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Statement of Facts.

Co. credit in their deposit account for an amount equal in the aggregate to $40 for each bale, represented by such bill of lading, taking J. H. Dowell & Co.'s note for said amount, payable on demand with interest. The amount so credited to J. H. Dowell & Co. in their account would be subject to their check when and so far as the balance of account was after such credit in their favor; but their account was sometimes largely overdrawn, as was the case with many of the customers or dealers in St. Louis with the bank. When the cotton represented by such bills of lading arrived in St. Louis, it was delivered by the railroad company transporting it to a cotton warehousing company, which, on receipt thereof, issued therefor its warehouse receipts, acknowledging the receipt of the cotton described by number of bales and marks thereof, and undertaking to deliver said cotton to the bearer of the receipts on demand. Said receipts were then delivered to the bank in exchange for the bills of lading, which were surrendered and cancelled.

"It is not shown whether or not the bills of lading or the warehouse receipts or any of them were indorsed in writing by J. II. Dowell & Co. or by any one, when transferred to the bank, there being no evidence on this specific matter.

"The bank knew that the business of J. H. Dowell & Co. was that of factors, and understood that the cotton represented by the bills of lading and warehouse receipts, as aforesaid, was held by J. H. Dowell & Co. as factors, and also knew that J. H. Dowell and the defendants were jointly interested in owning and operating the plantation in the State of Arkansas. The bank did not know and made no inquiry as to the ownership of any of the cotton, nor as to the particular dealings of J. H. Dowell & Co. with such owners, nor as to the state of accounts between them.

"It does not appear that cotton received by J. H. Dowell & Co. from different consignors was kept distinct or separate in the transactions above referred to as made with the bank, nor does it appear what particular transaction included the cotton of Allen & Dowell or any part of it. During the period said J. II. Dowell & Co. by J. H. Dowell turned over to the

Statement of Facts.

bank, in the manner and for the purposes above specified, all the cotton consigned to said firm, including that of Allen & Dowell.

"5th. The cotton represented by the bills of lading and warehouse receipts, in the transactions with the bank afore said, was sold in the manner following: Sales were negotiated by J. H. Dowell & Co. by means of samples, and they agreed with the purchasers as to all the terms of sale, including prices. When the agreement of sale was thus made, the purchaser uniformly paid the entire purchase money to the bank, and on such payment the bank delivered to the purchaser the warehouse receipt held by it, on the presentation of which to the cotton warehouse the cotton would be delivered. The entire amount received by the bank for the cotton was credited to J. H. Dowell & Co. in their deposit account, and at the same time, and as part of the same transaction, J. II. Dowell & Co. were required to and did draw and deliver to the bank their check on the same account for the amouut of their demand notes to the bank, and thereby take up such notes.

“In March, 1879, J. H. Dowell suddenly died, and his estate proved insolvent. J. H. Dowell & Co.'s account with the bank was then overdrawn, and they were indebted to the bank.

"The bank at the time of said Dowell's death held about 1000 bales of cotton through its transactions, as aforesaid, with J. H. Dowell & Co., some of which were replevied, and some by the bank sold and the proceeds applied to the payment pro tanto of the said indebtedness of J. H. Dowell & Co. But it does not appear, from any testimony in the case, that any part of the cotton on hand at the time of the death of Dowell was the Allen & Dowell cotton. All the cotton shipped by Allen & Dowell to J. H. Dowell & Co. was sold and disposed of as herein before stated and before the death of J. H. Dowell. The particular sales, including said cotton of Allen & Dowell, do not appear. The defendants had no notice of the nonpayment of the note sued on until after Dowell's death.

"6th. The borrowing of money from the bank by J. II. Dowell & Co., the making of notes therefor, and the transactions, as aforesaid, between J. H. Dowell & Co. and the bank

Statement of Facts.

concerning the bills of lading and the warehouse receipts and the final distribution of the cotton and its proceeds, as aforesaid, were all according to the general usage of trade between banks and cotton factors at St. Louis, Missouri, where the transactions took place.

"7th. At the time that the note in controversy was made, another of the same kind was made by and to the same parties and as a part of the same transactions, which note was at the same time discounted by the bank in the same way, and was at its maturity paid to the bank by J. H. Dowell & Co., and charged to Allen & Dowell in account with J. H. Dowell & Co. against the proceeds of the cotton crop of Allen & Dowell in 1878."

It was also stated, in the finding of facts, that at the time of these transactions certain statutes of Missouri were in force, which are copied in the margin.1

1 The statute of March 4, 1869, contains the following provisions: "SECTION 1. All receipts issued or given by any warehouseman or other person or firm, and all bills of lading, transportation receipts and contracts of affreightment, issued or given by any person, boat, railroad or transportation or transfer company, for goods, wares, merchandise, grain, flour or other produce, shall be and are hereby made negotiable by written indorsement thereon and delivery in the same manner as bills of exchange and promissory notes; and no printed or written conditions, clauses or provisions, inserted in or attached to any such receipts, bills of lading or contracts, shall in any manner limit the negotiability or affect any negotiations thereof, nor in any manner impair the rights and duties of the parties thereto, or persons interested therein; and every such conditions, clauses or provisions, purporting to limit or affect the rights, duties or liabilities created or declared in this act, shall be void and of no force or effect.

"SEC. 2. Warehouse receipts given by any warehouseman, wharfinger, or other person or firm, for any goods, wares, merchandise, graiu, flour, or other produce or commodity, stored or deposited, and all bills of lading and transportation receipts of every kind, given by any carrier, boat, vessel, railroad, transportation or transfer company, may be transferred by indorsement in writing thereon and the delivery thereof so indorsed; and any and all persons to whom the same may be transferred shall be deemed and held to be the owner of such goods, wares, merchandise, grain, flour, or other produce or commodity, so far as to give validity to any pledge, lien or transfer, given, made or created thereby, as on the faith thereof; and no property so stored or deposited, as specified in such bills of lading or receipts, shall be delivered, except on surrender and cancellation of such

Statement of Facts.

The Circuit Judge and the District Judge certified that they were opposed in opinion upon the following questions:

"1st. Whether the transactions between the plaintiff and J. H. Dowell & Co. concerning the bills of lading, warehouse receipts, and the sales of cotton, and application of the proceeds, were valid and effectual in favor of the plaintiff and as against the defendants, at common law.

"2d. Whether said transactions were or not valid in favor of the plaintiff as against the defendants, by virtue of the statutes of Missouri in respect to bills of lading and warehouse receipts and the transfer or negotiability of such instruments, heretofore set forth.

"3d. Whether such transactions were valid as to the plaintiff against the defendants, by reason of being in conformity to the usage and custom of bankers and factors at St. Louis.

receipts and bills of lading; provided, however, that all such receipts and bills of lading, which shall have the words 'not negotiable' plainly written or stamped on the face thereof, shall be exempt from the provisions of this act." Missouri Laws, 1869, p. 91.

The statute of March 28, 1874, amends § 12 of the statute of March 10, 1868, so as to read as follows:

"SECTION 12. If any commission merchant, agent or other person storing or shipping any grain, flour, or other produce or commodity, or any person to whom any such property is consigned, and who shall come in possession of a bill of lading or warehouse receipt for such property, for or on account of another person or other persons, shall hypothecate, negotiate or pledge such bill of lading or warehouse receipt, without the written authority therefor of the owner or consignor of such property; or if, having so disposed of such bill of lading or warehouse receipt, shall fail to account for and pay over the proceeds thereof forthwith to his principal or the owner of such property; in either or any of such cases, he shall be adjudged guilty of fraud, and shall, on conviction, be punished by fine not exceeding five thousand dollars, or by imprisonment in the penitentiary for a term not exceeding five years, or by both such fine and imprisonment: Provided, that nothing herein shall be construed to prevent such consignee or other person, lawfully possessed of such bill of lading or warehouse receipt, from pledging the same, to the extent of raising sufficient means thereby to pay charges for storage and shipment, or advances drawn for on such property by the owner or consignor thereof; and a draft or order by such owner or consignor for advances shall be held and taken to be 'written authority,' within the meaning of this section, for the hypothecation of such bill of lading or warehouse receipt, to the extent, and only to the extent, of raising the means to meet such draft and to pay such freights and storage." Missouri Laws, 1874, p. 51.

Argument for Plaintiff in Error.

"4th. Whether such transactions were valid in favor of the plaintiff as against the defendants, by reason of the fact that J. H. Dowell was a partner in the firm of Allen & Dowell.

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"5th. Whether upon the sale of cotton having been finally made by J. H. Dowell & Co., as stated in the findings, J. H. Dowell & Co. became debtors only of the consignors of the cotton, and had the right as to the plaintiff for this borrowed money out of the proceeds of the sale of such cotton.

"6th. Whether upon the findings the judgment should be for the plaintiff or for the defendants.”

Upon the special finding of facts, and in accordance with the opinion of the Circuit Judge, judgment was entered for the plaintiff in the sum of $5377.08, with interest and costs, and the defendants sued out this writ of error.

Mr. John N. Rogers, for plaintiffs in error, cited: Gibson v. Stevens, 8 How. 384; St. Louis National Bank v. Ross, 9 Missouri App. 399, 411; Fourth National Bank v. St. Louis Cotton Compress Co., 11 Missouri App. 333; Rice v. Cutler, 17 Wis. 351; Warner v. Martin, 11 How. 209, 224; McCombie v. Davies, 7 East, 5; Martini v. Coles, 1 M. & S. 140; Solly v. Rathbone, 2 M. & S. 298; Cockran v. Irlam, 2 M. & S. 301; Urquhart v. Me Iver, 4 Johns. 103, 116; Gray v. Agnew, 95 Ill. 315; Newbold v. Wright, 4 Rawle, 195; Rodriguez v. Heffernan, 5 Johns. Ch. 417, 429; Merchants' National Bank v. Trenholm, 12 Heiskell, 520; Kauffman v. Beasley, 54 Texas, 563; Benny v. Rhodes, 18 Missouri, 147; S. C. 59 Am. Dec. 293; Benny v. Pegram, 18 Missouri, 191; S. C. 59 Am. Dec. 298; Wheeler & Wilson Co. v. Givan, 65 Missouri, 89; Queiroz v. Trueman, 3 B. & C. 342; Graham v. Dyster, 2 Starkie, 21; D'Aubigny v. Duval, 5 T. R. 604; Barnard v. Kellogg, 10 Wall. 383, 390; Oelrichs v. Ford, 23 How. 49, 63; Savings Bank v. Ward, 100 U. S. 195, 206; Thompson v. Riggs, 5 Wall. 663, 679; National Bank v. Burkhardt, 100 U. S. 686, 692; Lehman v. Marshall, 47 Ala. 362; Rogers v. Batchelor, 12 Pet. 221; Dob v. Halsey, 16 Johns. 34; S. C. 8 Am. Dec. 293; Snaith v. Burridge, 4 Taunt. 684; Brewster v. Mott, 4 Scammon, 378; Kelley v. Greenleaf, 3

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