Craig v. Marx & Kempner

Citations

• 65 Tex. 649
• 1886 Tex. LEXIS 723

Syllabus

<p>1. Goods—Delivery-*-Acceptance—Lien—Notice — Course of business—G. contracted with a railway company to furnish it with a certain number of cross-ties, for which, on their being inspected and accepted by the general superintendent, he was to receive 55 cents each, the ties to be inspected monthly and paid for with notes of the company at ninety days, on pay-day following the delivery. Defendants agreed to pay drafts drawn on them by G. to a certain amount, to enable him to fulfill his contract; bills of lading with inspector’s certificates were to be attached to the drafts, and the notes of the railroad were to be delivered and paid to defendants. G. executed drafts on defendants in favor of plaintiff, and attached, as collateral security, bills of lading for sufficient ties to cover the drafts. Defendants refused to pay the drafts, and appropriated the proceeds of the ties to the payment of a debt due them from G. Held:</p> <p>(1) That if the ties had been accepted and received by the railroad when the drafts were drawn, the property in them had passed to the road, and G.’s delivery of the bills of lading to plaintiff conferred no right in or lien upon them, nor a superior right to their proceeds;</p> <p>(2) The right of stoppage in transitu does not depend upon title, but on a lien for the price, (following Allen v. Willis, Tyler term, 1885), and that lien ceased with the transit;</p> <p>(3) A bill of lading evidences, prima facie, ownership of goods in transit by the consignee. (Benj. on Sales, sec. 399; Wharton on Cont., sec. 877). The proof may show that the consignor is still the owner. (Authorities reviewed.)</p> <p>(4) If - G. could be considered the owner, at the time the bill of lading was transferred, then plaintiff’s ties, and not G.’s, were accepted and received by the railway company, and plaintiff was entitled to the proceeds; he could not recover from defendants, however, unless they had notice of his right. (Wharton on Cont., sec. 733; Foster v.