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Opinion of the Court.

be the true owner thereof." In the leading case, Mr. Justice Bronson, speaking for Chief Justice Nelson, Mr. Justice Beardsley and himself, said: “The obvious meaning is, that the factor or other agent who has been intrusted with certain documentary evidence of title, or with the possession and ostensible ownership of the property, shall be deemed the true owner, so far as may be necessary to protect those who have dealt with him “upon the faith thereof;' that is, upon the faith, induced by the usual indicia of title, that he was the true owner of the property. The second section of the British statute, which answers very nearly to the third section of our own, contains a proviso which expressly saves the rights of the true owner where the pledgee had notice that he was dealing with an agent; and our statute, though framed in a different manner, was evidently designed to produce the same result. It is impossible to suppose that the legislature intended to enable the factor to commit a fraud upon his principal, by pledging or obtaining advances upon the goods for his own purposes, when the pledgee or person making the advances knew that he was not dealing with the true owner." Stevens v. Iilson (18++), 6 Hill, 512, 514; S. C., in Court of Errors (1846), 3 Denio, 472; Warner v. Martin (1850), 11 IIow. 209, 228; Covell v. IIill (1852), 6 N. Y. 377, 380; Carturight v. Iilmerding (1862), 24 N. Y. 521, 534; Dous v. Greene (1862), 24 N. Y. 638, 642. See also Ilowland v. Il'oodruff (1875), 60 N. Y. 73, 79, 80; First National Bank v. Shaw (1871), 61 N. Y. 283, 301.

If the legislature of Missouri had adopted the words of that provision of the New York Factors' Act, the meaning of which had been thus settled on full consideration by the highest courts of that state and by this court, there would be the strongest ground for holding, in accordance with a familiar canon of construction, that it had enacted those words with that meaning. Cathcart v. Robinson, 5 Pet. 264, 280 ; McDonald v. Hovey, 110 U. S. 619, 628; Commonwealth v. llartnett, 3 Gray, 450; Scruggs v. Blair, 44 Mississippi, 406; Wiesner v. Zann, 39 Wisconsin, 18, 205.

But the statute of Missouri of March 4, 1869, differs widely,

Opinion of the Court.

in language and in purpose, from the New York Factors’ Act of 1830, and was apparently derived, through SS 6 and 9 of the Missouri statute of March 10, 1868, from the statute of New York of 1858, c. 326, entitled “An act to prevent the issue of false receipts, and to prevent fraudulent transfers of property, by warehousemen, wharfingers and others," amended by the statute of that state of 1859, c. 353, extending its provisions to bills of lading. None of these provisions of the Missouri statutes are limited or even addressed to factors or other agents authorized to sell the goods of their principals, and intrusted for that purpose with the possession either of the goods, or of warehouse receipts, bills of lading or other similar documents in which such agents are named as consignees. But their leading object is to regulate the manner and effect of transferring warehouse receipts and bills of lading by indorsement.

By $ 6 of the statute of Missouri of 1868, (following almost word for word the statutes of New York of 1858, c. 326, $ 6, and 1859, c. 353,) it was enacted that warehouse receipts or bills of lading “may be transferred by indorsement thereon, and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares, merchandise, grain, flour, or other produce or commodity, therein specified, so far as to give validity to any pledge, lien, or transfer made or created by such person or persons,” that is, by the indorsee before mentioned; and by $ 9, warehouse receipts and bills of lading were made “negotiable by indorsement in blank, or by special indorsement, in the same manner and to the same extent as bills of exchange and promissory notes.” Missouri Laws, 1868, pp. 12, 13.

By $ 3 of the statute of 1869, those sections of the statute of 1868 are repealed. But $ 1 of the later statute substantially reënacts $ 9 of the earlier one, substituting for the words“ by indorsement in blank or by special indorsement,” the words “by written indorsement thereon and delivery," and omitting the words “and to the same extent;” and 8 2 reënacts § 6, with the substitution, for the words “by indorsement thereon," of the words “ by indorsement in writ

Opinion of the Court.

ing thereon and the delivery thereof so indorsed,” and, for the words “ by such person or persons,” of the words “thereby, as on the faith thereof.” Missouri Laws, 1869, p. 91.

The principal provisions of the statute of 1869, then, as to all warehouse receipts and bills of lading, (except those which have the words “not negotiable” plainly written or stamped upon their face,) are, first, that they are “made negotiable by written indorsement thereon and delivery in the same manner as bills of exchange and promissory notes;” and, second, that any person “ to whom the same may be transferred shall be deemed and held to be the owner of the goods," " so far as to give validity to any pledge, lien or transfer, given, made or created thereby, as on the faith thereof."

The first provision, while it doubtless gives the indorsee the right to sue thereon in his own name, does not, for the reasons fully stated by Mr. Justice Strong in delivering the judgment of this court in Shano v. Railroad Co., 101 U. S. 557, attach to such an indorsement of the symbol of property the same effect which the common law gives to the indorsement of a bill of exchange or promissory note for the payment of a sum of money; nor confer upon persons making, upon a bill of lading indorsed in blank by the owner, an advance of money to a subsequent indorser whom they have reason to believe not to be the owner, the right to hold the goods against the true owner.

The second provision does not appear to have been brought to the notice of this court in that case, and presents more difficulty. It differs from the provision of the Factors' Act of New York, construed by the courts of that state and by this court in the cases before cited, in several important particulars : 1st. Any person “ to whom the same may be transferred” (instead of any person by whom it is transferred) “shall be deemed and held to be the owner." 2d. The ensuing qualification is, “ so far as to give validity to any pledge, lien or transfer, given, made or created thereby," which last word cannot possibly be referred to anything but the transfer aforesaid. 3d. The words “as on the faith thereof” follow directly after varls, without any intermediate mention of ad

Opinion of the Court.

vances made by the transferee. In short, the New York Factors' Act declares that any agent intrusted with the possession of goods, or of the symbol thereof, shall be deemed to be the true owner, so far as to give validity to a pledge made by him to another person for advances made by the latter “on the 'faith thereof;" but the Missouri statute only declares that an indorsee of the symbol of property shall be deemed to be the owner, so far as to give validity to any pledge made to him by such indorsement “as on the faith thereof." The difliculty arises from the introduction of the words “on the faith thereof," borrowed from the factors' acts, into a statute relating to the negotiability of warehouse receipts and bills of lading, without sufficient regard to the difference in the terms and the objects of the two classes of statutes.

It may well be that, upon a view of the whole provision, it protects only bona fide indorsees. Whitlock v. Ilay, 59 N. Y. 484, 487; Steiger v. Third National Bank, 2 McCrary, 494, 498. But it is by no means clear that the mere fact that the indorsee of the bill of lading or warehouse receipt knows that the indorser is a factor and holds the goods as such is sufficient proof of bad faith. Under the English Factors' Act of 5 & 6 Vict. c. 39, extending the provisions of the act of 6 Geo. 4, and protecting those advances only, which are “made bona fide and without notice that the agent making” the pledge “has not authority to make the same, or is acting mala fide in respect thereof against the owner” of the goods, it has been held by the highest authorities that knowledge that the agent making the pledge is a factor, without further notice that he is acting mala fide and beyond his authority, does not deprive the pledgee of the protection of the statute. Navulshaw v. Brownrigg, 1 Sim. N. S. 573, and 2 D., M. & G. 441 ; Vickers v. Hertz, L. R. 2 H. L. Sc. 113; Kaltenbach v. Lewis, 10 App. Cas. 617. Yet it may be doubted, whether receiving, from persons known to be factors and to hold property as such, a pledge of the symbols of the property, to secure the payment of the general balance of their bank account with the pledgee, is consistent with good faith.

We have considered the question of the effect of the words

Opinion of the Court.

“on the faith thereof,” as used in Missouri and elsewhere, at some length, because of the large space devoted to it in the arguments of counsel, and in order to put the whole matter in a clearer light. But it is not necessary to express a decisive opinion upon the meaning of those words, as they stand in the Missouri statute of 1869, because upon a narrower ground it is quite clear that that statute affords no protection to the plaintiff.

That statute applies only to transfers of warehouse receipts and bills of lading by “indorsement in writing thereon and the delivery thereof so indorsed." The finding of facts contains this statement: “It is not shown whether or not the bills of lading or the warehouse receipts or any of them were indorsed in writing by J. II. Dowell & Co. or by any one, when transferred to the bank, there being no evidence on this specific matter.” The want of any evidence upon this point is perhaps to be explained by the facts, also found•and stated, that upon the delivery of the warehouse receipts to the bank the bills of lading were surrendered and cancelled, and that the warehouse receipts ran to bearer, and were therefore probably not indorsed. But whatever be the explanation, the fact remains, that it was not proved, and cannot be presumed, that either the bills of lading or the warehouse receipts were indorsed in writing, as required by the statute; and no better title passes by a transfer of the symbols without such indorsement than by a delivery of the goods which they represent. Rice v. Cutler, 17 Wisconsin, 351, 358, 359; Ilirschorn v. Canney, 98 Mass. 149; Erie & Pacific Dispatch Co. v. St. Louis Co., 6 Missouri App. 172; Fourth National Bank v. St. Louis Co., 11 Missouri App. 333.

The decision in Price v. Wisconsin Ins. Co., 43 Wisconsin, 267, on which the plaintiff much relied, was based both upon a warehouse receipt act differing from that of Missouri in allowing the documents to be transferred “by delivery, with or without indorsement,” and in not containing the words “as on the faith thereof;" and also upon other grounds inconsistent with the judgments of this court in Warner v. Martin, and Shuw v. Railroad Co., before cited.

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