day Stirling-West Company presented the bill of lading issued by the appellant, properly endorsed, to the First Rational Bank of Baltimore, and procured through said bank, from the Eourth Street Rational Bank of Philadelphia, a draft on Churchill and Sim, London, for sixty pounds, which amount was credited by the First Rational Bank of Baltimore to the account of Stirling-West Company. This draft, with the bill of lading attached, was received and purchased by the Eourth Rational Bank of Philadelphia on the 8th of December, and was transmitted by said bank to Churchill and Sim, who paid the. draft and received the bill of lading. The car containing the lumber was delivered by the Chesapeake and Ohio Railway Co. to the Baltimore and Ohio Railroad Company at Staunton, Virginia, on the eighth of December. Stirling-West Company became’ insolvent on the 12th December, and on the 14th of December the appellee received notice that Stirling-West Company had accepted his draft, -and that the draft had been protested on the 12th of December.

The appellee thereupon requested the Chesapeake and Ohio Railway Company to stop delivery of the lumber, and that company immediately notified the appellant not. to deliver it to Stirling-West Company. On the 16th of December the appellee went to Baltimore for the purpose of securing the lumber, and upon his arrival in Baltimore met Mr. McLean who agreed to purchase the lumber for the price at which it was sold to Stirling-West Company, if the appellee could give him good title to it. They learned that the car containing the lumber was at Locust Point, and then went to see Mr. Lewis, freight claim agent of the appel ⁶⁹³ lant. Mr. Lewis was not at his office, but his clerk told him that the appellant had received a communication from the Chesapeake and Ohio Railway Company in regard to the lumber, and that he would let him know about it the next morning.

The next day they went to Mr. Lewis’ office again and met the same clerk who told the appellee that he could have the lumber. They then went to Locust Point, where they met one of the clerks connected with the freight office of the appellant at that point, and Mr. McLean asked him to charge the freight to him and said that he would pay it when he got the lumber. The clerk agreed to charge the freight to Mr. McLean, and the appellee and Mr. McLean then got into the car and were engaged in taking marks off and putting Mr. McLean’s brand on the lumber when the agents of the appellant notified them that they, said agents, had made a mistake, that a through bill of lading had been issued for the lumber, and that the appellee could not have it. The appellant refused to deliver the lumber to the appellee, and it was subsequently taken under the writ of replevin in this case and delivered to the appellee, who immediately sold it to Mr. McLean for $292.00 which was paid at the request of the appellee to the American Bonding Company, surety on the replevin bond.

As Churchill and Sim did not receive the property described by the bill of lading issued by the appellant and delivered to them, the appellant was required to reimburse them to the extent of $299.74. Issues having been joined on the replication alleging property in the plaintiff, in order to recover it was incumbent upon him to show that at the time of the issuing of the writ he was entitled to the possession of the property. 1 Poe’s P. & P. (3rd ed.), secs. 251 and 253; Cullum v. Bevans, 6 H. & J. 469 ; Warfield et al. v. Walter et al., 11 G. & J. 80 ; Benesch v. Weil, 69 Md. 276 . The appellee contends that the appellant delivered the lumber to him on the 17th of December, and that he was therefore entitled to the possession of the property at the ⁶⁹⁴ time the suit was brought.

But even assuming that what was said and done on that day amounted to a delivery of the property to the appellee, if the appellee was not entitled' to the possession of the lumber at that time, and the appellant, after discovering its mistake, refused to surrender it, the fact that there had been such a delivery could not affect the question of the appellee’s right to the possession at the time the writ was issued. When the suit was brought the lumber was in the possession of the appellant, and was taken from the appellant under the writ. In order to justify that taking the burden was on the appellee to show that he was' then entitled to possession, and he can not establish his title by showing that at some time previous to the issuing of the writ he obtained the naked possession of the property without any right thereto. As the bill of lading delivered by the appellant to Stirling-West Company was issued on the 6th of December, before the appellant received the lumber which was delivered to it by the Chesapeake and Ohio Eailway Company on the 8th of December, the appellee further contends that under the provisions of Article 14 of the Code, which prohibit the issue of bills of lading by carriers until the goods and chattels described therein have been received by them, the bill of lading issued by the appellant was void, and that the appellee’s right to the possession of the lumber was not affected' by the issuing of said bill of lading or by its subsequent endorsement and delivery by Stirling-West Company to said Banks and to Churchill and Sim.

The appellee relies on the case of Aetna Nat. Bank v. Water Power Co., 58 Mo. App. 523 . In that case the bill of lading was issued by the Kansas City, Ft.

Scott & Memphis Eailway Co. for property that was not in its possession at the time and that was never received by it, and in a suit by the holder of the bill of lading against the original vendor, who had recovered possession of the property at its destination from the Atchison, Topeka & Santa Fe Eailway Co., the Court said: “Plain ⁶⁹⁵ tiff’s title is founded upon a fraudulent, void and unlawful bill of lading issued' in the face of tbe prohibition of the statute and it in consequence has no title or right to the possession which could support a judgment in its favor.” In the ease at bar, while the lumber was not in the possession of the appellant at the time its bill of lading was issued to Stirling-West Company, it was received by the appellant on the 8th of December, and from that time it because the property of the endorsee of said bill of lading. Chief Justice Shaw said in Rowley et al. v. Bigelow et al., 12 Pick. 306 : “The bill of lading acknowledges the goods to be on board, and regularly the goods ought to be on board before the bill of lading is signed. But if, through inadvertance or otherwise, the bill of lading is signed before the goods are on board, upon the faith and assurance that they are at hand', as if they are received on the wharf ready to be shipped, or in the shipowner’s warehouse, or in the shipper’s own warehouse, at hand and ready, and afterwards they are placed on board, as and for the goods embraced in the bill of lading, we think, as against the shipper and master, the bill of lading will operate on these goods by way of relation and by estoppel.” In the case of the “Idaho” 93 U. S. 575 , the bill of lading was issued by the master of the brig “Colson” to Forbes, the shipper, for one hundred and forty bales of cotton before the cotton had been delivered to the “Colson.” Several days after the date of the bill of lading, and after Forbes had secured from Porter & Co. a large sum of money on the bill of lading, Forbes delivered the cotton to the “Colson” and it was receipted for by the officers of the brig. The cotton was placed on the wharf, and before it was taken on board the brig, Forbes removed it from the wharf and shipped it by steamship to New York.

In reference to Porter & Co.’s title to the cotton, the Court said: “It is not only’ the uttei*ance of common honesty, but the declaration of judicial tribunals, that a delivery of goods to a