66 Rider v. White. time; one of the defendants warned a party to beware of them, saying one of them was very ugly. It was shown that they ran out furiously at passers-by, indicating a disposition to inflict an injury upon them, and were occasionally called in by persons in the defendants' employ. This, considered with other evidence in the case, tended to show that their vice was known to the defendants, who had caused a sign to be erected on their premises, not in sight of the place where the plaintiff was passing, inscribed, "Beware of dogs"; and the other defendant, when apprised of the injury inflicted by them upon the plaintiff, after expressing his regret, said, They were large dogs, and he must have had a serious time." Whether the dogs were vicious to an extent that endangered life or limb, and were prone to attack persons, and that the defendants had knowledge of that propensity, were questions fairly raised by the evidence, and were properly submitted to the jury. But it is in substance insisted that, even though the plaintiff was not intentionally a wrong-doer by being upon the defendants' premises, and that they were aware that their dogs had such vicious propensity, they, nevertheless, are not liable for the injury inflicted, for the reason that it was not shown that either of the dogs had ever before that time bitten any one; in other words, that, however much the life or limb of innocent persons might, to the knowledge of these defendants, have been exposed to danger by the vicious propensity of their dogs, they are not liable for this, being the first injury inflicted, notwithstanding they had just reason to believe that such injury would, under like circumstances, occur. The law has gone far to shield those who have kept dogs for the protection of their property, from the consequences of injuries to persons inflicted by them, but not so far as to protect the keepers of such as are known to them to be ferocious to a degree that endangers the safety of such as are unwarned and innocently upon their premises, from the consequences of wounds inflicted by them. The judgment should be affirmed. All concur. Judgment affirmed. Armour v. Michigan Central Railroad Company. ARMOUR, appellant, v. MICHIGAN CENTRAL RAILROAD COMPANY. (65 N. Y. 111.) Common carrier-false bill of lading— liability of carrier to one making advances on. Defendants' agent, having authority to issue bills of lading, upon delivery to him by M. of a forged warehouse receipt, gave M. bills of lading for the goods mentioned in the receipt, knowing that he intended to raise money on the bills, and plaintiff advanced money to M. upon the security of the bills. Held, that the defendants were bound by their agent's acts and estopped from denying the receipt of the goods.* A CTION upon bills of lading issued by the defendants' agent. The case was sent to a referee, who reported the following facts in substance. That on the 7th day of October, 1867, one D. D. Michaels produced and delivered to tho defendants' agent, in the city of Chicago, a paper purporting to be a receipt, signed by I. T. Sunderlin, dated the second of the previous July, for 200 tierces prime lard, his brand and manufacture, in store for account and risk of said Michaels, to be held subject to return of said receipt properly indorsed, and payment of storage, usual rate, loss and damage by fire or leakage at owner's risk, marked M. That Michaels delivered to the defendant's agent his order on Sunderlin for 100 tierces of lard, and thereupon the defendant, by its agent, executed and delivered to Michaels a bill of lading, or carrier's receipt, acknowledging the receipt from him of 100 tierces of lard consigned to the plaintiffs, at New York, and to be there delivered to them. The defendant, at the request of Michaels, afterward, and on the 12th of October, 1867, on the faith and credit of what purported to be Sunderlin's warehouse receipt, having in the meantime, at the request of Michaels, omitted to call on Sunderlin for the 100 tierces, executed and delivered to Michaels another bill of lading, acknowledging the receipt from him of the other 100 tierces of lard, like the previous 100 tierces consigned and to be transported to the plaintiffs, at New York. That the defendant, at the time when these bills of lading were issued, was informed by Michaels that he * See Baltimore & Ohio R. R. Co. v. Wilkens, ante, p. 26. Armour v. Michigan Central Railroad Company. intended using the same at bank the same day. That Michaels, on the 7th of October, made his draft upon the plaintiffs for $3,600, to which he attached the defendent's bill of lading of that day, and on the twelfth he made another draft upon the plaintiffs for the further sum of $3,600, to which he attached the bill of lading of the latter date, each of which drafts were made payable to the order of and was delivered to the Manufacturers' National Bank of Chicago, by whom they were, with the bills attached, transmitted to New York, and there caused to be presented to the plaintiffs for payment; and that the plaintiffs, on the faith and credit of the respective bills of lading, paid the first draft on the 10th or 11th of October, 1867, and the second, on the 15th or 16th of the same month. It was soon after, and prior to the 23d of the same October, discovered that the receipt purporting to have been signed by Sunderlin for the 200 tierces of lard, was a forgery committed by Michaels, and that he had not the property referred to therein in the hands of Sunderlin; of this the defendant had no prior knowledge or information, but, acting in the belief of the genuineness of the receipt, and that a certain 197 tierces of lard in Sunderlin's possession, as warehoseman, branded I. T. Sunderland, was the property intended to be covered by the receipt, caused them to be seized and placed in his possession, and transported to New York, where they arrived prior to the 30th of the same month. On that day, the plaintiffs presented to the defendant's agent in that city the two bills of lading, and requested the delivery to them of the 200 tierces of lard therein mentioned, with which request he refused to comply; and thereupon, on that day, the plaintiffs commenced this action. On the 1st day of November following, Walbridge, Watkins & Co., having the right of property and possession of the 197 tierces of lard, brought an action of replevin therefor, in the Supreme Court of this State, against the Hudson River Railroad Company, in whose possession the lard then was, and thereby obtained the possession thereof, of which the plaintiffs were notified by the defendant, with a request to appear and defend, and a consent to substitute, instead of its attorney, any attorney they might name. They did not appear in the action, and, by the judgment therein, it was adjudged that the plaintiffs therein had the right to recover the 197 tieroes of lard. Armour v. Michigan (entral Railroad Company. As a conclusion of law from these facts, the referee found that by the bills of lading, or carrier's receipts, and the delivery of them to the plaintiffs attached to Michael's drafts upon them, and the payment by them of those drafts, they acquired all the rights of Michaels; and it being shown that the goods received by the defendant for transportation under its contracts were 197 tierces of lard, to which Walbridge, Watkins & Co. had paramount title, and right of possession, the defendant was legally excused for the nondelivery of the 197 tierces; and that for the value of the remaining three tierces, the plaintiffs were entitled to recover, and ordered judgment against the defendant for $142.30, the balance thereof. Judgment was entered in accordance with those conclusions. Further facts appear in the opinion. Benj. K. Phelps, for respondent. The right of action for defendant's failure to deliver the lard was in Michaels, and had never vested in the plaintiffs. Blanchard v. Paige, 8 Gray, 281; Lickbarrow v. Mason, 1 H. & W. Notes, Phil. Ed. 1855; Thompson v. Dominy, 14 M. & W. 403; Joseph v. Knox, 3 Camp. 320; Sargent v. Morris, 3 B. & Ald. 277; Dornett v. Beckford, 5 B. & Ad. 521; Moore v. Wilson, 1 T. R. 659; Byrne v. Weeks, 7 Bosw. 380; Dows v. Green, 24 N. Y. 638. Plaintiffs, assignees for value of the bills of lading, acquired only the title of their assignor in the goods described therein. 8 Gray, 298. Without proof of special authority in defendant's agent to execute bills of lading for goods not actually shipped or received for shipment, it is not liable upon a bill of lading executed by its agent without any actual receipt of the goods. Grant v. Norway, 10 C. B. 666; F. & M. Bk. v. B. & D. Bk., 16 N. Y. 141, 151; Sch. Freeman v. Buckingham, 18 How. (U. S.) 182. Defendant's failure to deliver to plaintiffs was excuted by the taking of the goods from its possession by process of law. Bliven v. H. R. R. R. Co., 36 N. Y. 403; Story on Bail., §§ 120, 226, 582; Shelbury v. Scotsford, Yelv. 23; Edson v. Weston, 7 Cow. 278; King v. Richards, 6 Whart. 418; Wilson v. Anderton, 1 B. & Ad. 450; Whittier v. Smith, 11 Mass. 211; Van Winkle v. U. S. M. S. S. Co., 37 Barb. 122; Bates v. Stanton, 1 Duer, 79; Stiles v. Davis, 1 Black (U. S.), 101; Burton v. Wilkinson, 18 Vt. 186; Swift v. Dean, 11 id. 323; Turner v. Goodrich, 26 id. 707; Thorne v. Tilbury, 3 H. & N. 534; Humphrey v. Reed, 6 Whart. 435. There was nothing to stop defendant from availing itself of the Armour v. Michigan Central Railroad Company. defense disclosed by the facts. Mech. Bk. v. N. Y. & H. R. R. Co., 3 Kern. 599; Sch. Freeman v. Buckingham, 18 How. (U. S.) 182; Hubbersty v. Ward, 18 Eng. L. & Eq. 551; Bates v. Stanton, 1 Duer, 79; Coleman v. Riches, 29 Eng L. & Eq. 323; Walter v. Brewer, 11 Mass. 99; Redf. on Carr. 207, 208, 318. Berkley v. Watling, Ad. & El. 29; Bates v. Todd, 1 M. & R. 106; Ang. on Carr., §§ 231, 237. The true owner of the goods had a right to them as against any one, and Michaels' fraud could in no way impair that right. Everett v. Saltus, 15 Wend. 474; 20 id. 267; McEntee v. N. J. S. Co., 45 N. Y. 34; Bassett v. Spofford, id. 387; Hentz v. Idaho, U. S. D. Ct.. E. D. N. Y., July 11, 1871. DWIGHT, C. The defendant in this action issued at Chicago to the plaintiffs, on October 7, 1867, a bill of lading of 100 tierces of lard of the brand "I. T. Sunderland, M.," containing 36,150 pounds. The bill stated that the lard was received from one D. D. Michaels, and was consigned to the plaintiffs, and was to be transported over the defendant's line and delivered to the consignee or owner at New York, the owner or consignee paying freight. The bill was signed by W. W. Street, agent for the defendants. On October 12, 1867, a similar bill was issued by the defendant to the same consignees of a like number of tierces marked "S.," also received from Michaels, which were to be also transported over the defendant's line and delivered to the consignee or owner at Ward's inspection yards, New York. This bill called for 36,150 pounds of lard, and was signed by the same agent. The freight in each case was not to exceed eighty-five cents per 100 pounds. The defendant, at the time of issuing these bills, had no lard in its possession or under its control. It was induced to issue them from the fact that Michaels exhibited to Street a paper purporting to be a warehouse receipt of one I. T. Sunderland, a warehouseman in Chicago, for 200 tierces of lard in favor of Michaels. This receipt was indorsed over to the defendant and delivered to Street, who, on the faith of it, issued the two bills of lading already described. The receipt purporting to be signed by Sunderland was a forgery. The result was, that, though the defendant had issued the bills of lading, it had no lard to represent them, nor a right to any ard in Sunderland's warehouse owned by Michaels. The latter person had an interest in some tierces of lard there, but on that a firm known as Walbridge, Watkins & Co. had a prior lien and |