Page:The Green Bag (1889–1914), Volume 18.pdf/72

 NOTES OF RECENT CASES bank in the city where plaintiffs lived and they paid it, before the arrival of the meal. When the meal came, it was found that the quantity was several sacks short and that a number of the sacks had been torn, allowing the meal to escape and become dirty and worthless. Under these circumstances it is held that the bank to which the bill of lading was assigned became, by the assignment, the absolute owner of the goods and of the debt due from the buyers, and that on pay ment by them of the draft the bank became liable for the shortage in quantity and for the injured sacks to the same extent that the original seller would have been had there been no assign ment. The case, however, is not barren of authority. The court cites, as fully sustaining its views, Eu fau I a Grocery Co. v. Mo. Nat. Bank, 118 Ala. 408, 24 South, 389; Finch v. Gregg, 126 N. C. 176, 35 S. E. 251, 49 L. R. A. 679, and Searles Bros. v. Smith Grain Co., 80 Miss. 688, 32 South, 287. To these may be added Miller v. Bank, 76 Miss. 84; Landa v. Lattin, 19 Tex. Civ. App. 246, 46 S. W. 48. Upon the other side, the court cites, Blaisdell v. Bank (Tex.) 75 S. W. 292, 62 L. R. A. 968; Tolerton v. Bank, 112 Iowa, 706, 84 N. W. 930, 50 L. R. A. 777, and Schlichting v. Railroad Co. (Iowa), 96 N. W. 959. To these may be added Hall v. Keller, 64 Kan. 211, 67 Pac. 518, 62 L. R. A. 758. See also i Michigan Law Review, 65, 690, note 49, L. R. A. 679. F. R. M. If followed, this case would be of great import ance and likely to produce injustice. The prin ciple Involved is practically the same as that laid down in Landa v. Lattin Bros., 19 Tex. Civ. App. 246, which was followed by Finch v. Gregg, 1 26, N. C. 176. The former case even held that the assignee of the bill of lading became liable for

breach of warranty in the contract made by the assignor. The case, however, was practically overruled by a later Texas case, S. Blaisdell, Jr. Co. v. Citizens' National Bank, 96 Texas, 626. This later Texas case is by far the better reasoned one. In line with it and contra to the case under discussion, is Tolerton & Stetson Co. v. AngloCalifornia Bank, 112 la. 706, which states clearly the probable intentions of the parties in all of these cases viz. — that " the assignment of the draft and bill of lading was to transfer to the bank " the vendor's " right to the price, and give it the posses sion of the goods as security." The case under discussion criticises this statement and holds that the assignment of the bill of lading transfers title to the goods, and that the court has no right to treat this as simple security. It bases its decision upon the technicality of the law that an unex plained transfer of the bill of lading transfers title. As the case went up on demurrer, no direct ex planation of the assignment appeared. The decision is far from satisfactory in its reason ing. It is hard to see how the defendant can be held liable on the contract made by the assignor to which he was not a party, or how he can be held to have made any contract of his own, when he simply collects the money due on the contract made by his assignor. It would seem that in order for him to be liable he must have been a party to the original contract, or have made one himself. We do not believe the case is likely to be generally followed. This case should be clearly distinguished from the common case of taking the bill of lading in the vendee's name and sending it to a bank with a draft attached, which draft the vendee is obliged to pay before he can get the goods. In the latter case, of course, there can be no question that the bank is not liable. Oscar Storer.