Sanderson v. Banks. CARRIERS. [Cuyahoga (8th) Circuit Court, October 26, 1908.] Marvin, Winch and Henry, JJ. G. C. SANDERSON V. W. A. BANKS Co. Bill of Lading Attached to Draft not Conclusive as to Reservation of When a shipper under instructions from the buyer attaches a bill ERROR. D. B. Carpenter, for plaintiff in error. White, Johnson, McCaslin & Cannon, for defendant in error. WINCH, J. This was an action for the value of a carload of oranges alleged to have been sold and delivered to the defendant at an agreed price. The answer was a general denial, but the whole controversy arose over the question of delivery. The oranges never reached the defendant. The plaintiff introduced evidence tending to prove that the contract was for a carload of oranges at $1.60 per box f. o. b. cars, St. Petersburg, Florida; that the oranges were inspected by defendant's agent, packed and put on board a car, with instructions to the carrier to forward them to the defendant at Cleveland. That a bill of lading was made out naming defendant as consignee, and, upon telegraphic instructions from the defendant, this bill of lading was attached to a draft drawn upon the defendant and deposited with a bank to be forwarded to Cleveland for collection. The draft was never paid. What became of the oranges was not shown. Upon this state of the evidence, at the close of plaintiff's case, the trial judge directed a verdict for the defendant. This action, we are informed by Cuyahoga County Circuit. defendant's counsel, was based upon the decision in the case of Emery's Sons. v. National Bank, 25 Ohio St., 360, but as we read it, said case appears to be a clear authority for reversal of this judgment. It must have been held by the trial judge, as it was argued by counsel for defendant in this court, that the act of plaintiff in attaching the bill of lading to the draft, which he discounted at the bank, was conclusive evidence that the consignor reserved to himself the jus disponendi of the goods shipped, until the draft should be paid. If such effect is not to be given to this act, the case cited is authority for a submission to the jury for determination of the intention of the consignor. With this point in mind, let us read the first four and the sixth paragraphs of the syllabus of the case cited: "1. By the rules of commercial law, a bill of lading is regarded as the symbol of the property therein described; and in the case the shipper reserve to himself the jus disponendi, he can transfer the title, at any time before the property is delivered by the carrier to the consignee, as effectually by the delivery of the bill of lading as by the delivery of the property itself. "2. If the consignment be made by a vendor to a vendee, the question whether the consignor reserved the jus disponendi is one of the intention, to be gathered from all the facts and circumstances of the transaction. "3. If the right to control the property be reserved by the shipper, the carrier must be regarded as his agent; and if not, then as the agent of the consignee. "4. On such question of intention, the terms of the bill of lading are to be taken as admissions of the consignor, and are entitled to great weight, but are not conclusive. "6. Where a vendor of goods consigns them to the purchaser, taking a bill of lading from the carrier, and intending to reserve the right of control over them, at the same time draws upon the purchaser for the price, and delivers the bill in exchange, with the bill of lading attached, to an endorsee, for a valuable consideration, the consignee, upon receipt of the goods, takes them subject to the right of the holders of the bill of lading to demand payment of the bill of exchange, and can not Sanderson v. Banks. retain the price of the goods on account of a debt due to him from the consignor." In the case before us it was the defendant who directed that the bill of lading be attached to the draft and for his convenience in making payment that it was done. There was no previous course of dealing between the parties as there was in the case cited. Indeed, we think a jury might well come to a conclusion contrary to that arrived at by the trial judge. At any rate he should have submitted the case to the jury under proper instructions for it to determine from "all the facts and circumstances of the transaction" whether it was the intention of the plaintiff to reserve the jus disponendi when he attached the bill of lading to the draft. For error in directing a verdict, the judgment is reversed. ALIENS MANDAMUS-NATURALIZATION. [Cuyahoga (8th) Circuit Court, November 16, 1908.] Marvin, Winch and Henry, JJ. STATE, EX REL JOHN GALLAGHER, V. CHARLES P. SALEN, CLERK. A writ of mandamus will not lie to require the clerk of the ERROR. Myler & Turney, for plaintiff in error. WINCH, J. This was an application for a writ of mandamus to compel the clerk of the common pleas court to issue citizenship papers to the relator. Cuyahoga County Circuit. A demurrer to the petition being sustained, the case is here on error. The petition alleges that the relator "is a male alien of over the age of twenty-one years and an honorably discharged soldier of the national guard of the state of Ohio." By this allegation it was sought to bring the relator under the provisions of Sec. 2166 U. S. Stat., which reads as follows: "Any alien of the age of twenty-one years, and upwards, who has enlisted or may enlist, in the armies of the United States either regular or the volunteer forces, and has been or may be hereafter honorably discharged, shall be admitted to become a citizen of the United States, upon his petition, without any previous intention to become such; and he shall not be required to prove more than one year's residence within the United States previous to his application to become such citizen; and the court admitting such alien shall, in addition to such proof of residence and good moral character, as now provided by law, be satisfied by competent proof of such person's having been honorably discharged from the service of the United States." It is claimed that a member of the Ohio National Guard is enlisted in the volunteer forces of the United States, by virtue of the provisions of the Dick law, so-called. The judgment of the common pleas court appears to be sustainable upon any one of three grounds: First. Under the Dick law, only those aliens who have declared their intention to become citizens of the United States may be members of the militia of the several states subject to call as forces of the United States (see 10 Fed. Stat. Ann., 227), and Gallagher bases his application for naturalization upon his service in the state guard for the sole purpose of exempting himself from the requirement that he first declare his intention to become a citizen. Second. The petition fails to show that the relator has resided within the state of Ohio for one year and is of good moral character, "as now provided by law," in Sec. 2165, U. S. Stat. Third. The writ is asked to be directed to the clerk of the court, while he has no authority to issue naturalization papers until the court to which application is made is satisfied by com State v. Salen. petent proof that the alien is eligible to citizenship. There is no allegation that any court has been so satisfied. Judgment affirmed. Marvin and Henry, JJ., concur. MALICIOUS PROSECUTION. [Cuyahoga (8th) Circuit Court, November 16, 1908.] Marvin, Winch and Henry, JJ. *C. F. ADAMS Co. v. CHAUNCEY ROBERTSON. 1. Action Against Corporation for Malicious Prosecution, Plaintiff May Testify Connection with Company In Other States. In an action for malicious prosecution against a corporation, it is not error to permit the plaintiff to testify as to his connection with the company in other states, notwithstanding the prosecuting witness, the managing agent of the company, had no knowledge of such connection. 2. Binding Accused to Grand Jury not Probable Cause. Proof that the examining magistrate bound the accused over to the grand jury, is not conclusive evidence of probable cause. Ash v. Marlow, 20 Ohio 119, followed, but doubted. 3. Punitive Damages Recoverable in Malicious Prosecution. In an action against a corporation for malicious prosecution, punitive damages may be allowed. [Syllabus by the court.] ERROR. Albert Lawrence, for plaintiff in error. C. W. Noble, for defendant in error. WINCH, J. This was an action for malicious prosecution, plaintiff in error being defendant below. Several errors are alleged to have been committed at the trial, which we shall examine in their order. The defendant below is a corporation. One H. W. Lewis was its managing agent and swore to the affidavit upon which Robertson was arrested upon a warrant issued by a magistrate. *Affirmed, no op., C. F. Adams Co. v. Robertson, 82 O. S. 400. |
