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In the absence of any contract by the carrier with the shipper for the benefit of any insurance which the latter may effect upon the goods, the insurer may, if the carrier be liable for the loss, by suit in the name of the owner recover from the

which the insurers waived proof make available to the carrier, or of the loss and admitted the which, before bringing suit claim of plaintiff to be due, but against the company, they had colthat plaintiff agreed to first press lected without condition, then, if the claim against the carrier, then they had wrongfully refused to plaintiff could not recover. allow the carrier the benefit of the insurance, such a counterclaim might be sustained, but otherwise not.

There was a reversal in the supreme court, Fuller, C. J., after announcing the doctrine in the text, saying:

"But the clause in question bears no such construction, and obviously cannot be relied on as in itself absolving the company from liability, for by its terms the benefit of the insurance was only to be had when a legal liability had been incurred, and in favor of the company incurring such liability. Since the right to the benefit of insurance at all depended upon the maintenance of plaintiff's cause of action, the fact of not receiving such benefit could not be put forward in denial of the truth or validity of their complaint.

"If, on the other hand, the contention of the defendant may be regarded as in the nature of a counter-claim by way of recoupment or set-off, then the question arises as to the extent of the stipulation, assuming it to be otherwise valid, and what would amount to a breach of it.

"By its terms the plaintiffs were not compelled to insure for the benefit of the railroad company; but if they had insurance at the time of the loss, which they could

"The policies here were all taken out before the shipments were made, although, of course, they did not attach until then, and recovery upon neither of them could have been had, except upon condition of resort over against the carrier, any act of the owners to defeat which operated to cancel the liability of the insurers. They could not, therefore, be made available for the benefit of the carrier. Nor have the insurance companies paid the owners. It is true that, after the loss had been incurred, the companies signed certain memoranda, by which the face of the insurance was reinstated, proofs of loss waived, and provision made for postponing the question of indemnity, until the owners, if the carrier refused to pay, had used effort to collect, without prejudice to the owners' claims against the insurance companies. But this falls far short of the equivalent of payment, and, indeed, under the terms of these policies, payment itself would have been subject to such conditions as the companies chose to impose. Although in the order of

carrier the amount which the insurer has paid to the owner for the loss of the goods whilst in the custody of the carrier.18 Sec. 785. (§ 430.) His authority to sell the goods.-The bailment to the carrier confers no authority whatever upon

the liability of the insurer is only secondary. The contract of the carrier may not be first in order of time, but it is first and principal in ultimate liability. In respect to the ownership of the goods and the risk incident thereto, the owner and the insurer are considered but one person, having together the beneficial right to the indemnity due from the carrier for a breach of his contract or for non-performance of his legal duty. Standing thus, as the insurer does, practically in the position of a surety, stipulating that the goods shall not be lost or injured in consequence of the peril insured against, whenever he has indemnified the owner for the loss he is entitled to all the means of indemnity which the satisfied owner held against the party primarily liable. His right rests upon familiar principles of equity. It is the doctrine of subrogation, dependent not at all upon privity of contract, but worked out through the right of the creditor or owner. Hence, it has often been ruled that an insurer who has paid a loss may use the name of the assured in an action to obtain redress from the carrier whose failure of duty caused the loss." Louisville, etc., Railroad v. Manchester Mills, 88 Tenn. 653, 14 S. W. Rep. 314.

ultimate liability that of the carrier is in legal effect primary and that of the insurer secondary, yet the insured can, in the absence of provisions otherwise controlling the subject, insist upon proceeding, under this contract, first, against the party secondarily liable, and when he does so is bound in conscience to give to the latter the benefit of the remedy against the party principal; but these insurers could, under their contracts, require the owners to pursue the carrier in the first instance, and decline to indemnify them until the question and the measure of the latter's liability were determined. This they did, and to their action in that regard the defendant is not so situated as to be entitled to object." 18. In Hall The Railroad Companies, 13 Wall. 367, the question was, upon demurrer, whether the underwriter who insures against loss by fire, and pays the insurance upon a loss by accidental burning of the goods while in transit, could bring an action in the name of the owner for his use against the carrier based upon its common-law liability. "It is too well settled by the authorities," said Strong, J., "to admit of question, that, as between the common carrier of goods and an underwriter upon And an insurer against loss by them, the liability to the owner for their loss or destruction is fire, subrogated for the insured primarily upon the carrier, while by reason of payment of the pol

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him to sell the goods, and if he sell them without other authority than that which he has as carrier he can pass no title. And though the goods be sold for a fair price to one who purchases in good faith, the title of the owner is not affected by the sale, and the purchaser will be responsible to him for them.19 This rests upon the well established rule of law, applicable to all bailees, that no one can sell the property of another, so as to vest a title in the purchaser, without authority to do so from the owner, although he may have possession, which is prima facie evidence of title, by the permission of the owner or even by his procurement, no matter how innocent the purchaser may have been or how good apparently was the right of the seller to make the sale; the universal and fundamental principle of the law of personal property being, that no man can be divested of his title to it without his own consent, and consequently that even the honest purchaser under a defective title cannot hold against the true owner. That "no one can transfer to another a better title than he has himself" is a maxim, says Chancellor Kent, alike "of the common and civil

icy, may, in a suit against the common carrier, brought in the name of the insured for the value of the goods insured, recover the full amount of the loss or damage without regard to the amount of the policy. Mobile, etc., R'y v. Jurey, 111 U. S. 584. See also, Insurance Co. v. Morse, 150 U. S. 99, 14 Sup. Ct. R. 55, 37 L. Ed.

1013.

An insurer must recover from the carrier, if at all, upon the shipper's right, and upon that alone, and the insurer's own declarations and admissions are immaterial. Judd & Root v. Steamship Co., 128 Fed. 7, 62 C. C. A. 515; id. 117 Fed. 206, 54 C. C. A. 238; id. 130 Fed. 991.

19. White v. Webb, 15 Conn. 302; Doane v. Russell, 3 Gray,

382; Agnew v. Johnson, 22 Penn. St. 471; Hunt v. Haskell, 24 Me. 339; Kitchell v. Vanadar, 1 Blackf. 356; Hoffman v. Noble, 6 Met. 68; Rankin v. Packet Co., 9 Heisk. 564; Hartop v. Hoare, Wils. 8; McCombie v. Davies, 6 East, 538; Bailey v. Shaw, 24 N. H. 297; Swift v. Moseley, 10 Vt. 208; Lecky v. McDermott, 8 S. & R. 500; Powell v. Buck, 4 Strob. Law, 427; Lickbarrow v. Mason, 6 East, 21.

And if an innocent purchaser from the bailee, who has sold the goods without authority from the bailor, disposes of them to another, he will be liable to the bailor for their value. In such a case the rule that where one of two innocent persons must suffer, the loss should fall on him

law, and a sale ex vi termini imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor. "20

Sec. 786. (§ 431.) Same subject-Cannot sell to satisfy lien. -Nor does the fact that the carrier has a lien upon the goods, for his freight or on any other account, confer upon him the right to sell them to satisfy his charges or to reimburse himself for expenses incurred by him for the owner on their account. And if the consignee refuse to pay the freight and to receive them the carrier must store them with some responsible warehouseman, subject to his lien, and, unless the lien is discharged by the owner, must resort to legal proceedings to have them sold, and the proceeds applied to the payment of his claim.21 If, in such cases, the goods be stored in a warehouse not belonging to the carrier, the warehouseman will hold them under the authority of the carrier and not of the owner, and his possession will be regarded as that of the carrier for the purpose of preserving his lien; and the goods will become subject to the lien of the warehouseman as well as to that of the carrier.22

Sec. 787. (§ 432.) Same subject-When sudden emergency will justify sale.-But while in the possession of the goods in the character of carrier, he also stands for many purposes in the relation of agent for the owner; and it is a general rule of law that, although the powers of agents are ordinarily limited to the purposes for which they are employed, yet that emergencies may arise in which, from the necessities of the case, an agent may be justified in assuming extraordinary powers; and that his acts, done fairly and in good faith under such circumstances, though entirely beyond the scope of his ordinary

whose act or omission made it possible, does not apply. Miller Piano Co. v. Parker, 155 Pa. St. 208, 35 Am. St. Rep. 873.

20. 2 Kent's Com. 324; Saltus v. Everett, 20 Wend. 269; Covill v. Hill, 4 Denio, 323; Pickering v. Busk, 15 East, 38; Coggill v. The Railroad, 3 Gray, 545.

21. Briggs v. The Railroad, 6 Allen, 246; Hunt v. Haskell, 24 Me. 24; Indianapolis, etc., R. R. v. Herndon, 81 Ill. 143; Rankin v. The Packet Co., 9 Heisk. 564, and cases supra.

22. Western Trans. Co. v. Barber, 56 N. Y. 544.

powers, may be binding upon his principal.23 Such emergencies sometimes occur, in the course of the business of the carrier, in which he becomes the agent of all concerned, and in which his acts, in the exercise of a sound discretion, will be binding upon all the parties in interest; and, if the necessities of the case require that the goods be sold, he not only may sell, but it becomes obligatory upon him to do so, for the benefit of the owner. If, for instance, the consignee refuse to accept the goods, and they are of a perishable character, and if stored would, from rapid decay, be totally lost to the owner, it would be the duty of the carrier to sell them on his account; and the same rule would apply if, from any cause, it became impossible to deliver the goods according to the directions of the owner or bailor, or to return them before they would inevitably perish from such inherent tendency, from damage received by them in the transit, or from any other cause.24

Sec. 788. (§ 433.) Same subject-Absolute necessity will justify. So in the case of carriers by sea the master of the vessel is vested by law with power to sell the goods of the shippers of the cargo in case of absolute necessity, as where there is a total inability to carry the goods to their destination or otherwise to obtain money indispensable to make the necessary repairs to complete the voyage, and no other vessel can be procured to which they can be transshipped for the intended port, or where the goods, in case of accidental delay, are about to perish, or have become so far damaged as to be unfit for further carriage. In such cases of absolute necessity he may sell both ship and cargo, and the purchaser will acquire an absolute title.25

23. Mechem on Agency, § 481. 24. Arthur v. The Schooner Cassius, 3 Story, 81; Rankin v. Packet Co., 9 Heisk. 564; Hull v. Railroad Co., 60 Mo. App. 593; Dudley v. Railway Co., W. Va. 52 S. E Rep. 718, citing Hutchinson on Carr.

465;
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25. Pope v. Nickerson, 3 Story, Post v. Jones, 19 How. 150; Gratitudine, 3 Rob. Adm. 240; Freeman v. E. India Co., 5 B. & Ald. 617; Vlierboom v. Chapman, 13 M. & W. 230; Cannan v. Meaburn, 1 Bing. 243; Cammell v. Sewell, 3 H. & N. 617, 5 id.

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