Page:Harvard Law Review Volume 32.djvu/773

I I RECENT CASES 737 agreed to sell it to him. The plaintiff, believing in good faith that the goods were intended for him, paid a bill of exchange drawn on him, to which an order bill of lading was attached, and demanded the flour from the carrier. The consignor had, in the meantime, discovered his mistake and had induced the carrier to return the flour to him. The plaintiff sued the railroad company for conversion of the flour. Held, that he could not recover. Jones v. Chicago, B. &• Q. R. Co., 170N. W. 170 (Neb.). Generally, to-day, the bond fide purchaser of an order bill of lading acquires an indefeasible title to the goods, and the carrier may not deUver them to another. Munroe v. Philadelphia Warehouse Co., 75 Fed. 545; Commercial Bank V. Armsby, 120 Ga. 74, 47 S. E. 589; Uniform Sales Act, §§ 33, 38. But see Adrian Knitting Co. v. Wabash Ry. Co., 145 Mich. 323, 108 N. W. 706. Cf. Shaw V. Railroad Co., loi U. S. 557, 565. The question in the principal case is whether the plaintiff is in fact the purchaser of the bill of lading and of the goods. Here, as everywhere in contractual law, it is expressed, not secret, intention that is considered. Mansfield v. Hodgdon, 147 Mass. 304, 17 N. E. 544; Wood V. Allen, in Iowa, 97, 82 N. W. 451. See Williston, Sales, § 5. By sending forward the bill of exchange with bill of lading attached, the con- signor unequivocally expressed an intention to sell the flour to the plaintiff. Evans v. Marlett, i Ld. Raym. 271; Wigton v. Bowley, 130 Mass. 252. The plaintiff, in good faith, so understood the consignor's intention and acted on it, completing the sale. Moreover, if actual and not expressed intention were considered, the consignor, although he also intended to sell to one to whom he was under contractual obligations, primarily intended to sell to the person to whom he consigned the goods. It is this primary intention that must control. Edmunds v. Merchants' Transportation Co., 135 Mass. 283. Cf. Cundy v. Lindsay, 3 A. C. 459. See Williston, Sales, § 635. The principal case, therefore, cannot be supported. War Aliens — Status of Alien Enemies in the Courts of a Belliger- ent. — In a tort action, it appeared at the trial that the plaintiff was an alien enemy, a subject of Germany, but resident in the United States and not in internment. The trial court nonsuited the plaintiff. Held, that the nonsuit was improper. HeUer v. Goodman's Motor Express Van &* Storage Co., 105 Atl. 233 (N. J. L.). It is uniformly held that an alien enemy resident in the hostile territory cannot maintain an action as plaintiff. Brandon v. Nesbit, 6 T. R. 23 ; Le Bret v. Papillon, 4 East, 502; Rothbarth v. Herzfeld, 179 App. Div. 865, 167 N. Y. Supp. 199. The modern basis for these decisions — that to allow a recovery in such a case would by so much diminish the resources of the home country and strengthen the enemy country — has no application where the plaintiff resides in the home territory. See Hepburn's Case, 3 Bland, Ch. (Md.) 95, 120; Janson v. Driefontien, [1902] A. C. 484, 505; Porter v. Freudenberg, [191 5] I K. B. 857, 868. Further, the common-law rule allowed an enemy subject resident in the home territory to sue on the theory that, by permitting him to remain a resident, the sovereign took him under his protection. Wells v. Williams, i Ld. Raym. 282; Clarke v. Morey, 10 Johns. (N. Y.) 69. The same principles have been recognized in our courts and the courts of England and Canada during the present war. Topay v. Crow's Nest Pass Coal Co., 29 West, L. R. 555 (Canada); Princess Thurn 6* Taxis v. Mofett, [1915] i Ch. 58; Arndt- Ober V. Metropolitan Opera Co., 182 App. Div. 513, 169 N. Y. Supp. 944. See 28 Harv. L. Rev. 312. See also 31 Harv. L. Rev. 470. One difference shoxfld be noted between the English and the American cases. England, applying the common-law rule, allows an enemy subject, even though he has been interned as a civilian prisoner of war, to maintain an action. Schafenius v. Goldberg, [1916] i K. B. 284. Cf. Sparenburg v. Bannatyne, i Bos. & P. 163.