[156]*156The following opinion was filed on July 26, 1907:
ELLIOTT, J.
(after stating the facts as above).
The various assignments of errors are grouped by the appellant so* as to raise three questions:
1. It is contended that the bill of lading was not negotiable, and that therefore the railway company had the right to deliver the wheat to the consignee named in the bill of lading without requiring the production of the bill of lading. The nature and effect of a bill of lading, independent of the statute, is well settled in this state. Ratzer v. Burlington, C. R. & N. Ry. Co., 64 Minn. 245, 66 N. W. 988, 58 Am. St. 530; Ryan v. Great Northern Ry. Co., 90 Minn. 12, 95 N. W. 758. The statute (section 7649, G. S. 1894) provides:
Warehouse receipts, given for any goods, wares and merchandise, grain, flour, produce or other commodity, stored or deposited with any warehouseman, or other person or corporation in this state, or bills of lading, or receipt for the same, when in transit by cars or vessels to any such warehouseman, or other person, shall be negotiable, and may be 'transferred by indorsement and delivery of such receipt or bill of lading; and any person to whom the said receipt or bill of lading may be transferred, shall be deemed and taken to be the owner of the goods, wares or merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges thereon: provided, that all warehouse receipts, or bills of lading, which shall have the words “not negotiable” plainly written or stamped on the face thereof, shall be exempt from the provisions of this act.
In National Bank of Commerce v. Chicago, B. & N. Ry. Co., 44 Minn. 224, 236, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. 566, it was held that this statute did not make bills of lading negotiable in> the sense of the law merchant. “The statute,” said the court, “was-not intended to totally change the character of bills of lading, and put them on the footing of bills of exchange, and charge the negotiation of them with the consequences which attend or follow the negotiation of bills or notes. On the contrary, we think the sole object of th& [157]*157.statute was to prescribe the mode of transferring or assigning bills of lading, and to provide that such transfer and delivery of these symbols of property should, for certain purposes, be equivalent to an actual transfer and delivery of the property itself.” Shaw v. Railroad Co., 101 U. S. 557, 25 L. Ed. 892; Turner v. Israel, 64 Ark. 244, 41 S. W. 806.
The statute thus merely declares the effect which shall be given to the transfer of a bill of lading. It provides, however, “that all warehouse receipts or bills of lading, which shall have the words ‘not negotiable’ plainly written or stamped on the face thereof, shall be exempt from the provisions of this act.” The bill of lading in question had plainly stamped across its face the words: “Not negotiable unless delivery is to be made to consignee or order.” It follows that, according to the express language of the statute, this bill of lading is exempt from the provisions of the statute, and is therefore governed by the general principles of the common law applicable to such instruments. In Midland v. Missouri, 62 Mo. App. 531, the court said: “The words ‘not negotiable,’ stamped on the face of the bills of lading, in no wise destroyed their assignability.' The sole effect of these words was to exempt such bills of lading from the provisions of our statute in relation thereto.” The bill of lading in question was assignable by delivery, and, notwithstanding the fact that it was stamped not negotiable, represented the goods which had been shipped. The transfer of the bill did not transfer the contract. It transferred the goods represented by it. Cox v. Central Vermont, 170 Mass. 129; Falkenburg v. Clark, 11 R. I. 278; Munroe v. Philadelphia Warehouse Co. (C. C.) 75 Fed. 545; Pollard v. Reardon, 65 Fed. 848, 13 C. C. A. 171. The case is therefore controlled by the previous decisions of this court. Ratzer v. Burlington, C. R. & N. Ry. Co., 64 Minn. 245, 66 N. W. 988, 58 Am. St. 530; Ryan v. Great Northern Ry. Co., 90 Minn. 12, 95 N. W. 758.
The appellant claims that the Barnum Grain Company was acting merely as the agent of McKinnon, Son & Co., and rests this claim upon a letter written by the Barnum Grain Company to the railway company, in which it is stated that “this car, without any authority from us, was diverted in transit by McKinnon, Son & Co. to Minneapolis; we, as their agents in Duluth, having paid the draft with [158]*158the original bill of lading attached for $1,000.” The defendant below" asked the trial court to find from the stipulated facts that the Barnum Grain Company was acting as the agent of McKinnon, Son & Co., and not otherwise. This the court declined to do, because in its judgment the evidence, as stipulated, did not justify such a finding. Taking the evidence as a whole, and considering it in the light of the-entire transaction and the customs of business, of which the court will take judicial notice, we cannot say that the refusal to make this finding-was error. The plaintiff had sufficient interest in the wheat to enable it to bring this action.
The order denying a new trial is therefore affirmed.
A petition for reargument having been presented, the following opinion was filed on September 13, 1907:
PER CURIAM.
The petition for a reargument of this case is accompanied by an-elaborate brief which we have read with care and interest. It has not, however, shaken our confidence in the correctness of the decision heretofore filed,
The claim that the plaintiff is not the transferee of the bill of lading, but simply the agent of McKinnon, Son & Co. to pay the draft, sell' the grain, and account for the proceeds, is not made by the pleadings. The complaint alleged a transfer of the bill of lading to plaintiff, and this allegation was not denied by the answer. Neither the stipulation-of facts nor the findings of the trial court disclose any agency of the-character claimed by the railway company; on the contrary, the trial court refused to so find. The plaintiff was the agent of McKinnon, SonSí Co. to receive the grain, sell it, and account for the proceeds less advances, precisely as any commission house is the agent of a shipper consigning grain to it against which a draft has been drawn on the consignee with bill of lading attached, and not otherwise. In every such case the title to the grain, of which the bill of lading is the symbol, passes to each holder of the draft as security for its payment. In this-case the plaintiff paid the draft in reliance upon the bill of lading; that is, the grain represented by it. This conclusion is entirely consistent rvith the letters upon which the defendant relies. The clause therein-* quoted by counsel, “You will kindly pay the draft, and, if there is an [159]*159overdraft, we will make it good,” shows that the plaintiff was to reimburse itself from a sale of the grain in the ordinary course of the business of commission men. It was only the overdraft that McKinnon, Son & Co. promised to pay. After paying the draft, if the grain had actually come to the possession of the plaintiff, could McKinnon, Son & Co.
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[156]*156The following opinion was filed on July 26, 1907:
ELLIOTT, J.
(after stating the facts as above).
The various assignments of errors are grouped by the appellant so* as to raise three questions:
1. It is contended that the bill of lading was not negotiable, and that therefore the railway company had the right to deliver the wheat to the consignee named in the bill of lading without requiring the production of the bill of lading. The nature and effect of a bill of lading, independent of the statute, is well settled in this state. Ratzer v. Burlington, C. R. & N. Ry. Co., 64 Minn. 245, 66 N. W. 988, 58 Am. St. 530; Ryan v. Great Northern Ry. Co., 90 Minn. 12, 95 N. W. 758. The statute (section 7649, G. S. 1894) provides:
Warehouse receipts, given for any goods, wares and merchandise, grain, flour, produce or other commodity, stored or deposited with any warehouseman, or other person or corporation in this state, or bills of lading, or receipt for the same, when in transit by cars or vessels to any such warehouseman, or other person, shall be negotiable, and may be 'transferred by indorsement and delivery of such receipt or bill of lading; and any person to whom the said receipt or bill of lading may be transferred, shall be deemed and taken to be the owner of the goods, wares or merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges thereon: provided, that all warehouse receipts, or bills of lading, which shall have the words “not negotiable” plainly written or stamped on the face thereof, shall be exempt from the provisions of this act.
In National Bank of Commerce v. Chicago, B. & N. Ry. Co., 44 Minn. 224, 236, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. 566, it was held that this statute did not make bills of lading negotiable in> the sense of the law merchant. “The statute,” said the court, “was-not intended to totally change the character of bills of lading, and put them on the footing of bills of exchange, and charge the negotiation of them with the consequences which attend or follow the negotiation of bills or notes. On the contrary, we think the sole object of th& [157]*157.statute was to prescribe the mode of transferring or assigning bills of lading, and to provide that such transfer and delivery of these symbols of property should, for certain purposes, be equivalent to an actual transfer and delivery of the property itself.” Shaw v. Railroad Co., 101 U. S. 557, 25 L. Ed. 892; Turner v. Israel, 64 Ark. 244, 41 S. W. 806.
The statute thus merely declares the effect which shall be given to the transfer of a bill of lading. It provides, however, “that all warehouse receipts or bills of lading, which shall have the words ‘not negotiable’ plainly written or stamped on the face thereof, shall be exempt from the provisions of this act.” The bill of lading in question had plainly stamped across its face the words: “Not negotiable unless delivery is to be made to consignee or order.” It follows that, according to the express language of the statute, this bill of lading is exempt from the provisions of the statute, and is therefore governed by the general principles of the common law applicable to such instruments. In Midland v. Missouri, 62 Mo. App. 531, the court said: “The words ‘not negotiable,’ stamped on the face of the bills of lading, in no wise destroyed their assignability.' The sole effect of these words was to exempt such bills of lading from the provisions of our statute in relation thereto.” The bill of lading in question was assignable by delivery, and, notwithstanding the fact that it was stamped not negotiable, represented the goods which had been shipped. The transfer of the bill did not transfer the contract. It transferred the goods represented by it. Cox v. Central Vermont, 170 Mass. 129; Falkenburg v. Clark, 11 R. I. 278; Munroe v. Philadelphia Warehouse Co. (C. C.) 75 Fed. 545; Pollard v. Reardon, 65 Fed. 848, 13 C. C. A. 171. The case is therefore controlled by the previous decisions of this court. Ratzer v. Burlington, C. R. & N. Ry. Co., 64 Minn. 245, 66 N. W. 988, 58 Am. St. 530; Ryan v. Great Northern Ry. Co., 90 Minn. 12, 95 N. W. 758.
The appellant claims that the Barnum Grain Company was acting merely as the agent of McKinnon, Son & Co., and rests this claim upon a letter written by the Barnum Grain Company to the railway company, in which it is stated that “this car, without any authority from us, was diverted in transit by McKinnon, Son & Co. to Minneapolis; we, as their agents in Duluth, having paid the draft with [158]*158the original bill of lading attached for $1,000.” The defendant below" asked the trial court to find from the stipulated facts that the Barnum Grain Company was acting as the agent of McKinnon, Son & Co., and not otherwise. This the court declined to do, because in its judgment the evidence, as stipulated, did not justify such a finding. Taking the evidence as a whole, and considering it in the light of the-entire transaction and the customs of business, of which the court will take judicial notice, we cannot say that the refusal to make this finding-was error. The plaintiff had sufficient interest in the wheat to enable it to bring this action.
The order denying a new trial is therefore affirmed.
A petition for reargument having been presented, the following opinion was filed on September 13, 1907:
PER CURIAM.
The petition for a reargument of this case is accompanied by an-elaborate brief which we have read with care and interest. It has not, however, shaken our confidence in the correctness of the decision heretofore filed,
The claim that the plaintiff is not the transferee of the bill of lading, but simply the agent of McKinnon, Son & Co. to pay the draft, sell' the grain, and account for the proceeds, is not made by the pleadings. The complaint alleged a transfer of the bill of lading to plaintiff, and this allegation was not denied by the answer. Neither the stipulation-of facts nor the findings of the trial court disclose any agency of the-character claimed by the railway company; on the contrary, the trial court refused to so find. The plaintiff was the agent of McKinnon, SonSí Co. to receive the grain, sell it, and account for the proceeds less advances, precisely as any commission house is the agent of a shipper consigning grain to it against which a draft has been drawn on the consignee with bill of lading attached, and not otherwise. In every such case the title to the grain, of which the bill of lading is the symbol, passes to each holder of the draft as security for its payment. In this-case the plaintiff paid the draft in reliance upon the bill of lading; that is, the grain represented by it. This conclusion is entirely consistent rvith the letters upon which the defendant relies. The clause therein-* quoted by counsel, “You will kindly pay the draft, and, if there is an [159]*159overdraft, we will make it good,” shows that the plaintiff was to reimburse itself from a sale of the grain in the ordinary course of the business of commission men. It was only the overdraft that McKinnon, Son & Co. promised to pay. After paying the draft, if the grain had actually come to the possession of the plaintiff, could McKinnon, Son & Co. have replevied it without tendering payment of the advances made by plaintiff? It is true that plaintiff in its letter making a claim against defendant uses the words, “We as their agents,” but this does not imply that the plaintiff had no title to the grain. On the contrary, the letter expressly states that plaintiff’s claim is based on the payment of a draft for $1,000 drawn against car; that is, the wheat in it.
The claim that the statute (G. S. 1894, § 7649) covers the entire subject of bills of lading, including both their transfer and negotiability, and hence repeals the common law and general customs and usages on the subject existing before its enactment, was not made in the original brief. If it is correct, then, by stamping bills of lading “nonnegotiable,” all bills of lading so stamped are withdrawn from the provisions of the statute, and, the common law having been repealed, no interest in the property represented by a bill of lading so stamped can be transferred by a delivery of it, whether indorsed or not.
This is a startling and revolutionary proposition. It would permit carriers to stamp all bills of lading “nonnegotiable,” and thereby escape all responsibility as to the delivery of the property except to the shipper or consignee, who are not infrequently one and the same person. Such a construction of the statute would, as said in Ratzer v. Burlington, C. R. & N. Ry. Co., 64 Minn. 245, 66 N. W. 988, 58 Am. St. 530, “cause great hardship, revolutionize business methods, and drive all buyers and shippers of small means out of the business, as they could no longer give ready and available security on commodities in transit, and thereby turn their limited capital sufficiently quickly and often to enable them to do much business. This, in turn, would destroy competition, and leave the business in the hands of a few concerns with unlimited capital.” The construction contended for cannot be given to the statute unless its language is so clear and mandatory as to leave no other alternative. It is true, as counsel claims, that the legislature intended by the statute relied on to do something more than, re-enact the common law, and effect must be given to all of the provi[160]*160sions of the statute. A reference to the original of the statute (Laws 1876, p. 96, c. 86), entitled “An act to regulate the storage of grain,” will make its meaning clear. This statute deals primarily with the subject of the storing of grain in elevators and in warehouses, and only incidentally with bills of lading. Section 1 thereof provides that all grain delivered for storage shall constitute a bailment, and not a sale of the property, which is a repeal of the common law in this respect. Section 2 provides for the form and effect of the warehouse or elevator receipt to be given for the grain. Section 3 provides for the surrender of the 'receipt and the obligation of the warehouseman to redeliver the grain upon tender of all charges for storage and money advanced by the bailee. Section 4 (page 97) provides for an action to recover the grain. Section 5 is the identical section here under consideration, which reads as follows:
Warehouse receipts, given for any goods, wares and merchandise, grain, flour, produce or other commodity, stored or deposited with any warehouseman, or other person or corporation in this state, or bills of lading, or receipt for the same, when in transit by cars or vessels to any such warehouseman, or other person, shall be negotiable, and may be transferred by indorsement and delivery of such receipt or bill of lading; and any person to whom the said receipt or bill of lading may be transferred, shall be deemed and taken to be the owner of the goods, wares or merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges thereon: provided that all warehouse receipts, or bills of leading, which shall have the words “not negotiable” plainly written or stamped on the face thereof, shall be exempt from the provisions of this act.
This statute contemplates that the warehouseman may make advances upon the faith of the grain stored with him in accordance with the existing custom. The statute having changed the relation of the owner of the grain and the warehouseman from that of creditor and debtor to that of bailor and bailee and made the receipts negotiable, it became necessary to provide a method whereby the bailee could protect himself in cases in which advances might be made on the faith of [161]*161the property in his hands. Therefore the proviso to the statute was added, so that by stamping the receipts or bills of lading as nonnegotiable each successive holder thereof would take title to the property subject to such advances or other claims of the warehouseman or carrier.
It is clear that the purpose of the proviso was to enable warehouse-men and carriers to protect themselves as to any advances or claims they might have and not to affect the assignability of the receipts or bills of lading, or the property therein described. If the proviso is to be given the effect of entirely withdrawing all receipts stamped “nonnegotiable” from the operation of the statute, then all grain .stored, for which receipts so stamped are accepted, is a sale, and not a bailment, for the literal reading of the proviso is: “All warehouse receipts or bills of lading which shall have the words 'not negotiable’ plainly written or stamped on the face thereof shall be exempt from the provisions of this act” — that is, all the provisions of the act including the provision that grain delivered for storage shall be deemed and treated as a bailment and not a sale of the property, and not simply the provisions of the particular section under consideration.
It is clear that the statute does not affect the assignability of bills of lading by delivery, for the reason that it does not repeal the common law on the subject. If it were otherwise, then the title to property described in a warehouse receipt or a bill of lading could not be assigned by a delivery of the instrument without indorsement, for as to each of such instruments the statute provides that it may be transferred by indorsement and delivery; that is, both indorsement and delivery are essential. And yet this court held in State v. Loomis, 27 Minn. 521, 8 N. W. 758, in a case where the defendant had been convicted of a felony, that title to warehouse receipts might be transferred by delivery without indorsement notwithstanding the statute. It follows that the statute does not affect the assignability of bills of lading although they be stamped “not negotiable,” and that all the reasons for requiring the surrender or cancellation of an unstamped bill of lading, if the destination of the property is to be changed in transit, apply to such a bill of lading so stamped, and that this case is ruled by Ratzer v. Burlington, C. R. & N. Ry. Co., supra.
The petition for reargument is therefore denied.