Blackly v. Matlock

The judges delivering their opinions separately.

The plaintiffs attached, as the property of the defendants, two flatboats, with their cargoes of beef and pork, for a debt of $2,240. The attachment was levied on the lGth of February, 184G, in the parish of Jefferson, While, Warner ¿SfCo., of Philadelphia, intervened, and claimed the beef and pork attached as the holders of a bill of lading, which came to their hands previous to the attachment, viz. on the 13th February. There was a judgment for the plaintiffs against the intervenors, and they have appealed.

The defendants, who were the shippers and owners of the cargoes, were also the owners of the boats, and the district judge considered that the document under which the intervenors claim, though in point of form a bill of lading and signed by the masters of the boats, was not, under the commercial law, a bill of lading possessing the privileges and effect of such an instrument, inasmuch as there were no competent parties to the contract of affreightment, -the captain or master signing it as the agent or representative of the owner. But to this it is to be observed, that, there is a personal contract, between the owner who ships goods on board of his vessel and the captain, by the bill of Jading, and that by transferring the bill of lading the owner binds himself, and makes the contract with the person to whom it is assigned. The district judge was also of opinion that, the intervenors had not established their debt with proper certainly, and that, under the allegations of their petition of intervention, their right to hold the property under the bill of lading could not be supported.

Had we this ease before us on the qn estion of property, as presented by the bond fide possession of a bill of lading for produce on transit from the place of shipment to that of its destination, we then should have to determine on tho right of the creditor to interfere with and break an ordinary mercantile transaction, while in progress towards its completion. But as we understand the issues which the intervenors have thought proper to set their claims upon, their right to hold and retain the property attached is based upon a debt which they undertook to establish, and of which evidence was adduced, and which was due before the trial of the cause. There were various transactions between the intervenors and the defendants, and other shipments made, besides this, of western produce, which was sold on commission by the intervenors in Philadelphia. We have no clue to the state of the accounts between the parties, and non conslat that the defendants owe the intervenors, their factors, a dollar. In the issues tendered by the intervenors, the plaintiffs joined, and under them the testimony adduced was taken by commission, and at the trial, though the bills accepted by the intervenors were long since over due, they were not produced, and no evidence of their payment by the intervenors was given.

Under this state of facts, as presented by the intervenors themselves, we are bound to pass judgment. Can we adjudge this case solely on the apparent rights of While, Warner ^ Co. under their bill oí lading, as they existed on 'the *373day of the attachment, or on their rights as they have placed them before us on the trial of the cause, and under their own evidence? We do not understand that a party is permitted to escape from the consequences of his own substantive allegation, made in his pleadings, even if it should defeat his right to recover absolutely. The right -of property which the intervenors claim in this shipment is, by themselves, based upon the contract of consignment or of pledge, which presupposes the existence of a debt; and, if that debt has ceased to exist, what becomes of their right? Suppose the property itself were under the control of the court, instead of being, as it is, represented by the bond — - we should not be at liberty to give it to the intervenors, under the evidence. They being merchants, and their insolvency not being even intimated, and the drafts being overdue, it is obvious that they have been paid, but not by the intervenors, or they could have produced them. The intervenors are actors ; their case must be determined as they have presented it by their allegations and their evidence.

They ask, in their intervention, for judgment against the defendants for such sum as may be due, and by preference over the attaching creditors. It is true, that there is also an allegation that, 'by the assignment of the bill of lading, they became the owners of the cargoes consigned to them, and that there is an alternative prayer in their petition, “ that it be adjudged that the two flat* boats, with their aforesaid cargoes belong to your petitioners intervening, or that they have privilege” over the plaintiffs, &e. But it is equally clear that the alleged ownership is based exclusively on their being in advance by their letters of credit and acceptances to the defendants; and that it depended exclusively upon that condition, and, if there was no debt, there was no ownership. This again is a question of practice, and one of those which never ought to be presented to bile court. The rules concerning the requisites of petitions and pleadings ought by this time to be understood. The party intervening in this case must be-held to the material and substantive allegations of his petition, and can be permitted to derive no advantage from their contradiction or obscurity, to the detriment of .other parties, who have followed in all respects the regular and usual mode of proceeding. Barrett v. Zacharie, 2 Ann. R. 655. De l' Homme v. De Kerlegand, 4 La. 360. Code of Practice, arts. 149, 172, 393, 394.

I concur with the Chief Justice, for the reasons given by him.

Before stating the material facts in this case, a brief notice of the pleadings is necessary. After the levy of the attachment by the plaintiffs, merchants of Cincinnati, White, Warner 8f Co. filed their petition of interrvention, in which they allege that they are the bond fide owners of the property attached, by virtue of a bill of lading transferred to them before the attachment; that they came under acceptances a-nd liabilities for Matlock dj* Co. for about the sum of $26,000, in pursuance of a previous agreement and letters of credit, by which the intervenors were to pay $6000 for the defendants, and also accept bills for them, and be covered by shipments; that the property attached was shipped in fulfilment of such agreement, and, having been received at New Orleans by White, one of the intervenors’ firm, was to have been forwarded to Philadelphia to them,' for sale, the proceeds to be placed to account of the advances ; that the intervenors are the owners of it, or at least are entitled to a privilege upon it. The prayer is alternative, that they be adjudged the owners of the property attached, or that they be recognized as privileged creditors. Such I consider the fair substantial purport of the petition of intervention, although *374it is inartifieially drawn. The answer of the plaintiffs, who made no exception to the intervenors’ pleading, accords with this view. They not only deny that the intervenors are creditors of superior rank, “but also expressly deny that they are owners of the property.” Under these pleadings I think the intervenors entitled to have their rights considered upon both points: first, had they at the date of the attachment such an ownership as placed the property, on its transit through N.ew Orleans to Philadelphia, beyond the reach of an attaching creditor of Matlock By Co.; and secondly, if not entitled to have the property discharged from the attachment, are the intervenors entitled to a decree of privilege upon the property in the hands of the sheriff. I am of opinion that, under our rules of pleading, such an ¡alternative prayer is admissible; it seems to me not a case of inconsistent pleading, within the intendment of the Code of Practice. 'The case is different from that of He L’ Homme, curator v. He Kerlegand, 4 La. 360. There the court said: “ The suit is brought to recover certain property, and at the same time to enforce the payment of a note due by the defendant ¡to the deceased. It appears very clearly in evidence that this note was given in payment of the property sued for; and it is equally clear that two such demands cannot be cumulated in the same petition ; they are inconsistent, and by an express provision of law, one excludes the other. Code of Practice, art. 149.” Iu .the case of Barrett v. Zacharie, the reason for remanding was that, the plaintiffs’ pleadings had not presented his real grounds of attack, and the defendant, having been taken by surprise, was not permitted to suffer by an obscurity of pleading for which his adversary was in fault.

Being of opinion, therefore, that the intervenors are not excluded by defective pleading from an examination of the full merits of their cause, I proceed to state briefly the case, as presented by the evidence.

It appears that Matlock By Co. and White, Warner By Co. had commercial dealings with each other, on previous occasions. The former were western dealers in pork, raising funds by drafts on the intervenors, which were provided for by shipments to them. The attachment was levied on the 16th February, 1846; on the 13th February, White, Warner By Co’s house, by their partner then present at New Orleans, got the bill of lading for the property attached, and was making arrangements for its shipment to Philadelphia. This transfer of the bill of lading was in pursuance of a previous agreement, as follows: In October, 1845, the defendants, in Indiana, addressed the intervenors at Philadelphia, informing them that they were collecting large supplies of live stock, and wanted funds; that they had a debt of $6000 to pay to parties in Philadelphia, which they desired the intervenors to pay for them ; and also desired letters of credit for $15,0.00 or $20,000, to be covered by promised shipments, as on previous occasions. The intervenors acceded to this proposal, gave the letters of credit, accepted drafts in favor of the Philadeldhia creditors for $6,000, which they subsequently paid, to wit, in the spring of 1846 ; they also accepted bills of the defendants, drawn upon the letters of credit, to the amount of $21,000. At the time when the testimony was taken under commission by the intervenors these latter acceptances had not matured; but it is proved that they had been given, and that the acceptors had made arrangements to meet them. No provision was made for them by the defendants, save by shipments of produce not sold at the time of taking the testimony; but the value of which, including that in controversy, it is satisfactorily proved would not cover the acceptors.

I consider these facts as establishing in the intervenors such an ownership of *375the property attached, acquired by them iu good faith and in the usual course of mercantile dealing, in pursuance of a fair antecedent agreement, as placed the property beyond the control of the defendants, and beyond the reach of attachment upon its transit. The intervenors were entitled to have it all pass undisturbed to its destination. If property could be thus arrested on its transit, and an acceptor, whose name is out on the faith of the shipment, be left to meet his acceptances out of his own funds, while the property is locked up in transitu by the process of a foreign court, into which the distant consignee is dragged to litigate, commerce would become so dangerous that no prudent man would engage in it. I do not conceive that the absence of proof that the acceptances have been all paid, changes the nature of their case. The intervenors made themselves primarily liable by accepting the bills; by this agreement, and the transfer of the bill of lading, the property fell under their qualified ownership, to enable them to meet the acceptances. They have proved a payment of Í6000, and their liability for the residue is not shown to have been removed. Even if White, Warner Sf Co. have not taken up those bills, yet, in the absence of proof that the defendants have themselves taken them up, we must consider the acceptances as outstanding, and the intervenors still primarily liable. Moreover, the agreement entitled them to have the selling of the property in Philadelphia, and thus earn their commissions, which formed part of the consideration for putting out their names.

It is proper to add that, there is no proof of a fraudulent combination to cloak the property, nor do I see any reason to suspect it*

On the first point, therefore, I think the case is with the intervenors, and that there should be judgment in their favor setting aside the attachment. It is not necessary, if the above views be correct, to examine the second point.

I concur in the foregoing opinion, prepared by Slidell, J., for the reasons by him stated* Judgment affirmed.