JONES et al. vs SIMS AND SCOTT, 6 Port. 138

COLLIER, C. J. — The questions of law presented in this case, arise mainly out of the judgment, upon the demurrer of the plaintiffs in error to the declaration of ■the defendants, and a bill of exceptions taken at the trial. The bill of exceptions sets out a bill of lading signed by the master or purser of the steam-boat Warrior, from which it appears that the defendants shipped from Tuskaloosa on that boat, bound thence to Mobile, to Messrs M’Losky & Hagan, (at the latter place,) .one hundred bales .of cotton, the consignees paying •freight therefor, at one dollar per bale.

It was proved, that the Warrior,’ with her cargo, was lost in tlie Tombeckbee river, on her downward passage, by a collision with the steam-boat ‘Erie,’ under circumstances of negligence, on the part of the officers of the former boat..

It was shewn that the plaintiffs in error were the owners of the ‘Warrior,’ and that the defendants had been part owners of that boat, until some time previously, when they sold their interest therein to the plaintilfs, Hammond and Donaldson, for thirty-five hundred dollars, payable in freight: That Hammond and Donaldson stipulated with the defendants, that they might ship as much as two hundred bales of cotton, on the ‘Warrior,’ each downward passage to'Mobile, and pay the freight by crediting1 the amount thereof, on Hammond and Donaldson’s note, for the purchase of their interest in the boat.

The plaintiffs in error moved for several instructions by the judge to the jury, which it will be unne- ' cessary to notice, as they sufficiently appear in the instructions given. The court instructed the jury — - 1. That the hill of lading was sufficient evidence, that the defendants were the owners of the cotton shipped by them, to entitle them to an action for its loss. 2. That the defendants without some contract to restrain them, had the right to sell their interest in the ‘Warrior,’ to whom they pleased, and that they were not bound to give notice of a sale to the other joint-owners. 3.

That, having sold their interest to Hammond and Donaldson, as shewn by their contract in writing, they stood in the same light as strangers in all respects, — and that having shipped cotton, the plaintiffs in error were liable, if at all, precisely as they would he to any other shippers or freighters, notwithstanding the terms of the contract,of sale, or the want of notice to Jones and Ilorner. 4 That the plaintiffs in error being joint-owners, were chargeable as co-partners, and their liability to be thus charged, was a consequence of their joint-ownership, in respect to freight and liability for losses. 5.

The plaintiffs objected to the sufficiency of the evidence of Jones and Horner’s being joint-owners, on the ground that they were shewn to be owners at a previous time, and not proved to be such, at the time of the shipment and loss. The court, however, decided, that their joint-ownership being shewn to have once existed, it was incumbent on the plaintiffs, to shew that it had ceased. The jury found a verdict in favor of John Jones, and against the other defendants in the Circuit court, and judgment was rendered in pursuance to their finding. 1.

The instructions given by the judge of the Circuit court to the jury, upon the first point, were doubtless founded upon the assumption, that the right of property remained with the consignor. For it is a general rule of law, that the party only, in whom the legal interest is vested, can maintain an action, for aq injury to property. That the contract between the consignor or shipper and the carrier of goods, may be so framed as to continue the property in the former, can not be questioned ; but if the contract be in the ordinary form of a bill of lading, by which one man agrees to have received of another some

article of merchandize, to be delivered to a third, who is to pay the freight, the title by the shipment, eo instanti, passes to the consignee. Dutton vs Solomonson; Mussen vs Price et al; Brown vs Hodgson; Cook vs Ludlow; Godfrey vs Furzo; Snee vs Prescot; Groning vs Mendham; Sargent vs Morris; Joseph et al. vs Knox; Potter vs Lansing.

In Dawes vs Peck, the King’s Bench determined, that the right of property, on which the action to recover for a loss is founded, can not be allowed to fluctuate, according to the choice of the consignor or coiu signee, so that either of them may maintain an action against the carrier, for a non-delivery of goods. The legal right must be certain, and depend upon the contract of the parties, and that if a consignor has placed goods in a course of transportation, according to the consignee’s, directions, the right to them vests in the latter.

And to show how strict the rule is on this subject, Griffin vs Langfield et ux, may be cited, which was an action for goods sold to the wife dum so-la, who came of age September the twentieth. The goods were delivered to a carrier, for her, on the eighteenth, and reached her on the twenty-first — and it was said by Lord Ellenborough, — “ When the goods were delivered to the carrier, the property vested in the defendant, and she might immediately have been sued for their value.

Therefore, as she was under age on the eighteenth, the action can not be supported.” In Conard vs The Atlantic Insurance Company, it was considered that no person blit the consignee, strictly speaking, could transfer, by an indorsement of the bill of lading, the legal title to the goods. — That the shipper, if he be the owner, and the shipment be made on his own account, can not, by a mere indorse ment of the bill, pass the legal title; unless he is the gonsignee, or the goods be deliverable to his order; yet he may do this, by an assignment thereon, or by a separate instrument.

This conclusion is founded upon the legal notion, that the bill of lading upon its face, indicates the consignee as the owner of the goods, it refers to; In Griffeih vs Ingleden the action was brought by the consignee of goods against the owner of a vessel, on which they were shipped, to recover damages, for an injury they had sustained by negligence in their carriage; The bill of lading stated that the. freight was “ to be paid in Liverpool,” the place of the shipper’s residence; yet the action was held to be well brought.

TigMman, Chief Justice, in the opinion which he delivered, says, “ In deciding on the legal property, the court will look to the bill of lading; blit in ascertaining the equitable owner, the invoices, letters of advice, and other collatteral evidence will be resorted to.” He cited Evans vs Martlett, in which the court lay down the rule, “that if goods are,by bill of lading consigned to A, he is the owner, and ■must bring the action against the owner of the ship, if they be lost; but if the bill be sjiecial to be deliver-ered to A, for the use of B, B ought to bring the action ; but, if the bill be general to A, and the invoice shows they are on account of B,' A ought to bring the action, for the property is in him, and B has only a trust.” Axid even as early as 1690, in Wiseman vs Vandeputt, the question arose in Chancery, between the' consignor of goods, and the consignee, who had not paid for them, as to who was the legal owner.

It was referred to a court of law for decision, and was there' determined in favor of the consignee; and the Chancellor determined that it was allowable, in equity, for the consignors to get the goods again,- into their hands, or to prevent the consignee from receiving them. .. In some ol the cases, stress is laid upon the direction of the consignee, to send goods by a particular person or conveyance, upon the supposition, that where specific directions are followed by the consign- or, the delivery of goods to the carrier, vests the title in the consignee.

But, upon principle, as well as authority, it is believed, that this circumstance can have no influence in determining who is the legal owner ; Vale vs Bayle. If goods are directed to be sent to any particular place, and the mode of conveyance, the person or the vessel, by whom they are desired to be sent, are not pointed out by the consignee, it must be understood that the consignor has a discretion entrusted to him, restrained only by the adoption of some one of the most usual modes of conveyance.

And that in either case, whether the shipment be made under special directions, or the discretion of the consignor, a legal right of property vests in the consignee, upon delivery to the carrier, who becomes the consignee’s agent. It will follow, from what has already been said, that no act need be done by the consignee, in order to invest him with the legal title — that the bill of lading, (if this be the only evidence offered, to the point,) will be decisive, and supposes every thing that is essential to complete the consignee’s right.

Notwithstanding property is thus absolutely vested in the consignee, by delivery to a carrier, there yet remains with the consignor, the right of resuming it again, under some circumstances, before it actually gets into the possession of the consignee. This is-called the right of stoppage in transitu, and when ex-e'rted, revests the property in the consignor, as much as if he had never parted with the possession. This-right was originally adopted in courts of Equity; and being founded upon principles of equity and natural justice, is now established in courts of law.

It is exercised when goods have been sold and not paid foiv by reason of credit being given or otherwise, and ther vendee, to whom they have been consigned, becomes insolvent — and, as its designation indicates, exists only during the transit of goods, and ceases when they come into the jiossession of the buyer.

Whether the fact of the consignor’s stipulating with the carrier to pay him freight, constitutes such a feature in the bill of lading, as continues in the consign- or the legal title to goods, is a question upon which there is not uniformity in judicial decision; King et al. vs Meredith; Davis & Jordan vs James; Moore vs Wilson. And in as much as it can not be material, in the ulterior progress of this case, to decide it, we will leave it for future adjudication.

Having shown, that where a carrier undertakes, by a bill of lading, to deliver goods to a consignee, he paying freight,- the legal title, immediately upon their receipt, vests in the latter, let us inquire whether this is a conclusion of law, or whether it is not rather a presumption, subject to explanation, and to be removed by proof. ~ , , In The Maryland Insurance Company vs Ruden's administrator, it was held, that the bill of lading was not conclusive as to the ownership of goods.

In Canard vs the Atlantic Insurance Company it was determined, that the shippér, if he be the owner, and the shipment be on his own account and risk, may, by an assignment made on the bill .of lading, or a separaté instrument, pass the legal title to goods. And to the same effect is De Wolf vs Harris; Nathan vs Giles; Moore vs Sheredine. As to the inconclusiveness of a bill of lading, see also, Barrett et al. vs Rogers. ■. The inference from these cases, is, that the bill of lading is not so conclusive upon the question of ownership, as to inhibit the introduction of all proof to that point.

This is deducible, from the right of a shipper, on his own account and risk, to make an assignment of a legal title to goods, though the bill of lading prima facie, pointed to the consignee as entitled to them ; for, as he can transfer no other title than he had, to pass the legal property, he himself must have retained it, notwithstanding the consignment. But, if this question was res integra, we might call, in aid of our conclusion, the usage of trade.

It is well known, that in a majority of instances, where country produce is shipped from the up country, to market, the shipment is made on the account and risk of the shipper, — that the consignee is merely his factor or agent, with instructions either to sell or re-ship. Such being the course of trade, it should have a powerful influence in determining our judgment, if the question was one of doubt.. 2. The right of the defendants to sell their interest in the ‘Warrior,’ to Hammond and Donaldson, was determined affirmatively, in Jones et al.

Pitcher & Co. a decision, which, on this point, we are willing to follow. 3. It was, doubtless, intended, by this exception, to raise the question, whether the plaintiffs could be charged for a loss by the defendants, in their shipment of cotton, in as much as Hammond and Donaldson had stipulated with them, that they might ship as much as two hundred bales on the ‘ Warrior,’ each downward passage, and pay the freight by giving them a credit for the amount thereof, on their note for the purchase of the defendants’ interest in the boat.

This question, we, think, is not presented by the evidence recited in the bill of exceptions. It is not pretended that the shipment was made' under the stipulation contained in the contract of sale; the plaintiffs deny that it was made on account of the defendants — and, the bill of lading, which is certainly prima facie evidence of what it contains, vests the legal title in the consignee, and requires the freight to be paid by him.

The question is then, abstract from the proof, whether the defendants are, by their contract, confined to the liability of Hammond and Donaldson, or may also charge the other joint owners with them, — and, being abstract, we waive its examination, the more especially as it was not discussed in the argument. 4. The mere fact of being joint-owners of a vessel, does not make the parties liable as co-partners : the liability of the owners is consequent upon its employment.

And if the owners of a vessel are not concerned in its navigation, they can not, upon the ground of ownership, be charged for the loss of goods shipped on board of it; but if they are entitled to its earnings, and jointly liable for losses, they may be regarded as partners, so far as it relates to all liabilities incurred by the injury or destruction of the vessel. — Jones et al. vs Pitcher & Co. And this we understand to have been the charge of the Circuit judge, to the jury, though it is not so clearly stated in the bill of exceptions as could have been desired. 5.

There is no error in this charge to the jury, that if the joint-ownership of Jones and Horner was shown to have once existed, its continuance may be presumed, unless it should be proved that it had ceased.— This is clearly in accordance with the analogies of the law, and does not impose a task of difficulty upon the plaintiffs ; for if there had been a severance of interest, or a sale of a joint-interest, it might be shewn either by documentary proof, by parol evidence, positive in its terms, or else by a state of circumstances, incompatible with a continued ownership.

It is insisted, that the judgment on the demurrer to the declaration should have been final, — that there being a mis-joinder of counts, no amendment was allowable: We think differently; and have no doubt but our stautes of amendment authorised a new declaration to be filed in confirmiiy to the writ. It was clearly regular, to render a judgment against the defendants, who were charged by the verdict of the jury, though one of them was discharged. Joint-owners of vessels are clearly embraced within the equity of our statute of eighteen hundred and eighteen, in regard to-partners.

Having considered all the questions properly presented in this case, our conclusion is, that the judgment must be reversed and the cause remanded. Jeremy’s Law of Carriers, 123 ; Jones on Bailments, 107, ii. Jeremy's Law of Carriers, 94. 3 Bos. & Bui. 583. 4 East. Rep. 147. 2 Camp. R. 36. 2 New R. 119. 3 P. Wins. 185-6. 1 Atk. R. 248. 5 M. & S. 189. Peters, 386. 3 Barn. & Ald. 278. 3 Camp. R. 320; 7 Taunt. R. 59. 1 Johns. R. 215. 8 T.R. 330. 3 Camp. R. 254. Serg’t. & Rawle, 429. 1 Ld. Raym. 271; 12 Mod. 156. ‘ 2 Vern. Rep. 203. 4 East. Rep. 147, supra. Cowp. 294; 3 P. Wms. 185, 6; 1 Atk.

Rep. 248 ; 2 New R. 119; 3 Boo. & Pul. 582. Jeremy’s Law of Carriers, 94. 1 Atk. R. 245; 2 Vern. R. 203; Ambler’s R. 399. 8 D. & E. 334, by Grose, tttélice, and 5 East. 180. G Serg’t & Rawle. 429. 2 Camp. R. 839; 3 Camp, R- 321; 8 D. & E. 330. 5 Bun- 2680. 1 T. R. 659. 6 Cranch 338, 1 Peters, 445. 4 Mason, 515. 5 Taunt. 558. 2 Har. & M’Hen. 453. 7 Mass R. 297. 3 Stew. & Porter, 168. 3 Stew. & Porter, 135. 3 Stew. & Porter, 135.