This plaintiff, as assignee of Herbert, stands in Herbert’s shoes, and can recover if Herbert could have recovered. Otherwise Herbert’s right of action is qualified property if he must find an innocent assignee to whom to sell it. The rule must be *30the same as governs commercial paper, as held in Vosburgh v. Diefendorf (119 N. Y. 367).
At defendant’s request the railroad company issued these bills of lading, for the purpose of enabling Northrup to pass them over to Herbert before the property was paid for. As far as Herbert) the transferee, is concerned, therefore, any condition as to the passing of title is waived, and Herbert got full title. It matters not that the bills of lading were issued and passed over before the cars were loaded. , They were so issued and passed over upon the distinct promise of defendant to finish the loading of all the wool that was purchased, which amount had been agreed upon between him and Herbert. Issued then at his request, upon his promise to complete the loading, it is not for him to complain that they were issued irregularly or that they did not cover all of the wool which was afterwards put into the car in pursuance of his promise. Nor can he escape by reason of the fact that the hills of lading called for 10,000 pounds of wool in each car, and the 10,000 pounds of wool were in fact delivered in each car. It is stated in-the bill of lading that this weight was subject to cprrection, and after the promise of defendant to load all the wool which had been weighed and bagged in the presence of Herbert and the amount agreed upon, the full amount of Wool as determined and promised to be loaded can alone satisfy the requirement of the bill of lading.
This defendant has ho claim to the charity of ‘the court. He and Northrup and Herbert were all wool speculators dealing upon equal terms, It cannot be reasonably claimed that Herbert had any knowledge of the special agreement between Ervay and Northrup that the title should not pass until payment, especially after Ervay himself - swore that in the conversation with Herbert not a word was said “‘in regard to ■paying for it.” If plaintiff stood upon an; estoppel this testimony would seem sufficient to prove want of notice in Herbert. But plaintiff stands upon a legal Waiver by Ervay of-any rights that he might have under his conditional contract in the consent that the bills of lading might issue and be ■ passed over to Herbert before the loading was completed or . payment made. Upon the faith of these bills of lading and of-*31the information afterwards conveyed to him from the defendant that the load contained 135 hags of wool, Herbert paid Horthrup for the full 135 bags. This fact of itself, in connection with the evidence of Ervay that not a word was said to Herbert about the way in which the wool was to be paid for, would seem to absolutely negative any claim resting merely upon a vague inference that he had any knowledge of any condition attached to the contract of sale to Horthrup. In my judgment, therefore, Herbert should not be made to stand this loss, nor should his assignee, who stands here upon his rights.
Judgment reversed on law and facts. Eeferee discharged and new trial granted, with costs to appellant to abide event.