A copy of the note having been filed, the defendant filed an affidavit of defence, averring: that prior to the execution of the note, and while a tenant of M. K. Barndt, he was made garnishee in a writ of attachment sur judgment, issued by S. D. Hunsberger & Bros. against the said Barndt; that he gave the note in suit upon the representation of the said Barndt that he wanted the note in order to settle with Hunsberger & Bros. the amount due them upon the judgment on which said attachment was issued; and that in violation of said agreement, Barndt had failed to use the note for said purpose, and had indorsed it to the plaintiff, who did not purchase it for a valuable consideration, but received it from the said Barndt for an antecedent debt; and further, that the attachment was still pending, wherein the defendant was liable as garnishee.

The Court below discharged a rule for judgment taken, for want of a sufficient affidavit of defence (reported ante, p. 366), whereupon the plaintiff took this writ, assigning for error the refusal of the Court to enter judgment against

the defendant for want of a sufficient affidavit of defence.

W. H. Browne, for plaintiff in error. Alfred Moore, for defendant in error. (The arguments of counsel and authorities cited, were substantially the same as in the Court below; see ante, 366-67.)

himself, we cannot help him by inferences drawn from obscure language which he by a word or two might have made plain. If a defendant, when he has the stand to himself, cannot make out a case in his own favor, it must be because he has none, and he ought not to ask a Court to patch up a case for him.

It is now ordered that the record in this case be remitted to the Court below, and said Court is directed to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown why judgment should not be so entered. Opinion by GORDON, J.

When goods are given by a consignor to a common carrier to be delivered without qualification to the consignee, the consignor cannot, by a subsequent direction to the carrier, prevent the delivery of the goods to the consignee, unless he shows a state of facts which would justify the exercise of the right of stoppage in transitu.

Error to the Common Pleas No. 1, of Philadelphia County.

Feb. 10, 1879. THE COURT. The defendant below, by his affidavit of defence, set forth that he made the note in suit for the accommodation of M. K. Barndt, he, the payee, agreeing at the Where a carrier, despite such subsequent instruction same time that he would use the note in settle- from the consignor, delivers the goods to the consignee, ment of a judgment of Hunsberger & Bros., on and, in consequence of the delivery, is sued by the conwhich an attachment execution had issued, and signor in another State, the fact that judgment is obtained against the carrier in such suit, will not avail in a subsehad been served on the defendant as garnishee;quent suit by the carrier against the consignee for the and that Barndt had violated his agreement by recovery of the goods. indorsing the paper over to the plaintiff. As the plaintiff had no notice of the equities thus subsisting between the maker and the payee, he could not be affected by them, unless he occupied Case, by the Philadelphia and Reading Railthe position of a holder without consideration. road Company against Jacob Wireman, to re(Byles on Bills, 130.) In view of this the affiant cover the value of a car-load of merchandise further set forth, that the plaintiff did not pur- delivered by the plaintiff to the defendant, who, chase the note for a valuable consideration, but as alleged, was not entitled to receive it. Upon received the same from the said Barndt for an the trial before PEIRCE, J., the following facts antecedent debt. This, however, is a contradic-appeared :tion in terms, for if the plaintiff received the In November, 1871, J. G. Fisler bought of note for that is, as we take it, in payment of- H. G. Spaulding & Son, of Elmira, N. Y., a caran antecedent debt, he did purchase it for a load of doors and shutters, valued at $1427.42, valuable consideration. (Kirkpatrick v. Muirhead, which were to be delivered on board the cars at 4 Har. 123, per BELL, J.; Rosenberger v. Bit- Elmira, to be shipped to Jacob Wireman, at ting, 3 Har. 278.) If, indeed, the defendant, Philadelphia, to be paid for in Wireman's paper, by this ambiguous wording, meant that the plain- with Fisler's indorsement, and the freight to be tiff had taken it as collateral security for a pre-paid by Fisler or Wireman. On November 21, existing debt, he should have said so. If he has 1871, Spaulding & Son accordingly delivered the not been able to make out a prima facie case for goods to the Lehigh Valley Railroad Company

The Court (PEIRCE, J.), in the general charge to the jury, said, inter alia: "There was no qualification put on the receipt. If the transaction had rested there, the minute the goods were put on the cars, and the receipt issued and transmitted to Wireman, Spaulding & Son had so far parted with the goods as to lose control of them or a right of recaption, except by what is known as the right of stoppage in transitu-that is, the right to stop them before reaching the consignee, if he should become insolvent. Suppose the goods had been shipped by Spaulding to Fisler, and were on their way to Philadelphia, and Messrs. Spaulding & Son learned that Fisler was insolvent, Spaulding would have a right to stop them. This is an established rule of mercantile law. That brings up the question whether there was any evidence of insolvency of either Fisler or Wireman which would give them a right to stop the goods. If you should not find evidence of insolvency, they had no right of stoppage in transitu, and could not qualify the shipment by directing the same to their order after the goods passed from their control.

at Elmira, with an unrestricted order to forward | C. Spaulding & Son, and delivered it to Wirethem to Wireman at the Philadelphia and Read- man, and that the goods were delivered by the ing Station in Philadelphia, and wrote to Fisler, railroad company plaintiff on production of that sending him their bill for the goods, and the Le- receipt. (Objected to; admitted; exception.) high Valley Railroad's receipt, and inclosing a draft for Wireman's acceptance, and Fisler's indorsement. Upon the same day they telegraphed to Philadelphia to know whether Fisler or Wireman were good for $2000, at sixty days, to which the reply was that they were both "dead beat." Spaulding & Son then took another receipt on the same day from the Lehigh Valley Railroad Company, restricting the consignment to their "own order." The same night H. C. Spaulding, the senior member of the firm, came to Philadelphia, and on the next morning called upon Fisler and Wireman for additional security, which they declined to give. Spaulding then returned, having left orders at the Reading Railroad office for the delivery of the goods to Hough & Parmenter. On November 22, 1871, the Philadelphia and Reading Railroad Company, which connects at East Pennsylvania Junction with the Lehigh Valley Railroad Company, received from the latter the car-load of goods, with the invoice marked "J. Wireman, Kensington Ave. and Reading R. R., Philadelphia. Deliver only on the order of H. C. Spaulding & Son, Elmira," which they forwarded to Philadelphia, noting the restriction in their way-bill. Upon notification of the arrival of the goods at Richmond, Fisler, who had resold them to Wireman, and had received $500 in part payment, gave the latter the first Lehigh Valley Railroad receipt and the invoice, who presented them to the Reading Railroad Company's agent at Richmond, paid the freight, and received the goods. Spaulding & Son, who had returned Wireman's paper, upon hearing of the delivery to Wireman, brought suit in Elmira against the Reading Railroad Company for failure to deliver according to their order, and recovered judgment for the value of the goods, which the Reading Railroad Company paid, and then brought this suit to recover from Wireman. There was nothing in the evidence to show insolvency of Fisler at the time of the delivery of the goods at Elmira. The defendant offered to show that J. G. Fisler purchased these goods from Spaulding & Son, of Elmira, with directions to consign them to Jacob Wireman, of Philadelphia; that they were so consigned; that the point of delivery was on the cars at Elmira; that Wireman had paid about Thomas Hart, Jr., for the plaintiff in error. $500 on account of the goods; that Spaulding Undoubtedly, if there was an unqualified ship& Son were to take Wireman's paper, and that it ment at Elmira, there can be no recovery; but was sent to Spaulding by Fisler for $1427.42; if, as I contend, there was a qualified shipment, that Fisler received from Spaulding & Son a re- the plaintiff is entitled to recover. There is no ceipt or bill of lading for these goods, given by evidence of a change in the shipment other than the Lehigh Valley Railroad Company-such re- the existence of two Lehigh Valley Railroad receipt, however, not containing any order of H. | ceipts, both dated the same day, one with and

VOL. VI.-31

"If you should find on this point that there was no right in Spaulding to stop in transitu in consequence of Fisler's insolvency, the next point will be, was there a qualified delivery at Elmira? If you find there was an unqualified shipment at Elmira, and Spaulding had no right of stoppage in transitu, then Mr. Wireman had a right to receive them from the railroad company, and there was nothing to prevent his receiving them from the company. If that be the state of facts, Mr. Wireman had a right to receive the goods, and was not liable to anybody but Fisler.

"If, however, Spaulding had a right of stoppage in transitu, or if the goods were shipped in the first instance in this qualified manner, the defendant had no right to them, and would be liable to the Philadelphia and Reading Railroad Company, but not otherwise. This covers the whole case."

Verdict and judgment for the defendant. The plaintiff took this writ, assigning for error, inter alia, the admission of the defendant's offer, and the part of the charge above given.

the other without the direction to ship "to order." Assuming an unqualified shipment at first to Wireman, was there such a delivery at Elmira as to vest the title so completely in Fisler that there could not be a lawful change to deliver to the shipper's order. That turns upon the question whether the delivery to the Lehigh Valley Railroad Company was complete. Spaulding & Son did not transfer the title to the goods until they had surrendered final control of them to the Lehigh Valley Railroad Company. The evidence shows that they had not the intention to deliver unqualifiedly, and without the intention to deliver, the delivery is incomplete.

had purchased the goods from Spaulding & Son, to be delivered at Elmira, consigned to Wireman, and to be paid for in the negotiable paper of the consignee, indorsed by Fisler; that, pursuant to agreement, the goods were delivered at Elmira to the Lehigh Valley Railroad Company, whose receipt for their delivery to Wireman at Philadelphia, without any qualification or restriction, was taken by Spaulding & Son, and immediately sent by them to Fisler in a letter advising him of the shipment, and inclosing draft for the amount, to be accepted by Wireman, indorsed by Fisler, and remitted to the consignors; and that, on the arrival of the goods in Philadelphia, Wireman, who had agreed to

Susquehanna Boom Co. v. Finney, 8 Sm. 200. The question of completeness of delivery is for purchase them from Fisler, presented the receipt the jury.

Wenger v. Barnhart, 5 Sm. 300.

It was error not to have submitted the question of completeness of delivery to the jury. The plaintiff's liability as a carrier grew out of what took place at East Pennsylvania Junction between it and the Lehigh Valley Railroad, which could not be affected by evidence of a contract between Spaulding & Son and Fisler. The Lehigh Valley Railroad acted as Spaulding's agent in directing the Reading Railroad as to the delivery. The receipt of the second carrier is the only contract between the shipper and the second car

rier.

81.

Camden and Amboy R. R. Co. v. Forsyth, 11 Sm. The plaintiff is liable to Spaulding & Son for not delivering according to order, and their remedy is against the defendant who received the goods.

Lake Shore and Michigan Southern R. R. Co. v.
Ellsey, 4 Norris, 283.
Hagerstown Bank v. Adams Express Co., 9 Wr. 419.
Vermilye v. Adams Express Co., Leg. Gaz., vol. vii.
137.

This case is similar to that of

Brown v. Hodgson, 4 Taunton, 189.

of the Lehigh Valley Railroad Company, paid the freight, and received the goods. If these facts were found by the jury, as they doubtless were, from the testimony submitted to them, they constituted a complete answer to the alleged want of anything in Wireman to demand and receive the consignment. The learned Judge was, therefore, clearly right in receiving the testimony, and submitting it as he did to the jury.

The testimony fairly justified the inference, that after Spaulding & Son had taken the receipt of the Lehigh Valley Railroad Company, and mailed it to Fisler, they doubted the solvency of Wireman and Fisler, and induced the Company to restrict the delivery to the consignee, by adding to the bill of lading the words above quoted, and when the goods were transferred to the plaintiff company at Allentown Junction, the same direction was inserted in its way-bill; but neither Fisler nor Wireman was a party to this change in the terms of shipment, and were not bound by it. If the goods were purchased and delivered at Elmira, as contended by the defendant, the title had passed from Spaulding & Son, and vested in the purchaser. After an unqualified delivery to the carrier at Elmira, they were

(No counsel appeared contra, and no paper- no longer at the risk or under the control of book was presented.)

Jan. 20, 1879. THE COURT. The plaintiffs' claim, as appears by the bill of particulars, was based on the unauthorized delivery of the goods consigned to the defendant Wireman; hence, the main question was, whether the latter had a right to receive them at the time they were delivered to him by the plaintiffs' agent. To show that he had not, the plaintiffs mainly relied on the qualification and direction contained in its way-bill to "deliver only on the order of H. C. Spaulding & Son, of Elmira." Resting upon this alone, the delivery to Wireman, without the order of Spaulding & Son, would have been unauthorized; but the testimony adduced by the defendant tended strongly to prove that Fisler

Spaulding & Son, and they had no right to say that, on reaching their destination, they should not be delivered to the consignee without their order. If the plaintiff company had refused to deliver the goods on presentation of the receipt and tender of the freight by the consignee, he could have sustained replevin by proving the facts, which the jury must have found under the instructions of the Court in this case.

There may be apparent hardship in the failure of the plaintiff to recover after having been sued by the consignors, in the State of New York, for misdelivery of the goods, and compelled to pay the value thereof; but with this we have nothing to do. It may be that the right of the consignee to receive the goods was not urged or sustained in that case as it was in this. In the present

(3) (4)

46

66

66

66

5197 66

66

66

3899 94

4594 29

66

66

66

66

4594 30

case, as we have seen, the action was based ex-| (1) Note dated March 7, 1873, @ 8 months, for $4797 83 clusively on the ground that the consignee had (2) no right to receive the goods without the order of the consignor, a position which the plaintiff failed to maintain. Perhaps the result might have been different if the action had been in the name of the consignors, to the use of the railroad company. As it was, however, the case hinged on the question of Wireman's authority to receive the goods. The facts were for the jury, and the testimony, submitted to them with appropriate instructions, fully justified the verdict.

Judgment affirmed.
Opinion by STERRETT, J.

These notes were protested at maturity. On March 9, 1874, defendants paid plaintiff $10,000, who returned notes (1) and (2). The plaintiff also subsequently realized $161.50 from certain mortgages held as collateral security. On July 27, 1874, the defendants gave plaintiff, in consideration that he would forbear to sue on the three protested notes, three other notes "for the interest in arrear and accruing, and for the discount agreed to be paid by them to the plaintiff," viz. :

(a) Note dated July 27, 1874, @ 12 months, for $2742 44

C. A. V. Bills and notes-Usury-Purchase of note— Feb. 3, 1879. THE COURT (after stating the Renewal notes including usury-Practice-facts). It is claimed by the plaintiff that on Application to open judgment-Rule discharged by F. S. Wynkoop, as purchaser, from the deNov. 2, 1872, he obtained the three notes drawn

Rule to open judgment and let the defendant into a defence as to alleged usurious interest, included in the judgment.

Judgment had been entered by default, Aug. 23, 1875, for $21,481.85, upon certain promissory notes. The depositions showed the following facts:

In November, 1872, the defendants, in consideration of $18,572.43, indorsed to the plaintiff three notes drawn by one Wynkoop, and held by them, due Feb. 13 and 15, 1873, amounting to $19,599.73. These notes, when due, were renewed by five notes drawn and indorsed in the same way, viz. :—

There is no direct authority, as between indorsee and indorser, on this question in this State. In 2 Parsons on Bills and Notes, p. 428, the writer says: "If, however, an indorser of a note who sells it, indorses it himself, he not only transfers the note, but makes himself liable for the face of it; and if he sells it for less than the face, there are four views which may be taken of the transaction. One is, that it is simply a usurious transaction; the second, that it is not usurious, because the indorsement shall be held to be for the purpose of transfer only, and shall have the same effect as if the phrase without recourse' were added, or, in other words, the indorser is not made liable in any event; a third is, that it is not usurious because although the purchaser may recover against the maker or other prior parties the whole amount, as against the indorser and seller he shall only recover what he paid, with legal interest; the fourth is, that the transaction is in itself not open to the charge of usury, and the purchaser shall recover the whole amount for which it is payable from all the parties."

The Courts of North Carolina hold according to the first view; of Wisconsin, according to the

second; of New York, Ohio, Illinois, Kentucky, as being the most satisfactory exposition of the and Alabama, according to the third; and of law of usury, as applicable to our statute, between New Jersey and the Federal Courts, according to the fourth.

the indorsee and indorser of a promissory note. Our statute of May 28, 1858, against usury, does not, however, invalidate such contract, but limits the right of the lender or creditor to recover from the debtor or borrower the actual amount loaned, with interest, and allows the debtor to retain or deduct therefrom the excess of lawful interest already paid; or, when the debtor has already voluntarily paid the whole debt, together with interest exceeding the lawful rate, he may recover back such excess by action, if commenced within six months from and after the time of such payment. It provides that the lawful rate of interest for the loan or use of money shall be six per cent. per annum. That negotiable paper may be transferred and indorsed, so as to constitute the money paid therefor a loan between the indorsee and indorser, there can be no question.

Durant v. Banta & Northum (3 Dutch., N. J., 625), was an action by an indorsee of a promissory note against the maker and indorser. The note had been indorsed by Northum, the payee, to the plaintiff, at a discount of 3 per cent. per month. The Court of Appeals held that where a note is fairly executed and without usury between the parties, the payee may sell it at any rate of discount he chooses, and the purchaser will have a right to recover the full amount of the note of any party, either maker or indorser, legally liable upon it." The fact that the payee of the note transfers it by general indorsement, does not necessarily, and as a conclusion of law, import a contract of loan. Whether it was a sale of the note, or a loan of money upon it, depends upon the meaning and intention of the parties at the time, and it is to be determined by the evi- In relation to the transaction of November 2, dence, and is a question of fact for the jury. 1872, the only question of fact in connection [The Court here reviewed the cases of Cram v. therewith material to the inquiry, is whether the Hendricks, 7 Wend. 569, and Nichols v. Fear-transfer and indorsements of the notes by the son, 7 Peters, 103.]

We have already said that there is no direct decision in this State on the question. It is true that in Gaul v. Willis (2 Cas. 259), it was decided that a party may lawfully purchase any security at a greater discount than six per cent., if it be a fair purchase, and not resorted to as a contrivance to evade the statute against usury. But that was an action against the maker by the indorsee. The counsel for the defendants, however, intimates that in that case it was virtually admitted in the argument, that if the indorsers, Drexel & Co., had been sued, the rule would be different. He is certainly in error in that respect. In that case Drexel & Co. were the first indorsees of the note, who sold it to Willis. What was said by counsel on the argument, as I understand it, was that Drexel & Co., | as plaintiffs, might be liable to an abatement for taking usurious interest from Rudman, for whose accommodation the note was discounted; but even this the Court denied, unless Drexel & Co. knew of the purpose for which the note was given by Gaul to Rudman, the payee. Wycoff v. Longhead (2 Dall. 92) was an action against the maker, and Musgrove et al., v. Gibbs (1 Dal. 216), was a qui tam action for the penalty, against the holder of the note, who, as indorsee of the payee, had received usurious rates of interest from the maker, and the question was whether the loan was one directly by the indorsee, or a bona fide purchase of the note by him from the payee.

We are, therefore, disposed to adopt the rule as laid down in Durant v. Banta et al. (supra),

defendants to the plaintiffs was a sale or loan between the parties. In this application to open the judgment, it is clearly the duty of the applicant to satisfy the Court by satisfactory proof that the transaction of November 2, 1872, was a loan, and not merely a sale of the notes. In that respect we think that the evidence submitted is insufficient. The mere indorsement of the notes by the defendants does not by itself import a loan, and there is no evidence that there was any negotiation or treaty between the parties for a loan, or, in the language of Nichols v. Fearson, "that the indorsement of the notes by the defendants was expressly stipulated for by the plaintiff as security for the repayment of the money advanced."

The judgment was obtained Aug. 23, 1875. Augustus Wolle, one of the defendants, died Aug. 11, 1878, and the application to open the judgment is made by his legal representatives. The fact that neither Wolle in his lifetime did make, nor the other defendants do now make any application for relief, is a circumstance indicating how they treated the transaction at the time. Leinbach, in his testimony, does not venture to say that it was a loan, but simply states that the notes, with their indorsements, including that of the defendants, were offered to the plaintiff for discount. With no better evidence before a jury than that submitted to the Court, the former would not be warranted to find that the transaction of Nov. 2, 1872, was a loan and not a sale of the securities.

The case, however, assumes a different aspect when the notes of November 2, 1872, matured,