Ramish v. Kirschbraun & Sons

Henshaw, J. Appeals from the judgment and from the order denying a new trial. The facts of the case will he found stated in the opinions of this court ren[661]dered upon former appeals. (Ramish v. Kirschbraun, 90 Cal. 581; 98 Cal. 676.)

The evidence warranted the jury in believing, as from the verdict it will be presumed it did believe, that the carload of eggs was sold by defendants to plaintiff, to be delivered to the latter in Los Angeles in due course of freight transportation from either Omaha, Nebraska, or some point of shipment in Iowa. By agreement, also, the bill of lading made to defendants as consignees, and by them indorsed to plaintiff, was to be sent with a sight draft to the Southern California National Bank at Los Angeles, by which it was to be delivered to plaintiff upon his payment there of the price of the eggs. Under these circumstances there was no transfer of the title to the eggs before the bill of lading was received at the bank for delivery. (Reynolds v. Scott (Cal., July 18, 1884), 4 Pac. Rep. 346; Erwin v. Harris, 87 Ga. 333; Kelsea v. Ramsey etc. Mfg. Co., 55 N. J. L. 320; Dows v. National Exch. Bank, 91 U. S. 618; Brandt v. Bowlby, 2 Barn. & Adol. 932; Newcomb v. Boston etc. R. R. Corp., 115 Mass. 230.)

The eggs arrived at 7 p. M. of July 9th, and would then have been delivered to plaintiff upon presentation of the bill of lading, though, in ordinary course of business, delivery would have been made the following day; but the bill of lading had not arrived. There had been negligent delay by defendants in mailing it from Omaha. Forwarded from the shipping point in Iowa it reached them in Omaha upon July 3d, but too late to be remailed on that day with the sight draft, which defendants first discounted at a local bank. It could have been mailed at that time with an order for payment merely. The following day was a holiday. Upon the next the matter was neglected, and upon July 6th the bill, with the draft, was forwarded. Defendants contend that, despite their failure to forward the bill as expeditiously as they might, nevertheless, they put it in the postoffice upon July 6th, when, in the ordinary course of the mail (four days between Omaha and Los [662]Angeles), it should have reached the bank, and, constructively, plaintiff, upon July 10th, the day when the car was ready for delivery, and that therefore they had used due diligence. But, considering the nature of the goods shipped, the market conditions, the original delay of defendants, the fact that defendants’ agent—the bank—if it received the bill upon July 12th, yet, seemingly, through dereliction, did not have it ready for delivery until the 14th, sufficient was shown to warrant the submission of the question of negligence to the jury under proper instructions. And the jury was properly instructed. The instructions, the refusal to give which is complained of, were one and all embraced in those actually given, ,in so far as they were proper to give at all. The fact that, under agreement with the railroad, the plaintiff, who was a truckman, was allowed to take freight of consignees in advance of presentation of the waybill—the railroad being protected by a bond —did not make it incumbent on him so to obtain possession of the eggs. He was under no obligation to put himself or his bondsmen in jeopardy in the matter, and it was his right to stand upon the terms of his contract. By those terms delivery of the waybill was to be made to him through the bank upon his payment of the price, and it was the understanding of the parties that the delivery of the eggs should be had in the manner indicated.