The Alaska citizen., 1912-03-18

elementary rules would not control in a case where by contract it clear ly appeared that, despite the ship ment, the goods should remain at the risk of the consignor until ar rival at the point of ultimate des- tination.' In McNeal ys. Braun. 53 x. J. l.. 6ll, after reviewing the decisions, the Court said: Tt will also be found that the rule uniformly adopted in the line of decisions is that the sk of loss in transportation depends upon the nature of the transaction, the terms Of the con tract. and the intention of the par ties. In Dunlop vs. Lambert tt Clark F., 600) Lord Cottingham said: When the party undertaking to consign, undertakes 10 deliver at particular place, the property un- til it reaches that place and is de livered according to the terms of N''N Noi4NA'tNN 10 ct Nllt lISh Ol llt consignor In some of the de cisiCns controlling evidence of the intention of the parties has been found in the disposition made of the bill of lading; that is to say. wheth- CT the bill of lading was sent to the consignee or retained by the con signor In others it has been found in the proof of the method of former similar transactions between the parties. Such evidence is found in the record here. Four months before the consignment of money and bullion in this case, the Alaska bank had shipped to the appellant two boxes of bullion fer credit on it's account. While in transit the contents of one of the boxes were stolen The appellant, acting as the agent for the Alaska bank to collect the insurance on the stolen bullion, required the lat ter to give it a written authoriza- ton to collect the money due on the policy and a written release from all liability, in giving receipt there Tor, and it was not until the money was so collected from the
 Insurance company that the appel lant gave credit therefor on it's books. The appellee points also 10 other circumstances as indicat- ing the intention, such as the fact that no bill of lading was trans mltted to the appellant. that the Alaska bank insured the money and bullion while in transit. that the appellant charged interest against the Alaska bank until the actual re celpt Of money in Seattle, and ii argues that the appellant being amp ly secured, had no inducement to assume the risk of the loss of money and bullion in transit.
 But we think that decisions in cases arising under sales of goods and the transportation thereof. while they tend, upon the analogous prn- ciples involved, to sustain the de cision of the court below, are not necessarily controlling of the ques- ton here under consideration. The case Is not that of a sale of goods by the Alaska bank to the appellant, put It IS a case of an attempt to pay debt. The Alaska bank was indebted to the appellant in a large sum of money. The debt was pay able at the appellants bank in Seat tle. The Alaska bank placed $lOl.- ooo Tn the hands of the express com pany to be transmitted to the appel lant at it's place of business in Seat tie, to be there received and cred. lted on the account. If the money and bullion had been lost in transit
 whose loss would it have been? There can be no doubt that it would nave been the loss of the Alaska bank. That bank could not say that the appellant had been paid from the mere fact that it had plac- ed the money in the hands of the express company, consigned to the appellant at the place where the debt was payable The eXpreSs company might, it is true, have been made the agent of the appellant to receive and transmit the money. but there is nothing in the evidence to show that that was done. In p Am. Eng. Enc. of Law (3rd Ed
 535, it is said: When a remittance
 is made through third person, the
 question whether the money while
 in transit is at the risk of the
 debtor or the creditor depends en-
 urely upon the question of the
 agency of the person through whom
 the money is sent; if he is acting as
 the authorized agent of the credi-
 tor, the money is at the risk of the
 creditor, but if he is acting as the
 agent of the debtor, or was not au-
 thorized by the creditor to receive
 the money, it is at the risk of the
 debtor" The money and bullion | heinz in tho poccaec;or cf tho