CHAPTER II. DOCK WARRANTS, DELIVERY ORDERS, FACTORS. As already stated, the proviso to section 47 of the Sale of Goods Act, which substantially reproduced section 10 of the Factors Act, 1889, has the effect of putting all documents of title on the same footing as bills of lading. Such documents include dock warrants, warehouse-keepers' certificates, warrants or orders for the delivery of goods, "and any other "document used in the ordinary course of business as proof "of the possession or control of goods, or authorizing or "purporting to authorize, either by indorsement or delivery, "the possessor of the document to transfer or receive "goods thereby represented" (a). Those documents are generally written contracts, by which the holder of the indorsed document is rendered the person to whom the holder of the goods is to deliver them, and in so far they greatly resemble bills of lading; but they differ from them in this respect, that when goods are at sea the buyer who takes the bill of lading has done all that is possible in order to take possession of the goods, as there is a physical obstacle to his seeking out the master of the ship and requiring him to attorn to his rights; but when the goods are on land, there is no reason why the person who receives a delivery order or dock warrant should not at once lodge it with the bailee, and so take actual or constructive possession of the goods. There is, therefore, a very sufficient reason why the custom of merchants should make the transfer of the bill of lading equivalent to an actual delivery of possession, and yet not give such an effect to the transfer of documents of title to goods on shore. Besides this substantial difference between them, there is (a) Factors Act, 1889, s. 1 (4). the more technical one that bills of lading are ancient mercantile documents which may be subject to the law merchant, whilst the other class of documents is of modern invention, and no custom of merchants relating to them has ever been established. In Spear v. Travers (a), in 1815, before Gibbs, C. J., at Nisi Prius, the special jury are reported to have observed: "that in practice, the indorsed dock warrants and certificates "are handed from seller to buyer as a complete transfer of "the goods"; and there is no doubt that such is the fact, but the observation was no part of their verdict, and if it was meant as an expression of opinion that the transfer of the dock warrant was equivalent to a delivery of possession of the goods, it was quite irrelevant to the case before them. The facts were, that the defendants sold sugar to Meaby, and handed him the dock warrants. Meaby paid them. Then Meaby sold the sugar to Greaves, and handed him the dock warrants, and Greaves accepted drafts for the price. Then Greaves transferred the dock warrant to Spear, who advanced him 2,0007. on the security of it. Then Greaves failed, and his acceptances were dishonoured. The goods all this time stood in the name of the defendants, and they by a false statement to the dock company, that the original dock warrant was lost, obtained a duplicate under which they got the goods. Spear brought trover, and Gibbs, C. J., said: "I think the defendants had no right to stop the goods. They had been paid for them. This is an improper "attempt on their part to assist Meaby. They have not got possession of the goods by the exercise of any right to stop "in transitu, but by a falsehood. I am of opinion, that the plaintiff to whom the certificate was transferred for a "valuable consideration, is entitled to recover." The only point decided in that case was, that Spear had a legal property sufficient as against a wrong-doer, and it is clear that a sale to him would have given him such a property if there had been no dock warrant in existence. There may, perhaps, be 66 66 66 (a) Spear v. Travers, 4 Camp. 251, a difference as to the effect of a pledge without delivery of possession, but that distinction does not seem to have been. made in Spear v. Travers (a). In Zwinger v. Samuda (b), in 1817, the facts were, that Roebuck pledged goods lying in the docks, with Samuda, and the goods were transferred into Samuda's name. Then Roebuck sold the goods to Zwinger. Roebuck applied to Samuda for the dock warrants, and he refused to give them until he was paid off his advances. Roebuck by a false pretence (to which Zwinger was no party) got him to take a worthless cheque in payment of his advances, and to indorse the dock warrant to Zwinger, who thereupon paid Roebuck the price of the goods. As soon as Samuda discovered the trick, he countermanded the delivery order, and seized the goods. Zwinger brought trover and recovered. Sir James Allan Park, at Nisi Prius, seems to have likened the indorsement of dock warrants to that of bills of exchange, and on a motion for a new trial, he seems to have thought they were like bills of lading at least; but Burrough, J., said :—“ I "hope it will be understood that the Court does not proceed upon any thing like a custom in this case. . . . . . The "defendant has been paid for the goods, for Roebuck and "the defendant are one. Who is it who credits "Roebuck but the defendant? We therefore have the 66 "contract of sale and the payment complete, which transfer "the property, and though there also exists in the case "this document, what difference does it make? It does not "invalidate the sale." In Lucas v. Dorrien (c), in 1817, the owner of sugar pledged the dock warrants with the defendants. Some time after the pledge the defendants lodged the dock warrants which had been indorsed to them, and the company assented to the transfer. The next day the pledgor became bankrupt. His assignees brought trover. No question could arise upon the negotiability of the dock warrants, as the delivery (a) Spear v. Travers, 4 Camp. 251, but see ante, p. 420. (c) Lucas v. Dorrien, 7 Taunt. 278. G G was executed before the bankruptcy; but though the point did not arise, both Dallas, J., and Park, J., intimated an opinion that the dock warrants were negotiable by some custom of trade. The In Keyser v. Suse (n), in 1818, the question arose. unpaid seller gave the buyer the dock warrants, and he transferred them by way of pledge, to Keyser the plaintiff. Before Keyser notified this transfer to the dock company, the buyer failed, and the original seller gave notice of countermand to the dock company. Keyser brought trover. Dallas, J., at Nisi Prius, intimated a strong opinion that the transfer of the dock warrant for value put an end to the seller's right to stop in transitu, and directed a verdict subject to leave to enter a nonsuit. The parties, however, compromised the case. It is to be observed that these authorities amount to no more than expressions of opinion at Nisi Prius, by two learned Judges, Park, J., and Dallas, J., which are too little to establish a custom the effect of which is not to put a construction upon the intention of the parties, or the meaning of the documents of title, but to give an effect to them different from that which at common law they would have. There does not seem to be any ground for maintaining that the seller, who has given a delivery order to a buyer from him, is thereby precluded from setting up his rights as against third parties, who may have made advances on the faith of the delivery order. He cannot set up any case inconsistent with the document which he has given to his buyer, and on which he has allowed him to get credit. He cannot therefore deny, that the person to whom he has handed the delivery order had a right to obtain possession. But this is so far from being inconsistent with the case of one who is stopping in transitu, that it is a necessary and essential ingredient in it. He can exercise no right to stop the goods in transitu, unless the buyer had a vested right both of property and possession, defeasible on his insolvency, and (a) Keyser v. Suse, Gow, 58, it is impossible to say that the possession of a delivery order imports any thing more than this. It is therefore submitted, that the indorsement of a delivery order, or dock warrant, has not (independently of the Factors Acts) any effect beyond that of a token of an authority to receive possession. In Jenkyns v. Usborne (a), in 1844, Hunter and Coventry of London, had agreed to purchase a certain quantity of beans from Lloyd of Leghorn. Lloyd consigned to them a much larger quantity, and the plaintiff, who was Lloyd's London agent, agreed to take the excess from them and paid for it. Lloyd had made out a bill of lading for the entire quantity and sent it through the plaintiff to Hunter and Coventry, and they gave to the plaintiff a delivery order addressed to the captain for the excess quantity in these words: "Please deliver to the bearer, 1,442 sacks of beans, "ex Agnes, Hunter and Coventry." The plaintiff then sold the beans to Thomas, and handed him the delivery order. Thomas gave his acceptances in payment, and then pledged the order with the defendant. Thomas stopped payment, and as soon as the ship arrived the plaintiff instructed the captain not to deliver the beans. The captain delivered the beans belonging to Hunter and Coventry to them, and the remainder to the defendant. The plaintiff obtained a verdict, which was upheld. Tindal, C. J., saying, "Thomas was not in "possession of the bill of lading: he had only an order on "the captain to deliver the goods on arrival" (b). In Farina v. Home (c), in 1846, the agent of a foreign consignor warehoused goods and handed the delivery warrant to the defendant, the buyer, who kept it ten months, but eventually refused to pay for the goods. The action was for goods sold and delivered, the defendant contending that there had been no delivery. At the trial the plaintiff obtained a verdict, but the Court of Exchequer granted a new trial, and Parke, B., said: "The delivery and receipt of the warrant (a) Jenkyns v. Usborne, 13 L. J. C. P. 196; 7 M. & G. 678. (c) Farina v. Home, 16 L. J. Ex. 73; 16 M. & W. 119. |