The following opinion was filed February 7, 1882:
OetoN, J.
In this case, reported in 49 Wis., 224, it was held that the amended complaint, on which the action was last tried, was for money had and received, and substantially charged that the money was the property of the plaintiff; and that, notwithstanding the former complaint set out the contract of consignment, the amendment was proper. The action under the amended complaint is not, therefore, based [27]*27upon tbe terms of tbe contract of consignment; and tbe finding that tbe defendant received tbe money to tbe use of tbe plaintiff, altbougb strictly contradictory to tbe contract and tbe direction of tbe package, may not only be true, but warranted by tbe pleadings. When tbe cause was before tbis court, as reported in 44 Wis., 342, it did not appear from tbe evidence that tbe money belonged exclusively to tbe plaintiff, and it did appear that it belonged to Wells and Cartwright jointly, and that, therefore, tbe package was properly directed to them both. But it now appears from tbe evidence, and tbe circuit court has so found, that tbe money was tbe property of tbe plaintiff alone, as alleged in tbe amended complaint; and tbe circuit court rendered judgment in favor of tbe plaintiff alone, virtually bolding that, notwithstanding the package was consigned to Wells and Cartwright jointly, and so directed, tbe company was liable to Wells alone as tbe real and exclusive owner of tbe money, and could not defend against bis right on the ground that tbe package was otherwise directed. Tbis is a very important question, and one which has not before been decided by tbis court, so far as I can find.
In respect to tbe manner in which tbe package was made up and directed by Downs, tbe consignor, tbe evidence is tbe same as on tbe former trial, that tbe package was directed jointly to tbe plaintiff and one Cartwright by tbe partnership designation of “Wells & Cartwright.” There was no assignment by Cartwright of bis apparent interest in tbe package to Wells, and no written order by Cartwright to deliver to Wells, and no offer of any receipt or acquittance from both. There was a verbal demand by Wells, and a verbal statement by Cartwright that Wells owned tbe money. Tbe defendant refused, under such circumstances, to deliver to Wells alone, and insisted also that tbe money bad been subjected to garnishee proceedings against Cartwright. Irrespective of tbe garnishment, tbe first and important question [28]*28arises, whether the plaintiff alone can recover this money upon proof of his individual and exclusive ownership of it, in disregard of the directions of the consignor. The question is the same as if a third person had claimed the package as against the consignees or the person to whom it was directed.
As a general principle it is unquestionably the law, as stated by the authorities cited by the learned counsel of the appellant, “that it is the duty of the company to make personal delivery in accordance with the address on the package; and if it is delivered elsewhere than as addressed, or to the wrong person, the company is liable for the consequent loss.” In this case the delivery of the package to “Wells & Cartwright,’'' the consignees, and to whom it was addressed, or to either of them for both, would have been a proper, and the only proper, delivery under the operation of this general principle. But to this general rule of law there are exceptions, one of which is that the true owner of the property may enforce his right to it as against the consignor or consignees or the carrier, or against the bailor or bailee, whenever he sees fit so to do, before its delivery as directed. His right is paramount to the claim of all others, no matter what may be their relations to each other, unless it is lost, or, for the time being, suspended, by his own conduct of surrender or estoppel. The terms of the contract of consignment, and the directions of the consignor, and the address upon the package, are all subject to thejus tertii whenever it is sought to be so enforced.
The exception, as stated by Browne, Law of Carriers, 221, is, that “the bailee must not give up the goods which actually belong to a third person, if he have notice of the fact, to the person who bailed them to him; ” or, as stated by Mr. Redfield, C. & B., § 318, “ otherwise he would pay in his own wrong if it should turn out that the property was in another, since the contract by construction is with the party entitled to claim the goods; ” or, as it is held in Ogle v. Atkinson, 5 [29]*29Taunt., 759, “ a warehouseman receiving goods from a consignee wbo has bad actual possession of them, to be kept for bis use, may, nevertheless, refuse to redeliver them if they are tbe property of another and the latter prohibits the redelivery.” This statement of the law is disapproved by Angelí on Carr., § 355, based upon an intimation in the late editions of Story on Bailm., differing from the view of that learned author as expressed in his first work on that subject. But this principle is recognized by all the other elementary works on this subject as being established by the great weight of authority.
This change of opinion upon the question by Mr. Justice Stoky is fully considered by Mr. Justice Willes in the leading case of Sheridan v. New Quay Co., 4 C. B. (N. S.), or 93 Eng. C. L., 617, and the first opinion of our learned author is approved. Perhaps it would not be proper to say that Mr. Angelí fully disapproved of this principle; for the reason he gives for differing from the opinion in Ogle v. Atkinson does not really touch the question, for he says: “ But this doctrine seems now to be untenable, and it is said that, in general, an agent has no right to set up an adverse title against that of his principal,” etc. This reason does not militate against the principle above stated, for it is not claimed that the bailor can “ set up,” or, in other words, of - his own motion, claim the property for a third person as the real owner.
Mr. Hutchinson, in his work on Carriers, § 405, says: “ Anri if the carrier or other bailee, while still holding possession of the property, would defend-against the claim of his bailor by sethmg up the paramount title of another, he must at least show that it is done by his authority and in his behalf, otherwise the bailee might avail himself of the title of a third person which might never be asserted by such person, and thus be enabled to keep the property for himself without a shadow of title, when by his contract he had undertaken to return to the bailor or to deliver it according to [30]*30bis directions.” The learned author, after thus admitting the reason which seems to have changed the view of Mr. Justice Story on the main question, proceeds to state the principle as follows: “ Bat while it is not enough that the carrier has become aware of the title or claim of a person other than the bailor or consignee to entitle him to set 'u/p such claim or title against the demand of the latter, yet if he has been notified by the claimant of his title, and has been requested not to deliver the goods according to his undertaking, he would no doubt be permitted, in an action against him by the bailor or consignee, to prove that such claimant was entitled to the goods, and had forbidden their delivery to the bailor, or according to his directions.”
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The following opinion was filed February 7, 1882:
OetoN, J.
In this case, reported in 49 Wis., 224, it was held that the amended complaint, on which the action was last tried, was for money had and received, and substantially charged that the money was the property of the plaintiff; and that, notwithstanding the former complaint set out the contract of consignment, the amendment was proper. The action under the amended complaint is not, therefore, based [27]*27upon tbe terms of tbe contract of consignment; and tbe finding that tbe defendant received tbe money to tbe use of tbe plaintiff, altbougb strictly contradictory to tbe contract and tbe direction of tbe package, may not only be true, but warranted by tbe pleadings. When tbe cause was before tbis court, as reported in 44 Wis., 342, it did not appear from tbe evidence that tbe money belonged exclusively to tbe plaintiff, and it did appear that it belonged to Wells and Cartwright jointly, and that, therefore, tbe package was properly directed to them both. But it now appears from tbe evidence, and tbe circuit court has so found, that tbe money was tbe property of tbe plaintiff alone, as alleged in tbe amended complaint; and tbe circuit court rendered judgment in favor of tbe plaintiff alone, virtually bolding that, notwithstanding the package was consigned to Wells and Cartwright jointly, and so directed, tbe company was liable to Wells alone as tbe real and exclusive owner of tbe money, and could not defend against bis right on the ground that tbe package was otherwise directed. Tbis is a very important question, and one which has not before been decided by tbis court, so far as I can find.
In respect to tbe manner in which tbe package was made up and directed by Downs, tbe consignor, tbe evidence is tbe same as on tbe former trial, that tbe package was directed jointly to tbe plaintiff and one Cartwright by tbe partnership designation of “Wells & Cartwright.” There was no assignment by Cartwright of bis apparent interest in tbe package to Wells, and no written order by Cartwright to deliver to Wells, and no offer of any receipt or acquittance from both. There was a verbal demand by Wells, and a verbal statement by Cartwright that Wells owned tbe money. Tbe defendant refused, under such circumstances, to deliver to Wells alone, and insisted also that tbe money bad been subjected to garnishee proceedings against Cartwright. Irrespective of tbe garnishment, tbe first and important question [28]*28arises, whether the plaintiff alone can recover this money upon proof of his individual and exclusive ownership of it, in disregard of the directions of the consignor. The question is the same as if a third person had claimed the package as against the consignees or the person to whom it was directed.
As a general principle it is unquestionably the law, as stated by the authorities cited by the learned counsel of the appellant, “that it is the duty of the company to make personal delivery in accordance with the address on the package; and if it is delivered elsewhere than as addressed, or to the wrong person, the company is liable for the consequent loss.” In this case the delivery of the package to “Wells & Cartwright,’'' the consignees, and to whom it was addressed, or to either of them for both, would have been a proper, and the only proper, delivery under the operation of this general principle. But to this general rule of law there are exceptions, one of which is that the true owner of the property may enforce his right to it as against the consignor or consignees or the carrier, or against the bailor or bailee, whenever he sees fit so to do, before its delivery as directed. His right is paramount to the claim of all others, no matter what may be their relations to each other, unless it is lost, or, for the time being, suspended, by his own conduct of surrender or estoppel. The terms of the contract of consignment, and the directions of the consignor, and the address upon the package, are all subject to thejus tertii whenever it is sought to be so enforced.
The exception, as stated by Browne, Law of Carriers, 221, is, that “the bailee must not give up the goods which actually belong to a third person, if he have notice of the fact, to the person who bailed them to him; ” or, as stated by Mr. Redfield, C. & B., § 318, “ otherwise he would pay in his own wrong if it should turn out that the property was in another, since the contract by construction is with the party entitled to claim the goods; ” or, as it is held in Ogle v. Atkinson, 5 [29]*29Taunt., 759, “ a warehouseman receiving goods from a consignee wbo has bad actual possession of them, to be kept for bis use, may, nevertheless, refuse to redeliver them if they are tbe property of another and the latter prohibits the redelivery.” This statement of the law is disapproved by Angelí on Carr., § 355, based upon an intimation in the late editions of Story on Bailm., differing from the view of that learned author as expressed in his first work on that subject. But this principle is recognized by all the other elementary works on this subject as being established by the great weight of authority.
This change of opinion upon the question by Mr. Justice Stoky is fully considered by Mr. Justice Willes in the leading case of Sheridan v. New Quay Co., 4 C. B. (N. S.), or 93 Eng. C. L., 617, and the first opinion of our learned author is approved. Perhaps it would not be proper to say that Mr. Angelí fully disapproved of this principle; for the reason he gives for differing from the opinion in Ogle v. Atkinson does not really touch the question, for he says: “ But this doctrine seems now to be untenable, and it is said that, in general, an agent has no right to set up an adverse title against that of his principal,” etc. This reason does not militate against the principle above stated, for it is not claimed that the bailor can “ set up,” or, in other words, of - his own motion, claim the property for a third person as the real owner.
Mr. Hutchinson, in his work on Carriers, § 405, says: “ Anri if the carrier or other bailee, while still holding possession of the property, would defend-against the claim of his bailor by sethmg up the paramount title of another, he must at least show that it is done by his authority and in his behalf, otherwise the bailee might avail himself of the title of a third person which might never be asserted by such person, and thus be enabled to keep the property for himself without a shadow of title, when by his contract he had undertaken to return to the bailor or to deliver it according to [30]*30bis directions.” The learned author, after thus admitting the reason which seems to have changed the view of Mr. Justice Story on the main question, proceeds to state the principle as follows: “ Bat while it is not enough that the carrier has become aware of the title or claim of a person other than the bailor or consignee to entitle him to set 'u/p such claim or title against the demand of the latter, yet if he has been notified by the claimant of his title, and has been requested not to deliver the goods according to his undertaking, he would no doubt be permitted, in an action against him by the bailor or consignee, to prove that such claimant was entitled to the goods, and had forbidden their delivery to the bailor, or according to his directions.”
This statement of the principle embraces the present case most fully, for here the individual claimant, Wells, has not only claimed this package of money as his exclusive property, but has demanded it, and now brought this suit under the amended complaint for it as so much money had and received by the defendant company to his use as the real owner. It is admitted by all of the courts and by the elementary writers, that it becomes a difficult question for the bailee or carrier to determine as to whether he should deliver the consignment or deposit according to the strict terms of his contract, or to the claimant, and that his position is perilous, but he must act at his own risk. It is suggested by the English authorities that he may protect himself by a bill of interpleader, in which the rights of all of the parties may be determined. But, in the present case, no such embarrassment exists, for the claimant, as the real owner, has brought his suit for the express purpose of proving his title and of obtaining the money.
When the liability of the express company to respond to the claim of a third person as the exclusive owner of the property against the terms or directions of the consignment for delivery to another, or for delivery to himself and an[31]*31other, is established, by law, as now seems clear, it follows that such third person should recover in an action against the company upon proof of his ownership. It may be that such judgment would not be a bar against the suit of the other consignee or the consignor, because they are not made parties to the suit, but the evidence of the plaintiff’s title has been furnished to the carrier, which, in an action by either, would be sufficient protection. But the difficulty and embarrassment of the carrier in such case do not operate against the principle that the real owner of the money has a right to recover it before it passes beyond his reach, by delivery to the one who does not own it, although he may be named as the consignee.
This principle obtains in all cases of bailment, and the jus tertii may be enforced even as against the contract of bailment, and, when enforced, will be made available to excuse and protect the bailee from performance or delivery according to its terms; and it is founded in reason, as well as sustained by a great preponderance of authority. There can be no distinction between its application in case the bailor or consignor seeks to reclaim the property from the bailee or carrier and in case the consignee seeks its delivery; for the rights of all the parties to the contract must yield to the paramount right of the real owner of the property.
In Sheridan v. New Quay Co., supra, it is said: “ The defendants were common carriers, and therefore bound to receive the goods for carriage. They could make no inquiry as to ownership. They have not voluntarily raised the question; it was raised by the demand of the real owner, before the defendants had parted with the goods.” Upon the facts and findings in this case, this language is especially appropriate and authoritative.
This doctrine was denied by the earlier authorities, and it was held that if the bailee deliver the goods to the real owner, yet he shall be chargeable to the bailor (Rolle’s Abr., [32]*32606, tit. “Detinue”); and it is yet denied by many respectable authorities, but it is approved by nearly all of the text writers, and by tbe great weight and number of judicial decisions. Hardman v. Willcock, 9 Bing., 382; Cheesman v. Exall, 6 Exch., 341; Wilson v. Anderton, 1 B. & Ad., 450; Dixon v. Yates, 5 B. & Ad., 340; Taylor v. Plumer, 3 M. & S., 562; Pattison v. Robinson, 5 M. & S., 105; Biddle v. Bond, 34 Law J., Q. B., 137; Thorne v. Tilbury, 4 H. & N., 534; Bliven v. Hudson River Railroad Co., 35 Barb., 188; Bates v. Stanton, 1 Duer, 79; Rogers v. Weir, 34 N. Y., 463; Western Transportation Co. v. Barber, 56 N. Y., 544; Floyd v. Bovard, 6 W. & S., 75; King v. Richards, 6 Wharf., 418; Lowremore v. Berry, 19 Ala., 130; Rosenfield v. Express Co., 1 Woods, 131; The Idaho, 93 U. S., 575; American Express Co. v. Greenhalgh, 80 Ill., 68.
It is quite clear, from the evidence on this last trial, that the wagons which were purchased and received by Downs, the consignor, belonged to the plaintiff alone, and that Cartwright had no interest in them, and that the money ought to have been consigned to him alone, instead of to him and Cartwright jointly. After its arrival, the plaintiff, through his agent, claimed this package as belonging to him. exclusively, and the agent of the defendant was informed by both the consignees that the money belonged to the plaintiff alone, and the plaintiff demanded it of- the defendant. The case is, therefore, brought clearly within the above principle, and the plaintiff is entitled to recover, unless something was done which was tantamount to a delivery of the money to Cartwright before this claim of the plaintiff was set up and demand made by him for it as his own property, exclusive of,. Cartwright. This leads to the question whether this money has been subjected to the garnishment of the defendant in cases or on judgments against Cartwright, before this claim and demand of the plaintiff for all of the money as his own, which is the only pretense of its delivery to the consignees.
[33]*33It seems that, when this case was tried before, there was a stipulation of the parties that such proceedings of garnishment were valid and regular, and waiving the record evidence thereof; but before the last trial the circuit court made an order allowing the plaintiff to amend his complaint, and to withdraw that stipulation, and that order was affirmed by this court. 49 Wis., 224. In the opinion of the present chief justice in the case, it was said: “ If the dockets of the justices who rendered these judgments were actually deposited in court, there was no hardship in requiring the defendant to resort to them to prove its defense.” This language would seem to imply that it was supposed that the records deposited in court were sufficient to prove all that was admitted iu the stipulation, as to the validity of the garnishee proceedings by which this money was taken from the defendant; and this court evidently acted upon such supposition, and was not informed otherwise. If it now appears that those records are not sufficient to show what that stipulation admitted, it may be the misfortune and. hardship of the defendant, but it is not perceived how it can now be remedied.
Had this court been informed that such records would not ■show the facts so admitted in the stipulation, the decision in respect to it might have been different; and that such fact did not appear was not the fault of the court. That case is now res adjudieatco and beyond our control, and the present case must be considered as if no stipulation had been made, and the record evidence in the case, which consists exclu•sively of the docket entries of the justice of the peace who entertained jurisdiction of the garnishee proceedings against the defendant, must stand or fall by themselves.' It seemsi •that the papers are lost or cannot be found, and there was no attempt to prove their contents. The entries in the •docket of a justice showing appearance of the defendant would be sufficient to warrant the judgment in ordinary [34]*34common, law causes. But the proceeding of garnishment is special and statutory, and in derogation of the common law. It is a proceeding by which the debtor is compelled to pay another than his creditor, and the right of the creditor is transferred to another against his will; and this can only be done by force of the statute strictly pursued. It is in the nature of a proceeding m rem, by which the plaintiff is sought to be invested with the right to appropriate to the satisfaction of his claim against the defendant a debt due from the garnishee to him. This being the nature of the proceeding, the principle is elementary that jurisdiction of the court therein must affirmatively appear. Robertson v. Kinkhead, 26 Wis., 560; Supervisors of Crawford Co. v. Le Clerc, 3 Pin., 325; In re Booth and Rycraft, 3 Wis., 157.
The late learned and eminent chief justice of this court, in Steen v. Norton, 45 Wis., 412, uses this language in respect to this proceeding: “It is not the policy of the statute to place this anomalous action, like ordinary actions, at the mere discretion of the plaintiff, or to give justices of the peace unqualified jurisdiction of it, as in ordinary actions, where every person can become a plaintiff, have process, and put the justice’s jurisdiction in motion, on demand. The plaintiff in garnishee proceedings, as in attachment as mesne process, replevin, and the like, can put in motion the jurisdiction of the justice only by complying with statutory prerequisites. And the justice takes jurisdiction of the proceeding only upon the plaintiff’s compliance with the preliminaries which the statute makes the condition of jurisdiction. In order to entitle a plaintiff to have recourse to the process of garnishment, in order to confer on the justice jurisdiction to entertain it, he must first make the affida/oif retpuvred by the statute. . . . An affidavit materially defective stands as no affidavit. All proceedings founded on a materially defective affidavit are eoram non judioe. And no appearance, no submission of the garnishee, can operate to-[35]*35waive the defect of jurisdiction. . . . He cannot voluntarily appear and substitute Ms creditor’s creditor for Ms own, because that goes to jurisdiction of the subject, not to jurisdiction of Ms person.”
In most and perhaps all of the cases of garnishment sought to be introduced in evidence in defense of this action, there is an entry by the justice that an affidavit was made and filed. "What the affidavit contained does not appear. The affidavit, being the prerequisite of jurisdiction, must not only appear upon the records, but be strictly sufficient; and,1 not appearing, no jurisdiction whatever is shown in the jus- j tice. This is a fatal objection to the proceedings, and the cir-; cuit court properly refused to admit .them in evidence.
The only remaining questions rest upon the receiving of improper evidence, and the adjustment of the costs.. The testimony received against the objection of the appellant relates to the transaction of the shipment of the wagons,' and the collection bill therefor, forwarded to the agent of the defendant at Marshalltown, Iowa. This evidence was, '• of course, entirely immaterial so far as the subject matter of the action is concerned; for this action is simply for money. had and received by the defendant to the use of the plaintiff, under the last amended complaint; and even the relations of consignor, carrier and consignee have nothing to do with it, except as facts showing the defendant in possession of money belonging to the plaintiff, in connection with other proof that the money belonged to the plaintiff alone, and not to the plaintiff and one Cartwright jointly, as implied by the direction upon the package. Eor the purpose of establishing this last-mentioned fact, the ownership of the wagons before they were shipped, their shipment, and the terms of their delivery to Downs, the purchaser, and the collection bill sent to the agent of the defendant, would be pertinent evidence; and for such purpose at least it was admissible. The question in respect to the costs would seem to be like [36]*36tbe one raised on the former appeal, and then held to be within the discretion of the circuit court.
By the Court.— The judgment of the circuit court is affirmed.
LyoN, J., took no part.