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wharfinger or other person in this state, or bills of lading or receipts for the same when in transit by cars or vessels to any such warehouseman, wharfinger, or other person, shall be negotiable, and may be transferred by indorsement and delivery of said receipt or bill of lading; and any person to whom the said receipt or bill of lading may be so transferred shall be deemed and taken to be the owner of the goods, wares, and merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges thereon; and no property on which such lien may have been created shall be delivered by said warehouseman, wharfinger, or other person, except on the surrender and the cancellation of said original receipt or bill of lading; or, in case of partial sale or release of the said merchandise, by the written assent of the holder of said receipt or bill of lading, indorsed thereon; provided, that all warehouse receipts or bills of lading which shall have the words, "not negotiable," plainly written or stamped on the face thereof, shall be exempt from the provisions of this act.
This statute is in derogation of the common law, and to bring a case within the statute all its requirements must be shown to exist, as, for instance, that the warehouse receipt is issued by a bona fide warehouseman.1
§ 240. Wisconsin.-Warehouse receipts, bills of lading, or railroad receipts given for any goods, wares, merchandise, lumber, timber, grain, flour, or other produce or commodity stored, shipped, or deposited with any warehouseman, wharfinger, vessel, boat or railroad company or other person, on the face of which shall not be plainly written the words "not negotiable," may be transferred by delivery, with or without indorsement thereof; and any person to whom the same may be so transferred, shall be deemed and taken to be the owner of the goods, wares, and merchandise therein specified, so far as to give validity to any pledge, lien, or transfer made or created by
'Moors v. Jagode, 195 Pa. St. 163, 45 Atl. Rep. 723.
2 R. S. 1878, p. 1011, § 4194; p. 1049, § 4425.
such person or persons; but no such property shall be delivered except on surrender and cancellation of said original receipt or bill of lading or the indorsement of such delivery thereon, in case of partial delivery.
Any such receipt, bill of lading, voucher, or other document by any warehouseman, wharfinger, master of a vessel or boat, or any officer, agent or clerk of any railroad, express or transportation company shall be transferable by delivery thereof without indorsement or assignment, and any person to whom the same is so transferred shall be deemed and taken to be the owner of the property therein specified, so far as to give validity to any pledge, lien or transfer, made or created by such person, unless such receipt, bill of lading, voucher, or other document shall have the words, "not negotiable," plainly written or stamped on the face thereof.
§ 241. A statute declaring bills of lading negotiable, does not give them all the qualities of negotiable bills and notes.' Negotiation primarily means a transfer by indorsement and delivery, giving the indorsee a right to sue upon the contract in his own name. In regard to bills and notes, certain other consequences generally follow negotiability, such as the liability of the indorser after due demand and notice, and the right of a holder in good faith and for value before maturity to full protection against even the true owner, so that nothing short of mala fides on his part will defeat his right. Bills of exchange and promissory notes are contracts exceptional in their character, and have been given their exceptional character be
1 Shaw v. Railroad Co., 101 U. S. 557, 565, 37 Leg. Int. 135, 10 N. Y. Weekly Dig. 263, 10 Rep. 129; Hunt v. Mississippi Cent. R. Co., 29 La. Ann. 446; National Bank v. Atlanta & Charlotte Air Line R. Co., 25 S. C. 216; Douglas v. People's Bank, 86 Ky. 175, 5 S. W. Rep. 420, 9 Am. St. Rep. 276.
In Maryland the statute is broader in terms, and makes bills of lading
negotiable in the same sense as bills of exchange and promissory notes. In this respect the statute changes the law as it had just previously been established by the supreme court of that state in Baltimore & Ohio R. Co. v. Wilkins, 44 Md. 27, 22 Am. Rep. 26. See Tiedeman v. Knox, 53 Md. 612, where this change is commented upon.
cause the interests of trade require that they should be fully protected in favor of bona fide holders. But this reason does not apply to bills of lading. "Bills of lading," says Mr. Justice Strong, of the supreme court,' "are regarded as so much cotton, grain iron, or other articles of merchandise. The merchandise is very often sold or pledged by transfer of the bills which cover it. They are, in commerce, a very different thing from bills of exchange and promissory notes, answering a different purpose and performing different functions. It can not be, therefore, that the statute which made them negotiable by indorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange, if not impossible; such as the liability of indorsers, the duty of demand ad diem, notice of non-delivery by the carrier, etc., or the loss of the owner's property by the fraudulent assignment of a thief. If these were intended, surely the statute would have said something more than merely make them negotiable by indorsement. No statute is to be construed as altering the common law, further than its words. import. It is not to be construed as making any innovation upon the common law which it does not fairly express. Especially is so great an innovation as would be placing bills of lading on the same footing in all respects with bills of exchange, not to be inferred from words that can be fully satisfied without it. The law has most carefully protected the ownership of personal property, other than money, against misappropriation by others than the owner, even when it is out of his possession. This protection would be largely withdrawn if the misappropriation of its symbol or representative could avail to defeat the ownership, even when the person who claims under a misappropriation had reason to believe that the per
'Shaw v. Railroad Co., 101 U. S. 557, 565.
son from whom he took the property had no right to it." Therefore it was held, where a bill of lading of certain cotton was assigned by indorsement to a bank as collateral security, and without negligence on the part of the bank, was stolen from it, and indorsed to a third person for an advance made under circumstances which afforded him reason to believe that the bill of lading had already been pledged to secure the payment of an outstanding draft, that the person so taking it was not entitled to hold the merchandise covered by the bill against its true owner.'
§ 242. The rights of a pledgee of a bill of lading by indorsement or delivery are the rights of a pledgee of the property itself by a delivery of it. A bill of lading, though negotiable in form, is not a negotiable instrument, like a bill of exchange, but a symbol or representative of the goods to which it relates; and the rights arising from a transfer of a bill of lading correspond, not to those arising from the transfer of a negotiable instrument, but to those arising from a delivery of the property under like circumstances." "I never heard it argued," said Parke, B., in Thompson v. Dominy," "that a contract was transferable, except by the law merchant, and there is nothing to show that a bill of lading is transferable under any custom of merchants. It transfers no more than the property in the goods; it does not transfer the contract." In the same case, Alderson, B., added: "I am of the same opinion. This is another instance of the confusion, as Lord Ellenborough, in Waring v. Cox,' expresses it, which 'has arisen from similitudinous reasoning upon this subject.' Because in Lickbarrow v. Mason," a bill of lading was held to be negotiable, it has been contended that that instrument pos
'Shaw v. Railroad Co., 101 U. S. 557; Stollenwerck v. Thacher, 115 Mass. 224.
2 Stollenwerck v. Thacher, 115 Mass. 224, per Gray, C. J.; Forbes v. Boston & Lowell R. Co., 133 Mass. 154; Western Union R. Co. v. Wagner, 65
Ill. 197; First Nat. Bank v. Northern
14 M. & W. 403.
sesses all the properties of a bill of exchange; but it would lead to absurdity to carry the doctrine to that length. The word 'negotiable' was not used in the sense in which it is used as applicable to a bill of exchange, but as passing the property in the goods only."
While generally an indorsee for value of a bill of lading may bring an action in his own name for the goods, he can not generally maintain an action in his own name on the instrument itself.1
§ 243. The indorsement of a bill of lading by the shipper only assigns his rights and the title to the property called for by the bill. It involves no duty on his part to do anything toward forwarding the property, and therefore he is not liable in assumpsit for failure to ship and deliver the property. If the bill of lading be fictitious, or if there was any fraud practiced in obtaining advances upon a transfer of it, any remedy that the pledgee may have is one for that special wrong. He can not imply from the indorsement of the bill of lading a promise to perform what the carrier had agreed, or purported to have agreed, to do."
An indorsement of a bill of lading by stamping the name of the assignor on the back of it, and a delivery of it so indorsed, is a sufficient compliance with a statute requiring assignments of bills of lading to be in writing."
§ 244. One making advances upon a bill of lading to one who is not the owner of the property therein described, acquires no right of property therein. Although possession is prima facie evidence of ownership, yet that alone does not de
'Thompson v. Dominy, 14 M. & W. 403; Dows v. Cobb, 12 Barb. (N. Y.) 310, 316; Blanchard v. Page, 8 Gray (Mass.) 281, 298.
This, of course, is a statement of the common law of the subject. Under modern codes of procedure the real party in interest is authorized to sue on any contract or chose in action
which has been transferred to him in his own name. Merchants' Bank v. Union R. & Trans. Co., 69 N. Y. 373, 380, per Miller, J.
2 Maybee v. Tregent, 47 Mich. 495, 11 N. W. Rep. 287.
Horner v. Missouri Pac. R. Co., 70 Mo. App. 285.