good faith of innholders, whose education and morals are usually none of the best, and who might have frequent opportunities of associating with ruffians and pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them :" Jones on Bailments 95, 96. In Manning v. Wells, 9 Humph. 748, the court said: "A passenger or wayfaring man may be an entire stranger. He must put up and lodge at the inn to which his day's journey may bring him. It is therefore important that he should be protected by the most stringent rules of law, enforcing the liability of an innkeeper." See also Berkshire Woollen Co. v. Proctor, 7 Cush. 417. In Cromwell v. Stephens, 2 Daly 15, the court, in a very learned opinion by DALY, P. J., said: "A mere lodginghouse, in which no provision is made for supplying lodgers with their meals, wants one of the essential requisites of an inn." And further, that an inn is a house where all who conduct themselves properly, &c., are received, and while there are supplied at reasonable charge with lodging, meals and services. In Carpenter v. Taylors, 1 Hilton 193, the court held that a restaurant could not be considered an inn, and said that on the contrary, as the customs of society change and the modes of living are altered, the law as established under different circumstances must yield and be accommodated to such changes." In another case in the same state, a distinction was drawn between innkeepers and boarding-house keepers : Wintermute v. Clarke, 5 Sandf. 245. In Benner v. Wellburn, 7 Ga. 296, the court went so far as to hold that a public hotel at a watering-place, possessing a medicinal spring and open during the summer and fall for visitors in search of health or pleasure, was of the nature of a boarding-house and not of a tavern or house of entertainment. So a person living at Epsom and lodging strangers for drinking the waters in the season, was held not to be an innkeeper against whom an action would lic for refusing to entertain a guest: 5 Bac. Abr. 228. In Lyon v. Smith, 1 Morris 184, the court were of opinion that a person who does not hold himself out as an innkeeper, but entertains travellers occasionally for pay, is not subject to the liabilities of an innkeeper. The result of all the cases seems to be, as above stated, that the rule will not be carried beyond the narrow limits within which it was originally confined, not even to cover the case of a boardinghouse keeper. It would evidently be against all the authorities on the subject to bring the appellants in the principal case within this rule. There seems to be no other ground than the one above discussed, upon which the appellee in this case could recover. In the absence of delivery of the money to the appellant's agent or servant, there could, as the court in the principal case held, be no recovery for the loss. Story Bailm., 532, and cases in n. 4. See With regard to the notice which it seems to have been assumed that the appellee had received, that the company appellants would not be responsible for baggage, &c., it is doubtful whether this would of itself, even though brought home to the occupant of a berth, be enough to remove a liability otherwise resting upon the company. It has been held in the case of innkeepers that such notice did not affect the duties and liabilities of the innkeepers: Johnson v. Richardson, 17 Ills. 302; Profilet v. Hall, 14 La. Ann. 524. Though an inference to the contrary may be drawn from Berkshire, &c., Co. v. Proctor, 7 Cush. 417. F. R. Supreme Court of the United States. NATIONAL BANK OF COMMERCE v. MERCHANTS' NATIONAL BANK. Where the holder of a time-draft, with accompanying bills of lading, sends them to an agent with no special instructions to hold the bills of lading, the agent is authorized to surrender the bills to the drawee on the latter's acceptance of the drafts. It does not make any difference that the drafts are sent to the agent "for collection." That instruction merely rebuts the inference of the agent's ownership of the draft. Bills of lading, though transferable by endorsement, are only quasi negotiable; and the endorsee does not acquire the right to change the agreement between the shipper and his vendee. IN error to the Circuit Court of the United States for the District of Massachusetts. The opinion of the court was delivered by STRONG, J.-The fundamental question in this case is whether a bill of lading of merchandise deliverable to order, when attached to a time-draft, and forwarded with the draft to an agent for collection, without any special instructions, may be surrendered to the drawee on his acceptance of the draft, or whether the agent's duty is to hold the bill of lading after the acceptance, for the payment. It is true there are other questions growing out of portions of the evidence, as well as one of the findings of the jury, but they are questions of secondary importance. The bills of exchange were drawn by cotton brokers residing in Memphis, Tennessee, on Green & Travis, merchants residing in Boston. They were drawn on account of cotton shipped by the brokers to Boston, invoices of which were sent to Green & Travis, and bills of lading were taken by the shippers, marked in case of two of the shipments "to order," and in case of the third shipment marked "for Green & Travis, Boston, Mass." There was an agreement between the shippers and the drawees that the bill of lading should be surrendered on acceptance of the bills of exchange, but the existence of this agreement was not known by the Bank of Memphis when that bank discounted the drafts and took with them the bills of lading endorsed by the shippers. We do not propose to inquire now whether the agreement, under these circumstances, ought to have any effect upon the decision of the case. Conceding that bills of lading are negotiable, and that their endorsement and delivery pass the title of the shippers to the property specified in them, and, therefore, that the plaintiffs when they discounted the drafts and took the endorsed railroad receipts or bills of lading, became the owners of the cotton; it is still true they sent the bills with the drafts to their correspondents in New York, the Metropolitan Bank, with no instructions to hold them after acceptance. And the Metropolitan Bank transmitted them to the defendants in Boston, with no other instruction than that the bills were sent "for collection." What, then, was the duty of the defendants? Obviously it was first to obtain the acceptance of the bills of exchange. But Green & Travis were not bound to accept, even though they had ordered the cotton, unless the bills of lading were delivered to them contemporaneously with their acceptance. Their agreement with their vendors, the shippers, secured them against such an obligation. Moreover, independent of this agreement, the drafts upon their face showed that they had been drawn upon the cotton covered by the bills of lading. Both the plaintiffs and their agents, the defendants, were thus informed that the bills were not drawn upon any funds of the drawers in the hands of Green & Travis, and that they were expected to be paid out of the proceeds of the cotton. But how could they be paid out of the proceeds of the cotton if the bills of lading were withheld? Withholding them, therefore, would defeat alike the expectation and the intent of the drawers of the bills. Hence, were there nothing more, it would seem that a drawer's agent to collect a time-bill, without further instructions, would not be justified in refusing to surrender the property against which the bill was drawn, after its acceptance, and thus disable the acceptor from making payment out of the property designated for that purpose. But it seems to be a natural inference, indeed a necessary implication, from a time-draft accompanied by a bill of lading endorsed in blank, that the merchandise (which in this case was cotton) specified in the bill was sold on credit, to be paid for by the accepted draft, or that the draft is a demand for an advance on the shipment, or that the transaction is a consignment to be sold by the drawee on account of the shipper. It is difficult to conceive of any other meaning the instruments can have. If so, in the absence of any express arrangement to the contrary, the acceptor, if a purchaser, is clearly entitled to the possession of the goods on his accepting the bill and thus giving the vendor a completed contract for payment. This would not be doubted if, in stead of an acceptance, he had given a promissory note for the goods, payable at the expiration of the stipulated credit. In such a case it is clear the vendor could not retain possession of the subject of the sale after receiving the note for the price. The idea of a sale on credit is that the vendee is to have the thing sold, on his assumption to pay, and before actual payment. The consideration of the sale is the note. But an acceptor of a bill of exchange stands in the same position as the maker of a promissory note. If he has purchased on credit and is denied possession until he shall make payment, the transaction ceases to be what it was intended, and is converted into a cash sale. Everybody understands that a sale on credit entitles the purchaser to immediate possession of the property sold, unless there be a special agreement that it may be retained by the vendor, and such is the well-recognised doctrine of the law. The reason for this is that very often, and with merchants generally, the thing purchased is needed to provide means for the deferred payment of the price. Hence, it is justly inferred that the thing is intended to pass at once within the control of the purchaser. It is admitted that a different arrangement may be stipulated for. Even in a credit sale it may be agreed by the parties that the vendor shall retain the subject until the expiration of the credit, as a security for the payment of the sum stipulated. But if so, the agreement is special, something superadded to an ordinary contract of sale on credit, the existence of which is not to be presumed. Therefore, in a case where the drawing of a timedraft against a consignment raises the implication that the goods consigned have been sold on credit, the agent to whom the draft to be accepted and the bill of lading to be delivered have been entrusted cannot reasonably be required to know, without instruction, that the transaction is not what it purports to be. He has no right to assume and act on the assumption that the vendee's term of credit must expire before he can have the goods, and that he is bound to accept the draft, thus making himself absolutely responsible for the sum named therein, and relying upon the vendor's engagement to deliver at a future time. This would be treating a sale on credit as a mere executory contract to sell at a subsequent date. And, if the inference to be drawn from a time-draft accompanied by a bill of lading is not that it evidences a credit sale, but a request for advances on the credit of the consignment, the consequence is the same. Perhaps it is even more apparent. It plainly is that the acceptance is not asked on the credit of the drawer of the draft, but on the faith of the consignment. The drawee is not asked to accept on the mere assurance that the drawer will at a future day deliver the goods to reimburse the advances. He is asked to accept in reliance on a security in hand. To refuse to him that security is to deny him the basis of his requested acceptance. It is remitting him to the personal credit of the drawer alone. An agent for collection having the draft and attached bill of lading cannot be permitted, by declining to surrender the bill of lading on the acceptance of the bill, to disappoint the obvious intentions of the parties, and deny to the acceptor a substantial right which by his contract is assured to him. The same remarks are applicable to the case of an implication that the merchandise was shipped to be sold on account of the shipper. Nor can it make any difference that the draft with the bill of lading has been sent to an agent (as in this case) "for collection." That instruction means simply to rebut the inference from the endorsement that the agent is the owner of the draft. It indicates an agency: Sweeney v. Easter, 1 Wall. 166. It does not conflict with the plain inference from the draft and accompanying bill of lading that the former was a request for a promise to pay at a future time for goods sold on credit, or a request to make advances on the faith of the described consignment, or a request to sell on account of the shipper. By such a transmission to the agent he is instructed to collect the money mentioned in the drafts, not to collect the bill of lading. And the first step in the collection is procuring acceptance of the draft. The agent is, therefore, authorized to do all which is necessary to obtaining such acceptance. If the drawee is not bound to accept without the surrender to him of the consigned property or of the bill of lading, it is the duty of the agent to make that surrender, and if he fails to perform this duty, and in consequence thereof acceptance be refused, the drawer and endorser of the draft are discharged: Mason v. Hunt, 1 Doug. 297. The opinions we have suggested are supported by other very rational considerations. In the absence of special agreement, what is the consideration for acceptance of a time-draft drawn against merchandise consigned? Is it the merchandise, or is it the promise of the consignor to deliver? If the latter, the con VOL. XXIV.-14 |