authority. At that time Evans was insolvent, but the carrier had no knowledge of that fact, or that the goods had not been paid for, or that a draft had been sent or instructions given as to the delivery of the goods, but it delivered them in good faith. The canning company brought its action against the final carrier for the value of the goods, and it was held entitled to recover. "The fact that Evans presented the bill of lading in this case,' said the court, "was not sufficient to overcome the presumption which the terms of the bill raised that the consignee [who was also the consignor] was the owner of the goods. That such is the presumption is well established.19 The contract with the canning company required the defendant to deliver the goods to the consignor. The unindorsed bill of lading presented by Evans was evidence that the contract was still in force and that the canning company was then the owner of the goods. The delivery to Evans was not authorized, and was made by defendant at its own risk.20 But it is said that the canning company clothed Evans with the apparent right to demand the goods, and that since 'one of two innocent parties must suffer a loss from the wrong of another, the loss should fall upon the party who put it in the power of that other to perpetrate the wrong.' This case does not fall within that rule, for, as we have seen, the possession of the bill of lading, without indorsement or other evidence of assignment, did not vest Evans with any apparent right to the property. The loss resulted from the negligence of defendant in not insisting upon proper evidence of an assignment before it surrendered the goods. "21

And where the carrier issues original and duplicate bills of lading made out to the shipper or his order, and such bills of lading provide that delivery shall be made only on presentation of the originals, the carrier will be liable if he makes delivery

19. Citing Congar v. Railroad Co., 17 Wis. 485; Krulder v. Ellison, 47 N. Y. 37; Lawrence v. Minturn, 17 How. 100; Alderman v. Railroad Co., 115 Mass. 234.

20. Citing Hutchinson on Carr., 1st Ed., §§ 129, 130, 344.

21. Bank v. Transportation Co., 69 N. Y. 374; Lickbarrow v. Mason, 1 Smith's Lead. Cas. *838, with annotations; Dows v. Greene, 24 N. Y. 638; Allen v. Williams, 12 Pick. 297, were cited and distinguished.

to the shipper on his presenting the duplicates where the shipper, prior to receiving the goods, has transferred the originals to another.22

Sec. 189. (§ 131d.) Same subject-Possession of indorsed duplicate obtained by fraud. In a leading and important case23 in which this method was pursued, it appeared that the consignors had taken to themselves duplicate bills of lading, one of which, unindorsed, they sent forward to the purchaser by way of notice, and the other of which they had indorsed in blank, attached it to a draft on the purchaser and discounted the draft at a bank. When the draft was presented for acceptance the purchaser accepted it, but, at the same time, without detection, and also, as the jury found, without negligence on the part of the bank, substituted the unindorsed duplicate for the indorsed one attached to the draft. Before the fraud was discovered, the purchaser indorsed the latter duplicate to a third person and received from him large advances in money. In an action to determine the rights of the parties, it was held by the supreme court of the United States that the bank's title had not been divested. It was urged that the same rule which protects a bona fide purchaser of negotiable paper should govern in the case. But the court, per Strong, J., held otherwise, saying: "The reason can have no application to the case of a lost or stolen bill of lading. The function of that instrument is entirely different from that of a bill or note. It is not representative of money, used for transmission of money, or for the payment of debts or for purchases. It does not pass from hand to hand as bank notes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by it,a representative of those goods. But if the goods themselves be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the person who lost them or from whom they were stolen. Why then should the sale of the symbol or mere representative of the goods

22. Midland Nat'l Bank v. Railway Co., 132 Mo. 492, 33 S. W. Rep. 521, 33 Am. St. Rep. 505.

23. Shaw v. Railroad Co., 101 U. S. 557.

have such an effect? It may be that the true owner, by his negligence or carelessness, may estop himself from asserting his right against a purchaser who has been misled to his hurt by that carelessness. But the present is no such case. It is established by the verdict of the jury that the bank did not lose its possession of the bill of lading negligently. There is no estoppel, therefore, against the bank's right."

Sec. 190. (§ 132.) Same subject-Duplicate receipts-Goods deliverable only on production of duplicate.-So, in another case, goods were delivered for carriage to a railroad company with an express provision in its receipt that they should be delivered to the consignee only upon the production of a duplicate of the receipt, and a duplicate of the receipt with this condition indorsed across the face of it was given to the shipper, to be used for the purpose of obtaining the possession of the goods according to this arrangement. After obtaining this duplicate, the shipper drew upon the consignee and attached the duplicate to the draft, which was then discounted by the plaintiff, who forwarded it for collection with the attached duplicate to the residence of the consignee. After accepting the draft, the consignee demanded the goods of the railroad, and they were delivered to him without the production or surrender of the duplicate receipt. When the draft became due and payment was refused, the plaintiff demanded the goods of the railroad, but having previously delivered them to the consignee it refused to deliver or account for them to him; whereupon he brought his action against it and recovered. It was considered by the court that the condition in the receipt was notice to the road that the goods were not to be delivered without a compliance therewith, and that the title to the goods having passed to the plaintiff by the indorsement to him of the receipt, he was partly entitled to sue for the wrong delivery.24

Sec. 191. (§ 133.) Same subject-Protection of third person paying draft for consignee's accommodation.-Goods were shipped by railroad for and on account of certain consignees,

24. McEwen v. Railroad Co., 33 Ind. 368.

and drafts were drawn on them by the consignor with the railroad receipts attached, and sent for collection to a bank at the place of consignment. The consignees, being unable to meet the drafts on the day they became due, applied to the plaintiff to take them up and take the goods, which he agreed to do. Upon payment of the drafts by him the consignees indorsed to him the railroad receipts. Afterwards the consignees made a bill of sale of the same goods to other parties, who thereby obtained them from the road. Neither these vendees nor the agents of the road knew anything of the previous dealings with the plaintiff, and had no knowledge or information of any claim by him, nor did the plaintiff know of the sale to the other parties until after the road had delivered the goods to them. It was held that the indorsement and delivery of the receipts to the plaintiff gave him a property in the goods, at least to the extent of the advances made by him, and that the consignees after that could convey no title to the goods to another vendee, and that he was therefore entitled to recover from the road.25

So N. shipped corn, consigned to his own order, with directions to notify P., who was the purchaser, attaching the bill of lading to a draft on P., which went forward for collection. On arrival P. was absent and draft was protested. P.'s clerk requested J. to pay the draft and hold the bill of lading as security, saying that when P. came he would pay it. Another came on in the same way and J. paid that draft also. The carrier then delivered the corn to P.'s teamsters, who put it in a storehouse, from which they began to draw it to P.'s warehouse. After the corn had been delivered to the teamsters and put in the storehouse, J. learned of it but made no objection to P. or his agents and gave no notice to the carrier. Some days later P. failed, not having paid the drafts, and J. sued the carrier for the amounts. It was held that the carrier was liable, and that J.'s failure to notify the carrier of his claim was no defense, since, while it might have been a neighborly act, he was under no legal obligation to do so, as the delivery was complete before he learned of it.26

25. Newcomb v. The Railroad,

26. Joslyn v. Grand Trunk R'y,

115 Mass. 230; Alderman v. The 51 Vt. 92. Railroad, id. 223.

Sec. 192. (§ 133a.) Effect of custom on delivery without surrender of bill of lading.-A custom prevailing at the place of delivery, where both the consignee and the holder of a draft with the bill of lading attached reside, to deliver without the production of the bill of lading goods billed "straight," i. e., consigned to the consignee direct, will exonerate the carrier who delivers in accordance with such a custom.27 But a local custom to such effect cannot avail against a consignor residing elsewhere, and who had no knowledge of it.28 And where, by a long course of dealing between the consignee and the holder of the draft with the bill of lading attached, the consignee has been permittd to exercise dominion over the goods while in the hands of the carrier and to direct their delivery, the carrier, in the absence of notice that the bill of lading is being held as security for the purchase price of the goods, will be justified in making delivery without requiring the bill of lading to be produced.29 But a custom prevailing at the place of delivery to deliver without the production of the bill of lading cannot prevail in the face of a statute prohibiting the carrier from delivery except upon surrender of the bill of lading, unless it has the words "not negotiable" plainly written or stamped upon its face.30

Sec. 193. (§ 134.) When consignment may be changed by shipper. When there has been no agreement to ship the goods which will make the delivery of them to the carrier a delivery to the consignee, and vest the property in him, the shipper may, even after the delivery to the carrier and after the bill of lading has been signed and delivered, or after the goods have passed from the possession of the initial carrier into that of a succeeding one,31 alter their destination and direct their delivery to another consignee, unless the bill of lading has been forwarded

27. Forbes v. Railroad Co., 133 Mass. 154. See also, Bernstein v. Railroad Co., 88 N. Y. Supp. 971. 28. Weyland v. Railway Co., 75 Iowa, 573.

ville v. Railroad Co., 163 Penn. St. 467, 30 Atl. Rep. 228.

30. Colgate v. Pennsylvania Co., 102 N. Y. 120.

31. Sutherland v. Bank, 78 Ky.

29. National Bank of Phoenix- 250.