Squires v. Payne

Where the plaintiff took a mortgage on one thousand sacks of flour, and took the warehouseman's receipt therefor, and subsequently requested the warehouseman to segregate the particular flour from a large quantity belonging to the mortgagor, and the warehouseman accordingly put plaintiff's mark on a pile of eleven hundred and ninety-six sacks of the mortgagor, standing separate from the rest; Held that it was a good segregation. This delivery destroyed the privity between the warehouseman and the mortgagor, and made the former agent of the mortgagee alone, with whom he might adjust for the excess. Where the sheriff wrongfully took possession of the goods, and thereby deprived the plaintiff of them, the fact that they were taken by the coroner, under a writ against the sheriff, before the latter had removed them, does not excuse his tort.

Appeal from the Superior Court of the City "of San Francisco. This was an action of trespass against Payne and Herrick, for seizing eleven hundred and ninety-six quarter sacks of flour, for the value of the flour and for damages. The plaintiff loaned $1,500 to one Chazal, and took the note of the latter for the amount and interest, secured by a chattel mortgage on the flour; for which he received, in his own name, the receipt of Tilden & Little, the warehousemen, with whom it was stored, and who acted as Chazal’s agents in negotiating the loan. The defendants received a similar receipt for three thousand six hundred sacks, as security for a loan made by them to Chazal. The plaintiff demanded of Tilden & Little that his one thousand sacks be segregated from the balance of Chazal’s flour. T. & L. informed him that it would be very inconvenient to make an entire change in the position of the flour, but placed the plaintiff’s name on a separate lot of Chazal’s flour, consisting of eleven hundred and ninety-six sacks. H. W. Beebe succeeded Tilden & Little in the warehouse, and advertised for parties to exchange their warehouse receipts. On discovering that there was a deficiency in the “ Eclipse Mills ” flour, which was the brand of the flour of Chazal, he refused to exchange receipts for that brand, whereupon suits were commenced by several parties. The defendants brought a replevin suit against Beebe for three thousand six hundred quarter sacks of flour, in which the sheriff, by the direction of the attorney of defendants, seized the eleven hundred and ninety-six sacks above referred to, and other flour in the warehouse, and placed a keeper in charge. Shortly after, and on the same day, the coroner claimed the flour, under a writ, in an action brought by Schwabe & Co., against the warehouseman and the sheriff. The sheriff removed about four hundred of the eleven hundred and ninety-six sacks before he was stopped. The coroner seized the remainder; thereby making, with other flour, sufficient to satisfy his writ—leaving the sheriff about eleven hundred and forty-six sacks in all. The value of the flour was proved to be one dollar and fifty cents -per quarter-sack. The Court below charged the jury that a separation and marking of a parcel, of nearly the same quantity, would amount to a segregation; and that, if the sheriff first seized the flour of the plaintiff, the coroner’s taking it out of his hands would not change the liability of the defendants. The Court refused to instruct the jury that, in any event, the plaintiff could only recover one thousand sacks. The jury found a verdict for the plaintiff for $1,500. Motion for a new trial made and overruled, and judgment entered on the verdict. Defendants appealed.