Burr, J.:
Upon a former hearing of the appeal in this case the record failed to show that the shipping receipt or bill of lading issued by the Morgan’s Louisiana and Texas Railroad and Steamship' Company to the Gibson Cypress Lumber Company, the’ shipper of the lumber in question, had stamped thereon the words “ not negotiable.” After our decision that the judgment in favor of the plaintiff should be reversed and a new trial granted (Gass v. Astoria Veneer Mills, 121 App. Div. 182), a motion was made to correct the record so that this fact should appear, and for a reargnment of the appeal. The motion was granted, and the question now presents itself, Does this additional fact lead to a different conclusion?
A bill of lading in the first instance represents the contract between the shipper and the carrier, by which, for a specified sum, the latter undertakes to deliver the goods received by it to the rightful owner thereof, and to no other person. (McEntee v. N. J. Steamboat Co., 45 N. Y. 34.) The consignee named in the bill of [186] lading is presumptively the owner of the goods, and entitled, upon complying with the terms of the contract of carriage, to demand possession of the same (1 Hutch. Carr. [3d ed.] § 177; Bailey v. H. R. R. R. Co., 49 N. Y. 70), and a delivery to a consignee or by his direction is a good delivery. (Sweet v. Barney, 23 N. Y. 335.) A hill of lading also stands for many purposes as the representative of the goods shipped, and at common law the title to the goods while they were in the possession of the carrier as bailee might be transferred by means of an indorsement and delivery of the bill of lading to a third person, whose title to them, however, was no better than that of the person by whom the transfer, was made. (6 Cyc. 424; Commercial Bank of Keokuk v. Pfeiffer, 108 N. Y. 250; Shaw v. Railroad Co., 101 U. S. 557.) A bill of lading is sometimes spoken of as a negotiable or quasi-negotiable instrument. (6 Cyc. 424; Shaw v. Railroad Co., supra.) What is meant by that term as applied to a bill of lading 1 In the Shaw case the court say: “ It is a technical term derived from the usage of" merchants and bankers, in transferring, primarily, bills of exchange and, afterwards, promissory notes. At common law no contract was assignable, so as to give an assignee a right to enforce it by suit in his own name. To this rule bills of exchange and promissory notes, payable to order or bearer, have been admitted exceptions, made such by the adoption of the law merchant. They may be transferred by indorsement and delivery, and such a transfer is called negotiation. It is a mercantile business transaction, and the capability of being thus transferred, so as to give to the indorsee a right to sue on the contract in his own name, is what constitutes negotiability. The term ‘ negotiable ’ expresses, at least primarily, this mode and effect of a transfer. In regard to bills and notes, certain other consequences generally though not always, follow. * * * But none of these consequences are necessary attendants or constituents of negotiability, or negotiation. That may exist without them.” After stating some of the consequences of negotiability' as the term is applied to bills of exchange and promissory notes, and in so far as they relate to the conferring of a title in the transferee superior to that of the person from whom he receives the same, the court continues: “ The function of that instrument [a bill of lading] is entirely different from that of a bill or note. It is not a representative of money, [187] used for transmission of money, or for the payment of debts or for purchases. It does not pass from hand to hand as bank notes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by it — a representative of those goods. But if the goods themselves be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the. person who lost them, or from whom they were stolen. Why then should the. sale of the symbol or mere representative of the goods have such an effect ? ”
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Burr, J.:
Upon a former hearing of the appeal in this case the record failed to show that the shipping receipt or bill of lading issued by the Morgan’s Louisiana and Texas Railroad and Steamship' Company to the Gibson Cypress Lumber Company, the’ shipper of the lumber in question, had stamped thereon the words “ not negotiable.” After our decision that the judgment in favor of the plaintiff should be reversed and a new trial granted (Gass v. Astoria Veneer Mills, 121 App. Div. 182), a motion was made to correct the record so that this fact should appear, and for a reargnment of the appeal. The motion was granted, and the question now presents itself, Does this additional fact lead to a different conclusion?
A bill of lading in the first instance represents the contract between the shipper and the carrier, by which, for a specified sum, the latter undertakes to deliver the goods received by it to the rightful owner thereof, and to no other person. (McEntee v. N. J. Steamboat Co., 45 N. Y. 34.) The consignee named in the bill of [186] lading is presumptively the owner of the goods, and entitled, upon complying with the terms of the contract of carriage, to demand possession of the same (1 Hutch. Carr. [3d ed.] § 177; Bailey v. H. R. R. R. Co., 49 N. Y. 70), and a delivery to a consignee or by his direction is a good delivery. (Sweet v. Barney, 23 N. Y. 335.) A hill of lading also stands for many purposes as the representative of the goods shipped, and at common law the title to the goods while they were in the possession of the carrier as bailee might be transferred by means of an indorsement and delivery of the bill of lading to a third person, whose title to them, however, was no better than that of the person by whom the transfer, was made. (6 Cyc. 424; Commercial Bank of Keokuk v. Pfeiffer, 108 N. Y. 250; Shaw v. Railroad Co., 101 U. S. 557.) A bill of lading is sometimes spoken of as a negotiable or quasi-negotiable instrument. (6 Cyc. 424; Shaw v. Railroad Co., supra.) What is meant by that term as applied to a bill of lading 1 In the Shaw case the court say: “ It is a technical term derived from the usage of" merchants and bankers, in transferring, primarily, bills of exchange and, afterwards, promissory notes. At common law no contract was assignable, so as to give an assignee a right to enforce it by suit in his own name. To this rule bills of exchange and promissory notes, payable to order or bearer, have been admitted exceptions, made such by the adoption of the law merchant. They may be transferred by indorsement and delivery, and such a transfer is called negotiation. It is a mercantile business transaction, and the capability of being thus transferred, so as to give to the indorsee a right to sue on the contract in his own name, is what constitutes negotiability. The term ‘ negotiable ’ expresses, at least primarily, this mode and effect of a transfer. In regard to bills and notes, certain other consequences generally though not always, follow. * * * But none of these consequences are necessary attendants or constituents of negotiability, or negotiation. That may exist without them.” After stating some of the consequences of negotiability' as the term is applied to bills of exchange and promissory notes, and in so far as they relate to the conferring of a title in the transferee superior to that of the person from whom he receives the same, the court continues: “ The function of that instrument [a bill of lading] is entirely different from that of a bill or note. It is not a representative of money, [187] used for transmission of money, or for the payment of debts or for purchases. It does not pass from hand to hand as bank notes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by it — a representative of those goods. But if the goods themselves be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the. person who lost them, or from whom they were stolen. Why then should the. sale of the symbol or mere representative of the goods have such an effect ? ”
It would seem, therefore, to be the law, in the absence of any statute affecting the question, that the transferee of a negotiable bill of lading would acquire no higher or better title to the goods represented thereby than his transferrer had, unless the true owner of property by his voluntary act or by his negligence or carelessness has put it in the power of another to occupy ostensibly the position of owner so that he may be estopped from asserting his right against a purchaser thereof, who has been misled to his hurt by his action or conduct. Negotiability of a bill of lading, therefore, means assign-ability, so far as the written contract of carriage is concerned, and so far as the goods described in the bill of lading are concerned a conveyance of such title thereto as the transferrer had. We have been unable to find any statute of this State, nor has our attention been called to any, relating to the negotiability of bills of lading and the effect of the transfer thereof, which were in force at the date of the transactions in question, except the Factors’ Act (Laws of 1830, chap. 179), and the Penal Code (§§ 628-631a). The Factors’Act provides that “Every factor or other agent, entrusted with the possession of any bill of lading, * * * shall be deemed to be the true owner thereof so far as to give validity to any contract made by such agent with any other person, for the sale or disposition of the whole or any part of such merchandize.” (Laws of 1830, chap. 179, § 3.) This statute has been construed as having been designed for the protection of those who in good faith and in ignorance of any defect of title in their vendor purchased the property upon the faith of the merchandise and the ownership thereof by such vendor, as evidenced by the documentary evidence of title with which he has been intrusted by [188] the owner. It is the act of the owner intrusting another with the documentary evidence of ownership, it is the apparent ownership and right of disposal in connection with the fact that innocent third persons deal with him upon the faith of such apparent ownership that estops the true owner from following his property into the hands of a Iona fiole purchaser, and gives the latter a better title than the vendor had. It is the open, visible appearance resulting from the conscious and voluntary act of the owner that gives effect to the transaction and estops him from claiming his goods. (Howland v. Woodruff, 60 N. Y. 73; Soltau v. Gerdau, 119 id. 380; New York Security & Trust Co. v. Lipman, 157 id. 551.) The Penal Code, in the sections above referred to, so far as its provisions are important to the matters here in controversy, provides in substance (transposing some of its phrases for a better understanding thereof) that “ the master, owner or agent of any vessel, or officer or agent of any railway, express or transportation company, who delivers to another any merchandise for which a bill of lading, receipt or voucher has been issued * ^ * is punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both * * * unless such receipt is surrendered to be canceled at the time of such delivery, or unless in the case of a partial delivery a memorandum thereof is indorsed upon such receipt or voucher, or unless such receipt or voucher bears uj>on its face the words ‘ not negotiable ’ plainly written or stamped.” * We think it is apparent that the purpose and object of the two statutes taken together was, first, to give a bill of lading, issued in the ordinary form, a higher quality of negotiability than simply to make it transferable by indorsement and delivery. The voluntary act of the owner of property in giving to another a bill of lading which unqualifiedly directs the common carrier to whom the goods therein described have been committed for transportation, to deliver such goods to the person named in the bill of lading or to his order, is deemed a sufficient act to estop him from making any claim upon the goods as against a person dealing in good faith with the person named therein. Second, as a further protection to such persons, the Penal Code provided for the punishment of the common car[189] rier who should deliver the goods described in such a bill of lading to any other person than the consignee, while such bill of lading was outstanding and might come into the hands of an innocent purchaser thereof. The provisions of the Penal Code are a substitute for previous acts relating to the same subject-matter. (Laws of 1858, chap. 326; Laws of 1859, chap. 358 j Laws of 1866, chap. 440; 2 E. S. [Banks’ 6th ed.] 229.) The Penal Code was adopted in 1881, to take effect December 1, 1882. (Law of 1881, chap. 676, as amd. by Laws of 1882, chap. 102.) In 1885 an act was passed requiring the Attorney-General to prepare and report to the Legislature an act to repeal the statutes that had been superseded by the Penal Code (Laws of 1885, chap. 524), and in 1886 the foregoing acts were expressly repealed. (Laws of 1886, chap. 593, § 1, subds. 33,34, 41. See, also, Mairs v. Baltimore & Ohio R. R. Co., 175 N. Y. 409; Burnham v. C. V. S. Co., 142 id. 169, 172.)
This being the nature of a hill of lading and the state of the law both common and statute at the time of the transaction out of which this controversy arises, what was the effect of stamping the words “not negotiable upon the face of the bill of lading? Under our statute any contract is assignable, and suit to enforce it must be brought in the name of the assignee. (Code Civ. Proc. § 449.) Although the reason for declaring a bill of lading negotiable at common law (namely, to make it transferable by indorsement and delivery) had ceased to exist, it could hardly be supposed that it was intended by using the words “ not negotiable ” to destroy this quality of the instrument and to make this contract an exception to the general rule and to prohibit the assignment or transfer of the bill of lading and of the contract represented thereby by such indorsement and delivery, particularly as even in case of a bill drawn to order, transfer by delivery alone has been held sufficient. (First Nat. Bank v. N. Y. C. & H. R. R. R. Co. 85 Hun, 160; Merchants’ Bank v. U. R. R. & T. Co., 69 N. Y. 379; Colgate v. Pennsylvania Co., 102 id. 120.) It has been so held in Missouri, notwithstanding that there is a statute of that State which, although providing in an earlier section that bills of lading might be transferred by assignment and delivery, contained a further provision that “All * * * bills of lading which [190] shall have the words not negotiable plainly written or stamped on the face thereof shall be exempt from the provisions of” said act. (1 R. S. of Missouri [1889], § 745; * Midland Nat. Bank v. M., K. & T. Ry. Co., 62 Mo. App. 531.) Unless, therefore, the words “ not negotiable ” affect the power of the consignee named in such bill of lading to transfer a valid title to a purchaser of the goods from him, free from any claim on the part of the true owner thereof, it is difficult to see what effect can be given to the said words. If the bill of lading failed to show clearly who the consignee was, delivery without ascertaining from the shipper to whom «such delivery was to be made would make the common carrier liable in conversion. (Furman v. Union Pacific R. R. Co., 106 N. Y. 579; Bank of Commerce v. Bissell, 72 id. 615.) Equally must it be true that if the bill of lading shows that certain rights to the property described therein are reserved to the shipper, and that such property shall only be delivered upon conditions which shall protect those rights, a delivery in disregard of those conditions would make the carrier liable. (First Nat. Bank of Toledo v. Shaw, 61 N. Y. 283, 296.) We think, therefore, that the transferee of a bill of lading, stamped upon its face “ not negotiable,” cannot avail himself of the beneficial provision of the Factors’ Act above referred to, but is left to such rights thereunder as he might have had at common law. There is no room in such a case for the application of the doctrine of estoppel for the vendor has not represented that the holder of the bill of lading is the unqualified and absolute owner of the goods described therein. We think it is too narrow a construction to hold that the words “not negotiable” are intended simply to limit the responsibility of the carrier. The case of Dymock v. M., K. & T. Ry. Co. (54 Mo. App. 400), in so far .as opposed to this contention, must be deemed to be decided in view of the peculiar language of the Missouri statute. But if otherwise, then we feel constrained not to follow the same. We think that by the use of these words it was also intended to give notice to such purchasers of the possible rights of the consignor. If it be contended that the effect of this construction will be to hamper commercial transactions and to make the sale of merchandise through the transfer of a bill of [191] lading more difficult, it is sufficient to say that the shipper may refuse to receive a non-negotiablé bill of lading, or by appropriate words may limit their effect so as to have them apply solely to the responsibility of the carrier. While, therefore, the right of stoppage in transitu may be defeated by the indorsement and delivery of an unconditional and unqualified bill of lading to a l)ana fide indorsee for a valuable consideration, without notice of facts on which such right depends (2 Hutch. Carr. [3d ed.] §762; Becker v. Hallgarten, 86 N. Y. 167; Lickbarrow v. Mason, 2 T. R. [Durn. & East] 63; Loeb & Brother v. Peters & Brother, 63 Ala. 243; First Nut. Bank v. Schmidt, 6 Col. App. 216), if the indorsee lias such notice, either directly or by facts sufficient to put him upon inquiry, which inquiry would have disclosed the existence of such right, that right may be exercised even against him. We think that the words “not negotiable” stamped upon the face of the bill of lading were sufficient to put him upon his .inquiry in this regard.
But while this may be true as a general proposition, in the case at bar, for other reasons, the plaintiff cannot maintain this action. Whether the consideration for the plaintiff’s note which he now seeks to have delivered up and canceled was the sale and delivery of the lumber described in the bill of lading, or the surrender and cancellation of the mote and chattel mortgage which he had previously given, the fact remains that on the 31st day of March, 1905, the lumber was discharged upon the steamship company’s dock, ready for delivery, and he ivas then in possession of such evidences of title to the lumber in question and of such, rights to the immediate possession thereof that if he had performed the obligations imposed upon him by his contract of purchase he could have obtained the lumber and defeated the right of stoppage in transitu if any such existed. There is some doubt whether there was competent evidence introduced that such right did exist, or that it was ever exercised; but in any event it is "sufficient to say that there is no claim that there ivas any attempt to exercise such right until some time on the fourth day of April. Between the thirty-first day of March and the fourth day of April the plaintiff had in his possession not only the indorsed bill of lading but a written order from the consignee to deliver the lumber to him 'as its agent. His duty was to pay the freight in cash. There is no pretense that if he had [192] done this the lumber would not have been delivered. In fact twice during that interval his demand for the delivery of the lumber was refused solely upon the ground of his refusal to pay the freight in cash. He cannot be heard to plead his own default as an excuse for failing to perform his contract of purchase. If between the dates mentioned the lumber had been stolen or destroyed by lire, we think it could not have been successfully claimed that the loss should not fall upon him. (Russell v. Carrington, 42 N. Y. 118; Terry v. Wheeler, 25 id. 520; Burrows v. Whitaker, 11 id. 291.) It was through no fault of the defendant, who was the assignee of the consignee’s rights to the contract between it and the plaintiff, that that contract wa^not carried out. On the contrary, the failure to obtain possession of the lumber was due wholly to plaintiff’s breach of that contract. Under such circumstances he cannot invoke the aid of a court of equity to grant him relief.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
Hirsohberg, P. J., Gaynor and Rich, JJ„ concurred; Miller, J., dissented.
Judgment reversed and new trial granted, costs to abide the event.