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formed a connection with the person who
wrongfully perhaps procured its promulga-
tion." Such being the general rule as to the
validity of foreign ex parte divorces, and such
being the faith and credit given them, it would
seem to follow, notwithstanding the doctrine
of the severalty of status, when separate
domiciles have been acquired, and the inca-
pacity of the decree of the court of one State
affecting the non-residemt defendant of an-
other, that the "divorce of one party divorces
both," ^ and that both parties must be left
at liberty to enter into new marital relations.
As a general resume of the above proposi-
tions the following quotation from Bishop,
seems appropriate : "Where the parties are
domiciled in different States, and one of them
obtains in his own State, on constructive
notice, a decree dissolving his own marital
statttSj but not operating, since it cannot, on
the like status of the other, what, within the
constitutional and statutory provisions, * *
* is the effect of the decree in other States?
After alluding to the statute of 1790, he con-
tinues: "This statute is interpreted to mean
what it says. The court in the other State
will by proper methods ascertain what are
the laws and usages of the State wherein the
record was taken, and then give it not the
effect accorded a like domestic record by the
laws of his own State, but the effect it has in
the State where made. * * * if ^ then, a
wife domiciled in Ohio obtains an ex parte
divorce from her husband, domiciled in New
York, the New York court is not permitted to
say that her status has been reduced to non-
marital as to Ohio, but it remains marital as
to New York. If the effect of the sentence
is in Ohio to make her a single woman there,
its effect is also and equally to exactly the
same extent to make her a single woman in
New York, and such she is made in all the
other States in the Union." ®

John J. Esch.

M Cooper V. Cooper, 7 Ohio, 594.

w Bishop M. & D., Vol. II, p. 184, § 199.



CARRIER— BILL OF LADING — COLLUSIVELY
ISSUED BY FREIGHT AGENT— LIABILITY
TO BONA FIDE PURCHASER.



FRIEDL ANDER V. TEXAS & PACIFIC RAILWAY
COMPANY.

Supreme Court of the United States, April IS, 1889,

A BtatioD agent of a railrotid company, possesBing
authority to Issue and sign bills of lading, cannot bind
the company by a bill of lading of goods which have
no existence, fraudulently issued by collusion with a
pretended shipper, although the pretended shipper
negotiates a draft, with the false bill of lading attached,
for value^ to a third person, who, being entirely
ignorant of the facti>, purchases upon the faith of such
bill of lading; the railroad company is not liable to the
bona fide purchaser, because the fraud is utterly out-
side of the scope of the agent's employment, as his au-
thority is strictly limited to issuing bills of lading for
goods actually delivered for transportation.

Mr. Chief Justice Fuller, after stating the facts
delivered the opiDion of the court.

'*The agreed statement of facts sets forth "that,
in point of fact, said bill of lading of November 6,
1883, was executed by said E. D. Easton fraudu-
lently, and by collusion with said Lahnstein, and
without receiving any cotton for transportation,
such as is represented in said bill of lading, and
without the expectatation on the part of the said
Easton of receiving any such cotton;" audit is
further said that Easton and Lahnstein had fraud-
ulently combined in another case, whereby Easton
signed and delivered to Lahnstein a similar bill of
lading for cotton "which had not been received,
and which the said Easton had no expectation of
receiving;'^ and also "that, except that the cotton
was not received nor expected to be received by
said agent when said bill of lading was by him exe-
cuted as aforesaid, the transaction, was, from first
to last, customary.'^ In view of this language,
the words "for transportation, such as is repre-
sented in said bill of lading," cannot be held to
operate as a limitation. The inference to be drawn
from the statement is that no cotton what-
ever was delivered for transportation to the
agent at Sherman station. The question arises,
then, whether the agent of a railroad company at
one of its stations can bind the company by the
execution of a bill of lading for goods not actually
placed in his possession, and its delivery to a
person fraudulently pretending, in collusion with
such agent, that he had shipped such goods, in
favor of a party without notice, with whom, in
furtherance of the fraud, the pretended shipper
negotiates a. draft, with the false bill of lading
attached. Bills of exchange and promissory notes
are representatives of money, circulating in the
commercial world as such, and it is essential, to
enable them to perform their peculiar functions,
that he who purchases them should not be bound
to look beyond the instrument, and that his light
to enforce them should not be defeated by any-
thing short of bad faith on his part. But bills of
lading answer a different purpose, and perform



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difierent functions. They are regarded as so
much cotton, grain, iron, or other articles of
merchandise, in that they are symbols of ownes-
shlp of the goods they cover; and as no sale of
goods lost or stolen, though to a bona fide pur-
chaser for value, can divest the ownership of the
person who lost them, or from whom they were
stolen, so the sale of the symbol or mere repre-
sentative of the goods can have no such effect,
although it sometimes happens that the true
owner, by negligence, has so put it into the power
of another to occupy his position ostensibly as to
estop him from asserting his right as against a
purchaser, who has been misled to his hurt by
reason of such negligence. Shaw v. Railroad Co.,
101 U. S. 557, 563; Pollard v. Vinton, 105 U. S. 7,
8; Gurney v. Behrend, 3 El. & Bl. 633, 634. It is
true that, while not negotiable as commercial
paper is, bills of lading are commonly used as
security for loans and advances; but it is only as
evidence of ownership, special or general, of the
property mentioned in them, and of the right to
receive such property at the place of delivery.
Such being the character of a bill of lading, can a
recovery be had ascainst a common carrier for
i(oods never actually in its possession for trans-
portation, because one of its agents, having
authority to sign bills of lading, by collusion with
another person, issues the document in the ab-
sence of any goods at all?

It has been frequently held by this court that
the master of a vessel has no authority to sign a
bill of lading for goods not actually put on board
the vessel, and, if he does so, bis act does not
bind the owner of the ship even in favor of an
innocent purchaser. The Freeman, 18 How. 182,
191; The Lady Franklin, 8 Wall. 325; Pollard v.
Vinton, 105 U. S. 7. And this agrees with the
rule laid down by the English courts. Llckbar-
row V. Mason, 2 Term R. 67; Grant v. Norway, 10
O. B. 665; Cox v. Bruce, 18 Q. B. Dlv. 147. ''The
receipt of the goods,^^ said Mr. Justice Miller, in
Pollard V. Vinton, supra^ "lies at the foundation
of the contract to carry and deliver. If no goods
are actually received, there can be no valid con-
tract to carry or to deliver." *'And the doctrine
is applicable to transportation contracts made in
that form by railway companies and other carriers
by land, as well as carriers by sea," as was said
by Mr. Justice Matthews in Railway Co. v.
Knight, 122 U. S. 79, 87, 7 Sup. Ct. Rep. 1132, he
adding also: "If Potter [the agent] had never
delivered to the plaintiff In error any cotton at
all to make good the 525 bales called for by the
bills of lading, it is clear that the plaintiff
In error would not be liable for the deficiency.
This is well established by the cases of The Free-
man, 18 How. 182, and Pollard v. Vinton, 105 U.
S. 7." It Is a familiar principle of law that where
one of two innocent parties must suffer by the
fraud of another, the loss should fall upon him
who enabled such third person to commit the
fraud; but nothing that the railroad company did
or omitted to do can be properly said to have



enabled Lahnstein to impose upon Friedlander &
Co. The company not only did not authorize
Easton to sign fictitious bills of lading, but it did
not assume authority Itself to issue such docu-
ments, except upon the delivery of the merchan-
dise. Easton was not the company^s ascent in the
transaction, for there was nothing upon which
the agency could act. Railroad companies are
not dealers in bills of exchange, nor in bills of
lading; they are carriers only, and held to rigid
responsibility as such. Easton, disregarding the
object for which he was employed, and not in-
tending by his act to execute it, but wholly for a
purpose of his own and of Lahnstein, became
particeps criminis with the latter In the commission
of the fraud upon Friedlander & Co., and it
would be going too far to hold the company, un-
der such circumstances, estopped from denying
that it had clothed its agent with apparent au-
thority to do an act so utterly outside the scope
of his employment and of its own business. The
defendant cannot be held on contract as a com-
mon carrier, in the absence of goods, shipment,
and shipper ; nor is the action maintainable on
the ground of tort. "The general rule," said
WlUes, J., In Barwlck v. Bank, L. R. 2 Exch. 259,
"Is that the master is answerable for every such
wrong of the servant or agent as is committed In
the course of the service, and for thet master^s
benefit, though no express command or privity of
the master be proved." See, also, Llmpus v.
Omnibus Co., 1 Hurl. & C. 626. The fraud was
in respect to a matter within the scope of Easton's
employment or outside of It. It was not within
it, for bills of lading could only be issued for
merchandise delivered; and, being without it, the
company, which derived and could derive no
benefit from the unauthorized and fraudulent act,
cannot be made responsible. Banking Co. v.
Railway Co., 18 Q. B. Dlv. 714. The law can
punish roguery, but cannot always protect a pur-
chaser from loss ; and so fraud perpetrated through
the device of a false bill of lading may work in-
jury to an innocent party, which cannot be re-
dressed by a change of victim. Under the Texas
statutes the trip or voyage commences from the
time of the signing of the bill of lading issued
upon the delivery of the goods, and thereunder
the carrier cannot avoid his liability as such, even
though the goods are not actually on their pas-
sage at the time of a loss, but these provisions do
not affeirt the result here. We cannot distinguish
the case in hand from those heretofore decided
by this court, and in consonance with the conclu-
sions therein announced this judgment must be
affirmed.

Note.— The authority to issue and sign bills of
lading is usually conferred upon agents of carriers, as
steamboat and railroad companies. Such acts are re-
garded as coming strictly within the line and scope of
the duties of these persons. Bills of lading possess a
dual character. They are both receipts and contracts.
The acknowledgment of the delivery and;icceptance of
the goods performs the office of a receipt, and like all



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605



mere receipts, this acknowledgment is but prima facie
evidence, and may be shown not to be true. As to the
rest these instruments are contracts. The agent of
the carrier can sign such contracts only when he has
authority to do so, and he has no such authority when
the goods are not actually delivered to him.^

In an early English case it was said that "the general
usage gives notice to all people that the authority of
the captain to give bills of lading is limited to such
goods as have been put on board; and a party taking
a bill of lading, either originally or by indorsement, for
goods which have never been put on board, is bound
to show some particular authority given to the master
to sign it."* This view has been subsequently ap-
proved by the English courts,^ as well as by the courts
of this country .'* The leading American case is that of
The Schooner Freeman v. Buckingham,^ cited in the
principal case. The public is held to have notice that
the agent's authority to issue bills of lading is limited
to goods actually received.* And it seems that the
goods received must belong to the person to whom the
bill of lading is given, to render it valid.^ Of course, a
bill of lading will be good, although issued prior to the
receipt of the goods, if they are, in fact, delivered.^
The agent possessing no authority to issue bills of
lading for goods not delivered, if such are issued, they
are absolutely void, and can never be made the founda-
tion of an action, even in the hands of one who has ad-
vanced money upon them in good faith and without
notice of their fraudulent issue.* There being no dis-
tinction between a bill of lading given by a carrier on
land and one given by a carrier on water, the agents of
both classes of carriers are alike limited to act within
the scope of their authority. Thus, where a freight
agent of a railroad company, by the procurement of a
cotton buyer, signed a bill of lading for 32 bales of
cotton which were not on hand, and which were never
delivered to the company, or any agent for it, and
where an innocent third party paid a draft for the
price of the cotton on the faith of the bill of lading
attached to it and indorsed to him, and never having
received the cotton sued the railroad company for its
non-delivery ,it was held that, the carrier was not estop-
ped from showing that no cotton was, in fact, delivered
for transportation ; that the agent had no authority,
real or apparent, to sign a receipt or bill of lading
until actual delivery of the cotton, and that hence, the
company was not liable.^o The opinion of this case is

1 Hutchinson on Carriers, § 122.

2 Grant v. Norway, 10 Com. B. 685.

8 Hubbersty v. Ward, 8 Exch. 380; Coleman v. Riches,
16 Com. B. 104 ; Bates v. Todd, 1 Moo. A R. 106; Meyer v.
Dresser, 16 Com. B. (X. 8.) 466; Berkley v. Watling. 7 Ad.
A El. 29.

4 The Delaware, 14 Wall. 601 ; Meyer v. Peck, 28 N. Y.
690; Ellis V. WiUard, 5 Seld. (N. Y.) 629; The Lady Frank-
lin, 8 WaU. 826; Abbe v. Eaton, 51 N. Y. 410; The Loon, 7
Blatchf. 244; Fellows v. Str. Powell, 16 La. Ann. 516;
Dean V. King, 22 Ohio St. 118; Sears v. Wingate, 8 Allen
(Mass.), 1C3; Loalsiana Bank v. LaveiUe, 62 Mo. 880;
Hunt & Macaalay v. Rd. Co., 29 La. Ann. 446; Baltimore,
etc. Bd. Co. V. Wilkins, 44 Md. 11 ; National Bank v. Wal-
bridge, 19 Ohio St. 425.

s 18 How. 182. See Hutchinson on Carriers, S§ ITSetieq,

6 Union, etc. R. R. Uo. v. Yearger, 84 Ind. 1 ; Ryder v.
Hall, 7 AUen (Mass.), 466; Hall v. Mayo, 7 AUen (Mass.),
464. See cases in note 4.

7 Pattison v. Culton, 83 Ind. 248.

8 Rowley V. Bigelow, 12 Pick. (Mass.) 808.

9 Robinson v. Memphis & Charleston R. R. Co. (U. S.
O. C. W. D. Tenn.), 9 Fed. Rep. 129. See comments on
this case in 18 Cent. L. J. 861. Saltus v. Everett, 20 Wend.
(N. Y.) 268: StoUenwerck v. Thaohor, 116 Mass. 224.



very able and numerous authorities are reviewed.
While these views are generally sustrained by the En-
glish courts, the Supreme Court of the United States,ii
and by the highest courts of most of the States,^ yet a
few State courts have deliberately repudiated them.
Thus, it is held in a New York case, that a carrier is
liable upon a bill of lading issued in its name by an
agent having authority to issue bills upon receipt of
property for transportation to one who, upon transfer
by the shipper upon the faith of the bill has, in good
faith, discounted a draft drawn upon the consignee,
although no property was, in fact, delivered.i^ In that
case it was said: '*It is a settled doctrine of the law of
agency in this State, that where the principal has
clothed his agent with power to do an act upon the ex-
istence of some extrinsicfact necessarily and peculiarly
within the power of the agent, and of the existence of
which the act of executing the power is itself a repre-
sentation, a third party dealing with such agent in en-
tire good faith, pursuant to the apparent power, may
rely upon the representation, and the principal is
estooped from denying its truth to his prejudice.""
The Supreme Court of Kansas has apparently adopted
this view.i*

In the leading New York case of Armour v. R. R.
Co.,10 the party having produced to the agent of the
railroad forged warehouse receipts for certain goods
and thereby obtained from the agent receipts or bills
of lading for them, making the pretended fretght de-
liverable to the plaintiff as consignee, and having there-
upon drawn upon the plaintiff attaching the railroad
reeeipts to bis draft which the plaintiff paid, it was held
that the railroad was bound to make good to the
plaintiff, the defrauded party, his loss. In referring
to this case, Hutchinson, in his excellent work on Car-
riers, observed: "The case was said, however, to
differ from the cases referred to, in the fact that by the
railroad receipts or bills of lading, the goods were
made deliverable directly to the plaintiff, and that no
assignment to him by the party practicing the fraud
had been necessary or had been resorted to. The re-
ceipts were, therefore, equivalent to direct represen-
tations to the plaintiff that the goods had been de-
livered to the road on his account, which it was
estopped from denying. The case might have admitted
of an agreement, said the court, had the plaintiff been
compelled to derive his title through the indorsement
of another who, it was conceded, had none.*' ^f

EUGBNB MCQUILLIN.

10 Robinson v. Memphis & Charleston R. R. Co., 9 Fed.
Rep. 129.

11 Pollard V. Vinton, 106 U. S. 7; 14 Cent. L. J. 871. See
United States cases above cited.

It See Hutchinson on Carriers, §§ 622, 128, and opinion
of Judge Hammond in Robinson v. Metaiphis, etc. Co.,
9 Fed. Rep., at pp. 140, 141.

13 Bank of Batavia v. Railroad Co., 106 N. Y. 196; 12 N.
E. Rep. 438; 25 Cent. L. J. 109 (dig.).

14 North River Bank v. Aymar, 8 Hill, 262; Griswold v.
Haven, 26 N. Y. 696, 601 ; Railroad Co. v. Schuyler, 84 N.
Y. 80; Armour v. Railroad Co., 66 N. Y. HI.

15 Savings Bank v. Railroad Co., 20 Kan. 619.
1«66N. Y.lll.

17 Hutchinson on Carriers, § 124. See article on "Bills
of Lading," by Adelbert Hamilton, Esq., 14 Cent. L. J. 22.



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JETSAM AND FLOTSAM.



"Quiet Enjoyment." —A recent English case,
Jenkins y. Jackson, 40 Ch. D., 71, presents some inter-
esting as well as some amusing features. In this case
A had granted a lease to B of two rooms in a building
with the usual covenant for quiet enjoyment. Then A
let a room above the two to C for dancing and other
entertainments. B brought an action against A to re-
strain such use of the upper room, alleging that the
dancing over his head and the behavior of visitors on
the stairs was a breach of the covenant and a nuisance.
The court very unwillingly, but with great gravity,
proceeded to pass on the two important subjects of
dancing and flirting. "Let me observe, lest there
should be a mistake, that 'quietly' does not mean un-
disturbed by noise. When a man is quietly in posses-
sion, it has nothing whatever to do with noise, though
the word *quiet' is frequently used with reference to
noise. 'Peaceably and quietly' means without Inter-
ference « « « without interruption of the posses-
sion." But the dancing defendant did not escape, for
the court proceeded to say that the defendant had
not been sufOLciently moderate in his dancing and
music. "Though, of course, dancing will always pro-
duce some noise and vibration, and music will always
occasion some noise, still, I think there ought to be no
real difficulty in conducting dances without any such
interference with the plaintiff as would justify an in-
junction or give a cause of action." ( Dancing without
vibration and music without noise would be at least a
little unusual.) As to "the quiet enjoyment" of the
stairs, in other words, the flirting in that portion of
the premises, which the court called "unmannerly
and offensive behavior," it was decided, of course,
that the defendant was not responsible therefor. It
would, indeed, be a harsh rule to hold a man respon-
sible for all the flirting done on his premises. All this
is good law if a little grotesque by> reason of the facts.
The most amusing part of the case is the reluctance
of the Judge to discuss it at all. He says, in effect:
Why was this absurd action brought? Or, If brought,
why did not you go before a Jury? Well, as long as it
is here, I suppose I must dispose of it somehow I And
he disposed of it so that each side was mulcted in
costs.

The Medico- Legal Society of New York, will
hold an International Congress of Medical Jurisprud-
ence, in the city of New York this week. In the lan-
guage of the call, "A congress like this will advance
mightily the cause of Justice and humanity, and will
pave the way for a clearer definition of the principles
which should govern the administration of Justice in
our enlightened age. The intercourse between men
eminent in their profession, the exchange of views
between them, the treatment and discussion of ques-
tions that form an integral part of both law and medi-
cine, by those whose voices are recognized as the
leaders of science, will form another link in the uni-
versality of all true science."

Minnesota Stockholders Liability.— The con-
stitution of Minnesota makes the stockholders of a
corporation liable for its debts to the amount of the
stock owned or held by them, and excepts from the
provision corporations organized to carry on a manu-
facturing or mechanical business. The su](>reme court
has, in two recent cases, decided that only those cor-
porations which are formed exclusively for manufact-
uring or mechanical purposes are entitled to the benefit
of this exception. Other corporations cannot entitle
themselves to it by organizing in form under the



"manufacturing corporation act," when In reality the
primary object of the corporation, as In the case of
Mohr V. Minnesota Elevator Co., decided April 9»
1889, was that of dealing in, shipping and storing
grain, cattle and other commodities, in the language
of the court "a business wholly foreign to that of man-
ufacturing;" or as in the case of State v. Minnesota
Thresher Manufacturing Co., 41 N. W. Rep. 1020, "lU
purpose is also to carry on some other and distinct kind
of business not properly Incidental to or connected
with that of manufacturing."— /fi>Y. Paul Advocate.

RECENT PUBLICATIONS.

Books Received.

Reports op Cases Adjudged and Determined
IN THE Court of Chancery of the State of
New York. Complete Edition. Copiously An-
notated by Embodying all Equity Jurisprudence,
with Table of Cases Cited. By Robert Desty.
Book V. Containing Paige's Chancery, Vol. 11,
Barbour's Chancery, Vols. 1-8, and Chancery
Sentinel, Vols. 1 6. Rochester: The Lawyers Co-
operative Publishing Co. 1889.

Federal Decisions. Cases Argued and Determined
in the Supreme, Circuit and District Courts of the
United States. Comprising the Opinions of those
Courts from the Time of their Organization to the
Present Date, together with Extracts from the
Opinions of the Court of Claims and the Attorneys-
General, and the Opinions of General Importance
of the Territorial Courts. Arranged by William
G. Myer, Author of an Index to the United States
Supreme Court Reports; also Indexes to the
Reports of Illinois, Ohio. Iowa, Missouri and
Tennessee, a Digest of the Texas Reports, and
local works on Pleading and Practice. Vol. XXX.
Index and Table of Cases. St. Louis, Mo. : The
Gilbert Book Company. 1889.

Commentaries on the Non-Contract Law, and
especially as to Common affairs not of Contract on
the Every-day Rights and Torts. By Joel Prentiss
Bishop, Honorary Doctor Juris Utriusque of the
University of Berne. Chicas:o: T. H. Flood & Co.,
Law-Book Publishers. 1889.

A Digest of all the Reported American Cases
AND Selected English Cases, with Synopses
of Statutes of General Interest, Reference to 'arti-
cles and Essays in Current Law Periodicals, and
to Text-books and other matters of Value to the
Profession, contained in the various Law Publi-



Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 135 of 151)