Page:Federal Reporter, 1st Series, Volume 9.djvu/144

EOBINSON V. MEMPHIS & CHAELESTON B. 00. 129 �TiOBiNsoN, McLeod & Co. V. Memphis & Chaeleston E. Co. �■ {.Circuit Court, W. D. Tennessee, E. D. Octoter 24, 1881.) �1. Fbaodtjlent Bill ov Ladino— Common Cabbibb— Nbootiable Insteu- �MBNTB— Collateral 8ec0bity— Factob's Advakceb— Innocent Holdeb— EsTOPPEL— Principal and Agent. �The freight agent of a railroad company, by the procurement of a cotton buj-er, signed a bill of lading for 32 baies of cotton which were not on hand, and were never delivered to the railroad company or any agent for it. The plaintifEs paid a draft for the price of the cotton on the faith of the bill of lading attached to it and indorsed to them, and never having received the cotton sued the railroad company for its non-delivery. Eeld, that the carrier was not estopped to show that no cotton was in faot delivered for transporta- tion ; that the agent had no authority, real or apparent, to sign a receipt or .bill of lading until actual delivery of the cotton, and the company was not liable. �2. Same Subject—Custom— Commercial Ubage. �Neilher a general nor local custom to use bills of lading as collateral security for drafts drawn against the raerchandise can alter the raies of law gov- erning the contract of the parties. This use of bills of lading is one in which the carrier has no interest, and he cannot be charged with an extraordinary liability deh&rs the contract for -which he receives no compensation or indem- nity, inerely to assure other parties against loss by the fraudaient dealings of those who so use them. It is not in the interest of commerce to impose this liability upon the common carriers of the country. �3. Same Subject— Plbading — Actions — Who May Sue— Indorsee — Tennessee �Code, } 1967. �The indorsee of a bill of lading for value may not only sue for the goods, but he may, in his own name, sue the carrier for non-delivery. Bills of lading are quasi negotiable to that extent, and particularly so under the Tennessee Code, § 1967. �On Demurrer. �"^laintifi's declaration, in its flrst connt, claims damages for a failure to deiiver in the city of New York 32 baies of cotton which the defendant cor- poration undertook to deiiver by its bill of lading. The second count declares upon the special facts, which are stated to be that — �" The plaintiffs are and were engaged in a general cotton commercial business in the city of New York; that one J. S. Chiles was a cotton buyer residing in the city of Jackson, Tennessee ; that the defendant was a common carrier by land, with an office or agency in said city of Jackson ; that the means by which cotton was shipped from Jackson to the markets of the eastern cities for sale was by the advancement of money to the cotton buyer in Jackson by the plaintiffs and other merchants engaged in like business; that the usual and customary mode of obtaining such advancements was by drafts drawn by the shippers of cotton for the value of the cotton shipped ; that the usual and cus- tomary mode of securing such advances was by obtaining and procuring bills of lading from the defendant and other common carriers by land for the cot- ton so shipped; that it was the usual and customary mode and manner of the defp.ndant and other common carriers to execute and issue bills of lading, by v.9,no.3— 9 ��� �