documents of title on the bare chance that another document may possibly be outstanding, does so at his own risk. If his surmise turns out to be well founded, his rejection of the tender would be justified. But if it is a mere surmise, and has no foundation in fact, he has chosen by excess of caution to place himself in the wrong."

347

CHAPTER XXXIII.

THE BILL OF LADING IS A MUNIMENT OF NO TITLE AS AGAINST THE TRUE OWNER, WHEN THE PARTY ISSUING OR TRANSFERRING IT HAS NO TITLE OR AUTHORITY.

The general principle, §§ 460, 461, 462. The question considered as one of bailment. The carrier may be compelled to disregard his bailor's title and recognize that of the true owner, § 464.

Want of notice to the carrier by the true owner does not validate the billholder's title, §§ 465, 466.

The manner in which the carrier's bailor obtained possession of the goods, whether fraudulently or in good faith, is immaterial, §§ 467,

468.

Unauthorized delivery by an agent confers no title, § 469.

Exception where an apparent ownership is intended, § 470.

§ 460. THE language of many opinions, as has been already remarked, has been broader than is warranted by the decisions themselves and expressions, intended to convey no more than a statement of the transferability of the bill of lading, have been misconstrued as opinions that the instrument possesses all the incidents of commercial paper. The leading case of Lickbarrow v. Mason, in which it was decided that a vendee who has acquired a good, though defeasible, title may, by his indorsement of the bill of lading to a bona fide purchaser for value, confer upon the latter a title which is indefeasible, has been frequently invoked in attempts to confer upon a holder who has no title the power of transferring one by a transfer of the bill. No such power is attendant upon the negotiation of the instrument and nothing can be found in the leading case, or in those that follow, to establish it. The general rule that title cannot rise higher than its source, admits of no question. "No man can sell goods and convey a valid title to them, unless he be the owner, or lawfully represent the owner." Although title to

1 2 T. R. 63; 1 H. Bl. 357; 6 East, 21.

2 Benjamin on Sales, § 6; Saltus v. Everett, 20 Wend. 267; Howe v. Parker, 2 T. R. 376.

chattels is usually evinced by possession, possession does not create title por enable one having possession to convey title. Certain exceptions to the general principle have been established in England, such as sales made in market overt and in cases governed by the Factors' Act and in both England and America in the case of bills of exchange and promissory notes, but the principle has not by any means been abandoned in its application to symbolical, as well as actual, possession, in other words, in its application to bills of lading. The doctrine of Lickbarrow v. Mason' constitutes, indeed, a most important modification of the main principle, but contains nothing at variance with it. The proposition there enunciated, that an unpaid vendor cannot exercise the right of stoppage in transitu against a bona fide indorsee for value of the bill of lading from the insolvent purchaser, is founded upon the fact that the latter has an actual title to the goods and although such a rule permits the ripening of a defeasible into an indefeasible title to the prejudice of the vendor, it nevertheless contains no warrant for disregarding the distinction between the transfer of a defeasible title and an attempt to transfer a title which has no existence.

§ 461. It may be regarded as settled that a bill of lading cannot, generally speaking, represent the goods which it purports to represent unless it has been issued to their true owner.2 Were it otherwise a carrier would possess the absolute power to change at his own discretion the title to merchandise intrusted to him for transportation, by delivering a bill of lading therefor to any person who had managed to secure an apparent right of ownership or disposal. There may, as was observed in the case of Blossom v. Champion,3 be cases in which some act or misconduct on the part of the true owner would estop

21.

1 2 T. R. 63; 1 H. Bl. 357; 6 East, 40; Richardson v. Smith, 33 Ga. Suppl. 95; Union Transportation Co. v. Yeager, 34 Ind. 1; Farmers and Mechanics' Bank v. Erie Rwy. Co., 72 N. Y. 188; Benjamin v. Levy, 39 Minn. 11 Young v. East Ala. R. Co., 80 Ala. 100.

The Idaho, 3 Otto, 575; Blossom v. Champion, 37 Barb. 554; Dows v. Perriss, 16 N. Y. 325; Moore v. Robinson, 62 Ala. 537 Saltus v. Everett, 20 Wend. 267; Traders' Bank v. Farmers and Mechanics' Bank, 60 N. Y.

3 37 Barb. 554.

him from asserting his title against a holder of the bill of lading, but the general rule is undoubted. Its operation extends to a subsequent purchase of such a bill of lading in good faith and for a valuable consideration. Here lies the widest divergence between bills of lading on the one hand and bills of exchange and promissory notes on the other. Here appears most clearly the substantial distinction which must be observed in applying the word "negotiable" to the two classes of instruments.

§ 462. In the case of Craven v. Ryder1 the plaintiffs contracted to sell certain goods to B. French & Co. and sent the goods by their lighterman to be laden upon a vessel of which the defendant was master, with an order to receive them for and on account of them, the plaintiffs. Upon the completion of the loading the mate in command gave an acknowledgment that the goods were received on board the ship for Hamburgh "for and on account of" the plaintiffs, it being the custom to give such a receipt pending the issuance of the final bill of lading. B. French & Co. contracted for the resale of the goods to Caldas and received from him the price. Caldas resold them to Bene to whom he consigned them, receiving the latter's acceptances on the credit of the consignment. The defendant, without the plaintiffs' knowledge or consent, issued a bill of lading to Caldas as the shipper of the goods deliverable to Bene or order at Hamburgh. B. French & Co. having stopped payment before paying the plaintiffs, the latter attempted to reclaim the goods from the defendant. They were held entitled to do so. Their right was in this case strengthened by the fact that, in accordance with the custom of the port, it was the duty of the defendant to issue no bill of lading except to the party presenting and surrendering the lighterman's receipt,—the plaintiffs thereby retaining a control over the goods at the time of the issuance of the bill to Caldas. The rule contended for by counsel however upon the authority of Lickbarrow v. Mason, that there is no case in which the right of stoppage may be exercised after a resale of goods and payment of the price, or advancement of other consideration upon the credit of the goods by a second vendee, was clearly rejected.

1

6 Taunt. 433.

2 2 T. R. 63; 1 H. Bl. 357; 6 East, 21.

§ 463. So, in Blossom v. Champion,' the plaintiffs sold goods to B., to be paid for in cash on delivery and B. sold the same to W. The plaintiff's by order of B. caused the goods to be shipped on board a vessel of which the defendant, C., was master, taking receipts therefor, which they continued to hold. W., without having paid for the property and without any indicia of ownership save the fact that he had made an agreement for freight in the ship by which it was to carry for him a certain quantity of the kind of goods actually shipped, procured from the agent of the ship a bill of lading of the goods and indorsed the same to parties making advances upon it. It was proved that a custom had long prevailed at the port of shipment to deliver bills of lading only to the party holding the receipt of the master or agent of the vessel. The plaintiffs were held entitled to recover the property in an action against C. and W.,-the owners of the vessel having no authority to deliver a bill of lading to a party not having the evidences upon which bills of lading were customarily delivered.

§ 464. Another aspect of the case is presented when the relations between the carrier and the shipper are considered. It is most forcibly presented when a bill of lading is issued, not to one deriving his apparent title from the actual shipper or supposed by the carrier to possess a title so derived, but to an actual shipper who afterwards is discovered to have had no title. In either case, however, the question arises whether a common carrier may be compelled by the true owner of the goods carried, or by his assignee or indorsee, to disregard the bill of lading which he has issued to the shipper; whether, in other words, a bailee is not estopped from denying the title of the party who entrusted him with the goods. Upon this point the Supreme Court of the United States passed in the following language: "In Rolle's Abr. 606, tit. Detinue,' it is said, 'If the bailee of goods deliver them to him who has the right to them, he is notwithstanding chargeable to the bailor who in truth has no right;' and for this 9 Hen. VI. 58, is cited. And so, if the bailee deliver them to the bailor in such a case, he is said not to be chargeable to the true owner (ib. 607), for which

1 37 Barb. 554.

2 The Idaho, 3 Otto, 575.