[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 174
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 175
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 176
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 177 This is a suit in equity brought by the plaintiffs to recover the proceeds of certain lumber sold to the Henry D. Davis Lumber Company. The latter purported to assign a part of the invoices on resale to the First National Bank of Portland. From a judgment in favor of the plaintiffs, the First National Bank of Portland and Thomas H. Mills, as receiver of the Henry D. Davis Lumber Company, have appealed.
In February, 1932, and for some time prior thereto, the Henry D. Davis Lumber Company, an Oregon corporation, was engaged in business in the city of Portland, Oregon, as a wholesale dealer in lumber. In the *Page 178 ordinary course of its business, it contracted to sell lumber to vendees procured by it, and would buy lumber from different manufacturers for resale to customers in different parts of the United States. The plaintiffs are each engaged in the manufacture and sale of lumber at plants within the state of Washington; the Long-Bell plant being at Longview, the Snoqualmie Falls Lumber Company's plant being at Snoqualmie Falls, and the two plants of the Weyerhaeuser Timber Company being, one at Longview and one at Everett, all within the state of Washington. The Weyerhaeuser Sales Company, of Tacoma, Washington, is a sales agent for the Weyerhaeuser Timber Company and the Snoqualmie Falls Lumber Company, and upon the receipt and acceptance by it of orders for lumber it allocates the same, in its discretion, to and among the Snoqualmie Falls Lumber Company and the plants of the Weyerhaeuser Timber Company.
During the time from January 28, 1932, to February 13, 1932, both dates inclusive, the Weyerhaeuser Sales Company received from the Henry D. Davis Lumber Company seven orders for lumber for water shipment. Six of these orders directed that the delivery be made F.A.S. Ship's Tackle, Mill Dock, and designated, as the places of final destination, points on the Atlantic coast, and one order directed delivery F.A.S., Everett Harbor on board scow, designating Bremerton, Washington, as the place of final destination. Each of these orders specified the terms: "100% advance less 2% discount 15 days". The Weyerhaeuser Sales Company would not accept any of the orders on such terms and immediately upon receipt of each order it mailed to the Henry D. Davis Lumber Company an acknowledgment thereof, but specified the terms as "Terms 98% *Page 179 Cash in Exchange for Documents", and on each of such acknowledgments was plainly printed the following: "Order accepted as written hereon. Please advise at once if not satisfactory." The Henry D. Davis Lumber Company made no objection to the cash terms, as stated in the acknowledgment. An officer of the Henry D. Davis Lumber Company, on trial, testified, in substance, that the time for payment, of fifteen days credit requested, was so short and that there was so little difference in the proposition of the Sales Company, that he did not take the matter up with the Sales Company, as he would if he had not accepted the proposition as made by it to the Henry D. Davis Lumber Company, and they proceeded with the carrying out of the order as accepted by the Sales Company, and, no objections to the terms having been made, the Weyerhaeuser Sales Company allocated the orders, two to the Snoqualmie Lumber Company and the other five to the two plants of the Weyerhaeuser Timber Company, and they were all filled in due course, the shipments in each case being two weeks or more subsequent to the receipt of the order and submission of the acknowledgment. Upon the different shipments being made, the documents, consisting of invoice, mate's receipt, and P.L.I.B. (Inspection certificate) were mailed to the Henry D. Davis Lumber Company at Portland, Oregon, and were duly received by it.
In the case of the Bremerton shipment there was no mate's receipt, the shipment being by scow. The invoice in each case plainly stated the terms of sale, as had been stated previously in the acknowledgment of the order, namely, "Terms 98% Cash in Exchange for Documents", copies of the invoices being attached to the complaint and marked as exhibits. *Page 180
On January 28, 1932, the Long-Bell Lumber Sales Corporation received an order for lumber from the Henry D. Davis Lumber Company, to be shipped by water. This order directed delivery F.A.S. Ship's Tackle, Mill Dock, and designated points on the Atlantic coast as the places of ultimate destination. This order also specified the terms as "100% Advance Less 2% Discount 15 Days". The Long-Bell Lumber Sales Corporation would not accept the order on such terms, but on the following day, January 29, 1932, mailed to the Henry D. Davis Lumber Company an acknowledgment of the order specifying the terms as "Cash Less 2% Upon Receipt of Papers", and there was plainly printed on such acknowledgment a notice that the order was accepted on the terms written thereon and to advise at once if the terms were not satisfactory. This acknowledgment was accompanied by a letter calling attention to the change in terms and advising the Henry D. Davis Lumber Company that the lumber would only be sold on cash terms. The Henry D. Davis Lumber Company made no objection to the cash terms as contained in the acknowledgment. As explained in the testimony of one of its officers, the order was filled by the Long-Bell Lumber Sales Corporation and then later the company, upon completing delivery, prepared and mailed to the Henry D. Davis Lumber Company at Portland, Oregon, the proper documents consisting of invoice, mate's receipt and P.L.I.B., and the same was duly received.
The invoices stated the terms as contained in the acknowledgment, namely, "Cash Less 2% Upon Receipt of Paper", copies of the invoices being attached to the complaint and marked as exhibits. The shipment of such lumber was from three to four weeks subsequent *Page 181 to the receipt of the order and the submission of the acknowledgment. The deliveries of all of the aforesaid lumber were made from February 15 to February 27, 1932, both dates inclusive. None of the plaintiffs were ever paid for any of such lumber. The sales involved, or rather the proceeds thereof, are in somewhat different categories. The appellant bank is not interested, other than as trustee, in some of them. One shipment was resold by the original purchaser to private parties while the others were resold to the government. The Bremerton shipment was delivered to the subpurchaser prior to the notice of stoppage in transitu.
The different sales are arranged and classified in parcels as follows: Parcel 1. Lumber sold by Snoqualmie Falls Lumber Company, described in the invoices, amounting to $656.34; Parcel 2. Lumber sold by Weyerhaeuser Timber Company, described in the invoices, amounting to $2,176.14; Parcel 3. Lumber sold by Weyerhaeuser Timber Company and described in the invoice, amounting to $416.58; Parcel 4. Lumber sold by Weyerhaeuser Timber Company, described in the invoice, amounting to $1,980.56; Parcel 5. Lumber sold by Weyerhaeuser Timber Company and described in invoice amounting to $1,197.37; Parcel 6. Lumber sold by Weyerhaeuser Timber Company and described in the invoice, amounting to $205.13; Parcel 7. Lumber sold by Weyerhaeuser Timber Company and described in the invoice (Exhibit G) amounting to $1,928.94; Parcel 8. Lumber sold by Long-Bell Lumber Sales Corporation, described in the invoice amounting to $1,974.65; Parcel 9. Lumber sold by Long-Bell Lumber Sales Corporation, described in the invoice amounting to $2,949.09.
The Henry D. Davis Lumber Company caused Parcel 7 to be transported to Bremerton, Washington, by *Page 182 scow and there sold and delivered to the United States Navy Department. Soon after the Henry D. Davis Lumber Company received the documents for the other parcels, it procured bills of lading therefor and caused the lumber to be shipped to subpurchasers on the Atlantic coast, designating in the bills of lading the Henry D. Davis Lumber Company as shipper and the subpurchasers as consignees. None of the plaintiffs were advised of this. All of the bills of lading were straight nonnegotiable bills of lading; no order bills of lading were taken.
The Henry D. Davis Lumber Company made out invoices on its own form to its subpurchasers for the amounts of the subpurchase money and purported to assign such invoices covering all of the lumber, excepting Parcels 1 and 2, to the appellant bank. The bank is not interested in the proceeds of Parcels 1 and 2, excepting as trustee.
On March 5, 1932, the Henry D. Davis Lumber Company, being insolvent, made a general common-law assignment for the benefit of its creditors, and all of the lumber involved, excepting parcel 7, was then still on board ships and in course of transit to the subpurchasers on the Atlantic coast of the United States. Upon learning of such assignment, and of the insolvency of their vendee, each of the respondents gave notice of stoppage in transitu to the carriers transporting the lumber, notifying such carriers that the title to the lumber had not passed from the respective respondents, for the reason that the same was sold as a cash sale and the purchase price had not been paid, and that, in event the title had passed, respondents claimed the right of stoppage in transitu, as unpaid sellers.
An agreement was then made between all of the parties hereto, excepting the appellant receiver who *Page 183 had not yet been appointed, whereby it was agreed that the respondents would each withdraw their notices of stoppage in transitu; that the lumber should be delivered to the subpurchasers and the appellant bank would collect the purchase money payable by the subpurchasers and hold the same in a special trust fund in lieu of the lumber, and that all rights and interests of each and all of the parties involved, to any of the lumber mentioned in plaintiffs' complaint, or the proceeds thereof, should be determined in one judicial proceeding, to which all parties interested should be made parties plaintiff or defendant, and after the appointment and qualification of said receiver the court made and entered an order making him a party to said agreement and directing that he be made a party to such proceeding. Upon the signing of said agreement, each of the respondents withdrew its notice of stoppage in transitu and the lumber was delivered to the respective subpurchasers. The net proceeds of the different parcels of lumber involved were collected by the receiver and turned over to the defendant bank, except that the bank collected the proceeds of Parcel 3 direct from the subpurchaser and the amounts thereof and the application of the same by the bank are as follows:
Amount Placed in Paid to Paid to Credited to Collected Trust Appellant Appellant Receiver's Bank Receiver Margin Account
Parcel 1 _______ $ 713.77 $ 656.34 $ _______ $ 157.43 $ _______
Parcel 2 _______ 2,435.25 2,176.14 _______ 259.11 _______
Parcel 3 _______ 428.76 416.58 12.18 _______ _______
Parcel 4, 8 ____ 4,021.18 3,955.21 65.97 _______ _______
Parcel 5, 9 ____ 4,371.49 4,146.41 225.08 _______ _______
Parcel 6 _______ 266.78 205.13 61.65 _______ _______
Parcel 7 _______ 2,305.31 _______ 2,088.64 _______ 216.67 *Page 184
The invoices for said lumber, i.e., Parcels 3 to 9, inclusive, were assigned to the appellant bank by the Henry D. Davis Lumber Company in the following manner: In the case of Parcel 3, the bill of lading (a straight nonnegotiable bill) was transferred to the bank; in the case of Parcels 4 to 9, inclusive, no bills of lading were transferred; neither were the original invoices, but copies of the invoices were delivered to the bank with a form of assignment, assigning "the within invoice" endorsed thereon, with a verbal agreement that the Henry D. Davis Lumber Company would send the original invoice and bill of lading to the subpurchaser, collect the subpurchase money and remit the same when collected to the appellant bank. Each of such assignments was made as collateral security to secure the payment of a promissory note given by the Henry D. Davis Lumber Company to the appellant bank at the time of the assignment, and the bank would credit the Henry D. Davis Lumber Company's general deposit account with the amount of the note.
The date of each assignment and the amount of the note to secure the payment of which the assignment was made, were as follows:
Date of Assignment Amount of Note
Parcel 3 February 23, 1932 $ 395.00 Parcel 4, 8 February 24, 1932 3,775.00 Parcel 5, 9 March 1, 1932 3,950.00 Parcel 6 March 3, 1932 270.00 Parcel 7 February 24, 1932 2,075.00
On March 10, 1932, the appellant bank was advised of the terms on which the lumber had been sold to the Henry D. Davis Lumber Company by the plaintiffs, and that it had not been paid for. On that date, when *Page 185 the bank was advised of the terms on which the lumber had been sold, and that it had not been paid for, there was still on deposit in said bank to the general account of the Henry D. Davis Lumber Company the full amount of the loan made by the bank for the assignment of the invoice for Parcel 6, namely $270, and on the following day, March 11, the bank permitted the assignee of the Henry D. Davis Lumber Company to withdraw the same. None of the lumber involved, except Parcel 7, was paid for by the subpurchasers prior to about April 1, 1932. The trial court held that the respondents were entitled to the proceeds of the lumber in the amount of the agreed sale price, that is, 98 per cent of the price quoted, with interest at the legal rate, and rendered judgment and decree accordingly. By virtue of the stipulation, this suit is rendered practically a suit in interpleader. The bank asserts that it is entitled to so much of the moneys in the trust fund as is necessary for the repayment of the moneys borrowed from it by the Henry D. Davis Lumber Company and secured by the pledge of these accounts. The receiver asserts a right to the balance remaining in the trust fund, after the satisfaction of the bank's interest therein. Plaintiffs assert a right to receive from the fund the price for which the lumber was sold to the Henry D. Davis Lumber Company, and contend that so long as the lumber remained in transit the right of stoppage in transitu could be asserted by them: 55 C.J. 911, § 893.
At the outset, we are burdened with the thought that an innocent party must suffer a loss. Fraud is not pleaded or suggested in this case on the part of any of the parties. We mention this because some of the cases *Page 186 cited by appellants involved, and are governed by, the question of fraud.
As a general rule, both at common law and under statutory provisions in some jurisdictions, where the right has not been waived, an unpaid seller, who has parted with the possession of goods to a carrier for transportation to the buyer, may, if the buyer is or becomes insolvent, stop the goods in transit, that is, he may resume possession of the goods so long as they are in the course of transit, and may retain them until payment or tender of the price: 55 C.J. 907, § 889. The right may be exercised by any person who, as between himself and the buyer, may be considered as an unpaid seller: 55 C.J. 910, § 892. There is no particular method required for exercising this right:Frame v. Oregon Liquor Co., 48 Or. 272 (85 P. 1009, 86 P. 791). The right of stoppage in transitu extends not only to the property itself but also extends to the proceeds of the property: 55 C.J. 910, § 891. The right may be asserted not only against an insolvent buyer but also against ordinary purchasers or transferees of the buyer to whom a bill of lading has not been properly transferred, and against an assignee for the benefit of creditors, or a receiver appointed for the estate of the buyer: 55 C.J. 911, § 893.
The right of stoppage in transitu is not terminated until there has been a final delivery of the goods to the vendee or his agent at the place named by the vendee to the vendor as the place of final delivery or ultimate destination of the goods. Delivery at an intermediate point or delivery to a person acting as a carrier or forwarding agent will not terminate the right:Aguirre v. Parmelee, 22 Conn. 473; Markwald v. Creditors,7 Cal. 213; Blackman v. Pierce, 23 Cal. 508. *Page 187
Leaving out of consideration, for the present, the shipment to Bremerton, Washington, Parcel 7, by means of a scow, let us notice particularly the arrangements for the shipping and the ultimate destination of the lumber in question. A sample of the order for the lumber in this regard is as follows:
"Portland, Oregon, Our Order N. 8612-A Feb. 13, 1932.
To Weyerhaeuser Sales Company, Cargo Department, Tacoma, Wash. Ship to Henry D. Davis Lumber Company, Ship's Tackle Mill Dock, at Longview, Washington.
Send Invoice to Henry D. Davis Lumber Co., Portland, Ore.
When In stock — to load the SS ____
Route Vessel destined to Boston, Mass. [Italics ours]
Terms 100% advance less 2% discount 15 days. Price FAS Ship's Tackle Mill Dock, Wash. Where vessel can always lie safely afloat."
Then follows the description of the lumber. It will, therefore, be seen that it was understood by the vendors, the plaintiffs, and the vendee, the Henry D. Davis Lumber Company, that after payment therefor, the lumber was to be shipped to its final destination, Boston, Mass., and other places on the Atlantic coast. The plaintiffs were the sellers and have never been paid for the lumber. But little is said in the record in regard to how far the lumber was moved from the mill to the dock. The Henry D. Davis Lumber Company, the vendee, caused the lumber to be consigned to third parties at different points on the Atlantic coast. The plaintiffs, the sellers, were not privy to that arrangement. They did not waive the right to be paid cash "In Exchange for Documents" and were not bound by it, and they *Page 188 exercised the right of stoppage in transitu against a third party, consignee: Aguirre v. Parmelee, supra.
Except in one instance, the bills of lading were not transferred to the bank. There was an assignment made of the account or invoice, but we mention the matter as though a straight bill of lading had been transferred.
The Henry D. Davis Lumber Company made up invoices to the government and delivered copies thereof to the bank with a form of assignment, attempting to assign "the within invoices". The bank then loaned the Henry D. Davis Lumber Company a sum of money, taking its unsecured promissory note for the amount with the verbal agreement that the Henry D. Davis Lumber Company would send the original invoices and bills of lading to the Navy Department, endeavor to collect the money, and pay its note to the bank from the proceeds if and when collected. In some instances a copy of the bill of lading was attached to the copy of invoice delivered to the bank, and in others not; in some instances the bill of lading had not even been issued. There was no attempt to assign or transfer the bill of lading or the original bill of lading or the original invoice. The transaction amounted to an equitable assignment: Island Pond Nat. Bank v.Lacroix, 104 Vt. 282 (158 A. 684); Henry v. Black, 213 Pa. 620 (63 A. 250).
Bills of lading, in a qualified and restricted sense, have the attribute of negotiability and are frequently described as quasi negotiable. But while the transfer of bills of lading will pass the title to the goods, unless the common-law has been modified by statute, these instruments are not negotiable in the sense in which the term is applied to bills and notes and other *Page 189 negotiable instruments of a like character. And this is so, even when the bill of lading in terms runs to order or assigns. The rights of the parties are not to be determined by the application of rules which control the transfer of commercial paper. Although it has sometimes been said that a bill of lading is negotiable, nothing more is meant by this than that the transfer of the bill of lading passes to the transferee only such right or title as the transferor had to the goods therein described, and the negotiability, even to this limited extent, may be destroyed by printing across the face of the instrument words "not negotiable": 10 C.J. 205, § 271.
Tersely stated, the transfer of a straight bill of lading will not cut off the seller's right of stoppage in transitu. In such case the transferee acquires no greater or additional rights than his transferor. The same may be said in regard to the assignment of the account or invoice. An assignee of a "straight" bill of lading stands in all respects in the same shoes as his assignor: Quality Shingle Co. v. Old Oregon L. S. Co.,110 Wash. 60 (187 P. 705); Cashmere Fruit Growers' Union v. G.N.R.Co., 149 Wash. 319 (270 P. 1038). The shipments now under consideration were interstate shipments. Section 109, Title 49, U.S. Code, provides as follows:
"A bill may be transferred by the holder by delivery, accompanied with an agreement, express or implied, to transfer the title to the bill or to the goods represented thereby. A straight bill can not be negotiated free from existing equities, and the indorsement of such a bill gives the transferee no additional right."
The right of stoppage in transitu is not terminated until there has been a final delivery of the goods to the vendee or his agent at the place named by the vendee to the vendor as the place of final delivery or other destination *Page 190 of the goods. Delivery to a person acting as a carrier or forwarding agent will not terminate the right. In the case ofMarkwald v. Creditors, supra, the vendee had purchased an invoice of cigars in Havana and directed the vendor to ship them to P. S. at New York. The vendee directed the New York house, on receipt of the goods, to reship them to San Francisco. While the goods were in transit from New York to San Francisco, the vendee became insolvent and the vendor gave notice of stoppage in transitu. It was held that the New York house being agent only for the purpose of expediting the carriage of the goods to their original destination, delivery to them did not terminate the right of stoppage in transitu. The court said:
"It is well settled that the right to stop goods in transitu, exists until they arrive at the termination of their journey or have come into the possession of the consignee. Depositing them at an intermediate point with an agent of the vendee, for the purpose of being forwarded, does not terminate the transitus." To like effect, see Blackman v. Pierce, supra.
In the case at bar the appellants take the position that the delivery of the lumber F.A.S. Ship's Tackle, Mill Dock, ended the transit so far as the plaintiffs were concerned. Such, however, is not the case. Delivery of the lumber on the docks alongside ships or on board ships was not a delivery to the vendee, except for the purpose of shipment. If it be said that the carriers were agents of the vendee because the latter had chartered the space in the boats, they were agents for the purpose of transportation only, and delivery to a forwarding agent or a carrier for the purpose of transportation does not end the transitus of the goods. In the case of Markwald v.Creditors, supra, there had been a full and complete delivery of the goods to the *Page 191 buyer's agents in New York, who re-shipped them to the buyer at San Francisco, and the court held delivery to the New York house did not terminate the right of stoppage in transitu, but that such right continued until the arrival of the goods at their ultimate destination at San Francisco. In Blackman v. Pierce, supra, the goods were delivered to an agent of the buyer at a river port, from whence they were to be taken by wagon to the buyer's place of business in another town. It was held that delivery at the intermediate point did not terminate the transitus, and that the right of stoppage in transitu continued until the arrival of the goods at their final destination.
The transitus in the instant case would continue until the lumber arrived at the respective places named by the Henry D. Davis Lumber Company to the plaintiffs as the places of final delivery or ultimate destination of the lumber, which places were: Boston, Mass., Brooklyn, N.Y., Philadelphia, Pa., Baltimore, Md., and Norfolk, Va. None of the lumber had arrived at these places, but the whole thereof was in transit thereto, when the notices of stoppage in transitu were served, or when the stipulation which took the place of further notices was signed:Whitehead v. Anderson, 9 Mees. W. 534.
In Mohr v. Boston Albany R.R. Co., 106 Mass. 67, A sold to B, in Boston, a number of barrels of whisky then in a bonded warehouse in Indiana, B giving his acceptances for the price and the warehouseman giving his certificate for the whisky as the property of B. A agreed that when so requested he would draw the whisky from the warehouse, pay the taxes, charges and insurance, and draw on B for the amount. The goods, while in the warehouse, were regarded as in the hands *Page 192 of an intermediate agent on their way to the vendee. We read in 7 A.L.R. (Annot.) p. 1399, a discussion of the case of Harris v.Pratt, 17 N.Y. 249, affirming 6 Duer. 606, as follows:
"Here two partners, under different firm names, carried on businesses at New York and at Nottingham, England. The Nottingham firm bought goods in their firm name, expressly stating that they were for the New York house, and directing that they be sent to a Liverpool firm, which was a shipping agent, to await further orders for shipment. The invoice was to the Nottingham firm, and the vendors, on shipping the goods to the Liverpool agent, wrote that they were sending the goods for the Nottingham firm, from whom `you will receive further instructions.' On the same day the vendee sent shipping directions to the Liverpool firm. While the goods were on shipboard between Liverpool and New York, the vendors sought to exercise the right of stoppage in transitu, and it was held that the transit had not ended with the delivery to the Liverpool agents, the court holding to the theory that New York was the destination contemplated by both the vendors and the vendees, wherefore the Liverpool firm was merely a forwarding agent. In this connection, Denio, J., among other things, said: `We cannot consider the sending of the goods by the plaintiffs to the shipping agents at Liverpool as a full and final delivery of them to the purchasers. We regard what was done by the Halls of Nottingham, in giving directions to the shipping agents, to have been in aid of the general purpose of sending the goods to New York. The partner at Nottingham, though in law one of the purchasers, acted in regard to these goods as an agent of the house at New York in facilitating the transportation to that city. During the short time the goods remained in the hands of these agents, before the directions came from Nottingham, they could not be said to be "awaiting new orders from the purchaser to put them again in motion to communicate to them another substantive destination." * * * New York *Page 193 was the destination contemplated from the beginning. It was the one named to the vendor, and there was no thought of diverting the goods from that point, at any time or by any person. They were awaiting a new impulse only in the sense in which that may be predicated of freight in transitu which is temporarily at rest while arrangements are making to send it forward on the journey on which it was originally embarked. We are of opinion, therefore, that the transitus was not determined at Liverpool.' And Strong, J. said: `The extent of the transit does not depend upon the direction or address of the goods, in a shipping bill or otherwise, or any information to the carrier, but only upon the purposes of the buyers communicated to the sellers, unless some change of purpose occurs'."
As to the delivery to a ship of the vendee, see Annot. 7 A.L.R. 1405.
So, in the present case, the destination of the lumber, according to the orders therefor made by the Henry D. Davis Lumber Company, which were accepted as modified by plaintiffs, was not the mill dock, but Boston, Mass., or some other Atlantic coast point. Practically every shipment of the lumber that was made was from the state of Washington by water to points on the Atlantic coast. The final destination of the shipment, as contemplated by both the vendors and the vendees, and as thoroughly understood, was some point on the Atlantic coast.
The original contract for the sale of the lumber plainly provided that the Henry D. Davis Lumber Company should pay "Cash on Receipt of Documents". The Henry D. Davis Lumber Company received the documents, which included invoices, inspection certificates and mates' receipts, showing that the lumber had been furnished and placed in accordance with the purchaser's order, but that company failed to pay for the *Page 194 lumber, as agreed. The testimony shows that plaintiffs never waived any of the terms of the contract or arrangement, or agreed to any condition of payment other than that provided by the original contract, and no title to the lumber passed to the Henry D. Davis Lumber Company, or to its assignee.
Plaintiffs had a right to reclaim the lumber irrespective of their right of stoppage in transitu. Where the sale is for cash and the purchase price is not paid, the title, notwithstanding delivery, does not pass from the seller, and in the absence of a waiver or estoppel the seller may reclaim the goods, either from the buyer or from a third party claiming under the buyer. The buyer having no title himself can pass none, even to an innocent purchaser for value: Johnson v. Iankovetz,57 Or. 24 (102 P. 799, 110 P. 398, 29 L.R.A. (N.S.) 709); PeoplesState Bank v. Brown, 80 Kan. 520 (103 P. 102, 23 L.R.A. (N.S.) 824); McIver v. Williamson, 19 Okla. 454 (92 P. 170, 13 L.R.A. (N.S.) 696); 55 C.J. 920, 921, § 905.
In the sale of cumbersome articles like lumber, it can not be delivered and collection made therefor in the same manner as goods are sold over the counter. Where payment is to be made for lumber "Cash in Exchange for Documents" there is necessity for sufficient time to examine or check the documents, ascertain if the invoice corresponds with the order, if the inspection certificate is in proper shape and if the mate's receipt covers all the lumber described in the invoice: Samuel M. Lawder SonsCo. v. Albert Mackie Grocer Co., 97 Md. 1 (54 A. 634).
Delivery and payment are concurrent conditions unless otherwise agreed: § 64-502, Oregon Code 1930. A transfer of a non-negotiable document gives no additional *Page 195 right: § 64-415, Oregon Code 1930. The property in goods passes when parties so intend: § 64-402, Oregon Code 1930.
The appellants contend that the plaintiffs waived the payment of cash upon delivery of documents. A prior course of conduct under previous contracts will not operate as a waiver of an express stipulation in a new contract. To constitute a waiver of the condition of payment, there must be not only an act of delivery but also an intent not to insist on immediate payment as a condition of the title passing. In a cash, or cash on delivery sale, if the seller delivers but the buyer violates his promise to pay, the buyer does not acquire title: First State Bank ofBrandon v. Kohl, 79 Colo. 620 (247 P. 571); Hale v. BeleyCotton Co., 154 Tenn. 689 (290 S.W. 994). And after delivery the title remains in the seller until payment unless he waives the right to treat the sale as a cash transaction: Pyrene Mfg. Co.v. Burnell, 127 Me. 503 (144 A. 649); Luce v. Brown, 96 Vt. 140 (118 A. 530). If the contract provides for payment, delivery alone is not sufficient to pass title: 55 C.J. 573, § 580. If the seller delivers on an understanding, express or implied, that he is to receive immediate payment, and he does not, he may reclaim the goods, or if he delivers on payment by check and the check is dishonored he may reclaim the property, or its value: 55 C.J. 576, § 583; In re Perpall, 256 Fed. 758 (168 C.C.A. 104); Clark v. Hamilton Diamond Co., 109 Cal. 1 (284 P. 915). The vendor may reclaim the property from the vendee or any party who has no greater equities: Mott v. Nelson, 96 Okla. 117 (220 P. 617); First National Bank of Byars v. Griffin,31 Okla. 382 (120 P. 595, 49 L.R.A. (N.S.) 1020).
From a careful consideration of the record, we are unable to agree with appellants that the sale was on *Page 196 a short-time credit or other than cash on delivery of documents. On receipt of the documents by the Henry D. Davis Lumber Company, checks were drawn by it in favor of the plaintiffs, the sellers of the lumber, for the several amounts named in the invoices in accordance with the contracts of sale or orders and acceptances, but the checks were not mailed or delivered to the sellers and were held, and payments were not made. This was in violation of the contracts providing for the terms of sale, "98% Cash in Exchange for Documents", or a similar stipulation of "Cash Less 2% Upon Receipt of Papers". The writing of the checks at the time of the receipt of documents by the Henry D. Davis Lumber Company shows that it was the understanding of the officers of that concern that it was a cash transaction and not a sale on credit. The Henry D. Davis Lumber Company had endeavored to obtain a purchase of the lumber on a fifteen-day credit, but this was refused by the sellers. The plaintiffs did nothing to indicate that they waived their right to immediate payment. They did not assent to a short-time credit: Johnson v. Iankovetz, supra.
The present case, except as to the Bremerton shipment, differs from those referred to by appellants where the vendee directs the vendor to ship the goods to a third party in the vendee's name as consignor. In such case there is a clear and unmistakable exercise of dominion and ownership on the part of the vendee, which is recognized by the vendor's compliance with the request, so as to terminate his right of stoppage in transitu: See Annot. 7 A.L.R. 1385; citing Treadwell v. Aydlett, 8 Heisk. (Tenn.) 388; Eaton v. Cook, 32 Vt. 58.
In the case at bar the documents were sent to the Henry D. Davis Lumber Company in Portland from *Page 197 Washington, and we find no assent on the part of the plaintiffs to the Henry D. Davis Lumber Company exercising any act of ownership over the lumber until the same was paid for, or any act of waiver of payment upon delivery of documents. They were to pay as indicated, by forwarding to plaintiffs valid checks of the Henry D. Davis Lumber Company. Checks were prepared but not mailed.
In Dows v. Dennistoun, 28 Barbour's (N.Y.) 393, the plaintiff sold 500 barrels of flour to one Cooper for cash, and the vendor, by Cooper's direction, sent the flour aboard ship to be sent to Liverpool for sale. The flour was so sent on board ship and Cooper received the bill of lading therefor. The referee found as facts that the purchase was for cash, by which the parties intended and meant payment in about ten days after the purchase, according to a custom in that trade to that effect. Six days after the sale Cooper sold the bill of lading, and a bill of exchange drawn upon it, to the defendants, upon the understanding that the same was to be paid for two days later. The defendants refused to pay for the bill of lading and bill of exchange and undertook to offset the amount against Cooper's indebtedness to them. The syllabus, which gives the gist of the opinion, reads thus:
"An understanding, arrangement or custom that the possession of the goods shall be intrusted to the vendee for the purpose of enabling him to realize upon them, and thus provide the means for the payment of the price, cannot be construed into an absolute transfer of the title to the property, as between the original parties to it, or persons having no greater equity than the original parties." See also Dows v. Kidder, 84 N.Y. 121.
An assignee or receiver can acquire no other, greater or better interest than the debtor had in the *Page 198 property. To this extent the receiver stands in the shoes of the debtor: 53 C.J. 100, 101, § 125; Re Assignment of Hamilton,26 Or. 579 (38 P. 1088); Roeblings Sons Co. v. Frederickson L. T.Co., 153 Wash. 580 (280 P. 93).
Plaintiffs were sellers of the lumber. They had a right to reclaim the property. They may also follow and recover the proceeds of the lumber so long as they can be identified. This would be true if they can be traced although they have become a part of a common fund: 55 C.J. 924, § 908; Dalrymple v. Randall,etc., Co. 144 Minn. 27 (174 N.W. 520); American Sugar-RefiningCo. v. Fancher, 145 N.Y. 552 (40 N.E. 206, 27 L.R.A. 757).
The question is raised, are the plaintiffs entitled to interest on their sale? As noted, after the plaintiffs had taken steps to reclaim the lumber other than of Parcel 7, and prior to the commencement of the action, an agreement was entered into between the parties whereby it was agreed that the lumber should be delivered to the subpurchasers and the subpurchase money collected and turned over to the appellant bank as trustee to be held in a special trust fund until the rights of the respective parties could be litigated.
The stipulation provides that the bank shall advance sufficient money to pay the freight charges to accomplish the delivery of all the lumber, the invoices for which have been assigned to it and the Adjustment Bureau will advance sufficient money to secure the delivery of all the rest of such lumber; that the bank shall immediately pay to itself all sums advanced for freight charges, "and also pay to itself interest on such advances at the rate of six per cent per annum, and shall pay to the Adjustment Bureau all sums by it advanced *Page 199 for such freight charges, without interest", and the remainder shall be held by the bank as such trustee for the parties finally determined to be entitled thereto. Paragraph 5 of the stipulation provides: "The moneys in and composing said trust fund shall, to all legal intents and purposes, stand and be in lieu of said lumber and in lieu of any rights or interests in the same or the proceeds thereof, * * *."
As heretofore noted, the bank, in accepting this trust, placed itself in a dual position. It is a claimant and also is practically a stakeholder for itself and the other parties claiming the fund. The suit, to all intents and purposes, is in the nature of an interpleader suit. After the proceeds of the lumber were received, if it had been settled as to whom it belonged, the indebtedness of the Henry D. Davis Lumber Company would have been satisfied as to that amount.
Noticing the particular agreement as to interest being paid to the bank and not to the Adjustment Bureau, there is no stipulation that interest on the trust fund held by the bank shall be paid. This is an equity suit, and we do not think it would be equitable for the trust fund to be reduced by the payment of interest on the amount due the plaintiffs. If the lumber had not been sold pursuant to the stipulation and was the subject of controversy in a suit similar to the present suit, there would have been no interest computed on the lumber. The amount of the interest on the amounts awarded to the plaintiffs by the decree should be eliminated.
We come now to a consideration of Parcel 7, the lumber shipped by scow to Bremerton, amounting to $1,928.94. In regard to this shipment, plaintiff alleges:
"That on or about February 19, 1932, the Plaintiff Weyerhaeuser Timber Company sold to the defendant *Page 200 the Henry D. Davis Lumber Company certain lumber for the agreed sum or price of $1,928.94 on the terms `Cash in Exchange for Documents,' to be delivered f.a.s. Everett, Washington, for shipment by scow to said buyer (Davis Lumber Company) at Bremerton, Washington, as evidenced by the invoice therefor, a copy of which is hereunto attached and made a part hereof and marked Weyerhaeuser's Exhibit `G'. That said plaintiff delivered said lumber f.a.s. Everett, Washington and transmitted the invoice therefor to said buyer at Portland, Oregon by United States mail and which the buyer duly received, but said defendant did not pay for said lumber on receipt of said document, nor at all, and said lumber was transported by scow and delivered to said buyer at Bremerton, Washington, and said buyer, without paying therefor and unbeknown to said plaintiffs, resold the same to a third party and assigned or purported to assign the invoice therefor to the defendant The First National Bank of Portland, * * *."
The invoice of the Weyerhaeuser Timber Company, sent to the Henry D. Davis Lumber Company for this shipment, was in part as follows:
"Weyerhaeuser Timber Company, Tacoma, Washington
Date February 19, 1932. Sold to Henry D. Davis Lumber Co., Portland, Oregon. Shipped To Same Bremerton Navy Yard Invoice No. EW-121 Our Order No. 2457-TW Your Order No. 8610 Vessel By Scow Shipped From Everett, Wash."
It will be seen by this invoice that the Weyerhaeuser Timber Company permitted the Henry D. Davis Lumber Company to ship this lumber to the Bremerton Navy Yard to itself. This shipment of lumber *Page 201 evidenced an act of ownership and dominion over the lumber by the Henry D. Davis Lumber Company, which was assented to in writing by the Weyerhaeuser Timber Company. When the lumber was delivered F.A.S. Everett, Washington, and the invoice and inspection certificate were mailed to the Henry D. Davis Lumber Company, plaintiff Weyerhaeuser Timber Company was entitled to payment for the lumber. After it permitted the Henry D. Davis Lumber Company to ship the lumber to Bremerton to itself, being the second delivery without requiring payment therefor, and sell it to the Bremerton Navy Yards, we think that the plaintiff Weyerhaeuser Timber Company waived the provision for the cash payment.
The appellant First National Bank is entitled to the proceeds of the Bremerton shipment to the amount of the money advanced to the Henry D. Davis Lumber Company thereon.
There was no right of stoppage in transitu asserted by the plaintiff Weyerhaeuser Timber Company in regard to the Bremerton shipment. That company, by its invoice, authorized the Henry D. Davis Lumber Company to ship the lumber as consignor to itself as consignee at Bremerton, or, in substance, as its own lumber and for its own use, thereby clothing the Henry D. Davis Lumber Company with the indicia of ownership of the lumber and arming the Henry D. Davis Lumber Company with authority to pledge the proceeds thereof to the defendant bank. Then the Weyerhaeuser Timber Company waited before it attempted to protect itself in any way until the Henry D. Davis Lumber Company sold the lumber to the United States Navy Yard. Afterward the price thereof was collected and paid to the defendant bank. This sale occurred in Weyerhaeuser *Page 202 Timber Company's own state of Washington, where it could easily have ascertained what was being done in regard to this lumber.
In 55 C.J. 638, § 655, it is said:
"If the owner of goods invests another with the indicia of an absolute title thereto or of authority to transfer them, and the latter, while the property is in his possession, sells it to a bona fide purchaser who relies on such possession and indicia of title thereto, the owner is precluded from asserting his claim as against such purchaser." See Fiore v. Ladd Tilton, 22 Or. 202 (29 P. 435); 24 R.C.L. 378, § 665.
This was the only parcel of lumber that either of the plaintiffs authorized, in writing or in any way, the Henry D. Davis Lumber Company to ship in its own name without payment therefor. The bank unquestionably acted in good faith in loaning the money to the Henry D. Davis Lumber Company and on the faith of the proceeds of the Bremerton shipment.
The respondent Weyerhaeuser Timber Company suggests in regard to the Bremerton shipment that the Henry D. Davis Lumber Company made up an invoice to the Navy Department on its own form. It failed to note, however, that the respondent Weyerhaeuser Timber Company authorized in writing the lumber to be shipped to the Henry D. Davis Lumber Company at the Bremerton Navy Yard.
The amount of the decree in favor of plaintiff Weyerhaeuser Timber Company on account of the Bremerton shipment of lumber was $1,890.36, which should be deducted from the judgment and decree of the trial court, in addition to the interest heretofore mentioned.
With the modifications or deductions above mentioned, the decree of the circuit court is affirmed. *Page 203 The stipulation of the parties provided that each of the parties should pay their own costs and disbursements in the circuit court, and we think, under the circumstances of the case, that the same rule should be applied upon this appeal. Therefore, each party will pay his or its own costs and disbursements in this court.
RAND, C.J., and BELT and KELLY, JJ., concur.