Opinion
November Term, 1900.
Lorenzo Ullo, for the appellants.
Frederic W. Hinrichs, for the respondents.
The defendants appeal from a judgment entered upon a verdict directed by the court, in an action brought by Westervelt Co., attaching creditors, and the sheriff of the city and county of New York, to recover a sum of money in the possession of the defendants and which it is alleged in the complaint belongs to the defendant in the attachment process. In their answer in this action, these defendants disclaim ownership of the money, but set up that they hold it for other parties to whom they are liable to account for it. The issue tried and determined related only to the subject of ownership. Both the plaintiffs and defendants asked for the direction of a verdict, and the appeal being from the judgment alone, we are to inquire if there is evidence to support the direction given and a consequent liability of the defendants as matter of law under that evidence.
On the issue of ownership, the material facts may be briefly stated: The defendants were shipping merchants, having an office at Liverpool and another at the city of New York. In addition to their business as carriers they received consignments of merchandise from foreign shippers and made advances of money thereon. All advances were made by the Liverpool house or its agents at the place at which the goods were shipped. Such goods were brought to New York on the defendants' vessels and were sold generally at auction, the proceeds of sale being applied to the payment of advances and charges, and any balance arising in favor of the shipper or owner of the goods was remitted to the Liverpool house. On the 19th of June, 1897, Vincenzo Canepa, the defendant in the attachment process, shipped at Palermo, in Italy, upon one of the defendants' steamships, 190 boxes of lemons to be carried from the port of shipment to New York. He received bills of lading which recited that he was the shipper and that the goods on arrival were to be delivered "unto order, or to his or their assigns." Messrs. Lagana Co. of Palermo were agents of the defendants, authorized to make advances upon shipments of merchandise and that firm did advance for the defendants to Canepa a sum of money upon the goods mentioned in the bill of lading, and that bill of lading was indorsed by Canepa to Lagana Co., who in turn indorsed the same bill of lading to these defendants. It appears that all the shipping documents were sent by Lagana Co. to the defendants' house at Liverpool, who forwarded them to the house at New York, where, after their arrival, the goods were sold at auction, the amount of the advances and charges were realized and the resulting balance remitted, after the attachment was levied, to the defendants' house at Liverpool.
It was incumbent upon Westervelt Co., as creditors of Canepa, to show that the balance attached belonged to him, and that burden has been sustained. The defendants' position seems to be that title to the merchandise or to the proceeds of sale, after deducting charges, was in Lagana Co. by force of the relations established by the bill of lading; and that inasmuch as these defendants were transferees of that bill of lading, merely to secure them for their advances, and those advances being fully paid, Lagana Co. are to be regarded as the real owners under the bill of lading; or, to state it in another form, the claim is, that the defendants were bound to recognize Lagana Co. as holding the legal title to the balance of the proceeds of the sale of the lemons, because the indorsement by Canepa of the bill of lading to Lagana Co. passed to them the legal title to the goods, and the defendants' demands being satisfied, that legal title remains in Lagana Co.
The rights of these parties are not dependent upon relations established by the bill of lading alone. The delivery of a bill of lading is, doubtless, a good symbolical delivery of the goods mentioned in it, and title and possession will be presumed to have passed by indorsement of it to a particular person ( Mechanics Traders' Bank v. Farmers Mechanics' Nat. Bank, 60 N.Y. 40; Commercial Bank of Keokuk v. Pfeiffer, 108 id. 250), and often by the delivery of the bill of lading without indorsement. ( City Bank v. Rome, Watertown Ogdensburgh R.R. Co., 44 N.Y. 136; Merchants' Bank v. Union R.R. T. Co., 69 id. 379.) But a bill of lading is not conclusive evidence as to the ownership of the goods described in it; it may be explained or rebutted by parol evidence. ( Bailey v. Hudson River R.R. Co., 49 N.Y. 70.) It raises a presumption of title, but that may be rebutted by evidence showing that the consignor, and not the consignee, is the real owner. ( Price v. Powell, 3 N.Y. 322.)
By the indorsements of the bill of lading in this case the title and possession was in Phelps Co. Their disclaimer of ownership of the balance in their hands does not necessarily leave the title to that balance in Lagana Co. It was open to the plaintiffs to show from the whole transaction to whom those proceeds in reality belonged, and there was sufficient in the proof to show that Canepa was the owner. He made the shipment; he received the advances from Lagana Co., agents of the defendants Phelps. There is nothing to show that Lagana Co. advanced a dollar for their own account or in any way became connected with the transaction, except strictly as agents of Phelps Co. All the documentary evidence shows that Canepa remained the owner subject to Phelps Co.'s advances. The invoice was made out of goods shipped by Canepa. All the ship's documents state the same facts. The catalogue of merchandise sold by the defendants in New York, including the consignment in question, refer to that consignment as Canepa's goods. The instructions given by the defendants' Liverpool house to the New York house respecting the 190 boxes of merchandise, declared the consignment to be "for account Vincenzo Canepa," and the account of sales sent by the New York house to the Liverpool house of the 190 boxes, states the merchandise came from Palermo for the account and risk of Mr. V. Canepa.
There was, therefore, enough to sustain the finding of the trial judge that the balance really belonged to Canepa, in the absence of any proof that Lagana Co. had any other relation to the transaction than that of agents of the defendants.
There is no other question in the case requiring consideration, and the judgment should be affirmed, with costs.
VAN BRUNT, P.J., O'BRIEN, INGRAHAM and HATCH, JJ., concurred.
Judgment affirmed, with costs.