Vanliew v. The State, 10 Ind. 384 539 Zimmerman v. Marchland, 23 Ind.

Gavin & Hord's Statutes of Indiana cited as 1, 2 G. & H Statutes of Indiana, Vol. 3 (Davis' Supplement), cited 3 Ind. Stat.

For previous decisions of the Supreme Court of this State overruled, criticised, &c., see INDEX, tit. CASES OVERRULED, &c.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF INDIANA,

AT INDIANAPOLIS, NOVEMBER TERM, 1870, IN THE FIFTY-FIFTH YEAR OF THE STATE,

THE UNION RAILROAD AND TRANSPORTATION Co. and Another v. YEAGER and Another.

CUSTOM.-Certainty.—Where, in attempting to show, in explanation of a contract of sale, a local commercial usage that cash sales were not made for cash in hand, but that payment might be made afterwards and the transaction still be regarded as a sale for cash, the evidence was uncertain as to the number of days given and whether the time given was computed from the date of the sale or the date of delivery, and showed that the usage of giving time ceased soon after the transaction in question;

Held, that the evidence was insufficient to prove the custom. SALE.-Delivery.-Bill of Lading.-A. purchased a quantity of flour to be manufactured by a certain mill in St. Louis, Mo., and a parol agreement was made by A. and B. for the sale of the flour by the former to the latter for cash on delivery. Afterwards a freight company, which owned no means of transportation, gave B. an instrument styled a bill of lading, dated before the flour had been manufactured, by which said company acknowledged the receipt by it of the flour from B. and agreed to transport it to C..at Boston, Mass. A few days afterwards the servants of a transfer company, an organization engaged in carrying freights across the river at St. Louis, took the flour from said mill, conveyed it across the river, and put it in the custody of a railroad company for which said freight company acted as agent, receiving a certain percentage for all freights obtained for said railroad, said transfer company giving the superintendent of said mill dray tickets for the flour, and receiv VOL. XXXIV.—1.

J

The Union R. R. and Transp'n Co. and Another v. Yeager and Another.

ing from said railroad company a bill of lading for the flour to be delivered to
C. at Boston. The barrels had been marked at the mill with B.'s brand with-
out the knowlege of A. Before the flour was taken from the mill B. drew
on C. for a certain amount payable to the order of the former, chargeable to
account of the flour, and for value sold the bill of exchange to a bank and
transferred to said bank the instrument so given by said freight company to B.
the bank having no notice of any claim on the flour in favor of A. Hearing
of the embarrassment of B., who a few days afterwards became insolvent, A.
inquired of the superintendent of the mill about the flour, received from him
said dray tickets, and the day after the delivery of the flour to the railroad
company went with said tickets and a bill for the flour to B. and requested
payment, which not being made, A. told B. that he would keep the tickets and
make other disposition of the flour, and went to the railroad company with
said tickets and demanded a bill of lading, which was refused. No order,
oral or written, was given by A. for the delivery of the flour from the mill,
but the agents of the transfer company received their orders from the agent of
said freight company, who received his authority from B.

Held, that A. was still the owner of the flour and entitled to its possession.
Held, also, that said instrument given by said freight company to B. could not
be regarded as a bill of lading.

APPEAL from the Marion Circuit Court.

DOWNEY, J.-This action was brought by the appellees against the appellants for the recovery of the possession of four hundred barrels of flour, branded "196, Little Beauty XXX, Lamb & Quinlin sole agents for city trade, St. Louis, Mo.," of which it was alleged the defendants had the possession, without right, and which they unlawfully detained from the plaintiffs at the county of Marion.

On affidavit filed, alleging that the said property was unlawfully detained from the plaintiffs by the defendants, and containing the other statutory requisites, an order of seizure was issued, by virtue of which the property was taken by the sheriff from the possession of the defendants and delivered to the plaintiffs.

On her petition, the "Merchants National Bank of St. Louis, Missouri," became a party to the action, as a defendant.

The Union Railroad and Transportation Company answered: first, a general denial; second, that the flour was, on or about the 28th day of September, 1867, owned by Lamb & Quinlin, who then resided in St. Louis, Mo.; that they con