The question raised by demurrer to the complaint as amended because of misjoinder of courts was .eliminated by striking the third count, which was the common count for money had and received^ The theory of this demurrer was that the two special counts were in case — for a breach of duty. We do not so con*570strue them. They are .each clearly a special declaration in assumpsit, predicated upon a breach of contract and practically seek a recovery for the money paid by plaintiffs for goods which were never delivered to tlitm. They are in substance counts for money had and received, averring specially the facts upon which that claim is predicated.
Doubtless the purpose of the pleader in framing them v, as to have the liability of defendant vel rum, for the money paid by plaintiffs to it as the owner of the goods, determined by demurrer instead of by objections to evidence or by charges, which latter method would, necessarily, have been resorted to had the complainant simply contained the common count for money had and received for their use.
On the facts averred, there can be no doubt of Klyce’s Liability if he had made no assignment of the bill of lading. Did the defendan t by becoming the owner of the bill of lading, and the debt to accrue upon the actual or symbolical delivery of the goods to the plaintiffs, take Klyce’s place? In other words, did it by becoming the owner of the goods, while in transit, become responsible for the performance of Klyce’s contract? Or is it entirely relieved of all its burdens and entitled to have and hold the money paid to it for the goods which it never delivered?
It will scarcely be doubted that defendant by becoming the owner of the1 bill of lading became the owner of the goods, and the goods continued to be its property until the account assigned by Klyce to it against the plaintiffs and the draft drawn by Klyce on the plaintiffs, which also became its property, were paid and the goods delivered. — American National Bank v. Hudson, 123 Ala. 612.
Assignments of bills of lading are not governed by the commercial law. The transferee simply acquires the title of the transferrer to the goods described in them. Commercial Bank of Selma v. Hart, 99 Ala. 130; Jasper Smith Co. v. K. C. M. & B. R. R. Co., Ib. 416; 4 Am. &. Eng. Ency. of Law (2nd ed.), p. 519.
The contract: of sale between Klyce and the plaintiffs was merely an executory one. Klyce had agreed to sell *571anti the plaintiffs to pay for the goods upon their delivery. Before this contract ivas executed between these parties, the defendant became the owner of the goods and ■c;f the right to receive pay for them. It undertook the performance of the executory contract by a delivery of the goods to-' plaintiffs and received the money to be paid by plaintiffs upon the execution of that contract; and notwithstanding it was paid for goods, which it never delivered, and which it assumed to deliver, it undertakes to avoid its liability by saying that because it became the owner of the draft which was.paid by plaintiffs it is a bona- fide purchaser for value of the goods from Klyce, and therefore, not responsible for their delivery. To so hold would be to give effect to only a. part of the transaction — to ignore its ownership of the goods and the account transferred to it by Klyce.
By no rule of construction can the averments of the complaint justify the conclusion that the bill of lading was held by defendant as collateral security to the draft, or that defendant was merely Klyee’s agent for its collection. The cases relied upon by appellee (reported in 75 S. W. Rep.; 84 N. W. Rep. and 96 N. W. Rep.) proceed upon the theory that the bill of lading was held by the bank as a security for the payment of the draft. The writers of those opinions were influenced to reach that conclusion partly upon the idea that to hold otherwise would impose a hardship upon the bank. The complaint in neither of tli-e cases justified such a construction. And in order to sustain that conclusion the court resorted to its common knowledge of usages among banks to discount drafts and to accept a transfer of bills <;f lading as collateral security instead of dealing with the transaction as laid in the complaint. In each of the cases it was necessary to sustain the conclusion reached that the unqualified ownership by the bank of the bill of lading be gotten rid of; otherwise, there was no escaping the. conclusion that it was liable. To do this, notwithstanding the complaint alleged a purchase of the draft and the bill of lading by the bank, it became necessary to hold that the transaction in legal effect was a loan of money by the bank and the transfer of the debt and bill of lading was intended as a security therefor. There is *572no rule of law or of public policy against a bank becoming the absolute owner of the debt and the bill of lading for the goods, or its undertaking to perform an executory contract for the sale of the goods. And no sound reason exists why it should not be required to perform its contracts as individuals are required to do.
Would any court hold that if A contracted to sell B a horse, warranting its soundness, for §100.00 to be paid upon its delivery, and A should assign the contract to C, and C should deliver an unsound horse to B and receive the §100.00, that C would not be liable for a breach of the warranty? We think not.
The case in hand is not different in principle, unless the fact that plaintiffs paid the draft, which was the property of defendant, for the purchase price of the goods, differentiates it. The draft was drawn to the defendant’s order accompanied by the bill of lading and the account, each (if which was sold to- it. The draft had not been accepted by the plaintiffs before its negotiation to defendant, and until accepted, in the absence of some fact tending to show that defendant was induced by the conduct of the plaintiffs to purchase it, they were not bound by it.
When it was paid, the purchase price to be paid for the goods as well as the goods themselves belonged to the defendant. The plaintiffs were not parties to the transaction by which it acquired the ownership of the goods and the right to receive payment for them. And when, as here, the defendant becomes the owner of the debt and the goods, and assumed necessarily the responsibility and burden of delivering them to the plaintiffs, it became the seller in fact and must bear the burden of the transaction. In short, the defendant took the contract of Klyce, the shipper, and stood in his shoes, with the same rights, no greater, no'less. And the payment of the draft by plaintiff, which merely evidenced the price to be paid for the goods, can no more shield or protect the defendant from liability than its payment would have protected Klyce had he undertaken a delivery of the goods and received the purchase price for them.
It would be an anomaly to hold that the defendant is protected as purchaser of the account and bill of lading, *573because the plaintiffs paid the draft, which also belonged to it in right of its ownership of the goods; or that it held the bill of lading as security for a debt which belonged to it. Just how it could be the unqualified owner of the debt and only a qualified owner of the goods, when it purchased both, we confess our inability to see. When it purchased these papers it was bound to know the nature of the transaction between Klyce and plaintiffs. The bill of lading and the account attached to the draft carried notice on their face that Klyce had contracted to sell the goods represented by the account and bill of lading and to deliver them at the point of their destination.
TO' repeat in a measure, the essence of the agreement between Klyce and plaintiffs was that of a cash transaction to be consummated in the future; that is, the goods were to remain the property of Klyce until there was an actual or symbolical delivery of them and contemporaneous payment of the price.
The distance of the parties from each other necessitated a resort to the usages of trade, whereby the price is paid on a symbolical delivery of the goods by a transfer of the bill of lading.
By shipping the goods to' his own order Klyce retained the absolute title, and lie would have had the title until the goods were at the place of delivery, so that an actual delivery could have been made on and for the payment of the price. But he chose not to do so. He said in effect, to defendant: “I have agreed to sell and deliver to the plaintiffs at a certain place, certain goods at a certain price. Here is a bill of lading- for these goods to my order, here is a draft for the price to be paid on delivery of the goods and here is an account showing the items. I desire the money for these goods now. I propose tO' sell the contract to you. If you choose to deliver the goods, which you may cío actually or symbolically by assignment of bill of lading to plaintiffs, you will have the money to be -paid for them at the place of delivery, otherwise, you will have your goods and an obligation of plaintiffs’ to take them at the price.” Thus far the defendant has dealt only with Klyce. After defendant purchased the contract, it went to plaintiffs and said: “Here is the *574bill of lading for the goods Klyce was to deliver to you., but which belongs to me — pay me the price and you can have the goods.” The plaintiffs pay the price and take an assignment of the bill of lading. It is, therefore, plain that the symbolical delivery was the defendant’s act, and as it took the place of an actual delivery, it must be as perfect as an actual delivery. If it is false in any respect, there is a liability upon defendant, who made itself a party to the transaction. The plaintiffs, having paid the purchase price to defendant for its goods, it will not be allowed to say to plaintiffs, “'You did not deal with me.” This conclusion is fully sustained by our own case of Eufaula Grocery Co. v. Missouri National Bank, 118 Ala. 408, and the following cases in other jurisdictions. — Finch v. Gregg, 126 N. C. 176; Searles Bros. v. Smith Grain Co., 80 Miss. 688.
On the facts averred, if pi oven, we entertain no doubt of the plaintiffs’ right to recovery.
Reversed and remanded.