The Idaho

APPEAL from the Circuit Court of the United States for the Eastern District of New York.

The libellants claim damages against the 'Idaho' for the non-delivery of one hundred and sixty-five bales of cotton, part of a shipment of two hundred bales for Liverpool, made by Thomas W. Mann, and consigned to the order of James Finlay & Co. After the shipment, the libellants purchased the cotton from Mann, who indorsed to them the ship's bill of lading therefor. On the arrival of the vessel at Liverpool, thirty-five bales were delivered to Finlay & Co., but the remaining one hundred and sixty-five were delivered to Baring Brothers & Co., in pu suance of an order from William J. Porter & Co. of New York. Such a delivery was not in accordance with the stipulations of the bill of lading; but it is attempted to be justified by the alleged fact that Porter & Co. were the true owners of the cotton, and as such had a right, superior to that of the shippers, to control its delivery.

In April, 1869, at New Orleans, W. J. Porter & Co., in due course of business and in good faith, advanced to one Forbes a large sum of money upon a bill of lading, which set forth a shipment of one hundred and forty bales of cotton at New Orleans, in the brig 'C. C. Colson.' The bill of lading was in the ordinary form, executed by the lawful master of the 'Colson,' but, in fact, the cotton had not been shipped at the time of its execution. Some few days after the date of the bill of lading, and after the acceptance of the drafts by Porter & Co., Forbes did ship by the 'Colson' one hundred and forty bales of cotton, as and for that described in the bill of lading sent to Porter & Co. This cotton was duly delivered to the 'Colson,' was receipted for by the officers of the brig, and, although not then placed on board, was delivered to the vessel on the wharf alongside.

Subsequently to this shipment, and before the cotton was taken into the hold of the brig, Forbes removed it from the custody of the brig and shipped it on the steamship 'Lodona,' lying near, and bound for New York. The previous shipment of the cotton on the 'Colson' was unknown to the officers of the 'Lodona,' and they issued bills of lading in the ordinary form for the cotton they received.

Forbes shipped in the 'Lodona' twenty-five other bales, and took one bill of lading for the whole one hundred and sixty-five; on which second bill of lading he obtained a large advance from Schaefer & Co., of New York, to whom he made a second assignment of the cotton.

The bill of lading for one hundred and sixty-five bales, which was sent to Schaefer & Co., included the one hundred and forty bales which had been taken from the 'Colson' and delivered to the 'Lodona.' The 'Lodona' arrived in New York on the 29th or 30th of April. The one hundred and sixty-five bales were taken directly to a warehouse by Schaefer & Co., who, on the 1st of May, engaged freight in the 'Idaho' for two hundred bales. On the same day, Schaefer & Co. sent for one Corcoran, who went to Schaefer's house on the next day (Sunday), and was then directed to remove all the marks and numbers from the one hundred and sixty-five bales, and re-mark them with marks similar to thirty-five other bales, which Schaefer & Co. had stored in West Street. Corcoran did this as well as the short time permitted; and on Monday the two hundred bales-one hundred and twenty of them marked S. A. L., and eight marked V. O. X.-were shipped in the 'Idaho.' This shipment was not made in Schaefer's name; but, while Corcoran was at work on the cotton, it was nominally sold to Mann, Schaefer's clerk, and was shipped in the name of Conklin & Davis, grocers, who permitted their names to be thus used, and who indorsed the ship's receipts over to Mann. On the 4th of May Mann applied for and received the bill of lading of the 'Idaho' for the two hundred bales on which this action is brought. On the same day Mann made a nominal sale of the cotton to Hentz & Co., free on board.

Hentz & Co. were told to ask no questions; and on the 5th or 6th gave their note for the cotton to Mann, who paid it to Schaefer, who held it till maturity, and when Hentz & Co. paid the amount of it to Mann they obtained Schaefer's guaranty against loss. Mann then paid the money over to Schaefer, who gave him a check for $897.36, as for a difference in price between the sale to Mann and his sale to Hentz & Co. Hentz & Co. acted under the direction of Schaefer & Co., the real parties in interest here in bringing this suit.

The court below dismissed the libel, and the libellants appealed here.

Mr. R. T. Merrick, for the appellant.

A carrier cannot set u a naked jus tertii or adverse title of a hostile claimant against his shipper, nor show, as an excuse for non-delivery according to the terms of the bill of lading, that he has delivered the goods to the true owner. Story, Bailm. (8th ed.), sects. 266, 450, 582; 2 Story, Eq. Jur., sect. 817; Dixon v. Hammond, 2 B. & Ald. 310; Roberts v. Ogelby, 9 Price, 269; Gosling v. Bernie, 7 Bing. 338; Burton et al. v. Wilkenson et al., 18 Vt. 186; Gerbur v. Monie, 56 Barb. 659; Barnard v. Kobbe, 3 Daly, 376.

If the one hundred and forty bales of cotton that had been unloaded at the wharf in New Orleans, at which the 'Colson' was lying, were, in fact, part of the two hundred bales shipped on the 'Idaho,' for which libellants held the bill of lading, there was no such intermixture of said cotton as justified the application of the rule of law in regard to a confusion of goods. 2 Kent's Com. 365; 1 Story, Eq. Jur., sect. 623; Lupton v. White, 15 Ves. 442; Wood's Inst. 158; Treat v. Barber, 7 Conn. 280; Seymour v. Wyckoff, 10 N. Y. 213; Story, Bailm., sect. 40, pp. 41, 42 (8th ed.).

Mr. William G. Choate, contra.

MR. JUSTICE STRONG delivered the opinion of the court.