Slike strani
PDF
ePub

VENUE.

See ACTIONS; PLEADING.

VERDICT.

See CRIMES; PRACTICE.

VERMONT.

See STATES.

VESTED RIGHTS.

See CONSTITUTION AND LAWS.

VIRGINIA.

See STATES.

VISITATION AND SEARCH.

See MARITIME LAW.

VOLUNTARY CONVEYANCES.

See DEBTOR AND CREDITOR; DOMESTIC RELATIONS; FRAUD.

VOLUNTARY PAYMENTS.

See PAYMENT.

VOTERS.

See ELECTIONS.

WAGER OF LAW.

§ 1. The wager of law, if it ever had a legal existence, is now completely abolished under the constitution of the United States preserving the right of trial by jury. Childress v. Emory, 8 Wheat., 642

WAREHOUSES.

[See BAILMENT; CARRIERS.]

SUMMARY Sale or bailment, 1-4, 6.- Presumption as to notice of custom of warehouseman, 5.- Receipts. §7; a chattel mortgage, when, § 8; priority of holder in bankruptcy, § 9; assignment, §§ 10-13.

§ 1. Grain may be disposed of by the owner to a warehouseman, or to an elevator or mill proprietor either by sale or bailment. If a specific amount of grain is deposited by the owner, which is not to be changed by the bailee, but retained until called for, when the identical grain is to be restored, it is a case of bailment. McCabe v. McKinstry, §§ 14-18.

§ 2. Where wheat is deposited by the owner to be stored and safely kept, the property remains in the original owner, and no credit is extended to the bailee. But if the wheat is left with the warehouseman with authority to sell it for his own benefit, and upon his promise to pay the value of the wheat or return a like quantity of wheat when demanded, the transaction is in essence a sale. Ibid.

§ 3. An act of the legislature of Minnesota provides "that whenever any grain shall be delivered for storage to any person, association, etc., such delivery shall in all things be deemed and treated as a bailment and not a sale of the property so delivered, notwithstanding such grain may be mingled by such bailee with the grain of other persons, and notwithstanding such grain may be shipped or removed from the warehouse, elevator or other place where the same was stored." The act also authorizes the depositor of grain for storage to demand and receive a receipt therefor; makes it criminal to issue a fraudulent receipt; makes the receipt negotiable and to stand for the grain, so that whoever owns the receipt owns the grain; makes it larceny wilfully to neglect or refuse to deliver the grain, and criminal to sell, dispose of or deliver the grain without the authority of the owner and the surrender of the receipt. These provisions cannot be held to protect the persons who deliver grain to the warehouseman with express authority to sell the same on his own account, and upon an understanding that he is to pay the value of a like quantity of grain or to deliver a like amount upon demand; nor to embrace the case of one who leaves wheat with a miller with authority to use it as a part of his current consumable stock, and upon an agreement to pay the owner the value, or to deliver a like quantity when demanded. Ibid.

§ 4. A receipt as follows: "Received of M. five hundred and fifty bushels of No. 1 hard wheat, at his risk in case of fire, and free of storage until sold," is not of such a nature as necessarily to exclude, under the above act, all parol evidence to show the character of the transaction, and to show by the acts and conduct of the parties that the wheat therein mentioned was bought for the purpose of being manufactured into flour, and was so manufactured with the knowledge and consent of the depositor soon after it was left with the mill owner. The authority to sell must under this act be express, but it need not be in writing. Ibid.

§ 5. Where the invariable and well known course of business at a warehouse was to mingle together all grain of the same grade, whether purchased outright and paid for at the time or received on tickets, specifying the grade and quantity, and which contemplated the future delivery of the like amount of the same grade of grain to the holders of such receipts when they should call for it, or the payment in money of the value of that amount and quality of grain, depositors must be presumed to know that such was the practice of the warehousemen. Rahilly v. Wilson, §§ 19-22.

§ 6. Such being the uniform course of business, the contract between the depositor and the warehouseman is not one of bailment proper, but one (mutuum) where the property passes to the mutuary or receiver, and is delivered to him for his own use or consumption, and where he is not bound to return the identical article in its original or altered shape, but property of the same kind and value. In which case it is a sale, the title passes, and the receiver becomes a debtor for the stipulated return. Consequently, where grain is deposited in a warehouse under such circumstances, and the warehouseman, after having disposed of a considerable portion of the grain deposited, becomes bankrupt, the receipt owners are not entitled to share pro rata in the grain remaining in the warehouse, as against the assignee in bankruptcy. Ibid.

§ 7. A receipt for property, in order to be considered a warehouse receipt under the law of Indiana, must comply with all the requirements of the statute. A., desirous of borrowing money of B., converted his storehouse into a public warehouse in the manner provided by law, and having borrowed the money gave as collateral security a warehouse receipt to C., who, as a merely nominal party, indorsed the receipt to B. By the statutes of Indiana a receipt for property stored in any class of warehouses shall be negotiable and transferable by

[blocks in formation]

the indorsement of the receipts which are to be given for the property stored, and the indorsement of the party to whom the receipt is given shall constitute a valid transfer of the property. The statutes further provide that property stored in warehouses of the class to which A.'s belonged shall state distinctly on their face the brand or distinguishing mark of the property. No property was ever stored in A.'s warehouse except his own, for which the receipt in question was given, and which contained no reference to any brand or mark distinguishing the property. Held, that such receipt was not a valid warehouse receipt under the statute. Adams v. Merchants' Nat. Bank, §§ 23-25.

§ 8. A receipt for property given as security for debts, which is not valid as a warehouse receipt, may be considered as a chattel mortgage, and if not recorded is, in Indiana, void as against creditors. Ibid.

9. When a debtor who has given an invalid warehouse receipt becomes bankrupt the holder of such receipt is not entitled to any priority as a preferred creditor. Ibid.

§ 10. Warehouse receipts are the representation of the property for which they are given, and the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named as would a bill of sale. M'Neil v. Hill, §§ 26, 27.

§ 11. A warehouseman who has given a warehouse receipt is estopped to deny in a suit by the assignee of such receipt that he has received the property which it purports to represent and show that the paper was issued as a security for a loan, or as an advance on wheat to be delivered. Ibid.

§ 12. The indorsement and delivery of the receipt of a warehouseman in the course of trade passes the title and right of possession of the property to the party to whom it is so indorsed and delivered. When the indorsement is made the warehouseman becomes the bailee of the indorsee. Harris v. Bradley. §§ 28-30.

§ 13. A writing as follows: "Received in store for account of B. & W. three thousand sacks of corn," is a valid warehouse receipt, the indorsement of which passes the title of the property for which it was given. In the absence of any statute or usage so requiring, a warehouse receipt need not be in any particular form, or contain the words "or order," or other words to denote its negotiability. Ibid.

[NOTES-See § 31-57.]

MCCABE v. MCKINSTRY.

(Circuit Court for Minnesota: 5 Dillon, 509–519. 1878.)

STATEMENT OF FACTS.- Plaintiff is assignee of the Winnebago City Mill Company. The action was brought to recover $576.65, received by the defendant from the bankrupt, April 20, 1876, as a fraudulent preference. On May 1, 1876, the mill company filed its petition, and was adjudged a bankrupt on the next day. On March 20, 1876, defendant authorized the mill. company's secretary to buy wheat for him, which was done, and a receipt for five hundred and fifty bushels, signed by the mill company, given defendant. The money value of the wheat was paid defendant April 20, 1876. The recovery is sought respecting this payment. There was a trial by jury, and a judgment for plaintiff.

§ 14. Sales and bailments of grain in warehouses discussed.

Opinion by DILLON, J.

Grain may be disposed of by the owner to a warehouseman or to an elevator or mill proprietor either by sale or bailment. In the former the title passes; in the latter it remains with the owner. It is sometimes difficult to determine whether a particular transaction is a sale or bailment. If a specific amount of grain is deposited by the owner, which is not to be changed by the bailee, but retained until called for, when the identical grain is to be restored, this is, of course, a plain case of bailment. Under the Minnesota statute of March 3, 1876, however it might be in the absence of such an enactment, a specific amount of grain deposited for storage does not cease to be a bailment, and does not become a sale, because it is mingled by the warehouseman or elevator or mill proprietor with the grain of other persons, since the

statute authorizes the intermixture of grain of the same kind and grade, and recognizes the continued ownership of the depositors to a quantity of grain equal in amount to that by them respectively deposited. Prior to the enactment of the statute just mentioned, it was decided, in Rahilly's Case, 3 Dill., 420 (§ 19-22, infra), where there was an express contract, or an agreement implied from the known and invariable course of business, that the warehouseman or elevator proprietor might mingle specific wheat received with other wheat of like kind and grade, and ship or sell it at his pleasure, with the further agreement or understanding that, on demand, he would pay the person from whom the grain was received the highest market price, or deliver the same amount of grain of a like quality, but not the identical grain deposited, nor grain from any specific mass, that such a transaction was a sale at the time of the delivery, and not a bailment.

§ 15. Difference between bailment and sales inherent.

There is an inherent difference between bailments and sales. If I deposit my wheat to be stored and safely kept for me, my property remains, and I extend no credit to the bailee. But if I leave my wheat with him with authority to sell it for his own benefit, and not as my agent, and upon his promise to pay me the value of the wheat, or to give me a like quantity of wheat when I shall demand it, the transaction is in essence a sale of my wheat and the extending by me of a personal credit for its value. I see no satisfactory evidence that the act of the Minnesota legislature of March 3, 1876, meant to abrogate essential distinctions between bailments and sales, so far, at least, as to place the grain owner who authorized the warehouseman to sell, and the grain owner who only authorized him to store and safely keep, upon the same footing. Let me illustrate. Suppose I deliver one thousand bushels of wheat to a warehouseman, or elevator proprietor, with authority to sell, and it is sold; and the next day you deliver to him one thousand bushels to store, and he does so; the next day he fails with your one thousand bushels on hand, and no more. Was it intended by the Minnesota legislature that I might take the one thousand bushels by replevin, or even share it pro rata with you? It seems to me not. The act, although not carefully drawn, and in many of its provisions far from clear, seems throughout to confine its remedial provisions to persons who deposit grain "for storage" or safe-keeping, and not to those who deposit it with authority to sell.

The act is conceded to have been passed in consequence of the decision in Rahilly's Case, and I have felt, in view of the facts of that case, considerable embarrassment in ascertaining the precise scope of the act, although its general purpose is manifest.

While it must be admitted to have made important provisions to protect persons who deliver grain for storage, I am inclined to think that it was not intended to embrace the case of persons who deliver grain to the warehouseman with express authority to sell the same on his own account, and upon an understanding that he is to pay the value of a like quantity of grain, or to deliver a like amount, upon demand; nor to embrace the case of one who leaves wheat with a miller with authority, as in Randell's Case, Law Rep., 3 P. C., 101, to use it as part of his current consumable stock, and upon an agreement to pay the farmer or owner the value, or to deliver a like quantity when demanded.

The first section of the Minnesota act, if it stood alone, might be construed to cover cases such as those just mentioned, but the sixth section forbids the

[ocr errors]

warehouseman or other person "receiving or holding grain in store to sell or otherwise dispose of or deliver out of the storehouse or warehouse where such grain is held or stored, the same, or any part thereof, without the express authority of the owner of such grain and the return of the receipt given for the same." No more effectual protection can be given to depositors of grain than this requirement that their grain shall not be sold, disposed of, or delivered out of the warehouse or the place where it is stored, without their consent. Unless the depositors otherwise agree, the grain deposited, or, at all events, an equal amount of the same grade, is always kept on hand, and, without their consent, the bailee is not authorized to sell it or to consume it, and substitute other grain in its place. If it is wrongfully sold or disposed of, it may be true that the owner's rights will attach to other grain substituted in its place, or to any grain which the bailee may own, but we have no occasion now to discuss or determine the point. See 2 Kent's Commentaries, 590, 12th ed., Mr. Holmes' note.

In case of the insolvency of the warehouseman, or mill or elevator proprietor, where the grain on hand does not equal the amount of outstanding receipts, a person who has authorized his wheat to be sold or consumed, and pursuant to which authority it has been sold and removed or consumed, cannot come in competition, as respects grain on hand, with depositors for storage only, who have never authorized any sale, disposition or removal of their grain.

The act authorizes the depositor of grain for storage to demand and receive a receipt therefor; makes it criminal to issue a fraudulent receipt; makes the receipt negotiable and to stand for the grain, so that whoever owns the receipt owns the grain; makes it larceny wilfully to neglect or refuse to deliver the grain, and criminal to sell, dispose of or deliver the grain without the authority of the owner and the surrender of the receipt. Under this statute the warehouseman must be careful what kind of receipts he issues.

§ 16. If the contract is one of storage it excludes any right of sale.

If the contract under which the grain is received is one for storage this excludes any implied right arising from custom or usage to sell or dispose of or deliver the grain out of the warehouse. For the protection of the depositor, the authority to sell or ship or remove the grain must be express, and for the protection of the public the receipt given for the same must be returned. Difficult questions may arise under this act as to the respective rights of depositors where there has been a wrongful sale or removal of the grain, and where there is not enough grain for all; but this case does not require us to consider them.

The record before the court is meager in the statement of the facts. Prima facie, the receipt issued is one for storage; but it would appear to be remarkable if the real understanding was that the grain should not be used that the mill company would be willing, as a business transaction, to store it free of charge for an indefinite time.

§ 17. A receipt does not exclude parol evidence to show nature of contract.

In my judgment the receipt is not of such a nature as necessarily to exclude all parol evidence to show the character of the transaction, and to show by the acts and conduct of the parties that the wheat therein mentioned was bought for the purpose of being manufactured into flour, and was so manufactured, with the knowledge or consent of the defendant, soon after it was received.

The district judge states that his notes show the undisputed evidence was

« PrejšnjaNaprej »