Action begun July 7, 1920, by plaintiff against the defendants W.H. Crozier Co., upon a claim of $200 for commissions upon 10 cars of oats sold by the plaintiff as broker for account of Crozier Co. to R.W. Pruitt Son, of Anderson, S.C. on April 14, 1920. The plaintiff is a resident of Anderson, S.C. *Page 102 and said defendants are grain dealers in Nashville, Tenn. Jurisdiction of the defendants was sought to be acquired by the levy on July 7, 1920, of an attachment in said action upon 60 sacks of oats in a car at Anderson, claimed by the plaintiff to have been the property of the defendants, Crozier Co.
Shortly after the levy (the precise date is not stated in the record), in July, 1920, the State Bank Trust Company of Nashville, Tenn., in accordance with the provisions of Section 287 of the Code of Civil Procedure, made demand for the property attached claiming to be "legally entitled to the possession thereof." The plaintiff contested the claim of the bank.
It seems (though this is not entirely clear) that the plaintiff's attorney docketed the cause on calendar 3 and proceeded to establish the amount of his claim by testimony before a jury, under section 305 of Code.
Upon the claim of the bank and the denial of that claim by the plaintiff, the presiding Judge made up the following issue:
"Who was the owner of the oats attached in the car at Anderson, S.C. at the time of said attachment by the sheriff?"
The plaintiff's attorney insisted upon the trial of both issues, the amount of his claim and that of title, at the same time. The attorney for the bank objected. The Court ordered them tried simultaneously. This was erroneous. The issues were entirely distinct. The one was an ex parte proceeding by the plaintiff against the debtor defendant in default to prove his claim. The other an issue made on the claim of a third person and the denial of it by the plaintiff, which should have been placed on calendar 1, and tried by a jury, uninfluenced and uncomplicated by the fact to be established in the matter of the proof of the claim. As the verdict was directed in favor of the defendant *Page 103 bank, and the plaintiff was the author of the error, there is no ground of reversal on account of it.
At the close of the testimony the Circuit Judge, upon the motion of the bank, directed a verdict in its favor. The record is silent as to the disposition of the default proceeding; nor does it contain a statement of the grounds upon which the motion for a directed verdict in favor of the bank was made or of the ruling of the Circuit Judge in sustaining it. We assume from the exceptions and the arguments of counsel that the motion was made and granted upon the ground that at the time the oats were attached the title thereto was in the bank.
The correctness of the Circuit Judge's action depends upon the necessary inferences to be drawn from the evidence.
The facts are these: On April 14, 1920, the plaintiff, a broker at Anderson, S.C. sold 10 cars of oats to R.W. Pruitt Son for account of the defendants, Crozier Co., grain dealers in Nashville, Tenn. Two of the cars were shipped, received, and paid for by Pruitt Son. The third car was shipped "order notify" with draft attached to the bill of lading and forwarded through commercial channels for collection in the usual manner. For some reason, not explained in the record, the draft was not paid upon notice to Pruitt Son, and was returned by the Anderson bank to its correspondents from whom it had been received for collection. Both the defendants, Crozier Co., and the State Bank Trust Company, offered evidence tending to show that the bank was a bona fide assignee of the draft and bill of lading at the time the draft was drawn and deposited with the bank which credited Crozier Co.'s account with the amount of it less a discount and forwarded it as their own property for collection. There is no evidence in the case to the contrary. The statements of W.H. Crozier over the telephone to Pruitt were entirely inadmissible for the reason that in the issue of title the bank cannot *Page 104 be concluded by the declarations of its assignor. After the draft was returned from the Anderson bank to the Nashville bank, and before the attachment was levied — that is to say, on July 3, 1920 — the Nashville bank charged the amount of the draft back to the account of Crozier Co. Crozier testified, and in that he was in the main corroborated by the cashier of the bank, that after the draft was returned unpaid, and as a part of the transaction by which the draft was charged back to him, the oats were reconsigned by the bank to Augusta, Ga., and a new draft with new bill of lading attached was drawn upon Robertson Co., and that the proceeds of this new draft were placed to the credit of Crozier Co., the matter being handled by the bank, as the cashier testified:
"I took the matter of reconsignment up with the railroad for the bank and considered that the bank was handling the matter as its own, inasmuch as we had purchased the original bill of lading from W.H. Crozier Co."
The bank retained possession of the original draft and bill of lading and made a substitution of them with the new draft and bill of lading.
From this statement of the facts as they appeared at the trial, disregarding as inadmissible the testimony of Pruitt as to the statements made over the phone to him by Crozier, it is clear that the second arrangement by which the new consignment, bill of lading, and draft were consummated was nothing more than a substitution of the original transaction and stands exactly upon the same footing. This latter arrangement having been concluded prior to this attachment, at the time of the attachment the title and the right to the possession of the shipment were in the bank, and not Crozier Co.
It hardly requires authority to sustain the declaration that the bill of lading represents the property, and that an assignment of the bill of lading is a transfer of the title to the property. *Page 105
One reasonable inference only can be drawn from the evidence: That the bank was originally a bona fide assignee for value of the bill of lading; that it has never surrendered the bill of lading or its rights under it; that the reconsignment was by its direction, the original bill of lading being surrendered by it to the railroad company and a new one issued; that the new arrangement was made as a substitute or continuation of the original, made necessary by the refusal of the consignee to pay the draft and take the goods and the immediate necessity for disposing of them. It is not the case of a bank originally holding the draft and bill of lading as a purchaser and upon dishonor of the draft compelling the drawer to take up the draft and receive back the bill of lading, thus revesting title in the drawer.
The circuit judge was right in directing a verdict for the bank, and the judgment below should be affirmed.