306
FEDERAL REPORTER,
vol. 54.
and knowing, as he' presumably did, that the train would not stop at Utica, and that it was momentarily expected, as the position of the freight train, awaiting its passage, unmistakably denoted. It is undisputed that he could not see the train from his seat in the wagon, and equally certain that he made no effort to see it, or listen for its approach. From the time he reached the grocery until the collision, he was not seen to move from his seat, or change his position. While his conduct is persuasive that he did not hear the whistle, or the coming of the train, it is clear that, had he stopped and listened, he would have heard, at least, as others did, the warning of the whistle, if not the noise of the train. Assuming the correctness of the estimated speed at 50 miles per hour, it wasevidently but 75 feet from the crossing when Horn's horse halted in his walk on the side track, not eight feet from the main track. It is· incredible that the decedent, if his sense of hearing was not blunted, could have failed to notice the approach of the train; and it is obvious that, if he did hear it, he must have made a fatal miscalculation as to its proximity when he urged the horse over the crossing. There is no evidence that there was anything calculated to divert his attention, prevent his hearing, or lull him into security. In short, there is to extenuate the recklessness of his approach to the Railroad 00. v. Houston, 95 U. S. 697; Schofield v. Railroad 00., 114 U. S. 615, 5 Sup. Ot. Rep. 1125; Haas v. Railroad 00., 47 ::Mich. 402, 11 N. W. Rep. 216. It is unnecessary to pass upon the omission of the plaintiff in the court below to give evidence of special damages. The judgment of the circuit court must be affirmed, with costs. \
SHEPPARD v. NEWHALL et al. (Olroult Court of A.ppeals, NInth Olroult. January 30, 1.893.) ,No. 41.
1.
BALE-STOPPAGE IN TRANSITU-NATURE OF RIGHT.
The true nature and eiTect of the rtght of stoppage in transitu is not to rescind the sale, but to enaJble the seller to enforce his llen for the price, and to that end he is entitled to retake possession, by suit if necessary, and he must then hold the goods until the expiration of the credit, so lIB to be ,able to dellver them on payment of the prtce.
't
SAME-WHEN RIGHT OF STOPPAGE ENDS.
When goods sold have lett the hands of the carrier, reached their destination, and the purchaser has disposed of them to one who gives a bond for the payment of the customs duties, and deposits them in his own name in a bonded warehouse, the 'seller's power to exerolse the right of stoppage in transitu is gone.
8
SAKE-BILL OF LADING-INDORSEMENT.
An ocean. bill of lading was drawn to "E. a, or llB8igns." The drawee was a ra.l1road agent at New York. who attended to the transshipment of goods, and he llhlpped the goods to San Franclsco, and transmitted the bill of lading to the pUl"01:laser without indorsement. The purchaser indorsed the bills, and delivered them lIB security for advances. Before the arrival ot the goode the purchaser became insolvent, and the fIblpper eave notice ot stoppage in transitu. Held, that the shipper's rtght to retBke J'OSsession of the goods was una.iTected by the purchaser'S indorsement .ull transfer of the bill of ladingju....m. a" having faJled to indorse them.
SnEPpARD V. NEWHALL.
307
no. title goods passed. 47 Fed. Rep. 468, St. Paul RollerMill Co. v. Great Western Despatch Co., 27 Fed. Rep. 434, followed. 4. A!'PEAL-RJ!:vmW-OBJEOTIONS NOT RAISED BELOW. In an action to recover personal property, an objection that the complaint
alleged that plaintiff was owner thereof, whereas the proof showed that he was entitled to possession under a vendor's lien, cannot be raised for the first time in the appellate court.
In Error to the Circuit Court of the United States for the Northern District of California. Action by Winter Byard Sheppard, doing business under the firm 'style of Sheppard & Co., against Edwin W. and Walter S. Newhall, business under the firm style of Newhall's Sons & 00. to recover possession of personal property. Judgment for defendants. 47 Fed. Rep. 468. Plaintiff brings error. Reversed. Statement by ROSS, District Judge: This is an actl.on brought to recover the possession of 12 cases of merchandise, consisting ot woolen goods, etc., or their value, manutactured in and shipped from England by the plaintiff in error, who was also plaintiff in the court below, on an order gIven by Robert Gordon, a tailor doIng business in the city of San Francisco, Cal., under the nltme of GQrdon Bros. The j;toods were shlpped in three lots,--stx cases, numbered, respectively, 00 to 104, both inclusive, covered by one ocean bill of lading; two cases, numbered 105 and 106, respectively, covered by another ocean. bill of lading; and four cases, numbered, respectively, 107 to 110, both inclusive, covered by a third ocean bill of lading. The goods were shipped by way of New York, and they were, by the bUl of ladingr made deliverable to E. Hawley, or assigns. Hawley was a railroad agent in New York, who attended to the transshipment of goods at that point. He received the goods in question from the ship at New York, and shipped them by rail to San Francisco, and, without indorsing the 'btllsof lading, transmitted them to Gordon, a.t San Francisco, with the annexed invoice of the goods, and the inland transportation entry and railroad receipt. On receipt of the bills of lading and accompanying papers, GQrdon indorsed and delivered them to the defendants as security tor certain moneys advanced to hlm at the time on the strength of moo secnrity, and also as security for other and larger advances that defendants in error had previously made to hlm, and which had not been repaid. All of the goods arrived in San Francisco, and those contained in cases 99 to 106 inclusive, were, prior to October 13, 1890, entered in the custo.mhouse a.t San Francisco, and deposited in a bonded warehouse by the defendants in error, in their name, to await the payment of duties thereon. On October 13, 1890, Gordon became insolvent. On October 18, 1890, and before the cases numbered, respelltively, 107 to 110, inclusive, had arrived in San Francl.sco, the plalnttl! in error gave to the railroad company having the goods in tranllit notice of his claim and right of stoppage in transitu. On the arrival of thelle four cases in San Franolsco, whic,h was prior to October SO, 1890, the defendants in error paid the duty on them, and took them into their possession. On Octolber 30, 1890, plaintifi in error also served on defendants in error a notice of hls claim of right to stop the goods in transit. On November 8th following, plaintiff tendered to the defendants in error, in lawful money of the United States, $3,536.47, whlch he then supposed was the amount, with interest, that they had advanced to Gordon, and paid out on tlw goods in question, a.t the same time ofiering to pay them the exact amount, with interest, that they had so paid, if the amount tendered was not correct; both of whlch otrers were by the defendants in error refused; and they also refused to state the amounts they had advanced and paid out on the goods, and also refused the demand thereupon made upon them by the plaintitr in error for the possession of the property. The plaintltr then commenced the prellent suit to recoyer from the defendants possellsion of all of the goods, or their value, basing his right to do so solely upon the allegation that on November 8, 1890. h<! was the owner of the goods. The suit having resulted in 11
308
FEDERA.L REPORTER,
judgtnent adverse to h1ln in the court below, he brought the case here by writ of error. : 'l'he tlrst assignment of error grows out of a motion made by the plalnWt in advance of the trial for an order on the defendants to give the plaintiff an Inspection and copies of. certain accounts and papers, which in its scope went beyond the matters bearing upon the issues in the case. The application was made PUl'SUaIlt to the provisions of section 1000 of the Code of Civil Procedure of the state of California, which reads as follows; "Any court in which an aetl.on is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to taj.{e a copy, of entries of accounts in any book, or of any document or paper, In his possession or under his control, containing evidence relating to the merits of the action or the defense therein. If compliance with the order be refased,the court may exclude the entries of accounts of the ;book or the docUlLent or paper from .being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume them to be such as he , alleges them to be; and the court may also punish the party refusing for a contempt. This section Is not to be construed to prevent a party from compelling another to produce books, papers, or documents when he Is examined llSS wttness." The court below granted the motion in so far as to allow the plaintiff au inspection and copies of (1) the original bills of lading covering the 12 cases of goods described in the complaint; (2) all accounts relating to moneys advanced upon the hypothecation of the 12 cases of goods; the court at the same' time announcing that, should it appear at any time during the trial of the cause that the defendants were in possession of any books or papers material to the cause of the plaintiff, defendants would be required to produce them, and, if a prodnction of such books or papers should make it proper to grant the plaintiff a postponement ot! the trial, such postponement would be ordered. In all other respects the motion was denied, to which ruling the plaintiff excepted. At the trial the defendants offered in evidence the three ocean bills of lading, with the accompanying papers, consisting of the invoice, inland transportation entry, and letter from Hawley, the consignee named in the bills of lading. To each of the bills of lading the plaintiff oIbjected, on tho ground that neither of them was indorsed by the consignee therein mimed. The court overruled the objection, and admitted the bills of lading in evidence, to which the plaintiff excepted. The ruling of the court in tws particular Is the basis of the 2d, 3d, 4th, and 5th assignments of error. The witness E. W. N"ewhall, having testified, among other things, that the defen.dants, from and including August 20, to October 3, 1890,' advanced to Gordon $14,5e0 on the security of different goods and bills of lading, was asked by counsel for the plaintiff, "What became of the goods pledged to you for advances up to October 3d, amounting to $14,5001" To this question counsel for defendants objected, on the ground that it was irrelevant, immaterial, and incompetent. The court sustained the objectl.ons, and the plaintlffreserved an exception. The witness was also asked by counsel for plaintiff, "On the 8th day <Yl November, 1890, how much money was owing to you on these bills of lading covering the cases,-the subjec1rmatter of tws action1" Like objections of the defendants were sustained by the court, and the plaintiff excepted. These rulings are assigned tor error In the sixth assignment. Counsel for the plaintiff also moved the court to order the defendants to produce for his inspection their firm books, showing all transactions had with Robert Gordon, and the amounts realized from sales of pledged property, and the dates of the various receipts of money produced by such sales, for the purpose of ascertainlngwhether or not the advances theretofore made by the defendants to Rolbert Gordon, doing bUsiness as Gordon Bros., had not been repaid on or before the 8th day of November, 1890. This motion was denied by the court, and the pIainWt reserved an exception, and assigns the ruling for error in the eighth assignment.
Vincent Neale. for plainti.ff in error. Henry Ach, (Rothchild & Ach, on the brief,) for defendants in error.
SHEPPARD fl. NEWHALL.
309
Before McKENNA, CircnitJudge, and ROSS and KNOWLES, District Judges. ROSS, District Judj?;e, (after stating the case as above.) It is now well settled both in this country and in England that the true nature and effect of the right to stoppage in transitu is simply to restore the goods to the possession of the vendor, so as to enable him to exercise his rights as an unpaid vendor, not to rescind the sale. 2 Benj. Sales, (3d Ed.) pp. 1112··1115, and cases there cited. In Cali· fornia it is, in effect, so provided by statute. Civil Code Cal. § 3080. To enforce his the vendor must be, and is, entitled to retake the possession of the property, and must hold it until the expiration of the credit, so as to be able to delil'er it upon the payment of the price; for up to that time the vendee has the right to pay the price, and take the property. Babcock v.Bonnell, 80 N. Y. 244. If not paid at the time stipulated, in what way the vendor should proceed to enforce his lien it is not here necessary to decide. Courts of equity entertain jurisdiction for the enforcement of such liens,and there are also statutory provisions bearing on the subject. 2 Benj. Sales, (3d Ed.) pp. 1113, 1114, and caSes there cited; Civil Code Cal. §§ 3076··3079, and cases cited in notes' thereto. The right to retake possession of the property, where the right to stop it in transit ex· ists, necessarily implies a right to maintain an action for I its recov· ery, where resort to suit is necessary. In California the right to "resume possession" is given by statute. Section 3076 of the Civil Code reads: "A s('Uer or consignor of. property, whose claim for its price or proceeds has not been extinguished, may, upon the insolvency of the buyer or consignee becoming known to him 'after parting with the property, stop it wWle on its transit to the buyer or consignee, and resume possession thereof."
In the present case it became necessary for the plaintiff to sue to regain possession of the property; and, in doing so, he alleged in his complaint, as amended, as the basis of his right to recover its possession, that he was the owner of the property on the 8th day of November, 1890, and that, the property having theretofore. come into the possession of the defendants, plaintiff, on the day named, demanded its possession, which demand was refused by the defend· ants, who continued to withhold its possession from the plaintiff. The amended complaint contains no other allegation of the plaintiff's right to its possession than the allegation of ownership imports; and as the facts show that the plaintiff was not the owner of the property at the time stated in the complaint, or at the time of the institution of the suit, it is here urged for the defendants in error that the complaint, as amended, is insufficient to support a recovery by the plaintiff, even if a lien, upon the goods in his favor exists. But this objection was not made in the court below, and it is not permissible to hold in ambush a point of variance that does not go to the merits of the controversy between the parties, and raise it for the first time in the appellate court. A presumption of the right to the immediate possession of property flows from its ownership, and therefore the allegation contained in the amended complaint in the
FEDERAL 'REI'ORTEn,
preseti1fcase of ownel!ship in theplaintitI of the' property in question was attended with that presumption. If the proof showed only a special interest in the plaintiff, inconsistent with its ownership, the 9bjectio," should have been taken in ,the trial court,where the plaintiff would have, had an opportunity to amend his pleading to conform to theproofililJl(} thus have the end to be desired in all judi· cial proceedinKs.-an adjudication upon the merits of the contro· versy. T4e objection comes too late when made for the first time he.re. When. theg()ods included in cases numbered, respectively, 99 to 106, both inclusive. arrived in San Francisco, Gordon, the purchaser of them, went in person to the customhouse to enter them. There was at the a in force that the entry should not be made with()ut producing or accounting for the original bill of lading. Gordon accordingly took with.him to the cUl!!tomhouseNewhall, the holder of the original bills of lading, covering cases 99 to 106, who there produced them. and thereupon' the goods were entered in the name of Gordon. A bond was then given for the payment of the duties, and the Koods placed in a bonded warehouse, and a ware· house receipt therefor issued to Newhall. All of this ·was prior to the attempt on the part of the plaintiff in error to exercise the right of. stoppage in transitu. In respect to these goods, we have no difficulty ,in hoidinK that the transit had ended before the attempt was made to stop them. The goods were sold to and intended for Gordon, doing': business in San Francisco. They had left the hands of the carrier, and the place of their deposit was in no way con· nected with their transmission to the purchaser. They had reached their destination. and the purchaser had, by his personal and affirm· ative act, disposed of the goods; and his assignee had given bond for the payment of the duties upon them, and deposited them in his own name in a bonded warehouse, for which he held the warehouse . .But in respect to the goods contained in cases numbered, respe.c· ttvely, 107 to 110. inclusive, the case is different, These were still in the hands of the carrier when the plaintiff in error gave notice of and asserted his right of stoppage in transitu, and it becomes necessary, therefore, to consider the objections presented by the fifth assigl\.41ent of error to. the intrOduction in evidence of the bill of lading covering those cases. The bill of lading was drawn, as has been said, to ''E. Hawley, or assigns/' It was not indorsed by Hawley. Consequently, it is urged by plaintiff in error, no title passed to defendants. It is provided by section 2127 of the Civil Code of Oalifornia as follows: "All the title to the freight which the first holder of a bUl of lading had when he received to every subSequent Indorsee thereof, In good falth, and. for value, In.the .ordinary course o!t business, with like effect and In like manner as In the cabe of a bUl of exchange." ..
And by section 2128 it is declared: "When a bill of lading is made 'to bearer,' or In equivalent tenns, a simple thereot by delivery conveys .thl! same title as an indorsement."
SHEPPARD V. NEWHALL.
311
ThesesectioDS, read together, as. they must be, plainly declare tha.t the title to goods described in bills of lading drawn to order passes by indorsement, drawn to bearer by delivery. There are many cases which hold that the delivery of a negotiable or quasi negotiable instrument, like a bill of lading drawn to order, will vest title without indorsement, as against the person who made delivery without such indorsement j for he is justly held estopped from set· ting up his own mistake, omission, or fraud to defeat the effect of his own action. The case of St. Paul Roller-Mill Co. v. Great West· ern Despatch Co., 27 Fed. Rep. 434, referred to in the opinion of the court below, was a case of that character. There the bill of lading was drawn to the order of the shipper, which drew its draft at 15 days' sight, the flour mentioned in the bill of lading, upon one Whitcomb. of Boston, and forwarded the draft, with the bill of lading attached. unindorsed. to the· Tremont National Bank of Bos· ton, for acceptance and collection. Upon Whitcomb's acceptance of the draft, the bank delivered to. him the bill of lading, without in· dOrSement, and he afterwards indorsed and transferred the bill of lading to the National Bank of Redemption, for an antecedent debt due from him to that bank. Mterwards, and before the flour arrived in. Boston, the shipper, being informed of the insolvency of Whit· comb, notified the carrier not to deliver the flour to him or his as· signs; but upon its arrival it was delivered to Whitcomb's assignee, and the shipper thereupon sued the carrier for its conversion.. It was urged for the plaintiff that the bill of lading, running to the or· der of the liliipper, and delivered to Whitcomb, without indorsement, carried on its face notice that he held it subject to equities between prior parties; b1;it the court said that it was of no importance that it was delivered unindorsed; that it was the intention of the ship· per that its (the Tremont Bank) should deliver the bill of ladingj)ll acceptance of the draft. It would have been manifestly un· just to have permitted the shipper to take advantage of his own fail· ure to indorse the bill of which he delivered, with the intention of carrying the right to the property covered by it. that is by no means the present case. Here the bill of lading was not drawn to the order of the shipper, the plaintiff in error, but, in effect, to the order of E. Hawley, by whom it was delivered without indorse· ment, and the omission of which the plaintiff seeks to avail himself, in protection of his lien for the unpaid purchase price of the goods, is not his own omission, but that of Hawley. The right of the plaintiff in error to stop the goods in transitu upon discovering the insolvency of the vendee was perfect, not only as against the vendee, but as against all others, except a purchaser for value, taking by indorsement of the bill of lading, in the usual course of business, and without notice. Civil Code Cal. § 2127, l'mpra j Stanton v. Eager, 16 Pick. 476; Akerman v. Humphrey, 1 Car. & P. 56. At least one of these conditions is wanting in the present case, namely, the indorsement by the party in whose favor the bill was drawn. We are therefore of the opinion that the. right of the plaintiff in error to retake posseslilion of cases numbered 107 to 110, inclusive, for the protection and enforcement of his vendor's lien, was unaffected by
, 312 FEDERAL REPORTER,
the transfer· of the. bill of lading. covering them to the defendants. From these news it becomes unnecessary to consider the remaining assignments of error. Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.
THATCHER
v.
GOTTLIEB.
(CIrcuit Court, D. Colorado. February 18, 1893.) STATUTORY NEW TRIAL-FOLLOWING FORMER DECISION ON WRIT Oll' ERROB.
Where, on a new trial to determine the title and right ot possession of land, under a state statute giving. a right to a new trial in such cases, the material taots, as disclosed by the evidence, are substantl.a1ly the same as the facts pn the former trial, and substantially as the facts before the circuit court· of appeals on the review of such former trial, the case will. be disposed of as indicated by the appellate oourt.
Action by Lewis a.Thatcher against Joseph Gottlieb Plaintiff's motion for a new trial denied. For decision of circuit QOurt of appeals on mit of error on ajudgment entered on a former trial, see 51 Fed. Rep. 373, 2 Q. a. A. 278. V. D. Markham and J. W. Mills, for plaintiff. R.T. McNeal. for defendant.
to determine the title aI)d right ot possession of land.
:At Law.
RINER, Diamct Judge. This case is before the court on motion for a new trial. The case has been three times tried in this court and once in the court of appeals. The first trial resulted in a finding in favor of the plaintiff, and the defendant took a new trial under the statute. On the second trial of the case,judgment having been .entered in favor of the plaintiff, the defendant carried the case to the court of appeals, (51 Fed. Rep. 373, 2 a. O. A. 278,) where the judgment. of the circuit court was reversed, with directions to enter a judgment for the defendant, which was done, and thereupon the plaintiff took a new trial under the statute, and the case came on again for trial before this court and a jury at the November, 1892, term. At the conclusion of the evidence the court directed the jury to return a verdict for the defendant, which action of the court is now for error, and is made the basis for this motion. Since the motion was argued, I have examined very carefully the transcript of the record before the court of appeals, and am satisfied that the material facts as disclosed by the evidence lipon this trial are substantially the same as they were upon the former trial before this court, and substantially the same as the facts before the court of appeals. When that court held the facts as a basis for an opinion directiIig a verdict for the defendant,. did it not, in effect, say that the same facts, when again offered in evidence, would be again held sufficient to sustain a like opinion? I think there can be but one answer to this question.' In the' concluding part of the opinion the court of appeals say: