#### Bell and another, Respondents, vs. Chicago & Northwestern Railway Company, Appellant.

*October 25*

November *14, 1916.*

*Carriers: Bill of lading: Deposit by consignee with carrier's agent: Subsequent sale by consignee: Right of stoppage*in transitu: *Wrongful delivery by carrier: Conversion: Pleading: Judgment.*

1. As between the consignee of grain and the carrier, a deposit of the bill of lading by the consignee, pursuant to custom, with the agent of the carrier on the board of trade at the point of destination was a mere matter of business convenience and did not pass the title to the carrier.

2. A consignee of goods who, after their arrival and after he has paid for and obtained the bill of lading, sells them to another has, as vendor and as against the carrier, the right of stoppage-*in transitu*until the goods arrive in the possession, actual or constructive, of the purchaser.

3. After depositing the bill of lading with defendant’s board of trade agent, plaintiffs sold to one G. a carload of oats which had been shipped to them over defendant’s railway, and gave' G. a written order for the car. Such order was by mistake addressed to-another railway company, and G. presented it to that company, which issued to him a new bill of lading. On the following day plaintiffs, having learned that the check given to them by G. was worthless, notified defendant to hold and not to deliver the-car. Defendant afterwards, at the reguest of the other railway company, delivered the car to it, and subseguently delivered the-original bill of lading to plaintiffs. *Held*that, the original bill of lading not having come to the possession of G., he had no such actual or constructive possession of the car as precluded plaintiffs from exercising, as they did, their right of stoppage *in tran-situ*while the car was still held by defendant. '

4. Although the action against the defendant railway company was in form for a breach of the contract of carriage, judgment as. for a conversion of the goods was properly rendered in accordance with the facts disclosed on the trial.

Appeal from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

The appeal is from a judgment of the circuit court affirming a judgment of the civil court in favor of the respondents-

*278Tbe plaintiffs bad shipped to them from a point in Iowa a carload of oats, the final carrier of which was the defendant railway company. On April 8, 1915, a bill of lading was duly received by the plaintiffs and deposited with the agent of the defendant, who, for the convenience of members of the chamber of commerce, had an office in said chamber of commerce. On April 9 th one Charles F. Glavin arranged to purchase this car from the plaintiffs and he gave them his check for the same and other cars, and received a written order for the car in question together with the others. The order was by mistake directed to the Chicago, Milwaukee & St. Paul Railway Company instead of to the defendant and was presented to the Chicago, Milwaukee & St. Paul Railway Company on April 9th, and thereupon and while the car was still in the custody of the defendant a new bill of lading was issued for the same to said Glavin by the Chicago, Milwaukee & St. Paul Railway Company. On April 10th, in the forenoon, the plaintiffs ascertained that default had been made in the payment of the check and thereupon immediately notified the defendant by telephone that the car should be held and not delivered.

On the afternoon of the same day the agent of the Chicago, Milwaukee & St. Paul Railway Company telephoned to the agent of the defendant that the St. Paul Railway Company had the order above specified for this particular car and desired to have it delivered from the defendant’s tracks to those of the Chicago, Milwaukee & St. Paul Railway Company. The car was so delivered on Monday the 12th. The first bill of lading was subsequently delivered to plaintiffs.

The complaint was in form one for breach of the contract of carriage from Iowa to Milwaukee, alleging that the defendant did not deliver the oats to the plaintiffs and negligently allowed the same to be wholly lost, and prayed for damages for $824.19, the value of the oats. The claim of the defense was that the car had been sold on April 9th and delivered to *279the said Charles F. Glavin, and that Glavin gave a written order for tbe car to the Chicago, Milwaukee & St. Paul Eail-way Company and that that railway company issued a new bill of lading therefor to the said Glavin; that on April 10th the last named railway company requested the defendant to deliver the said car to them and that the same was so delivered on April 12th; that the plaintiffs were estopped by such facts from claiming said car from defendant. The answer also-denies any failure to safely carry and deliver, or that it lost the oats, or that the plaintiffs were the owners when they requested delivery be made to them.

Findings were made in the civil court, among others the following:

“(3) That the plaintiffs, pursuant to custom, deposited said bill of lading with the board of trade agent of the *Chicago & Northwestern Railway Company;*that while so deposited, said bill of lading was at all times subj ect to the order of the plaintiffs, and that said bill of lading was never surrendered to said defendant railway company.”

Upon this and the other findings judgment in form as for a conversion was entered for the plaintiffs for the value of the carload of oats. On appeal to the circuit court- the judgment was affirmed, and from that judgment of affirmance an'appeal'was taken to this court.

For the appellant there was a brief by *JE. M. Smart*and *R. M. Trump,*and oral argument by *Mr. Trump.*

*William Kaumheimer,*for the respondents.

Eschweileb, J.

The contention of defendant and appellant on this appeal is that because of the delivery of the bill of lading by the plaintiffs to the agent of the defendant at the board of trade in Milwaukee, and the giving of the misdirected order for the same to the intended customer, Charles F. Glavin, the plaintiffs no longer had control of the said car on April 8th, and that their subsequent order on the 10th to *280bold tbe same while the car was still in the possession of the defendant could be disregarded, and that if was therefore justified in turning over the car to the Chicago, Milwaukee & St. Paul Railway Company on April 12th.

As between the plaintiffs and the defendant the delivery of the bill of lading to the custody of defendant’s agent on the board of trade was not, under the undisputed facts, with the intention of passing title to the car to the defendant, and the court therefore properly found that such delivery was a mere matter of convenience. The bill of lading did not come into the actual possession of Charles E. G-lavin so that it might have been claimed that validity would be given to any transfer made by him under sec. 4425, Stats., which provides that such bill of lading may be transferred by delivery without in-dorsement or assignment and that the person so taking the same shall be deemed the owner of the property therein specified, as in the case of *Fenelon v. Hogoboom,*31 Wis. 172.

Upon the arrival of the car and plaintiffs paying for and obtaining the bill of lading they become the owners thereof and as vendors thereafter entitled to the right of stoppage *in transitu.*As against the defendant common carrier, the right of stoppage *in transitu*remained in plaintiffs until the goods arrived in the possession, actual or constructive, of the purchaser. *Jeffris v. Fitchburg R. Co.*93 Wis. 250, 67 N. W. 424; *Brewer L. Co. v. B. & A. R. Co.*179 Mass. 228, 231, 60 N. E. 548; *State v. Intoxicating Liquors,*104 Me. 463, 72 Atl. 331, 23 L. R. A. n. s. 1020; *Durgy C. & U. Co. v. O’Brien,*123 Mass. 12; *Inslee v. Lane,*57 N. H. 454.

Under the facts shown and as here stated, there was no such actual or constructive possession of the car in Charles E. Glavin as terminated plaintiffs’ right to prevent its further passing from the actual possession of the common carrier then holding it under the original bill of lading.

The appellant contends that inasmuch as the complaint was based upon the theory that there was a breach of the con*281tract duty of defendant to safely carry tbe goods from Iowa to Milwaukee and tbe facts disclose tbat tbe car did arrive there safely, they could not be required to litigate in tbis action tbe question whether, after tbe arrival of tbe car there, there bad been a tort committed by tbe conversion of tbe oats by tbe defendant, and tbat to do so would necessarily require a determination of tbe possible rights of persons not before tbe court, namely, tbe Chicago, Milwaukee & St. Paul Kail-way Company, Charles E. Glavin, and any person to whom be may have sold tbe car of oats or tbe new bill of lading issued by tbe latter company.

No question can be raised, however, but tbat tbe court bad tbe power and tbat it was its duty, no matter what tbe form of complaint, to give judgment in accordance with tbe facts disclosed on the trial.

No suggestions were made on tbe trial tbat any other person should be brought in as a party to tbe action, nor does tbe record disclose tbat there were any offers of proof or requests made by tbe defendant to have any other question determined than that which was determined. Tbe defendant relied then, as it does now, upon its contention tbat Glavin, not tbe plaintiffs, bad control of tbe car after defendant received tbe bill of lading and the giving of tbe misdirected order for tbe car. We cannot, however, adopt tbat view of it, and therefore upon tbe record as it stood tbe civil court was warranted in entering tbe judgment tbat it did, and tbe judgment should be affirmed.

*By the Gowrt.*— Tbe judgment of tbe circuit court is affirmed.