This is an action to recover the contract price of two car loads of beer shipped in June, 1896, from plaintiff’s brewery at Milwaukee, Wisconsin, to defendants at Leavenworth, Kansas. Defendants admit the purchase of the beer and at the prices charged, but seek to defeat the suit on the ground that such sale was in violation of the prohibitory laws of Kansas and that because thereof plaintiff ought not to maintain the action.
. In a trial before the court without a jury, plaintiff had judgment and defendants brought the case here by writ of error.
Both sides concede that the loci contractus must determine the validity of the sale. If this was Kansas, the contract is void and non-enforc-ible; if in Wisconsin, then it was a valid sale and plaintiff should recover. This concession is on-the basis of the well known fact, which the evidence shows, that such sales are prohibited by the statutes of the former state, while in the latter they are not. And it is also admitted that if the sale and delivery of the beer was effected and complete in the state of Wisconsin, where the same was lawful, then the action is maintainable in the state
The sole question is, which was the place of contract — • Milwaukee, Wisconsin, or Leavenworth, Kansas ? The proof shows, that during the several years preceding the sale of the beer in question, defendants, who were liquor dealers in Leavenworth, had purchased from plaintiffs large quantities of beer in car load lots. In order to protect themselves from seizure of the property under the prohibition laws of Kansas the cars were, at defendants’ request, uniformly billed by the brewing company at Milwaukee in its name, that is, the bills of lading named the Val Blatz Brewing Company as both consignor and consignee. The brewing company then, and at once, wrote on the face of the bills of lading an order on the railway company to deliver the beer to defendants and forthwith mailed the bill so indorsed to defendants at Leavenworth. Defendants would then receive the bill of lading at or before the arrival of the car load, would pi’esent it to the railroad company when the beer arrived and take the same.
contracts: where bin of lading-. The two car loads in question were ordered and shipped in the usual manner. Defendants sent in their orders to plaintiff through its branch office at Kansas City, and plaintiff in due season shipped the beer from Milwaukee to Leavenworth, taking the bills of lading in its own name, and on the face of said bills it was at once written “please deliver to Bobrecker Bros. & Co. signed Val Blatz Brewing Co.” These bills of lading were then mailed to defendants, who, as usual, received them and presenting same to> the railway company at Leavenworth secured the property.
Under this state of facts, defendants requested the court to declare the law to be, “that if the court finds from the evi
In our opinion this was a correct view of the law. Undoubtedly if the vendor in shipping goods shall take the bill of lading to himself the presumptionmaintainsthatheintends to retain for the time being the jus disponendi and control of the property, but this is not conclusive. This prima facie case may be overcome by evidence dehors the instrument. In Benjamin on Sales (sec. 399) the rule is thus stated: “The fact of making the bill of lading deliverable to the order of the vendor is, when not rehutted hy evidence to the contrary, almost decisive to show his intention to reserve the jus disponendi, and to prevent the property from passing to the vendee.' The prima facie conclusion that the’vendor reserves the jus disponendi when the bill of lading is to his order, may be rebutted by proof that in so doing he acted as agent for the vendee, and did not intend to retain control of the property.” That the real intent of the parties may be shown by extraneous evidence is recognized by the supreme court in Scharff v. Meyer, 133 Mo. loc. cit. 445.
It is also well settled that a transferee of a bill of lading becomes the owner with full power of disposition; said transfer of the bill stands as an actual change in the possession of the property. Bank v. Railway, 62 Mo. App. 531; Hutchison on Carriers, sec. 129.
The judgment is for the right party -and will be affirmed.