The sole question for decision here is whether Section 22, as amended, of the Federal Bill of Lading Act makes the carrier liable to the consignee for its act in issuing a straight bill of lading purporting to cover a shipment of ten tractors when in fact no tractors had then been or ever were delivered to the carrier. Section 22, as amended, of the Bill of Lading Act, 49 U.S.C.A. § 102, reads as follows: 'Liability for nonreceipt or misdescription of goods. If a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of ,hose actual or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to (a) the owner of goods covered by a straight bill subject to existing right of stoppage in transit or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, or upon the shipment being made upon the date therein shown, for damages caused by the nonreceipt by the carrier of all or part of the goods upon or prior to the date therein shown, or their failure to correspond with the description thereof in the bill at the time of its issue.'
Section 29, 49 U.S.C.A. § 109, provides: ' * * * A straight bill can not be negotiated free from existing equities, and the indorsement of such a bill gives the transferee no additional right.'
It appears from the agreed statement of facts that the order for the ten tractors was placed with Haney Corporation by plaintiff on or before February 16, 1948, at a total cost of $ 5,215.00 f.o.b. Philadelphia, and that plaintiff paid to Haney a cash deposit of 25% of the purchase price or $ 1,303.75, before there was any transaction with defendant.
Clearly, on the facts as stated, plaintiff is not entitled to judgment for the cash deposit of $ 1,303.75.
As to the balance of the claim, I am of the opinion that the question is a narrow one and may be simply stated as follows: Has the plaintiff here brought itself within the scope of those who may recover on straight bills of lading?
Plaintiff contends that the facts as agreed upon establish its claim by bringing it within the purview of paragraph (a) of Section 22, as amended, of the Bill of Lading Act. It then sets forth, inter alia, certain requirements of the statute as (a) issuance of bill of lading by carrier's authorized agent; (b) ownership by plaintiff of goods covered by bill of lading. Without the existence of both of these essential prerequisites the plaintiff's case must fail.
Defendant does not deny either the issuance of the bill of lading nor the authority of its agent to sign the same.
I feel however, that the second prerequisite has not been met. The plaintiff strenuously contends that it was the owner of the tractors described in the bill of lading. Defendant, on the other hand, contends that the original agreement between plaintiff and the Haney Corporation was an order for ten tractors which were unascertained at the time of the order and that therefore the contract was merely executory.
While it is true the bill of lading merely refers to ten Haney Bull Terrier Tractors, Haney Corporation, the shipper, did on February 19, 1948, the same date as that carried on the bill of lading, issue to plaintiff an invoice in which the ten tractors were identified both as to tractor number and engine number. However, of far greater significance to my mind is the fact, clearly apparent from the agreed statement of facts, that the parties intended that the goods ordered should be appropriated to the contract by the delivery of ten tractors to the common carrier at Philadelphia, Pennsylvania, by Haney Corporation. This conclusion is inescapable because of the terms of the contract under which plaintiff was to pay the balance of purchase price upon receipt of a draft with bill of lading covering ten tractors attached. From the agreed statement of facts it is apparent that the law of Pennsylvania applies as to the interpretation of the contract, and the law in Pennsylvania is well established that where the contract of sale requires the seller to deliver the goods in a certain manner, title to the goods does not pass to the buyer even though the goods have been appropriated and set aside if they have not been delivered in the manner specified.
Under the circumstances I am of the opinion that no title ever passed to the plaintiff.
Conclusions of Law.
1. The down payment of $ 1,303.75 having been made before any transaction was had with the defendant, plaintiff is not entitled to judgment in that amount.
2. Title to the goods never passed to the plaintiff.
3. Plaintiff's motion for summary judgment is denied.
4. Defendant's motion for summary judgment is granted.