Merchants' Exch. Bank of Milwaukee v. McGraw

No. 294
Decided Circuit Court of Appeals, Ninth Circuit
Disposition
reversed and remanded
full scope · unanimous
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Court
Circuit Court of the United States for the District of Washington, Northern Division
Decided
Judge
HAWLEY, District Judge
Posture
Judgment in favor of defendant after jury verdict
Plaintiff in errors (2)
MERCHANTS’ EXCH. BANK OF MILWAUKEE, WIS.
Charles E. Shepard, Sylvester & Scheiber
v.
Defendant in errors (2)
John H. McGraw, Sheriff
Struve, Allen, Hughes & McMicken
Other parties: A. F. Luening & Co. — Purchaser of hops, Kuehn, Metzler & Co. — Brokers and commission dealers, George F. Livesley & Co. — Hop dealers and attaching creditors, Jerome Catlin — Hop dealer, First National Bank of Seattle — Agent of plaintiff

Overview

The judgment of the circuit court is reversed, with costs in favor of plaintiff in error, and the cause remanded for a new trial in conformity with the views expressed in the opinion.

Case summary

This case involves a dispute over title to 100 bales of hops. A. F. Luening & Co. ordered hops from Kuehn, Metzler & Co., with payment required before shipment. Luening arranged with Merchants’ Exchange Bank to guaranty a draft, using the hops, bill of lading, and invoice as security. The bank telegraphed a guaranty to First National Bank of Seattle. Kuehn, Metzler & Co. purchased hops from Livesley & Co. and Catlin, consigned them to Luening via railroad, and a bill of lading was issued naming Luening as consignee. Livesley & Co., learning of Luening's involvement, attached the hops as sheriff McGraw levied on them on December 8, 1890. After attachment, Kuehn, Metzler & Co. delivered the draft and bill of lading to the Seattle bank, which cashed it as the plaintiff's agent. The bank forwarded documents to plaintiff, but Luening refused payment due to overcharge and attachment; a corrected draft was later paid. Plaintiff sued sheriff for wrongful conversion. At trial, jury found for defendant. On appeal, the Circuit Court of Appeals held that delivery of the bill of lading as security vested a bankers' title in plaintiff, superior to the attachment, as intent of parties controlled title passage and Washington law did not change common law rules. The court reversed and remanded for new trial, but noted that exceptions to most jury instructions were forfeited due to untimely filing, though exceptions to instructions given after jury retired in absence of counsel were preserved.

Abstract

Buyer ordered hops with payment guaranteed by a bank using the hops, bill of lading, and invoice as security, while seller consigned them to the buyer. Creditor attached the hops after consignment but before document delivery, leading to refusal of payment and a suit for wrongful conversion against the sheriff. Appellate court held that delivery of the bill of lading as security vested superior title in the bank, reversing the judgment and remanding for new trial.

Opinion of the court

Majority
opinion
HAWLEY, District Judgejoined by GILBERT, ROSS
  • Delivery of bill of lading as security creates bankers' title.
  • Intent of parties governs title passage, not mere issuance of bill of lading.
  • Washington statute does not alter common law rule.
  • Exceptions to jury instructions must be timely taken.

Jurisdiction

not challenged
Subject matter
Federal circuit court jurisdiction based on diversity or federal question
Jurisdictional facts
  • Action for wrongful conversion of hops
  • Parties from different states (Wisconsin and Washington)

Procedural posture

Posture at trial
Judgment in favor of defendant after jury verdict
Posture on appeal
Direct appeal on writ of error
Preserved issues
  • Exceptions to jury instructions given in absence of counsel after jury retired
Unpreserved issues
  • Exceptions to general charge and refused instructions taken after jury retired
Forfeited issues
  • Review of general charge and refused instructions due to untimely exceptions

Subsequent history

Petition for rehearing
not filed
Remand proceedings
Cause remanded for new trial

Legal categories

Business

Case record

Full case name
MERCHANTS’ EXCH. BANK OF MILWAUKEE, WIS., v. McGRAW, Sheriff.
Docket number
No. 294
Court
Circuit Court of Appeals, Ninth Circuit
Trial court
Circuit Court of the United States for the District of Washington, Northern Division
Decided
Opinion author
HAWLEY, District Judge
Opinion type
published
Precedential status
precedential
Judges on panel
GILBERTROSSHAWLEY

Issues & holdings

4
Issues raised
3
reversed
1
affirmed
4
Holdings
Standard of review

de novo

Disposition rationale

Washington statute does not change common law rule; symbolical delivery of bill of lading with intent to transfer property creates bankers' title.

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Bill of lading raises presumption of title but is controlled by special clauses or external evidence; intent of parties governs.

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Facts showed intent for title to remain with seller until payment; plaintiff's security interest via bill of lading delivery was valid and prior to attachment.

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Exceptions to general charge and refused instructions taken after jury retired are forfeited; exceptions to instructions given in absence of counsel after jury retired are preserved.

Preservation

Issue not preserved

Holdings of the court

Effect of bill of lading delivery as security
Delivery of a bill of lading as security for an advance, with intent to transfer property, is a symbolical delivery that vests a special property interest (bankers' title) in the advance-maker, enabling actions like replevin against attaching creditors.
Common law and cited precedents establish this principle; Washington statute does not alter it. Commercial necessity supports protecting such agreements.
unanimousbinding precedent
Presumption from bill of lading issuance
A bill of lading issued in consignee's name raises a presumption of title in the consignee, but this presumption can be rebutted by special clauses in the bill or external evidence showing contrary intent of the parties.
Intent of parties controls title passage; delivery to carrier does not automatically vest title if agreement reserves title until payment.
unanimousbinding precedent
Priority between plaintiff's security interest and attachment
Plaintiff's security interest via bill of lading delivery was valid and superior to attachment, as facts showed intent for title to remain with seller until payment, and attachment creditors were not innocent purchasers.
Evidence overcame presumption from bill of lading; parties intended payment before title transfer, and plaintiff's advance was secured by symbolical delivery.
unanimousbinding precedent
Preservation of jury instruction errors
Exceptions to jury instructions must be taken before jury retires to be preserved; exceptions to instructions given in absence of counsel after jury retired are preserved if taken at earliest opportunity.
Federal rule requires timely exceptions to ensure judicial efficiency and correction of errors; strict enforcement is essential.
unanimousbinding precedent

Error analysis

  • Jury instructions misstated law on title passage and delivery, ignoring intent of parties. — jury instruction · error foundInstructions likely misled jury on central issue of title and priority. · not harmless
  • Failure to take exceptions to jury instructions before jury retired. — procedural · error forfeited

Statutory interpretation

1
Statute
St. Wash. 1885-86, p. 121 (Hill’s Ann. St. §§ 2407-2413)
Question
Whether statute changes common law rule on bill of lading as symbolical delivery.
Court's reading
Statute does not alter common law rule; symbolical delivery of bill of lading as security remains valid.
Canons applied
Plain meaningConsistency with commercial law

Burden of proof

Prosecution burden
Plaintiff must prove ownership or right to possession for conversion claim.
Burden met
false
Burden-shifting issues
  • Presumption of title from bill of lading shifts burden to plaintiff to rebut with evidence of intent.

Standards of review

  • Interpretation of legal rules and statutes — de novo Questions of law, including application of common law principles and statutory interpretation, reviewed de novo.
  • Jury instructions and exceptions — de novo Review of whether exceptions were timely taken under federal procedural rules.

Timeline

9
Events
— Prior to current appeal
Span
procedural event

Sheriff McGraw sold hops under execution from judgment in attachment suit.

Outcome: Hops sold

Conversion completed, forming basis for damages claim.

John H. McGraw trial court
December 15, 1890factual event

Plaintiff received documents, presented draft to Luening who refused payment due to overcharge and attachment; draft protested.

Payment issues arose, leading to corrected draft and continued dispute over title.

Merchants’ Exchange Bank · A. F. Luening & Co. Milwaukee, Wisconsin
December 2, 1890factual event

Luening & Co. ordered 100 bales of hops from Kuehn, Metzler & Co., with cash payment required at Seattle before shipment.

Establishes initial contract terms and intent for payment before title transfer.

A. F. Luening & Co. · Kuehn, Metzler & Co.
December 20, 1890factual event

Corrected draft paid by plaintiff after Luening endorsed bill of lading; plaintiff retained bill of lading.

Outcome: Plaintiff paid for hops, held security

Plaintiff completed advance, asserting bankers' title.

Merchants’ Exchange Bank · A. F. Luening & Co. Milwaukee
December 6-8, 1890factual event

Kuehn, Metzler & Co. purchased hops from Livesley & Co. (69 bales) and Catlin (31 bales), marked them, and placed them in freight warehouse.

Goods acquired for resale to Luening, setting stage for delivery and attachment.

Kuehn, Metzler & Co. · George F. Livesley & Co. · Jerome Catlin Seattle, Washington
December 8, 1890 (around 1:20 PM)procedural event

Livesley & Co. obtained writ of attachment against Luening & Co. and sheriff McGraw levied on the hops.

Outcome: Hops attached

Attachment occurred before bill of lading delivered to bank, central to priority dispute.

George F. Livesley & Co. · John H. McGraw · A. F. Luening & Co. Seattle, Washington trial court
December 8, 1890 (around 3 PM)factual event

Kuehn, Metzler & Co. delivered draft, bill of lading, and invoice to First National Bank of Seattle, which cashed draft as plaintiff's agent.

Outcome: Draft cashed, documents forwarded to plaintiff

Plaintiff's security interest perfected via symbolical delivery of bill of lading.

Kuehn, Metzler & Co. · First National Bank of Seattle Seattle
December 8, 1890 (morning)factual event

Hops billed via Northern Pacific Railroad to Luening & Co. in Milwaukee; bill of lading issued naming Luening as consignee.

Bill of lading created, raising presumption of title in consignee but subject to party intent.

Kuehn, Metzler & Co. · Northern Pacific Railroad Seattle freight warehouse
Prior to current appealappeal event

First appeal: Circuit Court of Appeals reversed nonsuit and remanded for new trial.

Outcome: Reversed and remanded

Established precedent on title passage and intent.

Circuit Court of Appeals appellate court

Facts & evidence

Incident

Date
December 8, 1890
Location
Seattle, King County, Washington

Key facts

9 facts
  1. A. F. Luening & Co. ordered 100 bales of hops from Kuehn, Metzler & Co., to be paid in cash at Seattle before shipment.
  2. Luening lacked funds and arranged with Merchants’ Exchange Bank to guaranty a draft, with the hops, bill of lading, and invoice as security.
  3. The bank telegraphed a guaranty to First National Bank of Seattle.
  4. Kuehn, Metzler & Co. purchased hops from Livesley & Co. (69 bales) and Catlin (31 bales), marked them, and consigned them via Northern Pacific Railroad to Luening & Co. in Milwaukee.
  5. A bill of lading was issued naming Luening & Co. as consignee.
  6. Livesley & Co., learning Luening was involved, attached the hops as sheriff McGraw levied on them around 1:20 PM on December 8, 1890.
  7. After attachment, around 3 PM, Kuehn, Metzler & Co. delivered draft, bill of lading, and invoice to First National Bank, which cashed the draft as plaintiff's agent.
  8. The bank forwarded documents to plaintiff, but Luening refused payment due to overcharge and attachment; a corrected draft was later paid.
  9. Plaintiff demanded hops from sheriff, who refused and sold them under execution.

Disputed questions

  • Whether title to hops passed to Luening & Co. before attachment
  • Intention of parties regarding transfer of title and security interest

Procedural history

4 steps
  1. First trial: nonsuit granted at close of plaintiff's testimony.
  2. First appeal: reversed and remanded (Bank v. McGraw, 8 C. C. A. 420, 59 Fed. 972).
  3. Second trial: jury verdict for defendant.
  4. Current appeal: from judgment on second trial.

Evidence in the record

Direct
  • Telegram from plaintiff to Seattle bank guarantying draft
  • Bill of lading and invoice
  • Draft drawn by Kuehn, Metzler & Co.
Physical
  • 100 bales of hops
Testimonial
  • Testimony regarding agreements between parties
  • Intent of Luening, Kuehn, Metzler & Co., and bank
Documentary
  • Bill of lading
  • Invoice
  • Draft
  • Telegrams
  • Checks
Circumstantial
  • Marking of hops with Luening's name
  • Delivery to carrier
  • Payment arrangements

Jury

Verdict
For defendant (sheriff McGraw)
Deliberation time
Not specified
Jury instructions given
  • Instructions on title passage based on intent
  • Instructions on delivery to carrier as delivery to consignee
  • Instructions on plaintiff's security interest
Jury instructions challenged
  • [object Object]
  • [object Object]
Jury questions
  • Juror asked about period when title passed
  • Juror asked what constitutes possession

Objects of relevance

100 bales of hopsBill of lading documentRailroad receipt

Policy considerations

  • Protection of commercial transactions and credit security
  • Need for certainty in symbolical delivery via bills of lading
  • Importance of party intent in title transfer

Authorities

Cited authorities (5)

Dows v. Bank, 91 U. S. 618
followedprecedent
Cited for principle that bill of lading delivery as security vests special property.
Means v. Bank, 146 U. S. 620
followedprecedent
Cited as authority on symbolical delivery of bill of lading.
Mershon v. Moors, 76 Wis. 502
followedquotedprecedent
Cited for bankers' title doctrine where advance made for purchase.
Where a commercial correspondent advances money for the purchase of property, and takes possession, either actually or symbolically, he becomes the owner thereof.
Hatch v. Oil Co., 100 U. S. 124
followedquotedprecedent
Cited for rule that intention of parties controls agreements.
The agreement is just what the parties intended to make it.
Bank v. McGraw, 8 C. C. A. 420, 59 Fed. 972
appliedprior appeal
Prior appeal in same case, reviewed authorities on title passage.

Related cases (1)

Bank v. McGraw, 8 C. C. A. 420, 59 Fed. 972
prior appeal
Reversed and remanded

Statutes

  • St. Wash. 1885-86, p. 121 (Hill’s Ann. St. §§ 2407-2413)

Standards & doctrines

  • Bankers' title doctrine
  • Symbolical delivery doctrine
  • Presumption from bill of lading

Legal principles applied

  • Delivery to carrier is delivery to consignee unless contrary intent
  • Bill of lading raises rebuttable presumption of title
  • Exceptions must be taken before jury retires

Notable quotes

“The delivery, by an owner of goods, of a common carrier’s receipt for them, as security for an advance of money with the intention to transfer the property in the goods, is a symbolical delivery of them, and vests in the person making the advance a special property in the goods.”
majority — Explaining common law principle on bill of lading as security.
Establishes bankers' title doctrine.
“The intention of the seller and the purchaser governs the question of whether title passes by delivery or not.”
majority — Jury instruction on title passage.
Highlights central role of party intent in commercial transactions.
“Common honesty demands that agreements of this character, made in good faith, should be protected by the courts.”
majority — Emphasizing need to secure commercial credit.
Policy rationale for protecting security interests.
Index terms84
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Entities and documentation
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Action type
reversed and remanded
Target
trial court judgment
Appealed from
Circuit Court of the United States for the District of Washington
Context
Judgment reversed due to erroneous jury instructions and legal errors; remanded for new trial.
Scope
full
Further instructions
New trial to be conducted in conformity with appellate opinion on title and intent issues.
Disposition vote
unanimous
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Judges
GilbertHawleyRoss
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