We are of opinion that the damages assessed! ’were not excessive.
The case made by the evidence, viewed in the most favoi’able light to sustain the verdict, as it is our duty to view it, was this: Luring the forenoon of August 29th, 1867, the plaintiff, Pattison, purchased, at Indianapolis, from H. W. Comstock & Co., forty-seven thousand pounds of wheat and paid for it, taking at the time fronu them a bill of lading for the property issued by the Indianapolis,. Cincinnati! *242and Lafayette R. R. Co. at Indianapolis, on that day, to H. W. Comstock & Co., on account of Pattison. The wheat was at the time in transit from Chicago to Indianapolis, arriving the night of the 80th, though Pattison supposed it had arrived, and, indeed, the shipping list had been received. He had no notice of any right of the defendants to the wheat. The wheat had been shipped from Chicago by the defendants on the 28th, consigned, according to the bill of ladiug in duplicate taken by them, to H. W. Comstock & Co., at Indianapolis, on account of the defendants. The wheat was contracted by the defendants to H. W. Comstock & Co., but was not to be theirs till paid for. The defendants drew at sight on H. W. Comstock & Co. for the price of the wheat, under date of the 28th, attaching to the draft one copy of the bill of lading endorsed, and negotiated the draft at a Chicago bank, which transmitted it to an Indianapolis bank for collection. The draft reached the latter city about the same hour that Comstock & Co. sold the wheat to Pattison. An attempt was instantly made to present the draft, but the drawees could not -be found. They were insolvent ■and failed that day. At three o’clock, P. M., the Indianaj)■olis bank notified the carrier to hold the wheat for the con•signors. A similar notice was given later, but on the same •day, at the express iustance of the defendants; and the wheat was accordingly held until taken by the writ of replevin issued in this suit. The question is, had Pattison a 'right to possession of the wheat?
A bill of lading is a muniment of title and quasi negotiable. But Comstock & Co. did not possess this evidence of title, and^ of course, did not endorse it to Pattison; and herein is found an important difference between this case and Coxe v. Harden, 4 East, 211; Dows v. Greene, 32 Barb. 490; Lee v. Kimball, 45 Me. 172, cited by the appellant. In Whitehead v. Anderson, 9 M. & "W. 518, there is language to the effect that if the carrier enters into a new agreement with the consignee, distinct from the original contract for «carriage, to .hold the.goods .in custody as his agent, subject *243•to some new order to be given, then the goods are constructively in the possession of the consignee, and the right of the vender to retake them Is gone. But it must be borne In mind that the learned baron was speaking of a case in which the goods had arrived at the port of destination, and the sole question was, whether after such arrival ■the assignee In bankruptcy of the consignee had done such ■acts as amounted to a 'constructive possession, thus terminating the transit and making the carrier his mere bailee for the custody of the goods. It was not an attempt, having no bill of lading or other muniment of title, to sell the goods while in actual transit, as in the case before us.
A. G. Porter, B. Harrison, and W. P. Fishback, for appellant. F. Rand and R. H. Hall, for appellees.But In the present case, Comstock & Co., at the time of the sale to Pattison, not only had no actual title to the property, by the very terms of their contract with the appellees, but they possessed no indicia of ownership, neither possession nor the bill of lading, and the wheat was yet upon its voyage. Pattison took not only the risk of stoppage, but also the risk of the title of his vendors, without any act of the appellees to mislead him. If he had found ‘Comstock & Co. possessed of an ordinary bill of lading sent to them by their vendors, indicating ownership by the former, he might have safely purchased, and there would be both reason and authority in abundance for holding that the consignors, having thus put it in the power of Comstock & Co. to exhibit evidence of title, should not afterwards as ■against him question that title. A mere resale by the vendee does not, however, destroy the right to stop, and we know of no case in which it has been held to do so. 2 Kent Com. 547, and cases there cited in the note.
It is argued that if the right of stoppage existed, it was not in this case well exercised. We are not able to concur In this proposition.
Affirmed, with costs.