#### Hale and others vs. Milwaukee Dock Company.

Warehouse Receipt : *Maher estopped try its description of the property only so far as risible or within his knowledge*— Not *negotiable, except as a transfer of the property.*

1. A warehouse receipt is a written simple contract, which binds the receiptor merely to safely store the goods, and to deliver *the same goods*to the bailor or his assignee of the receipt, except in those cases where there is some express agreement or known usage of trade which shows that the parties otherwise intended.

2. The warehouseman is estopped from denying the description of the property in the receipt, so far as it relates to matters which are or ought to be within his knowledge, but not in respect to matters which are not visible or open to his inspection.

.3. A warehouse receipt is negotiable only to the same extent and for the same purposes as a bill of lading or a carrier’s receipt. The indorsement or delivery of it does not convey the contract itself, but only the property represented by it, and it becomes a mere evidence of . the title of the holder in such property.

4. Warehouse receipt in the following form: “ Received in store from M. for account of bearer, fifty-four barrels mess pork, deliverable on return of this receipt and payment of storage.” *Held,*that in the absence of fraud or willful or negligent misrepresentation by the warehouseman in respect to the description of the property, his obligation to any subsequent holder of the receipt, for value, was discharged by delivering or tendering the same property actually received in store and described as mess pork — -although the barrels in fact did not contain mess pork, but salt.

*4830. Ch. 340, Laws of 1860, as amended by sec. 1, ch. 73, Laws of 1863, (3 Tay. Stats., pp. 1846,1847, secs. 43,45,46), does not render warehouse receipts *negotiable*in the sense in which bills of exchange are negotiable by the law merchant, nor estop the warehouseman from denying, as against an innocent transferee for value, that the property (therein described according to its external appearance and the representations of the original bailor) was really such as represented.

6. The object of the statute was simply to give validity to any pledge or transfer of the property, or any lien created thereon, by any person holding the warehouse receipt, and thus invested with *apparent*authority to make an *absolute*disposal thereof, although, as between him and a third party who is the real owner, he may have only a special property in the goods or a special authority in regard to disposing of them.

APPEAL from tlie Circuit Court for *Milwaukee*County.

Action upon four warehouse receipts, executed by the defendant, in form as follows: “ Received in store from McLaren on account of bearer 54 bbls. mess pork, deliverable on return of this receipt and payment of storage,” which the plaintiffs allege that they received, in the usual course of business, as security for moneys advanced by them on the faith thereof to a third party, who obtained them for a valuable consideration. They allege that defendant refused to deliver the property on their demand, and seek to recover its value.

The defendants admit that they executed the receipts, and allege that they did so upon receiving in store the number of barrels receipted for from one Edward White, a pork packer, filled and closed up as barrels of pork usually are, and branded “ mess pork,” and represented to contain mess pork, though in fact containing salt only; and that they believed such -representations to be-true. They further allege that they have carefully kept and stored the same, and, upon the plaintiffs’ demanding barrels of mess pork on such receipts, they offered to deliver to them the very same barrels so received, and for which the receipts were given, but the plaintiffs refused to receive them.

The facts were proved as alleged by the parties. A former appeal in this case is reported in 23 Wis., p. 276.

*484The jury returned a verdict for the plaintiffs, and the defendant appeals from the judgment rendered thereon.

*M*Mariner, for appellants,

contended that warehouse receipts are not negotiable paper, under the law merchant. Chap. 34, Laws of 1860, does not undertake to fix the liability of a warehouseman on his receipt. *Rice v. Culler,*17 Wis., 351. The plaintiffs stand in the shoes of their assignors, and the contract is open to equities. Edwards on Bailments, 287; *Willard v. Bridge,*4 Barb., 361; *Suydam v. Smith,*7 Hill., 182; *Thompson v. Doming,*14 M. & W., 403 ; *Blanchard v. Payst*8 Gray, *281; Bank of Rochester v. Colt,*15 Barb., 506. The defendant’s delivering the property bailed, as offered, would have been a performance of the contract contained in the receipts. It is of the very essence of the contract, as well as its exact language, that the very property “ received in store,” shall be returned. The contract is one of bailment. Any delivery which does not provide for a return of the very same property is a sale or exchange. *Norton v. Woodruff,*2 N. Y., 153.

The transfer of the receipts does not create any new rights. It has no other operation or effect than as a symbolical delivery of the property.

The defendants are not estopped to deny that the barrels contained pork. *Gardner v. Horn,*25 N. Y., 595. They had no right to inspect it. They could not compel the plaintiffs to receive mess pork upon these receipts, and the estoppel would not be mutual. Representations made in good faith, but induced by fraud, do not estop. *Maclcey v. Holland,*4 Meta, 69; *Whitaker v. Williams,*20 Conn., 98, 527; *Taylor v, Hly,*25 id., 250.

*Finches, Lynde & Miller,*for respondents,

argued that these warehouse receipts, running to bearer, are purely commercial paper, and intended to pass' from hand to hand; that they are made negotiable by chapter 340, Laws of 1860, and chapter 73, Laws of 1863, and are not subject to equities. *Crosby v. Roub,*16 Wis., 616; 1 Smith L. C., 259, 742; 1 Parsons on Bills, etc., *485274, 279 ; 20 How. (U. S.), 864; 1 Wallace, 95, 203. As between tbe maker and tbe assignee of sucb receipts, both being innocent, tbe former ongbt to suffer tbe loss. He is estopped from denying the representations of tbe receipts. 2 Term, 70; 84 N. Y., 80; 15 Wis., 75; Story on Part., § 108; 2 Smith L. 0., 702-3; *Proudfoot v. Montefiore,*L. R. 2 Q. B., 511; 16 N. Y., 142; 29 Eng., L. & E., 323; *Pickard v.*Sears, 6 Ad. & Ellis, 115; 3 Pick, 38; 25 Conn., 118; 13 N. Y., 316; 3 Hill, 219; 1 Salk, 289; 9 Cl. & Ein., 277; 25 N. Y, 595; 6 Mass., 425; I B. & Ad., 712; 12 Barb:, 99; 5 Seld., 534; 7 Bosw., 372; II Law. Reg., 680; 2 Blatch., 118; 1 Grreenl. Ev., 207; 24 Pick, 196. 4 Mete., 381; 1 Wis., 382,"452; 2 id., 322; 3 id., 657; Edwards on Bailm., 63. Tbe cases bolding that a receipt for property “in good condition,” relates only to apparent condition, were between original parties. 2 Blatch., 116; 1 Black, 156; 3 Allen, 105; 8 Cray, 287; 7 Ad. & Ellis, 29.

On tbe motion for a rehearing, they further argued, that by tbe acts of 1861 and 1863, tbe legislature evidently intended to make warehouse receipts, on which the words “ not negotiable” were not plainly stamped or written, valid in tbe bands of a *bona fide*purchaser, by making it a penal offense willfully to issue a receipt for property not *actually received;*by providing that receipts marked “ not negotiable ” should be exempt from tbe provisions of these acts; by giving to every person aggrieved his action for damages for any violation thereof, whether willful or not; and by making them transferable by delivery so as to entitle the transferee to be deemed the owner of tbe goods, etc., *therein specified.*

Tbe following opinion was delivered at tbe June term, 1871:

Dixon, C. J.

This cause was most ably and exhaustively argued at the bar on both sides, as well on the first appeal as on this, and I thought at that time and so I still continue to think, that the tender or offer by the defendant to deliver to the plaintiffs tbe same parcels and barrels received by the defendant in *486store, and for wbicb tbe receipt was given, was, and is, a discharge of the obligation of the defendant, and full satisfaction and performance of the contract on its part. I think this conclusion clearly follows from the nature and terms of the contract itself, and from the nature and extent of its negbtiable qualities as known and defined by law. And such I understood, and still understand, was the unanimous opinion of this court when the cause was here before, as expressed by Mr. Justice Cole on that occasion. He says: “ Now it seems to us that the defendant, being a warehouseman, may well be estopped as against one who takes the warehouse receipt for a valuable consideration, from denying the trath of the statements to which it gives credit by its signature, so far as those statements relate to matters which are or ought to be within its knowledge or the knowledge its agents; but that, in respect to things not open to inspection and visible; like the contents of pork barrels, it ought not to be concluded by the description of the property in the receipt. This is the rule applied in the case of receipts or bills of lading given by common carriers, as to the interior condition of the property shipped, and we cannot see why it is not also applicable to the case at bar.” *23*Wis., 280. This appears to me to be entirely conclusive of the question, and to show that the defendant cannot be held responsible for the contents of the barrels, or that they actually contained mess pork, even in favor of a *bona fide*assignee, or holder for value of the receipt. I have, however, gone carefully over the ground again, and examined the authorities, and am more than ever convinced of the correctness of the views thus taken and expressed by this court at that time.

The receipt of a warehouseman or wharfinger, and the receipt or bill of lading of a common carrier, are contracts of precisely the same general nature and effect, and should obviously be governed by the same rules and principles as to the application of the doctrine of estoppel or negotiability, which, with respect to such contracts, mean one and the same thing. They *487are or may be said to be negotiable or conolusive, in tbe bands of a *Iona fide*assignee or bolder for value, so far as tbe party executing them, warehouseman or earner, bas made, or is bound by, tbe representations contained in them. They are negotiable or conclusive and valid in tbe bands of sucb a bolder, because tbe signer, or party by whom they are executed, is estopped, or not permitted to deny tbe existence of tbe facts represented in or by tbepi, and wbicb are presumed to bave been witbin bis knowledge at tbe time of tbeir execution. Negotiability, or *quasi*negotiability as it bas sometimes been more properly called, and estoppel, when spoken of with respect to sucb instruments, mean, therefore, one and tbe same thing. In *Rowly v.*Bigelow, 12 Pick., 307, 314, and *Stanton v.*Eager, 16 id., 467, 474, carriers’ receipts or bills of lading are spoken of as *quasi*negotiable, wbicb is tbe more accurate form of expression. A 'bill of lading or carrier’s receipt for goods to be transported, and tbe receipt of a warehouseman or wharfinger for goods in store or to be forwarded, are both contracts of bailment.

Both tbe carrier and tbe warehouseman are bailees for hire, tbe former agreeing to carry and deliver tbe identical goods or property received at tbe place designated or agreed upon, and tbe latter to forward, or redeliver or return tbe very same goods or property on presentation of tbe receipt, unless there be some express agreement, or known usage, or custom of trade or business, showing that tbe parties otherwise intended. It is of tbe very essence of both agreements that tbe very same property received shall be carried, delivered or returned to tbe party who may be entitled thereto, in discharge of tbe obligation of tbe bailees. Tbe delivery or return of tbe same property, and of no other, will discharge sucb obligation or duty and satisfy tbe terms of tbe contract. Even in case of fraud, or willful untruth, or misrepresentation on tbe part of tbe bailee, or, in a case like tbe present, where be is himself deceived or misled, without fault on bis part, by tbe fraudulent concealment or devices of tbe bailor, no other or corresponding property or *488goods can be tendered in performance of tbe contract. In tbe former case, tbe bailee (and in tbe latter also, if liable) must .respond in damages for tbe value of tbe property represented by tbe receipt, unless tbe party entitled to tbe same elects to .receive other property instead.

> “ It seems to be thus well established,” says Chief Justice . Shaw, in bis most elaborate opinion in *Blanchard v.*Page, 8 Gray, 281, 295, “ that a bill of lading is a written simple contract between a shipper of goods and a ship-owner, tbe latter to carry tbe goods and tbe former to pay tbe stipulated compensation for that service.” And tbe same is true of a warehouseman’s receipt. It is a written simple contract between tbe owner of tbe goods and tbe warehouseman, tbe latter to store tbe goods and tbe former to pay tbe compensation for that service. Such is tbe contract here. Tbe language is: “ Received in store from McLaren for account of bearer fifty-four bbls. mess pork, deliverable on return of this receipt and payment of storage.” Tbe meaning of this clearly is, that tbe same fifty-four barrels received in store, and described as mess pork, are deliverable or to be delivered to tbe bearer of tbe receipt on return of tbe same and payment of storage; and tbe warehouseman, not less than tbe ship-owner or carrier, is bound to deliver tbe identical goods received in fulfillment of bis contract. Nothing short of this discharges tbe obligation or amonnts to a performance, and, in tbe absence of fraud, or misrepresentation, or negligence on bis part in giving tbe receipt, nothing more than this can, in my judgment, under any circumstances, be demanded of him, unless indeed bebas failed to properly care for and store tbe goods, a point not involved in this case.

Tbe words “mess pork,” in this receipt, are clearly words of description. They are descriptive of tbe barrels received, and inserted for tbe purpose of identification. They signify no more in that connection than that tbe fifty-four barrels received, and which are to be delivered to tbe bearer on return of tbe receipt and payment of storage, are described, marked or *489known as barrels of mess pork. They do not signify that the barrels actually contain that article to the knowledge of the warehouseman, or that he so states or represents to any person purchasing the property by taking delivery of the receipt Neither do they signify that he has any actual knowledge or information upon the subject, or that he so states or represents, except so far as the barrels themselves, by their external appearance, size, weight, marks, etc., indicate such to be their contents. He receipts them upon the representation of the bailor, and their external appearance corresponding therewith as to contents. He does not, and is not supposed to have any actual knowledge of their contents, and the language of the receipt is not so to be understood. It is no warranty on his part as to the actual contents, but only that the barrels are so represented and so appear to him, to the extent of his knowledge or means of information on the subject; and as they are represented and appear to him, so he represents or describes them to others in his receipt. A warehouseman like a common carrier, is not authorized to open and inspect barrels or packages delivered to him for safe keeping. A carrier cannot do this, or insist on its being done, before signing the receipt or bill of lading; and the usages and course of the business with ware-housemen are the same.

That such is the legal obligation and duty of the carrier, unless under certain circumstances, as where he has good reason to believe that the package tendered contains something dangerous, or hurtful, or otherwise of a character not proper to be carried, was expressly decided in *Couch v. The London & Northwestern Railway*Company, 11 C. B., 255 (78 E. C. L., 254, 290, 292, 294). See also the language of Lord Campbell, C. J., in *Bross v.*Maitland, 6 El. & Bl., Q. B., 482 (88 E. C. L., 482), and the opinion of Sawyee, J., in *Barrett v. Barney,*2 Abbott’s U. S. Cir. & Dis. Ct. R., 197; *S. C.,S*Albany Law Journal, 246, 247. And of necessity this must be so; for, otherwise, business of the kind could not be transacted. The usages and course of *490business of warehousemen in this particular were clearly proved in this case, and, besides, are well known and understood in commercial circles, if not in courts, without such proof. And here again the complete and perfect analogy between a wareT houseman’s receipt and the receipt or bill of lading of a common carrier holds good, so that in all respects, except the single one that one is to move the goods and the other is not, the contracts are precisely alike. In saying this, of course, I do not intend to reject or overlook the difference in the liability of the two, as settled and understood in our law. But that difference, the carrier-being under far the more.stringent and exacting rule, would seem, if anything, to make in favor of the increased negotiability of the earner’s receipt over that of the warehouseman. And when we add to this circumstance the further .well known fact, that carriers’ receipts always have circulated, and necessarily always must circulate and be negotiated and transferred far more widely and extensively than those of warehouse-men, it seems impossible to conclude that there exist any reasons, either in law or in the necessities or convenience of trade or commerce, for ascribing or giving to the receipts of ware-housemen any greater negotiability, or any further or different properties or qualities in the hands of any person, than are ascribed or given by law and the usages and customs of merchants to the receipts of carriers.

I know of no authority, and do not think any can be found, to justify or uphold the contrary of this proposition, and I certainly can see no good reason for upholding it. The books, to the-extent of my examination — and I believe I am correct about it — make no distinction between the two instruments so far as their negotiable qualities or characteristics are concerned. The English courts place both on the same footing, as will be seen by the discussion and references in *Coleman v. Riches,*16 C. B. (7 J. Scott), 104, [81 E. C. L., 103], which was a case upon a wharfinger’s receipt; and so do the courts of this country, in which it has been held that the endorsement and deliv*491ery of tbe warehouse document transfers tbe legal title and constructive possession of tbe property. It is a good symbolical delivery, equivalent, in tbe then situation of tbe property; to tbe delivery of tbe property itself. *Rice v. Cutler,*17 Wis., 351; *Gibson v. Stevens,*8 How., (U. S.) 399, 400; *Gibson, Stockwell & Co. v. Chilicothe Bank,*11 Ohio St., 311.

Having thus concluded that there is no difference, and no distinction can be made, between this receipt and tbe receipt or bill of lading of a carrier, with respect to negotiability, and that it is negotiable to tbe • same extent, under tbe sanie circumstances, and upon tbe same principles, as a carrier’s receipt, I shall next endeavor to show, if it were a carrier’s receipt and the defendant a earner, that a delivery or offer of delivery, in good order, to tbe plaintiffs as assignees or *bona fide*holders for value of tbe receipt, of tbe same identical barrels for which tbe receipt was given, would have absolved tbe defendant Norn all further liability upon tbe contract, and would have been an exact and legal performance of it.

If this bad been a carrier’s receipt in tbe same words, except to provide for tbe carriage and rate of compensation, and containing, in addition to tbe description, “ fifty-four bbls. mess pork,” tbe further statement or description “in good order and well conditioned,” it would not then have constituted a warranty or representation binding tbe defendant that such were tbe actual contents of tbe barrels, and such actually tbe order and condition of tbe pork in them.' It is settled, beyond reach of cavil or doubt, that these and all like expressions or statements contained in tbe bill of lading or receipt of carrier, relate only to “ circumstances which are open to inspection and visible ” to tbe carrier at the- time; but they do “ not preclude tbe carrier from showing, in case of loss or damage,, that tbe loss proceeded from some cause which existed, butwas not- apparent, when be received tbe goods, and which, if shown satisfactorily, will discharge tbe carrier from liability.” This is.the language of Chief Justice Shaw, in tbe third position stated in *Hastings**492*v. Pepper,*11 Pick, 43, and wMch is quoted with such decided approbation by the supreme court of the United States in *Nelson v. Woodruff,*1 Black, 160. And besides these two cases, fully to the point, Mr. Justice Cole, in the former opinion, refers to four others, which are equally so, viz.: *Shepardv. Naylor,*5 Gray, 591; *Tarbox v. Eastern Steamboat Co.,*50 Maine, 339; *Bissel v. Price,*16 Ill., 408; and *Bradstreet v, Heran,*2 Blatchf, 116. And now, on this argument, the learned counsel for the plaintiff, cite still others *(Blanchard v. Page, supra; Sears v. Wingate,*3 Allen, 105, and *Berkley v. Waiting,*7 Ad. & Ellis, 29, 34 E. C, L., 22); but the counsel say that all are cases arising *between the original parties to*the *bill of lading.*

The answer or argument, then, is this, that the rule or principle of construction is inapplicable when the bill of lading or receipt has been transferred, or, in other words, that it is to receive one construction as between the original parties to it, and another and very different construction as between third persons. As between the' original parties, and as intended by them at the time of making and signing the instrument, the language is to be understood and applied only to those facts and circumstances which were open to inspection and visible to the carrier, so that the carrier may rebut the *prima facie*case made against him, by showing latent defects, or that the contents were not what, they purported or were represented to be; but, as between the carrier and third persons, a different construction must prevail, and the words must be understood and applied, not to the facts and circumstances as they appeared externally and were seen by and represented to the carrier — the open, visible condition of things — but to those facts and circumstances which were hidden from and unknown to him, and which he. could not know — to the true and actual contents and internal condition of the packages or parcels, so that the carrier shall be estopped or absolutely concluded with respect to them by the language of his receipt It would be something very strange, to say the. least of it, and I think new, if the language *493of a written instrument were to be held tbns susceptible of two entirely different and contrary constructions. It would seem that tbe words of a writing, expressing tbe understanding and intent of tbe parties to it, ought to mean tbe same thing and express tbe same understanding and intent, whether tbe writing itself is in tbe bands or possession of one person or another. And so I think they do, and I think tbe learned counsel are entirely mistaken in tbe position they assume. It is not enough for them to show, in order to establish authority in their favor, that the cases are all between the original parties to the bill of lading or receipt in which the courts have applied this principle or rule of construction, but they must go farther and show that the courts have refused to apply the same principle or rule of construction as between the carrier and third parties. This they have entirely failed to do; and it is believed, by me at least, that it cannot be done.

It will be observed, in examining the cases above cited, that the courts lay down the principle or rule generally, or as generally or always applicable; and that they do not anywhere state or suggest the exception or distinction contended for by counsel., Such a distinction is not anywhere hinted at, and it is clear to my mind that there is no good reason or foundation for it. On the contrary, the very opposite position, and that there exists no such distinction, is clearly stated and shown by some of the cases. The second rule laid down in *Sears v. Wingate,*3 Allen, 107, and which applies to the point now under consideration, is in these words: “The master is estopped, as against a consignee who is not a party to the contract, and as against an assignee of the bill of lading, when either has taken it for a valuable consideration upon the faith of the acknowl-. edgments which it contains, to deny the truth of the statements to which he has given credit by his signature, *so far as those statements relate to matters which are, or ought to he, within his knowledge.”*This is a clear statement and recognition of the true and just limit or extent of the carrier’s liability to third *494persons, and of- tbe correct rule or principle of construction in such, cases.

And counsel are mistaken too, I think, when they assert that all are cases arising between the original parties to the contract. The case of *Nelson v. Woodruff,*1 Black., 156, also cited by counsel, was not such an one. It was a controversy between the carrier and, in the language of the above rule, a consignee who was not a party to the contract, and who had taken it for a valuable consideration, upon the faith of the acknowledgments which it contained. Such a consignee, who advances money upon the faith of the bill of lading or receipt after it is made out and delivered to the consignor, stands in the same relation to the carrier, and is entitled to the same protection, as an assignee or holder in good faith for value of the bill of lading. But the court in that case refused to hold the carrier liable for secret defects, or leakage, or loss of contents arising therefrom, or for diminution or absence- of contents, unknown to the carrier at the time the goods were shipped. The bill of lading recited that the barrels and tierces *“*had been shipped in good order and condition,” etc. That case is an authority clearly against the position here assumed by counsel.

And so also is the case of *Marden v. Green,*6 Watts, 421, likewise referred to most approvingly by the court in *Nelson v. Woodruff,*and with which it was said Mr. Angelí had made us all familiar. The following language occurs in the opinion: “ Some difficulty arose as to whether the. owners could contradict the bill of lading. This is not generally permitted, but cases may occur in which it may be proved there was imposition on the captain, or a mistake of both consignor and captain. *The captain does not open or otherwise examine the casJcs. Suppose he receives a barrel of corn instead of a barrel of coffee; or a barrel of cider instead oj Madeira wine; or a package of cotton linen instead of flaxen linen ; it would seem his bill of lading would not and ought not to exclude him from proving this, whether it arose from mistalce or fraud in the consignor."*Here then we have the *495court supposing, in tbe case of a bill of lading or carrier’s receipt, a transaction or occurrence of tbe same kind wbicb actually took place in tbis instance witb tbe warehouseman and bis receipt, and stating, as an undoubted general proposition of law, that the carrier or master in sucb case could explain tbe circumstances, and exonerate bimself from liability by showing tbe fraud or mistake of tbe consignor. If tbe carrier could do so in sucb case, then why not tbe warehouseman? I have endeavored to show that there exists no just or solid ground for discrimination. And tbe language of tbe court in tbe early case of *Barrett v.*Rogers, 7 Mass., 300 — “ if no fraud or imposition was practiced,” etc. — is also directly to tbe point.

And to tbe same effect is all tbe reasoning of Mr. Justice NelsoN in *Bradstreet v. Reran,*where, as be says, tbe respondents in that case, who were the consignees of tbe cotton, stood in tbe light of *bona fide*purchasers, who became sucb on tbe faith of tbe representations contained in tbe bill of lading. He states tbe question there to have been, whether tbe loss and injury existed in tbe shape of external damage, at and previous to tbe loading of tbe cotton on ship-board, and was readily visible on inspection; or whether tbe damage was occasioned by tbe internal bad condition of tbe cotton, wbicb was invisible to tbe eye at tbe time of tbe shipment, and could only be detected by cutting and inspecting tbe bales. Tbe court found that tbe damage was of tbe former kind, and so decided against tbe carrier.

Anri in *Bisset v.*Price, tbe party suing bad made advances on tbe faith of tbe bill of lading. Tbe principles governing in sucb cases are ably discussed, and tbe court say: “ Tbe forwarding business would become impracticable if tbe carrier, when be receives tbe goods, is bound to open and examine every package, before be signs tbe bill of lading for them.” And sucb, also, I understand to have been tbe case of *Shepherd v.*Naylor, where Chief Justice Shaw says: “In general the interior condition of goods, packed as usual and necessarily so *496for shipping, cannot be known to the- shipmaster receiving them for carriage, and therefore the words *‘*in good order and condition ’ must be limited to their apparently good order and external condition. It is not nnnsnal to insert in the bill of lading, ‘ contents unknown,’ or some saving clause of like effect. But in *Barrett v.*Rogers, 7 Mass., 297, the court held *that such must he the reasonable construction where no such words were*used, and therefore held that the receipt and undertaking expressed in a bill of lading are *prima facie*evidence of the quantity, quality and condition of goods received for carriage, but not conclusive. See also *Clark v.*Barnwell, 12 How., 272; *Haddow v.*Parry, 3 Taunt., 303.”

It would seem that I might pause in the consideration of this case just here, and that enough has been said to show that, in my judgment, the plaintiffs cannot recover. But as the great question argued in the case was that of negotiability, and as it was claimed for the plaintiffs that these receipts are negotiable, like bills of exchange or promissory notes, or like bonds for money payable to bearer, and passing from hand to hand by delivery, and as I concede their negotiability to the same extent and for the same purposes as bills of lading or carrier’s receipts are or may be said to be negotiable,, it is necessary and proper that I should speak more particularly on that subject. A bill of lading or carrier’s receipt is not negotiable like a bill of exchange or promissory note, within the meaning of the law merchant. The indorsement or delivery of it does not convey the contract itself, but only the property represented by it. It is the property which is transferred by the indorsement and delivery ; and, in the hands of the indorsee or holder, the bill of lading becomes mere evidence of his title or ownership. He can demand, sue for and recover the property, producing the bill of lading or receipt in proof of title. The carrier must deliver the property to him as the owner, and he can maintain an action against the carrier, founded on his right of property, if he does not do so. He cannot, however, sue upon the bill of *497lading as a contract, for in tbat be bas no interest except as a muniment or evidence of bis title to tbe property. These conclusions seem necessarily to follow from tbe nature and terms of tbe instrument, being a mere contract of bailment, wbicb is to be fulfilled or performed by tbe delivery of tbe identical property specified or received. It seems impossible to liken sucb a contract to, or to infuse into or affect it with tbe properties or qualities of negotiable paper, properly so called. But I need not dwell on these matters, as the question is conclusively settled by the decision *Thompson v.*Dominy, 14 Mees. & Nels., 403. Nor need I enter into tbe reasoning of tbe judges, so clear and satisfactory, in tbat case. I prefer rather to quote tbe language of Chief Justice Shaw in *Blanchard v.*Page, 8 Gray, 297. He says: “It bas sometimes been insisted tbat a bill of lading is negotiable, like a bill of exchange, so tbat when tbe shipper bas indorsed and delivered tbe bill of lading, bis whole right and interest, as well in the contract as in tbe goods represented by it, is gone. Something like this bas been suggested in some of tbe earlier cases, of *Lickbarrow v.*Mason, and others, but bas never, we believe, received tbe sanction of judicial decision.

> “But it is now fully settled, tbat a bill of lading is not negotiable in tbe sense stated, so as to constitute a legal obligation between the ship-owner and tbe indorsee; though in many cases of tbe indorsement of tbe bill of lading, whilst tbe goods are in tbe possession of tbe carrier, of wbicb tbe shipper is owner, or tbe goods have been shipped on bis account, tbe effect is to transfer tbe right of possession connected with tbe right of property, in virtue of wbicb, as before stated, tbe in-dorsee may have bis remedy as owner. But in law, tbe original contract of tbe carrier with tbe shipper is like any other right or chose in action: it may- convey an equitable interest, but cannot transfer the legal right of action.

> “ This question came before tbe court in a comparatively recent case, *Thompson v. Dominy,*14 M. & W., 403, in wbicb it *498was Reid that a Rill of lading is not negotiable like a bill of exchange, to enable an indorsor to sue in bis own name; tbe effect of tbe indorsement being only to transfer tbe property in tbe goods, but not tbe contract itself. It was put expressly on tbe ground, that tbe original contract for safe carnage is witb tbe shipper, and that contract is not transferable, although an in-dorsement of tbe bill of lading by tbe consignee, who has in himself tbe right of property in the goods, will pass tbe right of property to tbe indorsee, witb all tbe rights incident thereto. Since that decision, by an act of parliament, St. 18 and 19 Yict., c. Ill, a bill of lading has in effect been made transferable by indorsement, so that an action may be brought upon it in tbe name of tbe indorsee. Tbe statute, of course, cannot affect tbe law of America.”

Tbe act of parliament above spoken of, and which only makes tbe bill of lading transferable by indorsement “as against tbe master or other person signing tbe same,” has been before tbe English courts, for consideration in two recent cases. *Valieri v.*Boyland, L. R. 1 C. P., 382 ; *Jessel v.*Bath, L. R. 2 Ex., 267. Tbe act is printed at length in a note to tbe former ease, and contains a proviso in these words: “ *Provided*that tbe master or other person so signing, may exonerate himself in respect of such misrepresentation, by showing that it was caused Without any default on bis part, and wholly by the fraud of tbe shipper, or of tbe bolder, or some person under whom tbe bolder claims.” It appears, therefore, under tbe act, that cases of this description, if this were a bill of lading and negotiable, are saved, as they obviously should be, from its operation, or from 4be effect given to tbe transfer of negotiable paper to a purchaser for value without notice. And so tbe courts held in ■tbe cases ¿referred to.

Tbe provisions of our code relating to tbe assignment of cboses in action and.tbe bringing of suits thereon in tbe name of 'tke real party in interest, do not effect tbe question. If assignable, -.and if tbe assignee of tbe bill of lading may sue in *499bis own name, be can only recover as bis assignor, or tbe original party, could recover upon it. He represents sucb party, and succeeds only to bis rights at tbe time of assignment *Hedges v. Sealy,*9 Barb., 214.

I should not close this opinion without reference to tbe recent well considered decision of tbe supreme court of our sister state, Minnesota, which fully sustains tbe views I have taken, and is not cited in tbe briefs of counsel. It was a case much like tbe present, a suit for property specified in a warehouseman’s receipt, which receipt bad been transferred; and tbe action was by tbe bolder against tbe warehouseman. Tbe case is *Robson v. Swart,*14 Minn., 371. I concur in the general principles there held, but tbe decision goes much farther than we are required to go in this case. Tbe wheat was open to inspection, and tbe warehouseman supposed to know its quality. Tbe receipt was for “ No. 2 wheat,” and I doubt, therefore, whether tbe tender of wheat of a quality inferior to No. 2, though tbe same wheat for which the receipt was given, ought to have been held a satifaction of the contract, or discharge of the obligation of the warehouseman to a holder for value of the receipt, who bought without knowledge of the quality of the wheat, except as stated in the receipt, and relying upon such statement.

The case of *McNeil v. Hill,*Woolworth’s Cir. Ct. R. (vol. 1), 96, cited by counsel for the plaintiffs since the above was written, contains nothing in conflict with the views I have taken. I fully agree that the case was correctly decided, and refer to it as sustaining my conclusions here, so far as it has any application to the questions under consideration. And two recent cases, one in Illinois and the other in Ohio, are fully to the point, and I make especial reference to them. *Burton v. Duryed,*40 Ill., 320; *Second Nat. Bank v. Walbridge,*19 Ohio St, 419 ; *S. C.,*2 American R., 408.

And the case *In re Bahia & San Francisco Railway Co.,*L. R., 3 Q. B., 583, in like manner cited, is clearly distinguishable. The certificates of shares there issued by the company were, in*500tended to, and did, not only certify that tbe persons therein named were on the register of the company as shareholders, but also that they were in reality shareholders. They were expressly declared by statute to be *prima facie*evidence of the title of the persons named to the shares specified.

Every light in which this case presents itself to my mind, compels me to say, that the judgment should be reversed, and that the plaintiffs have established no cause of action.

The other justices concurring, the judgment is reversed, and a *venire de novo*awarded.

A motion for a rehearing was denied, and the following opinion delivered, at the January term, 1872 :

Dixojj, C, J.

Counsel for the plaintiffs move for a rehearing, and ash a decision whether warehouse receipts are not negotiable by ch. 840, Laws of 1860, and the amendment, see. 1., ch. 78, Laws of 1863 (2 Tay. Stats., 1846, 1847, §§ 42, 45 and 46). An examination of those statutes, and particularly of the provisions of § 45, which are chiefly relied upon, will show that they contain no words making the receipt itself transferable like a bill of exchange under the custom of merchants, or as promissory notes have been declared to be by statute. The transfer of the receipt “ by delivery, with or without endorsement thereof,” transfers no more than the property in the goods; it does not transfer the contract. This is so by the very language of the enactment, which is that “ any person to whom the same may be *so*transferred, shall be deemed and taken to be *the owner of the*goods, *wares and merchandize therein*specified, so far as to give validity to any pledge, lien, or transfer made, or created, by such person or persons.”

This language very clearly points out the extent and quality of negotiability which the instrument has by the statute, the object of which was, as is shown in *Rice v.*Cutler, 17 Wis., 358, to obviate the inconveniences which resulted from the rule that *501agents, factors and others, having only a special authority to sell or special property in the goods, conld make sale only in pursuance of such authority or according to their special interest, although, hy the possession of the bill of lading or receipt, they were clothed with apparent full power, or had an apparent absolute title which they might seemingly transfer or deal with as if the goods were actually and truly their own. This appearance was regarded as deceptive and mischievous; and it was to remedy the evils arising from it, hy making the *apparent*authority equivalent to a *real*authority, in all cases where the ends of justice demanded, that the statutory provision was enacted. Under the statute, persons thus entrusted with evidences of title, or of authority to sell and dispose of, though having no title and without authority or with hut a special or limited power, may, nevertheless, sell and convey title to the goods generally, hy the transfer and delivery of the receipt, as if they were the real owners. They may make a valid pledge of, or create a valid lien upon the goods hy the same means. Such is the more extended effect given hy the statute to the transfer of the receipt to a *Iona fide*purchaser for valine, or to one who has in good faith received it in pledge of the goods, or otherwise as security for the payment of money, or the discharge- of some promise or obligation. More than this the statute does not change or affect the negotiable or *quasi*negotiable character of such instruments, hut leaves them as they were before its enactment

The delivery of the receipt may operate to transfer and vest the title of the goods, or create a valid lien or pledge, where before it would not; hut in all other respects the nature of the instrument is untouched; and when the words not negotiable ” are employed in the statute, they necessarily refer, as it seems to us, to that kind of negotiability recognized and defined by the statute, and which is the very same the instrument possessed before the statute was enacted. The word “ negotiable ” is evidently not used in the sense in which it is used as *502applicable to a bill of exchange, but as passing the property in the goods only, and we can give no other effect to the statute.

It follows that the plaintiffs in this case are not aided by the statute, and that a motion for a rehearing must be denied.

*By the Court.*— Motion denied.