Page:Federal Reporter, 1st Series, Volume 9.djvu/147

 132 FEDERAL, REPORTEE. �ual delivei 7 of the cotton, attached it to the draft as stated in the dec- laration, negotiated them as alleged, but never delivered any cotton to tlio Company. This is the case that bas been argued, but it is readily seen that it is not precisely the one presented by the record. Inasmuch, however, as counsel have treated these pleas as if the facts stated to the court were contained in them, and seem desirons of taking the judgment of the court on those admitted facts, I shall so treat the case, but will require a special plea to be added, stating the facts something in the form indicated, and reserve the right, if I have mistaken them, to reconsider the case on those to be stated in the plea, or to render the judgment demanded by the record as it now stands. �It will be seen, from this statement of the facts and those contained in the pleadings, that the question is whether or not a coramon car- rier is liable for damages sustained by the indorsee of a bill of lading, issued by its agent, binding it to deliyer merchandise never in fact delivered to the carrier for transportation, where there is an allega- tion of special damage sustained by reason of the fact that the indorsee has advanced money on the faith of a receipt of the goods by the carrier, as expressed in the bill of lading. That the plaintiffs believed this cotton was in the hands of the carrier, as certified by its agent, under a contract to deliver it to the order of Chiles, there can be no doubt. I cannot see that it is material whether this agent trustingly confided in the misrepresentations or promises of Chiles, or whether hc fraudulently conspired with him to do the wrong. The question is, who shall suffer the loss, the railroad company or the plaintiffs ? If I may use the language of Mr. Justice Field : �"The question involved is one so often unfortunately raised in courts of justice as to which of two innocent parties is to suffer by the dishonest deal- ing of a third, and the only course open to a court in such case is to ascertain upon which of the parties the loss is cast by the operation of the ruies of law applicable to the case, and decide accordingly. In this action the question is one of considerable mercantile importance, and I have taken time to consider the authorities applicable to it, but the legal resuit of the facts has always seemed and now seems to me plain." Qlyn v. E. & W. India Dock Co. 5 Q. B. D. 129, 132. �But, notwithstanding this seeming confidence, the judgment of that learned court was, as the one I am about to give may be, reversed on writ of error, and the case is, though not precisely like this, very instructive here. The shipper and consignee re- ceived from the master three bills of lading, — or rather one bill of lading in three parts, as is sometiraes customary, — marked ��� �