National Bank of D. O. Mills & Co. v. Porter

California Supreme Court Sep 24, 1887 No. No. 11036Published

Before: Belcher, Boss, Foote, McKinstry, Myrick, Searls

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Holding. The court held that a factor's lien for a general balance of account does not attach to goods shipped to the factor where the consignor did not own the goods at the time of shipment and did not ship them with the intent to transfer title or satisfy the agreement for advances.

Issues

Whether a factor acquires a lien on goods for a general balance of account when the goods are shipped in the consignor's name but are owned by a third party.
Whether the delivery of goods to a carrier under a bill of lading creates a lien in favor of a consignee absent an intent to transfer the property to satisfy a debt.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is largely a question of intention.”

“Here it does not appear that the car-load of grapes in question was shipped by Brewer & Co. in pursuance of their alleged agreement with defendants, nor that the delivery was made with the intent to transfer the property to them.”

“Upon this state of facts, we think it clear that defendants did not acquire a lien upon the property for the balance due them by Brewer & Co.”

Synopsis

Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.

In October, 1883, Brewer & Co. sold to Cooke and Son, the assignors of the plaintiff, a car-load of grapes, which were not then on hand, but which were procured in a few days, and which Cooke then asked .to be shipped to the defendants for sale. The goods were shipped accordingly by rail to the defendants in Chicago, in the name of Brewer & Co., because that firm had a yearly guaranty with the railroad company exempting them from paying freight in advance on shipments of fruit. As soon as the bill of lading was Issued, both the original and the duplicate were assigned to Cooke and Son, who advised the defendants by letter of the shipment. With the same train on which the grapes were sent, a letter was forwarded to the defendants, informing them that the fruit belonged to Cooke and Son. The bill of lading, when received by the defendants, bore the indorsement of the assignment of Brewer & Go. The defendants received the goods, and sold them, and after paying the charges thereon, refused to pay over the balance, claiming to be entitled to apply it to a general balance due them from Brewer & Co. The defendants did not make any specific advance on the shipment in question. The further facts are stated in the opinions.

Belcher, C. C. When this case was before Department One of this court, it was, in our opinion, rightly decided. The law applicable to the facts appearing in the record was correctly stated, and little more need now be added.

It is urged for the appellants that the facts as stated in the opinion are at variance with those stated in the complaint, and that by not looking at the homplaint the court was led into error. The allegation in the complaint which is referred to is to the effect that Brewer & Co., being the owners of the car-load of grapes in question, on the third day of October, 1883, shipped the same by [432]railroad from Sacramento to Chicago, to be there sold by the defendants as commission merchants, and the proceeds to be accounted for to the owners of the fruit; that Brewer & Co. then and there received from the railroad company a bill of lading, and on the same day assigned the grapes to Cook and Son, by writing on the bill of lading an assignment, which is set out, and by delivering such bill of lading to Cook and Son. It is claimed that under this averment there can be no question that Brewer & Co. owned the grapes when they were shipped, and that if there was an agreement between the parties, either express or to be implied from their acts and course of dealing, that the consignees should have a lien upon the grapes for any general balance due them, then their lien attached the moment the grapes were delivered to the railroad company to be shipped, and that lien could not afterwards be divested by any act of the consignors. In support of this position the principal cases relied upon are Valle v. Cerre’s Adm’r, 36 Mo. 588, and Bailey v. H. R. R. R. Co., 49 N. Y. 75, 76.

In the first-named case it is said: “Whether or not the given consignment is to be considered as made to cover a general balance of account will depend upon the special arrangements, agreements, atid understanding of the parties; but where such an agreement exists, and the consignment is made in pursuance of it, and there is nothing else in the case which is inconsistent with the hypothesis, the case would be governed by the same principle, and a delivery to the carrier will be considered as a constructive delivery to the consignee. (Russell on Factors, 203; Clark v. Mauran, 3 Paige, 373; Bryans v. Nix, 4 Mees. & W. 791; Desha v. Pope, 6 Ala. 690; 3 Parsons on Contracts, 261, and note w.) In such case the shipment and delivery of the goods to the carrier, under the bill of lading, amounts to a specific appropriation of the property, with an intention that it shall be a security or a payment to the consignee for the advances he has made.”

National Bank of D. O. Mills & Co. v. Porter

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