Harris v. Bradley

DILLON, Circuit Judge.

1. The title to the com, mentioned in the receipt of May 20th, 1870, was in Bailey & Weightman, and the defendants, Bradley & Robertson, were their bailees. The receipt was the evidence of the title of Bailey & Weightman, and the indorsement and delivery thereof in St. Louis to the plaintiffs, the property being then in Nebraska City, was equivalent to the delivery to the plaintiffs of the property itself. The indorsement and delivery of the receipt of the warehouseman in the course of trade, passes the title and right of possession of the property to the party to whom it is so endorsed and delivered. Such is the law, and such is the understanding of the business community. The legal title to the property passed to the plaintiffs by the indorsement and delivery to them of the evidence of the title. To the extent of their advances, certainly they are purchasers for value, if not, indeed, as respects their pre-existing debt, and they hold the title to the corn to protect their interests. When the transfer was made to them, the defendants became their bailees, and ceased to be the bailees of Bailey & Weightman. All the foregoing principles are established by the judgment of the supreme court of the United States, in the case of Gibson v. Stevens, 8 How. [49 U. S.] 384.

2. The defendants insist that the instrument in suit is not a warehouse receipt, either within the contemplation of the local statute of the state on that subject (Rev. St. Neb. p. C52), or of the law relating to this peculiar class of instruments. See McNeil v. Hill [Case No. 8,914], where the subject is discussed by Mr. Justice Miller.

The fourth special finding of the jury shows that the defendants were engaged in buying, storing, and shipping grain generally, and particularly for Bailey & Weightman (to whom the receipt was issued), on a contingent commission. The defendants advertised themselves to the world as merchants and grain dealers. Clearly they were warehouse-men, and it is to be presumed that they were known as such to the business community.

It is urged that the instrument in suit was not intended to be a warehouse receipt, or to be used or negotiated- as such, but was intended simply as a memorandum or personal voucher to Bailey & Weightman to show that the defendants had that amount of corn in store for them; and this view, it is argued, is supported by the nature or tenor of the paper itself, since it contains no words indicating that the defendants are to account to any persons other than Bailey & Weiglu-mau.

NOTE. Dundy, District Judge, did not concur in the foregoing views, and, after judgment for the plaintiffs, in accordance with the opinion of the circuit judge, the case was certified to the supreme court upon division of opinion. on the question whether, upon the special verdict, the plaintiffs were entitled to judgment. The following are the statutory provisions referred to in the opinion (Rev. St. Neb. p. G32): “To prevent fraud-in warehousemen and others. “Section 24G. No warehouseman, wharfinger, or other person, shall issue any receipt or voucher for any goods, wares, merchandise, grain, or other produce or commodity, to any person or persons purporting to be the owner or owners thereof, unless such goods, wares, merchandise, or other produce or commodity, shall have been bona fide received into store by such warehouseman, wharfinger, or other person, and shall be in store and under his control at the time of issuing such receipt. “Sec. 247. No warehouseman, wharfinger, or other person, shall issue any receipt or other voucher upon any goods, wares, merchandise, grain, or other «reduce or commodity, to any person or persons, as security for any money loaned, or other indebtedness, unless such goods, wares, merchandise, grain, or other produce or commodity, shall be, at the time of issuing such receipt, the property of such warehouseman or wharfinger, or other person, and shall be in store and under his control at the time of issuing such receipt or other voucher, as aforesaid. “Sec. 24S. No warehouseman, wharfinger, or other person, shall issue any second receipt for any goods, wares, merchandise, grain, or other produce or commodity, while any former receipt for any such goods or chattels, as aforesaid, or any part thereof, shall be outstanding and un-eanceled. “See. 249. No warehouseman, wharfinger, or other person, shall sell or encumber, ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, merchandise, grain, or other produce or commodity, for which a receipt shall, have been given as aforesaid, without the written assent of the person or persons holding such receipt.”

In other words, it is claimed by the defend-, ants, as a matter of law, that in order to give to such an instrument, even when issued by a merchant or warehouseman, a negotiable or assignable quality, so as to estop the makers from showing against a subsequent holder that the property mentioned has not been in fact received, or had, before notice of the assignment, been delivered to the .persons to whom the instrument was originally made, the instrument should contain language showing that it was to be, or might be thus used. If the receipt in question had contained, after the name of Bailey & Weightman, the words “or order,” or after the word “corn,” the words “delivered in virtue of this receipt,” or similar language, it is conceded that it would have the qualities of a warehouse receipt, and that a delivery to any person without the production of the receipt, would be at the peril of the warehouseman or party making it. No authorities have been produced to sustain this view; nor is it shown that there is any such custom or usage among warehousemen, or known to the business community.

There is nothing in the statute of the state requiring or implying that such instruments should be of any particular form, and the instrument on which the plaintiffs rely for title would seem to be more formal than some of those in the case of Gibson v. Stevens, before cited.

Under these circumstances, it is my opinion that the defendants were not justified, with this receipt outstanding, in shipping the corn mentioned in it, as the jury find they did, to Chicago, for the benefit of Bailey & Weightman. Judgment for plaintiff.