[ 512] (b) Actions ex Delicto. Where the consignor, although he has made the contract of shipment, has no general or special interest in the property, he cannot maintain an action in tort for loss or injury to the property;94 and this is so, although he may have the right of stoppage in transitu.95

[§ 513] (3) Married Woman as Consignor. Where a married woman delivers to a carrier for transportation property which belongs to her exclusively and separately, an action for loss or injury thereto may be maintained in her name.96 But there is a conflict of opinion as to whether she has a right to maintain such action where the property concerned is not her separate property."

97

Right to sue; how question raised. If any doubt exists as to a married woman's right to sue for loss of her own property, delivered by her to carrier for transportation, the question of her right to sue cannot be raised by motion to exclude her

Wis.-Hooper v. Chicago, etc., R. Co., 27 Wis. 81, 9 AmR 439.

[a] Presumption as to consent of consignee. It will be presumed, in the absence of a showing to the contrary, that the suit was commenced and prosecuted with the knowledge and consent of the consignee entitled to the benefit of the recovery. ern Express Co. v. Craft, 49 Miss. 480, 19 AmR 4.

South

92. See cases supra note 91. 93. Carter v. Southern R. Co., 111 Ga. 38, 36 SE 308, 50 LRA 354.

94. U. S.-Whittenton Mfg. Co. v. Memphis, etc., Packet Co., 21 Fed. 896. Ill-Egerton V. Chicago, etc., R. Co., 240 Ill. 311, 88 NE 808.

Mo.-Bennett v. Chicago, etc., R. Co., 151 Mo. A. 293, 131 SW 770; Central American SS. Co. v. Mobile, etc., R. Co., 144 Mo. A. 43, 128 SW 822.

Mont.-Wetzel v. Power, 5 Mont. 214. 2 P 338.

Tenn.-Carter v. Graves, 9 Yerg.

446.

95. Northern Pac. R. Co. v. Lewis, 89 Ill. A. 30.

96. Hawkins v. Providence, etc.. R. Co., 119 Mass. 596, 20 AmR 353. See generally Husband and Wife [21 Cyc 1512].

97. See cases infra this note; and generally Husband and Wife [21 Cyc 1512 et seq].

of

[a] In Illinois the question absolute or legal ownership is regarded as immaterial. The fact that she is bailor and consignor is deemed sufficient to sustain the action. Chicago, etc., R. Co. v. Shea, 66 Ill. 471; Great Western R. Co. v. McComas, 33 Ill. 185.

[b] In Massachusetts this right is denied. Hawkins v. Providence, etc., R. Co., 119 Mass. 596, 20 AmR 353 (where it was held that personal apparel furnished by a husband to his wife, or purchased by the wife with her husband's consent, with money given her by him from a fund formed by their joint earnings, remains the property of the husband, and that the wife cannot maintain an action against the carrier for the loss thereof).

98. Quarrier v. Baltimore, etc., R. Co., 20 W. Va. 424.

99. See infra $$ 515-521.

1. U. S. Express Co. v. Keefer, 59 Ind. 263; and supra § 399.

2. U. S. Express Co. v. Keefer, 59 Ind. 263.

3. Grinnell-Collins Co. v. Illinois Cent. R. Co., 109 Minn. 513, 124 NW 377, 26 LRANS 437; Bromschwig Tailors' Trimming Co. v. Missouri. etc., R. Co., 165 Mo. A. 350, 147 SW 175; Texas Cent. R. Co. v. Dorsey. 30 Tex. Civ. A. 377, 70 SW 575. And

see supra § 368.

evidence in which it appears that she is a married woman, but must be raised by a plea."

99

[§ 514] (4) Where Goods Are Shipped C. O. D. While the general rule is that actions against a common carrier for the loss of goods must be brought in the name of the consignee, where the goods are shipped, marked "C. O. D.," the contract of the common carrier is not only to safely carry and deliver the goods to the consignee, but also to "collect on delivery," and return to the consignor the charges on the goods, and the consignor may sue on such contract, where neither the goods nor the charges thereon are returned to him.2

[515] c. Consignee (1) In General. In general, the presumption is that title to the goods passes to the consignee on delivery to the carrier;" and he is considered the person prima facie entitled to sue for loss or injury to goods shipped,* although the contract of affreightment was made with the consignor. The action may be either ex delicto or ex contractu,' the contract of shipment being presumed to have been made for the con

4. U. S.-Lawrence v. Minturn, 17 How. 100, 15 L. ed. 58: The Geiser. 19 Fed. 877; Blum v. The Caddo, 3 F. Cas. No. 1,573, 1 Woods 64; Hall v. Nashville, etc., R. Co., 11 F. Cas. No. 5,940.

Ala.-Mouton v. Louisville, etc., R. Co., 128 Ala. 537, 29 S 602; Capehart v. Furman Farm Impr. Co., 103 Ala. 671. 16 S 627, 49 AmSR 60: Robinson v. Poque, 86 Ala. 257, 5 S 685; South, etc., Alabama R. Co. v. Wood, 72 Ala. 451; Southern Express Co. v. Caperton, 44 Ala. 101, 4 AmR 118.

Cal.-Scammon v. Wells, 84 Cal.
311, 24 P 284; Glidden v. Lucas, 7
Cal. 26; Webb v. Winter, 1 Cal. 417.

Conn. Miner v. Norwich, etc., R.
Co., 32 Conn. 91; Moseley v. Lord, 2
Conn. 389.

Ga.-Southern R. Co. v. Miko, 136
Ga. 272, 71 SE 241, 36 LRANS 68.
Ill-Merchants' Despatch Co.

Smith, 76 Ill. 542.

V.

Ind.-Pennsylvania Co. v. Poor, 103 Ind. 553, 3 NE 253; Pennsylvania Co. v. Holderman, 69 Ind. 18; Madison, etc., R. Co. v. Whitesel, 11 Ind. 55.

Iowa.-Irwin Bank V. American
Express Co., 127 Iowa 1, 3, 102 NW
107 [eit Cycl: Robinson V. Mer-
chants' Despatch Transp. Co., 45
Iowa 470; Angle v. Mississippi, etc.,
R. Co., 9 Iowa 487.

Kan. Clute V. Chicago, etc.. R.
Co., 83 Kan. 333, 334, 111 P 431, 30
LRANS 1071 [cit Cyc].

Ky. Smith v. Lewis, 3 B. Mon.
229; Adams Express Co. v. Tingle,
10 KyL 358.

La.-The Red River, 106 La. 42, 30
S 303, 87 AmSR 293.

Mass.-Frank v. Hoey, 128 Mass.
263: Upton V. Sturbridge Cotton
Mills, 111 Mass. 446.

Minn. Dyer v. Great Northern R.
Co., 51 Minn. 345, 53 NW 714, 38 Am
SR 506; McCauley v. Davidson, 13
Minn. 162.

Mo.-Kirkpatrick v. Kansas City,
etc., R. Co., 86 Mo. 341; Burriss v.
Missouri Pac. R. Co., 105 Mo. A. 659,
78 SW 1042.

N. Y.-Thompson V. Fargo, 49 N. Y 188, 44 How Pr 176, 10 AmR 342; Krulder v. Ellison, 47 N. Y. 36, 7 AmR 402; Price v. Powell, 3 N. Y. 322; White v. Schweitzer, 147 App. Div. 544, 132 NYS 644 [rearg den 149 App. Div. 954, 133 NYS 11491: Green v. Clark, 13 Barb. 57 [aff 12 N. Y. 343].

Oh. Straus v. Wessel, 30 Oh. St.
211.

Pa. Arbuckle
V. Thompson, 37
Pa. 170; Decan v. Shipper, 35 Pa. 239,
78 AmD 334: Griffith v. Ingledew, 6
Serg. & R. 429, 9 AmD 444.

S. D.-Hess v. South Dakota Cent.

5

R. Co., 30 S. D. 538, 542, 139 NW 334 [cit Cyc].

Tenn.-East Tennessee, etc.. R. Co. v. Nelson, 1 Coldw. 272; W. & A. R. Co. v. Kelly, 1 Head 158.

Tex.-East Line, etc., R. Co. V.
Hall, 64 Tex. 615; Texas, etc., R. Co.
v. Turner, (Civ. A.) 97 SW 509.
Vt.-Strong v. Dodds, 47 Vt. 348.

W.

Va.-Williamsport Hardwood Lumber Co. v. Baltimore, etc., R. Co., 71 W. Va. 741, 77 SE 333.

Wis.-Congar v. Galena, etc., R. Co., 17 Wis. 477.

Eng. Dutton v. Solomonson, 3 B. & P. 582, 127 Reprint 314: Gurney v. Behrend, 3 E. & B. 622, 77 ECL 622, 118 Reprint 1275; Evans v. Marlett. 1 Ld. Raym. 271, 91 Reprint 1078; Dawes v. Peck, 8 T. R. 330, 101 Reprint 1417.

Man. Young v. Canadian Pac. R. Co., 1 Man. 205.

Ont.--Hately v. Merchants' Despatch Co.. 2 Ont. 385.

5. Henry J. Perkins Co. v. American Express Co., 199 Mass. 561, 85 NE 895; Burriss v. Missouri Pac. R. Co.. 105 Mo. A. 659, 78 SW 1042.

6. U. S.-The Geiser, 19 Fed. 877; Hall v. Nashville, etc., R. Co., 11 F. Cas. No. 5,940, 3 AmLTRep 79.

Ala. South., etc., Alabama R. Co. v. Wood. 72 Ala. 451.

Cal.-Webb v. Winter, 1 Cal. 417.

Ind.-Madison, etc., R. Co. V.

Whitesel. 11 Ind. 55.

Ky. Adams Express Co. v. Tingle, 10 KyL 358. Co. V.

Mass.-Henry J. Perkins American Express Co., 199 Mass. 561, 85 NE 895.

Mo.-Kirkpatrick v. Kansas City, etc.. R. Co., 86 Mo. 341; Burriss v. Missouri Pac. R. Co., 105 Mo. A. 659, 78 SW 1042.

N. Y.-Price v. Powell, 3 N. Y. 322.
Pa.-Arbuckle v. Thompson, 37 Pa.

170.

Eng. Dutton v. Solomonson, 3 B. & P. 582, 127 Reprint 314.

7. Ala.-Mauton v. Louisville, etc., R. Co., 128 Ala. 537. 29 S 602.

Ind.-Pennsylvania Co. V. Poor, 103 Ind. 553, 3 NE 253.

V.

Ky. Smith v. Lewis, 3 B. Mon. 229. Mass.-Henry J. Perkins Co. American Express Co., 199 Mass. 561, 85 NE 895.

N. Y.-Green v. Clark, 13 Barb. 57 [aff 12 N. Y. 343].

Pa.-Griffith v. Ingledew, 6 Serg. & R. 429, 9 AmD 444.

[a] Under the Georgia code the consignee cannot sue on a contract of shipment made by the consignor where the bill of lading was not assigned or indorsed to the consignee. Haas v. Kansas City, etc., R. Co., 81 Ga. 792, 7 SE 629.

the place of destination, the consignee may nevertheless sue for failure to deliver, if he holds bills of lading therefor and has paid drafts for the cost.13

Drafts drawn on general account. It has been held, however, that if the drafts paid are drawn on a general account, and not on any specific consignment, the consignee has no such interest as will entitle him to sue.14

[§ 517] (3) Consignee as Owner. Of course, where the consignee is the actual owner of goods shipped, he may sue for loss or injury;15 and it makes no difference to his right of action that he has not paid for the goods." So there are quite a number of cases in which the right of the shipper to sue by virtue of the contract is ignored, and the consignee is held the only party entitled to sue, where the entire property in the consignment is vested in him.17 Here even the consignor's right

[a] When title vests in con[a] Title does not necessarily signee.-Where goods bought and pass where goods are shipped and a paid for were delivered to a railroad bill of lading is taken out in the company whose bill of lading was name of the consignee and forwarded. executed to the vendor, acknowledgThe title to the goods is not therebying a receipt of the goods to be con

of stoppage in transitu is not considered as affecting the question of parties, and the consignor, in making the contract of affreightment, is deemed merely an agent of the consignee, although the latter may be a stranger to the carrier.18 However, as heretofore shown, the decided weight of authority is squarely opposed to this view."

19

[§ 518] (4) Where Consignee Has Made Advances. Where a consignee has made advances on a consignment, he has a lien thereon paramount to all others,20 and may maintain an action in his own name against the carrier for loss or injury thereto.21

[§ 519] (5) Where Consignee Directs Mode of Shipment. Where a consignee orders goods of the consignor, to be forwarded over a designated route or by a particular mode of conveyance, the title passes to him on delivery to the carrier,22 and he is the proper party to sue for loss or injury to the goods.23 Indeed it has been held that, if the consignee orders goods to be sent by a carrier, even though he names no particular carrier, the carrier (Potter v. Lansing, 1 Johns. (N. Y.) 215, 3 AmD 310).

[b] Where goods consigned to independent buyers under independent contracts with the same seller were loaded in a car and destroyed by fire, each buyer had a separate right of action, and the seller, aside from a possible right of stoppage in transitu, could not maintain an action in his name. Alabama Great Southern R. Co. v. H. Altman & Co., 191 Ala. 429, 67 S 589.

18. Krulder v. Ellison, 47 N. Y. 36, 7 AmR 402.

[a] Thus, where goods bought and paid for were delivered to a railway company whose bill of lading was executed to the vendor, acknowledging the receipt of the goods to be conveyed to the purchaser. It was held that the contract for transportation was, in legal effect, with the purchaser, and the company was liable to him for nondelivery of the goods. In such case the title vests in the purchaser, and the right of action against the carrier is in the purchaser himself. Gwyn v. Richmond, etc., R. Co., 85 N. C. 429, 39 AmR 708.

19. See supra § 511.

20. Burritt v. Rench, 4 F. Cas. No. 2,201, 4 McLean 325; and supra § 267 text and note 44.

21. U. S Burritt v. Rench, 4 F. Cas. No. 2.201, 4 McLean 325.

Mo.-Volle v. Cerre, 36 Mo. 588. N. Y.-Adams v. Bissell, 28 Barb. 382.

S. C.-Thomas v. Atlantic Coast Line R. Co., 85 S. C. 537, 64 SE 220, 67 SE 908, 34 LRANS 1177, 21 Ann Cas 223.

Eng. Bryans v. Nix, 4 M. & W. 775, 150 Reprint 1634. [a] Rule applied.-(1) Where the consignee of goods shipped on a railroad pays the draft drawn on him by the shipper and receives the bill of lading to which the draft is attached, and subsequently purchases the goods from the owner, he thereby becomes the real party in interest, under the code. Mo. Rev. St. § 3462. (2) And it makes no difference that the goods were destroyed before the absolute sale, as the property of the owner in them still continued and was the subject of transfer; and the transferee could maintain action for damages for their destruction on the ground of such transfer. Kirkpatrick v. Kansas City, etc., R. Co., 86 Mo. 341. (3) A corn merchant whose goods were loaded on board a vessel obtained receipts which stated that they were deliverable, to T's agent "in Dublin to John and T. Delany, in care for and to be shipped to the plaintiffs at Liverpool." Thereafter he indorsed the receipts to plaintiffs, and drew a bill on them for the

a

value of the goods, which plaintiffs
accepted and paid when due. It was
held that by virtue of such accept-
ance title vested in the plaintiffs,
and that they could maintain an ac-
tion in regard thereto. Bryans v.
Nix, 4 M. & W. 775, 789, 150 Reprint
1634. (4) One who was required by
carrier to pay freight on goods
represented in the bill of lading to
be of a specified quality, and who
was responsible for the goods, was
properly considered as consignee for
value, or as one who had incurred
liability as consignee, authorizing
him to sue for any shortage. Thomas
v. Atlantic Coast Line R. Co., 85 S.
C. 537, 64 SE 220, 67 SE 908, 34 LRA
NS 1177. 21 AnnCas 223.

22. Krulder v. Ellison, 47 N. Y.
36, 7 AmR 402; and cases infra note
23; supra §§ 87, 317.

23. Meigs v. Hagan, 86 Fed. 926; Krulder v. Ellison, 47 N. Y. 36, 7 AmR 402; Peo. v. Haynes, 14 Wend. (N. Y.) 546, 28 AmD 530; Vale v. Boyle, Cowp. 294, 98 Reprint 1094.

[a] Illustration.-N of Rochester
ordered goods of plaintiff in New
York, to be sent them "via canal."
The goods were delivered to defend-
ants, common carriers on the canal,
but they were lost on the way. It
was held that title to the goods
passed absolutely to the consignee,
subject to the right of stoppage in
transitu, and that N was the proper
party to sue for the loss. Krulder
v. Ellison, 47 N. Y. 36, 7 AmR 402.
24. U. S.-The Mary and Susan, 1
Wheat. 25. 4 L. ed. 27.

Ark.-Roberts Cotton Oil Co. V.
Grady, 105 Ark. 53, 150 SW 150.

Ga. Watkins v. Paine, 57 Ga. 50.
N. H.-Arnold v. Prout, 51 N. H.
587; Garland v. Lane, 46 N. H. 245;
Smith v. Smith. 27 N. H. 244; Wool-
sey v. Bailey, 27 N. H. 217.

Eng-Dutton v. Solomonson, 3 B. & P. 582, 127 Reprint_314; Cooke v. Ludlow, 2 B. & P. N. R. 119, 127 Reprint 569.

25. Gibson v. Inman Packet Co., 111 Ark. 521, 164 SW 280, AnnCas 1916A 1043; Garner v. St. Louis, etc., R. Co., 79 Ark. 353, 96 SW 187, 116 AmSR 83.

[a] Illustration. Thus the facts that the consignor, before delivering cotton to the carrier, contracted for a sale to the consignee, and that the draft for the price with bill of lading attached was paid before the cotton arrived did not prevent the consignor from suing for damages for its injury where the contract of sale required delivery to the purchaser "in merchantable shape." which was not done. Gibson v. Inman Packet Co.. 111 Ark. 521, 164 SW 280, AnnCas 1916A 1043.

26. Coats v. Chaplin, 3 Q. B. 483. 43 ECL 831, 114 Reprint 592 (where it

N. Y.-Thompson v. Fargo, 49 N.
Y. 188, 10 AmR 342, 63 N. Y. 479;
Green v. Clarke, 12 N. Y. 343.
Tenn.-Southern R. Co. v. Deakins,
107 Tenn. 522, 64 SW 477.

Tex.-Mexican Cent. R. Co. V.
Locke, (Civ. A.) 126 SW 296 [cit
Cycl.

28. U. S.-Grove v. Brien, 8 How. 492, 12 L. ed. 1142.

Ala.-Zimmern's Coal Co. v. Louisville, etc., R. Co., 6 Ala. A. 475, 60 S 598.

Ga.-Southern R. Co. v. Miko, 136
Ga. 272, 71 SE 241, 36 LRANS 68.
Ky.-Louisville, etc., R. Co. v. Ft.
Wayne Electric Co., 108 Ky. 113, 55
SW 918, 21 KyL 1544.

Minn.--Grinnell-Collins Co. v. Illinois Cent. R. Co., 109 Minn. 513, 124 NW 377. 26 LRANS 437.

Mo.-Nathan v. Missouri Pac. R. Co.. 135 Mo. A. 46, 115 SW 496.

N. Y.-Ogden v. Coddington, 2 E. D. Smith 317.

Tex. Cudahy Packing Co. v. Dorsey, 26 Tex. Civ. A. 484, 63 SW 548.

Eng. Sargent v. Morris, 3 B. & Ald. 277, 5 ECL 166, 106 Reprint 665; Coombs v. Bristol, etc., R. Co., 3 H. & N. 510, 157 Reprint 572.

[a] Thus, where a carrier has instructions not to deliver property to a consignee until a draft attached to the bill of lading has been paid, such property does not belong to the consignee until delivered, and hence he cannot maintain an action for juries to it while in the carrier's hands. Cudahy Packing Co. v. Dorsey, 26 Tex. Civ. A. 484, 63 SW 548.

in.

[b] Refusal to accept goods.Where a buyer refused to accept goods and reshipped them to the seller, he cannot recover for their loss in transit. Nathan v. Missouri Pac. R. Co., 135 Mo. A. 46, 115 SW 496.

[c] Where a consignee is mere agent of the consignor, a right of action against the carrier is in the consignor alone because the only damage that could have been suffered as a result of the thing complained of was that sustained by the consignor. Grove v. Brien. 8 How. (U. S.) 429, 12 L. ed. 1142; Zimmern's Coal Co. v. Louisville, etc., R. Co., 6 Ala. A. 475, 60 S 598.

[522] d. Where Shipper Is Both Consignor and Consignee. Shippers in control of merchandise who make the contract for its transportation and are both consignors and consignees will be assumed, in the absence of proof to the contrary, to have sufficient title and right to maintain an action against the carrier for loss of, or injury to, the property during transportation.29 However, it is competent and allowable to show to the contrary.30

[523] e. Party Having Special Property in

Goods or Beneficial Interest in Performance of Contract. One who has a special property or interest in the goods shipped, or a beneficial interest in the performance of the contract, is entitled to maintain an action for their loss or injury.3

31

Factor or broker. If the consignee has a special property in the goods as factor or broker, he has such an interest in the shipment as will entitle him to maintain an action for loss of or injury thereto.32 It is not necessary to his capacity as a plaintiff to bend, down the thumbscrew and burst open the sides of the box. Wall v. St. Louis, etc., R. Co., (Mo. A.) 182 SW 1057.

R. Co. V. City Southern [d] Where property is consigned | Kansas to a commission merchant, without Nixon-McClintock Co., 107 Ark. 48, 154 SW 205, AnnCas1914C 1247. etc., R. Co. V. Colo.-Denver, any previous contract or advances to a shipper, the consignee acquires no Frame, 6 Colo. 382. special ownership in the property before its delivery to him, and cannot recover for damages to the property Grinnell-Collins Co. v. in transit. Illinois Cent. R. Co., 109 Minn. 513, 124 NW 377, 26 LRANS 437.

[e] Where a person other than
orders
wrongfully
the consignee
goods in the name of the consignee
who refuses to receive them, the
goods remain the property of the
consignor who is the proper party to
sue for a misdelivery of the goods.
Louisville, etc., R. Co. v. Ft. Wayne
Electric Co., 108 Ky. 113, 55 SW 918,
21 KyL 1544.

Co. V.
29. Ind.-Pennsylvania
Clark, 2 Ind. A. 146, 27 NE 586, 28
NE 208.

R.

Iowa.-Almon v. Chicago, etc.,
Co., 163 Iowa 449, 144 NW 997.
R. Co. v.
etc.,
Ky.-Louisville,
Wathen, 49 SW 185, 22 KyL 82.
Nebr.-Missouri Pac. R. Co. v. Lau,
57 Nebr. 559, 78 NW 291.

N. Y.-Swift v. Pacific Mail SS. Co., 106 N. Y. 206, 12 NE 583.

Okl.-St. Louis, etc., R. Co. v. Allen, 31 Okl. 248, 120 P 1090, 39 LRA NS 309.

Hardwood

Tex.-Houston, etc., R. Co. v. Robinson, (Civ. A.) 131 SW 444. W. Va.-Williamsport Lumber Co. v. Baltimore, etc., R. Co., 71 W. Va. 741, 77 SE 333.

con

[a] When considered both signor and consignee.-When it appears from the complaint in an action for an alleged breach of contract to carry cattle that the consignors were the owners of the cattle, and no consignee is named in the contract of carriage, it will be presumed that the shipment was to be made to the consignor. Pennsylvania Co. v. Clark, 2 Ind. A. 146, 27 NE 586, 28 NE 208.

[b] Where the buyer is not to obtain the bill of lading until payment of the draft attached, the goods being shipped by the consignor to himself as consignee, the right of action for loss or injury is in the consignor. etc., R. Co. v. Robinson, Houston, (Tex. Civ. A.) 131 SW 444.

[c] Directions to notify buyer.The rule applies where goods are shipped to the order of the consignor and seller, with directions to notify the buyer. St. Louis, etc., R. Co. v. Allen, 31 Okl. 248, 120 P 1090, 39 LRANS 309 and note.

[d] Effect of sale on arrival.-The fact that a consignor of goods to himself as consignee sold the goods on arrival at destination at a specified price per pound did not deprive him of the right to recover for a loss of goods in transit, although he directed delivery to his buyer and delivered the bill of lading to him, in as much as the buyer was liable only delivered. actually for the goods Almon v. Chicago, etc., R. Co., 163 Iowa 449, 144 NW 997.

30. Missouri Pac. R. Co. v. Lau, And see 57 Nebr. 559, 78 NW 291. Dows v. Milwaukee Nat. Exch. Bank, 91 U. S. 618, 23 L. ed. 214 (recognizing the rule).

31. Ala.-Walter v. Alabama, etc., R. Co., 142 Ala. 474, 39 S 87; Southern Express Co. v. Caperton, 44 Ala. 101, 4 ÂmR 118.

Ark. Kansas City Southern R. Co. v. Mabry. 112 Ark. 110, 165 SW 279; [10 C.J.-23]

Fla. Atlantic Coast Line R. Co. v.
Partridge, 58 Fla. 153, 159, 50 S 634
[cit Cyc].

Ga. Central of Georgia R. Co. v.
Cooper, 14 Ga. A. 738, 82 SE 310.

Ill-Joerg v. Atchison, etc., R. Co.,
152 Ill. A. 229; Illinois Cent. R. Co.
v. Miller, 32 III. A. 259; Illinois Cent.
R. Co. v. Schwartz, 13 Ill. A. 490.

Kan. Missouri Pac. R. Co. v. Peru-
Van Zandt Impl. Co., 73 Kan. 295, 85
P 408, 117 AmSR 468, 6 LRANS 1058,
9 AnnCas 790.

Me.-Boston, etc., R. Co. v. War-
rior Mower Co., 76 Me. 251; Little v.
Fassett, 34 Me. 545, 56 AmD 671.
Md.-D'Anjou v. Deagle, 3 Harr. &
King, 121
Mass.-Harrington v.
Mass. 269; Finn v. Western R. Corp.,
112 Mass. 524, 17 AmR 128.

J. 206.

Minn. Grinnell-Collins Co. v. Illi-
nois Cent. R. Co., 109 Minn. 513, 124
NW 377. 26 LRANS 437 and note;
Chamberlain v. West, 37 Minn. 54, 33

NW 114.

Mo.-Wall v. St. Louis, etc., R. Co., (A.) 182 SW 1057.

N. H.-Murray v. Warner, 55 N. H.
546, 20 AmR 227.

N. Y.-Thompson v. Fargo, 49 N.
Y. 188, 44 HowPr 176, 10 AmR 342;
Green v. Clarke, 12 N. Y. 343.

Pa.-Lloyd v. Haugh, etc., Storage,
etc., Co., 223 Pa. 148, 155, 72 A 516,
21 LRANS 188 [cit Cyc]; Baltimore,
etc., Steamboat Co. v. Atkins, 22 Pa.
522.

Tex.-Cudahy Packing Co. v. Dor-
sey, 26 Tex. Civ. A. 484, 63 SW 548;
Houston, etc.. R. Co. v. Stewart, 1
1246.
Tex. A. Civ. Cas.
Vt.-White v. Bascom, 28 Vt. 268.
Hardwood
W. Va.-Williamsport
Lumber Co. v. Baltimore, etc., R. Co.,
71 W. Va. 741, 743, 77 SE 333 [cit
Cycl.

Morris, 3 B. &
Eng. Sargent v.
Ald. 277, 5 ECL 166, 106 Reprint 665.
Ont.-Clark v. Great Western R.
Co., 8 U. C. C. P. 191 (recognizing but
not applying the rule).

[a] Shipment of goods part of
which are owned by consignee.-
Where a shipment containing house-
hold goods, some of which belonged
to a husband and wife, some to the
husband, and others to the wife, were
all consigned to the husband at the
point of destination, he had capacity
to sue for injuries to the entire ship-
ment, although he was not the abso-
of all the property.
lute owner
Walter v. Alabama Great Southern
R. Co., 142 Ala. 474, 39 S 87.

[b] Right to recover for injury
to dead body.-(1) A brother who
has undertaken to pay for the trans-
portation of the body of his deceased
brother has such an interest in the
body as entitles him to damages for
an injury occasioned thereto by the
negligent act of the carrier while
transporting the body for hire. Beam
v. Cleveland, etc., R. Co., 97 Ill. A. 24.
(2) Where plaintiff undertook to per-
form the duty of giving his deceased
mother a decent burial and assumed
responsibility for all funeral
penses and the cost of transportation
of the corpse, he was the proper
party to sue a carrier for violating
his right to control the body for the
purpose of a decent burial by so mis-
handling the box in his presence as

ex

32. Fla.-Atlantic Coast Line R. Co. v. Partridge, 58 Fla. 153, 50 SE 634.

III.-Edgerton v. Chicago, etc., R. Co., 240 Ill. 311, 88 NE 808.

Me.-Boston, etc., R. Co. v. Warrior Mower Co., 76 Me. 251.

Mo.-Wolie v. Missouri Pac. R. Co., 97 Mo. 473, 11 SW 49, 10 AmSR 331, 3 LRA 539; Collins v. Denver, etc., R. Co., 181 Mo. A. 13, 167 SW 1178. Tex.-Houston, etc., R. Co. v. StewGreat Western R. art, 1 Tex. A. Civ. Cas. § 1246. Önt.-Clark v. Co., 8 U. C. C. P. 191 (recognizing but not applying the rule).

Compare Walter v. Ross, 29 F. Cas. No. 17,122, 2 Wash. C. C. 283 (discussing the question).

a mower

[a] Thus, (1) where company consigned and forwarded a one D lot of mowing machines to under a contract by the terms of which D was to pay freight on them, sell them for a specified commission, and account to the company therefor at a specified price, it was held that the contract did not change the title to the machines, but that D had such a special property in the machines as entitled him to maintain an action against the carrier for damages to the property sustained by himself and also for such damages as accrued to the mower company as genBoston, etc, R. Co. v. eral owners. (2) Warrior Mower Co., 76 Me. 251. An owner of crates of pears, a commissionman with trusted as other crates to ship and to sell, such a car, crates together making up may sue a carrier for any damage thereto. Atlantic Coast Line R. Co. v. Partridge, 58 Fla. 153, 159, 50 S 634 [cit Cyc].

in

ex

[b] Factor a trustee of an press trust.-A factor for the consignor of goods, who has no interest in the goods beyond his lien for commissions, but who is the consignee in the bill of lading, is a "trustee of an express trust," within the meaning of the Missouri statute, and may, when he has contracted with the carrier for the delivery of the goods to himself, maintain an action in his own name for their wrongful delivWolfe v. Missouri ery to another. Pac. R. Co., 97 Mo. 473, 478, 11 SW 49, 10 AmSR 331, 3 LRA 539.

as to [c] Conflicting directions shipment.-When a railroad company receipted for goods to be shipped to factors at the place of destination, but the shipper signed a declaration in which the goods were mentioned as being consigned to the factors' the goods were principals, and shipped, it was held that the factors, never having come into possession of the goods, had no lien thereon and could not maintain an action against Clark the carrier in respect thereto.

SO

v. Great Western R. Co., 8 U. C. C. P. 191.

[d] Bankruptcy of factor before acquiring possession.-If a factor accepts bills drawn by his principal, on the faith of consignments agreed to be made by the principal to the become factor, and both of them bankrupts before a cargo consigned the into the possession of factor, his assigns have no property in such cargo and cannot recover the price of it against the assignees of

comes

the Cumberland Railroad Company | International Watch Co. v. Delaware. for carriage to Cumberland. at which etc., R. Co., 80 N. J. L. 553, 78 A 49 point they were to be delivered to [aff 82 N. J. L. 528, 82 A 730]. the agents of plaintiffs for carriage to the place of their destination. It was held that A & Co. could maintain assumpsit on the contract against defendants for damage to the goods while in their charge and could recover the entire amount of the loss for the benefit of themselves and the owners of the goods, especially as the latter were parties to the record and precluded from further claim. Baltimore, etc., Steamboat Co. v. Atkins, 22 Pa. 522. 38. See § 523.

39. Ala. Southern Express Co. v. Caperton, 44 Ala. 101, 4 AmR 118; The Farmer v. McCraw, 26 Ala. 189, 62 AmD 718. Colo.-Denver,

Frame, 6 Colo. 382.

Ill.-Edgerton v. Chicago, etc., R. Co., 240 Ill. 311, 88 NE 808; Great Western R. Co. v. McComas, 33 Ill. 185; Illinois Cent. R. Co. v. Miller, 32 Ill. A. 259; Illinois Cent. R. Co. v. Schwartz, 13 Ill. A. 490.

N. H.-Murray v. Warner, 55 N. H. 546, 20 AmR 227; Elkins v. Boston, etc., R. Co., 19 N. H. 337, 51 AmD 184.

N. Y.-Green v. Clarke, 12 N. Y. 343.

Vt.-White v. Bascom. 28 Vt. 268. Eng. Nicolls v. Bastard, 2 C. M. & R. 659, 150 Reprint 279.

[a] Reason for rule.-This conclusion "seems to be deducible from the general state and condition of property under bailment, which is, as it were, in dubio between the parties, and vested for some purposes in the bailee and for some in the bailor. The right of property being thus floating and undetermined, it seems to follow that the right of action which arises from it must partake of the same properties, and must continue until it is finally fixed and determined by one or the other party appropriating it to himself." Edgerton v. Chicago, etc., R. Co., 240 I11. 311, 316, 88 NE 808.

40. See cases supra note 39. 41. Adams Express Co. v. Croninger, 226 U. S. 491. 33 SCt 148, 57 L. ed. 314, 44 LRANS 257; Carr v. Pennsylvania R. Co., 88 N. J. L. 235, 96 A 588.

42. Gamble-Robinson Commn. Co. v. Union Pac. R. Co., 180 Ill. A. 256 [aff 262 I11. 400, 104 NE 606, AnnCas 1915B 89]; Burtless v. Oregon Short Line R. Co., 180 Ill. A. 249.

43. Ricks Sheep Co. v. Oregon Short Line R. Co., 180 Ill. A. 220;