Jacob Dold Packing Co. v. G. Ober & Sons Co.

Irving, J., delivered the ojoinion of the Court. The facts of this case are settled by an agreed statement of them, upon which the lower Court heard and decided the case without the intervention of a jury. This appeal grows out of qn attachment suit instituted by James Hough Cottman vs. Sigmund Kapy, a non-resident of the State. The property attached was certain tankage to which both appellant and appellee interposed a claim.

The Court below decided the property attached was not the property of the defendant in the suit, 'but was the property of the appellee. The appellant contends that the Court erred in .rejecting certain prayers offered on its behalf and in granting certain propositions of law submitted by the appellee and in declaring certain legal propositions of its own motion. The controversy in this Court is entirely between the claimants of the property attached, and neither the plaintiff below no'r the garni ¹⁶³ shee are represented in this Court, neither of them having appealed. Cottman, the plaintiff, in the summer of 1888, agreed to huy of Sigmund Kapy, of Kansas City, certain tank-age, including that made by the appellant.

In the latter part of September, 1888, Kapy telegraphed to Cottman that he was ready to ship four car loads of tankage. Cottman immediately sold this tankage to G. Ober & Sons Co. the appellee, and instructed Kapy to “ship” the tank-age direct to G. Ober & Sons Co. Kapy bought the tank-age of J. Dold & Son, who, according to directions, forwarded the same to G. Ober & Sons Co., Baltimore, by the Chicago, Rock Island and Pacific Railroad, from which it was transferred to the Baltimore and Ohio Railroad, and was brought to its destination, Baltimore. Kapy Avas given a receipted invoice and bills of lading. Before the bills of lading had been forwarded by Kapy to Ober & Sons Co., it Avas discovered that some of Kapy’s checks for the tankage Avere dishonored and were not paid, and Kapy had been arrested for forging bills of lading.

Thereupon the appellant, which is a corporation, successor to and assignee of Dold &S011, induced Kapy to assign the bills of lading to it in part payment of his indebtedness to Dold & Son. Having secured this transfer, appellant telegraphed G. Ober &Sons Co. that they could have the tankage if they Avould honor a draft on them for the price. This Avas declined, and the goods were claimed as theirs by purchase from Cottman. Cottman had made large remittances to and acceptances of drafts from Kapy, and, discovering that he had been paying on forged bills of lading, he attached this tankage as soon as it arrived in Baltimore.

The Court ruled that the tankage had passed away from Kapy, and was not his to be the subject of attachment, and no appeal was taken on behalf of the plaintiff in the attachment; so that the question is, does it belong to appellant or appellee ? ¹⁶⁴ • The statute of this State, 1816, ch. 262, sec. 1, makes hills of lading negotiable so as to pass title to the property mentioned in them, to the same extent as promissory notes. The closing words of the statute are that the title to the property mentioned