Friedlander v. Texas & Pacific Railway Co.

delivered the opinion of the court.

The agreed statement of facts sets forth “ that, in point of fact, said-bill of lading of November 6, 1883, was executed by-said E. D. Easton, fraudulently- and by collusion with said Lahnstein and without receiving any cotton for transportation, such as is represented in said bill of lading, and without the expectation on the part of'the said Easton of receiving any such cotton; ” and it is further said that Easton and Lahnstein had fraudulently combined another case, whereby Easton signed and .delivered to Lahnstein a similar bill of lading for cotton “'which had not been received, and which the said Easton had no expectation of receiving;” and also “that, except that the cotton was not received nor expected to be received-by said agent when said bill of lading was by him executed as aforesaid; the transaction was, from first to last, customary.” In view of this language, the words “ for transportation, such as is represented in said bill of lading ” cannot be held to operate aá, a limitation: The inference to be drawn from the statement is that no cotton whatever was delivered for transportation to thfe agent at Sherman station. The question arises, then, whether the agent of a railroad company at one of its stations can bind the company by the execution of a bill of lading for goods not actually placed in his possession, and. its delivery to a person fraudulently pretending in collusion with such agent that he had shipped such goods, in favor of a party without notice, with whom, in furtherance of the fraud, the pretended shipper negotiates a draft, with the false bill of lading attached. Bills of exchange and promissory notes are representatives of money, circulating in the commercial world as such, and it is essential, to enable them to perform their peculiar functions, that he who purchases them should not be bound to look beyond the instrument, and that his right to enforce them should not be defeated by any *424 thing short of bad faith on his part.- But bills of lading answer a different purpose and perform different functions. They are regarded as so much cotton,' grain, iron or other articles of merchandise, in that they are symbols of ownership of the goods they coyer. And as no sale of goods' lost or stolen, though to a bond fide purchaser for value, can divest 4he ownership of the person, who lost them, or from whom 'they were stolen, so the sale of the symbol or mere representative of the goods can have no such effect, although it somer times happens that the true owner, by negligence, has so put it into the power of another to occupy his position ostensibly, as .to estop him from asserting his right as against a purchaser, who has been misled to his hurt by reason- of such negligence. Shaw v. Railroad Co., 101 U. S. 557, 563 ; Pollard v. Vinton, 105 U. S. 7, 8; Gurney v. Behrend, 3 El. & Bl, 622, 633, 634. It is true that while not negotiable as commercial paper is, bills of lading are commonly used as security for loans and advances; but it is only as evidence of ownership, special or general, .of the property mentioned in them, and of the. right to receive such property at the place of delivery.

Such' being the character of a bill of lading, can a recovery be had against a common carrier for goods never actually in its. possession for transportation, because one of its agents, having authority to sign bills of lading, by collusion with another person- issues the document in the absence of any goods at all ?

It.has been frequently held by this court-that the master of a vessel has no authority to sign a bill of lading for goods not actually put on board the vessel, and,-if he does so, his act does not bind the owner of the ship even in favor of an innocent purchaser. The Freeman v. Buckingham, 18 How. 182, 191; The Lady Franklin, 8 Wall. 325 ; Pollard v. Vinton, 105 U. S. 7. And this agrees with the rule laid down by the English courts. Lickbarrow v. Mason, 2 T. R. 77; Grant v. Norway, 10 C. B. 665; Cox v. Bruce, 18 Q. B. D. 147. “The receipt of the goods,” said- Mr. Justice Miller, in Pollard v. Vinton, supra, “ lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no *425 valid contract. to carry or to deliver.” “ And the doctrine -is applicable to transportation contracts made in' that form by railway companies and other carriers by land, as well as carriers by sea,” as was said by Mr. Justice Matthews in Iron Mountain Railway v. Knight, 122 U. S. 79, 87, he adding also: “ If Potter (the agent) had never delivered to the plaintiff in error any cotton at all to make good the 525 bales called for by the bills of lading, it is clear that the plaintiff in error would not be liable for the deficiency. This is well established by the cases of The Schooner Freeman v. Buckingham, 18 How. 182, and Pollard v. Vinton, 105 U. S. 7.”

It is a familiar principle of law that where one of two innocent parties must suffer by the fraud of another, the loss should fall upon him who enabled such third person to commit the fraud; but nothing that the railroad company did or omitted to do can be properly said to have enabled Lahnstein to impose upon Friedlander & Co.. The company not only did not authorize Easton to sign fictitious bills of lading, but it did not assume authority itself to issue such documents except upon the delivery of the merchandise. Easton was not the company’s agent in the transaction, for there was nothing upon which the agency could act. Eailroad companies are not dealers in bills of exchange, nor in bills of lading; they are carriers only, and held to rigid responsibility as such. Easton, disregarding the object for which he was employed, and not intending by his act to execute it, but wholly for a purpose of his own and of Lahnstein, became po/rticeps criminis with thé latter in the commission, of the fraud upon Friedlander & Co., and it would be going too far to hold the company, under such circumstances, estopped from denying that it had clothed this agent with apparent authority to do an act so utterly outside the scope of his employment and of its own business. The defendant cannot be held on contract as a common carrier, in the absence of goods, shipment and shipper; nor is the action maintainable on the ground of tort. “ The general rule,” said Willes, J., in Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, 265, “ is that the master is answerable for every such wrong of the servant or agent as is committed in the course *426 of the service and for the master’s benefit, though no express command or privity of the master be proved.” See also Limpus v. London General Omnibus Co., 1 H. & C. 526. The fraud was in respect to a matter within the scope of Easton’s employment or outside of it. It was not within it, for bills of lading could only be issued for merchandise delivered; and being without it, the company, which derived arid could derive. rib benefit from the unauthorized arid fraudulent act, cannot be;, made responsible. British Mutual Banking Co. v. Charnwood Forest Railway Co., 18 Q. B. D. 714.

The law can punish' roguery, but cannot always protect a purchaser, from loss, and so fraud perpetrated through the device of a false bill of lading may work injury to an innocent party, which cannot be redressed by a change of victim.

Under the Texas statutes the trip or voyage commences from the time of the signing of the bill of lading issued upon the delivery of the goods, and thereunder the carrier cannot avoid his liability as such, even though the goods are not actually on their passage at the time of a loss, but these provisions do not affect the result here..'

We cannot distinguish the case in hand from those heretofore decided by this court, and in consonance with the con-' elusions therein announced .this judgment must be

Affirmed.