The opinion of the court was delivered by: FOLLMER
This is a civil action brought against the defendant railroad by the consignee named in a bill of lading (covering an interstate shipment) issued by the defendant on February 19, 1948, for the recovery of the purchase price of ten tractors. The gist of the complaint is that plaintiff had paid to its seller the purchase price of the tractors in reliance upon a bill of lading issued by the defendant, although in fact no tractors were ever delivered to defendant because of a fraudulent devise employed by the seller. The defendant never received the tractors for shipment and the suit is based in its entirety upon Section 22 of the Federal Bill of Lading Act.
Both plaintiff and defendant have moved for summary judgment under Rule 56 of the Rules of Civil Procedure, 28 U.S.C.A.
All of the relevant facts were stipulated and submitted to the Court in an agreed statement and are substantially as follows:
1. Plaintiff is a corporation organized and existing under the laws of the Commonwealth of Kentucky, and has its principal place of business at 328 East Vine Street, Lexington, Kentucky.
2. Defendant is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, and has its principal place of business at Reading Terminal, Philadelphia, Pennsylvania.
3. On or prior to February 16, 1948, plaintiff ordered from Haney Corporation, of Philadelphia, Pennsylvania, ten Haney Bull Terrier Tractors at a total cost of $ 5,215 f.o.b. Philadelphia, Pennsylvania, and paid to Haney Corporation a cash deposit of 25% of the purchase price, or $ 1,303.75. On February 19, 1948, Haney Corporation issued its invoice to plaintiff, billing plaintiff for ten tractors less credit for the deposit aforesaid.
5. On or about February 16, 1948, the Haney Corporation of Philadelphia, a manufacturer of farm implements, requested of defendant that a boxcar be placed upon the private siding of Haney Corporation serving its warehouse at 2409 S. Water Street, Philadelphia, for loading by said Haney Corporation as shipper. Pursuant to said request defendant on February 19, 1948, placed boxcar C&O 3247 on said private siding and notified Haney Corporation that the car was available for loading. Haney Corporation thereupon typed and delivered to defendant a bill of lading upon a uniform nonnegotiable straight bill of lading blank prescribed by the Interstate Commerce Commission, together with two carbon copies, one of which was designated as the Shipping Order and one as the Memorandum of filing copy.
6. The agent of Haney Corporation represented to defendant that the shipment described in said bill of lading was in the process of being loaded in car C&O 3247, and that the loading would be completed on February 19, 1948, and requested defendant to issue to Haney Corporation the original of said bill of lading, to enable Haney Corporation as the shipper named in the bill to forward the car that night. Defendant's agent thereupon stamped the original and each copy of said bill of lading with the notation 'Loaded and Counted by Shipper.' This notation, however, was only partially legible on the original bill of lading. Said bill of lading was thereupon signed in said form by defendant's agent, W. R. Hazelton, and issued to the agent of Haney Corporation.
The bill of lading attached to the complaint as Exhibit No. 2 is not in the form in which it was issued by defendant, but was altered and enlarged by Haney Corporation after issue and without the participation, knowledge or consent of defendant, in the following respects:
(a) There was added to the body of the bill in typewriting the words 'important Deliver only upon receipt of the original bill of lading properly indorsed.'
(b) There was added to the reverse of the bill in handwriting a purported endorsement in blank by the shipper.
(c) There was added to the body of the bill in typewriting the number '9390' under the heading 'Agent's No.' on the face of the bill to correspond with a fictitious 'waybill number' communicated by Haney ...