— The question to decide is whether or not, under the facts, tile district court correctly held that the title to the apples, and the control over them, remained in the plaintiff, vendor, or passed to the defendant as vendee.
From the statement settled by the judge, and the evidence in the record, it appears that about October 31, 1891, at St. Joseph, Missouri, through one Brown, a broker, acting for defendant at Missoula, Montana, plaintiff received an order for a carload of apples of a designated bind. Brown offered a price which plaintiff accepted, “free on board cars at St. Joseph, Missouri, sight draft with bill of lading attached.” The apples were shipped in good order but froze en route. The plaintiff took a bill of lading for the consignment in its own name, which bill of lading, with sight draft attached, was sent through a bank at Missoula, and presented to Fussy, who refused to honor the draft, or to receive the apples, because they were frozen.
There is no proof that defendant ever received the bill of lading taken by plaintiff at the time of the original shipment, or that the defendant ever received the apples as consignee, or that he ever exercised any control over them as owner thereof. On the contrary, the testimony showed that the carrier notified plaintiff” that it would sell the apples for freight charges, if plaintiff did not turn them over to Fussy without the bill of lading, and that Fussy refused to receive the apples because they were frozen in transit, and were in transit too long.
The motion for a nonsuit was upon the ground that the evidence failed to sustain the allegations of the complaint of a sale and delivery of the apples by plaintiff to defendant.
By the established rules of commercial law, where goods are shipped at the risk of the purchaser and by his order, or if by other evidence the intention of the shipper is made apparent to part with his title, the carrier is held to be the agent of the consignee, and not the agent of the consignor. But if the seller does not intend to part with his title to and control over the property when he makes the consignment, the authorities regard the carrier as the consignor’s agent, and not the consignee’s.
*514To get at the intention of the parties to such commercial transactions the bills of lading are resorted to.
If the vendor, when shipping, takes the bill of lading in his own name, this fact, when not rebutted by evidence to the contrary, is very strong proof of the intention of the vendor to reserve title in himself, and is almost decisive to prove the vendor’s intention to retain the jus disponendi of the property, and to prevent the delivery of same to the vendee. (Dows v. National Exchange Bank, 91 U. S. 618; Emery v. Irving’s Nat. Bank, 25 Ohio St. 360; Seeligson v. Philbrick, 30 Fed. Rep. 600; Chandler v. Sprague, 38 Am. Dec. 404, and note; McCormick v. Joseph, 77 Ala. 236; Forcheimer v. Stewart, 65 Iowa, 594; Sohn v. Jervis, 101 Ind. 578; Jones v. Brewer, 79 Ala. 545; Moors v. Kidder, 106 N. Y. 32; First Nat. Bank v. McAndrews, 5 Mont. 325.)
The plaintiff, the vendor in this ease, dealt with the bill of lading with the manifest purpose of securing the payment for the apples. And the defendant, by his refusal-to pay the draft, acquired no right to the bill of lading, or to the goods which it represented. (Benjamin on Sales, § 567; Farmers’ etc. Nat. Bank, 74 N. Y. 568.)
When the bill of lading was taken in the shipper’s name the presumption arose that he intended to retain the title in himself. This presumption must stand as conclusive until it is rebutted by affirmative proof on the plaintiff’s part. We find nothing in the testimony to overcome the presumption, and considerable to strengthen it.
The failure of plaintiff to notify defendant of any reason why the bill of lading was taken as it was, the failure of defendant to receive a bill of lading when the goods were shipped, coupled with the fact that it was sent with the draft for collection, leave no doubt in our minds that the vendor intended to hold the title to the property until the defendant paid for the same. The case, therefore, is in no way excepted from the application of the general principles which must govern.
The judgment is affirmed.
Affirmed.
De Witt, J., concurs.