The New York herald., 1872-12-02
he COURT S.
Important Litigation Arising from csndgn-
nsntsf Wheat What Constitutes roussuisn
md 0wnership-Bnls Of Lading md
Drafts a Sale and Purchase
Decision Of the Court

The Wisconsin Marine and Fire Insurance Com
pany VS.. David Dows ana Others.-Tnis case, which
has occupied the attention OF Judge shipman In
the United states Circuit OF this district for the
last ten days. presents interesting questions Of
commercial law, which win render it precedent
in future cases OF similar kind. The case arose
out or the following I'm September 1882 the
hrm Of A. r. Smith Co., then doing business at
Oswego, N. ", wrote and teegraphed TO their cor
Tespondents Oliver Il Hart and George ]. Jones
Co., Of Milwaukee, to buy and ship for them two
cargoes OF No. 2 Milwaukee wheat, and to draw on
the Merchants Bank OF WATERFOWL, N. Y, for
twenty per cent margin and the balance at thirty
days. on the receipt Of these communications
Oliver Hart and George I. Jones Co. purchased
two cargoes OF wheat and shipped them by the
schooners Thomas Parsons and Atmosphere from
Milwaukee to Oswego. Oliver & Hart and
George l. Jones b Co. paid for the wheat out
OF their own money. They took the bills of lading
deliverable for the account and to the order OF the
plaintis and presented them to IT, with the drafts
attached The plaintiff discounted both drafts ana
paid the proceeds to Oliver n Hart and George I.
Jones 4 Co. The plaintiff then remitted the bills
of lading ana the drafts to the Merchants Bank
at Watertown enclosed in letters as follows:--
1--WE enclose for collection for credit drafts on
A. r. Smith Co. for s19,462 "A and for $14a72 49,
Thomas Parsons and Atmosphere, which property
you win hold for our account TILL payment OF the
drafts" On receipt of this letter. with the drafts
and bills OF ading, the Merchants Bank at Water
town notified A. r. Smith 90. that the
drafts had como forward and requested pay
ment OF the sight drafts and acceptance Of the
time drafts. simultaneously with the present
menJ of the drafts for payment ana accept
ance the Merchants Bank, at Watertown,
wrote to A. r. Smith 4 Co., who were engaged IN
business at Oswego, both as commission mer-
chants and as propretors Of the Corn Exchange
elevator, as follows -" Enclosed pleased find an
order to deliver to you the cargoes OF the schooners
Thomas Parsons and Atmosphere, No. Milwaukee
Spring wheat. consigned to us by D. Ferguson,
cashier. Milwaukee, Wisconsin, and to be held by
You Tor US until the following drafts are paid"
Then followed a memorandum OF the drafts The
aeyery aS 81 IN s eateT ~ were
captains OF the two schooners, ana were as fol-
lows" Dear Sir-Pcase deliver your cargo OF No.
elevator osweeo, T., for the he c' account 0 o. B.
Ferguson, cashier. subject to the order Of this
these delivery orders were presented to the re-
spective captains by. A. +: Smith 4 Co., who
eevasor Within lew aa DAYS after 3 storing me
wheat. A. F. Smith 4 Co. shipped the same into
various canal boats, and took captains bills
Of ladng therefor, and sent such bills Of ladtng
with drafts for the value Of the wheat, to the de-
fendants who, on receipt Of the bills OF lading dis
A. +. Smith co. Before the maturity OF the time
drafts sent forward BY the plaintiff A. r. Smith 4
Co. had faiied and the plantiff, discovering that
the wheat on the sChooners had been received by
the defendants, demanded it's return, which the
brought againss te de defendants for T she , value Of
them.
The defendants contended upon the trial.
Nrn.That by the transactions between A. r Smith 4
Co and oliver Hart and GEORGE l. jones Co the lat
Smith CO. o. Sssa dns pSy
is
! @ oSs Xxx s,sSs restrict a.
smith % vested sSst wii ths ssa title the
fS%.S.T6at tie deendants having received the wheat
9 S g nS as fs's' ass
ions i
At the close OF the plaintiYs' case the defendants
offered in evidence the canal boat bills OF ladlng,
with the n a., drafts attached ana aercd to prove Pay
evidence upon the grounds that prior to the date
Of the canal boat bills Of lading the paintif had
never been parted with; that the wheat had never
been legally delivered into the possession OF A. f.
lawful right to ship the wheat on board OF the
canal boats or to receive canal boat bills of lading
After the discussion or this objection His Honor
Judge Shipman decided In substance as f0lows-
4 VERDICT FOR PLAINTIFF BY ORDER OF THB COURT.
fn 81 s S c "a a q
when he discounted the drafts ido propose to go
Session $ inssssst
%
The Il. That s
Whatever interest had long as he maintained pos
ss nc Il s ssSles 81 as
hsGs can b no
SS
ass sasS Sas ne psasss
Tns w6ea a A., $ the % the bank
doc@enary eyidsnse e title has been repeatedly held
m ss @ ss ssGs
1s Sss u & sast
w Was the 'F e Te s s &
hands Of the as completely m, v,sn Int s
ssalnt saafs al s'
sw Ss eSndn so%SIIeS SSlS
osS ao Ss
ss%s scsS q What aons A. Sswsso must e
SorSooa % q @ osEeso % FOR ultimate delivery sSe
s"s sanR passed aA'
did the bank At Watertown occupy. and, and what That
wheat was put their hands TO deal with gen.
orally They not the general agents OF ths plain
tiff, They were the special bailees the wheat for
the purpose Of the protection q the drafts That s all
power the Milwaukee Bank conferred upon the Mer
chants Bank This argument Is attempted to be met by
sevns that the letters OF instruction from the plaintiff to
instrucionss They fundamental ana orkinaI nml-
tations upon the agency conferred on the Waeriown
bank. The Bank had power or authority TO- denver
the wheat sell II 70 Dows Co.. the deiendantS IN
this case and had the Waert0wn Bank shipped by bill OF
lnding their 70 D0ws Co. they would have
committed tort, in attempting 70 deal with property
no title Now, 4 the watertewn Bank being the special
could not sell 1t and confer title could they BY delivering
tito A. r. smith Co.. enable A. =. smitn 20 10
Bank perfectly OF the limited agency under
which the bank was acting, to wit:-as special baees
holding the wheat for one solitary PURPOSE u this Is not
Of third party for particular purpose, bailee with
out danger Of his treating himself the owner and sell