The case of Dows v. Perrin in this court (16 N.Y., 325), decides that the paper executed by Walker in the name of Niles Wheeler, and delivered to Bloss, and subsequently indorsed by Mack to the plaintiff's firm, was a bill of lading. The paper upon which the plaintiff's title to the corn in question depended in that suit was in the precise form with the one given in evidence on the trial of this action, and the same relate to, and are part and parcel of the same transaction. The only difference between them consists in the fact that the quantity of corn specified in them is different and also the name of the boats in which it was shipped. That question must therefore be deemed resjudicata.
It was also decided in that case that upon the proofs given on the trial there was no satisfactory evidence that Walker had authority to execute said bill of sale in behalf of Niles Wheeler, and that as the paper purported to be executed by an agent it was incumbent upon the plaintiff to prove that he was duly authorized to execute the same for his principals. It was therefore held that the circuit judge should have decided as matter of law that Niles Wheeler are not bound by such bill of lading and the plaintiff should have been nonsuited.
On the trial of this action which took place since the decision of Dows v. Perrin the plaintiff gave evidence tending to establish the authority of Walker, and the judge before whom the case was tried without a jury, finds as matter of fact "that Walker had authority to execute it (the bill of sale) for Niles Wheeler and that it was in fact so executed by Walker with the knowledge and sanction of one of the firm of Niles Wheeler." Assuming this finding on the facts to be conclusive on that question, it remains to consider what legal *Page 643 inferences are deducible therefrom in connection with the other facts in the case.
The first inquiry that suggests itself is, what is the force of the bill of lading thus established. Niles Wheeler were the vendors of the corn, and they the carriers or agents for the carriers. This bill of lading therefore executed by them imported a sale of the corn to Mack, and a delivery to, and receipt of, the same by them for the transportation company of which they are the members and agents, for transportation to New York, with a consignment of the same to Dows Carey, the plaintiff's firm. This bill of lading is dated August 7, 1848. It was delivered to Bloss the same day and sent to Mack at Rochester who on the next day (August 8) indorsed it to Dows Carey and delivered it to their agent Chappell and procured his indorsement of a draft then and there made by him upon the consignees, which he caused on the same day to be discounted at Bank, and then and there received the proceeds thereof. The plaintiff's firm therefore upon the faith of this bill of lading, and another of the same date and import for corn shipped on the boat Cuba, advanced Mack $1,800, on the 8th of August. Mack having thus obtained these bills of lading and on the faith of them large sums of money upon drafts upon Dows Carey fails and absconds on the 10th of August. Which of these parties, the vendors of the corn or the plaintiff's firm must sustain the loss is the question practically involved in our decision.
It is claimed by the appellants that Mack having obtained the bill of lading fraudulently, the title to the corn never passed to him, and that he could not transfer any title to it by the assignment of the bill of lading. A bill of lading doubtless is not negotiable like a bill of exchange. But to a certain extent it is a substitute for the property embraced in it, and is transferable, and its assignment and delivery is equivalent to a sale and delivery of the property. (Fitzhugh v. Williams, 5 Seld., 565; Gibson v. Stevens, 8 How. U.S., 399.) Its delivery is symbolical of the property, and the title passes by delivery of the bill of lading wherever it could pass by *Page 644 bill of sale of the property, accompanied by actual delivery.
A person who had stolen a bill of lading could not assign it so as to pass the property, any more than a person can give title to stolen property, or property tortiously taken.
It is a fundamental rule in the law of property, that a man cannot be deprived of his property without his consent or fault. But when he has consented to part with the possession of his property upon a contract of sale, and actually delivers it, though it be to a fraudulent vendee, the title passes and he may lose it, and will if the fraudulent vendee, before he rescinds the contract, or reclaims the property, or stops it intransitu, sells it to a bona fide purchaser.
A contract of sale, infected by fraud, is valid as against the party committing the fraud, and is valid to pass and to protect a transfer of the property when there is an absolute delivery as against the vendor till it is rescinded. As against him and in his favor, it is a voidable contract, voidable at his election; as against all other persons it is a valid contract until rescinded. (Mann v. Walsh, 8 Cow., 238; Evans v. Saltus, 12 Pick., 306; 20 Wend., 272.)
Now I conceive that the same rule applies to this bill of lading that would apply to a case of sale and delivery of personal property. It is not, strictly speaking, negotiable in a commercial sense; but it is assignable like any common law security. It is just as capable of transfer as is the property specified in it. The corn mentioned in this bill of lading was a vendible commodity. This bill of sale represents the corn. An assignment and delivery of the bill of lading is equivalent in legal force to the sale and delivery of the corn. It is documentary evidence of title in and to the property specified in it, and conclusive as against all the parties to it in the hands of a bona fide holder. Such is the rule of the common law as settled in numerous cases and recognized since the celebrated case of Lickbarrow v. Mason (2 Term, 63; S.C., H. Bl., 392; 6 East., 21). In that case ASHHURST, J., said "The delivery of the bill of lading, as between the vendee *Page 645 and third persons, is a delivery of the goods themselves." GROSS, J., said "The question was whether the bill of lading transfers the property. I think it does." BULLER was of the same opinion. This case was greatly discussed and carefully considered, was reviewed in the Exchequer and in the House of Lords, and is generally considered as settling two questions; first, that the unpaid vendor may stop the goods in transitu, upon the insolvency of the vendee; secondly, that this right of stoppagein transitu will be defeated by the transfer of the bill of lading to a bona fide indorsee before the right of stoppage is exercised; the assignment of the bill of lading, in such case transferring the property. (1 Smith's Leading Cases, 879.)
And this rule stands, it seems to me, upon impregnable ground in equity — upon the principle that whenever one of two innocent persons must suffer by the act of a third, he who has enabled the third person to do or occasion the injury, or commit the fraud, if it be one, must sustain the loss. The application of this plain principle of equity will cast the loss in this case upon the vendors, Niles Wheeler.
Upon the finding upon the facts they are responsible for the existence of this bill of lading — for its delivery to Bloss — for its possession by Mack. They did contract to sell the corn to Bloss. They did deliver it on board the canal boat on the 7th of August, when it was not to be paid for till the 11th or 12th, and in transportation, and they suffered the boats to leave Buffalo for their destination with the corn on board under the bill of lading. They thus put it in the power of Mack to procure credit on the faith of the bill of lading, and to secure an advance upon the corn from the consignee and commit the fraud. Upon these facts, Niles Wheeler should be held concluded by their bill of lading, and should be deemed estopped from setting up, as against an innocent consignee, that the same was procured by fraud, or that the sale of the property was conditional, and that the title never passed to Mack. They have certified in their bill of lading that they had received this corn from Mack to transport to Dows Co., *Page 646 the consignees, and cannot be permitted to falsify their own written statement. So far as the question depends upon the rules of common law, as deduced from the decided cases, the rights of the consignees to this property are superior to those of the vendors.
But if this were not so, I do not see how the appellants could escape the effect of the act in relation to principals and factors and agents, passed April 16, 1830 (chap. 179, p. 203). The first section is as follows:
"SEC. 1. After this act shall take effect every person in whose name any merchandise shall be shipped, shall be deemed the true owner thereof, so far as to entitle the consignee of such merchandise to a lien thereon; 1st, for any money advanced, or negotiable security given by such consignee to or for the use of the person in whose name such shipment shall have been made: and 2d, for any money or negotiable security received by the person in whose name such shipment shall have been made to or for the use of such consignee." This act was not referred to in the decision of the case of Dows v. Perrin.
The finding on the facts that Walker was authorized to sign this bill of lading, makes it the act of Niles Wheeler. The plaintiffs accepted negotiable drafts and paid them on the faith of this bill of lading, and are expressly and distinctly within the protection of this act. The drafts were made by Mack, on the 8th of August and indorsed by Chappell for plaintiffs' benefit and discounted on that day. The plaintiffs were bound to accept on their contract made with Mack and Chappell, and after the discount of the drafts could not refuse to pay them. They were bound to pay them to protect Chappell, who was their agent, and acting for their benefit in the transaction.
A single point remains. It is claimed that the recovery is excessive, and that the plaintiffs should only have recovered the amount of their advance. The property was not delivered to the plaintiffs. The proper judgment, therefore, was for the recovery of possession of the property, and in case a delivery of the said property cannot be had that the plaintiffs recover *Page 647 the value thereof. Such is the judgment. But the plaintiff has no claim to anything further than to receive the amount of his advance and damages for detention, and beyond that the equitable interest in the property belongs to the general owners or the defendants as their representatives. The value was assessed at the full value of the property instead of the plaintiffs' special property. This, I think, was the proper measure of value.Fitzhugh v. Wyman (5 Seld., 599), where, as in this case, the plaintiff has only a special property. But no question of this kind was made on the trial, and the value was assessed at 55 cents instead of 38 per bushel, without objection or exception. The excess that the plaintiffs may recover will belong to Messrs. Niles Wheeler, as the general owners or their consignees, but the error cannot now be rectified in this action.
The judgment of the court below, should therefore be affirmed.
DENIO and SUTHERLAND, Js., did not concur in the opinion that the title to the corn would have passed had the bill of lading been procured by fraud. They put their concurrence upon the ground that the plaintiffs were within the protection of the factors' act. SELDEN, Ch. J., did not sit in the case.
Judgment affirmed.