Sec 792

Another apparent though not real exception is that of the consignee of goods, who, when beneficially interested, is entitled to sue the carrier. But, in point of fact, the cases in which this right is sustained are cases in which the consignee is the purchaser of the goods, and in which the consignor, in making the contract of carriage, does so as the consignee's agent.2 Hence, "where there is no express agreement, the person at whose risk goods are carried is entitled to sue the carrier for their non-delivery. This person is generally the consignee, but may be the consignor."3 And, unless there is something to prove the contrary, the mere fact of delivery to the carrier of goods with the consignee's address indicates property in the consignee.4 But suit must be brought in the consignor's name when the property remains in him, as when the transfer is only on trial, or is void by the statute of frauds;5 and so when by an agreement between the parties no property is to vest in the consignee until delivery.6 And, in the absence of proof of property in the consignee, the consignor may maintain an action for the loss of the goods;1 and so may any party having an interest in the goods.2

Exception as to con-signee of goods.

1 See Wh. on Neg. sec 439-41, 757; infra, sec 812; True V. Tel. Co., 60 Me. 9; Parks V. Tel. Co., 13 Cal. 422. Aliter if delivery be a statutory duty; West. Un. Tel. Co. V. Fenton, 52 Ind. 1. In an ingenious article in the American Law Review for April, 1881, the American rulings are explained on the ground that the telegraph company contracts with the sender for the benefit of the receiver, as the latter's interest shall appear, to transmit the message, using due care, and, in case of negligence and damages resulting therefrom, to compensate the receiver if it is to him that the damages result. But to harmonize this position with the English and Massachusetts rulings it is necessary to view the sender as the receiver's agent in making the contract.

2 See Dicey on Part. 87; Ch. on Pl.

16th Am. ed. (1879) 6; Dutton V. Solomonson, 3 B. & P. 584; Dawes V. Peck, 8 T. R. 330; Lawrence V. Min-turn, 17 How. U. S. 100; Arbuckle V. Thompson, 37 Penn. St. 170.

3 Dicey, ut supra, 89.

4 Abbott on Ship. 11th Eng. ed. 283; Angell on Carriers, sec 495; Chandler V. Sprague, 5 Metc. 306; Ludlow V. Bown, 1 Johns. 1; Potter V. Lansing, 1 Johns. 215; Griffith V. Ingle-den, 6 S. R. 429.

5 Chit. on Pl. 16th Am. ed. 6; Freeman V. Birch, 1 NeV. & M. 420; Duff V. Budd, 3 B. & B. 183; Norman V. Phillips, 14 M. & W. 277; Price V. Powell, 3 Comst. 322.

6 Stephenson V. Hart, 4 Bing. 476; Ilsley V. Stubbs, 9 Mass. 65; Blanch-ard V. Page, 8 Gray, 281.

Sec 793

A bill of lading is (1) a receipt from a carrier for goods to be delivered to a consignee or his assigns,3 and (2) a contract for the delivery of the goods as thus directed.4 In shipping contracts "three copies are made, each signed by the master - one is kept by the consignor of the goods, one by the master of the ship, and one is forwarded to X., the consignee, who on receipt of it acquires a property in the goods which can only be defeated by the exercise of the vendor's equitable right of stoppage in transitu. The assignment of the bill of lading by endorsement by the consignee to a holder for value gives to that holder a better right than the consignee himself possessed. He has a title to the goods which overrides the vendor's right of stoppage in transitu, and gives him a claim to them in spite of the insolvency of the consignee and the consequent loss of the price of his goods by the consignor." - . The assignment of a bill of lading "transfers rights in rem, rights to specific goods, and these, to a certain extent, wider than those possessed by the assignor; therein it differs from negotiable instruments which only confer rights in personam." "But though the assignee is relieved from one of the liabilities of the assignor, he does not acquire proprietary rights independently of his assignor's title; a bill of lading stolen or transferred without the authority of the person really entitled, gives no rights even to a bona fide endorsee.6 And, again, the contractual rights conferred by statute are expressly conferred subject to equities. A bill of lading, then, may be called a contract assignable without notice, partaking in some respects of the character of conveyance, inasmuch as it gives a title to property, but incapable of giving a better title, whether proprietary or contractual, than is possessed by the assignor, subject always to this exception, that one who takes from an assignor with a good title is relieved from liability to the vendor's right of stoppage in transitu which might have been exercised against the original consignee."1 The transferee, therefore, who has made advances, and who takes from the designated owner, is beneficially interested in the goods, whether there be a special endorsement to him or not.2 At common law he cannot in his own name sue the carrier, but must use the name of his assignor;3 but by statute in England, as we have seen, and in most jurisdictions in this country, bills of lading are made negotiable.4 - It should be remembered that at common law the two offices of a bill of lading (i. e. the title it gives to the property as against the assignor, it being in this respect a sale, and the right of action it gives as against the carrier) are to be distinguished; and hence, unless there be an enabling statute, the assignee or endorsee should sue in the name of the party under whom he takes, and with whom the contract was executed.5 - When a bill of lading is attached to a draft as a security for its payment, it is an appropriation to the payee of the property described in the bill of lading, whether the latter be endorsed or not.1 - The unauthorized and surreptitious delivery of a bill of lading of goods which have never been in the carrier's possession, does not bind the carrier even to a bona fide holder.2 And a transfer by one without any title to the goods passes no right to them to the transferee, even though he be a purchaser for value without notice.3

Bill of lading passes by indorsement.

1 Hand V. Baynes, 4 Whart. 204.

2 Philadelphia Steamboat Co. V. Atkins, 22 Penn. St. 522; Hulse V. Young, 16 Johns. 1.

3 See Lickbarrow V. Mason, 2 T. R. 63; Berkeley V. Watling, 7 A. & E. 39; Ryberg V. Snell, 2 Wash. C. C. 294; Saltus V. Everett, 20 Wend. 268; Lawrence V. Minturn, 17 How. U. S. 100; Sanderson V. Laniberton, 6 Binn. 129.

4 Blanchet V. Collieries Co., L. R. 9.

Ex. 74; O'Brien V. Gilchrist, 34 Me. 554; Shepherd V. Naylor, 5 Gray, 591; Relyea V. New Haven Co., 42 Conn. 579; Meyer V. Peck, 33 Barb. 532; McMillan V. R. R., 16 Mich. 79; Ezell V. English, 6 Port. 311; Wayland v Mosley, 5 Ala., 430; Bonner V. Marsh, 10 S. M. & M. 376. As to distinction between negotiability and assignability, see infra, sec 838.

5 Gurney V. Behrend, 3 E. & B. 622.

1 Anson, 217-8; Lickbarrow V. Ma-, son, 2 T. R. 63; 6 East, 21 n; Jenkyns V. Usborne, 7 M. & G. 678; Leask V. Scott, L. R. 2 Q. B. D. 376; Glynn V. East India Dock Co., L. R. 5 Q. B. D. 129; Walter V. Ross, 2 Wash. C. C. 283; Allen V. Williams, 12 Pick. 297; Alderman V. R. R., 115 Mass. 233; Rawls V. Deshler, 3 Keyes, 572; Marine Bk. V. Wright, 48 N.Y.I; Holmes V. Bank, 87 Penn. St. 525; Mich. Cent. R. R. V. Phillips, 60 Ill. 190; Law V. Hatcher, 4 Blackf. 364; Valle V. Cerre, 36 Mo. 575.

2 Robinson V. Stuart, 68 Me. 61; Newcomb V. R. R., 115 Mass. 230; Hathaway V. Haynes, 124 Mass. 311; Emery V. Bank, 25 Oh. St. 360; Merchant's Bk. V. Hewitt, 3 Iowa, 103.

3 Thompson V. Dominy, 14 M. & W. 403; Howard V. Shepherd, 9 C. B. 297; Blanchard V. Page, 8 Gray, 297; Stol-lenwerck V. Thacher, 115 Mass. 224; Lineker V. Ayeshford, 1 Cal. 75.

4 See Short V. Simpson, L. R. 1 C. P. 248; Shaw V. R. R., 101 U. S. 557; Merchant's Bank V. R. R., 69 N. Y. 393.

5 Ibid.; Rowley V. Bigelow, 12 Pick. 314. That delivery without endorsement does not pass property in goods, see Stone V. Swift, 4 Pick. 389. That the consignor named in a bill of lading, though without property in the goods, can sue the carrier for injury to them, see Sargent V. Morris, 3 B. & Ald. 277; Blanchard V. Page, 8 Gray, 281.