& Co., commission merchants in South America for Tappenbeck & Co. of England, drew bills of exchange upon the latter, which they had discounted in Para and with the proceeds of which they purchased goods for shipment to Tappenbeck & Co. They shipped the goods and sent bills of lading therefor, making the goods deliverable to Tappenbeck & Co., together with invoices, direct by post to the latter firm, advising them at the same time of the drawing of the drafts and requesting them to carry the price of the goods to their account. While a cargo of goods shipped under this arrangement was in transit both firms stopped payment. The liquidating trustee of the English firm took possession of the cargo upon its arrival. The creditors of the South American firm claimed to have it appropriated to meet the bills drawn against it, some of which at the time when Tappenbeck & Co. stopped payment had been accepted but not paid and some not accepted., The court held, however, that Christiansen & Co., whether regarded as the agents of the English firm or as vendors, had parted with all the property in the goods and had no power to direct appropriation of the proceeds. As soon as the goods were put on board ship at Para and the bills of lading making the goods deliverable to the consignees were put in the post directed to the consignees, the goods were placed thereby beyond the control of Christiansen & Co. and the property in them passed to Tappenbeck & Co. "We conceive it as perfectly settled," said the court, "that if the consignor in such a case wishes to prevent the property in the goods and their right to deal with the goods whilst at sea, from passing to the consignee, he must by the bill of lading, make the goods deliverable to his own order and forward the bill of lading to an agent of his own. If he does not do that, he still retains the right of stopping the goods in transitu, but subject to that right, the property in the goods and the right to the possession of the goods is in the consignee." Shepherd v. Harrison' was distinguished by pointing out that the consignor in that case took the precautions to retain control which had been omitted by the consignor in this.

§ 486. Where, however, the bill of lading is not mailed by

1 L. R. 5 H. L. 116.

the consignor directly to the consignee, but is transmitted by the former to a discounting bank and the bank sends to the consignee the bill of lading, stating at the same time that the property was to be drawn against by the consignor through the bank, the property does not pass unconditionally to the consignee, notwithstanding that the bill of lading is neither made deliverable to order of the consignor nor retained absolutely in the possession of the consignor or his agent. The notification by the bank at the time of delivering the bill of lading that the goods have been drawn against by the consignor, was decided in Cayuga Bank v. Daniels' to be of the same effect as though the bill of lading had been attached to the draft and possession had been tortiously obtained by detaching the bill of lading without accepting the draft.

487. The fact that the goods were shipped in a vessel owned or provided by the vendee does not in itself rebut the presumption of a reserved control arising from the fact that the bill of lading was made deliverable to the shipper's own order or that of his agent. Nor does the fact that the goods are delivered at the terminus of the transit into an elevator owned by the vendee. Thus, in Dows v. The National Exchange Bank, where the vendor's agent directed the carrying vessels on which wheat had been shipped to deliver it to an elevator of which the proprietors were the drawers of drafts against the shipment "to be held subject to and delivered only on payment of the draft," etc., it was held that the drawee's possession was merely that of a bailee and his subsequent sale and delivery of the wheat conferred no title.

§ 488. In the well-known case of Turner v. The Trustees of the Liverpool Docks, the plaintiffs' assignors, merchants of Liverpool, ordered a shipment of cotton from Menlove & Co., merchants at Charleston, to be shipped from Charleston upon the purchasers' own vessel. The master signed a bill of lading of the cotton to be delivered at Liverpool "to order or assigns," freight free. Menlove & Co. drew drafts upon the purchasers

1 47 N. Y. 631.

2 Turner v. Trustees of the Liverpool Docks, 6 Ex. 543; Moakes v. Nicholson, 19 C. B. N. S. 290;

Dows v. Nat. Exchange Bank, 1 Otto, 618.

3 1 Otto, 618.

46 Ex. 543.

and desired the latter by letter to insure the cotton. They also sent to them an invoice stating the shipment of the cotton by order and for account and risk of the purchasers. The purchasers having become bankrupt before the arrival of the cotton, Menlove & Co. claimed a right to stop the cotton in transitu and it was stored in the warehouses of the defendants. The assignee of the bankrupts having brought detinue, the defendants set up against them the right of Menlove & Co.

It was contended on the part of the plaintiff that by delivery on board the purchasers' own ship, specially appointed for the transportation of the goods in question, the absolute property vested in them, more especially as the statement in the bill that the goods were to be carried freight free, "being owners' property," was inconsistent with the property remaining in Menlove & Co. It was further contended that the captain had no power to alter by his statements in a bill of lading what would otherwise have been an absolute delivery to the vendees. The court held, however, that such was not the case, the terms of the bill of lading effectually reserving to the consignors the jus disponendi. "There is no doubt," said the court, "that a delivery of goods on board the purchaser's own ship is a delivery to him, unless the vendor protects himself by special terms restraining the effect of such delivery. In the present case the vendors by the terms of the bill of lading made the cotton deliverable at Liverpool to their order or assigns and there was not, therefore, a delivery of the cotton to the purchasers as owners, though there was a delivery on board their ship. The vendors still reserved to themselves, at the time of delivery to the captain, the jus disponendi of the goods, which he, by signing the bill of lading, acknowledged and without which it may be assumed that the vendors would not have delivered them at all. . . . . Whether, as the cotton was actually carried, the owners of the ship, as such, might not be entitled to freight upon a quantum meruit, notwithstanding the terms of the bill of lading, is a point not necessary now to determine, but with respect to the question whether the plaintiff's could set up the want of authority in the master as a ground for contending that there was an absolute delivery of the goods, so as to vest the property in the bankrupts immediately upon

delivery, notwithstanding the special terms upon which they were delivered and accepted by the captain, we are clearly of the opinion that it is not competent for them to do so. The want of authority of the master to accept them on such terms will not have the effect of vesting the property in the bankrupts. The case of Mitchell v. Ede, 11 A. & E. 260, is a strong authority in favor of the defendants."

§ 489. The cardinal principle in construing instruments of this character being the ascertainment of the parties' intention, the presumption arising from this form of the bill, that the vendor intended to retain such control of the goods as would prevent title from passing to the vendee, may be rebutted by evidence to the contrary. No incontrovertible legal effect is stamped upon the transaction by the use of such a form. The question is one of fact, not of law. It may be shown before a jury that the vendor in causing the bill of lading to be made to his order acted merely as an agent for the vendee. It was admitted by the Supreme Court of the United States in applying the ordinary construction in the case of Dows v. The National Exchange Bank," "that where a bill of lading has been taken containing a stipulation that the goods shipped shall be delivered to the order of the shipper, or to some person designated by him other than the one on whose account they have been shipped, the inference that it was not intended the property in the goods should pass, except by subsequent order of the person holding the bill, may be rebutted, though it is held to be almost conclusive. And we agree," continued the court, "that where there are circumstances pointing both ways, some indicating an intent to pass the ownership immediately, notwithstanding the bill of lading-in other words, where there is anything to rebut the effect of the bill, it becomes a question for the jury whether the property has passed." Thus, it may happen, as in the case of Joyce v. Swank, that a bill of lading is taken in the name of the shipper, not for the purpose of preventing title from passing to the vendee, but merely as a precautionary retention of title in view of uncertainty as to the vendee's intention to accept the

1 1 Otto, 633.

2 17 C. B. N. S. 83.

goods upon the terms offered. In that case McCarter, of Londonderry, who had been in the custom of buying largely of Seagrave & Co., of Liverpool, ordered of the latter firm 100 tons of guano. Seagrave & Co. wrote in answer: "We have succeeded in fixing the schooner Anne and Isabella to carry about 115 tons at your limit. We presume we may draw upon you at six months from the date of the shipment at 107. per ton. Please say if you purpose effecting insurance at your end." McCarter replied, referring to the price: "I really cannot understand this, when I know that Mr. L. supplies your guano in Scotland at 9l. 15s., net, there to dealers. Beside, I look, as heretofore, for the special allowance made to me at the origin of our transactions; and now that you are making some changes, it may be as well that I should know how we are to get on for the future." He concluded with a request that some flowering shrubs be sent him "in charge of the captain." On the day before writing this McCarter effected an insurance on the guano with the plaintiff, an insurance broker. Seagrave & Co., fearing from the tenor of McCarter's letter that he would not accept the cargo, insured it in their own names and took a bill of lading to order of themselves or assigns. They made out an invoice of "guano delivered to account of McCarter, by Seagrave & Co., per Anne and Isabella," and forwarded it with the bill of lading to a partner then in Ireland. The latter took these papers to McCarter, who expressed his willingness to accept the cargo. Two days afterward the bill of lading was indorsed to McCarter and he accepted a draft for the goods. On the same day news was received of the loss of the cargo sea two days before. The underwriter of the policy of insurance effected by the plaintiff on behalf of McCarter, refused to pay the same, whereupon this action was brought. The defendant claimed that McCarter had no insurable interest, the title not having passed to him.

at

It was held, however, that the title had passed to McCarter upon the shipment of the goods, his letter to Seagrave & Co., with regard to the price, not being a repudiation of the contract, but a "grumbling assent" to its terms and such being the case, the mere circumstance that the bill of lading was taken in the name of the vendor and remained unindorsed at