The transaction between Foster & Co. and the plaintiffs was not in form or in effect a mortgage so that, as claimed by the defendant, it must by recorded in order to have validity; it was a transfer and delivery of the property. The clear intent of the parties was that the property in the corn should pass to the plaintiffs as security for the advance made by them. Whether they took an absolute title with a liability to account for the proceeds or a title as pledge is not material, as all the authorities show that they took either a general or a special property in the corn which entitles them to recover of any one who wrongfully converts it. DeWolf v. Gardner, 12 Cush. 19; Cairo National Bank v. Crocker, 111 Mass. 163; Greenbay National Bank v. Dearborn, 115 Mass. 219; Chicago National Bank v. Bailey, 115 Mass. 228; Hathaway v. Haynes, 124 Mass. 311; Gibson v. Stevens, 8 How. 384; Dows v. National Exchange Bank, 91 U. S. 618. Numerous other authorities might be cited. The delivery of the bill of lading was in law the delivery of the property itself, and it was not necessary that the plaintiffs should take immediate possession of it upon its arrival, or that they should give notice to the carrier or warehouseman who held the property. Farmers & Mechanics' National Bank v. Logan, 74 N. Y. 568, The Thames, 14 Wall. 98; Meyerstein v. Barber, L. R., 2 C. P. 38, 661; L. R., 4 H. L. 317. It is true that the plaintiffs might by their subsequent laches defeat their right to assert their title. If they permitted the property to remain under the control of their assignors, and held them out to the world as having the right to deal with the property, they might be estopped from setting up their title. But the authorities are decisive to the point that by the transfer from Foster & Co. they took a title as purchasers of the corn which entitles them to maintain this action, unless they have lost the right by their laches, upon proving a conversion by the defendant.

The next question is whether there was a conversion by the defendant. It is settled that any misdelivery of property by a carrier or warehouseman to a person unauthorized by the owner or person to whom the carrier or warehouseman is bound by his contract to deliver it, is of itself a conversion which renders the bailee liable in an action of tort in the nature of trover without regard to the question of his due care or negligence. Hall v. Boston & Worcester R. R., 12 Allen, 439. By the bill of lading and by the way bill, which was sent to the defendant in the place of a duplicate bill of lading, the corn was to be delivered to the order of Gallup, Clark & Co. The defendant contracted to deliver it to such persons as Gallup, Clark & Co. should order, and could not without violating their contract deliver it to any other person. By delivering it to Foster & Co. therefore the defendant became liable for a conversion, unless it shows some valid excuse. Newcomb v. Boston & Lowell R. R., 115 Mass. 230; Alderman v. Eastern R. R., 115

Mass. 233. The record before us does not show any lacles or any act of the plaintiffs which can excuse or justify this misdelivery. They did not hold Foster & Co. out to the world or to the defendant as one entitled to control the property. Indeed it is admitted that the defendant did not know until long after the delivery that the plaintiffs had any connection with the property, or with Foster & Co. The plaintiffs did nothing to mislead the defendant. They had the right to rely upon the facts that they held the bill of lading and that according to the ordinary course of business the goods could not be obtained except upon its production. The defendant saw fit to deliver them to Foster & Co. without requiring them to produce the bill of lading, relying upon their representation that they were the holder of it. It took the risk of their truthfulness, and cannot now shift that risk upon the plaintiffs, who have done nothing to mislead or deceive the defendant. We are for these reasons of opinion that the defendant is liable for the value of the corn described in the first count of the declaration.

In the case of the wheat there are some facts proved at the trial which lead us to a different result. By the bills of lading and the way bills the wheat was consigned to John H. Foster & Co., at Boston. The fact that they did not contain the words "or order" or other equivalent words so as to make them upon the face quasi negotiable, is not important. The bill of lading was yet the representative of the wheat, and its transfer and delivery to the plaintiffs vested in them the title to the property as against the consignees and their creditors. But the presiding justice of the Supreme Court who heard the case has found as a fact "that it was the custom of the railroads terminating in Boston to deliver to the consignee, goods billed straight' as it is termed, that is, billed to a particular person, not to order, when they were satisfied of the identity of the consignee, without requiring the production of the bills of lading, and to rely upon the way bills to determine the consignee and the form of the consignment."

Under this finding we must assume that the custom existed and that the plaintiffs knew or ought to have known of it. It ma terially affects the relations and rights of the parties. Although it does not affect the question of the title of the plaintiffs as against Foster & Co., it qualifies the duties of the defendant as to the delivery of the wheat. It justified the defendant in delivering it to Foster & Co., the consignees, at least at any time before notice that the property had been transferred. Under it there was no laches in not calling for the bill of lading, and in thus delivering there was no violation of any of the terms of its contract express or implied. Such delivery therefore was not a misdelivery which would amount to a conversion, and render the defendant liable to the plaintiffs. We are therefore of opinion that the defendant is not liable for the value of the wheat sued for.

The only remaining question is as to the amount of the damages the plaintiffs are entitled to recover for the conversion of the corn. As a general rule, the measure of the damages in trover is the market value of the goods converted, with interest from the date of the conversion. This rule is, however, subject to modification when the plaintiff has only a special interest or property in the goods and is not answerable over to any person for the balance of the value. Fowler v. Gilman, 13 Met. 267; Briggs v. Boston and Lowell R. R., 6 Allen, 246; Peebles v. Boston and Albany R. R., 112 Mass. 498. The object of the law is to give the plaintiff compensation or indemnity for the injury he sustains by the conversion. In the case before us, at the time of the conversion, the goods were subject to a lien for the freight. The only interest which the plaintiffs had in them was their market value less the freight. This interest was not increased by the fact that the plaintiffs and Foster & Co. had agreed as between themselves that the latter should pay the freight. The payment by Foster & Co. cannot be considered as a payment by the plaintiffs. It was a payment by themselves as a part of their scheme of fraud. If the plaintiffs can recover the full value of the corn they are positive gainers by the fraud and will receive more than the value of their interest at the time the fraud was committed. Under the circumstances of this case, we are of opinion that it is just and equitable that the reclamation by the defendant from Foster & Co. of a part of the proceeds of the fraud should inure to the benefit of the defendant.

Upon the whole case, therefore, the plaintiffs are entitled to recover a sum equal to the market value of the corn described in the first count less the freight, with interest thereon from the time of the conversion. If the parties cannot agree upon the amount the case must be sent to an assessor to determine the damages upon

this basis.

Judgment accordingly.

FORBES ET AL.

v.

FITCHBURG R. R. Co.

(Advance Case, Massachusetts. 1882.)

In shipping goods from Chicago to Boston the usual course of trade is to forward the goods by vessel on the Great Lakes as far as Buffalo, and from thence to transport them by rail to Boston. A bill of lading is given to the consignor at Chicago by the owners of the vessel, drawn to the consignor's order at Buffalo. At Buffalo when the goods are put in the cars, the railroad company gives a memorandum receipt reciting that the vessel's bill of lading is still outstanding, is to be regarded as transferring the property, and is alone to be used in procuring the goods from the railway company. Goods

being forwarded in accordance with the above-mentioned course of trade, the vessel's bill of lading was transferred by the consignee, to whom it had been endorsed prior to the arrival of the goods in Boston. The goods were, however, delivered to the consignee by the railway company without demanding the bill of lading. In an action by the transferee of the bill against the company for the misdelivery, Held, that said bill was not functus officio at Buffalo, but was effectual to transfer the property in the goods to plaintiff, and that therefore he was entitled to recover.

A railroad company transporting grain deposited the same in accordance with the custom of trade in a grain elevator at the point of destination, where it was mixed with other grain of like quality. Subsequently on demand it delivered to the consiguce of such grain an equal quantity to that transported, but without demanding the bill of lading, which was drawn to the consignee's order. An indorsec of said bill prior to the arrival of the grain brought trover against the railway company for a misdelivery. Held, that the plaintiff was entitled to recover.

Where a case is submitted upon an agreed statement of facts the parties waive any objection to the form of the pleadings not expressly reserved.

MORTON, C. J.-This case is governed by the case of Forbes". Boston & Lowell Railroad, ante. The controlling facts are nearly identical with those existing and applicable to the first count in that case. It is necessary, therefore, to discuss only those features of the present case which are claimed by the defendant to distinguish it from the former case.

By the bills of lading in this case the grain was shipped by a vessel at Chicago, deliverable to the order of Gallup, Clark & Co., at Buffalo. The defendant contends that upon the arrival of the vessel at Buffalo the bill of lading became functus officio. If this were so it would not affect the result, because the bill of lading was transferred before the vessel arrived at Buffalo. But it is clear that upon the facts agreed the bill of lading remained as the representative of the property at least until the transit was completed by the arrival at Boston. By the usual course of business in forwarding grain from Chicago to Boston, when the shipment is partly by water and partly by rail, a bill of lading is issued by the vessel at Chicago; the grain is transferred from the vessel to the cars at some intermediate point, usually at Buffalo, and the railroad company issues a receipt similar in form to those issued in this case. This receipt contains a memorandum like the one in this case, "ex. sch. Gallatin," which indicates "that the grain was received from a vessel arriving at Buffalo from Chicago, and that a bill of lading has been issued by that vessel and is outstanding. The vessel's bill of lading is regarded as transferring the property and that alone is used in procuring the goods from the carrier." It is clear that in such cases the parties contemplate a continuous transit from Chicago to Boston, and that the bill of lading is regarded as the representative of the grain during the whole of this transit. So far as any question in this case is concerned, the bills of lading have the same effect as if they had been bills from Chicago to Boston.

Upon the arrival of the grain in question at Boston, a part of it, according to the usual course of business, was stored by the defendant in its elevator, where it was mixed with other grain of a like quality. In such a case the owner of the grain thus stored is entitled to draw out an equivalent quantity of grain of the same quality, but not to receive the identical grain which he put in. The defendant contends that for this reason an action of tort in the nature of trover cannot be maintained. It is doubtful whether this ground is open to the defendant, the rule being that by submitting a case upon an agreed statement of facts, the parties waive any objection to the form of the pleadings not expressly reserved. But if this is otherwise, the objection cannot be sustained. When the grain was put in the elevator, the plaintiff and the other owners of grain stored therein become tenants in common in proportion to their respective interests. Cushing v. Breed, 14 ̊ Allen, 376; Keeler v. Goodwin, 111 Mass. 490; Dows v. National Exchange Bank, 91 U. S. 618. And a tenant in common of personal property may maintain trover against a stranger who converts the property or his interest in it. "Bryant v. Clifford, 13 Met. 138; Goell v. Morse, 126 Mass. 480. At the time of the delivery to Foster & Co. the plaintiffs were the owners of the grain, entitled to the immediate possession. Such delivery was a separation of their grain from tlie bulk of the grain, and a misappropriation of it, and was a conversion for which the appropriate remedy is an action of tort in the nature of trover.

We are unable to see that this case can be distinguished in principle from the case of Forbes v. Boston & Lowell Railroad, and the result is that the plaintiffs are entitled to recover the market value of the grain, less the freight, storage and other expenses, with interest from the date of the conversion. If the partics cannot agree upon the amount, the case must be sent to an assessor to determine the amount of the damages upon this basis.

Judgment accordingly.

The above cases involve a most important question of law in regard to carriers, the law of misdelivery. It is proposed in the following note to collect the leading American cases on this point.

A misdelivery of goods by a carrier equally with an entire failure to deliver them is held a conversion on his part for which he is responsible. Bowlin . Nyc, 10 Cush. 416; Devereux v. Barclay, 2 B. and A. 702; Hawkins . Hoffman, 6 Hill, 586; Rosenfield v. Express, 1 Woods, 131; Winslow Ward & Co. v. Vermont and Mass. R. Co., 42 Vt. 700; Newhall v. Central Pac. R. Co., 51 Cal. 345.

Where, therefore, a railroad company stored certain barrels of flour at the point of destination, and upon presentation of an order from the consignee gave in exchange flour checks, it was held that it was guilty of a conversion in having subsequently delivered a portion of the flour to other persons than those holding the checks. Hall v. Boston and Worcester R. R., 14 Allen, 439.

The carrier is bound to a very strict measure of responsibility to scck out