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title in him. Though by the execution and delivery of the bill of lading the consignee obtains a contingent or qualified interest in the shipment, which neither the carrier nor the shipper, except under certain circumstances, can divest, yet, as a rule, the consignee's title is not complete until the bill of lading comes into his hands.' Where the consignment is attended by other circumstances, which in connection with it clearly evince an intention to pass the title, the fact that the consignee has not received the bill of lading cannot, of course, defeat his title, or confer title upon one in whose favor the consignor, subsequently to its original delivery, alters it. The title of the consignee in such a case however exists not by virtue of the bare consignment, but by virtue of other elements of the case constituting a complete delivery.

§ 480. Before the consignment can in any event be regarded as vesting title in the consignee, it must be accepted by the latter. Where he has not accepted it and disclaims any interest in it, the court will hold the title to be revested in the consignor. In accordance with the same principle, where the bill is indorsed in blank and sent to the consignee with authority to fill up the blank, the consignment can vest property in no one until the blank is filled. Where a shipment is to be sold on joint account of the consignee and shipper, or of the former alone at his option, the property does not vest in the consignee until he so elects under his option. If the consignment be rejected, the consignee has no interest thereunder which will enable him to maintain a subsequently acquired possession of

ib. 42; Bank of Rochester v. Jones, 4 N. Y. 497; First Nat. Bk. of Cairo v. Crocker, 111 Mass. 163; Taylor v. Turner, 87 Ill. 296; Hall v. Ship Chieftain, 9 La. 318; Hepburn v. Lee, 14 ib. 76.

1 Bruce v. Andrews, 36 Mo. 593; Hausman v. Nye, 62 Ind. 485; Woodruff v. Nashville, etc., Co., 2 Head (Tenn.), 87; Saunders v. Bartlett, 12 Heiskill (Tenn.), 316; Oliver v. Moore, ib. 482.

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the goods. So where a conditional shipment is made; e. g., where the property is to pass upon the consignee's acceptance or payment of a draft, the consignee has no title until the condition is performed.

§ 481. As between the shipper and the carrier, there is nothing final or irrevocable in that part of the bill which designates the destination of the goods and the former may change the destination at any time before the bill of lading or the goods themselves are delivered to the consignee. As between the shipper and the consignee, that part of the bill which designates the party to whom the goods are to be delivered is prima facie evidence of an intention to confer title upon the latter, but the mere filling of the bill with his name cannot necessarily constitute him the vendee. The consignment is not an invariable equivalent of delivery. Whether or not it was intended to operate as such is a question of intention and that intention must be deduced from a consideration of all the circumstances of each case. No general rule can be laid down by which the question can in all cases be determined. The leading approximate rules of construction which are warranted by the cases are set forth in the following sections.

§ 482. It is strong prima facie evidence of the vendor's intention to reserve to himself the jus disponendi and prevent title to the goods shipped from passing to the vendee, that the bill of lading is made deliverable to the order of the vendor.2 Thus in Ellershaw v. Magniac, the plaintiff, a merchant at Leeds, contracted with a firm carrying on business at London and Odessa, for the purchase of a quantity of linseed and the Odessa partner drew upon the plaintiff bills of exchange for the price. A vessel chartered by the plaintiff proceeded to Odessa to take the linseed on board. The Odessa partner wrote to the London partner, "With regard to your sales of linseed, Mr.

1 Brandt v. Bowlby, 2 B. & Ad. 224; Security Bank v. Luttgen, 29

932.

2 Mason v. Great Western R. R. Co., 31 Up. Can. Q. B. 73; Alderman v. Eastern R. R. Co., 115 Mass. 233; Stollenwerck v. Thacher, ib.

Minn. 363; Peoples' Nat. Bank v.
Stewart, 3 Pugs. & Bur. (New Bruns-
wick), 268; Jenkyns v. Brown, 14
Q. B. 496.

3 6 Ex. 569.

Ellershaw [the plaintiff] will receive a part by The Woodhouse" [the vessel chartered by the plaintiff]. A portion of the linseed was shipped by the vessel and the Odessa partner obtained from the master a bill of lading making it deliverable "unto order or assigns." The Odessa partner, being in difficulties, indorsed the bill of lading for value to a third party. The court held that there was no such delivery of the goods as to vest the right of possession or property in the plaintiff, the circumstance of the shippers making the linseed deliverable to order by the bill of lading clearly showing the intention to preserve the right of property and possession in themselves until they had made an assignment of the bill to some other party. The original intention of delivering the goods to Ellershaw was thus not exercised.

§ 483. In Ogg v. Shuter, the plaintiffs had entered into a contract with a French merchant for the purchase of twenty tons of potatoes at a certain price, deliverable in the course of the current month free on board of a ship at Dunkirk, payment to be by cash against a bill of lading, a part payment of £30 to be made in earnest of the bargain. The part payment was made and the potatoes shipped at Dunkirk by the vendor's agent and in sacks sent over for the purpose by the plaintiffs. The bill of lading made the goods deliverable to the vendors' order. The defendant, an agent of the vendor to whom the bill of lading had been indorsed, presented to the plaintiff's, upon the cargo's arrival in London, the vendor's draft for acceptance with the bill of lading indorsed by the defendant, annexed to it. The plaintiffs supposing that the shipment was short, refused to accept, but wrote to the defendant giving him notice that the potatoes were their property and that if he parted with them to anybody else, he would be held responsible. The defendant afterwards sold the goods. The court of common pleas held that the contract to deliver "free on board," the part payment of the price and the shipping of the potatoes in the plaintiffs' own sacks over-balanced the presumption of the vendor's reservation of the jus disponendi arising from the expression "cash against bill of lading" and the drawing of the

1 L. R. 1 C. P. Div. 47.

bill to the vendor's order. Judgment was given for the plaintiff. This was reversed by the Court of Appeal, the court saying, "We think this much is clear, that where the shipper takes and keeps in his own or his agent's hands a bill of lading in this form to protect himself, this is effectual so far as to preserve to him a hold over the goods until the bill of lading is handed over on the conditions being fulfilled, or at least until the consignee is ready and willing and offers to fulfil these conditions and demands the bill of lading."

The court held that the taking and holding of a bill drawn in such form constitutes not merely a reservation of the vendor's lien, but reserves a right of disposing of the goods so long at least as the vendee continues in default.

§ 484. The same construction applies where the goods are made deliverable to an agent of the consignor. Thus, in The St. Jose Indiano' the vessel was captured and most of the cargo condemned as the property of an enemy. Lizaur, of Rio Janiero, to which port the vessel was bound when captured, claimed restitution. The captors, however, claimed that the property was at the risk of the shipper, D. B. & Co., who were enemies. Although the bill of lading did not specify to whose order the property was deliverable, the invoice was headed "consigned to Messrs. D. B. & F., by order and for account of J. Lizaur." In a letter accompanying the invoice and bill of lading the consignors wrote: "For Mr. Lizaur, we open an account, etc. We cannot yet ascertain the proceeds of his hides, etc., but find his order for goods will exceed the amount of these shipments; therefore we consign the whole to you, that you may come to a proper understanding with him." The court held that Lizaur had no claim, the delivery to the master being not for his use, but for the consignee, a house composed of the same persons as the shippers and acting as their agents. "It is apparent from the letter that the shippers meant to reserve to themselves and to their agents, in relation to the shipment, all those powers which ownership gives over property."

1 Dows v. Nat. Exchange Bank,

1 Otto, 618; The St. Jose Indiano, 1 Wheat. 208.

2 1 Ib.

"In general the rules of the prize court as to the vesting of property are

485. Where a bill of lading drawn to the order of the consignor is assigned to one who discounts a draft drawn against the goods, the presumption drawn from the form of the instrument may be regarded as well-nigh strengthened to conclusiveness. Such a transaction clearly implies an intention on the part of the consignor that no title to the goods shall pass to the vendee until he has accepted, or paid, the draft drawn against him for their price. Title does not vest in the consignee in such a case until he has complied with the condition. The mere fact however that the bill of lading, with a blank indorsement, is attached to a sight draft and sent by the vendors to a bank as their agent to collect the one and deliver the other, does not constitute in itself a conclusive presumption that the vendors intended to thereby retain title in themselves. Where the other circumstances of the case and the previous course of dealing between the parties indicate an intention to pass the title, such a retention of the bill will be held to be a retention of possession by the vendor merely as the vendee's bailee or agent, the goods being during such agency at the vendee's risk. It is important to notice that, if it is the intention of the consignor that title shall pass only upon the consignee's acceptance or payment of drafts drawn against the goods, such intention must be manifested by the form of the bill and by the consignor's retention of its possession through his agent. Although it may be the shipper's expectation and intention that the goods shall be specifically appropriated to take up bills drawn by him against the consignee the proceeds of which have been used for the purchase of the goods, the property will nevertheless vest absolutely in the consignee if the shipper mails to the latter a bill of lading of the goods deliverable to the consignee's order. Thus in Ex parte Bonmar,3 Christiansen Banner

the same with those of the common law," ib. 212.

Dows v. National Exchange Bank, 1 Otto, 618; Alderman v. Eastern R. Co. 110 Mass. 233; Stollenwerck v. Thacher, ib. 224; Security Bank v. Suttgen, 29 Minn. 363; Jenkyns v. Brown, 14 Q. B. 496; Mason v. Great

Western R. Co., 31 Up. Can. Q. B. 73; People's Nat. Bank v. Stewart, 3 P. & B. (New Brunswick) 268.

2 Hobart ". Littlefield, 13 R. I. 341. In this case the form of the bill of lading does not appear. 3 L. R. 2 Ch. 278.

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