Opinion
3 Div. 573.
October 12, 1922.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Rushton Crenshaw, of Montgomery, for appellant.
When the consignor draws upon the consignee, and the draft, with bill of lading attached, is indorsed or transferred, if the consignee refuses to accept, the title of the transferee becomes absolute. 17 Ala. App. 287, 84 So. 427; 16 Ala. App. 346, 77 So. 940; 12 Ala. App. 511, 67 So. 721; 9 Ala. App. 328, 63 So. 776; 17 Ala. App. 256, 84 So. 421; 123 Ala. 614, 26 So. 498, 82 Am. St. Rep. 147; 146 Ala. 691, 40 So. 503; 171 Ala. 395, 54 So. 621, 32 L.R.A. (N.S.) 1173, Ann. Cas. 1913B, 42; 5 Ala. App. 454, 59 So. 746. An assignment of the invoice was sufficient to transfer title, where such was the intention of the parties. 144 Ala. 562, 39 So. 129; 171 Ala. 399, 54 So. 621, 32 L.R.A. (N.S.) 1173, Ann. Cas. 1913B, 42.
Steiner, Crum Weil, of Montgomery, for appellee.
It was essential to the passing of title to the nuts covered by the bill of lading that the bill of lading be delivered by the shipper to the National City Bank. 15 Mass. 527; 107 Mass. 37, 9 Am. Rep. 1; 77 Ala. 236; 66 Ala. 10; 35 Cyc. 320. The transfer of the invoice for the purchase price of the goods did not pass title in the goods to the bank. 132 App. Div. 732, 117 N.Y. Supp. 389.
It is a well-settled principle of law, recognized by this and other courts, that the assignment of a bill of lading puts the title to the goods thereby covered in the transferee. This rule applies to unconditional transfers or assignments, but when the shipment is made with bill of lading attached to a draft for the purchase money only a special property in the goods passes to the transferee, subject to be divested by the acceptance and payment of the draft. Cosmos Cotton Co. v. First National Bank, 171 Ala. 392, 54 So. 621, 32 L.R.A. (N.S.) 1173, Ann. Cas. 1913B, 42, and authorities there cited. In order, however, to constitute an assignment of a bill of lading so as to transfer title to the goods to the assignee, there must be a delivery, actual or constructive, of the bill of lading.
"A bill of lading not attached to the draft, or made payable to the holder thereof, or delivered to the holder of the draft, passes no title to the goods." Exchange Bank v. Rice, 107 Mass. 37, 9 Am. Rep. 1; McCormick Richardson v. Joseph Anderson, 77 Ala. 236, 35 Cyc. 320.
The bill of lading in this case was not to the order of the City National Bank of New York, but was to the order of the shipper William A. Higgins Co., "notify O. A. Richardson Co." its Montgomery agent. Nor was said bill of lading ever delivered to the National City Bank of New York, but was forwarded to Richardson Co. at Montgomery, Ala., who surrendered the same to the railroad after paying the freight on the car, and the goods were levied on while in the possession of the railroad, but after the freight had been paid and the bill of lading had been surrendered. The New York bank therefore acquired no title to the goods, and this appellant, Cox, acquired none under the assignment of the bank of its claim, which was nothing more than the draft drawn upon the appellee by the shipper and the invoice for the goods sold. Appellant's counsel, in effect, concede that the New York bank never acquired the bill of lading but contend that the assignment of the draft and invoice constituted it the owner of the goods at the time of the levy. The transfer of the invoice for the purchase price of the nuts did not pass the title to same to the bank. It was merely a transfer of the debt. Manufacturers' Co. v. Rochester Co. (Sup.) 117 N.Y. Supp. 989.
The case of Haas v. Citizens' Bank, 144 Ala. 562, 39 So. 129, 1 L.R.A. (N.S.) 242, 113 Am. St. Rep. 61, did not hold that the mere transferee of an invoice of goods shipped thereby acquired title to the goods, in the absence of an assignment of the bill of lading. Nor was the principle recognized in the Cosmos Case, supra, wherein the Haas Case was discussed and differentiated, and while the transfer of the invoice was recognized as a point of difference between the two cases, it was not held or intimated that the transfer of a draft and invoice without the bill of lading would give the transferee of the former the title to the goods shipped.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.