JANUARY TERM, 1917.*

FIRST NATIONAL BANK OF ALLEGAN v. GRAND RAPIDS & INDIANA RAILWAY CO.

1. APPEAL AND ERROR-FINDINGS OF FACT-REVIEW.

While this court will not reverse the trial court's findings of fact, when supported by evidence, a finding entirely unsupported by evidence will be considered erroneous in

law.

2. BILLS AND NOTES-BILL OF LADING-BANKS AND BANKING— HOLDER IN DUE COURSE.

Where plaintiff bank received an indorsed bill of lading with a sight draft attached, payable to its order, from a produce dealer for a carload of potatoes sold to a firm in New Orleans, the amount of said draft being placed to the dealer's credit and checked out by him, and the bill of lading and draft forwarded by plaintiff to a bank in New Orleans for collection, plaintiff was a holder in due course, for full consideration, and without notice of any infirmity in the transaction.

3. CARRIERS-ORDER BILL OF LADING DELIVERY OF GOODS-LIA

BILITY.

In a suit for the value of a carload of potatoes, lost through unauthorized delivery by the carrier, where the bill of lading contained the following language: "The surrender of this original bill of lading properly indorsed shall be required before the delivery of the property," and it is admitted that the carrier did deliver the property without such surrender, and that it is liable unless plaintiff, through its agent consented to such delivery, evidence examined, and held, insufficient to show that plaintiff authorized such delivery.

4. SAME

NEGLIGENCE-VENTILATION of Car.

The findings of the court below that the potatoes were shipped in good condition in a refrigerator car, that instructions were given to the carrier to ventilate the car, and that when they arrived at destination they were in a damaged condition, caused by lack of proper ventilation, *Continued from Vol. 194.

for which the carrier was liable, held, supported by the evidence.1

5. SAME-DAMAGES-MEASURE OF DAMAGES-MARKET VALUE. The court below, having found that defendant was liable for the value of the potatoes lost because of unauthorized delivery, and also for damages caused by improper ventilation of car, properly adopted as the measure of damages the market value of the potatoes at the time they arrived at destination if they had arrived in good condition; and, held, evidence sufficient to show market value at destination.

Error to Allegan; Cross, J. Submitted October 24, 1916. (Docket No. 65.) Decided March 29, 1917.

Assumpsit by the First National Bank of Allegan against the Grand Rapids & Indiana Railway Company for the wrongful delivery of freight consigned with draft attached to bill of lading, heard before the court without a jury. Judgment for plaintiff. fendant brings error. Affirmed.

De

James H. Campbell (Elvert M. Davis, of counsel), for appellant.

Charles Thew, for appellee.

STONE, J. This is an action in assumpsit, brought by the plaintiff against the defendant as an initial carrier. The subject of the suit is a carload of potatoes, of which plaintiff claims to have been the owner, shipped from Tustin, Mich., to New Orleans, La., about April 12, 1912. The potatoes were loaded at Tustin by E. F. Sherman, the then owner thereof, who lived at that time at Allegan, Mich. They were loaded during a period of a few days previous to April 12, 1912. The potatoes had been grown by farmers in the vicinity of Tustin, from whom they were a short time before purchased by Mr. Sherman, and by him placed in a storage cellar that he had rented. The

'On the liability of carrier for injury by failure to adjust ventilators, see note in 15 L. R. A. (N. S.) 801.

temperature of the cellar in which the potatoes had been kept after their purchase and before loading in the car for shipment to New Orleans was kept at 35 to 40 degrees above zero. At the time of loading, the potatoes were sacked in the cellar and hauled two blocks for shipment.

The car in which the potatoes that are the subject of this suit were loaded was a refrigerator car, identified throughout the case as car I. C. 55928, and to prepare it for shipment, one of Mr. Sherman's employees, who had charge of the loading, put a stove in the car and heated it for 12 hours, that being the period of time usually taken to heat cars being loaded with potatoes in cold weather. After heating the car for this period the potatoes were loaded into it. The weather was moderate when the potatoes were loaded. It was not freezing, but was cold weather. The ventilators on this car were on top. They were closed when loading and when delivered to the railroad. Two other cars were loaded for shipment to New Orleans about the same time. The car in question left Tustin some time on April 12, 1912, and arrived at New Orleans during the day of April 20, 1912, and was placed at the perishable freight sheds of the Louisville & Nashville Railroad Company. The other two cars, after arrival, were placed in the freight sheds: of the Illinois Central Railroad Company. The bill of lading issued to Mr. Sherman, the shipper of the potatoes, by the defendant as initial carrier, was a "uniform order bill of lading," and the potatoes were consigned―

"to order of E. F. Sherman, destination New Orleans, State of Louisiana, notify Hortman Brokerage Co. at New Orleans, State of Louisiana. Route Van & I. C." The directions upon the bill of lading were:

"Allow inspection. Keep car ventilated.

"E. F. SHERMAN, Shipper."

On the 13th day of April, 1912, the day after the departure of the potatoes from Tustin, Mr. Sherman, who had for a number of years been doing business with the plaintiff bank, indorsed the bill of lading in blank and delivered it to the plaintiff with a draft attached, payable to its order, in the amount of $817.50, drawn on the Hortman Brokerage Company, New Orleans, La. The plaintiff, on the same day, mailed the draft, duly indorsed, with the bill of lading attached, to the Canal Louisiana Bank & Trust Company, at New Orleans, for collection.

There are two counts in the declaration. The first alleges that the defendant, as initial carrier, is responsible under the laws of this State and the United States for the wrongful act of its connecting carriers, and that the Louisville & Nashville Railway Company, the terminal carrier, carelessly, negligently, and improperly delivered the potatoes to strangers, who were not entitled thereto, without surrender to it of the original bill of lading properly indorsed, whereby the plaintiff wholly lost the said goods, etc. The second count alleges that the defendant is liable for failure to keep the car in which the potatoes were being carried properly ventilated, etc.

The case was tried before the court without a jury, and after hearing the testimony and the arguments of counsel it filed written findings of facts and law, in which the defendant was found liable under both counts of the declaration. The findings of law and fact were as follows:

"Plaintiff brought this suit against the defendant, a common carrier, to recover damages for negligence in not taking proper care of freight and for the wrongful delivery thereof.

"Issue was joined and a trial had before the court without a jury.

"April 12, 1912, Mr. E. F. Sherman loaded a car of potatoes at Tustin, Mich., and received from the

defendant an order form bill of lading, consigning the goods to himself at New Orleans, La., with the direction to notify Hortman Brokerage Company of the arrival of the consignment.

"Mr. Sherman drew a draft upon Hortman Brokerage Company, of New Orleans, for the purchase price of the potatoes, attached the same to the bill of lading and sold the draft, with the bill of lading attached, to the plaintiff. Plaintiff paid for the same by crediting Mr. Sherman's account at the bank with the amount thereof, viz., $817.50.

"The consignment was loaded in a refrigerator car and was sent over defendant's lines and connecting lines to New Orleans. At the time the car was loaded the weather was cold at Tustin, Mich., and the ventilators were closed and the car properly warmed to protect the potatoes from the cold weather. Instructions were given the defendant to properly ventilate the car as it moved south, where it would encounter warmer weather.

"When the car arrived at New Orleans some of the sacks were soiled and some of the potatoes spoiled. The consignment was refused, and Mr. Sherman sent. his agent, Mr. Tanner, to New Orleans, with oral and written instructions to settle the matter as quickly as possible by making Hortman Brokerage Company take care of the drafts and by giving a check on Mr. Sherman for the loss by reason of the spoiled potatoes. The potatoes were sorted and the good ones sold by Hortman Brokerage Company to J. L. Beer & Co., and delivery was made by the Louisville & Nashville Railway Company without requiring the surrender of the bill of lading, and without the draft being paid.

"Plaintiff accepted and paid for said bill of lading on April 13, 1912, without notice of any equity or claim against some of the goods it covered, and is a bona fide holder for value, and has not received said sum from the defendant, or any one.

"Plaintiff did not authorize any one to consent to the delivery of the potatoes to any one without first paying said draft and taking up said bill of lading, and the Louisville & Nashville Railway Company had no authority from plaintiff to deliver to J. L. Beer & Co. said consignment. On the contrary, the Louisville & Nashville Railway Company were informed by