Opinion by
Henderson, J.,The plaintiff claims the right to recover against the defendant by virtue of a bill of lading attached to a draft drawn by the Niagara Mill & Elevator Company on the defendant on July 26, 1907, which draft was that day discounted by the plaintiff for the drawer with the bill of lading attached thereto for a car load of corn consigned by the drawer of the draft to the defendant at Belfry, Pennsylvania. The corn had been shipped to the defendant about two weeks before without a request from him, his order having been for one car and the consignor having sent two. When the cars were shipped the consignor drew on the defendant for the additional car of corn and this draft was refused for the reason that the corn had not been ordered but the defendant proposed to the consignor that he would sell the corn at another place in the event that he should be allowed thirty days' time. This proposition was accepted and thereupon the first draft drawn by the consignor was returned and canceled and the draft on which the plaintiff now sues was then made and discounted at the bank. The plaintiff claims a right to the corn and the proceeds thereof by virtue of the delivery of the bill of lading to it on July 26. The defendant contends that he was a purchaser of the corn; that it was delivered to him and in his possession on July 22, four days before the draft was discounted; that the consignor had no power on the day the bill of lading was delivered to the plaintiff to transfer a title to the property and that he had no notice of an intention, if any existed, *520on the part of the elevator company, to give title to the bank or to create an equitable lien. The shipping bill was-what is known in commerce as a flat bill of lading in which the defendant was the sole consignee. Prima facie, therefore, the consignee had control of the property and strictly speaking no person but him could pass the legal title to the merchandise: Conard v. Atlantic Ins. Co., 26 U. S. 385, 445. But assuming the right of a consignor to transfer the title by delivery of the bill of lading this right must be exercised while the title to the property is in the consignor. His ability to create a lien depends on his ownership. The bill of lading takes the place of the property described therein and an assignment of it gives to the person to whom it is transferred such title as the assignor had, and this only when it was the intention of the parties that such change of title should take effect: Pollard v. Vinton, 105 U. S. 7; The Carlos F. Roses, 177 U. S. 655. There was nothing in the bill of lading to show that the elevator company was the owner of the corn at the time the draft was discounted and the claim of a lien is only asserted as an inference from the fact of the delivery of the bill of lading at the time the draft was assigned to the plaintiff. Against this inference was the information given by the bill of lading that the railroad company held the corn on account of the consignee. The evidence as to the purchase by the defendant is positive and clear and raised a question of fact as to the time when the title to the corn passed from the elevator company. If the consignment had been made pursuant to an order of the defendant there would be no doubt that delivery to the railroad company would have been delivery to the consignee and title to the property would have passed at once. It was entirely competent for the shipper to agree on a sale of the corn after it arrived at Belfry and to fix the time of payment. If this was dóne as shown by the testimony of the appellee he became the owner of the property and had possession of it before the appellant gave credit to the elevator company on the draft. What the elevator company *521could then transfer was its claim or right of action against the defendant for the purchase money.
On the subject of the notice to the defendant of the lien of the bank, the defendant’s evidence shows that the draft was first presented to the appellee’s clerk on July 29, a week' after the defendant had closed the arrangement for the purchase of the corn. It is not alleged that even then the defendant had notice of the claim of the bank, the appellant relying on the implied notice arising out of the possession by it of the bill of lading attached to the draft. It became a matter for the consideration of the jury, therefore, whether the defendant had notice of any claim of the appellant against the property, for conceding the inference of interest to arise from the possession of the bill of lading the testimony offered in behalf of the defendant tends to show that it was not brought to his attention in time. The cases cited by the appellant on this point are not analogous on their facts. Means v. Bank of Randall, 146 U. S. 620, was a case where there was an agreement by the shipper that money which he obtained from the bank for the purchase of cattle should be secured by a collateral pledge of them to the plaintiff and that the latter should have a lien on them to the amount of the money borrowed. There was the further important fact that at the time the arrangement was made and the lien created the shipper owned the cattle. It also appeared that the defendants had notice that money had been advanced on the shipment to pay for them and that a draft had been drawn for the amount of the loan. Holmes v. German Security Bank, 87 Pa. 525, and Holmes v. Bailey, 92 Pa. 57, were cases where the consignees were agents merely to sell and where the title remained in the consignor. We do not regard the case as one in which the court could have given binding instructions under the evidence, as contended by the appellant in the first and second assignments of error. What has been said disposes of the third assignment as well, for the plaintiff’s case is based on the right of the *522elevator company to create a lien at the time the draft was discounted which it may enforce in this action. There was a plain denial by the defendant of knowledge of any interest of the plaintiff in the property. The plaintiff contended that there was inferential notice. The defendant alleged this did not arise out of the evidence and the appellant has no ground for complaining that that question was submitted to the jury. There was evidence that the Niagara Mill & Elevator Company became insolvent about August 10, and that it had a credit in the plaintiff -bank of an amount considerably in excess of the amount of this draft. It had been a patron of the bank and carried a balance there which it was permitted by the plaintiff to check out, and this gave color to the defendant’s view that the bank accepted the draft for collection merely and made the discount on the credit of the elevator company. It is not an unreasonable assumption that the bank had notice of the financial embarrassment of one of its active customers, and the comment of the court that it was within the power of the bank to protect itself by the deposit which it held was not outside of the evidence. It cannot be said with legal exactness that any consideration of estoppel affects the appellee. Our statute prescribes the manner in which drafts are to be accepted, and there is no pretense that the defendant had bound himself by an acceptance or by a promise to accept. The most that is alleged is that one of his employees asked the collecting bank to hold for thirty days, but this bound nobody and the bank was at liberty to return the draft at any time. We are not convinced, therefore, that the matter complained of in the fifth assignment requires the reversal of the judgment. This was evidently not regarded as a prominent aspect of the case, for the evidence in its other branches was controlling and apparently decisive. We are not satisfied that the court was in error in the instructions complained of.
The judgment is affirmed.