If the property had been delivered by the testator under and pursuant to the agreement above referred to, the title to such property would have vested in the defendant, and he could hold the same or the proceeds thereof for the payment of the advances made by him thereon. Bailey v. Hudson R.R.R. Co., 49 N.Y. 70; Cayuga County National Bank v. Daniels, 47 id. 631; Grosvenor v. Phillips, 2 Hill, 147; Bank of Rochester v. Jones, 4 N.Y. 497; Chapman v. Kent, 3 Duer, 224. In this case, however, no part of the property had been delivered at the time of the testator's death.
Mr. H.M. Finch for the defendant in error. By the transactions between McLaren Co. and the National Exchange Bank of Milwaukee, the title to the wheat became vested in that bank. The Aurora, 4 C. Robinson, 218; The Frances, 8 Cran. 354, 418, 9 id. 183; The Merrimack, 8 id. 317; The San Jose Indians, 1 Wheat. 208; Seymour v. Newton, 105 Mass. 273; Cayuga Bank v. Daniels, 47 N.Y. 632; Turner v. Trustees Liverpool Docks, 6 Exch. 543; Ward v. Taylor, 6 Ill. 494; Shepard v. Harrison, L.R. 4 Q.B. 195; Bailey v. Hudson R.R. Co., 49 N.Y. 75; Tilden v. Minor et al., 45 Vt. 96; Wait v. Baker, 2 Exch. 1; Jenkins v. Usborne, 49 Eng. Com. Law, 698; Williams v. Littlefield, 12 Wend. 362; Moakes v. Nicolson, 115 Eng. Com. Law, 296; Ellershaw v. Magniac, 6 Exch. 570; Jenkins v. Brown, 68 Eng. Com. Law, 495; Brandt v. Bowlby, 2 B. Ald. 632; The Thames, 14 Wall. 98; City Bank v. R.W. O.R. Co., 44 N.Y. 136; Marine Bank v. Wright, 48 id. 1; Dent v. N.A. Steamship Co., 49 id. 391; De Wolf v. Gardiner, 12 Cush. 19. The Merchants' Bank was a special agent for a specific purpose, and clothed only with limited powers to do a particular act with certain parties expressly named. Its acts, beyond the scope of its delegated authority, would not have bound its principal.
In Schuchardt et al. v. Hall et al., 39 Md. 590, which was a case of a time draft, accompanied by a bill of lading, hypothecated by the drawer, both for the acceptance and payment of the draft, and when the drawers had been authorized to draw against the cargo shipped, it was said by the court, "Under their contract with the defendants, the latter were authorized to draw only against the cargo of wheat to be shipped by the `Ocean Belle;' and they (the drawees) were, therefore, not bound to accept without the delivery to them of the bill of lading." See also the language of the judges in Gurney v. Behrend, 3 Ell. Bl. 622; Marine Bank v. Wright, 48 N.Y. 1; Cayuga Bank v. Daniels, 47 id. 631. We have been unable to discover a single decision of any court holding the opposite doctrines.
Their effect as evidence, however, is overcome by the other facts in the case,--by the fact that the goods were to be paid for before delivery, that the purchase money was to be procured by pledge of the goods upon a draft with the bill of lading attached, and by the further fact that the possession of the bill of lading was to be retained by Kuehn, Metzler & Co. until they should receive payment. Bank v. Jones, 4 N. Y. 497; Bank v. Daniels, 47 N.Y. 631; Emery v. Bank, 25 Ohio St. 360; Stollenwerck v. Thacher, 115 Mass. 224. In Bank v. Jones, supra, the owner of flour at Rochester consigned the same to Jones, in Albany, to whom he was indebted, and obtained a bill of lading of the same.
Ante, p. 155. However, this question does not necessarily depend on mutuality of intention, for, as said in Cayuga Bank v. Daniels, 47 N.Y. 631: "It is not the agreement to ship that confers the title, although such agreement is founded upon a good consideration; but the actual shipment, accompanied by an unconditional consignment in pursuance of such agreement, which proves that the delivery to the carrier was with intent to give the consignee a right of property free from any condition whatever, the owner * * * being free to ship the property or not."
Bank v. Railway Co., 25 S.C. 224. As between the vendor and purchaser the authorities leave no room for doubt, however, that even if the bill of lading provides for delivery to the consignee, yet if the consignor draws for the price attaching the bill of lading to the draft, this is sufficient evidence of his intention to reserve the title and right of possession until the draft is paid, and the consignee is not entitled to the goods until payment. Emery v. IrvingNational Bank ( 25 Ohio 360), 18 Am. Rep. 299; Chandler v. Sprague, 38 Am. Dec. note at page 419; Bank of Rochester v. Jones ( 4 N.Y. 497), 55 Am. Dec. 290; Cayuga CountyNational Bank v. Daniels, 47 N.Y. 631; Marine Bank v. Wright, 48 N.Y. 1; Halsey v. Warden, 25 Kan. 128; FirstNational Bank of Green Bay v. Dearborn ( 115 Mass. 219), 15 Am. Rep. 92. That the intention of the shipper as evidenced by his action in respect to the bill of lading is controlling is supported by the elaborate opinions in Shepard v. Harrison, 23 E. Rul. Cases, 349, especially the opinions of Kelly, C.B., and Lord Chelmsford. Here, according to the statement of the complaint, and the affidavit, not only did the defendant, the consignor, express its intention to reserve the jus disponendi by presenting through a bank the draft with the bill of lading attached, but the plaintiff expressed this to be also its understanding of the contract by offering to pay the price, as it claimed to be, as a condition precedent to acquiring possession of the bill of lading, and through it of the flour.
Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Chandler v. Sprague, 5 Metc. (Masss.) 306, 38 Am. Dec. 419; Bank of Rochester v. Jones, 4 N.Y. 497, 55 Dec. 290, Cayuga County Nat. Bank v. Daniels. 47 N.Y. 631; Marine Bank v. Wright 48 N.Y. 1; Halsey v. Warden, 25 Kan. 128; First Nat. Bank Dearborn, 115 Mass, 219, 15 Am Rep. 92. "That the intention of the shipper, as evidenced by his action in respect to the bill of lading, is controlling is supported by the elaborate opinions in Shepherd v. Harrison, L. R. 4 Q. B. 196, 493 L. R. 5 H. L. 116, 23 Eng. Ruling Cases, 349."
h other. 1 Benj. on Sales, secs. 568, 579, 580; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; 24 Am. Eng. Ency. of Law (2d Ed.) 1066; Hobart v. Littlefield, 13 R.I. 341; Merchants' Nat. Bank v. Bangs, 102 Mass. 291; Kentucky Refining Co. v. Globe Refining Co., 104 Ky. 559, 47 S.W. 602 [42 L. R. A. 353, 84 Am. St. Rep. 468]; Chandler v. Sprague, 38 Am. Dec. 418 note; 23 Eng. Rul. Cas. 383, note. * * * As between the vendor and purchaser the authorities leave no room for doubt, however, that even if the bill of lading provides for delivery to the consignee, yet, if the consignor draws for the price attaching the bill of lading to the draft, this is sufficient evidence of his intention to reserve the title and right of possession until the draft is paid, and the consignee is not entitled to the goods until payment. Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Chandler v. Sprague, 38 Am. Dec. 419, note; Rochester Bank v. Jones, 4 N.Y. 497, 55 Am. Dec. 290; Cayuga County Nat. Bank v. Daniels, 47 N.Y. 631; Marine Bank v. Wright, 48 N.Y. 1; Halsey v. Warden, 25 Kan. 128; Green Bay First Nat. Bank v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92."
George Gowen Parry, and with him Harold C. Roberts, for appellee. — Plaintiff was not a proper party plaintiff in this action: Steamboat Company v. Atkins, 22 Pa. 522; Dooley v. N.Y.C. H.R.R. Co., 62 Pa. Super. 237; Dannemiller v. Kirkpatrick, 201 Pa. 218; Pittsburgh Provision etc. Co. v. Cudahy Packing Co., 260 Pa. 135. The action was at common law and did not involve the Cummins Amendment: Cayuga Bank v. Daniels, 47 N.Y. 631; Marine Bank v. Baringer, 46 Pa. Super. 510. Argued November 12, 1930.
The delivery of the bill of lading to the plaintiff, for the purpose of securing the payment of the draft drawn by the consignors upon the consignees, and which the plaintiff discounted, was sufficient to pass the title to the almonds to the plaintiff, subject to be divested only by the payment of the draft. Cayuga N. Bank v. Daniels, 47 N.Y. 631; Bank of Rochester v. Jones, 4 id. 497; Gibson v. Stevens, 5 How. (U.S.) 384; First N. Bank v. N.Y. Cent. H.R.R.R. Co., 85 Hun, 160; 4 Am. Eng. Ency. of L. (2d ed.) 522, 545. The defendants' contention that they are not liable without proof of a personal direction to levy and sell is untenable.