Tilghman, C. J.
This is an action on the case, brought by Robert E. Griffith against Thomas Ingledew, owner of the ship Hope, foi negligence 'in the carriage of a quantity of copper shipped at Liverpool, by A. T. Patterson, to be delivered at the port of Philadelphia, to the plaintiff or his assigns. Although, by the bills of lading signed by Joseph Hall, the master of the ship, the copper was to be delivered to the plaintiff, yet it appeared by the invoice that it was shipped on the account of Patterson. The defendant’s counsel contended, therefore, on the trial, that the action should have been brought by Patterson, and could not be maintained by the plaintiff. A verdict was taken for the plaintiff, the point, whether the action could be supported in the name of the -plaintiff, being reserved for the consideration of the Court. It is merely a technical objection, having no bearing on the merits of the case. There is no opposition of interest between Patterson and the plaintiff. It is immaterial to the defendant to whom the damages are paid ; and if the plaintiff recovers, he is accountable to Patterson for the sum recover[431] ed. Nevertheless, if the action is brought in the wrong name, the defendant has a right to avail himself of this defect, and the Court is bound to protect him. It is somewhat singular, that at this time of day it should be matter of doubt in whose name a suit of this kind should be brought; yet it must be confessed, that it is a subject not void of difficulty. Two questions are to be considered : 1st. Was the legal property of the goods vested in the plaintiff? 2d. If it was, can he support the action ?
1st. I think it will be found, upon a review of the decisions on this subject, that the legal property was vested in the plaintiff, although, no doubt, he held in trust for Patterson, the shipper. In deciding on the legal property, the Court will look to the face of the bill of lading \ but in ascertaining the equitable owner, the invoices, letters of advice, and other collateral evidence, will be resorted to. So it was 'expressly determined in Evans v. Martlett,(A. D. 1697) re-, ported in 1 Ld. Raym. 271. and 12 Mod. 156. There the goods were shipped by A, and consigned, by the bill of lading, to B, although it appeared by the invoice that the shipment was on account of A. The rule laid down by the Court was, “that if goods are, by bill of lading, consigned to A, he is the owner, and must bring the action against the owner of the ship if they be lost; but if the bill be special, to be delivered to A for the use of B, B ought to bring the action ; but if the bill be general to A, and the invoice shews they are on account of B, A ought to bring the action, for the property is in him, and B has only a trust/’ It is proper to take notice, that prior to this case, a question had arisen in Chancery, in the year 1690, between the consignor of goods and the consignee, who had not paid for them. (Wiseman v. Vandeputt, 2 Vern. 203.) The Chancellor referred it to a Court of law to decide, who was the legal owner. It was decided at law in favour of the consignee, and then the Chancellor determined that the equitable property was in the consignor. I do not know that the decision in Evans v. Martlett, has ever been questioned, so far as concerns the right of the consignee to support an action, in cases where no third person has claimed by virtue of an indorsement of the bill of lading. But where the consignee who has not paid for the goods, has indorsed the bill of lading for a valuable consideration, to an innocent person who had no notice of any better title, it has been vfry [432] warmly disputed whether that indorsee could hold the goods against the consignor. That was the case of Lickbarrow v. Mason, in which the Court of King’s Bench decided in favour the indorsee. That decision was reversed in the Exchequer chamber; but the judgment in the Exchequer was reversed, and that of the King’s Bench finally affirmed in the House of Lords. In the memorable argument of Judge Buller in the House of Lords, he says, “ it has been asserted that no case has yet decided, that a bill of lading does transfer the property. But, in answer to that, it is to be obsei v.-d, that all the cases upon the subject, Evans v. Martlett:, Wright v. Campbell, and Caldwell v. Ball, and the common understanding of mankind, preclude that question.” Buller also said, “ that in the case of Wright v. Campbell, Lord Mansfield declared, that since the case of Evans v. Martlett, it had always been held, that the delivery of a bill of lading transferred the property at law” And it is very remarkable, that even Lord Loughborough, who delivered the opinion of the Court of Exchequer chamber, in Lickbarrow v. Mason, expressly conceded, “ that the case of Evans v. Martlett was well determined on the principal point, that the consignee might support an action for the goods, because-he had either a special property, or a right of action on the contract.” After all these decisions, it would seem strange that there should be any doubt of the efficacy of the bill of lading in passing the legal property-to the consignee. But the counsel for the defendant rely with great confidence on the opinion of Lord Ellenborough and the Court of King’s Bench, in the case of Waring v. Cox, 1 Camp. 364, and Coxe v. Harden, 4 East. 216. The point of these cases appears to be, that where, by the bill of lading, the goods are deliverable to the order of the shipper, and the shipper indorses to another without -value, such indorsement does not vest the legal property in the indorsee, but only gives him a right to receive the goods as agent of the shipper. It is to be observed, that in these cases the goods were deliverable to the order of the shipper, and, in that respect, they differ from Evans v. Martlett., where they were deliverable to the consignee who was named in the bill. Unless that distinction be taken, the cases of Waring v. Cox, and Coxe v. Harden, are not to be reconciled to those which preceded them ; but with that distinction, the cases are not contradictory. I am inclined to think, [433] that Lord Ellenborough distinguished between bills of lading where the consignee was named and those in which the goods were deliverable to order, because he denies that the bills of lading are like bills of exchange, in which the property passes by indorsement. “ No decision, (says he, in the case of Coxe v. Harden,) of a Court of law, on the subject of bills of lading, has gone farther than to say, than the assignment of a bill of lading by the consignee, for a valuable consideration, and without notice by the party taking it, of a better title, passes the property in the goods thereby assigned.” Now if that position be confined to the assignee oí a bill of lading, it may be true; but the learned Judge would never have ventured to assert, in the face of Evans v. Martlett, that no Court of law had decided that the bill of lading vested the property in the person to whom, by the tenor of the bill, the goods were deliverable. And I observe that Lawes, in his Treatise on Charter Parties, p.
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Tilghman, C. J.
This is an action on the case, brought by Robert E. Griffith against Thomas Ingledew, owner of the ship Hope, foi negligence 'in the carriage of a quantity of copper shipped at Liverpool, by A. T. Patterson, to be delivered at the port of Philadelphia, to the plaintiff or his assigns. Although, by the bills of lading signed by Joseph Hall, the master of the ship, the copper was to be delivered to the plaintiff, yet it appeared by the invoice that it was shipped on the account of Patterson. The defendant’s counsel contended, therefore, on the trial, that the action should have been brought by Patterson, and could not be maintained by the plaintiff. A verdict was taken for the plaintiff, the point, whether the action could be supported in the name of the -plaintiff, being reserved for the consideration of the Court. It is merely a technical objection, having no bearing on the merits of the case. There is no opposition of interest between Patterson and the plaintiff. It is immaterial to the defendant to whom the damages are paid ; and if the plaintiff recovers, he is accountable to Patterson for the sum recover[431] ed. Nevertheless, if the action is brought in the wrong name, the defendant has a right to avail himself of this defect, and the Court is bound to protect him. It is somewhat singular, that at this time of day it should be matter of doubt in whose name a suit of this kind should be brought; yet it must be confessed, that it is a subject not void of difficulty. Two questions are to be considered : 1st. Was the legal property of the goods vested in the plaintiff? 2d. If it was, can he support the action ?
1st. I think it will be found, upon a review of the decisions on this subject, that the legal property was vested in the plaintiff, although, no doubt, he held in trust for Patterson, the shipper. In deciding on the legal property, the Court will look to the face of the bill of lading \ but in ascertaining the equitable owner, the invoices, letters of advice, and other collateral evidence, will be resorted to. So it was 'expressly determined in Evans v. Martlett,(A. D. 1697) re-, ported in 1 Ld. Raym. 271. and 12 Mod. 156. There the goods were shipped by A, and consigned, by the bill of lading, to B, although it appeared by the invoice that the shipment was on account of A. The rule laid down by the Court was, “that if goods are, by bill of lading, consigned to A, he is the owner, and must bring the action against the owner of the ship if they be lost; but if the bill be special, to be delivered to A for the use of B, B ought to bring the action ; but if the bill be general to A, and the invoice shews they are on account of B, A ought to bring the action, for the property is in him, and B has only a trust/’ It is proper to take notice, that prior to this case, a question had arisen in Chancery, in the year 1690, between the consignor of goods and the consignee, who had not paid for them. (Wiseman v. Vandeputt, 2 Vern. 203.) The Chancellor referred it to a Court of law to decide, who was the legal owner. It was decided at law in favour of the consignee, and then the Chancellor determined that the equitable property was in the consignor. I do not know that the decision in Evans v. Martlett, has ever been questioned, so far as concerns the right of the consignee to support an action, in cases where no third person has claimed by virtue of an indorsement of the bill of lading. But where the consignee who has not paid for the goods, has indorsed the bill of lading for a valuable consideration, to an innocent person who had no notice of any better title, it has been vfry [432] warmly disputed whether that indorsee could hold the goods against the consignor. That was the case of Lickbarrow v. Mason, in which the Court of King’s Bench decided in favour the indorsee. That decision was reversed in the Exchequer chamber; but the judgment in the Exchequer was reversed, and that of the King’s Bench finally affirmed in the House of Lords. In the memorable argument of Judge Buller in the House of Lords, he says, “ it has been asserted that no case has yet decided, that a bill of lading does transfer the property. But, in answer to that, it is to be obsei v.-d, that all the cases upon the subject, Evans v. Martlett:, Wright v. Campbell, and Caldwell v. Ball, and the common understanding of mankind, preclude that question.” Buller also said, “ that in the case of Wright v. Campbell, Lord Mansfield declared, that since the case of Evans v. Martlett, it had always been held, that the delivery of a bill of lading transferred the property at law” And it is very remarkable, that even Lord Loughborough, who delivered the opinion of the Court of Exchequer chamber, in Lickbarrow v. Mason, expressly conceded, “ that the case of Evans v. Martlett was well determined on the principal point, that the consignee might support an action for the goods, because-he had either a special property, or a right of action on the contract.” After all these decisions, it would seem strange that there should be any doubt of the efficacy of the bill of lading in passing the legal property-to the consignee. But the counsel for the defendant rely with great confidence on the opinion of Lord Ellenborough and the Court of King’s Bench, in the case of Waring v. Cox, 1 Camp. 364, and Coxe v. Harden, 4 East. 216. The point of these cases appears to be, that where, by the bill of lading, the goods are deliverable to the order of the shipper, and the shipper indorses to another without -value, such indorsement does not vest the legal property in the indorsee, but only gives him a right to receive the goods as agent of the shipper. It is to be observed, that in these cases the goods were deliverable to the order of the shipper, and, in that respect, they differ from Evans v. Martlett., where they were deliverable to the consignee who was named in the bill. Unless that distinction be taken, the cases of Waring v. Cox, and Coxe v. Harden, are not to be reconciled to those which preceded them ; but with that distinction, the cases are not contradictory. I am inclined to think, [433] that Lord Ellenborough distinguished between bills of lading where the consignee was named and those in which the goods were deliverable to order, because he denies that the bills of lading are like bills of exchange, in which the property passes by indorsement. “ No decision, (says he, in the case of Coxe v. Harden,) of a Court of law, on the subject of bills of lading, has gone farther than to say, than the assignment of a bill of lading by the consignee, for a valuable consideration, and without notice by the party taking it, of a better title, passes the property in the goods thereby assigned.” Now if that position be confined to the assignee oí a bill of lading, it may be true; but the learned Judge would never have ventured to assert, in the face of Evans v. Martlett, that no Court of law had decided that the bill of lading vested the property in the person to whom, by the tenor of the bill, the goods were deliverable. And I observe that Lawes, in his Treatise on Charter Parties, p. 376, 377, first lays down the law exactly as it was ruled in Evans v. Martlett, which, he says, has been recognised and acted upon in all the subsequent cases, and then proceeds to the cases of assignees of bills of lading, decided by Lord Ellenborough at Nisi Prius, and by the Court of King’s Bench, as before mentioned. Upon the whole, then, I think it may safely be affirmed, that between the parties to this suit, it cannot be denied that the legal property was vested in the plaintiff. But can the plaintiff support an action in his own name ? That is the second point.
2d. It is objected that there is no privity of contract, between the ship-owner and the consignee, and that in the present instance, the freight being paid by the shipper, there is a want of consideration to support a promise to the consignee. It is not expressed in the bill of lading by whom the freight is to be paid, but only that it is tobe paid at Liverpool. I presume, however, it was not demandable before the goods w^ere delivered at Philadelphia. It is unnecessary to dbcide, whether the ship-owner could have supported an action for the freight.against the plaintiff, or whether the shipper, (Mr. Patterson,J who paid the freight, might have maintained an action in his own name for the negligent carriage of the goods. The question is, whether the consignee may not support an action ? And for the purpose of this argument, it is to be assumed that the consignee is, the owner of the goods, without [434] taking the equitable title into consideration. It is nothing to the defendant who kremitled in equity, since no conflicting equitable claim has been brought forward; but this action is, *n truth, .for the benefit of the equitable owner. The question, then, is reduced to a single point; If one man, in consideration of value received from another, promises to do a thing for the benefit of a third, Can that third person support an action i And that he can, was long ago decided in the case of Dutton and wife v. Pool, T. Ray, 302. Hornsey v. Dimocke, 1 Vent. 119. Bell v. Chaplain, Hardr. 321, and Starkey v. Mill, Style, 296. In Starkey v. Mill, the father gave goods to his son, in -consideration that he should pay the plaintiff ten pounds;-and Rolle,' C. J. said, there was a plain contract, because the goods were given for the benefit of the plaintiff, though the contract be not between him and the defendant, and he may well have an action upon the case, for here is a promise in law made to the plaintiff, though there be not a promise in fact. So in the case before us, a promise in law may be said to have been made to the plaintiff, that the goods should be carried safely. Indeed, it might almost be said that a promise in fact was made to the plaintiff, for the bill of lading does not expressly make a promise to any body. It runs thus : “ Shipped by A. T. Patterson, to be delivered • to Robert E. Griffith, or his assigns, at Philadelphia.” It would be doing no violence to the instrument, to construe it as a promise made to the plaintiff; and such a promise would clearly be obligatory, though the consideration moved from a third person. I observed before, that Lord Loughborough, who denied that the general property passed to the consignee, was yet of opinion, he might maintain an action, either-by virtue of the special property in him, or on the contract. In actions against carriers on the custom of the country, the general principle is, that the right of action is attached to the property. If A sells goods to B, and delivers them to a carrier by order of B, the right of action against the carrier is in B, because the delivery to the carrier vests the property completely in B. So the delivery of the bill of lading vests the property in the consignee. As to privity, according to the reasoning of Rolle, in Starkey v. Mill, there is no want of it, for there being a promise inlaw to the plaintiff, he must be privy to that promise, being the person to whom it was made.
[435] Upon the whole, I am of opinion, that, by virtue of the bill of lading, sufficient property for the support of this action was vested in the plaintiff, and, therefore, judgment should be entered on the verdict.
Gsbson, J.
It is important to ascertain with precision, the situation in which the plaintiff stood in relation both to the contract and the goods which were the subject of it. The goods were not delivered to the carrier in pursuance of a previous purchase, or order of the consignee ; for they had been purchased the very day before by the consignor, who shipped them on his own account and risk, and paid the freight. From one of the consignor’s letters, may fairly be inferred an authority to the consignee, to liquidate, with the proceeds, a balance arising from former transactions, which the consignor thought (and justly, as appears by the subsequent settlement,) might be against him, and to place the surplus to the consignor’s credit. This, however, gave no interest in the goods themselves ; but only an authority to direct the application of the proceeds. I reject the account settled with the consignor’s agent, and introduced here as the foundation of a lien, because it was stated long after the transaction in question, and even after the commencement of the suit: for if it were competent, as I think it was, to shew indebtedness per se, and not as an acknowledgment of the party, the consequent right of lien would arise too late to vest, at the period material to the question, any other property than what the bill of lading might confer. But lien is out of the question j both because the general balance does not appear to have grown out of transactions between the parties as merchant and factor ; and because it never attaches before actual possession of the subject matter, and cannot, therefore, affect responsibilities which were fixed at the time of the shipment, and not subject to shift on the delivery of the goods, or the happening of any contingency whatever. We have, then, the case of a plaintiff who was a consignee not liable for freight; ' who had not ordered the goods to be delivéred to any carrier ; who was not bound to stand to the risk of transportation ; between whom and the consignor there was, as tp this transaction, no sort of privity or previous negotiation s and who had no beneficial interest in the goods, nor any kind of. property but what the bill of lading might give. Now I will not stop to inquire, whether the bill of lading did not vest the legal [436] interest even before the goods came to hand ; but I will admjt, (at least for the sake of the argument,) that it did; that passeci t|le legal title, and that the consignee might have maintained trover or any action founded on property. But, it is to be remembered, the action here is not founded on property, but contract, and that, therefore, an interest in the property, which does not, (if it ever necessarily does,) draw after it an interest in the contract, will be insufficient. Before examining the case on general principles applicable to all actions of assumpsit, I will advert to the authorities where the action was avowedly founded on the contract, and see whetherdt has, in any case so naked in circumstances as this, been sustained in the name of the consignee. These authorities assert no governing principle ; nor do they point out any circumstance or feature as an invariable criterion of the relative liability of the parties ; but in each, the decision was founded on some circumstance, which is either wantinginthe case before us, or found operating against the right of the plaintiff. The first case is Davis & Jordan v. James, 5 Burr, 2680, which is exactly the case at 'bar, except that the consignor, instead of having actually paid the price of transportation, had only agreed to pay it: (a differential circumstance which certainly does not strengthen the case) and there the consignor was held to be the proper person to sue, although it seems to have been taken for granted, and it was relied on by the defendant’s counsel, that the property had been changed by the delivery to the carrier, and had stood at the risk of the consignee. Yet Lord Mans-field held the right of action to be in the consignor, because he had agreed to pay the carriage; thus expressly discarding the right of property as immaterial, and resting the matter altogether on the agreement; which, from the circumstance of the price of carriage being payable by the consignor, seems to have been considered as made with him exclusively on his own account, and not as an agtnt of the consignee. This case, which, as the Court proceeded on an admission that the whole property, both legal and beneficial, was vested in the consignee, is, therefore, infinitely stronger than ours, will, I think, be found in the sequel, to rest on the soundest principles of legal reason. The next case is Moore and others v. Wilson, 1 Term Rep. 659, and in this, also, the consignor was held to have the right of action, although the vendor had agreed with the vendee to pay the carriage; Mr. Justice Buller, saying [437] that whatever might be the contract between the vendor and the vendee, the agreement for the carriage of the goods >was between the carrier and the former, who was by law alone liable. It is unnecessary to insist on the authority of this case further than as it proves the general principle, that where the consignor contracts for himself, although the property may be, as it undoubtedly was in this instance, changed by the delivery to the carrier, he may sue in his own right: although it must still be admitted, the agreement between the vendor and vendee was a circumstance, of at least some weight, to shew that the vendor contracted only as an agent of the vendee. But it is clear that this would be controlled by an agreement explicitly binding the vendor. Then came Dawes v. Peck, 8 Term Rep. 330, the first case in which the action was held to be properly brought by the consignee. But there the goods were not only delivered to the carrier pursuant to the order of the consignee, but to a carrier specially named by him, between whom and the consignor nothing passed but actual delivery of the goods. The consignor, therefore, could not be said to contract with the carrier on his own responsibility-, for he did not contract at all. The decision was perfectly right, although the reasons given for it have led to much misconception of the true principles of the action ; for here, for the first time, we discover the notion that property in the goods, and not privity of contract, is the criterion. We shall presently see how it arose. Although I admit, in its full extent, that the vesting of the property may, where it otherwise would be doubtful, have a direct influence in ascertaining whether there is privity of contract, yet I deny what Lord Kenyon asserts, that the question must be governed by the consideration, in whom was the title to the goods ; and that too, as he says, because he is the person who sustained the loss by the negligence of the carrier, and is, therefore, the proper person to call for compensation. It is easy to shew that the vesting of the property operates, where it operates at all, for other reasons and in a different manner. Where goods are delivered to a carrier pursuant to an order of the vendee, who has not himself settled the terms, the vendor, where he makes a special agreement with the carrier, without expressly making himself liable, will be considered as having contracted as the agent, and in bqhalf of the vendee j for the order necessarily includes the ancillary power to make such a contract, without which such order could not, perhaps, be exe[438] cuted ; and, therefore, where the carrier does not enter into the contract on the personal guarantee of the vendor, he will be considered as looking to the vendee, between whom and himself there is sufficient privity of contract and mutuality of remedy to give either an action on the agreement. Now, in every case of this kind, where the goods are delivered to the agent and servant of the vendee, and by his order, they will be at his risk; because by delivery under such circumstances the property is changed; and so far, therefore, as there is a necessary coincidence of circumstances between property in the goods and interest in the contracts, the former will be - an excellent criterion of the latter. But there may be cases where it will furnish no test at all, where the carrier accepts the goods on the exclusive re¿ sponsibility of a vendor who expressly contracts for himself. There, although the goods should be delivered pursuant to the order of the vendee (in which case the property would be changed) it is clear the express contract would be available only between the immediate parties to it; for between the carrier and the vendee there would be neither privity nor mutuality. In such a case, then, the latter would have property in the goods without an interest in the contract. This, however, would not leave him without a remedy even as respects the carrier, against whom he might, by the custom, have a special action on the case for a tort, founded on the right of property; in which case, the consignor could recover, if at all, only nominal damages on the contract.. With these remarks on Dawes and Peck, I pass to Dutton v. Solomons on, 3 Boss. & Pull. 582, in which, although the judgment was not on the point in question, Lord Alvahxy says, that if a tradesman order goods to be sent by a carrier, although he names none in particular,delivery to the carrier is equivalent to delivery to the purchaser himself, who, from that moment, is charged with the risk, and alone can bring an action for any injury to them. In this, as a general rule, I perfectly concur. Then we come to Potter v. Lansing, 1 Johns. 215, where the goods were shipped “ for account and risk of the consignee, he paying freightas was expressly stated in the invoice and bill of lading. It does not expressly appear that the goods had been delivered by order of the consignee ; but that fact, (on which the correctness of the decision most certainly depends,) seems to have been assumed by the Court; for Tompkins, J., in delivering the opinion of the majority, [439] goes on the ground that delivery to the carrier, had divested the property of .the consignor, and cast the risk on the consignee ; an effect that could be produced only by a delivery to order. The Court, therefore, proceeded on a case, either real or supposed, in which the goods were shipped by order of the consignee, and on his account and risk, he paying freight; and it is, therefore, by no means surprising that the consignee’s right of actibn was supported. Our case, however, is in every material circumstance the reverse ; for the goods were shipped -without order, and expressly for the account and risk of the consignor, who also paid the freight. The last case is Sanderson’s executor v. Lamberton, 6 Binn. 129.; and there it was held, that although there was neither privity nor connection between the person who delivered the goods to the carrier, and the person to whom they were to. be delivered, yet as the former undertook that the latter should pay the carriage on delivery, the latter, by bringing the action, made himself a party to the contract. This is one of the few decisions in Mr. Binney’s Reports, from which my judgment inclines to dissent. The responsibilities of the parties must, I apprehend, be fixed at the time of the contract; for there would be no mutuality if the consignee could consider himself bound or not at his own election, and an after agreement would, therefore, come too late. Both parties to a contract, or neither,must be bound when it isentered into ; and to this I know of no exception, but the case of insurance effected without instructions, in the name of all interested in the subject matter ; and there á party in interest may either adopt the policy and recover in the event of a loss, or, in the event of the ship’s safe arrival, avoid the premium and choose to say he.stbod his own insurer. But in Hagerdon v. Oliverson, 2 Maule & Selwyn, 490, Lord Ellenborough explicitly declares this to be an anomaly, and rests the decision entirely on precedent. In that case, too, it it was argued by counsel with great force, that the doctrine of ratihabitio is applicable only to torts; but I admit I can find no case where the point has been established by adjudication.