Fitch, Cornell & Co. v. Atchison, Topeka & Santa Fe Railway Co.

Headnote

Fitch, Cornell & Co. v. Atchison, T. & S. F. Ry. Co., 170 App. Div. 222 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 10, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. This action was brought by the plaintiff against the defendant, a railroad corporation, for issuing a bill of lading wherein it was stated that 150 tubs of butter and 250 crates of eggs had been received for shipment to the plaintiff in New York by the defendant, when in fact no such property had been received for shipment. There was a draft drawn on plaintiff with this bill of lading attached and upon receipt of said bill of lading the plaintiff advanced the sum of $3,000, solely depending upon the genuineness of said bill of lading. The trial court held “ that since the passage of the so-called Carmack amendment the liability of the carrier upon interstate bill of lading, or the validity of any such bill of lading, is governed by the" said amendment as interpreted by the Supreme Court of the

United States. (Adams Express Co. v. Croninger Co., 226 U. S. 491 .) The bill of lading in this case contained the clause: ‘ Agents have no authority to issue move than one original bill of lading and only for or to cover goods actually received for transportation.’ It appears from the proof here that the goods recited in the bill of lading were not actually received. The rule of apparent scope of authority which obtains in this state does not apply, but the common law as interpreted by the Federal court applies.' There it is held that the agent has no authority to issue a receipt of this kind unless the goods are actually received. (Missouri Pacific R. R. Co. v. McFadden, 154 U. S. 155 .) ”