T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A COMPILATION OP WAREHOUSE LAWS AND DECISIONS CONTAINING THE STATUTES OF EACH OF THE STATES AND TERRITORIES PERTAINING TO WAREHOUSEMEN, TO- GETHER WITH A DIGEST OF THE DECISIONS OF THE STATE AND FEDERAL COURTS, IN ALL CASES AFFECTING WAREHOUSEMEN. WITH AN ANALYTICAL INDEX. BY BARRY MOHUN, LL. M. tit OF THE BAR OF THE DISTKICT OF COLUMBIA AND OF THE STATE OF NEW YORK. THE BANKS LAW PUBLISHING COMPANY 21 Murray St., New York. 1904. Copyright, 1904. By AMERICAN WAREHOUSEMEN'S ASSOCIATION. T \9o^ ID The compilation of this volume was undertaken by the Ameri- can Warehousemen's Association, on the suggestion of the Chairman of its Committee on Laws and Legislation, as an aid to that Committee in the formulation of such a code of laws for the government of the warehouse business as might be offered to the several legislatures of this country with a fair prospect of general adoption. When the work was completed it proved so valuable that it was determined to issue it in per- manent form to the legal profession and to the warehousemen of this country as an authoritative statement of the present status of warehouse jurisprudence. The Association takes this occasion to place on record its high appreciation of the disin- terested and untiring efforts of the Chairman of its Committee on Laws and Legislation, Mr. Albert M. Read, of Washington, D. C, in making the issue of this volume possible, and to thank the other members of that Committee, Messrs. W. H. Gibson, of New York City, D. E. Knowlton, of Buffalo, N. Y., W. G. Coldeway, of Cincinnati, Ohio, R. M. Winans, of New York City, and Philip Godley, of Philadelphia, Pa., for their hearty co- operation in the work. American Warehousemen's Association BY William T. Robinson, President, AND Walter C. Reid, Secretary. 735445 PREFACE. The arrangement of this volume being very simple, I feel that few, if any, words of explanation are required. It may, however, be well to outline the uniform system of classification of decisions followed in each of the chapters. Each state is allotted one chapter, the laws being given first, the decisions afterward; the latter are divided into a series of groups, each represented by a letter of the alphabet, and ar- ranged in, what I believe to be, a logical sequence. The subjects of the decisions found under each of the letters, are as follows: A. Bailment; General principles; Kinds of; Difference between a bailment and a sale; Statute of limitations. B. Warehousemen, their duties, rights and liabilities in general; Public and private warehousemen; Ordinary care; When lia- bility begins, when it terminates; Disputed ownership; Bailor's title; Conversion, what constitutes; Burden of proof; Liability of directors and stockholders; Partnership agreements; Acts of State Boards and Warehouse Commissions; Commissions; Pro- cedure; Evidence; Pleading. C. Safe deposit boxes. D. Expressmen, transactions with warehousemen. E. Factors, transactions with warehousemen. VI PREFACE. F. Carriers, transactions with warehousemen and their liability as warehousemen. 6. Government bonded warehouses. H. Storage charges; Lien; Sale; Contracts of storage construed. I. Segregation and commingling of stored property; Substitu- tion of other property. E. Legal process against stored property. L. Replevin; Trover; Detinue. M. Property pledged with warehouseman. N. Loss or damage to stored property by fire, water, negligence, misdelivery, accident, theft, war, act of God; Procedure; Evi- dence; Pleading. 0. Measure of damages for loss, or damage to goods. P. Insurance ; Insurable interest; Warranty of "fire-proof," "frost-proof," etc.; Contracts to keep insured. Warehouse receipts; Definition; Requisites; Interpretation; When title passes; Estoppel by; Receipts of private warehouse- PREFACE. Vn men; Exemptions in ; Guaranty; Negotiability; What constitutes a bona fide holder; As collateral; Delivery of property without surrender of receipt; Special and irregular receipts; Bogus and forged receipts; Procedure; Evidence; Pleading. R. Bills of lading; Definition; Liabilty upon; Exemptions in; Negotiability; As collateral; Bona fide holder; Bogus bills of lading; Procedure; Evidence; Pleading. S. Customs among warehousemen as affecting their rights and liabilities. T. Liability of warehousemen for injuries to employees; Doc- trine of fellow servants; Fraud and crimes of warehousemen. U. Constitutionality of statutes pertaining to warehousemen; Statutes authorizing the taking of land, prescribing maximum rates for storage, etc. If this volume assists in the dissemination of legal knowledge concerning the important subject of warehousemen, their rights and liabilities, I shall feel amply repaid. My sincere thanks are due Mr. Albert M. Read, Vice Presi- dent of the American Warehousemen's Association, and Chair- man of its Committee on Laws and Legislation, for his untiring efforts wliich have made possible the publication of this volume. Barry Mohun. Washington, D. C. September 12, 1903. CONTENTS. CHAPTER I. Alabama. page LAWS 1 DECISIONS 7 CHAPTER II. Arizona. LAWS 21 DECISIONS 24 CHAPTER HI. Arkansas. LAWS 25 decisions 30 CHAPTER IV. California. LAWS 34 decisions 47 CHAPTER V. Colorado. LAWS 63 DECISIONS 69 CHAPTER VI. Connecticut. LAWS ^^ decisions '° ix X CONTENTS. CHAPTER VII. Delaware. page LAWS ^'^ DECISIONS 85 CHAPTER MIL District of Columbia. LAWS 86 DECISIONS 88 CHAPTER IX. Florida. LAWS 92 DECISIONS 95 CHAPTER X. . Georgia. LAWS 96 DECISIONS 103 CHAPTER XL Idaho. LAWS 124 DECISIONS 125 CHAPTER XII. Illinois. LAWS 126 DECISIONS 159 CHAPTER XIII. Indiana. LAWS 184 DECISIONS 199 CHAPTER XIV. Indian Territory. LAWS 210 DECISIONS 210 CONTENTS. ^^ CHAPTER XV. p 211 T . PAGE Iowa. LAWS 21Q DECISIONS CHAPTER XVI. Kansas. 227 LAWS 9 'SO DECISIONS CHAPTER XVII. Kentucky. LAWS ^^^ 272 DECISIONS CHAPTER XVIII. Louisiana. LAWS 286 decisions ^^^ CHAPTER XIX. Maine. LAWS 308 Q1Q DECISIONS CHAPTER XX. Maryland. LAWS 315 DECISIONS """ CHAPTER XXI. Massachusetts. 332 LAWS 340 DECISIONS CHAPTER XXII. Michigan. 352 LAWS . ... 371 decisions , , , • ■ • f , . ^ ' xil CONTENTS. CHAPTER XXIII. Minnesota. page LAWS 375 DECISIONS 432 CHAPTER XXIV. Mississippi. LAWS 448 decisions 450 CHAPTER XXV. Missouri. LAWS 454 DECISIONS 491 CHAPTER XXVI. Montana. LAWS 501 DECISIONS 504 CHAPTER XXVII. Nebraska. LAWS 505 DECISIONS 536 CHAPTER XXVIII. Nevada. LAWS 540 DECISIONS 540 CHAPTER XXIX. New Hampshire. LAWS 541 DECISIONS 542 CHAPTER XXX. New Jersey. LAWS 543 DECISIONS. 548 CONTENTS. . XIU CHAPTER XXXI. New Mexico. page LAWS 550 DECISIONS 550 CHAPTER XXXn. New York. LAWS 551 DECISIONS 565 CHAPTER XXXni. North Carolina. LAWS 602 decisions 609 CHAPTER XXXIV. North Dakota. LAWS 613 decisions 624 CHAPTER XXXV. Ohio. LAWS 628 decisions 646 CHAPTER XXXVI. Oklahoma. LAWS 656 decisions 675 CHAPTER XXXVII. Oregon. LAWS 676 decisions 682 CHAPTER XXXVIII. Pennsylvania. LAWS 688 decisions 696 Xiv CONTENTS. CHAPTER XXXIX. Rhode Island. page LAWS 700 decisions 7 12 CHAPTER XL. South Carolina. LAWS 715 DECISIONS 726 CHAPTER XLI. South Dakota. LAWS * 731 DECISIONS 749 CHAPTER XLII. Tennessee. LAWS 751 DECISIONS 753 CHAPTER XLIII. Texas . LAWS 761 DECISIONS 766 CHAPTER XLIV. Utah. LAWS 772 DECISIONS 772 CHAPTER XLV. Vermont. LAWS 773 decisions 775 CHAPTER XL VI. Virginia. LAWS 778 decisions 794 CONTKNIS. XV CHAPTTOR XLVTI. Washington. ^^^^ 707 LAWS *•" DECISIONS ^^^' CHAITKR XLVIII. West Virginia. LAWS 808 decisions 809 CHAPTER XLIX. Wisconsin. LAWS 811 decisions 8-5 CHAPTER L. Wyoming. LAWS ^ 83- decisions 837 Analytical Index 839 CHAPTER I. ALABAMA. LAWS PERTAINING TO WAREHOUSEMEN. Warehousemen or coiiimou carriers give receipt or bill of lading— Contents : Warehousemen or common carriers, receiving things or prop- erty of any kind for safe-keeping, or for carriage, for hire or reward, must, on the deUvery to them of such things or prop- erty, give the person from whom received a receipt or bill of lading, stating the order or condition in which such things or property may be, and if cotton in bales is received, stating ex- pressly the condition of the bagging, ropes, or ties, and of the cotton, whether dry, damp, wet or very wet ; and such warehouse- man or common carrier is bound to deliver in like order and condition as when received ; and if such receipt or bill of lading be not given, such things or property must be deemed and taken to have been in good order or condition at the time of delivery to such warehouseman or carrier, and he is bound to deliver in like good order and condition; and the warehouseman or carrier, neglecting or failing to give such receipt or bill of lad- ing, is liable for all loss or damages the owner of such things or property may sustain in consequence of such neglect or fail- ure; but nothing in this section contained must be construed as affecting the common-law liability of a warehouseman or of a common carrier for an injury to or for the loss of such things or property. Code, Ala. 1896, sec. 4218. Receipt or bill of lading ; when not to be given : A warehouseman, common carrier, or wharfinger, or other person engaged in the business of storage, carriage, or of keep- ing for shipment, or of forwarding things or property, must not give a receipt or bill of lading for the things or property for storage, for carriage, or for keeping for shipment, or for for- p- 1 1 2 ALABAMA LAWS. warding, unless such things or property have been actually de- livered to him, or placed under his control ; and a second receipt or bill of lading must not be issued or given, the original being outstanding, without writing across the face thereof the word "duplicate." /c/. sec. 4219. Delivery to cottou-coinpress : A delivery of cotton at or to a compress for the purpose of l)eing compressed, at the instance, or in the usual course of business of a warehouseman, common carrier, wharfinger, or other person engaged in the business of storage, or of carriage, or of keeping for shipment, oi" of forwarding, may be taken and deemed as an actual tlelivery to such warehousemen, car- rier, wharfinger, or other person, and therefor a receipt or bill of lading may be issued or given. Id. sec. 4220. Sale, etc., by warehouseman, carrier, or wharfinger : A warehouseman, common carrier, wharfinger, or other per- son engaged in the lousiness of storage, carriage, or of keeping for shipment, or of forwarding things or property, must not, otherwise than is authorized by law, oi' by the contract of de- livery to them, make sale of things or property intrusted to them; nor, without the assent in writing of the person to whom they may have given a receipt or bill of lading, or of the legal holder of such receipt or bill of lading, encumber or transfer the same; nor must they otherwise than as may be authorized by the contract of delivery to them, part with the control or possession of such things or property, without the assent in writing of the person to whom they may have given a receipt, or bill of lading, or of the legal holder of such receipt or hill of lading. Id. sec. 4221. Above section construed : Transferee must be the legal holder of the receipt and in the manner above prescribed. Baker v. Malone & Sons, 126 Ala. 510; Lehman v. Pritchett, 84 Ala. 512; Ala. State Bank v. Barnes, 82 Ala. 607. Warehouse receipt negotiable : The receipt of a warehouseman, on which the words "not ALABAMA. d negotiable" are not plainly written or stamped, may be trans- ferred by the indorsement thereof, and any person to whom the same is transferred, must be deemed and taken to be the owner of the things or property therein specified, so far as to give validity to any pledge, lien or transfer made or created by such person; but this section nmst not be so construed as to affect or impair the lien of a landlord on such things or prop- erty for rent or advances, or to affect or impair any lien thereon created by contract, of which notice is given by registration in the mode prescribed by law; and unless the w^ords '"'not nego- tiable" be plainly written or stamped on the receipt, the ware- houseman must not deliver the things or property therein speci- fied except on the delivery and cancellation of the receipt; or in case of partial delivery, without an indorsement thereon of such partial delivery; in the event of the loss or destruction of such receipt, the warehouseman, not having notice of the trans- fer thereof by indorsement, may make delivery of the things or property to the rightful owner thereof ; if the things or prop- erty, or any part thereof, be claimed or taken from the custody or possession of the warehouseman under legal process, the sur- render thereof may be made without the delivery or cancella- tion of such receipt, or without indorsement thereon. Id. sec. 4222. False or second receipts, or delivery without cancellation, or indorsement of partial delivery : If any common carrier, not having received things or prop- erty for carriage, shall give or issue a bill of lading, or receipt, as if such things or property had been received, or any ware- houseman, or wharfinger, or person engaged in the business of storage, or keeping for shipment, or forwarding, shall issue a receipt for things or property, not having received them; or if any such parties shall give or issue a second bill of lading, or receipt, the original being outstanding, not expressing in such second bill of lading or receipt that it is a duplicate, or shall surrender such things or property wdthout receiving and can- celling the bill of lading or receipt issued therefor, or make par- tial delivery without indorsing such partial delivery on such bill of lading or receipt, except as provided in the preceding 4 ALABAMA LAWS. section, such carrier, warehouseman, wharfinger, or person is Hable to any person injured thereby for all damages, immediate or consequential, therefrom resulting. Id. sec. 4223. How com moil carrier absolved from liability as insurer ou arrival of freight and deposit in warehouse, conditions, etc. : A common carrier, if the place of destination of freight is a city or town having two thousand inhabitants, or more, and a daily mail, is not relieved from liability as a common carrier by reason of a deposit or storage of freight in a depot or ware- house, unless wdthin twenty-four hours after the arrival of such freight, notice thereof is given the consignee, personally or through the mail; and if notice is given through the mail, the postage must, by the consignee, be refunded to the carrier. Id. sec. 4224. Sale of perishable freight to pay charges : When any fruit, vegetables, fresh meat, oysters, eggs, or fish, or other property of so perishable a nature as to be in danger of great depreciation, has been transported by a com- mon carrier to the place of destination, and remains unclaimed for one day after its arrival, or if the consignee resides, or is present at the place of destination, for one day after personal notice in writing to him, or his agent, of the arrival of the freight, and the amount of charges due thereon, the same may be sold by the carrier or his agent at public outcry to the high- est bidder for cash, at some public place at the point of destina- tion, on one day's notice, indicating the nature of the package, the con.signee and the time and place of sale, by publication in some newspaper published at the place of destination, or, if none is published thereat, then by posting the notice at the office or place of business of the carrier. Id. sec. 4225. Sale of other freight to pay charges : When any other freight than that mentioned in the preced- ing section remains unclaimed for sixty days after its arrival at the place of destination, the same may be sold by the carrier or his agent at public outcry to the highest bidder for cash, at some public place within the state of Alabama, after notice ALA J '.AM A. O indicating the nature of the package, the consignee and the time and place of sale, lias been given for three weeks by pub- lication once a week, in some newspaper published at the place of sale, or if no such paper is there published, by posting the notice at three public places therein; but before any sale can be made under this section, the carrier must, before giving notice of the sale, demand payment of the charges due thereon from the owner or consignee, if either of them resides at the place of destination; but if neither of them resides at such place, failure to make such demand shall not prevent the sale; but notice of such sale shall be given the consignor, when known, by mail. Id. sec. 4226, as amended by act of Febru- ary 15, 1901. Insurance ; sale ; proceeds : The common carrier may insure the freight, at the expense of the owner, from the date of its arrival to the sale above au- thorized; and the proceeds of any sale made under the last two sections shall be applied to the payment of freight, in- surance, and all charges incident to storage and sale, and the residue, if any, shall be paid over to the owner or consignee. Code, Ala. 1896, sec. 4227. The three preceding sections applicable to warehousemen : The provisions of the three preceding sections apply to ware- housemen to whom freight is delivered by a common carrier. Id. sec. 4228. Concealing cotton or changing marks : Any person, who conceals cotton delivered to himself or another for sale or storage, or changes or mutilates the marks or brands thereof for the purpose of hindering the owner or person having a lien thereon from recovering it, and any ware- houseman who permits such conduct, shall be liable to the owner or lienor for all damages, immediate or remote, by him sustained; and any warehouseman with whom such cotton has been storefl, who has information which would lead to the dis- covery thereof, and refuses, on application, to impart the same to the owner or lienor, is liable to him for the value of the cot- ton. Id. sec. 4229. 6 ALABAMA LAWS. Contracts in writing? assignable by indorsement : All bonds, contracts and writings for the payment of money or other thing, or the performance of any act or duty, are as- signable by indorsement so as to authorize an action thereon by each successive indorsee. Id. sec. 876. Above section constrned ; held to apply to warehouse re- ceipts : ^ Lehman v. Marshall, 47 Ala. 362; Allen, Bethune & Co. v. Maury ^ Co., 66 Ala. 10 ; Ala. State Bank v. Barnes, 82 Ala. 607; Jemison et at. v. Birmingham & A. R. R. Co., 125 Ala. 378. ALA I'. A MA. 7 DECISIONS AFFECTINCJ WAREHOUSEMEN. A. Bailment and sale — What constitutes a sale — Delivery of ware- house receipts — Ri(/ht to reject all inferior goods. Where there was a deUvery of the warehouse receipts for cottoia, to the intending purchaser, and the price for the same paid to the vendor, out of such price there being deducted five dollars per bale on account of the reserved right of the pur- chaser to reweigh and inspect the cotton and to reject sand- packed or other of an inferior quality, it was held, that there was a sale of the cotton to the purchaser; that the title harl vested in him subject to be divested of so much of the cotton as was of inferior ciuality. Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10. B. Ordinary care. Warehousemen are bailees for hire and it is their duty to bring, to the business in which they are employed, reasonable skill and diligence. They are answerable only for ordinary negligence. Seals v. Edmonson, 71 Ala. 509; Hatchett v. Gib- son, 13 Ala. 587; Ala. & Tcnn. R. R. R. Co. v. Kidd, 35 Ala. 209; Kennedy Bros. v. Mobile & G. R. R. Co., 74 Ala. 430; Moore v. The Mayor, etc., 1 Stern, 284; Mobile & G. R. R. Co. V. Prewitt, 46 Ala. 63; Jones v. Hatchett, 14 Ala. 743; Davis & Son V. Hurt, 114 Ala. 146. Same — Want of ordinary care — Effect. A want of ordinary care in one particular, on the part of a warehouseman, does not render him responsible for a loss oc- casioned by other causes not connected with that particular. Gibson v. Hatchet, 24 Ala. 201 . Same — Care which warehouseman bestows upon his own prop- erty no criterion — Evidence. The care which a warehouseman may bestow upon his own property, or the lack of such care, is a matter about which he must exercise his own discretion so long as he works no injury g ALAHAMA DECISIONS. to others, or their property. The measure of his duty is to be- stow reasonable skill and ordinary diligence in regard to the property intrusted to his custody — doing all that men of orch- nary prudence would do under like circumstances, without re- gard to the care he may exert for himself. In an action against a warehouseman for the loss of cotton, it was shown that the cotton was destroyed on the night of the twenty- fifth of December, that the warehouse was without a roof and that the authorities had refused to prohibit the explosion of firecrackers and like fireworks in the streets of the city. In this connection, evidence was offered to show that the defendant owned a large cpantity of cotton stored in his ware- house and that on the twenty-fourth day of December he ob- tained additional insurance for three days only, it was held, that the rejection of the evidence in regard to this insurance on the defendant's own goods was proper. Seals v. Edmonson, 71 Ala. 509. Same — Breach of contract hy warehouseman — Change in lia- biliiy. Where a ginner received cotton and agreed to pick and bale it in preference to all other cotton, but fails to do so in that he gins other cotton, leaving part of plaintiff's cotton unginned, and the gin with plaintiff's cotton is destroyed by fire, the ginner is liable to the plaintiff for the loss. Pattison v. Wallace, 1 Stew. 48. Questioned in Lehman, Durr & Co. v. Pritchett, 84 Ala. 512. Same — Authority of consignee or warehouseman to receive goods. A consignee of goods shipped by steamboat is the agent of the owner to receive them at the port of delivery, and has authority to receive the goods at any particular point at that port; and where the bill of lading stipulates for a delivery "unto warehouse or to assigns" at a river landing in the inte- rior, the warehouseman at that landing is the consignee. The consignee, who is, for most purposes, deemed the owner, may waive a full compliance with all the terms of the carrier's con- tract in reference to delivery. Winston v. Cox B. & Co., 38 Ala. 268. Alabama. 9 Delivery — Any member of a partnershij) entitled to goods stored in firm name. Where property is stored by one iiuMiibor of a firm with a warehouseman, in the name of tlie firm, each partner may re- ceipt for such property ; a dehvery to any one partner is a deliv- ery to the firm. Croswell v. Lehman, Durr & Co., 54 Ala. 363. Same — Presumption from failure to deliver witliout explana- tion — Burden of proof. If a warehouseman fails to deliver goods, intrusted to him, upon demand, and will not account for them or explain his refusal, it will be presumed that he has wrongfully converted, or wrongfully retains, the same. But if he alleges their loss from a cause for which he would not be responsible, the burden is cast upon the plaintiff to jjrove that the loss was caused by the warehouseman's negligence. Seals v. Edmonson, 71 Ala. 509; Mobile & G. R. R. Co. v. Preivitt, 46 Ala. 63. Same — What will not constitute element of damages in case of delay. An action was brought against a warehouseman to recover damages owing to the failure of the warehouseman to deliver property on the day when ordered. It appeared that the de- livery was delayed one day; the plaintiff claimed that as a result thereof he was entitled to the cost of the insurance for such day, and for the interest which he was obliged to pay on the money with which he was to pay for the goods. It was held, that there being no proof that the insurance expired on the day on which the goods were ordered from the warehouse, and that although it was a matter of common knowledge that cotton brokers borrowed money at very high rates of interest, nevertheless, such costs were not the necessary and natural result of the delay, and that, therefore, plaintiff could not re- cover for the same. Swift & Co. v. Eastern Warehouse Co., 86 Ala. 294. Bailee in general cannot dispute bailor's title — Notice of ad- verse claims — // he delivers to one purporting to be tru£ owner he assumes burden of proving same. In general, a bailee cannot deny the title of his bailor and 10 ALABAMA DECISIONS. it is his duty to return the property to his bailor upon demand. If through neghgence or design he deUvers the property to one not entitled to it. his action is a conversion thereof. But where he has notice that the property does not belong to his bailor, then a delivery to him would be a conversion. If the bailee, believing his bailor not to be the true owner, surrend- ers the property to one whom he believes to be such owner, he thereby assumes the burden of proving such ownership. Powell V. Robinson d' Lechjard, 76 Ala. 423. Same — Duty of bailee where adverse claims — Judgment against bailee conclusive as to title. At common law a bailee cannot compel adverse claimants to interplead and he must defend himself as best he may. If the bailee be unwilling to take upon himself the onus of prov- ing a superior title, he may await the bringing of an action by the adverse claimant. On such action being brought, he should give his bailor notice and reciuire him to defend. A judgment against the bailee, whether the bailor appears, or refuses to defend after notice, will be a sufficient defense in any subsequent action by the bailor. In such a case, the rule that the bailee cannot chspute the title of his bailor does not apply. The judgment there would be conclusive of the supe- riority of the title of the adverse claimant. Powell v. Robin- son & Ledyard, 76 Ala. 423; Croswell v. Lehman, Durr & Co., 54 Ala. 363; Calhoun v. Thompson, 56 Ala. 166; Thompson & Co. V. Union Warehouse Co., 110 Ala. 499. Same — Warehouseman must deliver to bailor or his assignee — May be compelled to deliver to true owner. It is a general rule that one who has received property from another as his bailee must restore, or account for the property, to him from whom he received it. But the bailee has no better title than the bailor, and consequently it follows that if a per- son entitled, as against the bailor, to the property, claims it, the bailee has no defense against him. A bailee, therefore, is protected where he has made a delivery to one authorized to receive the goods. Croswell v. Lehman, Durr & Co., 54 Ala. 363. ALABAMA. 11 Conversion — Delivery of mortgaged gooch to Jiohlcr of receipt — Recordation of mortgage coyistitntes notice. The (lefendarits, warehousemen, had stored certain grain in their warehouse and it appeared that at the time of receiving the grain it was mortgaged to the plaintiff, and that the mort- gage thereof had been duly recorded, as required by the stat- utes of this state. Subsequently, the defendant delivered the grain to a third party who had become the holder of the ware- house receipt therefor. It was held, that the fact that the mort- gage was recorded was constructive notice to the defendants of the interest of the plaintiff, and was as binding on them as ac- tual notice would have been, and the delivery to the holder of the receipt was a conversion of the grain for which the defend- ant was liable. Hudmun & Bros. v. Du Bose, 85 Ala. 446. Actio?i of assumpsit hy warehousemen, when maintainahle. Warehousemen may maintain assumpsit for cotton ''shipped by them as warehousemen only" and not delivered to the con- signees, provided, the contract was made with them personally. Fry V. Garter & Howell, 25 Ala. 479. Evidence — Opinion. Where cotton was destroyed by fire, the following opinion was held to be properly receivable in evidence, it being first shown that the witness had been engaged in the cotton busi- ness for many years. That if a blazing missile or burning coal had been applied to the cotton, it would have been immediately fired and would have burned with such rapidity that its extin- guishment would have been improbable, if not impossible. Seals V. Edmonson, 71 Ala. 509. Pleading — Counts in complaint — Charge — Liability where there is gross negligence. Where in an action against a railroad company for the loss of goods intrusted with it for transportation, the complaint contained two counts, one on the contract of common carriers, the other on a contract of warehouseman without hire, it ap- peared that the goods had been lost, while stored in the com- pany's warehouse and after the plaintiff had had an opportunity 12 ALABAMA DECISIONS. to remove them, a charge asked by the defendant under the latter count, that the company is only responsible for injuries and losses occasioned by its gross negligence is proper and should be given. Mobile & G. R. R. Co. v. Prewitt, 46 Ala. 63. H. Storage charges — Performance ivithin one year — Promise by a third person to pay same — Statute of frauds. A warehouseman sued a vendor for storage charges due on cotton which the former had shipped after receiving the prom- ise of the defendant that he would pay the same. It was held, that the contract was not within that provision of the stat- ute of frauds which requires all contracts which by the terms are not to be performed within one year, to be in writing. That the contract in question could be performed in less than one year, although it might continue for a much longer period. To facilitate the owner of the cotton in his dealings with the plaintiff, the defendant made the promise and the plaintiff surrendered his lien on the cotton in consideration of the prom- ise of the defendant to secure him in payment of his charges. The contract by which this object was accomplished was sup- ported by considerations moving directly between the parties and, although it might be said to be in form of an undertak- ing to answer for the debt of another, and as a matter of fact, when performed, it may have that effect, it was not a contract coming within the third clause of the statute of frauds and need not have been in writing. Prout & Robinson v. Webb, 87 Ala. 593. Same — Valid claim for, up to date of accidental destruction of goods. The plaintiff, a warehouseman, brought an action against the defendant who had become the owner of cotton stored with him for storage charges due thereon. It was shown to be the custom and practice of warehousemen in the locality where this warehouse was situated not to demand payment of storage charges until the cotton was ordered out of the warehouse and, therefore, the last holder of the receipt was liable for the ac- crued storage charges. The defendant contended, that as the ALABAMA. 1'^ custom was shown to be that the warehousemen did not de- mand storage charges until the cotton was ordered out, and that as in tliis case the cotton, having been burned, was never ordered out of the warehouse, that therefore there was no vahd claim for storage charges. The court held this to be an extreme view to take of the practice of warehousemen and one which could not be sustained, that the practice was simply one of con- venience and that the warehouseman could not be said to waive thereby his lien upon the goods for storage charges. Judgment given for plaintiff. Jones v. Chafjin, 102 Ala. 382. f^over—Not mamtainahU against warehouseman where there is simply a failure to deliver on demand-Conversion-Gist of action. Where a warehouseman fails to deliver on demand goods in- trusted to him, this fact alone will not entitle the owner to maintain trover against him. There must be a conversion be- fore this action can be brought, and a conversion is not shown simply by a failure to deliver. The owner in such a case may either bring assumpsit for the breach of the contract, or he may sue in case for negligence. The limitations of the action of trover are closely drawn and it is essential in all cases to show a conversion which is the gist of the action. Davis &Jon v. mirt, 114 Ala. 146; Ala. & Tenn. River R. R. Co. v. Kidd, 35 Ala. 209; Baker v. Malone & Sons, 126 Ala. 510. game— Will not lie where goods are taken hy armed force. An action of trover will not lie where goods are taken by an armed force without any negligence or complicity on the part of the bailee. Abraham & Bro. v. Nunn, 42 Ala. 51. Same— Complaint inust contain averment of ownership. Where a complainant, in an action of trover, failed to aver that the persons, from whom the plaintiff was alleged to have purchased the cotton, were the owners thereof, and also failed to aver that the plaintiff was the owner of the cotton, it was held, that such complaint was demurrable on these grounds. Weil Bros. v. Ponder, 127 Ala. 296. 14 ALAUA.MA l>I'X"I.SlONS. Same — Warehouseman may maintain — Warehouse receipt. A warehouseman may maintain, in his own name, an action of trover against one who has converted property intrusted to the wareliouseman as bailee. In such case, where the ware- liouseman is the holder of the warehouse receipt which he issued for tlie goods, it is not necessary for him to show that the re- ceipt has been indorsed to him in order to pass title to the property. Baker v. Troy Cotnpress Co., 114 Ala. 415. M. Pledge — Pledgee cannot be deprived of his rights by fraudulent removal of goods by pledgor. "Where the pledgee of property w^as wrongfully deprived of his possession by the pledgor, the pledge was not defeated thereby. Where, therefore, property thus wrongfully removed comes into the hands of a purchaser without notice of the pledge, the pledgee will be protected. American Pig Iron Stor- age Warrant Co. v. German, Exec, et al, 126 Ala. 194. N. Loss by fire. A warehouseman is not liable for the value of goods destroyed by fire unless it can be shown that the loss occurred through his negligence. Seals v. Edmonson, 71 Ala. 509. Same — Failure to sell cotton within a reasonable time — Not proximate cause of loss. The defendants, warehousemen and commission merchants, had cotton in their possession belonging to the plaintiffs and received instructions from them to sell the same. The plain- tiffs attempted to hold the defendants liable on the ground that, having failed to sell the cotton within a reasonable time after being instructed by the plaintiffs to do so, the cotton being subsequently destroyed by fire, that the loss would not have occurred had defendants obeyed instructions. The court held, that while it might be considered that it was the duty of the defendant to sell tlio cotton within a reasonable time after being instructed so to do, that its subsequent loss by fire A1.A15A.MA. 1;") could not be regarded as the natural and proximate conse- quences of the delay in selling. That, the burning of the cot- ton was an accidental or collateral injury, not usually following the result of such delay, that the defendants as connnission merchants would Ix- liable for any natural injury resulting from the delay to sell the cotton within a reasonable time, but they would not be liable for a loss suffered through an extraordinary cause having no relation to the delay except that it hai)i)ened to be contemporaneous. Lehman, Durr & Co. V. Pritchett, 84 Ala. 512. (Doctrine of Patterson v. Wal- lace, 1 Stew. 4S, not followed.) Daugherty v. Am. Un. Tel. Co., 75 Ala. 168; Ead Tenn., Va. & Ga. R. R. Co. v. Lockart, 79 Ala. 315; Burton v. Holly, 29 Ala. 318. Warranties—Stipulation in the contract that warehouse was to be fireproof — Effect thereof. "If it was a term of the i)laintiffs' contract, that their ware- house should be fireproof, and the defendant's cotton was lost by the plaintiffs' fiulure to provide such a house, then they should make good the damage consequent upon the breach of their undertaking." Hatchett v. Gibson, 13 Ala. 599. P. Evidence as to necessity of presence of watchman. On the trial of a case against a warehouseman for the loss of cotton destroyed by fire while stored with him, evidence was admitted to show that the warehouse had been used for the storage of cotton for many years by the former owner; that during the time of its use, missiles had been shot off in the streets under circumstances similar to those in the j^resent case, and that a watchman had not been employed to guard or protect it. It was held on appeal that this evidence was proper. Seals v. Edmonson, 71 Ala. 509. Q. Warehouse receipt — Issued in name of warehouseman — Pledge. A warehouseman owning goods deposited in his own ware- house had i-eceipts issued therefor and signed by his clerk. The receipts were pledged as collateral security without being 16 ALABAMA DECISIONS. indorsed. It was held that the legal effect of this transaction was to pass to the pledgee of such property, the constructive possession thereof which was sufficient to create a valid pledge, as between the parties, and also as to third persons, not having acquired prior or intervening rights. Ala. State Bank v. Barnes, 82 Ala. 607. Savie — Negotiability — Not negotiable in sense of bills of ex- change — Not governed by law merchant. A factor having in his possession goods for the purpose of sale, deposited them with the defendant warehouseman and took a receipt therefor in his own name. He thereupon pledged the receipt with a bank to secure payment of a loan. After default was made in ])ayment, an action was brought by the owner of the goods against the warehouseman to re- cover their possession. The pledgee interposed the claim that as the receipts were negotiable he had taken title to the prop- erty under the warehouse laws of the state of Alabama. It further appeared, that in the contract of pledge there was the following sentence, " which cotton has been advanced upon by us for its full value." It was held that the warehouse receipt was not negotiable in the sense of bills of exchange and that it conveyed no greater title to the holder thereof than would the possession of the goods themselves. That the possession of the warehouse receipt by the factor was equivalent only to the possession of the property, and that, therefore, the only interest which the factor could pledge in such cotton was the actual interest which he had therein. Further, that the clause in the warehouse laws which states that warehouse receipts "given for any goods stored or deposited with any warehouse- man" means only goods deposited by a person having title thereto. This section of the act proceeds upon the assump- tion that the receipt was so issued. Commercial Bank of Selma V. Hurt, 99 Ala. 130; Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10. Same — Effect of transfer for a gambling debt — Not a contract. The plaintiff brought an action in detinue against a ware- houseman for the recovery of cotton represented by a receipt ALABAMA. IT of which he was a bona fide holder. It appeared that the re- ceipt had been issued to one who had transferred it to plain- tiff's transferror in consideration of a gambling debt. Such person intervened in the suit and claimed title to the property on the ground that he had not parted with such title as the consideration for which the assignment was made was void under the laws of the state. It was held, that the plaintiff was entitled to possession of the goods and that the transfer of the receipt by the original owner, who had indorsed the same in blank, had been the cause of the plaintiff securing possession of the same in this condition and, therefore, that he was estopped to deny the legality of such transfer. That the effect of the possession of the receipt was the same as the possession of the property which it represented, and that such a warehouse receipt was not a contract within the meaning of the statutes of the state of Alabama by which gambling con- tracts are declared to be void in the hands of a bona fide holder for value. Danforth v. McElroy & Co., 121 Ala. 106; Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10. Same — One must be a legal holder to maintain action thereon. The legal title to warehouse receipts must be in the plain- tiff before he can maintain an action thereon under section 4222 of the code of this state. Where there was no averment in the complaint that the plaintiff had title to the receipt by indorse- ment, or, that the person to whom it was issued had affirmed in writing that the property should be delivered to the plain- tiff, it was held, that the plaintiff could not maintain an action for the recovery of the goods on such warehouse receipts for he was not entitled to possession of them. Baker v. M alone & Son, 126 Ala. 510; Weil Bros. v. Ponder, 127 Ala. 296. Same — Negotiability — Procured through fraud — Innocent pur- chaser 'protected. Where a third person, innocently and in good faith, pur- chases the warehouse receipt for goods which his vendor pro- cured by fraud, such third person will be protected, provided he gave value for the property, or incurred some responsibility upon the credit of it, and took without notice of the fraud. Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10. o 18 ALABAMA DECISIONS. Sa7ne — As collateral— Delivery ivithout indorsement — Effect. The general rule, independent of statutory regulations, is conceded to be that the delivery, without indorsement, of a warehouse receipt payable to bearer, as collateral security, passes the legal title and vests possession of the property in the pledgee. The provisions contained in sec. 876 of the code have been construed to mean that the indorsement of a ware- house receipt is necessary in order to pass the legal title thereto. Nevertheless neither the above section nor Sess. Acts, 1880, 1881, p. 133, operates to prevent the transfer of a special prop- erty and constructive possession, by the delivery of the receipt without indorsement, sufficient to create a valid pledge as be- tween the parties, and, as to third persons not having acquired prior intervening rights. Ala. State Bank v. Barnes, 82 Ala. 607. Same— Same— In factor'.'^ name— Notice— What title acquired. Where a warehouse receipt, issued in the name of a factor for cotton stored by him, recites the name of the owner, and is afterwards transferred by the factor as collateral security for a note, on which note there is indorsed that such "cotton has been advanced upon * * * to its full value" by the factor, the pledgee in receiving the receipt has the equivalent of notice of the true state of the account between the owner and the factor, and becomes the purchaser of only such interest and claim in the cotton as the factor might assert. Commercial Bank of Selma v. Lee, 99 Ala. 493; Commercial Bank of Selma V. Hurt, 99 Ala. 130. Sams— Delivery of cotton to one in possession of the receipt without indorsement — Warehouseman liable. A warehouse receipt for cotton, subject to tlie order of the person in whose name the receipt was given, or the bearer, is an admission that the cotton belongs to such person, and in an action to recover the cotton, or its value, it is no defense that it has been shipped and sold by direction of a party who had obtained possession of the receipt, without indorsement by the person stated to be the depositor in the receipt, and without authority from him to dispose of the same. Lehman, Durr & Co. v. Marshall, 47 Ala. 362. ALABAMA. 10 Same — Pleadings — Suit by transferee against warehouseman — Declaration must allege indorsement to plaintiff — Also defend- ant's refusal to deliver. A declaration, in an action against a wareliouseman on a warehouse receipt, failed to allege that the receipt had been indorsed to the plaintiff. On demurrer it was held that such failure was a fatal defect as under section 876 of the Code an indorsement of a warehouse receipt was necessary to pass the title. It was also held that the declaration in this case was further defective in that it did not aver a refusal on the part of the defendant to deliver the cotton stored. Jemison v. Birmingham & A. R. R. Co., 125 Ala. 378; Allen, Bethune & Co. V. Maury & Co., 66 Ala. 10; Lehman, Durr & Co. v. Marshall, 47 Ala. 362; Capehart v. Granite Mills Co., 97 Ala. 353; Baker v. Malone, 126 Ala. 510. But see Weil Bros. v. Fonder, 127 Ala. 296. Same — Same — Complaint must aver title in plaintiff's vendor. A declaration which failed to aver that the person to whom the warehouse receipts were issued, and from whom plaintiff purchased the cotton, was the owner of the cotton, held de- fective on demurrer. A majority of the court also held that an indorsement of the warehouse receipt to the plaintiff was not necessary to pass title to him. Tyson, J., dissented from this proposition citing authorities given above. Weil Bros. V. Fonder, 127 Ala. 296. See also Baker v. Troy Compress Co., 114 Ala. 415. B. Bills of lading — Negotiahility — Issued in name of fictitious person — Bona fide holde . Bills of lading are not negotiable in the sense of bills of ex- change and other commercial paper. Although it is true that under some circumstances a bill of exchange, payable to a fictitious person, may be negotiable, this principle does not apply to bills of lading. Therefore one who takes a bill of lading payable to a fictitious firm, and indorsed with such name is not a bona fide holder thereof. It was the duty of 20 ALABAMA DECISIONS. such person to inquire as to the name indorsed on the bill of lading, for it was from such firm that his rights as holder would ominate. Jasper Trust Co. v. K. C, M. & B. R. R. Co., 99 Ala. 416. S. Custom, what not good. A custom in the city of Montgomery, among merchants, factors and planters, dealing in cotton, that warehouse re- ceipts to deliver to a certain person, or his order, or the bearer, the number of bales of cotton specified in said receipts, are transferable by delivery, as money or bank bills, without in- dorsement, and that such transfer passes the cotton, without further inquiry or evidence of title than from what arises from the possession of such receipts, unless notice is given that such receipts have been lost or have fallen into the hands of some person who is not the owner or entitled to hold the same, is not a good custom. Lehman, Durr & Co. v. Marshall, 47 Ala. 362. akizu>;a. 21 CHAPTER 11. ARIZONA. LAWS PERTAINING TO WAREHOUSEMEN. Receipt : A warehouse receipt is an instrument in writing signed by a warehouse proprietor or his agent, describing the produce or commodity so as to identify it, stating the name of the owner, the terms of the contract for storage, and agreeing or directing that the produce or commodity be dehvered to the order or assigns of a specified person. Rev. St. Ariz. 1901, sec. 4153. Owner as manager to give receipt : It shall be the duty of every person keeping, managing, con- trolling or operating, as owner or agent or superintendent of any company or corporation, any warehouse where any produce or commodity is stored to deliver to the owner of such produce or commodity a warehouse receipt therefor, bearing the full name of those operating said warehouses, which receipt shall bear the date of issuance, and shall state from whom received, the number of sacks, if sacked, the number of bushels or pounds, the condition of the same, and the terms and conditions upon which it is stored. Id. sec. 4154. Form of receipt : The receipt required in the preceding section may be in form as follows : (Name of Firm or Company.) No (Place and Date.) Received in store from (name of consignor), (quantity), gross, lbs.; tare, lbs.. No. (give here grade and name of commodity), at owner's risk of unavoidable danger, to be delivered at this warehouse upon return of this receipt properly indorsed and payment of charges. This receipt negotiable when 22 ARIZONA LAWS. duly indorsed by consignor. Storage to (here give amount and date). Signed (name of Firm or Company). (Name of Agent) Agent. Id. sec. 4155. Fraudulent receipts : No person shall issue any receipt or other voucher as provided herein for any produce or commodity not actually in store at the time of issuing such receipt, or issue any receipt in any respect fraudulent in its character, either as to its date or the quantity, quality or grade of such property, or duplicate or issue a second receipt for the same while any former receipt is outstanding for the same property, or any part thereof with- out writing across the face thereof "duphcate." Id. sec. 4156. Property stored to be kept separate : No person operating any warehouse where any produce or commodity is stored shall mix any produce or commodity of different grades together, or deliver one grade to another, or in any way tamper with the same while in his possession or custody with a view to securing any profit to himself or any other person, and in no case mix different grades together while in store: Provided, That nothing in this title shall be construed to prohibit any person operating any warehouse where any produce or commodity is stored from keeping, piling or storing any produce or commodity offered for storage separate and apart from other produce or commodity, by marking such produce in such manner that it can be identified and delivered on presentation of the warehouse receipt or voucher which was given for the same, in which case the receipt given shall designate the mark on the produce or commodity so stored. Id. sec. 4157. Property not to be transferred witliont consent of owner : No person operating any warehouse shall sell, incumber, ship, transfer or in any manner remove, or permit to be shipped, transferred or removed, from the place of storage at which the receipt is given, any produce or commodity for which a receipt ARIZONA. 23 has been given by him as aforesaid for storing, without the written consent of the holder of the receipt. Id. sec. 4158. Owner entitled to property on presentation of receipt and charges : On presentation of the receipt given by any person operating any warehouse for any pro(kice or connnodity, and on payment of all charges due thereon, the owner shall be entitled to the immediate possession of the commodity named in the receipt, and it shall be the duty of such warehouseman, or other person having possession thereof, to deliver such commodity to the owner of such receipt without further expense to such owner and without unnecessary tlelay. Id. sec. 4159. Penalties for violation : Any person who shall violate any of the provisions of this title shall be liable to indictment, and, upon conviction, shall be fined in any sum not exceeding five thousand dollars, or be imprisoned in the territorial prison not exceeding five years, or both ; and in case of a corporation, the person acting for the corporation shall be liable for like punishment upon indict- ment and conviction. And every person aggrieved by a vio- lation of this title may have and maintain an action at law against the person or corporation violating any of its provisions to recover all damages, immediate or consequential, which he or they may have sustained by reason of such violation, be- fore any court of competent jurisdiction, whether such person shall have been convicted under this title or not. Id. sec. 4160. Checks and receipts negotiable : All checks and receipts given by any person operating any warehouse for any produce or commodity stored or deposited are hereby declared negotiable, and may be transferred by indorsement of the party to whose order such check or receipt was given or issued, and such indorsement shall be deemed a valid transfer of the commodity represented by such receipt, and may be made either in blank or to the order of another. Id. sec. 4161. Transfer of title : All the title to the produce or commodity which the first 24 ARIZONA LAWS. holder of a warehouse receipt had when he received it passes to every subsequent indorsee thereof in good faith, and for value, in the ordinary course of business, with like effect and in like manner as in the case of a bill of exchange. Id. sec. 4162. Receipt made to " bearer " : When a warehouse receipt is made to "bearer" or in equiva- lent terms, a simple transfer thereof by delivery conveys the same title as an indorsement. Id. sec. 4163. Receipt does not alter obligations of proprietor : A warehouse receipt does not alter the rights or obligations of the warehouse proprietor as defined in this title unless it is plainly inconsistent therewith. Id. sec. 4164. Duplicate receipts : A warehouse proprietor must subscribe and deliver to the bailor, on demand, any reasonable number of warehouse re- ceipts, not exceeding three (one original and the others marked "Duplicate," and the original to state the number of duplicates issued) of the same tenor, expressing truly the original contract for storage, and if he refuses to do so, the bailor may take the produce or commodity from him, and recover from him besides all damages thereby occasioned. Id. sec. 4165. Proprietor exonerated from liability: A warehouse proprietor is exonerated from liability for pro- duce or commodity by delivery thereof, in good faith, to any holder of an original warehouse receipt thereof, properly in- dorsed, or made in favor of the bearer. Id. sec. 4166. Surrender of receipt: When a warehouse proprietor has given a warehouse receipt, or other instrument, substantially equivalent thereto, he may require its surrender, or a reasonable indemnity against claims thereon, before delivering the produce or commodity. Id. sec. 4167. (The above laws took effect September 1, 1901.) Note. There seem to be no decisions in Arizona affecting warehouse- men. ARKANSAS. 25 CHAPTER III. ARKANSAS. LAWS PERTAINING TO WAREHOUSEMEN. Wareliouseiiijiii not to issue receipts uutil goods are under his control : No warehouseman, wharfinger or other person shall issue any receipt or voucher for any goods, wares, merchandise, cotton, grain, flour or other produce or commodity to any person or persons purporting to be the holder or holders, owner or owners thereof, unless such goods, wares, merchandise, cotton, grain, flour or other produce or commodity shall have been actually received into the store or upon the premises of such warehouseman, wharfinger or other person, and shall be in the store or on the premises aforesaid, and under his con- trol at the time of issuing such receipt. S. & H. Digest, 1894, sec. 504. No warehouseman, wharfinger or other person shall issue any receipt or other vouchor u]Don any goods, wares, mer- chandise, cotton, grain, flour, or other produce or commodity to any person or persons for any money loaned or other in- debtedness, unless such goods, wares, merchandise, cotton, grain, flour or other produce or commodity shall be, at the time of issuing such receipt, in the custody of such warehouse- man, wharfinger or other person, and shall be in store or upon the premises and under his control at the time of issuing such receipt or other voucher as aforesaid. Id. sec. 505. No warehouseman, wharfinger or other person shall issue any second or duplicate receipt for any goods, wares, mer- chandise, cotton, grain, flour or other produce or commodity, while any former receipt for such goods, wares, merchandise, cotton, grain, flour or other produce or commodity, as afore- said, or any part thereof, shall be outstanding and uncancelled 26 ARKANSAS LAWS. without writing; across the face of the same. "Duplicate." Id. sec. 506. No warehouseman, wharfinger or other person shall sell or incumber, ship or transfer, or in any manner remove, or per- mit to be shipped, transferred or removed beyond his control, any such goods, wares, merchandise, cotton, grain, flour or other produce or commodity, for which a receipt shall have been given by him, as aforesaid, whether received for storing, shipping grinding, manufacturing or other purpose, without the written assent of the person or persons holding such re- ceipt. Id. sec. 507. No master, owner or agent of any boat or vessel, of any de- scription, forwarder or officer or agent of any railroad, trans- fer or transportation company, or other person shall sign, or give away any bill of lading, receipt or other voucher or docu- ment for any merchandise or property by which it shall appear that such merchandise or property has been shipped on board of any l^oat, vessel, railroad car or other vehicle, unless the same shall have been actually shipped and put on board, and shall be at the time actually on board or delivered to such boat, vessel, car or other vehicle, or to the owner or owners thereof, or his or their agent or agents, to be carried and con- veyed as expressed in such bill of lading, leceipt or other voucher or document. Id. sec. 508. All receipts issued or given by any warehouseman, wharfinger or other person or firm, and all bills of lading, transportation receipts and contracts of affreightment issued or given by any person, boat, railroad, transportation or transfer company for goods, wares, merchandise, cotton, grain, flour, or other pro- duce or commodity, shall be and are thereby made negotiable by written indorsement thereon, and deliveiy 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 way limit the negotiability, or aflect any negotia- tion thereof, nor in any manner impair the right and duties of the parties thereto, or persons interested therein; and every such condition, clause or provision purporting to limit or affect ARKANSAS. 27 the rights, duties or liabilities created or declared in this act, shall be void and of no force or effect. Id. sec. 509 Above section construed — Bill of lading— Transfer without Indorsement : If a written indorsement is necessary under S. & H. Dig. §§ 509, 510, to transfer the legal title to the property described in a bill of lading, a transfer of one without indorsement as security for advances made is sufficient to pass the equitable title therein. Turner v. Israel, 64 Ark. 244. Warehouse receipts given by any warehouseman, wharfinger or other person or firm for any goods, wares, merchandise, cotton, grain, 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, trans- portation or transfer company, may be transferred by indorse- ment 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, cotton, grain, flour or other produce or com- modity, so far as to give validity to any pledge, lien or trans- fer 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 receipts and bills of lading; provided, 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. Id. sec. 510. Any warehouseman, wharfinger, forwarder or other person who shall violate any of the provisions of this act shall be deemed guilty of a criminal offense, and upon indictment and conviction shall be fined in any sum not exceeding five thou- sand dollars, or imprisoned in the penitentiary of this state not exceeding five years, or both; and all and every person or persons aggrieved by the violation of any of the provisions of this act may have and maintain an action at law against the person or persons, corporation or corporations, ^^olating any of the provisions of this act, to recover all damages wliich 28 ARKANSAS LAWS. he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurischction, whether such person or persons shall have been convicted of fraud as aforesaid under this act or not. Id. sec. 511. All provisions of this act shall apply to bills of lading, and to all persons or corporations, their agents or servants, that shall or may issue bills of lading of any kind or description, the same as if the words "forwarder" and "bills of lad- ing" were mentioned in every section of said act. Id. sec. 512. So much of the preceding sections of this act as forbids the delivery of property except on surrender and cancellation of the original receipt or bill of lading, or the indorsement of such delivery thereon in case of partial delivery, shall not ap- ply to property replevied, or removed by operation of law. Id. sec. 513. Act, March 15, 1887. When any goods, merchandise or other property shall have been received by any warehouseman, commission merchant, or common carrier and shall not be claimed or received by the owner, consignee or other authorized person for the period of six months from the time the same should have been called for, it shall be lawful for such warehouseman, commission mer- chant or carrier to sell such goods, merchandise or other prop- erty to the highest bidder for cash, first having given twenty days' notice of the time and place of sale to the owner, con- signee or consignor, when known, and by advertisement for two insertions in a daily or weekly newspaper published in the county where such sale is to take place, the proceeds of such sale to be applied to the payment of freight, storage and charges due, and the cost of advertising and making said sale, and if any surplus is left after paying freight, storage, cost of adver- tising and all other just and reasonable charges, the same shall be paid over to the rightful owner of said property at any time thereafter, upon demand being made therefor. Railroad companies shall not charge storage for the first forty-eight hours, nor more than five cents per day after the first forty-eight hours on baggage not exceeding one hundred and fifty pounds. A record of such sale shall be kept, which 9Q AKKANSAS. shall be open to the inspection of all parties interested therein Sec 2 All laws in conflict herewith are hereby repealed, and this act shall take effect and be in force from and after .ts pas- sage. Act XXX, Laws, 1895, Approved March 7, 1895. 30 ARKANSAS DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Burden of proof — Erroneous instruction to jury. The following instruction given to the jury held, on appeal, to be reversible error : ' ' The loss of the cotton being admitted, the burden is upon the defendant to show that such loss was not caused by the negligence of him or his servants; and, unless you find by a preponderance of the evidence that the loss was not caused by such negligence, your verdict will be for the plaintiff." Further held that the burden was upon plaintiff to show defendant's negligence. James v. Orrell, 68 Ark. 284. B. Ordinary care — W arehousertian not an insurer. A warehouseman is bound only to the exercise of reasonable and ordinary care in the preservation of goods intrusted to him. He is not an insurer of such goods and he is not responsible for their loss unless occasioned by his fault or negligence. Little Rock& F. S.Ry. Co. v. Hunter, ^2 Ark. 200; Kansas City & F. S. Ry. Co. V. McGahey, 63 Ark. 344; Murphy v. Lemay, 32 Ark. 223 ; Union Compress Co. v. Numially, 67 Ark. 284; Burr & Co. V. Daugherty, 21 Ark. 559. Conversion — Sale by son of warehouseman — Ratification. The son of a warehouseman sold plaintiff 's goods which were stored. It appeared that the son thought the goods had been abandoned ; further that the warehouseman accepted part of the proceeds of the sale and intended to collect the balance. Held, that this was a ratification of the son's acts and that it constituted a conversion of the goods for which the warehouse- man was liable. Creson v. Ward, 66 Ark. 209. H. Lien — None for other indebtedness — Waiver of — Vendee. A warehouseman has no lien upon goods in his possession for any indebtedness to him from the owner disconnected with ARKANSAS. 31 the charges upon the gootls. A warehouseman having placed his refusal to deliver goods on the ground of a claim against the owner disconnected with the goods, cannot afterwards set up his lien for storage as an excuse for not having delivered them. Nor is it necessary, after refusal to deliver on such ground for the owner to make formal tender of the amount due for storage. Scott v. Jester, 13 Ark. 437. L. Replevin—Storage charges must he paid before it will lie- Demand. Replevin will not lie for property legally in the possession of another who has a lien upon it for charges, until such charges be paid, nor until after demand and refusal or conversion. Hill V. Robinson, 16 Ark. 90; Burr & Co. v. Dougherty, 21 Ark. 559. N. Loss of goods— Destruction after reaching hands of warehouse- man, but before reaching place of storage. Where a warehouseman agrees to receive goods at another than the place of storage, he is bound to exercise ordinary diligence in their removal and preservation from waste; and if from the want of common and reasonable diligence in their removal they are destroyed, he would be responsible to the bailor in the proper form of action. Burr & Co. v. Daugherty, 21 Ark. 559. Negligence — What constitutes — Destruction by fire. In an action against a railway company liable as warehouse- man, for goods destroyed in its depot, it appeared that a large quantity of cotton w^as piled on its platform near the depot and a short distance from the railway track ; that at the time the weather was very dry ; that the cotton was highly inflamma- ble and without protection; that about fifteen minutes after a train passed, the cotton caught fire, which extended to the depot and destroyed plaintiff's goods. Held, that there was evidence to sustain a finding that defendant was guilty of neg- ligence. Railway v. Dodd. 59 Ark. 317. 32 ARKANSAS DECISIONS. Destruction by a mob. Where goods in the hands of one hable as a warehouseman were destroyed by a mob, and no evidence was given to show neghgence on his part, it was held that he was not hable for the value of the same. Pacific Express Co. v. Wallace, 60 Ark. 100. P. Insurance — Compress company may insure for full value. Where a compress company insured goods intrusted with it for compression, to their full value and in its own name it was held lawful, and that in the case of loss it could recover the full amount of the policy. After deducting the amount of its interest it would hold the balance of the fund in trust for the owners of the goods. California Ins. Co. v. Union Compress Co., 133 U. S. 387; Home Ins. Co. v. Balto. Ware- house Co., 93 U. S. 527; London & N. W. Ry. Co. v. Glyn, 1 Ell. & E. Q. B. 652. Warehouse receipt — Effect of transfer. A warehouseman's receipt for cotton stored in his warehouse is such a document of title that its transfer, by indorsement or otherwise, clothes the transferee with the legal title and con- structive possession of the cotton; and this without notice to the warehouseman of the transfer or agreement by him to hold for the transferee. Durr et at. v. Hervey, 44 Ark. 301. Same — Same — Warehouseman bailee of every transferee. By executing the receipt the warehouseman consents to be- come the bailee of any one to whom it may be transferred, and to become such bailee from the time of transfer. Id. Same — As collateral — Indorsement, effect of. The indorsement and delivery of a warehouse receipt by the owner of the property described in the receipt, to secure a debt, passes the title of the property to the indorsee, as against the claims of purchasers and creditors. Bank of Newport v. Hirsch, 59 Ark. 225. ARKANSAS. 33 Bill of lading — Recitals therein as to condition of the goods. A recital in a bill of lading that the goods were received "in apparent good order" refers only to the external condition of the goods, and as between the original parties is only prima facie proof of the true condition of the goods when received. Rij. Co. V. Neel, 56 Ark. 279. Same — Transfer without indorsement — Equitable title. By the statutes of this state bills of lading are made nego- tiable like those of exchange and promissory notes and may be transferred by written indorsement. (Sand. H. Dig. sees. 509 and 510.) Assuming that these statutes require written in- dorsement to transfer the legal title it is, nevertheless, true that the transfer without indorsement, like the transfer of an un- indorsed note, would be sufficient to pass the equitable title. Turner v. Israel, 64 Ark. 244. Same — What constitides possession or control — Estoppel. By the Act of March 15, 1887 (sec. 505), common carriers, warehousemen and others are prohibited from issuing a receipt, bill of lading or other voucher for any goods unless the same are in store or upon the premises and under the control of such warehouseman or carrier at the time of the issuance thereof. This statute gives a right of action against any person aggrieved by the issuance of such receipt or vouchor contrary to its terms. It appeared that a carrier issued bills of lading for goods which were in possession of a compress company pursuant to an ar- rangement therewith. It was held that the carrier was not estopped as to third persons from denying that the property represented by the bill of lading was not in his possession or under his control. Martin v. Railway Co., 55 Ark. 510. 3 '64i CALIFUKNIA LAWS. CHAPTER IV. CALIFORNIA. LAWS PERTAINING TO WAREHOUSEMEN. Deposit, kinds of : A deposit may be voluntary or involuntary; and for safe- keeping or for exchange. Pomeroy's Civil Code, Cal. 1901, sec. 1813. Deposit for safe-keeping, what : A deposit for keeping is one in which the depositary is bound to return the identical thing deposited. Id. sec. 1817. Deposit for excliauge, wliat : A deposit for exchange is one in which the depositary is only bound to return a thing corresponding in kind to that which is deposited. Id. sec. 1818. Depositary mnst deliver on demand : A depositary must deliver the thing to the person for whose benefit it was deposited, on demand, whether the deposit was made for a specified time or not, unless he has a lien upon the thing deposited, or has been forbidden or prevented from doing so by the real owner thereof, or by the act of the law, and has given the notice rec(uired by section eighteen hundred and twenty-five. Id. sec. 1822. No obligation to deliver without demand : A depositary is not bound to deliver a thing deposited with- out demand, even where the deposit is made for a specified time. Id. sec. 1823. Notice to owner of adverse claim : A depositary must give prompt notice to the person for whose benefit the deposit was made, of any proceedings taken ad- CALIFORNIA. 35 versely to his interest in the thing deposited, which may tend to excuse the depositary from dehvering the thing to him. Id. sec. 1825. Notice to owner of tliinj? wrongfully detained : A depositary who believes that a thing deposited with him is wrongfully detained from its true owner may give him notice of the deposit; and if within a reasonable time afterwards he does not claim it, and sufficiently establish his right thereto, and indenmify the depositary against the claim of the depositor, the depositary is exonerated from liability to the person to whom he gave notice, upon returning the thing to the depositor, or assuming, in good faith, a new obligation changing his posi- tion in respect to the thing, to his prejudice. Id. sec. 1826. Delivery of a thing owned jointly, etc. : If a thing deposited is owned jointly or in common by persons who cannot agree upon the manner of its delivery, the depos- itary may deliver to each his proper share thereof, if it can be done without injury to the thing. Id. sec. 1827. Depositor must indemnify depositary : A depositor must indenmify the depositary : 1. For all damage caused to him by the defects or vices of the thing deposited; and, 2. For all expenses necessarily in- curred by him about the thing, other than such as are involved in the nature of the undertaking. Id. sec. 1833. Obligations as to use of thing deposited : A depositary may not use the thing deposited, or permit it to be used, for any purpose, without the consent of the depositor. He may not, if it is purposely fastened by the depositor, open it without the consent of the latter, except in case of necessity. Id. sec. 1835. Liability for damage arising from wrongful use : A depositary is liable for any damage happening' to the thing deposited, during his wrongful use thereof, unless such damage must inevitably have happened though the property had not been thus used. Id. sec. 1836. 36 CALIFORNIA LAWS. Sale of thins in danger of perishing : If a thing deposited is in actual danger of perishing before instructions can be obtained from the depositor, the depositary may sell it for the best price obtainable, and retain the pro- ceeds as a deposit, giving immediate notice of his proceedings to the depositor. Id. sec. 1837. Injury to or loss of thing deposited : If a thing is lost or injured during its deposit, and the de- positary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far as he has in- formation concerning them, or willfully misrepresents the cir- cumstances to him, the depositary is presumed to have will- fully, or by gross negligence, permitted the loss or injury to occur. Id. sec. 1838. Limitation of depositary for negligence : The liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has rea- son to suppose, the thing deposited to be worth. Id. sec. 1840. Deposit for hire : A deposit not gratuitous is called storage. A depositary in such case is called a depositary for hire. Id. sec. 1851. Degree of care required of depositary for hire : A depositary for hire must use at least ordinary care for the preservation of the thing deposited. Id. sec. 1852. Rate of compensation for a fraction of a >veek, etc. : In the absence of a different agreement or usage, a depositary for hire is entitled to one week's hire for the sustenance and shelter of living animals during any fraction of a week, and to half a month's hire for the storage of any other property during any fraction of a half month. Id. sec. 1853. Termination of deposit : In the absence of an agreement as to the length of time dur- ing which a deposit is to continue, it may be terminated by the depositor at any time, and by the depositary upon reason- able notice. Id. sec. 1854. CALIFORNIA. 87 Same : Notwithstanding an agreement respecting the length of time during which a deposit is to continue, it may be terminated by the depositor on paying all that would become due to the depositary in case of the deposit so continuing. Id. sec. 1855. Lien for storage charged : A depositary for hire has a lien for storage charges, which is regulated by the title on liens. Id. sec. 1856. Storage property to be sold : If, from any other cause other than want of ordinary care and diligence on his part, a depositary for hire is unable to de- liver perishable property, baggage, or luggage received by him for storage, or to collect his charges for storage due thereon, he may cause such property to be sold, in open market, to sat- isfy his lien for storage ; provided, that no property except per- ishable property shall be sold, under the provisions of this section, upon which storage charges shall not be due and un- paid for one year at the time of such sale. Id. sec. 1857. Warehouse receipts iiiiist not be issued unless the prop- erty has been received and remains in store : A warehouseman, wharfinger, or other person doing a storage business must not issue any receipt or voucher for any mer- chandise, grain, or other product or thing of value, to any per- son purporting to be the owner thereof, nor to any person as security for any indebtedness or for the performance of any obligation, unless such merchandise, grain, or other product, commodity, or thing has been, in good faith, received by such warehouseman, wharfinger or other person, and is in his store or under his control at the time of issuing his receipt; nor must any second receipt for any such property be issued while a former receipt for any part thereof is outstanding and uncan- celled. Id. sec. 1858. Property not to be removed without consent in writing : No warehouseman, wharfinger, or other person must sell or incumber, ship, transfer, or remove beyond his control any 38 CALIFORNIA LAWS. property for which a receipt has been given, without the con- sent in writing of the person holding such receipt plainly in- dorsed thereon in ink. Id. sec. 1858a. Warehouse receipts, classilication and effect of : Warehouse receipts for property stored are of two classes; first, transferable or negotiable; and second, non-transferable or non-negotiable. Under the first of these classes the property is transferable by indorsement of the party to whose order such receipt was issued, and such indorsement is a valid transfer of the prop- erty represented by the receipt, and may be in blank or to the order of another. All warehouse receipts must distinctly state on their face for what they are issued and its brands and dis- tinguishing marks and the rate of storage per month or season, and, in case of grain, the kind, the number of sacks, and pounds. If a receipt is not negotiable, it must have printed across its face, in red ink, in bold, distinct letters, the word "non-nego- tiable." Id. sec. 18586. Indorsement on back of negotiable receipt of property delivered : If a negotiable receipt is issued for any property, neither the person issuing it nor any other person into whose care or control the property comes must deliver any part thereof without indorsing on the back of the receii)t, in ink, the amount and date of the delivery; nor can he be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt, when called upon to deliver any property for which it was issued. Id. sec. 1858r. Negotiable receipts and their effect : If a non-negotiable receipt is issued for any property, neither the person issuing nor any other person in whose care or con- trol the property comes must deliver any jjart thereof, except upon the written order of the person to whom the receipt was issued. Id. sec. 1858d. Liability of loss by fire : No warehouseman or other person doing a general storage CALIFUKNIA. 39 business is responsible for any loss or damage to property by fire while in his custody, if he exorcises reasonable care and diligence for its protection and preservation. Id. sec. 1858e. Penalties and liabiliUes : Every warehouseman, wharfinger, or other person who vio- lates any of the provisions of section eighteen hundred and fifty-eight to eighteen hundred and fifty-eight e, inclusive, is guilty of a felony, and, uiwn conviction thereof, may be fined in a sum not exceeding five thousand dollars, or imprisoned in the state prison not exceeding five years or both. He is also liable to any person aggrieved by such violation for all damages, innnediate, or consequent, which he may have sus- tained therefrom, which damages may be recovered by a civil action in any court of competent jurisdiction, whether the of- fender has been convicted or not. Id. sec. 1858/. Finder may pnt tiling found in storage : The finder of a thing may exonerate himself from liability at any time by placing it on storage with any responsible per- son of good character, at a reasonable expense. Id. sec. 1868. Obligations of carrier when freight not delivered : If, for any reason, a carrier does not deliver freight to the consignee or his agent personally, he must give notice to the consignee of its arrival, and keep the same in safety, upon his responsibility as a warehouseman, until the consignee has had a reasonable time to remove it. If the place of residence or business of the consignee be unknown to the carrier, he may give the notice by letter dropped in the nearest post-office. Id. sec. 2120. Carrier, how exonerated from liability : If a consignee does not accept and remove freight within a reasonable time after the canin- has fulfilk-d his obligation to deliver, or duly offered to fulfill the same, the carrier may ex- onerate himself from further liability by placing the freight in a suitable warehouse, on storage, on account of the consignee, and giving notice thereof to him. Id. sec. 2121. 40 CALIFORNIA LAWS. Note.— The Act of May 1, 1851 (Statutes of 1851, page 170), next here- inafter set forth, has never been directly repealed and whether it is still in force, and how far it may have been indirectly modified by other provi- sions of the law and the Codes, is doubtful, but it should be considered when making sales, and so far as possible, complied with. An Act to authorize the keepers of warehouses to sell goods on storage after a certain period. Passed May 1, 1851. The People of the State of California, represented in Senate and Assembly, do enact as follows: Sec. 1. It shall and it is hereby made lawful for any merchant or keeper of a warehouse in this state to sell by public auction any and all goods, wares, and merchandise, which may have been left in his store or on storage three months after the storage as agreed upon by the parties shall become due, by giving at least thirty days' notice of such sale, provided he shall only sell sufficient to pay the storage; provided however, that if no agreement shall have been made by the parties, twelve months shall be considered the time for goods to remain in store before the advertising of and sale for storage shall take place. Sec. 2. All goods offered for sale to pay storage as aforesaid shall be published in some newspaper published in such city, town, or place, or if there should not be any newspaper pub- lished in any such city, town or place, the^n there shall be a notice posted in writing at three of the most public places in such city, town or place, setting forth the kind of goods offered for sale, after which sale the party having them in store shall make out an account of the same, which sums shall be deducted from said sale ; the residue shall be paid over to the order of the treasurer of the state hospital within the county, and in the county of San Francisco to the city treasurer for hospital pur- poses, to the credit of the party owning the goods so sold. Sec. 3. All sums thus paid over to the treasurer of the state hospital shall go into the general fund of the state hospital, until claimed by the rightful owner. In the event, however, that there is no such institution as a state hospital within the county where such sale shall take place, then and in that case, all such sums of money may be used by the court of sessions CALIFORNrA. 41 for the use of the poor of said county, until called for by its proper owner. Sec. 4. In all cases where goods, wares or merchandise, shall be offered for sale, as aforesaid, to pay charges for storage, it shall be the duty of the party offering the same to give written notice to the treasurer of the state hospital that such sale will take place, whereupon it shall be the duty of the treasurer of the state hospital to attend such sale, or appoint some one to attend such sale and make a settlement with the party, as di- rected in this act ; should there be no state hospital in the county where such sale shall tak(> place, then tlie county treasurer shall attend such sales, and make a settlement with the party as directed in this act. Sec. 5. In no case shall chests or trunks containing the wear- ing apparel of an individual be sold under the provisions of this act, in less than twelve months from the time the same was stored, unless by express written agreement between the ware- house keeper and the owner of such chest or trunk, authority is given for the sale of the same at a time fixed. Sec. 6. That in case of the death of any person having goods sold under the provisions of this act, the executor or admin- istrator of such deceased person shall be entitled to receive the surplus, if any, after the payment of the warehouse or other proper charges on the same. Sec. 7. That in all cases of sale of chests or trunks, containing wearing apparel, under the provisions of this act, such chests or trunks shall be opened and the goods exposed to public view, so that purchasers may judge of the value of the articles so offered for sale; provided, that all private papers of family relics, found in such chests or trunks, shall be deposited with the county treasurer for safe-keeping, until called for by the owner, or person properly authorized to receive the same. An Act in relation to warehouse and wharfinger receipts, and other matters pertaining thereto. Approved April 1, 1878. Issuance of receipts for £:oo(ls : That no warehouseman, wharfinger, or other person doing 42 CALIFOKNIA LAWS. a storage business, shall issue any receipt or voucher for any goods, wares, merchandise, grain, or other produce or com- modity, to any person or persons purporting to be the owner or owners thereof, unless such goods, wares, merchandise, grain, or other produce or commodity, shall have been bona fide re- ceived 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. Statutes of Cal. 1877-1878, p. 949, sec. 1. Issning of receipt upon ^oods as security tor money loaned: That no warehouseman, wharfinger, or other person engaged in the storage business shall issue any receipt or other voucher upon any goods, wares, merchandise, grain, or other produce 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 ware- houseman, wharfinger, or other person, shall be in store and under control at the time of issuing such receipt or voucher as aforesaid. Id. sec. 2. Second receipts, issuance of : That no warehouseman, wharfinger, or other person as afore- said, shall issue any second receipt for any goods, wares, mer- chandise, 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 uncancelled. Id. sec. .3. RemoTal of goods when receipt issued : That no warehouseman, wharfinger, or other person as afore- said, shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, mer- chandise, 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 or receipts plainly indorsed thereon in ink. Id. sec. 4. CALIFORNIA. 43 Receipts classed : Warehouse receipts for property stored shall be of two classes : First, transferable or negotiable; and, second, non-transferable or non-negotiable. Under the first of these classes, all prop- erty shall be transferable by the indorsement of the party to whose order such receipt may be issued, and such indorsement of the party shall be deemed a valid transfer of the property represented by such receipt, and may be in blank or to the order of another. All warehouse receipts for property stored shall distinctly state on their face for what they are issued, as, also the brands and distinguishing marks; and in the case of grain, the number of sacks, and number of pounds, and kind of grain; also the rate of storage per month or season charged for storing the same. Id. sec. 5. Receipts to be indorsed : No warehouseman, or other person or persons, giving or issu- ing negotiable receipts for goods, grain, or other property on storage, shall deliver said property or any part thereof, without indorsing upon the back of said receipt or receipts, in ink, the amount and date of the deliveries. Nor shall he or they be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt or receipts issued for the same, when called upon to deliver said goods, merchandise, grain, or other property. Id. sec. 6. No delivery except on order : No warehouseman, or person or persons, doing a general storage business, giving or issuing non-negotiable or non-trans- ferable receipts for goods, grain, or other property on storage, shall deliver said property, or any part thereof, except upon the written order of the person or persons to whom the receipt or receipts were issued. Id. sec. 7. Non-negotiable receipts, how marked : All receipts issued by any warehouseman or other person, under this act, other than negotiable, shall have printed across their face, in bold, distinct letters, in red ink, the words "non- negotiable." Id. sec. 8. 44 CALIFORNIA LAWS. Loss by Are : No warehouseman, person or persons, doing a general storage business, shall be responsible for any loss or damage to prop- erty by fire wliile in his or their custody, provided reasonable care and vigilance be exercised to protect and preserve the same. Id. sec. 9. Telouy ; Any warehouseman, wharfinger, person or persons, who shall violate any of the foregoing provisions of this act, is guilty of felony, shall be subject to indictment, and, upon conviction, shall be fined in a sum not exceeding five thousand dollars ($5,000), or imprisonment in the state prison of this state not exceeding five years, or both. And all and every person ag- grieved by the violation of any of the provisions of this act may have and maintain an action against the person or persons vio- hiting any of the foregoing provisions of this act, to recover all damages, immediate or consequent, which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted under the act or not. Id. sec. 10. Carriers may retain goods until charges paid : When any goods, merchandise, or other property has been received by any railroad or express company, or other common carrier, commission merchants, innkeepers, or warehousemen, for transportation or safe-keeping, and are not delivered to the owner, consignee, or other authorized person, the carrier, com- mission merchant, innkeeper, or warehouseman, may hold or store the same with some responsible person until the freight and all just and reasonable charges are paid. Pol. Code, 1899, sec. 3152. Property unclaimed Avithin sixty days to be sold : If no person calls for the property within sixty days from the receipt thereof and pays freight charges thereon, the carrier, commission merchant, innkeeper, or warehouseman may sell such property, or so much thereof, at auction to the highest bidder, as will pay freight and charges, first having given twenty CALIFORNIA. 46 days' notice of the time and place of sale to the owner, consignee or consignor, when known, and by advertisement in a daily paper ten days (or if in a weekly paper, four weeks), published where such sale is to take place ; and if any surplus is left after paying freight, storage, cost of advertising, and other reason- able charges, the same must be paid over to the owner of such l)roperty at any time thereafter, upon demand being made therefor within sixty days after the sale. Id. sec. 3153. t Property uiiclainied, where to go : If the owner or his agent fails to demand such surplus within sixty days of the time of such sale, them it must be paid into the county treasury, subject to the order of the owner. Id. sec. 3154. Carrier's responsibility ceases, when : After the storage of goods, merchandise, or property, as herein provided, the responsibility of the carrier ceases, nor is the per- son with whom the same is stored liable for any loss or damage on account thereof, unless the same results from his negligence or want of proper care. Id. sec. 3155. Property upon which advances are made may be sold : When any commission merchant or warehouseman receives on consignment produce, merchandise, or other property, and makes advances thereon, either to the owner or for freight and charges, he may, if the same is not paid to him within sixty days from the date of such advances, cause the produce, merchandise, or property on which the advances were made, to be advertised and sold as provided herein. Id. sec. 3156. Issuing fictitious warehouse receipts : Every person carrying on the business of a warehouseman, wharfinger, or other depositary of property, who issues any receipt, bill of lading, or other voucher for any merchandise of any description, which has not been actually received upon the premises of such person, and is not under his actual control at the time of issuing such instrument, whether such instrument 46 CALIFORNIA LAWS. is issued to a person as being the owner of such merchandise or as security for any indebtedness, is punishable by imprison- ment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Pomeroy's Penal Code, Cal. 1901, sec. 578. CALIFORNIA. 47 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailme7ii — Requisites of a prima facie case — Burden of proof, shifting thereof. Proof of the deposit and failure to redeliver in accordance with the terms of the contract makes a prima facie case against the warehouseman and the burden is upon him to excuse the failure to redeliver. But where the warehouseman shows the return of the goods stored and further that the contents of the packages have been lost by leakage or other inherent cause, the burden shifts to the plaintiff to prove affirmatively that the leakage was caused by the fault of the warehouseman. Taussig et al V. Bode & Haslett, 134 Cal. 260. Same — Bailee protected by delivery in good faith to bailor. Where a warehouseman, after having goods in his posses- sion, returns the same to his bailor without notice that a third party claims title thereto, such delivery made in good faith is a good defense in an action against a warehouseman. Steele v. Marsicano, 102 Cal. 666. Same — Insufficient evidence in action of detinue. In an action of detinue against a warehouseman for property stored with him, it was no defense for him to show that he had wrongfully disposed of the property in an attempt thereby to defeat the action of detinue which is for the recovery of the specific article. The defendant was not allowed to set up his own wrong to defeat the action; therefore the warehouseman was held liable for the value of the property. Faulkner v. First National Bank, 130 Cal. 258. B. Absolute contract to return property — Exception — Damage by the elements, construed to mean act of God. Where a warehouse receipt states that the goods are to be returned to the bailor, the one exception stated therein being "damage by the elements" the warehouseman is bound to de- 4g CALIFORNIA DECISIONS. liver such goods upon presentation of receipt; the only vahd excuse which he can make is for loss or damage resulting from act of God. Pope v. Farmers' Union arid Milling Co., 130 Cal. 139. Liability of warehousemen — Valid stipulation limiting same — Public policy. Agreement between a warehouseman and bailor under which the former claims exemption from liability from loss by fire, the elements, shrinkage, leakage, or natural decay, under a notice printed upon the margin of the warehouse receipt, in which it is stated that loss or damage from the above causes is at the owner's risk, it was held that the warehouseman was so exempt from liability and that there is no infringement of public policy by a stipulation to the above effect. Taussig et at. V. Bode & Haslett, 134 Cal. 260. Bill of sale — Delivery at warehouse to be weighed, effect on title — Attachment. The owner of stored wheat sold the same and certain other wheat which was not in the warehouse but, under the terms of the bill of sale, was to be delivered at the warehouse for the purpose of being weighed and the warehouseman was thereupon to show a certificate as to the correctness of its weight, such certificate to be in the name of the purchaser. When the goods had been so delivered but before the certificate had been issued to the buyer, it was attempted to attach the goods. It was held, that the delivery io the warehouseman constituted pas- sage of title to the goods and that the attachment had been improperly made. Greenbaum v. Martinez, 86 Cal. 459. Sale of wheat by warehouseman who is also a dealer therein — Necessary evidence. Where a person is acting as a warehouseman for the storage of wheat and is also engaged in the business of buying and sell- ing wheat, a sale by him to a purchaser will not be set aside in the absence of conclusive evidence that the wheat so sold be- longed to the plaintiff and that it was stored with such ware- houseman and then sold by him. Davis v. McNear, 101 Cal. 606. CALIFORNIA. 49 Sale of goods while stored — Order upon warehouseman — Bona fide purchaser protected. A sells to B part of the goods which he has stored with M, a warehouseman, and delivers to M an order authorizing B to remove the goods sold to him. B pays A a part of the purchase price thereof and gives him a note for the balance, in which it is stated that A shall have a lien on such goods as additional security for the payment of the note; B then sells the goods to a bona fide purchaser, C. Held, C takes clear of any lien of A upon the goods for the balance remaining due on the purchase price thereof. Goldstone v. Merchants Ice and Cold Storage Co., 123 Cal. 625. Conversion — Defined to he a tort. In order to establish conversion a tortious act must be shown. Steele v. Marsicano, 102 Cal. 666. Same — Intermeddling in ignorance of owner's claim not con- version. Where one intermeddling with another's property does not assert title to it, this act does not constitute a conversion. There must be some act implying the exercise or assertion of title or dominion over the goods or some act inconsistent with the plaintiff's right of ownership or in repudiation of such right. Id. Same — Effect of refusal to deliver. A demand of the property and a refusal to redeliver it do not of themselves constitute a conversion. They are merely evi- dence from which a conversion may be established and as evi- dence may be repelled by proof of inability to comply, the plain- tiff must also show the ability of the defendant to comply with the demand at the time it was made. Id. Same — Satne — Held to he conversion. Where a plaintiff avers that demands were made upon de- fendant for the redelivery of goods and that defendant per- sistently refused to so deliver them, it was held that this con- stituted a sufficient averment of conversion. Faulkner v. First National Bank, 130 Cal. 258. 4 50 CALIFOENIA DECISIONS. Same — Liability for. Where a warehouseman, knowing of a claim of title of a third person to wheat stored in his warehouse in the name of such third person's broker, the delivery of the wheat, without notice to such third person, to an assignee of the broker is conversion thereof, for which the warehouseman is liable. Hanna v. Flint et al, 14 Cal. 74; Wilson v. Southern Pacific R. R. Co., 62 Cal. 164. Same — Same — Goods still in the warehouse — False statement as to sale for storage charges — Return of warehouse receipt not demanded. Where it appeared that the defendant, a warehouseman, had refused to deliver property of the plaintiff which he held on storage, stating that the same had been sold in order to pay charges and at the same time demanded a cash amount, for which he agreed to deliver the goods, it was held, that such statements amount to a conversion of the property, for which the warehouseman was liable, and he could not set up a defense that he justified his refusal to deliver the goods on the ground that the receipt therefor had not been tendered to him, it ap- pearing from evidence that he had made no demand for the receipt. Briggs v. Haycock, 63 Cal. 343. Same — When mortgagee can maintain action. Where a warehouseman delivered harvested crops to a vendee of the assignee in insolvency of the mortgagor of the crops, the mortgagee may maintain an action for conversion against the warehouseman for such wrongful delivery. Compodonico v. Oregon Improvement Co., 87 Cal. 566. Same — Variance as to date — Effect. Where in a complaint in an action for conversion it is alleged that the conversion was done by the defendant on a particular day and by the proof at the trial it is shown that the conversion took place upon another day, subsequent thereto, but prior to the commencement of action, such variance is not fatal. Bancroft v. Haslett et al., 106 Cal. 151, OALIFOKNIA. 51 Warehouse, real property. In the absence of evidence to show that a warehouse, 100 feet by 40 feet (100 x 40), was not attached to the ground, it will be presumed that it was so attached and will accordingly be treated as real estate. Santa Ana v. Pritchard et al, 126 Cal. 600. Allegations as to ownership of warehouse receipt — Presump- tions therefrom — General demurrer. Where a complainant in an action against warehousemen alleges that the defendants were, at the times named therein, engaged in the business of warehousemen and as such doing a general storage business and that prior to a certain date plain- tiff delivered to the defendants for storage and stored with them certain quantities of barley and received therefor a warehouse receipt, copy of which is set forth in the complaint, and further alleges that the plaintiff has at all times since the delivery of such property to the warehousemen, and is at the time of bring- ing the action, the sole owner and holder of said receipt and that on a certain date plaintiff presented receipt to defendants and thereupon demanded delivery of the barley, the defendants refusing to comply with said demand ; it was held, upon gen- eral demurrer, which set forth that it was nowhere alleged in the complaint that at the time of the commencement of the ac- tion plaintiff was the owner and entitled to the possession of the property claimed, that the presentation of the warehouse receipt in exactly the same condition in which it was received by complainant was sufficient allegation of the ownership of the property. The court, however, intimated that a special demurrer might have been sustained. Visher v. Smith, 91 Cal. 260. Statements made by a warehouseman — When considered part of res gestce. When it appears that a warehouseman made statements, at the time of the removal of wheat from his warehouse, pertain- ing to the ownership thereof, such statements will be received in evidence as part of the res gestce. Garoutte v. Williamson, 108 Cal. 135. 52 CALIFOKNIA DECISIONS. Claim and delivery — Auxiliary action — Pleading. In California there is no form of action which is known tech- nically as "claim and delivery." The sections in the Code, under this title, provide an auxiliary remedy for the recovery of personal property. In a case where an auxihary remedy is not invoked the general rules of pleading apply. Faulkner v. First National Bank, 130 Cal. 258. C. Safe deposit — General principles. Where one rents a safe deposit box from a bank the bank becomes his bailee for hire and is bound to exercise ordinary care in the preservation and safe-keeping thereof, in the absence of a special agreement to the contrary. Cussen v. Southern California Savings Bank, 133 Cal. 534. Same — Modified hy agreement — Limitations of such agreement. Where the lessor of a safe deposit box and the lessee thereof agree that the former ''shall use diligence that no unauthor- ized person shall be admitted to any rented safe, and beyond this the lessor shall not be responsible for the contents of any safe rented it." Such agreement will not be interpreted to mean that the lessor is thereby relieved from liability to use proper care in the selection of employees to guard such safes, nor is such contract to be in any manner construed as a general waiver by the lessee of the lessor's obligation of the bailee for hire. Id. Same — Duplicate keys — Retention of one hy bailee, not proper care — Prima facie case. Held, jury was fully justified in declaring defendant wanting in the exercise of proper care when it failed to deliver to plain- tiff both keys of a safe deposit box which it rented to him, thus leaving outstanding, in the hands of some one, a key to the box. As a further lack of proper care, it was shown that the room containing the boxes was in charge of a young man of about the age of seventeen years, who had been in the employ of the defendant for but three months. A prima facie case is made out by showing a deposit in the box and subsequent loss. Id. CALIFORISJIA. 58 Same — Same — Section 1840, Civil Code, not applicable. In such a case as the above, the defendant cannot find rehef under section 1840 of the Code which declares that the Habihty of a depositary for neghgence cannot exceed the amount which he is informed, by the depositor, or has reason to suppose, the articles deposited to be worth. The very manner of conduct- ing the business of renting safe deposit boxes contemplates that the bailee shall not know the value of the thing deposited. Id. F. Common carrier — Liability as warehouseman. A common carrier becomes liable as a warehouseman only after the transit is terminated and the consignee has been noti- fied of the arrival of the goods. Wilson v. California Central R. R. Co., 94 Cal. 166; Jackson v. Sacramento Valley R. R. Co., 23 Cal. 268; Hoyt v. Railroad, 68 Cal. 644. H. Action for storage charges — When earned — Entire contract. Where a warehouseman contracts to store hay from Octo- ber 17th to the 1st of the following June and during such in- terval the warehouse and contents are destroyed by fire, he cannot maintain an action for the recovery of his charges. The contract is an entire one and his charges are not due until he has complied with the terms thereof. In the absence of a stipu- lation in such contract that a proportional amount of the storage charges should be earned as the time expires, there can be no recovery unless contract has been fully carried out. Cunning- ham V. Kenney, 105 Cal. 118. Improper sale for storage charges. In an action brought by bailor against a warehouseman for conversion of a piano, the defendant alleged that the piano was sold for lawful storage charges and that payment of such charges had been refused by the plaintiff when demanded of him and that there is now still due the defendant money for the storage of the piano. The findings showed that the defendant did not come into lawful possession of the piano, that plaintiff had de- 54 CALIFORNIA DECISIONS. manded its return, which was refused, and that it had been taken from the plaintiff against his will. It was held on the above findings, that the plaintiff was entitled to damages and a request for further evidence was properly denied. Bancroft Co. V. Haslett, 106 Cal. 151. Sale for storage charges — Liable for conversion unless proper notice given — Ignorance of the owner's actual address. Plaintiff brought suit against defendant, a warehouseman, for conversion of household goods stored with him ; it appeared on the trial that the goods had been sold for storage charges but that the owner had not received actual notice of such sale, as is required. It further appeared that warehouseman had failed to note address of the plaintiff at the time goods were stored. It was held, that such sale, in the absence of the actual notice, as required, constituted a conversion for which the de- fendant was liable and that the fact that the defendant had failed to note the place of residence of the plaintiff constituted no excuse for the absence of actual notice. Stewart v. Naud, 125 Cal. 596. Same — When sheriff bailor — Liability for conversion if he al- lows sale for storage charges — Order of court necessary. If a sheriff who has attached property, and in order to pro- tect himself, stores the same, he is personally liable to the owner thereof, upon his official bond, if he allows such property to be sold for unpaid storage charges. It was the duty of the warehouseman to procure an order of the court authorizing such sale ; in such a case, the action of the warehouseman is that of his principal, therein, and in spite of the fact that he held a statutory lien on such property for the storage charges there should have been no sale thereof in the absence of an order from the court. Aigeltinger v. Whelan, 133 Cal. 110. Lien for charges — What constitutes a waiver thereof. If a warehouseman states to an officer of the court, who is about to take possession of property stored with him, that there are no charges due upon such property, this constitutes CALIFORNIA. 55 a waiver of his lien for all of such charges as may have then existed. Blackman v. Pierce, 23 Cal. 508. "All claims and liens," held to include cartage charges. Under the terms of a contract between a vendor and vendee of a warehouse, the vendee agreed to collect "all claims and liens " that the vendor then had against the property stored in his warehouse. This was held to include all charges made by the vendor for the cartage of the goods to his warehouse. Hurl- ford V. Neale, 107 Cal. 610. I. Segregation — What constitutes — Ejfect of — Mortgage of stored goods. Where the mortgagee of one thousand sacks of flour stored with a warehouseman, comes to said warehouseman and ex- hibits to him the warehouse receipt for such flour and requests that one thousand or more sacks of such flour be separated from the entire amount of flour stored by the mortgagor, and this is accordingly done; it was held that this constituted a good segregation, and thereupon the warehouseman became the agent of the mortgagee. Squires v. Payne, 6 Cal. 654; Cart- wright V. Phoenix, 7 Cal. 281. Same — When necessary. When a vendor only sells part of the goods on storage, those sold, if stored together and of the same mark, must be sepa- rated from the larger mass in order to change the possession; but where all the goods of the vendor in the hands of a third party are sold, the change of possession is completed by the delivery of the order, taking a new receipt, and entry of the transaction on the books of the warehouseman. Horr v. Barker, 8 Cal. 603 ; S. C, 11 Cal. 393; S. C, 6 Cal. 489, cited in Ghirardelli v. Mc- Dermott, 22 Cal. 539, and Davis v. Russell, 52 Cal. 611. Same — Same — Transfer on books. A had a large quantity of flour stored in the warehouse of B. He sold a portion of it to C, and gave an order therefor on B, who accepted the same and gave C in exchange a receipt for the flour purchased by him, and transferred it on his books 56 CALIFORNIA DECISIONS. to the account of C. There was no separation of specific por- tion from the flour of A as the property of C and the whole was subsequently seized in an action against A. Held, that the sheriff was not liable to C, in the absence of segregation of the flour, but that B was estopped by his receipt from denying his hability. Adavis v. Gorham, 6 Cal. 69. Same — Want of — Estoppel. Warehousemen who give their receipt for goods on storage, are estopped from setting up a want of segregation of the goods receipted for from other goods, in an action against them by the holder of the receipt, for a conversion of the goods by a seizure in an action against a vendor of the plaintiff. And this, although the warehousemen are the attaching creditors, and although the sheriff making the seizure was not hable, by reason of there being no segregation. Goodwin v. Scannell et al., 6 Cal. 541. Misdelivery — Carrier acting as warehouseman. A carrier is liable if it delivers goods to a person who presents a bill of lading therefor which is unindorsed, and such person not being identified to such a carrier as one having an interest in such goods. Cavallarp v. Texas and Pacific Railway Co., 110 Cal. 348. K. Attachment of goods in warehouse — Officer's possession hy aid of keeper — Evidence. An attachment of stored goods is properly made by an officer if he takes actual possession thereof and retains such possession by the assistance of a keeper whom he leaves in personal charge thereof. He may show these facts by parol evidence. Sin- sheimer v. Whitely, 111 Cal. 378. L. Trover — Transfer of warehouse receipt — Conversion — Burden of proof. A plaintiff stored wheat with a warehouseman and received warehouse receipt therefor; there was no other wheat stored in CALIFORNIA. 57 the warehouse at the time and subsequently the warehouseman issued a receipt to another, for certain quantities of wheat, less than the amount stored therein by the plaintiff. Such other person negotiated the receipt to the defendant, who obtained possession of the wheat which it represented. It further ap- peared that plaintiff had pledged his receipt as collateral se- curity for the payment of the loan, but the evidence as to the existence of such loan, date thereof, and its payment was not conclusive. The court instructed the jury that, if they found that the plaintiff was the owner of the receipt at the time that the defendant obtained possession thereof, they should find for the plaintiff, and the jury so found. Upon appeal, this instruction was held correct, Garoutte v. Williamson, 108 Cal. 135. N. Loss by fire — Bailor not affected by contract between warehouse- man and railroad regarding destruction of warehouse by fire — Negligence. A warehouseman constructs a warehouse upon land belong- ing to a railroad and adjacent to its tracks; in the lease between them it was provided that the railroad should not be liable for any loss or damage done to the warehouse, or its contents, as a result of fire communicated by its engines. In a case for loss from such cause it was held, that a person storing his goods in such warehouse could recover from the railroad on showing that the fire was a result of its' negligence. King v. Southern Paa/icCo., 109 Cal. 96. Same — Of incendiary origin — Never "act of God''' — Negligence. Where wheat was destroyed by fire in a warehouse, such fire being of incendiary origin, the warehouseman is liable therefor and cannot set up a defense that the fire occurred without his fault. Negligence does not enter into the question in such cases and its absence will not exonerate the warehouseman. Pojye V. Farmers^ Union and Milling Co., 130 Cal. 139. Same — Burden of proof on plaintiff — Negligence. Where it is shown that the warehouse, containing goods for 58 CALIFORNIA DECISIONS. which an action was brought, was destroyed by fire, the burden of proof is on the plaintiff to show that such fire was caused by the neghgence of the warehouseman. Wilson v. Southern Pacific R. R. Co., 62 Cal. 164. Action for recovery of goods embezzled from warehouse — Ware- houseman may bring one action for the recovery of property be- longing to several bailors. Where goods belonging to different bailors have been stolen from a warehouse by an employee therein and are found in the hands of a third person, the warehouseman may sue for the recovery of all goods so found, and objection made by defend- ant that separate actions should be brought in the case of each of the warehouseman's bailors is not well taken. Bode v. Lee, 102 Cal. 583. Same — Same — Burden of proof. In the above case, if the defendants are unable to prove that they came into possession of the property in ignorance of the fact that it had been embezzled from the plaintiff, the burden of proof will be upon them to prove that the identical goods found in their possession are not the missing portion of the goods which the plaintiff still retains in his warehouse. Id. Negligence — When failure to inspect stored goods is not igno- rance — Leakage — Stipulation in warehouse receipt — Instructions — Reversible error. Where a warehouseman receives spirits for storage and the receipt given therefor states that the warehouseman is not re- sponsible for loss resulting from leakage, and other specified causes, this is held to be a notice to the bailor, and the mere failure of the warehouseman to inspect the barrels containing such spirits cannot be held to constitute negligence on his part. Where, in a trial of such a case, the judge instructs the jury that if they find that the leakage was due to the original negli- gence of the plaintiffs in storing these spirits in leaky casks the defendant will, nevertheless, be liable for the loss, if, by the exercise of ordinary care, he could have discovered and cured the defect or prevented the loss; such instruction held to be reversible error. Taussig et al. v. Bode & Haslett, 134 Cal. 260. CALIFORNIA. 59 Warehouse receipt — Definition . A warehouse receipt has been defined to be a written contract between the owner of the goods and the warehouseman, the latter to store the goods and the former to pay for that service. Sinsheimer v. Whitely, HI Cal. 378; (Hale v. Milwaukee Dock Co., 29 Wis. 488). Sayne — Issued in the name of one not the depositor — Effect. Where A deposits fruit in a warehouse and takes a receipt therefor in the name of B, the reason for his so doing being un- explained to the warehouseman, and A borrows money from the warehouseman with such receipt as collateral security, and afterwards obtains a new receipt issued in his own name, A will be regarded as the owner of the goods, and an action by B against the assignee of the warehouseman cannot be maintained, it not appearing that any privity had existed between them. Lowrie et al. v. Salz et al., 75 Cal. 349. Same — Who may issue. It is only persons who pursue the calling of warehousemen — that is, receive and store goods in warehouses as a business for profit — who have the power to issue a technical warehouse re- ceipt, the transfer of which is a good delivery of the goods rep- resented by it. Sinsheimer v. Whitely, 111 Cal. 378. Same — Negotiability . Warehouse receipts are negotiable unless they have the word "Non-negotiable" printed, in red ink, across their face, and when negotiable an indorsement of the receipt operates as a valid transfer. Cavallaro v. Texas and Pacific Railway Co., 110 Cal. 348; Garoutte v. Williamson, 108 Cal. 135; Bishop v. Fulkerth, 68 Cal. 607; Davis v. Russell et al, 52 Cal. 611. Same — Same — Consideration. A pre-existing debt constitutes a sufficiently valuable con- sideration for a transfer of a warehouse receipt. Davis v. Rus- sell et al, 52 Cal. 611; Bishop v. Fulkerth, 68 Cal. 607 ; Cavallaro V. Texas and P. R. R. Co., 110 Cal. 348. 60 CALIFORNIA DECISIONS. Same — Same — Ejfect of order. Under act of 1878 (Statutes, 1878, page 949) a warehouseman is authorized to deUver goods in cases where a negotiable re- ceipt was issued therefor only upon return and delivery to him of such receipt. In a case where a non-negotiable receipt had been issued the warehouseman can deliver the goods upon a written order of the person who had deposited them. Where a warehouseman receives an order from a bailor directing him to deliver goods standing to his credit, the warehouseman can- not be presumed to have concluded that the receipt issued therefor was a negotiable receipt, but, on the contrary, the inference is that it was non-negotiable. Goldstone v. Merchants' Ice & Cold Storage Co., 123 Cal. 625. Same — Assignment of mortgage — Preference under the insol- vency act. The assignment of a warehouse receipt made by the mort- gagor to the mortgagee on the day of the filing of the mort- gagor's petition of insolvency, was not viewed as a preference under section 55 of the insolvency act, as the value of the prop- erty was less than the debt for which it was mortgaged and nothing was withdrawn from the reach of the assignee repre- senting the creditors of the mortgagor. If it be considered that the effect of this was in form a transfer of the legal title to the property described in the receipt it was nevertheless valid as against the assignee. Campodonico v. Oregon Improve- ment Co., 87 Cal. 566. Same — Delivery when a receipt outstanding — Query. Where a warehouseman issued a receipt to one S., who had made a loan on the wheat stored, to the owners, E. & H., — query, whether they could have refused to deliver the wheat to E. & H. while the receipt to S. was outstanding. Hanna v. Flint, 14 Cal. 74. Same — Weighing tags held not to co7istitute warehouse receipt. The mere transfer of weighing tags upon which it was stated, "Weighed for forty (40) sacks beans" cannot be held to constitute warehouse receipts therefor sufficient to pass the CALIFORNIA. 61 title to the property represented. The court further held, that there must be something on the face of the instrument to in- dicate that a contract of storage had been entered into between the parties. Therefore, in such a case, although the owner had pledged such weighing tags as security for a loan, the property represented thereby could be reached by an attaching creditor. Sinsheimer v. Whitely, 111 Cal. 378. Same — Delivery of order on -warehouseman — Effect. As between parties, the delivery to a purchaser of an order on a warehouseman for the goods was clearly sufficient to pass the title thereto and rendered the purchaser liable for the price thereof. Ghirardelli v. McDermott, 22 Cal. 539. Same — Forgery of — Warehouseman -protected. Where one purchases a warehouse receipt, which was in fact a forgery, the same being executed by a former employee of the warehouseman, and the person who negotiated the receipt to the purchaser had knowledge of the fraud, the warehouseman will not be liable on such a receipt. McNear v. Brown & Hershey, 122 Cal. 621. Sayne — Same — JVhat a warehouseman may offer in evidence. In such a case as above set forth, in an action brought against a warehouseman for the recovery of the value of the wheat represented in the bogus receipt, the warehouseman may show the date on which the clerk, who executed such false receipt, left his employer, and further, that the grain designated in the receipt was not in his warehouse at the time stated therein. Id. R. Bill of lading — Stating ''contents unknown.'' A common carrier cannot protect itself by the statement in a bill of lading, "contents unknown" when there was every opportunity to know the same and the cars were plainly marked with statement of the contents in large letters. Pierce v. Southern Pacific Co., 120 Cal. 156. Same — Stipulations requiring true value — Limitation of liability. A stipulation in a bill of lading to the effect that the carrier g2 CALIFORNIA DECISIONS. would not be liable for a greater sum than fifty dollars, if the package were lost, unless its true value were given, held to be valid one. This true even though the loss resulted from the negligence of the carrier. Michalitschke Brothers v. Wells, Fargo & Co., 118 Cal. 683; Hart v. Penna. R. R. Co., 112 U. S. 341. Same — Effect of transfer — Same as warehouse receipt. An assignment of a bill of lading passes title to the goods represented thereby. The effect of the assignment of a ware- house receipt does not differ materially from that of the as- signment of a bill of lading. Davis v. Russell, 52 Cal. 611. T. Injuries to persons hy warehousemen — Visitor injured hy heavy hale falling upon him — Negligence. Where a person came to a warehouse for the purpose of de- livering a paper there, as he was in the habit of doing daily, and, while passing through a passageway, through which per- sons having business at the warehouse were accustomed to pass, was killed by having a large bale of goods thrown upon him by employees of the warehouseman, the throwing of such bales into the passageway, to which the public had access, was held to constitute negligence, and the fact that the deceased was unable to escape, after hearing the warning shouts of the employees, was held not to constitute contributory negligence on the part of the deceased. O'Callaghan v. Bode, 84 Cal. 489. Goods sold by assistant foreman — Larceny — Embezzlement. Where an assistant foreman of a warehouse sells property stored therein he is guilty of larceny. The defense that the crime was technical embezzlement will not stand, as embezzle- ment is a species of larceny. The People v. Perini et ah, 94 Cal. 573. COLORADO. 63 CHAPTER V. COLORADO. LAWS PERTAINING TO WAREHOUSEMEN. Public warehouses deflued : Warehouses, granaries and elevators maintained for general use of the pubhc for storage purposes shall be deemed public warehouses. L. 1891, p. 279, sec, 1. Property trausferred— Warehouse receipt— '* Not negoti- able " : Warehouse receipts for property stored in any public ware- house shall be transferable by the indorsement of the party to whose order such receipt may be issued, and such indorse- ment shall be deemed a valid transfer of the property represented by such receipt and may be made either in blank or to the order of another, and the delivery of the receipt so indorsed shall be a vahd delivery of the property mentioned therein: Provided, however, That all warehouse receipts which shall have the words "Not negotiable" plainly written, printed or stamped on the face thereof shall be exempt from the provisions of this section. Id., sec. 2. Freight uncalled for in thirty days may be stored and retained for charges — Notice in three days : W^hen any goods, merchandise or other property shall have been received by any railroad or express company, or other common carrier, commission merchants or warehouseman, and shall not be received by the owner, consignee, or other author- ized person, until the expiration of thirty days, it shall be law- ful for said carrier, commission merchant, or warehouseman to hold the same, or the same may be stored, with some re- sponsible person, and retained until the freight and storage, and all just and reasonable charges be paid by the owner or consignee, or by some person for him: Provided, however, That 64 COLORADO LAWS. said railroads or express companies or other common carriers, commission merchants, or warehousemen, shall notify the owners or consignees of the receipt of such goods, merchan- dise, or other property, within three (3) days from the receipt thereof. L. 1874, p. 304, sec. 1; G. L. 1877, pp. 645, 646, sec. 1864; G. S. 1883, p. 1005, sec. 3432. Not called for in ninety days, be sold— Twenty days' pub- lication — Surplus : If no person having a right thereto calls for said goods, mer- chandise or other property, within ninety days from the re- ceipt thereof, and pay freight and charges thereon, it shall be lawful for such carrier, commission merchant or warehouse- man, to sell such goods, merchandise or other property, or so much thereof, at auction to the highest bidder, as will pay said freight and charges, first having given twenty days' notice of the time and place of sale to the owner, consignee or con- signor, if known, and by advertisement in a daily paper (or if in a weekly paper, four (4) weeks), published where such sale is to take place; and if any surplus be left after paying freight, storage, cost of advertising, and all other just and reasonable charges, the same shall be paid over to the rightful owner of said property at any time thereafter, upon demand being made therefor, within ninety (90) days. L. 1874, pp. 304, 305, sec. 2; G. L. 1877, p. 646, sec. 1865; G. S. 1883, p. 1005, sec. 3433. Surplus, when not called for, paid into treasury, subject, etc. : If the rightful owner or his agent fail to demand such surplus within ninety (90) days of the time of such sale, then said sur- plus shall be paid into the county treasury, subject to the order of the owner; and if the owner do not demand such money of the county treasurer within one (1) 3^ear, then same shall be forfeited and paid to the general school fund of the county. L. 1874, p. 305, sec. 3; G. L. 1877, p. 646, sec. 1866; G. S. 1883, pp. 1005, 1006, sec. 3434. When carrier's liability ceases — Liability of warehouseman: After the storage of goods, merchandise or property, as herein COLOHADO. 05 provided, the responsibility of the carrier shall cease, nor shall the person with whom the same may be stored be liable for any loss or damage, on account thereof, unless the same shall result from his negligence or want of proper care. L. 1874, \). 305, sec. 4; G. L. 1877, pp. 646, 647, sec. 1867; G. S. 1883, p. 1006, sec. 3435. Com mission man — Warehouseman — May sell in ninety (lays — Publication : When any commission merchant or warehouseman shnll re- ceive on consignment, or on storage, produce, merchandise, or other property, and shall make advances thereon, either to the owner, or for freight and charges, and no time be agreed upon for the repayment of the same, it shall be lawful for the person who makes such advances, if the same be not paid to him within ninety (90) days from the date of such advances, to cause the produce, merchandise or property on w^hich the advances were made to be advertised and sold as provided in the second section of this act; and if a time for the repayment of such charges be agreed upon, then such notice of sale may be made immediately upon default of such payment. L. 1874, pp. 305, 306, sec. 5; G. L. 1877, p. 647, sec. 1868; G. S. 1883, p. 1006, sec. 3436. Perishable goods — Notice— Sale— Notice to owner— Aili- davit — Sale without notice : In case the goods, merchandise, or other property referred to in the preceding sections, shall consist of articles which will perish or become greatly damaged by delay in disijosing of the same, then it shall be lawful for such carrier, commission merchant or warehouseman, unless the charges on such goods are paid, and they are claimed, and taken away, to sell all (if the same, either at auction or at private sale, for the best price that may reasonably be obtained therefor, and to dispose of the proceeds of such sale as provided in section two (2) of this act : Provided, always, That before any such sale is made notice shall be given to the owner, or consignee, or the agent of him, of the intent to sell and dispose of such goods, merchandise or other property, and the time and place of such sale, either by 5 66 COLORADO LAWS. personal notice or by letter acklressed and properly mailed to him, which said notice shall be given at least twenty-four (24) hours before said sale, if the consignee, or owner, or agent of him, so notified shall reside at the place where such goods are; but if the person to be so notified of such sale shall reside at a distance, then the time of such sale shall be so appointed in said notice as to allow him, in addition to the twenty-four (24) hours above mentioned, a reasonable length of time to claim said goods, or to attend such sale; and if. upon reasonable in- quiiy, the residence of such consignee, owner, or agent cannot be learned, then upon the affidavit of such carrier, commission merchant or warehouseman, or some person in his or their be- half, to be filed and preserved by the carrier, commission mer- chant, or warehouseman, and by them to be produced and ex- hibited to any person claiming an interest in the goods sold, or to be sold, as aforesaid, such goods, merchandise and other property may be sold as aforesaid without notice. L. 1874, pp. 306, 307, sec. 6; G. L. 1S77, pp. 647, 648, sec. 1869; G. S. 1883, p. 1006, sec. 3437. Above statute coiistrued : The giving of notice twenty-four hours before the sale, as ])roviderl in this statute, nmst be strictly complied with. Mar- tin V. McLaughlin, 9 Colo. 153. €0111111011 carrier of freight and passengers has lien on goods and baggage : Every common carrier of goods and passengers who shall, at the request of the owner of any personal goods, carry, convey or transport the same from one place to another, and any ware- houseman or other person who shall safely keep or store any personal property at the request of the owner or person law- fully in possession thereof, shall in like manner have a lien upon all such personal property for his i-easonable charges for the; transportation, storage or keeping thereof, and for all reason- able and proper advances made thereon by him, in accordance with the usage and custom of common carriers and ware- housemen. L. 1883, p. 237, sec. 2; G. S. 1883, p. 660, sec. 2119. COLOKADO. 67 False warehouse receipt — Penalty : That no warehouseman, wharfinger or other person shall issue any receipt or other 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 or wharfinger or other person, and shall be in store and under his control at the time of issuing such receipt. R. S. 1868, p. 233, sec. 168; G. L. 1877, p. 309, sec. 768; G. S. 1883, p. 344, sec. 890. Issuing false warehouse receipts as security — Penalty : That no warehouseman, wharfinger or other person shall issue any receipt or other voucher upon any goods, wares, merchandise, grain or other produce 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, 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. R. S. 1868, p. 233, sec. 169; G. L. 1877, p. 309, sec. 769; G. S. 1883, p. 344, sec. 891. Duplicate receipts prohibited : That no warehouseman, wharfinger or other person shall issue any second receipt for 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 uncancelled. R. S. 1868, p. 233, sec. 170; G. L. 1877, pp. 309, 310, sec. 770; G. S. 1883, pp. 344, 345, sec. 892. Selling shipping goods, by warehouseman, wrongfully : That no warehouseman, wharfinger or other person shall sell or incumber, 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 per- 68 COLORADO LAWS. son or persons holding such receipt. R. S. 1868, p. 233, sec. 171 ; G. L. 1877, p. 310, sec. 771; G. S. 1883, p. 305, sec. 893. Wareliousemau — Tiolating deemed cheat — Penalty — Dam- ages : Any warehouseman, wharfinger or other person who shall violate any of the foregoing provisions relating to warehouse- men, shall be deemed a cheat, and be subject to indictment, and upon conviction shall be fined in any sum not exceeding one thousand (1,000) dollars, and be imprisoned in the peni- tentiary of this state not exceeding five years ; and all and every person aggrieved may have and maintain an action on the case against the person or persons violating any of the foregoing provisions relating to warehousemen, to recover all damages, immediate or consequential, which he or they may have sus- tained by reason of such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted as a cheat under the foregoing sections or not. R. S. 1868, pp. 233, 234, sec. 172; G. L. 1877. p. 310, sec. 772; G. S. 1883, p. 345, sec. 894. Carriers, warehousemen, etc., guilty of embezzlement — Penalty : A carrier, warehouseman, factor, storage, forwarding or com- mission merchant, or his clerk, agent or employee, who, with intent to defraud, sells, or in any way disposes of, or apphes or converts to his own use, any bill of lading, custom-house permit, or warehousekeeper's receipt, intrusted to or possessed by him, or any property intrusted or consigned to him, or the proceeds or profits of any sale of such property, or fail to pay over such proceeds, deducting charges and usual commissions, shall be adjudged to be guilty of embezzlement, and upon con- viction thereof, shall be punished as follows: When the value of the property embezzled, as aforesaid, is twenty dollars, or less, then by imprisonment in the county jail for a period not exceeding six months; when the value of the property em- bezzled, as aforesaid, is over twenty dollars, then by impris- onment in the state penitentiary for a period of not less than one or more than two years. L. 1885, p. 202, sec. 1. COLOKADO. 69 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Conversion. Where a bailee pledges property which has been intrusted to him and the pledgee accepts the same in good faith, believing the property to belong to such bailee, the right of the owner therein is not defeated and he may recover the property or its value from the pledgee. The pledging of property by a bailee constitutes conversion thereof. Gottlieb v. Hartman, 3 Colo. 53. B. No title in depositor — Judgment for intervenor. An action was brought against a warehouseman for the con- version of goods stored with him in which action one B inter- vened claiming the title to the property. The complaint al- leged that the plaintiff had loaned money to the depositor, who had, in turn, assigned the warehouse receipt issued for the goods to the plaintiff. That the plaintiff had paid all the storage charges due the defendant and demanded the goods and had been met with a refusal to deliver. The defendant warehouseman answered and denied that the property belonged to the original depositor, alleging that he had stolen the same and that in reality it belonged to one B. The defendant further alleged that he had received the goods in ignorance of the want of title of the depositor to the goods. Plaintiff's replication averred that the defendant was estopped to deny the title of his depositor and that the plaintiff was in ignoran e of the matter set forth by the defendant concerning said lack of title. Subsequent to the filing of the foregoing pleading, B inter- vened and in his petition set forth that the property had been in his possession as sheriff pursuant to an attachment issued in another action and that at the request of the attorney for the plaintiff therein he had appointed the depositor his cus- todian, who had without knowledge of the intervenor deposited the goods in the warehouse of the defendant. On the above stated facts the jury found for the intervenor, that he was en- titled to the possession of the property and assessed its value. 70 COLORADO DECISIONS. On this verdict the court entered judgment in favor of the intervener and against the plaintiff for the sum found by the jury. On appeal it was held that the judgment entered by the court against the plaintiff was without warrant from either the petition or verdict; that by the verdict of the jury posses- sion of the property was awarded to the intervener and the value thereof was assessed, but there was no finding either against the plaintiff or the defendant specially. That the judg- ment did not follow the verdict and it was against a party who had incurred no liability to the intervener. Further that as no judgment had been rendered for or against the defend- ant warehouseman, he was a stranger to the case on appeal. The case was, therefore, reversed and a new trial ordered. Gottlieb V. Barton, 13 C. A. 147. Pledge — By way of warehouse receipt — Statutes pertaining to chattel viortgages do not apply. Where money had been borrowed upon a warehouse receipt as collateral security, it was contended that the statute relating to the recording of chattel mortgages applied. It was held, that while the transaction was of the nature and effect of a chattel mortgage instead of a mere pledge, that it could scarcely be claimed that the delivery of the possession required by the statute was intended to alter or enlarge the meaning of the language there used beyond its ascertained legal sense, or to abrogate any of the settled and well recognized common-law modes of the delivery of personal property. That, therefore, the relation of the parties in respect to their rights to the prop- erty is unaffected by the chattel mortgage act. Spangler v. Butterfield, 6 Colo. 356. N. Loss by fire — Storing of powder in a warehouse, negligence — Proximate causes — Questions for the jury. Where the evidence showed that defendants, who were en- gaged in the business of warehousemen, had stored a large quantity of powder in the warehouse, along with plaintiff's goods, that a fire ensued and that the persons engaged in sup- pressing the fire were prevented, by the presence of the powder COLORADO. 71 in the warehouse, from removing plaintiff's goods; in such a case, the question whether the presence of the powder was the proximate cause of the loss of the goods is one for the jury. The storing of powder in a warehouse situated in the city, held to constitute negligence on the part of the warehouseman. White V. Colorado Central R. R. Co., 3 McCrary (U. S. C. C.) 559; writ of error to U. S. Supreme Court dismissed, 101 U. S. 98. Loss by theft — Breach of agreement to compromise — Action based on agreement to compromise alone. The defendant warehouseman was sued for a sum of money alleged to be due the plaintiff pursuant to an agreement made between them by which the warehouseman agreed to pay to the plaintiff a certain sum, as a compromise of the claim of the plaintiff against the defendant, for goods lost while stored in the warehouse of the latter. It appeared that the defendant had paid part of the sum due under such agreement and had failed to pay the balance. It was contended in behalf of the defendant that he was not originally liable, under the law as a warehouseman, for the loss. It was held that the action was not brought upon the original lial:)ility of the defendant but upon the compromise agreement and that, therefore, this con- tention could not be sustained. Swen v. Green, 9 Colo. 358. Warehouse receipt — Transfer of — Requisites — Consideration. The assignment and delivery of a warehouse receipt passes the title of the goods represented to the transferee. In order to validly accomplish this result there must be: first, the as- signment and delivery of the receipt, the property represented thereby must be in existence and stored at the place desig- nated therein; second, a valid consideration which may con- sist of a pre-existing debt, or a transfer as collateral security. Hill V. Colo. Nat. Bank, 2 C. A. 324. Same — Fraudulent transfer, question for jury. The question whether or not the transfer of a warehouse receipt was procured with fraudulent intent, is one of fact for 9 COLORADO DECISIONS. the determination of the jury. Marsh v. Cramer, 16 Colo. 331. Same— As collateral— Purchase price for goods not paid- Pledgee protected. A warehouseman issued his receipt to the consignee and pur- chaser of goods and had no notice at the time that the purchase price had not been paid. It appeared that the purchaser had given his note to the vendor as payment for the goods. After the arrival and storage of the goods in the warehouse, the pur- chaser procured a loan and pledged the receipt as security therefor. Subsequently this loan was paid out of the proceeds of another loan, the warehouse receipt being indorsed to the second lender as security. The warehouseman had been noti- fied of these transactions and had agreed to hold the property in accordance therewith. Default being made in the payment of the note for the purchase price, the vendor brought an action therefor and attached the property stored in the warehouse. The pledgee thereupon brought an action of replevin against the sheriff and obtained a judgment for the possession of the property. It was held on appeal that the pledgee was entitled to the goods, that he was a bona fide holder and had taken with- out notice of any claims by the vendor for the purchase price thereof, that the position of the vendor who parted with possession of the goods without taking security therefor was less grounded in equity than that of the pledgee who, in good faith, had advanced money upon the warehouse receipt as security. Spangler v. Butterfield, 6 Colo. 356; First Nat. Bank V. Schmidt et al, 6 C. A. 216; Schmidt & Zeigler v. First Nat. Bank, 10 C. A. 261. B. Bills of lading— Exemptions in— Assent thereto implied by acceptance. Where one accepted and acted under the bill of lading, con- taining exemptions against the liability of the carrier, it was held that these actions constituted an implied assent to the terms and conditions therein expressed. Lindsey v. Flebbe et al., 5 C. A. 218. COLORADO. 73 Same — Same — Not valid as against fraud, negligence or mis- feasance. It is well settled in Colorado that a common carrier cannot divest himself of liability either by special contract or notice where damage or loss results from his fraud, negligence or mis- feasance. Union Pac. Ry. Co v. Rainey et al, 19 Colo. 225; Transportation Co. v. Comforth, 3 Colo. 280. 74 CONNECTICUT LAWS. CHAPTER VI. CONNECTICUT. LAWS PERTAINING TO WAREHOUSEMEN. Establishment— Receipts : Any person may establish and maintain a public warehouse, and may receive for storage into the same any goods, wares, merchandise, provisions, or other commodity, and shall issue to the person from whom he receives the same warehouse re- ceipts therefor; and he may issup warehouse receipts for any of his own property which is deposited in such warehouse; but no person ahall issue any receipt for any such property so re- ceived by him on storage, or deposited by him in such ware- house, unless he shall have displayed and shall maintain in a conspicuous manner, on the front of the building where such goods or other commodities are stored, the words "Pubhc Warehouse." General Statutes, 1902, sec. 4919. Receipt to issue only for goods received : No warehouseman or other person shall issue any receipt, acceptance of an order, or other voucher, for or upon any such property, to himself or to any other person purporting to be the owner thereof, or entitled or claiming the right to receive the same, unless such property shall have been actually re- ceived into his warehouse and shall be under his control at the time of issuing such receipt, acceptance, or voucher. Id. sec. 4920. Receipt as security for loan : No warehouseman or other person shall issue any receipt or other voucher upon any such property to any person as security for any money loaned or other indebtedness, unless .such property shall, at the time of issuing such receipt or other voucher, be in the custody of such warehouseman or other person, and in his warehouse. Id. sec. 4921. CONNECTICUT. 76 Duplicates to be marked : No warehouseman or other person shall issue any second or duplicate receipt, acceptance, or other voucher, for or upon any such property while any former receipt, acceptance, or voucher, for or upon any such property, or any part thereof, shall be outstanding and uncancelled, without writing or print- ing in red ink across the face of the same the word "DupHcate." Id. sec. 4922. Goods receipted for not to be sold : No warehouseman or other person shall sell, or incumber, conceal, ship, transfer, or in any manner remove beyond his immediate control any such property for which a receipt shall have been given by him as aforesaid, without the written order or assent of the person holding such receipt. Id. sec. 4923. Receipts negotiable : Warehouse receipts given for any such property stored or deposited with any warehouseman may be transferred by in- dorsement thereof, and any person to whom the same may be so transferred shall be deemed to be the owner of the property therein specified, so far as to give validity to any pledge, lien or transfer, made or created by any such person; but no prop- erty shall be delivered except on surrender and cancellation of the original receipt, or the indorsement of such delivery thereon in case of partial delivery. All warehouse receipts, however, which shall have the words "not negotiable" plainly written or stamped on the face thereof shall be exempt from the provisions of this section. Id. sec. 4924. Property may be recovered by process of law : So much of sections 4923 and 4924 as forbids the delivery of property except on surrender and cancellation of the origi- nal receipt, or the indorsement of such delivery thereon, in case of partial delivery, shall not apply to property replevied or removed by operation of law. Id. sec. 4925. Civil and criminal liability : Every warehouseman or other person who shall willfully vio- late any provision of this chapter shall be fined not more than 76 CONNECTICUT LAWS. one thousand dollars, or imprisoned not more than three years, or both ; and any person aggrieved by the violation of any such provision may maintain an action against any person violat- ing any of said provisions, to recover all damages, immediate or consequential, which he may have sustained by reason of any such violation, whether such person shall have been con- victed of such violation or not. Id. sec. 4926. AVarebouseiuau's lien — Sale : Every public warehouseman, or other person engaged in the warehouse or storage business or who shall have stored goods for another, who shall have in his possession any such prop- erty by virtue of an agreement for the storage thereof with the owner of such property or person having a legal right to store the same, shall have a lien for the agreed storage charges on such property, or, where no charges have been agreed on, for the reasonable storage charges thereon, and, when there shall be due and unpaid six months' storage charges thereon, may sell such property at public auction as hereinafter directed; but such sale shall not conflict with the provisions of the ware- house receipt or other written agreement under which such goods were stored. Id. sec. 4927. Notice of sale : A written or printed notice of such auction sale, stating the time and place of sale with a description of the articles to be sold, shall be sent, at least thirty days before such auction sale, by registered letter, addressed to the person who left such property for storage, at his last known place of residence, or, in case the warehouseman or storer of such property has notice from the person who left such property for storage of a change in the title or right of possession thereof, to the owner or person represented to be entitled to receive the same on payment of the storage charges, at his last known place of residence. Id. sec. 4928. Additional notice : The post-office registry receipt for such notice, signed by the person who left such property for storage, or in case of transfer CONNECTICUT. 77 of title, by the owner or person entitled to receive such prop- erty on payment of storage charges, shall be sufficient evi- dence of the giving of legal notice of such sale, and when such receipt so signed is returned to the sender, such sale may pro- ceed according to such notice. If such receipt so signed be not returned to the sender, additional notice of such sale shall be given by posting such notice on the public signpost nearest the place where such sale is to take place, and by publishing a notice in some newspaper having a circulation in the town where such sale is to take place, once a week for three weeks successively before the time fixed for such sale. Such notice shall state the time and place of sale and contain a description of the articles to be sold and the names of the persons propos- ing to sell the same and of the person who left the same for storage, and also, if the person proposing to sell the same has notice of a change of title or right of possession of the owner or person represented to be entitled to receive the same on pay- ment of storage charges. Id. sec. 4929. Disposition of proceeds of sale : The proceeds of such sale, after deducting the storage charges and all expenses connected with such sale, which expenses shall also be a lien on the proceeds of such sale, shall be paid to the owners of the property if called for or claimed by them at any time within one year from the date of such sale; and if such balance is not claimed or called for by the owner within said period of one year, then such balance shall escheat to the state Id. sec. 4930. 78 CONNECTICUT DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Bailee may recover full value for loss occasioned by third person — Bailee represents owner. If goods intrusted to a bailee are lost by the wrongful act of a third person, the latter is liable to him for their full value, unless the owner interposes by a suit for his own protection. Any sum recovered by the bailee, above what is necessary to compensate him for the loss of his possession and special prop- erty, he must hold in trust for the owner; and the third person cannot complain that he is made to pay greater damages than the bailee has sustained, because the bailee, for all the purposes of such action, represents the owner and occupies his place. Gillette v. Goodspeed, 69 Conn. 363 ; White v. Webb, 15 Conn. 302. Same — Breaking open packages, larceny. If a carrier, or other bailee, opens a package of goods and takes away and disposes of them, or any part of them, to his own use, it is larceny. State v. Fair dough, 29 Conn. 47. Bailment and sale distinguished. The delivery of grain to a mill owner under a contract con- taining a clause as follows: "And it is further understood that the party of the second part (mill owner) shall be responsible for all grain sold, shall collect all the bills for the same, and shall sell to whom he sees fit." Held, the interpretation of this clause of the contract made it one of bailment and not of sale. That these provisions could not be regarded as sur- plusage and that they were entirely inconsistent with the contention that the grain became the property of the mill owner under the terms of the contract. Johnson v. Allen, 70 Conn. 738; Harris v. Coe, 71 Conn. 157. B. Ordinary care — Removal of goods to another place of storage. A bailee for hire is bound to exercise reasonable and ordi- nary care in the protection of goods intrusted to him. The CONNECTICUT. 79 removal of such goods to another place where the risk of loss is not increased, but without consent of the bailor, held not to be violative of his duty as to oi-dinary care. Bradley v. Cun- ningham, 61 Conn. 485; Allen et al. v. Somers, 73 Conn. 355. H. Action for storage charges— Absence of express agreement as to temperature. The plaintiff, a warehouseman, brought an action against the defendant for the recovery of storage charges for the storage of boxes of poultry which had been kept in its cold storage rooms. The defendant admitted that the amount of compensation claimed was due, but alleged by way of counterclaim that the plaintiff had not used due care in the preservation of the poultry and that as a result it had been spoiled and was of no value to the defendant. It appeared that there were two kinds of cold storage known in the business, one known simply as "cold storage" and the other as a "freezer," and that the tem- perature of a "freezer" was ordinarily kept much lower than that of the cold storage rooms; that the temperature of the cold storage rooms was not low enough to preserve poultry for any great period of time and that it was known to the defendant that the plaintiff's warehouse was not a "freezer." The trial court held that upon the facts found, the plaintiffs had sus- tained the burden of showing that they had used ordinary care and diligence in the preservation of the poultry and upon ap- peal it was held that the court did not err in so holding. Allen et al. V. Somers, 73 Conn. 355. M. Conversion— Delivery by bailee of stolen property— Knowledge. In a case where stolen property was deposited with a bailee and was delivered by such bailee to the agent of the bailor, in the absence of knowledge on the part of the bailee that the goods were stolen, an action for conversion against the ware- houseman will not lie. Hill v. Hayes, 38 Conn. 532. Cold storage— Degree of cold— Express agreement. In the absence of an express agreement a warehouseman is 80 CONNECTICUT DECISIONS. only bound to store goods intrusted to him for cold storage in what is commonly known as a cold storage room or warehouse. Where, in an action against a warehouseman for damages re- sulting from poultry being kept in too high a temperature, it was shown that the nature of the cold storage rooms was known to the owner of the poultry, and, further, that the fact that the warehouseman did not maintain a "freezer" was also known, it was held that he was not liable for the resulting loss. Allen et al. V. Somers, 73 Conn. 355. Insurance — Duty to notify bailee as to existence of insurance. The defendant stored a hearse belonging to the plaintiff in his stable and at the time of the contract there was no special agreement made as to where the hearse was to be kept. Sub- sequently, without the knowledge of the plaintiff, the defend- ant removed the hearse from his stable to his barn. There was no claim made that the barn was more exposed to fire or that the chances of loss or damages were increased by the removal. It appeared that the plaintiff, without notifying the defendant, had insured the hearse while stored in the stable. Subsequent to its removal to the barn the hearse was destroyed by fire. The policy of insurance became void as a result of the removal of the hearse. It was held that the defendant was only bound for reasonable care and that the removal of the hearse from the stable to the barn was not in controvention of the exercise of such care and that it was the duty of the plaintiff to have notified the defendant of the insurance. Bradley v. Cunning- ham, 61 Conn. 485. Warehouse receipts — Negotiability — Bona fide holder — No claim, for amount due on purchase price nor for government tax — Absence of notice on receipt — Estoppel. The plaintiff became the bona fide holder of a warehouse re- ceipt and brought an action against the defendant warehouse- man for the recovery of the whiskey represented thereby. It appeared that there was an agreement between the original owner of the whiskey and the defendant pursuant to which the whiskey was to remain in the warehouse until the money wliich CONNECTICUT. 81 the defendant had advanced to pay the United States rev- enue tax thereon should be repaid to him. The receipt stated that the whiskey was dehverable under the following condi- tions : "After the payment of the United States Internal Rev- enue tax and all other amounts due," followed by "tax paid." It was held that the title to the whiskey passed to the plaintiff upon the delivery to him of the receipt and that the defendant warehouseman, as well as the vendor of the whiskey, were estopped to make any claim for the amount advanced for the payment of the government tax. Further, that the expres- sion "and all other amounts due" could only be held to mean proper warehouse charges. State Bank of New York v. Water- house, 70 Conn. 76. Same — Same — Effect of statute as to full negotiability, qucere. In the above case the court declined to discuss whether or not the statutes of this state gave to warehouse receipts the character of full negotiability, this question not being then presented. Id. R. Bill of lading — Statements therein as to value, binding on shipper. Where one shipped property by a common carrier and at the time of the shipment stated to the agent of the carrier that its value was one hundred dollars and such value is given in the bill of lading delivered to the shipper; it was held that the shipper is estopped to deny that the value of the property was in excess thereof; further, that the regulation of the railroad company requiring a statement as to value is a reasonable one and the shipper of goods was bound thereby. Coupland V. Housatonic R. R. Co., 61 Conn. 531. Same — When open to explanation — Statements contained therein conclusive on one issuing same. It is well settled that as between a shipper and ship owner the receipt in a bill of lading is open to explanation. But where persons have been misled by statements contained in a false bill of lading, the master or other person issuing the 6 82 CONNECTICUT DKCISI0N8. same will be liable for such misrepresentations. Relyea v. New Haven Rolling Mill Co., 42 Conn. 579. Same — Exemption therein. Where a bill of lading, issued by a common carrier, states that the carrier will not be liable for loss or injury resulting from certain specified causes therein, and in the case of an in- jury to a horse carried by it, the contention is made by the carrier that it is exempt from liability under this clause in the bill of lading, an instruction given to the jury, that the carrier was liable, if it should find that the loss occurred through lack of the exercise of ordinary care on the part of the carrier, was correct. A carrier cannot stipulate against his own negligence. Crosby v. Fitch, 12 Conn. 410; Welch v. Boston & Albany R. R. Co., 41 Conn. 333; Camp v. Hartford & N. Y. Steamboat Co., 43 Conn. 333; Candee v. A^ Y., N. H. & H. R. R. Co., 73 Conn. 667. But see Coupland v. Housatonic R. R. Co., 61 Conn. 532. Same — Same — Liability may he reduced by stipulation. It is competent for a earlier to stipulate for a consideration for a diminished degree of responsibility from that imposed by law, but such stipulation cannot be carried to the extent of granting the carrier immunity from the result of its negligence or want of ordinary care. Id. DELAWAKE. 88 CHAPTER VII. DELAWARE. LAWS PERTAINING TO WAREHOUSEMEN. An Act to make negotiable certain warehouse receipts : Warehouse receipts given for any goods, wares, merchandise, grain, flour, produce, petroleum, or other commodities stored or deposited with any warehouseman, wharfinger or other per- son in this state, or bills of lading or receipts for the same when in transit by cars or vessels to any such warehouseman, wharf- inger or other person, shall be negotiable and may be trans- ferred by indorsement and delivery of said receipt or bill of lading ; and any person to whom the said bill of lading or receipt may be transferred shall be deemed and taken to be owner of the goods, wares, merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges therein; and no property on which such lien may have been created shall be delivered by said warehouseman, wharfinger or other person, except on the surrender and the cancellation of said original receipt or bill of lading, or in case of partial sale or release of the said merchandise by the written consent of the holder of said re- ceipt or bill of lading indorsed therein; provided, that all ware- house receipts or 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. Laws of Delaware, vol. 19, ch. 177, sec. 1. No warehouseman, wharfingei- or other person shall issue any receipt or voucher for any goods, wares, merchandise, petro- leum, grain, flour, or other produce or commodity to any per- son or persons purporting to be the owner or owners thereof, unless such goods, wares, merchandise, petroleum, grain, flour, or other produce or commodity shall have been actually re- 84 DELAW^\KE LAWS. ceived into store or upon the premises of such warehouseman, wharfinger or other person and sliall be in store or on the prem- ises aforesaid and under his control at the time of issuing such receipt. Id. sec. 2. No warehouseman, wharfinger or other person shall issue any second or duplicate receipt for goods, wares, merchandise, petroleum, grain, Hour, or other produce or commodity while any former receipt for any such goods, wares, merchandise, petroleum, grain, flour, or other produce or commodity as aforesaid, or any part thereof, shall be outstanding and uncan- celled without writing across the face of the same "duplicate." Id. sec. 3. No warehouseman, wharfinger or other person shall sell or incumber, ship, transfer, or in any manner remove beyond his immediate control any goods, wares, merchandise, petroleum, grain, flour, or other produce or commodity for which a receipt shall have been given by him as aforesaid, whether received for storage, shipping, grinding, manufacturing or other purposes, without the return of such receipt. Id. sec. 4. Any warehouseman, wharfinger, or other person who shall violate any of the foregoing provisions of this act shall be deemed guilty of fraud, and upon indictment and conviction shall be fined in any sum not exceeding one thousand dollars or imprisoned not exceeding five years, or both, in the discretion of the court; and all and every person or persons aggrieved by the violation of any of the provisions of this act may have and maintain an action at law against the person or persons vio- lating any of the foregoing provisions of this act to receive [recover] all damages which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted of fraud as aforesaid under this act or not. Id. sec. 5. DELANVARK. H') DECISIONS AFFECTING WAREHOUSEMEN. A. Baibnent — With and without an interest. In a bailment to keep property without an interest the bailee is hable only for gross negligence, but with an interest he is bound to exercise reasonable diligence, and he is liable for slight negligence on a special undertaking. Chase v. Maberry, 3 Harr. 26Q ; Culbreth v. P. W. & B. R. R. Co., 3 Houst. 392. B. Ordinary care. Warehousemen are obliged to exercise only ordinary care. McHenry v. P. W. & B. R. R. Co., 4 Harr. 448; Chase v. Maberry, 3 Harr. 266; Culbreth v. P. W. & B. R. R. Co., 3 Houst. 392. Same — Reasonable diligence defined. Reasonable diligence is that which a prudent man would use in respect to his own property. Id. H. Lien — Lost if possession be surrendered. If the bailee surrenders possession of the pledge to the bailor, his lien is gone. Scott v. Heather, 1 Harr. 330. L. Replevin — No demand necessary. Under the statutory law in the state of Delaware no previous notice is necessary before replevin brought, although defend- ant may have come into possession of the goods lawfully. Stockwell V. Robinson, 9 Houst. 313. R. Bill of lading — Indorsement — Bona fide holder — Fraud. The indorsement and delivery of a bill of lading is equivalent to the delivery of the goods. Fraud on the part of the in- dorser cannot affect the title of the indorsee in good faith. The voluntary delivery of a bill of lading consigning goods "to order or assigns" confers all the external indicia of the right of disposal. Mears v. Waples, 3 Houst. 581; Same v. Same, 4 Houst. 62. 86 DISTKICT OF COLUMBIA LAWS. CHAPTER yiU. DISTRICT OF COLUMBIA. LAWS PERTAINING TO WAREHOUSEMEN. Lien of warehousenieu : Every person, firm, association, or corporation lawfully en- gaged in the business of storing goods, wares, merchandise, or personal property of any description shall have a lien first, except for taxes thereon, for the agreed charges for storing the same, and for all moneys advanced for freight, cartage, labor, insurance, and other necessary expenses thereon. Said lien for such unpaid charges, upon at least one year's storage and for the aforesaid advances in connection therewith, may be en- forced by sale at public auction, after thirty days' notice in writing mailed to the last known address of the person or per- sons in whose name or names the said property so in default was stored, and said notice shall also be p\iblished for six days in a daily newspaper in the District of Columbia. And after deducting all storage charges, advances, and expenses of sale, any balance arising therefrom shall be paid by the bailee to the bailor of such goods, wares, merchandise, or personal prop- erty, his assigns or legal representatives. D. C. Code, 1902, sec. 1619. Assignee : Said property may be so sold either in bulk or in separate pieces, articles, packages, or parcels, as will in the judgment of the lien holder secure the largest obtainable price: Provided, That if the person or persons storing said property shall have as- signed or transferred the title thereto and have duly recorded said assignment or transfer upon the books of the storage ware- house, the written notice of sale shall also be mailed to said transferee or assignee. Id. sec. 1620. DISTRICT OF COLUMBIA. 87 Where title in issue : Whenever the title or right of possession to any goods, wares, merchandise, or [personal property on storage shall be put in issue by any judicial proceeding, the same shall be delivered upon the order of the court, after prepayment of the storage charges and cash advances then due, by the person at whose instance such change of possession is so ordered, and who shall be entitled to recover such payment as part of the cost in such proceeding, oi', if defeated therein, he shall be credited with such payment in taxation of costs against him. And unless the person, firm, association, or corporation so conducting a storage business shall claim some right, title, or interest in said stored property other than the lien hereinabove authorized, he, it, or they shall not be made a party to such judicial pro- ceedings. Id. sec. 1621. Warehousemen — Embezzlement: Any warehouseman, factor, storage, forwarding, or commis- sion merchant, or his clerk, agent, or employee, who with in- tent to defraud the owner thereof sells, disposes of, or applies to his own use any property intrusted or consigned to him, or the proceeds or profits of any sale of such property, shall be deemed guilty of embezzlement, and shall suffer imprisonment for not more than ten years. Id. sec. 838. Note. In New York a statute similar to section 1621 held unconsti- tutional. See page r).Vi. 88 DISTltlCT OF COLUMBIA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Identical goud!<. Where one receives certain bonds, and contracts for "the safe return of said bonds," his obHgation is to return the identi- cal bonds and not an equivalent amount in similar bonds. Moses V. Taylor, (> Mack. 255. Same — Bailee cannot confer title. A mere bailee for hire, though in possession, cannot give title to a third person. Bridget v. CorJiish, 1 Mack. 29. Sam^ — Wlien convertible into a sale — Assu77ipsit. Goods delivered with the understanding that the bailee may, at his option, appropriate them to his own use and pay their value, is a bailment convertible into a sale at the option of the bailee ; and when they are so converted the original bailor may sue in assumpsit for goods sold and delivered. Moses v. Taylor, 6 Mack. 255. Sam£ — Statute of limitations. It is only from the time that the bailee sets up an adverse claim to the property that the statute is put in operation and begins to run. Marr v. Kiihel, 4 Mack, 577; Moses v. Taylor, 6 Mack. 255. B. Conversion — Not em bezzlement . .\ bailee who converts property of his bailor to his own use is not thereby guilty of embezzlement in this jurisdiction, but is guilty of a breach of trust. Viedt v. Evening Star Newspaper Co.. 19 D. C. 534. (But see sec. 838, D. C. Code, snpra.) Storage charges — When tender not necessary — Replevin. \\'here a demand is made upon a warehouseman for the de- livery of goods stored with him a tender of the storage charges is not necessary before replevin brought, where refusal to de- DISTRICT OF COLUMBIA. 89 liver is based upon another and a different ground. Wall v. Mitkiewicz, 9 App. D. C. 109. Same — When charges not paid, writ will he quashed. Where goods were replevied upon which storage charges were due the writ will be quashed upon this showing, in the absence of fraud, or neglect on the part of warehouseman. In re Ameri- can Security & Trust Co., 25 W. L. R. 733. C. Safe deposit — Joint lessees — Receipt. A receipt, from a trust company, which states that a safe deposit box is to be opened only in the presence of both of the two lessees thereof, attempts to impose an extraordinary and unusual liability upon the company which is possibly beyond the rights of the lessees to impose. Carusi v. Savary, 9 App. D. C. 330. H. lAen for storage charges, paramount — Replevin. Where goods were advertised to be sold for storage charges and the bailor procured writ of replevin which was served on auctioneer during sale, on a motion to quash this writ it was held that the act of Congress of May, 1896, relating to ware- housemen was mandatory giving warehousemen a lien for their charges. The marshal was thereupon instructed to re- turn the goods to the warehouseman. In re American Security & Trust Co., Ed. note, 25 W. L. R. 733. L. Trover — Statute of limitations. In trover the conversion is shown by proof of demand and refusal, and limitations only run from the date of such demand and refusal. Moses v. Taylor, 6 Mack. 255. Detinue — Gist of the option — Pleading. In detinue the gist of the action is the wrongful detainer and not the original taking. It lies against the person who has the actual possession of the chattel or who acquired it by any law- ful means, such as bailment, delivery or finding; therefore, al- 90 DISTRICT OF COLUMBIA DECISIONS. though a declaration in detinue alleges a bailment to the de- fendant, and his engagement to redeliver on request, and the defendant has pleaded that the bailment was the security on a loan, the plaintiff may, without being guilty of a departure, reply that he tendered the debt and that the defendant after- wards wrongfully withheld the goods. Wiard v. Semken, 2 App. D. C. 424. Same — No previous demand necessary. In an action of detinue no proof of a previous demand is necessary, the serving of a summons being a sufficient demand. Marr v. Kiihel, 4 Mack. 577. M. Pledge — Pledge made by pledgee to one in good faith — Replevin. The pledgee of goods in turn pledged them with another as security for the payment of a personal obligation without any notice that the goods were held as r pledge. The goods were returned to the original pledgee prior to suit brought. In an action of replevin, brought for the recovery of the goods against the second pledgee, the court instructed the jury that if they believed that the defendant received the goods in good faith, not knowing in what capacity the pledgor held them, and had returned the goods to his pledgor before suit brought, that they should find for the defendant. Held on appeal that this in- struction was correct. Carpenter v. Starr, 1 Mack. 417. Same — Detinue — Pleading and practice — Confession and avoid- ance. Plaintiff sued defendant in detinue and, in his declaration, stated that the defendant detained the goods upon a bailment for a redelivery upon request; the defendant pleaded specially that he held the goods as security for a debt. Held, that the plaintiff, in his replication, could properly state payment of the debt in confession and avoidance, this not constituting a variance. Further held, that in the plea non detinet that the defendant could not show that he retained the goods as security for a debt but that the special plea was necessary. Wiard v. Semken, 2 App. D. C. 424. DISTRICT OF COLUMBIA. 91 R. Bill of lading—Exemptions in receipt given by expressman— Not valid as against negligence—Rule stated. If the receipt given by an expressman contains the expression that he is not Hable as a carrier but as a ''forwarder only" such expression will be construed by the court as a nullity. The law imposes upon expressmen the liabihties of the common carrier. A provision in such a receipt that the expressman will be only liable for such sum as the shipper states the value of the goods to be, held to be a reasonable and binding regulation. But no stipulation can be made by an expressman or other carrier which will exonerate him from liability for the results of his negligence, such contracts being void as against public policy. Gait Bros. & Co. v. Adams Express Co., Mac A & M. 124. y ■ - 92 FLORIDA LAWS. CHAPTER IX. FLORIDA. LAWS PERTAINING TO WAREHOUSEMEN. Sale of goods under specified circuiustances : Warehousemen and wharfingers shall be authorized to sell at public auction all goods, wares and merchandise or other articles commonly designated as "perishable," such as fruits, vegetables, meats, and so forth, that shall have been received by them, remaining on hand unclaimed for the space of not less than ten days, and all goods, wares and merchandise, or other articles not perishable, that shall have been received by them and remaining on hand unclaimed for the space of not less than ninety days, but such sale shall, in no instance, take place with- out previous notice having been first given for at least two days after the expiration of said ten days, or more, in the case of perishable goods, wares and merchandise, or other articles, or for at least thirty days after the expiration of ninety days, or more, in the case of goods, wares and merchandise, or other articles that are not perishable, said previous notice to be given in one newspaper published at the place of sale, designating the time and place of sale. If there is no newspaper published at the place of said sale, wherein the legal notice can be given, then public notice can be given by five written notices posted in conspicuous places near the place of sale. The owner or con- signee of such goods, wares and merchandise, or other articles, may at any time prior to such sale come forward and claim the same, and after paying all charges be entitled to restitution. Rev. Stat. Fla. 1892, sec. 2339. Disposition of surplus : After all charges upon said goods and merchandise or other articles are paid (not exceeding the ordinary mercantile charges for such locality) should there remain a surplus, the same shall be placed in the county treasury subject to the claim of the FLORIDA. 93 owner of said goods, wares and merchandise, or other articles. After the lapse of one year from the time of placing said surplus in the county treasury, should no person come forward to claim and receive the same, it shall be applied by the county commis- sioners of the county for the relief of the poor of such county. Id. sec. 2340. Burning other buildings in the night time : Whoever willfully and maliciously burns in the night time a meeting-house, church, court-house, town-house, college, acad- emy, jail or other building erected for public use, or a banking- house, warehouse, manufactory or mill of another, or a barn, stable, shop or office within the curtilage of a dwelling house, or any other building, by the burning whereof any building mentioned in this section is burnt, in the night time, shall be punished by imprisonment in the state prison not exceeding twenty years. Id. sec. 2427. Same — Burning in day time : Whoever willfully and maliciously burns in the day time any building mentioned in the preceding section shall be punished by imprisonment in the state prison not exceeding ten years. Id. sec. 2428. Embezzlement by bailee, common carrier and hirer: If any factor, commission merchant, warehouse keeper, wharfinger, wagoner, stage driver or other common carrier on land or on water, or any other person with whom any property which may be the subject of larceny is intrusted or deposited by another, shall embezzle or fraudulently convert the same, or any part thereof, or the proceeds, or any part thereof, to his own use, or otherwise dispose of the same, or any part thereof, without the consent of the owner or bailor and to his injirry, and without paying to him on demand the full value or market price thereof; or if, after a sale of any of the said property with the consent of the owner or bailor, such person shall fraudu- lently and without consent aforesaid convert or embezzle the proceeds, or any part thereof, to his own use and fail or refuse to pay the same over to the owner or bailor on demand; and if any person borrows or hires property aforesaid and embezzles 94 FLORIDA LAWS. oi- fraudulently converts it or its proceeds, or any part thereof, to his own use, he shall be punished as if he had been con- \dcted of larceny. Id. sec. 2454. See Laws of Florida, 1897, p. 82, being chapter 4549 [No. 35,] for an act approved May 8, 1897, and entitled as follows; An Act to Provide for the Regulation of Railroad Schedules, Freights, Express, Sleeping Car and Passengers' Tariffs, and Building of Freight and Passenger Depots in This State; to Prevent Unjust Discrimination in the Rates Charged for the Transportation of Passengers and Freight, and to Prohibit Railroad Companies, Corporations, Persons and All Common Carriers in This State from Charging Other Than Just and Rea- sonable Rates, and to Enforce the Same; and to Prescribe a Mode of Procedure and Rules of Evidence in Relation Thereto ; and to Provide for the Appointment and Election of Commis- sioners, and to Prescribe Their Duties and Powers. Bill of lading, etc. : Sec. 1. That whenever any goods, wares or merchandise shall be shipped into, or out of, this state, or between points \nthin the limits of this state, and the bill of lading or other evidence of shipment thereof shall be attached to, or trans- mitted with, any commercial paper, for the price or purchase money of such goods, or any part thereof, the collector or holder of such commercial paper shall not under any circum- stances, except by express contract in writing, be held to be the warrantor of the quality or quantity or title of the goods, wares or merchandise represented by the bill of lading, or other evidence of shipment. Sec. 2. All laws and parts of laws in conflict with this act are repealed. Sec. 3. This act shall go into effect upon its approval by the Governor. Approved June 2, 1899, Laws, 1899, No. 99, p. 144, sec. 1. FLORIDA. 95 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Lien under common law. Under the common law the Hen of the bailee does not, as against the bailor, extend to the persons employed under the bailee. Wright v. Terry, 23 Fla. 160. Same — Gratuitous A bailee or factor is bound to follow such instructions as are given to him by his principal, unless the instructions are incon- sistent with the special agreement between them; and is liable for any injury resulting from a departure from such instruc- tions ; and this liability is incurred, although the services under- taken were gratuitous. Ferguson v. Porter, 3 Fla. 27. Sarne — Transfer of title — Bailee's assent — Effect of. If the bailee, either expressly or impliedly, signify his assent to the transfer, he makes himself the bailee of the purchaser, and there is thereby such a privity established between the parties as will be sufficient to sustain an action between them. Mitchell V. McLean, 7 Fla. 329. B. Diligence defined. Common or ordinary diligence, in the sense of the law, is such as men of common prudence generally exercise about their own affairs. West v. Blackshear, 20 Fla. 457. N. Negligence — Defined — Must be proved. Negligence is the failure to observe for the protection of an- other's interests such care, precaution and vigilance as the cir- cumstances justly demand and the want of which causes him injury. Negligence cannot be presumed but must be affirma- tively shown. Jacksonville Street Railway Co. v, Chappell, 21 Fla. 175; Bucki v. Cone, 25 Fla. 1. 96 GEORGIA LAWS. CHAPTER X. GEORGIA. LAWS PERTAINING TO WAREHOUSEMEN. Warehouseman : A warehouseman is a depositary for hire, and is bound only for ordinary dihgence; a failure to deliver the goods on demand makes it incumbent on him to show the exercise of ordinary diligence. Code Ga. 1895, sec. 2112. Bonded public warehouses : Any person engaged in the business of a warehouseman, or any corporation organized under the laws of this state, and whose charter authorizes them to engage in the business of a warehouseman within this state, may, if they so desire, become a bonded public warehouseman, and authorized to keep and maintain bonded public warehouses for the storage of cotton and other goods, wares and merchandise as hereinafter pre- scribed, upon their giving bond hereinafter required. Supple- ment Van. E., 1901, sec. 6577. Bond to be given : Ever}^ person or corporation desiring to become a bonded public warehouseman under the authority granted by the pre- ceding section shall give bond to an amount based on the esti- mated value said warehouseman will provide storage for. Said bond shall be made payable to the clerk of the superior court of the county wherein such bonded public warehouse is situated, and be conditioned for the faithful performance of his duties and liabilities as a bonded public warehouseman under pro- ^dsions of this act. The surety or sureties upon said bond shall be some one or more of the guarantee, surety, fidelity insurance, or fidelity and deposit companies, which are described in sec- tion first of an Act entitled "An Act to authorize solvent guar- antee companies, surety companies, fidelity insurance com- GEORGIA. 97 panies, and fidelity and deposit companies to become surety upon attachment bonds, and upon the bonds of city, county and state officers, and provitUng remedies against such bonds, and for other purposes," approved December 24, 1896, sec. 6620; all of the provisions of said act being hereby made applicable to the purposes and provisions of this act, so far as the same are pertinent or applicable hereto; and it shall be the duty of said clerk of the superior court to fix the amount of said bond, and to approve the surety or sureties thereon. Id. sec. 6578. Liability of principal and sureties : Whenever such bonded public warehouseman fails to perform his duty as such, or violates any of the provisions of this act, any person injured by such failure or violation may bring his action in a court of competent jurisdiction against the princi- pal and sureties upon the bond of said warehouseman. Id. sec. 6579. Insurance of stored property : Every such bonded public warehouseman shall cause to be insured for the benefit of whom it may concern, unless requested not to insure by the owner, all property from the time it is stored with him, in his said bonded public warehouse, such in- surance to be so taken out as to cover and protect said property from the time it was so stored with him. Id. sec. 6580. Receipts of warehouseman : Every such warehouseman shall, except as hereinafter pro- vided, give to each person depositing property with him for storage a receipt therefor, which shall be negotiable in form, and shall describe the property, distinctly stating the brand or distinguishing marks upon it, and if such property is grain the quantity and inspected grade thereof. The receipt shall also state the rate of charges for storing the property, and amount and rate for insurance thereon, and also the amount of the bond given to the clerk of the court, as hereinabove provided; pro- vided, however, that every such warehouseman shall, upon re- quest of any person depositing property with him for storage, give to such person his non-negotiable receipt therefor, which receipt shall have the words "non-negotiable" plainly written, 7 98 GEORGIA LAWS. printed or stamped on the face thereof, and provided, that no assignment of such non-negotiable receipt shall be effective mitil recorded on the books of the warehouseman issuing it; provided further, that the non-negotiable receipt may be sur- rendered at any time by the owner thereof, and a negotiable receipt issued in lieu of the same. Id. sec. 6581. Transfer of receipts : The title to cotton and other goods, wares and merchandise stored in such bonded public warehouses shall pass to a jjur- chaser or a pledgee thereof by the delivery to him of the said warehouseman's receipt therefor with indorsement thereon to such a purchaser or pledgee signed by the person to whom such receipt was originally given by said warehouseman or by the indorsee of such receipt. Id. sec. 6582. Mixed ^raiii or other property : When grain of other property is stored in such bonded public warehouses in such a manner that different lots or parcels are mixed together, so that the identity thereof cannot be accurately preserved, the warehouseman's receipts for any portion of such grain or property shall be deemed a valid title to so much thereof as is designated in said receipt, without regard to any separation or identification. Id. sec. 6583. Books of warehouseman : Every such warehouseman shall keep a book in which shall be entered an account of all his transactions relating to ware- housing, storing and delivering cotton, goods, wares and mer- chandise, and to the issuing of receipts therefor, which book shall be open to the inspection of any person actually interested in the property to which such entries relate. Id. sec. 6584. Storage sale for non-payment : Every bonded public wai'ehouseman who shall have in his possession any property by virtue of any agreement or ware- house receipt for the same on which a claim for storage of the same is at least one year overdue, may proceed to sell the same at public auction, and out of the proceeds may retain all charges GEORGIA. 99 for storage on such goods, wares, and merchandise, and any advances that may have been made thereon by him or them, with legal interest thereon, and the expenses of advertising and sale thereof. But no sale shall be made until after the giving of printed or written notice of such sale to the person or persons in whose name such goods, wares and merchandise were stored, requiring him or them, naming them, to pay the arrears or amounts due for such storage, and in case of default in so doing, the goods, wares and merchandise may be sold to pay the same at a time and place to be specified in such a notice. Id. sec. 6585. Notice by warehouse man : The notice required in the last preceding section shall be served by delivering to the person or persons in whose name such goods, wares and merchandise were stored, or by leaving it at his usual place of abode, if within the state, at least thirty days before the time of such sale, and a return of the service shall be made by some officer authorized to serve civil processes, or by some other person, with an affidavit of the truth of the return. If the party storing such property cannot with reasonable dili- gence be found within the state, then such notice shall be given by publication once in each week for two successive weeks, the last publication to be at least ten days before the time of such sale, in a newspaper published in the city or town where such warehouse is located ; or if there is no such paper, in one of the principal papers published in the county in which said city or town is located. In the event that the party storing such goods shall have parted with the same, and the purchaser shall have notified the warehouseman, with his address, such notice shall be given to such person in lieu of the person storing the goods. Id. sec. 6586. Proceeds of sale ; entry, etc. : Such bonded public warehouseman shall make an entry in a book kept for the purpose of the balance or surplus of proceeds of sale, if any, and such balance or surplus, if any, shall be paid over to such person or persons entitled thereto, on demand. Id. sec 6587. 100 (JEORGIA LAWS. Penalty for unlawful disposition of goods deposited : Whoever unlawfully sells, pledges, lends, or in uny other way tlisposes of, or permits, or is party to the unlawful selling, pledging, leniling, or other disposition of any goods, wares, merchandise or thing deposited in a bonded jjublic warehouse, without the authority of the party w^ho deposited the same, or of the law^ful transferee or indorsee of the receipt given there- for, shall be punished by a fine not to exceed $2,000, and by imprisonment in the state penitentiary for not more than three years. But no bonded public warehouseman shall be liable to the penalties provided in this section unless wdth intent to in- jure or defraud any person to whom he so sells, pledges, lends, or in any other way disposes of same, or is a party to the un- lawful selling, pledging, lending, or other unlaw^ful disposition of any goods, wares, merchandise, article or thing so deposited and receipted for by him. Id. sec. 6588. Perishable property, sale of : Whenever a bonded public warehouseman has in his pos- session any property which is of a perishable nature, or will deteriorate in value by keeping, or upon which the charges for storage will be likely to exceed the value thereof, or which by its odor, leakage, inflammability or explosive nature is likely to injure other goods, such property having been stored upon non-negotiable receipt, and when said warehouseman has noti- fied the person in whose name the property was received to re- move said property, but such person has refused or omitted to receive and take away such property, and to pay the storage and proper charges thereon, said bonded jiublic warehouseman may, in the exercise of a reasonable discretion, sell the same at pubhc or private sale without advertising, and the proceeds, if there are any proceeds, after deducting the amount of said storage and charges and expenses of sale, shall be paid or cred- ited to the person in whose name the property was stored; and if said person cannot be found, on reasonable inquiry, the sale may be made without any notice, and the proceeds of such sale, after deducting the amount of storage, expenses of sale, and other proper charges, shall be paid to the person entitled to the same. Id. sec. 6589. GEORGIA. 101 Uns.alable property : When a boiulod public warehousenican, under the provisions of the preceding section, has made a reasonable effort to sell perishable and worthless ijroperty, and has been unable to do so because of its being of little or no value, he may then proceed to dispose of such property in any lawful manner, and he shall not be liable in any way for property so disposed of. Id. sec. 6590. Storage, liability for : When a bonded public warehouseman, under the provisions of the two preceding sections, has sold or otherwise disposed of property, and the proceeds of such sale have not equalled the amount necessary to pay the storage charges, expenses of sale, and other charges against said property, then the person in whose name said property was stored shall be liable to said bonded public warehouseman for any amount, which, added to the proceeds of such sale, will be sufficient to pay all the proper charges upon said property, or in case such property was valueless and there were no proceeds realized from its dis- position, the person in whose name said property was stored shall be liable to said public warehouseman for all proper charges against said property. Id. sec. 6591. Definition : A bailment is a delivery of goods or property for the execu- tion of a special object, beneficial either to the bailor or bailee, or both; and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust. Code of Ga. 1895, sec. 2894. Property in bailee : In all cases the bailee, during the bailment, has a right to the possession of the property, and in most cases a special right of property in the thing bailed. For a violation of these rights by any one he is entitled to his action. Id. sec. 2895. Burden of proof : In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence. Id. sec. 2896. 102 GEORGIA LAWS. Care aud diligeuee : All bailees are required to exercise care and diligence in pro- tecting and keeping safely the thing bailed. Different degrees of diligence are required according to the nature of the bail- ments. Id. sec. 2897. Ordinary : Ordinary diligence is that care which every prudent man takes of his own property of a similar nature. The absence of such diligence is termed ordinary neglect. Id. sec. 2898. Extraordinary : Extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property. Id. sec. 2899. Gross neglect : Gross neglect is the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property. Id. sec. 2900. Imputable negligence : For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such a relation of privity to the negligent person as to create the relation of principal and agent. In a suit by an infant the fault of the parents, or of the custodians selected by the par- ents, is not imputable to the child. Id. sec. 2901. GEUiUJlA. 108 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Essence of contract. The essence of a contract of bailment on the part of a bailee is for diligence of the required degree, and when he has used such diligence his contract is fulfilled and he discharged al- though the property may be lost during his custody of it. Merchants Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797. Same — Special deposit in hank — Care in selecting employees. A bank is not liable for the loss of a special deposit, for which it receives no compensation, by the theft of its cashier or other servant, provided it has not been guilty of gross negligence in any respect. The negligence of the bank may consist in re- taining an unfit person in the ])osition of cashier or other posi- tion. But when it does its full duty in selecting the proper person and in not disregarding indications of dishonesty, which ought to arouse suspicion and investigation, it is not responsi- ble to one who had obtained from it the favor of keeping spe- cific property without recompense, although the cashier or other employee steal the property so put in its charge. Id. (This case, on the ground of improper instruction to the jury, was sent back for a new trial and the plaintiff again obtained a verdict which on appeal, reported in 93 Ga. 503, was affirmed, the court holding the bank guilty of a want of diligence.) . Same — Action by bailor or bailee — Measure of damages. In an action of trover by a bailee, or special-property man, against the general owner, the measure of his damages is the value of his special property only; but when the action is by the bailee or special-property man, against a stranger or wrong- doer, the plaintiff is entitled to recover the full value of the property converted by the defendant and hold the balance, beyond his own interest, for the general owner. Schley v. Lyo7i & Rutherford, Trustees, 6 Ga. 530. Same — Trespass against bailed property — Rights of action. In all cases of bailment, where the property is in possession 104 GEORGIA DECISIONS. of the bailee, and a trespass is committed during the continu- ance of the baihnent, this gives the bailee a right of action for the interference with his special property, and a concurrent right to the owner or bailor, for the interference with his gen- eral property. Code, sees. 2141, 2191, 3030; Lockhart v. West- em & Atlantic R. R. Co., 73 Ga. 472. Same — Statute of limitations in case of — Mutual account. Where a warehouseman and one of his customers maintained a mutual account wliich had been running for a period of over six years, it was held that the statute of limitations did not be- gin to run until the last charge or item of the account. Flournoy & Epping v. Wooten et al., 71 Ga. 168. Same — Conversion — When statute of limitations begins to run. The statute of limitations begins to run when the bailee for hire holds the goods adversely to the title of the bailor; the possession immediately ceases to be adverse in consequence of the return of the bailee to his duty as such. Harral v. Wright et al, Exrs., 57 Ga. 484; Blount, Admr., v. Beall, 95 Ga. 182. Evidence — Negligence — Question of law. In an action against a bailee, the question of negligence is a question of law for the court to determine, but the facts, from which it is, or is not, inferred, must be found by the jury. Morel V. Roe, R. M. Charl. 19. Same — When burden of proof on bailee. In all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence. Civil Code, sec. 2696. Massilion Engine & Thrasher Co. v. Akerman et al., 110 Ga. 570; Concord Variety Works v. Beckham, 112 Ga. 242. B. Warehouseman — Ordinary care — Duty of, defined. A warehouseman is only bound to exercise that degree of ordinary diligence in taking care of property stored with him which a prudent man would exercise in taking care of his own property. Cunningham v. Franklin, Read & Co., 48 Ga. 531; Merchants Nat. Bank of Savannah v. Guilmartin, 93 Ga. 503. GEORGIA., 105 Same — Holds jor owner. Goods in the possession of a warehouseman are legally in the possession of the owner. Sivifl, Murphy (fc Co. v. Mc- Lemore, 48 Ga. 63; Zellner v. Mohley, 84 Ga. 746; Flournoy, Hatcher & Co. v. Wardlaw, 67 Ga. 378. Same — Prima jade case. Where a bailment had been established, a refusal of delivery upon demand likewise shown, and the damage proven, the plain- tiff had made his case and, uncontradicted, he was entitled to recover. Nail v. Farmers Warehouse Co. et al., 95 Ga. 770. Goods deposited hy agent — Where personally liable for storage charges — Election. An agent, who had purchased cotton for his principal, stored the same with a warehouseman and did not disclose the fact that he was acting as an agent, in such a case, the warehouse- man can hold him personally responsible for all storage charges. If the warehouseman afterwards elects to hold the principal he thereby releases the agent, but the mere fact that the ware- houseman having presented his bill for charges to the agent and upon receiving a notification that the agent declined to pay, thereupon requests the attorney for the agent to forward the bill to the principal, this does not constitute such an election as will hold the principal and release the agent. Garrard, Executor, v. Moody, 48 Ga. 96. Dispute as to title — When right to file interpleader exists. A warehouseman sold goods deposited with him, pursuant to what he claims was an order, from his bailor, to sell. The purchaser of the cotton subsequently stores the same with the warehouseman, the original bailor denies having given the ware- houseman powe' to sell, and claims the cotton as his own. Held, that the above facts are not such as to allow the ware- houseman to file a bill of interpleader, compelling the original bailor and the purchaser to litigate between themselves as to the title of the cotton. The facts do not present a case in which an interpleader will lie, for the reason that, if the warehouseman acted without proper authority in the sale of the cotton, he is 106 GEOKCilA DIXISIONS. liable in damages to the original bailor. If, under the facts in the given case, a party may be a wrongdoer against either of the claimants of the property, a bill of interpleader cannot be filed. Tyus & Beall v. Rust, Survivor, 37 Ga. 574. Landlord's debt — Tenant's cotton cannot be taken. A landlord, by inadvertence, deposited cotton belonging to his tenant with a warehouseman to whom the landlord was indebted; the warehouseman sought to apply the cotton to his debt. Held, that the tenant had a right of action for the cotton against the warehouseman. Flournoy, Hatcher & Co. v. Wardlaw, 67 Ga. 378. Sale of goods while in warehouse — Best evidence. Where goods have been sold while deposited in a warehouse and the purchaser thereof claims that the warehouse receipt was duly assigned to him, in an action, by said purchaser, against the warehouseman for the recovery of the goods, he must produce the receipt or else satisfactorily account for its non-production. The production of the warehouse receipt is the best evidence of title to the goods represented thereby. Patten v. Baggs, 43 Ga. 167. Conversion — Sale on credit when instructed to sell for cash only, not a conversion. Where an agent, who is in possession of goods belonging to his principal for the purpose of sale, sells the same on credit, it will not constitute a conversion although it be shown that under the agreement between them, the agent was authorized to sell for cash only. Loveless v. Fowler, 79 Ga. 134. Taxable debt — Right to goods stored does not become such until demand and refusal. Defendants had undertaken, by contract, to keep safely and deliver to the plaintiff on demand two bales of cotton. Two years elapsed before demand made; held, that, under the pro- visions of the act of October 13, 1870, the plaintiff's right to the possession of this property did not become a taxable debt within the meaning of said act until he had demanded the cotton of GEORGIA. 107 the defendant and had met with a refusal to deUver. Dawson V. Ivy & Garrard, 45 Ga. 22. Contract of leasee of warehouse acting in capacity of agent and in individual capacity — Individually liable to depositors. Where in an action against several persons, doing business as warehousemen, the evidence showed that the plaintiff de- posited several bales of cotton with them and, further, that the defendants had contracted in their capacity as a committee, for the purpose of running an alliance warehouse, and also in- dividually. The contract of rental was executed not only in their representative but also in their personal capacity. A bailment was shown^ refusal of the defendants to deliver the cotton upon demand and the plaintiff had proved his damages. After such a showing the court granted a nonsuit. It was held that the plaintiff had established a prima facie case, that as the evidence was uncontradicted he was entitled to judgment. Therefore, the judgment of the court below was reversed. Nail v. Farmers' Warehouse Co. et al., 95 Ga. 770. Delivery — Wrongful where made to the owner's broker in the absence of express authority. In an action against a railroad company, liable as a ware- houseman, it appeared that it had tendered the goods to the consignee, who had refused to receive them. The carrier's de- fense was that it had delivered the goods, pursuant to instruc- tions given it by the plaintiff's broker, and that the consignee had directed defendant to consult with such broker. It was shown that it was a custom for carriers to follow the direc- tions of consignees' brokers in case of refusal to receive goods. It was held that the defendant had violated its duty to the con- signor in delivering the goods pursuant to instructions received from the plaintiff's broker, that the evidence failed to show any lawful excuse or justification for such delivery, and that ordi- nary diligence would have required the defendant to go, at least one step further, and obtain satisfactory evidence that the broker in reality had the authority to direct the delivery of the goods in behalf of the plaintiff. American Sugar Re- fining Co. V. McGhee, 96 Ga, 27. 108 GEORGIA DECISIONS. E. Factors — Must act strictly within owners' instructions — Local custom cannot change law. The plaintiffs, factors and cotton brokers, brought an action against the defendants on a promissory note and on money due on an account between them. The defendant pleaded payment of the note and recoupment as to the whole amount claimed. On the trial of the case, the defendants proved that they had shipped a large quantity of cotton to the plaintiffs with instruc- tions to sell the same and to apply the proceeds thereof to the payment of the note sued on. And, further, that the sale had been made but not pursuant to the instructions of the defend- ant, and that the sum actually realized was nearly as great as the amount claimed by the plaintiffs, and that had plaintiffs followed the instructions of the defendants in regard to the sale, the amount realized therefrom would have been in excess of the sum claimed by the plaintiffs. The plaintiffs contended that as they had made advances on the cotton they were not bound to obey the instructions of the defendants in regard to the sale thereof and that this was a custom and usage in the city where the transaction took place. The court held that this contention could not be sustained, that it was the duty of the factor to strictly comply with the instructions of his principal and that it was error in the trial court not to instruct the jury, that if they believed that the cotton was shipped to the plain- tiffs with the directions as alleged, and that if plaintiffs had sold the said cotton and it would have brought enough to pay off the note, that this was an extinguishment of the debt and the plaintifTs could not recover thereon. Hatcher & Baldwin V. Corner & Co., 73 Ga. 418. Siam.e — Sale to recover advances — Effect of death of principal. A factor, who has been intrusted with the possession of goods with directions to sell the same at such time as he thought best, has a right to sell a portion thereof in order to reimburse him- self for advances made. The bailor's confidence being reposed in the factor, he may, in the absence of instructions, exercise his discretion according to the general usage of the trade; but in return, greater and more skillful diligence is required of him, GEORGIA. 100 and the most active good faith. Where there has been no ad- vances made, the power to sell is revocable at the pleasure of the owner, but not so where the factor has made advances, or incurred expenses in relation to the property, then the power of sale is irrevocable, as to the extent of such advances and ex- penses, and the factor has a lien on the goods for such sums. Therefore, where advances have been made, the power of sale to such an extent is not revoked by the death of the owner. Willingham v. Rushing et ah, 105 Ga. 72. Same — Pledge by. Where a factor, who was also a warehouseman and commis- sion merchant, issued a receipt for cotton, intrusted to him for sale, to himself and in his own name, and pledged the same with a bank as security for a personal loan to him, it was held that the bank, as pledgee, acquired no title as against a subsequent purchaser of the cotton who bought in good faith from the factor. National Exchange Bank v. Graniteville Mfg. Co., 79 Ga. 22. H. Storage charges. A warehouseman is not obliged to deliver goods until his storage charges are paid. Tyns v. Rust, 43 Ga. 529; Dixon v. Central Ry. Co., 110 Ga. 173. Same— Cannot be changed by notice exhibited in warehouse subsequent to date of storage. A warehouseman received cotton for storage when the rate was twenty-five (25) cents for the first month per bale and twelve and one half (12^) cents for each subsequent month until the cotton was removed; afterward the warehouseman posted a notice in his warehouse, in which it was stated that the charge on all goods stored should be fifty (50) cents for the first month and twenty-five (25) cents for all following months. It was admitted by plaintiff that it was customary among ware- housemen that no change in the charge of storage was ever made upon goods already stored ; under this admission, it was held that the warehouseman could only recover charges at the 110 GKORC^rlA DIOCISIONS. rate prevailing at the time of storage. Garmany v. Rust, 35 Ga. 108. Warehouseman^ s lien — Superior to claim for advances and charges. A\"here it appeared that a warehouseman received cotton in Ms warehouse without notice of an}' Hen or charge against the same, and it subsequently appeared that the cotton was pro- duced on rented ground, the owner of which had an interest in such cotton, and further, that the seller of fertilizer also had a claim against the cotton, it was held that the lien of the ware- houseman, for his lawful charges, was superior to any of the aforesaid advances and charges. Clark & Cole v. Dohhins, 52 Ga. 656; Beall v. Butler, 54 Ga. 43. Same — Bailor personally liable for charges. Any addition to a lien which a warehouseman has for his law- ful charges for storage, the bailor is personally liable therefor. Garrard, Executor, v. Moody, 48 Ga. 96. Factor's lien — Possession. Possession of the property is necessary to create the factor's lien, but that may be actual or constructive. Kollock v. JcLck- son, 5 Ga. 153. Same — Judgment paramount. Judgments bind all the property owned by the defendant, from their date, as well that subsequently acquired as that owned at the time of signing the judgment; and the lien of judg- ments has precedence over, and is paramount to the lien of a factor upon property in his possession. Id. Same — Same — Principal and agent — Set-off — Pleading. A principal is liable to his factor for all commissions, expenses, advancements and disbursements, made or accruing in the course of the agency, on his account and for his benefit. And ' the factor has also a lien upon the goods in his hands, and their proceeds, if lawfully sold ff)r cash, or the securities for which they were sold, if sold for credit, to secure to him such expenses^ OKOlKilA. Ill disbursements, advancements and commissions. Both the lien and the personal liability of the principal may be waived. The factor may detain the goods in satisfaction of his lien, or he may sue his principal for his commissions, disbursements and ex- penditures, antl when himself sued by his principal, he may set them up in reduction of the plaintiff's demand, without plead- ing them as a set-off. But the liability of the principal goes upon the ground that they were made and incurred in good faith, reasonably and without any default, on the part of the factor. Brown, Shipley & Co. v. Clayton, 12 Ga. 564. K. Garnishment of goods while in warehouse — Delivery of goods after service of summons — Warehouseman liable. The storing of goods with a warehouseman is a contract of bailment, and the receipt is the mere evidence thereof. Where a warehouseman gives a receipt for goods stored by A, in which he promises to deliver the goods to A, or the bearer of the re- ceipt, and is subsequently served with summons of garnish- ment by a creditor of A, held, that he is not relieved from lia- bility, by the delivery of the goods to the holder of the receipt, to whom it was transferred after service of the garnishment. Smith V. Picket, 7 Ga. 104. L. Trover— Actual conversion must be shown— Sale on credit when cash sale only authorized — Demand. The defendant was intrusted with certain goods belonging to the plaintiff for the purpose of cash sale. In an agreed state- ment of the facts in the case it was stated that the defendant sold part of the goods on credit. There was no evidence to show what part of the goods were sold, nor that there had been a demand made prior to action brought. Held, on the above stated facts, that there had been no conversion shown; that where one is intrusted with goods belonging to anothei- for the purpose of selling the same for cash that a sale on credit will not constitute a conversion but is simply a breach of instructions. Title would pass to the purchaser in such a case and a sale which passes title is not a conversion, although it may be an abuse of 1-^2 GEOKGIA DECISIONS. authority. Trover will not lie in such case but the proper rem- edy of the plaintiff should have been an action on the case for violation of instructions or breach of contract. Loveless v. Folder, 79 Ga. 134. Same — Pledgee of warehouse receipt may maintain trover. Where one holds a warehouse receipt as pledgee and the ware- houseman refuses to deliver the goods on demand, such pledgee may maintain the action of trover against the warehouseman for he stands in the same privileged position as a bona fide pur- chaser for value of the receipt. Citizens Banking Co. v. Pea- cock & Carr, 103 Ga. 171. M. Pledge — Delivery by warehouse receipt. The delivery of a warehouse receipt, being the symbolical de- livery of the property represented thereby, is sufficient to create a valid pledge of the property. Citizens Banking Co. v. Peacock & Carr, 103 Ga. 171. Warehousemaji's books — Best evidence as to weight of stored cotton. Where cotton is weighed by warehousemen, and an account of the weight is rendered the depositor, their books and not his are the best evidence as to its weight. Cloud & Shackelford v. Hartridge & Hartridge, Admrs., 28 Ga. 272. N. Loss by fire — Warehouseman not responsible. A warehouseman is not responsible for goods destroyed by fire unless negligence be shown upon his part. Brunswick Grocery Co. v. Brunswick & Western R. R. Co., 6 Ga. 270. Act of war — Not trespass. Where an officer in the Confederate Army received property and removed it to prevent it from falling in the hands of the Union forces, it was held that this was not trespass, that cotton was contraband of war; and further, that a clerk of the ware- houseman who received such property, after its removal and GEUKGIA. 113 placed the same in his employer's warehouse, was not liable for the conversion thereof. Stafford v. Mercer, 42 Ga. 556. Same— Charges to jury— Ordinary care— Measure of damages. Where cotton was thrown out of defendant's warehouse by the Confederate forces, in order that such warehouse might be used as a hospital, and where the evidence showed that both the plaintiff, who was the owner of the cotton, and defendant had seen the cotton so thrown out, it was error on the part of the court to rest its charges to the jury simply on the fact that it was the duty of the warehouseman to recover possession thereof, if he could do so by the exercise of ordinary care and prudence; the court should have further charged that if it ap- peared to the satisfaction of the jury that plaintiff might have protected his cotton by the exercise of such care, it was his duty to do so, and the attention of the jury should have been called to the fact that, owing to the state of war then existing, both parties were to all intents and purposes under duress. Smith & Oneal v. Frost, 51 Ga. 336. Loss of weight — Burden of proof. Where it is shown that properties stored with a warehouse- man have decreased in weight since the same were received by him, the plaintiff must not only show this fact but it must further show that such loss resulted from the negligence and want of proper care on the part of the warehouseman. Cun- ningham V. Franklin, Read & Co., 48 Ga. 531. 0. Measure of damages— Interest allowed from date of demand. Where a warehouseman was sued for the conversion of cot- ton deposited with him and it was alleged that he failed to re- deliver the same upon demand, the court charged the jury among other things, that if it found for the plaintiff, its verdict should be for the value of the cotton with interest from the time of demand and that the principle and interest together would be the amount of damages. Held, that this was proper charge. Garrard v. Dawson, 49 Ga. 434. 8 114 GEORGIA DECISIONS. P. Cost of removing debris — Equitahle lien — Bailor^ s right of re- moval. A warehouseman had a large quantity of rice stored which was insured in various fire insurance companies by the several owners thereof. The warehouse was burned and a large quan- tity of the rice ruined. Representatives of the insurance com- panies, without permission from the warehouseman, removed all the salable rice remaining after the fire and disposed of the same in accordance with the terms of the policies. A large quantity of ruined lice remained on the premises and the ware- houseman was obliged to remove the same pursuant to an order of the health authorities of the city. In an action by the ware- houseman against the agent of the several insurance companies who held the proceeds of the sale, the former contended that he had an equitable lien on such proceeds for the expense which he had been put to in removing the rice from his premises. The court held that this contention could not be sustained, that a warehouseman's lien extended only to the goods of his customer for storage charges that had accrued upon them, and that the court would not extend an equitable lien for his dis- bursements in such a case. The court further held that a de- positor had, at all times, the right to go upon the premises of the warehouseman to remove his property therefrom, and that if the property was partially injured that the owner would have a right to remove the uninjured portion, but that he could not be compelled to remove that which was ruined. That if the warehouseman was put to expense in i-emoving such useless property, the expense must be borne l)y him as it is one of the incidents of the business of warehousemen. Savannah Steam Rice Mill Co. v. Hull, 103 Ga. 831. Insurance — Contract to keep insured in customer's name. The plaintiff brought an action against the defendant ware- houseman, alleging that he had stored a large quantity of cotton in the warehouse of the latter, and that under a contract be- tween them it was agreed that the defendant was to keep the cotton insured in the name of the plaintiff. The cotton was to be designated in the policy of insurance by certain marks made GEORGIA. 115 on the several bales. After several months the plaintiff re- moved the cotton from the warehouse of the defendant and settled his account with him on the basis that the insurance had been placed in the manner specified in the contract. It sub- sequently came to the knowledge of the plaintiff that the ware- houseman had not insured the cotton in the manner set forth in the contract, but that the cotton had been insured under the defendant's general policies of insurance covering all the cotton in the warehouse of the defendant. The depositor thereupon brought this action to recover the amount of insurance with which he was charged. It was held that he was entitled to so recover, the jury having found that as a matter of fact the de- fendant had failed to comply with his contract with the plain- tiff. Henderson Warehouse Co. v. Brand, 105 Ga. 217. Same — Contract to insure — Statement in warehouse receipt as to insurance does not constitute such contract. The defendant warehouse company issued to the plaintiff a receipt for cotton stored in which it was stated, ''All cotton stored with us fully insured." The defendants were charged, first, with the loss of the cotton in that the fire which destroyed the same was the result of their negligence and, by an amend- ment to the declaration, with a liability under the contract by which they agreed to keep the cotton insured; and that the statement in the warehouse receipt was evidence of such con- tract. On motion of the defendant at the trial, that part of the declaration in regard to the contract to keep the cotton insured was stricken out and the jury was left to consider the question as to whether or not the defendant had been guilty of negligence in the loss of the cotton. It was held that the mere statement that "All cotton stored with us fully insured" is not sufficient to constitute a contract to insure, and that al- though these words might be misleading and productive of damage, they were not sufficient to constitute such a contract. The jury found that the defendant had exercised due care and that it was not responsible for the loss of the cotton resulting from the fire. The judgment given for the defendant was, therefore, affirmed on appeal. Zorn v. Hannah & Co., 106 Ga. 61. 116 GEOEGIA DEC1S10^6. Same — Evidence of custom. Evidence that it was the custom of those depositing goods in warehouses to insure them was properly received. Hamil- ton & Co. V. Moore, 94 Ga. 707. Warehouse receipts — Negotiability. The transfer and dehvery of a warehouse receipt is equiva- lent to the delivery of the property itself. Citizens Banking Co. V. Peacock & Carr, 103 Ga. 171; Gibson v. Stern, 8 How. (U. S.) 383. Saine — Case where bailor protected when warehouse receipt fraudulently negotiated. Where the owner of goods delivers them to his agent to de- posit the same in a warehouse and the agent accordingly does so, but takes a receipt therefor in his own name and negotiates the same, it was held that the title of the owner to the goods was not impaired by the fraudulent negotiation of the receipt. Richardson & Martin v. Smith, 33 Ga. Supp. 95. Same — Delivery by — Essentials of sale. The plaintiff contracted with a manufacturer, who was also conducting a warehouse, that the latter should manufacture certain articles of commerce and, when completed, that the goods should be stored in the warehouse belonging to the manu- facturer. It was the custom between them that when the goods were stored the purchaser would honor a draft drawn by the manufacturer, to which draft were attached warehouse receipts showing that the goods had been deposited and stored in the warehouse. On the occasion out of which this suit grew, the manufacturer had issued the usual receipt and drawn his draft on the plaintiff, but the goods represented thereby were still in the factory and had not been delivered to the warehouse. After the plaintiff had paid the draft and before he had with- drawn the goods, a receiver was appointed for the manufacturer who took possession of the goods represented by this receipt, which goods were found in the factory and not in the warehouse. At the trial the court adjudged that no title had passed by the GEORGIA. 117 transfer of this receipt to the i)laiiitiff and that, therefore, he was not entitled to recover. The case was reversed on appeal holding that the essentials of a valid sale had been complied with and the title had been passed to the plaintiff. That the issuing and transferring of a warehouse receipt was a well recog- nized and common mode of effecting delivery, and, in tliis case, was undoul:)tedly intended to operate as such. Having re- ceived the price of the goods, the manufacturer would be es- topped from denying the fact of delivery to his warehouse. Shepard & Co. v. King, 96 Ga. 81. Same — Indorsement by one since deceased — Title — Evidence. A person, since deceased, had indorsed a warehouse receipt to another, the purpose of such indorsement was not stated. In an action, by the executor, for the recovery of the goods represented by the receipt, parol evidence will be received, which will explain that such indorsement was not for the pur- pose of passing the title to the goods but simply to enable the assignee to act as the agent for the indorser to obtain the cotton represented by the receipt. Lowery v. Davidson, 44 Ga. 38. Same — Collateral security — Withoid indorsement — Intention of parties — Burden of proof. Where a receipt, issued by a warehouseman, was transferred by the person to whom the same was issued and pledged as collateral security, for the payment of a loan, but not indorsed to the pledgee, it was held that the property passed to the pledgee by such symbolical delivery. Under the code in force in the state of Georgia, a pledgee of such a receipt is such a bona fide holder of the property as will be protected under the same circumstances as a purchaser. Further, that if the par- ties so intend, the delivery of a warehouse receipt without in- dorsement, as collateral security, transfers both title and pos- session to the property represented by the receipt. Where the warehouseman claims that the pledgee has received the proceeds of the warehouse receipt, the burden of proof is on him to show that fact in the trial of the action for the recovery of the prop- erty. Citizens Banking Co. v. Peacock & Carr, 103 Ga. 171. 118 GEORGIA DECISIONS. Same — Property not actually in store — Authority of superin- tendent to issue — Bona fide holder. The superintendent of the defendant warehouse company is- sued negotiable warehouse receipts, of a special form, when the property represented thereby was not actually in store. It was held that in the absence of statutory provisions, warehouse re- ceipts and bills of hiding are mere symbols of the property which they represent, and that a pledgee for value or other bona fide holder occupies no better position than the original bailor. Further, that if warehouse receipts of a special form and character "be adopted and issued in due course of busi- ness, for the express purpose of being pledged as security to obtain money, and if, as a part of the regular system of using them, the warehouseman acknowledged in writing on each re- ceipt notice of assignment by the pledgor to the pledgee before the latter advances his money thereon, the pledgee, after ad- vancing his money in good faith, is entitled to stand in the terms of the pledged receipt as importing a genuine business transaction of the nature described in the instrument. Thus, though in fact no goods had been received for storage, the re- cital in the special receipt being utterly false, nevertheless the recital will have the same effect in protecting such bona fide pledgee as if the goods had been received and stored." And, therefore, the warehouseman was liable for their value. The court holding that he who creates a symbol, is bound by it only in its symbolical character; but he who creates a symbol and aids in raising it to a security, is bound by it both as a symbol and security. Planters Rice Mill Co. v. Merchants Nat. Bank of Savannah, 78 Ga. 574; Planters Rice Mill Co. v. Olmstead & Co., 78 Ga. 586. Same — Same — Pledged by warehouseman as factor to secure personal loan — Bo7ia fide purchaser of goods protected. Where one, who was a warehouseman and who also acted in the capacity of factor and cotton broker, issued a warehouse receipt in his own name for cotton stored with him as factor, and pledged the same with a bank as security for a personal loan to him ; it was held that no title passed to the bank as (IKOKGIA. 119 against an innocent purchaser of the cotton itself. National Exchange Bank v. GraniteviUe Mfg. Co., 79 Ga. 22; Western & A.R.R. Co. V. Ohio Valley B. & T. Co., 107 Ga. 512. Same — Same — To secure note at usurious rate — Title of such pledgee good as against warehouseman. The owner of certain bales of cotton delivered them to the defendant warehouseman and received his warehouse receipt. Such receipt was assigned to the plaintiff, in order to secure the payment of a note which bore interest at a usurious rate. In an action of trover against the warehouseman, these facts were shown at the trial and, further, that there had been a de- mand made by the plaintiff and a refusal to deliver by the de- fendant warehouseman. On motion of the defendant the plain- tiff was nonsuited. It was held on appeal that the defendant warehouseman, who was a stranger to the usurious transac- tion, could not set up usury as a defense in the action for the recovery of the property. Zellner v. Mohleij, 84 Ga. 746. Same — Refusal to deliver goods unless receipt surrendered — Not conversion. In an action, brought by the assignee of a warehouse receipt, against the warehouseman for conversion of the goods, conver- sion cannot be shown by the mere fact that the warehouseman refused to deliver the goods when demanded of him, he claiming that the warehouse receipt should be delivered to him before he surrenders the goods or that he be given a bond indemnify- ing him against misdelivery. Patten v. Baggs, 43 Ga. 167. Same — Lost receipt — Warehouseman compelled to deliver goods — Equity jurisdiction. A bill in equity was filed against warehousemen to compel them to deliver certain goods stored with them upon filing a bond to indemnify the warehousemen, it being alleged in the bill that the warehouse receipt had been lost or destroyed ; upon demurrer to such bill it was held that court had jurisdiction to compel defendants to deliver the goods and that the demurrer was properly overruled, the more especially since it appeared that, if the bill had been dismissed for want of jurisdiction, the 120 GEORGIA DECISIONS. complainant's remedy, at the common-law court, might have been barred by the statutes of limitations. Hardeman & Sparks v. Battershy, 53 Ga. 36. Same — Evidence — Parol testimony — Admission. While it is true that usually the possession of property is the best evidence of title, it is also true that, where personal property sold is represented by warehouse receipts, the receipt itself is the best evidence of title. Further, that where a warehouseman declined to surrender property, which he had stored, to one who represented himself as the owner thereof, stating to such third person that he did not doubt that he was the true owner but that he must have his receipt, such action cannot be construed as an admission that the warehouseman regarded such third person as his bailor. It was at the most that the third person seemed to be the owner but that his title was defective. Patten v. Baggs, 43 Ga. 167. R. Bill of lading — Delivery by carrier of the goods represented with- out return of the bill of lading. A common carrier, which had issued a bill of lading for a quan- tity of flour intrusted to it for shipment, subsequently deliv- ered the flour without procuring the return of the bill of lading. It appeared that the consignor had consigned the goods subject to his own order, and that he had drawn a draft on a third person and had delivered the bill of lading as security for the payment of this draft. Held, that the carrier was liable on the bill of lading. Boatmen's Saving Bank v. Western & Atlantic R. R. Co., 81 Ga. 221; Western & A. R. R. Co. v. Ohio Valley B. & T. Co., 107 Ga. 512; Coker & Co. v. First Nat. Bank of Memphis, 112 Ga. 71. Same — Same — Waiver. The plaintiff sold a carload of shingles to a purchaser and instructed the railroad company not to deliver the same with- out production of the bill of lading. After the shipment was made, plaintiffs learned that the defendant railroad company had, contrary to the terms of its agreement, delivered the GEORGIA. 121 shingles to the purchaser without retjuiring the surrender of the bill of lading. The plaintiff thereupon drew his draft at thirty days, and although such draft was not paid, it was held, in an action against the carrier, that the plaintiff had waived his right as to the surrender of the bill of lading on delivery by the drawing of the draft, this being equivalent to the accept- ance of a thirty days' credit ; further, that the title to the shingles had passed to the purchaser. Southern Ry. Co. v. Kinchen, & Co., 103 Ga. 186. Same — Exemptions in — Contrary to code — Effect of acceptance. The defendant carrier had issued a bill of lading which con- tained provisions that it would not be responsible for the loss or damage to goods incurred when on other and connecting lines of railroad, and that in no case would it be liable for dam- age unless a written demand be made therefor within ten days after delivery of goods. It was held that both of these attempted exemptions were contrary to section 2068 of the code, that it was an attempt to limit the legal liabilities of the carrier and that this could not be done without effectual proof that the shipper had assented thereto; that the mere acceptance of a bill of lading does not establish the shipper's assent to stipu- lations of this kind. Central R. R. Co. v. Hasselkus & Stewart, 91 Ga. 382. Same — Indorsement thereon by agent as to condition of the goods when received not admissible in evidence. A bill of lading with indorsement thereon by freight agent of the defendant, to the effect that certain corn was received in good order by the road by which he was employed, is not ad- missible in evidence unless it be further shov/n that it was the duty of this agent to investigate the condition in which freight was received and report that fact on bills of lading. Evans & Ragland v. Atlanta & West Point R. R. Co., 56 Ga. 498. Same — Indorsement. Where a bill of lading for flour had not been indorsed to plaintiff, he cannot maintain an action thereon. Haas v. Kansas City, F. S. & G. R. R. Co., 81 Ga. 792. 122 GEORGIA UKCLSIONS. Sam e — Sa m e — Effect . All iudorseiiieiit on a bill of lading by the consignor, to a third person, in effect makes such third person the consignee. Chi- cago Packing & Provision Co. v. The Railroad, 103 Ga. 140. Same — Not a "negotiable instrument.^' Although a bill of lading be indorsed and transferred it is not such a negotiable instrument as will give the assignee any greater rights than the assignor had. Id. Same — Same — Stands for the property it represents. Under the common law, bills of lading are not, properly speaking, negotiable instruments. The mere possession of a bill of lading, in an apparently regular state and under circum- stances apparently honest, does not always enable the holder to negotiate them with full protection to a 6077a fide purchaser. If they are stolen or procured from the owner by fraud or trusted to an agent for mere custody and safe-keeping, they occupy much the same, if not exactly the same, position that the property itself would occupy if it were dealt with instead of the bills which represent it. Tison & Gordon v. Hoivard, 57 Ga. 410; Raleigh & Gaston R. R. Co. et al. v. Lowe, 101 Ga. 320. Bills of lading — Notice necessary to defeat. Owing to the importance of bills of lading and similar in- struments in commercial transactions of the day, the court held that the rights of purchasers thereof would be protected and would not be defeated unless there be notice or clear evi- dence of such notice; further', that mere presumption would not suffice. Boatmen^s Savings Bank v. Westerii & Atlantic R. R. Co., 81 Ga. 221. Same — Parol evidence not receivable to show time of delivery — Reasonable time. The plaintiffs proved by a bill of lading a written contract on the part of the defendant carrier to carry and deliver certain goods. It did not appear from the bill of lading that any definite time was therein stated in which delivery must be made. It was held that there was an implied condition in GEOIIGTA. 123 such contract that the goods would be delivered within a rea- sonable time and that parol evidence would not be received to show that it was the understanding of tiic parties that the gootls were to be delivered within a certain understood time; further, that the bill of lading must be looked at as the final depository and sole evidence of the contract of the carrier. Central R. R. Co. v. Hasselkus & Stewart, 91 Ga. 382; Richmond & Danville R. R. Co. v. Shomo, 90 Ga. 496, distinguishing Purcell V. Southern Ex. Co., 34 Ga. 315. See also McElveen & Hardage v. Southern Ry. Co., 109 Ga. 249. T. Larceny by employee — Employee 7iot in possession as bailee — Not larceny after a trust. Where the employee of a warehouseman stole cotton from him, it was held (the value of the cotton being found to be less than fifty dollars) that the crime committed was one of larceny ; that the property was in the possession of the warehouseman and not of the defendant, and, therefore, that no trust was reposed in the defendant from which such a fraudulent conver- sion could be shown as would subject him to indictment for larceny after a trust. Wall v. State of Georgia, 75 Ga. 474. 124 IDAHO LAWS. CHAPTER XI. IDAHO. LAWS PERTAINING TO WAREHOUSEMEN. Lien for services : Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof, by labor or skill, employed for the protection, improvement, safe-keeping or carriage thereof, has a special lien thereon, de- pendent on possession for the compensation, if any, which is due him from the owner for such service (personal property), and livery or boarding or feed stable proprietors, and persons pasturing horses, or stock, have a lien, dependent on possession for their compensation in caring for, boarding, feeding or pastur- ing such horses or stock. Rev. Stat. Idaho, 1887, sec. 3445. Lien of factor : A factor has a general lien, dependent on possession, for all that is due to him as such, upon all articles of commercial value that are intrusted to him by the same principal. Id. sec, 3447. When bailee and others are guilty of embezzlement : Every person intrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or trans- fer thereof, who fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, is guilty of embezzlement. Id. sec. 7069. IDAHO. 1 25 DECISIONS AFFECTING WAREHOUSEMEN. "/n good order" construed. Where the j)hiintiff has signed a receipt for goods received from a carrier, or otlier bailee, in which it is stated that the goods are received in good order, it was held that, although this statement would not estop the plaintiff from afterward proving that the goods were in a damaged condition, it never- theless raised a strong presumption in the defendant's favor. It is a fact about which evidence may be received to fully ex- plain the circumstances under which the statement was made and signed. Bloomirigdale v. Du Rell & Co., 1 Ida. 33. 126 ILLINOIS LAWS. CHAPTER XII. ILLINOIS. ARTICLE XIII OF THE CONSTITUTION OF ILLINOIS AND LAWS PERTAINING TO WAREHOUSEMEN. Art. XIII. Constitution of Illinois, Sec. 1. All elevators or storehouses, where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public ware- houses. Sec. 2. The owner, lessee, or manager of each and every pub- lic warehouse, situated in any town or city of not less than 100,000 inhabitants, shall make weekly statements under oath, before some officer to be designated by law, and keep the same posted in some conspicuous place in the office of such ware- house, and shall also file a copy for public examination in such ))lace as shall be designated by law, which statement shall cor- rectly set forth the amount and grade of each and every kind of grain in such warehouse, together with such other property as may be stored therein, and what warehouse receipts have been issued, and are at the time of making such statement, outstanding therefor; and shall, on the copy posted in the ware- house, note daily such changes as may be made in the quantity and grade of grain in such warehouse; and the different grades of grain shipped in separate lots shall not be mixed with in- ferior or superior grades without the consent of the owner or consignee thereof. Sec. 3. The owners of property stored in any warehouse, or holder of a receipt for the same, shall always be at liberty to examine such property stored, and all the books and records of the warehouse in regard to such property. Sec. 4. All railroad companies and other common carriers on ILLINOIS. 127 railroads shall weigh or measure grain at points where it is shipped, and receipt for the full amount, and shall be responsi- ble for the delivery of such amount to the owner or consignee thereof, at the place of destination. Sec. 5. All railroad companies receiving and transporting grain in bulk or otherwise, shall deliver the same to any con- signee thereof, or any elevator or public warehouse to which it may be consigned, provided such consignee, or the elevator, or public warehouse can be reached by any track owned, leased, or used, or which can be used by such railroad companies; and all railroad companies shall permit connections to be made with their track, so that any such consignee, and any public warehouse, coal bank, or coal yard, may be reached by the cars on said railroad. Sec. 6. It shall be the duty of the general assembly to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and to give full effect to this article of the constitution, which shall be liberally construed so as to protect producers and shippers. And the enumeration of the remedies herein named shall not be construed to deny to the general as- sembly the power to prescribe by law such other and further remedies as may be found expedient, or to deprive any person of existing common-law remedies. Sec. 7. The general assembly shall pass laws for the inspec- tion of grain, for the protection of producers, shippers, and re- ceivers of grain and produce. An Act to regulate public warehouses, and the warehousing and inspection of grain and to give effect to article thirteen of the constitution of this state. Approved April 25, 1871. In force July 1, 1871, L. 1871, 1872, p. 762. Above act construed — Held to be constitutional : This act was held to be constitutional on the ground that the legislature had the right in the exercise of the police power to prescribe maximum rates of storage, it not being contended that such rates would be in effect prohibitive of the business ; the court further held that the act did not violate either the state or federal constitutions. Munn v. The People, 69 111. 80, aff'd 94 U. S. 113. (See Illinois decisions, page 182). 128 ILLINOIS LAWS. Same — No authority lor appointment of inspectors for wareliouses of Class B : In an action of quo warranto instituted against the Board of Trade of East St. Louis, the plaintiff charged the defendant with proceeding without warrant of law in the appointment of grain inspectors of warehouses and elevators, known as class B, and in that it charged and collected from the plaintiff and other owners, not being members of said board, inspection fees. It was held that although section 19 of the above act provided that no proprietor of a warehouse of Class B shall be per- mitted to receive any grain or mix the same with the grain of other owners in the storage thereof, until the same shall have been inspected and graded by a regularly appointed inspector, that in view of the fact that the above law did not provide for the appointment of such inspectors that it could not be said that it conferred such power upon the defendant or that it had dele- gated this power at all. Further, that the contention that the act of 1871 was intended as an amendment to the charter of the board of the defendant could not be sustained, as no such inten- tion is exhibited therein either expressly or impliedly. Further, that as no appointment was provided for in this act and none was made, proprietors of warehouses of Class B could conduct their business without inspectors as they had done prior to the passage of the act. And that this seeming defect in the act did not, in the judgment of the court, invest the defendant with the important power of appointing inspectors of grain. East St. Louis Board of Trade v. The People, 105 111. 382. Classified : Be it enacted by the People of the State of Illinois, represented in the General Assembly, That public warehouses, as defined in article 13 of the constitution of this state, shall be divided into three classes, to be designated as classes A, B, and C, re- spectively. Revised Statutes of Illinois, 1899, ch. 114, sec. 134. Classes defined : Public warehouses of Class A shall embrace all warehouses, elevators and granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in ILLINOIS. 129 which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved, such warehouses, elevators or granaries being located in cities having not less than 100,000 inhabitants. Public warehouses of Class B shall embrace all other warehouses, elevators or gran- aries in which grain is stored in bulk, and in which the grain of different owners is mixed together. Public warehouses of Class C shall embrace all other warehouses or places where property of any kind is stored for a consideration. Id. ch. 114, sec. 135. License: The proprietor, lessee or manager of any public warehouse of Class A shall be required, before transacting any business in such warehouse, to procure from the circuit court of the county in which such warehouse is situated, a license, permit- ting such proprietor, lessee or manager to transact business as public warehouseman under the laws of this state, which license shall be issued by the clerk of said court upon a written appli- cation, which shall set forth the location and name of such warehouse, and the individual name of each person interested as owner or principal in the management of the same; or, if the warehouse be owned or managed by a corporation, the names of the president, secretary and treasurer of such corpo- ration shall be stated; and the said license shall give authority to carry on and conduct the business of a pubhc warehouse of Class A in accordance with the laws of this state, and shall be revocable by the said court upon a summary proceeding be- fore the court, upon complaint of any person in writing, setting forth the particular violation of law, and upon satis- factory proof, to be taken in such manner as may be directed by the court. Id. ch. 114, sec. 136. Above section construed — jurisdiction of circuit court to grant and revoke licenses : Under section three of the above act, it was held that the cir- cuit court has exclusive jurisdiction to grant or revoke licenses to warehousemen of Class A. It appeared that prior to the passage of the above act, that the legislature passed on April 13, 9 130 ILLINOIS LAWS. 1871, an act to establish a railroad and warehouse commission in which it was provided that if it should appear to said com- mission, after a regular hearing, that a public warehouseman had been guilty of violating any law in the state of Illinois, that such connnission might revoke his license and that he should not be entitled to another license until the expiration of six months. When this act was approved there was not, and never had been, any law providing for the issuance of licenses to warehousemen. Therefore the act given above was the first law in the state by which the issuance of licenses to ware- housemen was authorized. Under the terms of this act, the circuit court is given authority to issue such licenses to ware- housemen of Class A and, after proper hearing, to revoke the same and that its jurisdiction was exclusive in this regard. Cantrell et al. v. Seaverns, 168 111. 165, aff'g Same v. Same, 64 111. App. 273. Bond : The person receiving a license as herein provided shall file with the clerk of the court granting the same, a bond to the people of the state of Illinois, with good and sufficient surety, to be approved by said court, in the penal sum of $10,000, con- ditioned for the faithful performance of his duty as a public warehouseman of Class A, and his full and unreserved com- pliance with all laws of this state in relation thereto. Id. eh. 114, sec. 137. Penalty for doing business witiiout license : Any person who shall transact the business of a public ware- house of Class A without first j)rocuring a license as herein provided, or who shall continue to transact any such business after such license has been revoked (save only that he may be permitted to deliver property previously stored in such ware- house), shall, on conviction, be fined in a sum not less than $100 nor more than $500 for ci\ch and every day such business is carried on; and the court may refuse to renew any license, or grant a new one, to any of the persons whose license has been revoked, within one year from the time the same was revoked. Id. v.h. 114, sec. 138. ILLINOIS. 131 Not to discriminate — Wlieii grain may be mixed — Receipts : It shall be the duty of every warehouseman of Class A to receive for storage any grain that may be tendered him in the usual manner in which warehouses are accustomed to receive the same in the ordinary and usual course of business, not mak- ing any discrimination between persons, or between himself as the owner of grain stored in such house, and other persons, de- siring to avail themselves of warehouse facilities — such grain, in all cases, to be inspected and graded by a duly authorized inspector, and to be stored with grain of a similar grade, re- ceived at the same time, as near as may be. In no case shall grain of different grades be mixed together while in store; but, if the owner or consignee so requests and the warehouseman consents thereto, his grain of the same grade may be kept in a bin by itself, apart from that of other owners, which bin shall thereupon be marked and known as a "separate bin." If a warehouse receipt be issued for grain so kept separate, it shall state on its face that it is in a separate bin, and shall state the number of such bin; and no grain shall be delivered from such warehouse unless it be inspected on the delivery thereof by a duly authorized inspector of grain. Nothing in this section shall be so construed as to require the receipt of grain into any wareho se in which there is not sufficient room to accommo- date or store it properly, or in cases where such warehouse is necessarily closed. The proprietors, lessees or managers of public warehouses of Class A may store in any such warehouses, owned, leased or managed by them, grain of their own, and mix it with the grain of others of like grade stored therein, and may purchase ware- house receipts representing grain on store in such warehouses owned, leased or managed by them; but when any such pro- prietor, lessee or manager shall desire to so store and mix his own grain in any such warehouse or warehouses owned, leased or managed by him, or to purchase receipts for grain on store therein, he shall so inform the chief inspector of grain of the county in which such warehouse or warehouses are located, and said chief inspector shall thereupon place and keep in such warehouse or warehouses, whenever necessary so to do, one or 132 ILLINOIS LAWS. more assistant inspectors, who shall, in addition to their usual duties as assistant inspectors, have general supervision over the storing and care of the grain stored in such warehouse or ware- houses, under such rules and regulations as shall be made by the railroad and warehouse commissioners; and said commis- sioners are hereby invested with full power and authority to make all rules and regulations concerning the storing, handling and delivery of grain in warehouses of Class A, in which the proprietors, lessees or managers thereof store their own grain, as may, in their opinion, be necessary to prevent any fraud upon, or discrimination against, other depositors of grain in their said warehouse or warehouses from securing to himself, as the owner of grain stored therein, any benefit or advantage over any other depositor of grain stored in such warehouse or warehouses. Id. ch. 114, sec. 139. Manner of issuing receipts : Upon application of the owner or consignee of grain stored in a public warehouse of Class A, the same being accompanied with evidence that all transportation or other charges which may be a lien upon such grain, including charges for inspection, have been paid, the warehouseman shall issue to the person en- titled thereto, a warehouse receipt therefor, subject to the order of the owner or consignee, which receipt shall bear date cor- responding with the receipt of grain into store, and shall state upon its face the quantity and inspected grade of the grain, and that the grain mentioned in it has been received into store, to be stored with grain of the same grade by inspection, received at about the date of the receipt, and that it is deliverable upon the return of the receipt, properly indorsed by the person to whose order it was issued, and the payment of proper charges for storage. All warehouse receipts for grain, issued from the same warehouse, shall be consecutively numbered; and no two receipts, bearing the same number, shall be issued from the same warehouse during any one year, except in the case of a lost or destroyed receipt, in which case the new receipt shall bear the same date and number as the original, and shall be plainly marked on its face "duplicate." If the grain was received from railroad cars, the number of each car shall be stated upon ILLINOIS. 133 the receipt with the amount it contained ; if from canal boat or other vessel, tlie name of such craft; if from teams or by other means, the manner of its receipt shall be stated on its face. Id. ch. 114, sec. 140. Cancelling receipts : Upon the delivery of grain from store, upon any receipt, such receipt shall be plainly marked across its face with the word "cancelled," with the name of the person cancelling the same, and shall thereafter be void, and shall not again be put in cir- culation, nor shall grain be delivered twice upon the same re- ceipt. Id. ch. 114, sec. 141. Further of issuing and cancelling receipts : No warehouse receipt shall be issued, except upon the actual delivery of grain into store, in the warehouse from which it purports to be issued, and which is to be represented by the receipt; nor shall any i-eceipt be issued for a greater quantity of grain than was contained in the lot or parcel stated to have been received ; nor shall more than one receipt be issued for the same lot of grain, except in cases where receipts for a part of a lot are desired, and then the aggregate receipts for a particular lot shall cover that lot and no more. In cases where a part of the grain represented by the receipt is delivered out of store and the remainder is left, a new receipt may be issued for such remainder; but such new receipt shall l^ear the same date as the original, and shall state on its face that it is balance of re- ceipt of the original numbei' ; and the receipt upon which a part has been delivered shall be cancelled in the same manner as if it had all been delivered. In case it be desirable to divide one receipt into two or more, or in case it be desirable to consolidate two or more receipts into one, and the ware- houseman consent thereto, the original receipt shall be can- celled the same as if the grain had been delivered from store; and the new receipts shall express on their face that they are parts of other receipts, or a consolidation of other receipts, as the case may be ; and the numbers of the original receipts shall also appear upon the new ones issued, as explanatory of the change, but no consolidation of receipts of dates differing more 134 ILLINOIS LAWS, than ten days shall be permitted, and all new receipts issued for old ones cancelled, as herein provided, shall bear the same dates as those originally issued, as near as may be. Id. ch. 114, sec. 142. Not to limit liability : No warehouseman in this state shall insert in any receipt issued by him, any language in anywise limiting or modifying his liabilities or responsibility, as imposed by the laws of this state. Id. ch. 114, sec. 143. Delivery of property : On the return of any warehouse receipt issued by him, prop- erly indorsed, and the tender of all proper charges upon the property represented by it, such property shall be immediately deliverable to the holder of such receipt, and it shall not be sub- ject to any further charges for storage, after demand for such delivery shall have been made. Unless the property repre- sented by such receipt shall be delivered within two hours after such demand shall have been made, the warehouseman in de- fault shall be liable to the owner of such receipt for damages for such default, in the sum of one cent per bushel, and in addi- tion thereto, one cent per bushel for each and every day of such neglect or refusal to deliver: Provided, no warehouseman shall be held to be in default in delivering if the property is dehvered in the order demanded, and as rapidly as due dili- gence, care and prudence will justify. Id. ch. 114, sec. 144. Posting grain in store— Statement to registrar— Daily publication — Cancelled receipts : The warehousemen of every jmblic warehouse of Class A shall, on or before Tuesday morning of each week, cause to be made out, and shall keep posted up in the business ofiice of his ware- house, in a conspicuous place, a statement of the amount of each kind and grade of grain in store in his warehouse at the close of business on the previous Saturday, and shall, also, on each Tuesday morning, render a similar statement, made under oath before some officer authorized by law to administer oaths, by one of the principal owners or operators thereof, or by the ILLINOIS. 135 bookkeeper thereof, having personal knowledge of the facts, to the warehouse registrar appointed as hereinafter provided. They shall also be required to furnish daily, to the same registrar, a correct statement of the amount of each kind and grade of grain received in store in such warehouse on the previous day; also the amount of each kind and grade of grain delivered or shipped by such warehouseman during the previous day, and what warehouse receipts have been cancelled, upon which the grain has been delivered on such day, giving the number of each receipt, and amount, kind and grade of grain received and shipped upon each; also, how much grain, if any, was so deliv- ered or shipped, and the kind and grade of it, for which ware- house receipts had not been issued, and when and how such unreceipted grain was received by them ; the aggregate of such reported cancellations and delivery of unreceipted grain, cor- responding in amount, kind and grade with the amount so re- ported, delivered or shipped. They shall also, at the same time, report what receipts, if any, have been cancelled and new ones issued in their stead, as herein provided for. And the ware- houseman making such statements, shall, in addition, furnish the said registrar any further information, regarding receipt issued or cancelled, that may be necessary to enable him to keep a full and correct record of all receipts issued and cancelled, and of grain received and delivered. Id. ch. 114, sec. 145. Appoiiitnieiit of chief inspector : It shall be the duty of the governor to appoint by and with the advice and consent of the senate a suitable person who shall not be a member of the board of trade, and who shall not be interested either directly or indirectly in any warehouse in the state, a chief inspector of grain, who shall hold his office for a term of two years, unless sooner removed, as hereinafter provided for, in every city or county in which is located a ware- house of Class A or Class B: Provided, Thsii no such grain in- spector for cities or counties in which are located warehouses of Class B shall be appointed, except upon the recommenda- tion of the Board of Railroad and Warehouse Commissioners; and such recommendation shall be made only upon a request for suc-h action by the county commissioners or board of super- 136 ILLINOIS LAWS. visors of the county in which such warehouses are located, and cities or counties wherein an inspector may be appointed, no person other than such tkily appointed inspector, or those au- thorized as assistant inspectors, shall inspect or grade any grain without being liable to the penalties provided in section 20 of said act. Id. ch. 114, sec. 146, p. 1. Duty of chief iuspector : It shall be the duty of such chief inspector of grain to have a general supervision of the inspection of grain, as required by this act or laws of this state, under the advice and immediate direction of the Board of Commissioners of Railroads and Ware- houses. Id. ch. 114, sec. 146, p. 2. Assistant inspector : The said chief inspector shall be authorized to nominate to the Commissioners of Railroads and Warehouses such suitable persons in sufficient number as may be deemed qualified for assistant inspectors, who shall not be members of the board of trade nor interested in any warehouse, and also such other em- ployees as may be necessary to properly conduct the business of his office ; and the said commissioners are authorized to make such appointments. Id. ch, 114, sec. 146, p. 3. When iuspector to take oath and give bond : The chief inspector shall, upon entering upon the duties of his office, be required to take an oath as in cases of other officers, and he shall execute a bond to the people of the state of Illinois, in the penal sum of fifty thousand dollars, when appointed for any city in which is located a warehouse of Class A, and ten thousand dollars when appointed for any other city or county, with sureties to be approved by the Board of Commissioners of Railroads and Warehouses, with condition therein that he will faithfully and strictly discharge the duties of his said office of inspector according to law, and the rules and regulations prescribing his duties; and that he will pay all damages to any person or persons who may be injured by reason of his neglect, refusal or failure to comply with the law and the rules and regu- lations aforesaid. Id. ch. 114, sec. 146, p. 4. ILLINOIS. 137 Assistant inspector — OatJi — Bond : And each assistant inspector shall take a like oath, execute a bond in the penal sum of five thousand dollars, with like con- ditions, and to be approved in like manner as is provided in the case of the chief inspector, which said several bonds shall be filefl in the office of said commissioners ; and suit may be brought upon said bond or bonds in any court having jurisdiction thereof, in the county where the plaintiff or defendant resides, for the use of the person or persons injured. Id. ch. 114, sec. 146, p. 5. Rules for government of inspectors : The chief inspectors of grain, and all assistant inspectors of grain and other employees in connection therewith, shall be governed in their respective duties by such rules and regula- tions as may be prescribed by the Board of Commissioners of Railroads and Warehouses ; and the said board of commissioners shall have full power to make all proper rules and regulations for the inspection of grain, and shall also have power to fix the rate of charges for the inspection of grain and the manner in which the same shall be collected, which charges shall be regulated in such manner as will, in the judgment of the com- missioners, produce sufficient revenue to meet the necessary expenses of the service of inspection and no more. Id. ch. 114, sec. 146, p. 6. Compensation : It shall be the duty of the said board of commissioners to fix the amount of compensaiJtion to be paid to the chief inspector, assistant inspectors, and all other persons employed in the inspec- tion service, and prescribe the time and manner of their pay- ment. Id. ch. 114, sec. 146, p. 7. Appointment of warehouse registrar : The said Board of Commissioners of Railroads and Ware- houses are hereby authorized to appoint a suitable person as warehouse registrar and such assistants as may be deemed necessary to perform the duties imposed upon such registrar by the provisions of this act. Id. ch. 114, sec. 146, p. 8. 138 ILLINOIS LAWS. Board of commissioners to exercise a general supervision : The said board of commissioners shall have and exercise a general supervision and control of such appointees, shall pre- scribe their respective duties, shall fix the amount of their compensation and time and manner of its payment. Id. eh. 114, sec. 146, p. 9. Penalty for violating act : Vpon the complaint in writing of any person to the said board of commissioners, supported by reasonable and satis- factory proof, that any person appointed or employed under the provisions of this section has violated any of the rules pre- scribed for his government, has been guilty of any improper official act, or has been found insufficient or incompetent for the duties of his position, such person shall be immediately removed from his office or employment by the same authority that appointed him, and his place shall be filled, if necessary, by a new appointment ; or, in case it shall be deemed necessary to reduce the number of persons so appointed or employed, their term of service shall cease under the orders of the same authority by which they were appointed or employed. Id. ch. 114, sec. 146, p. 10. Necessary expenses of inspector of grain : All necessary expenses incident to the inspection of grain, and the office of registrar, economically administered, includ- ing the rent of suitable offices, shall be deemed the expenses of inspection service and shall be included in the estimate of ex- penses of such inspection service a.n& shall be paid from the funds collected for the same. (1) An Act to amend section 14 of an act entitled "An act to regulate public warehouses, and the warehousing and inspection of grain, and to give effect to Article XIII of the Constitution of this State," approved April 25, 1871, in force July 1, 1871, and to provide for revenue and the payment of the expenses of the same. Id. ch. 114, sec. 146, p. 11. Bates of storage : Every warehouseman of public warehouses of Class A shall ILLINOIS. 139 be required, during the first week in January of each year, to publish in one or more of the newspapers (daily, if there be such) published in the city in which such warehouse is situated, a table of the schedule or rate for the storage of grain in his ware- house during the ensuing year, which rates shall not be in- creased (except as provided in section 16 of this act) during the year; and such published rates, or any published reduction of them, shall apply to all grain received into such warehouse from any person or source, and no discrimination shall be made directly or indirectly, or for or against any charges made by such warehouseman for the storage of grain. The maximum charge for storage and handling of grain, including the cost of receiving and delivering, shall be, for the first ten days or part thereof, one and one-quarter (H) cents per bushel, and for each ten days, or part thereof after the first ten days one-half of one cent per bushel: Provided, however, that grain damp, or liable to early damage, as indicated by its inspection when received, may be subject to two cents per bushel storage, for the first ten days, and for each additional five days, or part thereof not exceeding one-half of one cent per bushel : Provided, further, that where grain has been received in any such warehouse prior to the first day of March, 1877, under the express or implied con- tract to pay and receive rates of storage different from those prescribed by law, or where it has been received under any cus- tom or usage prior to said day to pay or receive rates of storage different from the rates fixed by law, it shall be lawful for any owner or manager of such warehouse to receive and collect such agreed or customary rates. Id. ch. 114, sec. 147. Loss by lire — Heating — Order of delivery — Grain out of condition ; No public warehouseman shall be held responsible for any loss or damage to property by fire, while in his custody, pro- vided reasonable care and vigilance be exercised to protect and preserve the same; nor shall he be held liable for damages to grain by heating, if it can be shown that he has exercised proper care in handling and storing the same, and that such heating or damage was the result of causes beyond his control; and, in order that no injustice may result to the holder of the grain in 140 ILLINOIS LAWS. any public warehouse of Classes A or B, it shall be deemed the duty of such warehouseman to dispose of, by delivery or ship- ping, in the ordinary or legal manner of so delivering, that grain of any particular grade which was first received by them, or which has been for the longest time in store in his warehouse; and, unless public notice has been given that some portion of the grain in his warehouse is out of condition, or becoming so, such warehouseman shall deliver grain of quality equal to that received by him, on all receipts as presented. In case, how- ever, any warehouseman of Classes A or B shall discover that any portion of the grain in his warehouse is out of condition, or becoming so, and it is not in his power to preserve the same, he shall immediately give public notice, by advertisement in a daily newspaper in the city in which such warehouse is situated, and by posting a notice in the most public place (for such pur- pose) in such city, of its actual condition, as near as he can as- certain it; shall state in such notice the kind and grade of grain, and the bins in which it is stored; and shall also state in such notice the receipts outstanding upon which such grain will be delivered, giving the numbers, amounts and dates of each— which receipts shall be those of the oldest dates then in circu- lation or uncancelled, the grain represented by which has not previously been declared or receipted for as out of condi- tion, or if the grain longest in store has not been receipted for, he shall so state, and shall give the name of the party for whom the grain was stored, the date it was received, the amount of it ; and the enumeration of receipts and identification of grain so discredited shall embrace, as near as may be, as great a quan- tity of grain as is contained in such bins; and such grain shall be delivered upon the return and cancellation of the receipt, and the unreceipted grain upon the request of the owner or person in charge thereof. Nothing herein contained shall be held to relieve the said warehouseman from exercising proper care and vigilance in preserving such grain after such publication of its condition; but such grain shall be kept separate and apart from all direct contact with other grain, and shall not be mixed with other grain while in store in such warehouse. Any warehouse- man guilty of any act of neglect, the effect of which is to de- ILLINOIS. 141 preciate property stored in the warehouse under his control, shall be held responsible as at common law, or upon the bond of such warehouseman, and in addition thereto, the license of such warehouseman, if his warehouse be of class A, shall be revoked. Nothing in this section shall be so construed as to permit any warehouseman to deliver any grain stored in a special bin, or by itself, as provided by this act, to any but the owner of the lot, whether the same be represented by a ware- house receipt or otherwise. In case the grain declared out of condition, as herein provided for, shall (not) be removed from store by the owner thereof within two months from the date of the notice of its being out of condition, it shall be lawful for the warehouseman where the grain is stored to sell the same at public auction, for account of said owner, by giving ten days' public notice, by advertisement in a newspaper (daily, if there be such) published in the city or town where such warehouse is located. Id. ch. 114, sec. 148. Tampering with grain stored — Private bins — Drying, clean- ing, moving : It shall not be lawful for any public warehouseman to mix any grain of different grades together, or to select different qualities of the same grade for the purpose of storing or deliver- ing the same, nor shall he attempt to deliver grain of one grade for another, or in any way tamper with grain while in his pos- session or custody, with a view of securing any profit to himself or any other person; and in no case, even of grain stored in a separate bin, shall he be permitted to mix grain of different grades together while in store. He may, however, on request of the owner of any grain stored in a private bin, be permitted to dry, clean, or otherwise improve the condition or value of any such lot of grain; but in such case it shall only be delivered as such separate lot, or as the grade it was originally when received by him, without reference to the grade it may be as improved by such process of drying or cleaning. Nothing in this section, however, shall prevent any warehouseman from moving grain while within his warehouse for its preservation or safe-keeping. Id. ch. 114, sec. 149. 142 ILLINOIS LAWS. Examination of jjrain and scales — Incorrect scales : All persons owning property, or who may be interested in the same, in any public warehouse, and all duly authorized inspectors of such property, shall at all times, during ordinary business hours, be at full liberty to examine any and all prop- erty stored in any public warehouse in this state, and all proper facilities shall be extended to such person by the warehouseman, his agents and servants, for an examination; and all parts of public warehouses shall be free for the inspection and examina- tion of any person interested in property stored therein, or of any authorized inspector of such property. And all scales used for the weighing of property in public warehouses shall be sub- ject to examination and test by any duly authorized inspector or sealer of weights and measures, at any time when required by any person or persons, agent or agents, w^hose property has been or is to be weighed on such scales — the expense of such test by an inspector or sealer to be paid by the warehouse pro- prietor if the scales are found incorrect, but not otherwise. Any warehouseman who may be guilty of continuing to use scales found to be in an imperfect or incorrect condition by such examination and test, until the same shall have been pronounced correct and properly sealed, shall be liable to be proceeded against as hereinafter provided. Id ch. 114, sec. 150. Grain must be inspected : In all places where there are legally appointed inspectors of grain, no proprietor or manager of a public warehouse of Class B shall be permitted to receive any grain and mix the same with the grain of other owners, in the storage thereof, until the same shall have been inspected and graded by such inspector. Id. ch. 114, sec. 151. Above section construed : This act does not provide for the appointment of inspectors of Class B, hence above section inoperative until such inspectors are legally appointed. Board of Trade v. The People, 105 111. 382. Assuming to act as inspector : Any person who shall assume to act as an inspector of grain, ILLINOIS. 143 who has not first been so appointed and sworn, shall be held to be an impostor, and shall be punished by a fine of not less than $50 nor more than $100 for each and every attempt to so inspect grain, to be recovered before a justice of the peace. Misconduct of inspector — Influencing : Any duly authorized inspector of grain who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect or grade any grain improperly, or who shall accept any money or other consideration, directly or indirectly, for any neglect of duty, or the improper performance of any duty as such inspector of grain; and any person who shall improperly influence any inspector of grain in the performance of his duties as such in- spector, shall be deemed guilty of a misdemeanor, and, on con- viction, shall be fined in a sum not less than $100 nor more than $1,000, in the discretion of the court, or shall be imprisoned in the county jail not less than three nor more than twelve months, or both, in the discretion of the court. Id. ch. 114, sec. 152. Owner, etc., dissatisfied witli inspection — His rights : In case any owner or consignee of grain shall be dissatisfied with the inspection of any lot of grain, or shall, from any cause, desire to receive his property without its passing into store, he shall be at liberty to have the same withheld from going into any public warehouse (whether the property may have pre- viously been consigned to such warehouse or not), by giving notice to the person or corporation in whose possession it may be at the time of giving such notice; and such grain shall be withheld from going into store, and be delivered to him, sub- ject only to such proper charges as may be a lien upon it prior to such notice. The grain, if in railroad cars, to be removed therefrom by such owner or consignee within twenty-four hours after such notice has been given to the railroad company having it in possession : Provided, such railroad company place the same in a proper and convenient place for unloading ; and any person or corporation refusing to allow such owner or consignee to so receive his grain shall be deemed guilty of conversion, and shall be liable to pay such owner or consignee double the value of the property so converted. Notice that such grain is not to be 144 ILLINOIS LAWS. delivered into store may also be given to the proprietor or man- ager of any warehouse into which it would otherwise have been delivered, and if, after such notice, it be taken into store in such warehouse, the proprietor or manager of such w^arehouse shall be liable to the owner of such grain for double its market value. Id. ch. 114, sec. 153. Combiuatiou : It shall be unlawful for any proprietor, lessee or manager of any public warehouse, to enter into any contract, agreement, understanding, or combination, with any railroad company or other corporation, or with any individual or individuals, by which the property of any person is to be delivered to any public ware- house for storage or for any other purpose, contrary to the di- rection of the owner, his agent, or consignee. Any violation of this section shall subject the offender to be proceeded against as provided in section 23 of this act. Id. ch. 114, sec. 154. Suits : If any warehouseman of Class A shall be guilty of a violation of any of the provisions of this act, it shall be lawful for any person injured by such violation to bring suit in any court of competent jurisdiction, upon the bond of such warehouseman, in the name of the people of the state of Illinois, to the use of such person. In all criminal prosecutions against a w-arehouse- man, for the violation of any of the provisions of this act, it shall be the duty of the prosecuting attorney of the county in which such prosecution is brought, to prosecute the same to a final issue, in the name of and on behalf of the people of the state of Ilhnois. Id. ch. 114, sec. 155. Warehouse receipt assignable : Warehouse receipts for property stored in any class of public warehouses, as herein described, shall be transferable by the indorsement of the party to w^hose order such receipt may be issued, and such indorsement shall be deemed a valid transfer of the property represented by such receipt, and may be made either in blank or to the order of another. All w\arehouse re- ceipts for property stored in public warehouses of Class C shall ILLINOIS. 145 distinctly state on their face the brand or distinguishing marks upon such property. Id. ch. 114, sec. 156. Above section construed : There being no penalty for failure to place upon the warehouse receipts the distinguishing marks above provided for, the fail- ure to do so will not render the receipt void in the hands of an assignee for value. Hoffman v. Schoyer et al., 143 111. 598. False receipts — Fraudulent removal : Any warehouseman of any public warehouse who shall be guilty of issuing any warehouse receipt for any property not actually in store at time of issuing such receipt, or who shall be guilty of issuing any warehouse receipt in any respect fraudu- lent in its character, either as to its date or the quantity, quality, or inspected grade of such property, or who shall remove any property from store (except to preserve it from fire or other sudden danger), without the return and cancellation of any and all outstanding receipts that may have been issued to represent such property, shall, when convicted thereof, be deemed guilty of a crime and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the penitentiary for not less than one, and not more than ten years. Restricted as to receipts issued before Oct. 8, 1871. L. 1871, 1872, p. 744. See ''Criminal Code," ch. 38, sec. 124, 125. Id. ch. 114, sec. 157. Above section construed : Held, sections 124 and 125 of the criminal code did not im- pliedly repeal the above. Sykes v. The People, 127 111. 117. Common-law remedy saved : Nothing in this act shall deprive any person of any common- law remedy now existing. Id. ch. 114, sec. 158. Printed copy of act posted : All proprietors or managers of public warehouses shall keep posted up at all times, in a conspicuous place in their business offices, and in each of their warehouses, a printed copy of this act. Id. ch. 114, sec. 159. 10 146 ILLINOIS LAWS. Ail acts or parts of acts inconsistent with this act are hereby repealed. Id. ch. 114, sec. 160. Issuance and cancellation of receipts : An act providing for the issuing and the cancellation of re- ceipts for public warehouses or warehouses of Class A or Class B, in the state of Illinois, and providing penalties for violation thereof. (Approved May 11, 1901. In force July 1, 1901. L. 1901, p. 320.) Warehouse receipt— When to issue— What to contain— To be stamped and marked " reijistered tor cancellation "—Pen- alty for delivering ^rain without notice from the registrar that said receipts have been registered for cancellation- Penalty : Be it enacted by the People of the State of Illinois represented in the General Assembly: That upon the receipt of any grain for storage in any public warehouse of Class A or Class B (in coun- ties where a chief grain inspector has or shall be lawfully ap- pointed), the said warehouseman shall issue or cause to be issued a receipt for the number of bushels, the kind, the grade of such grain, the owner thereof, and shall report within twenty- four (24) hours to the warehouse registrar the amount of said grain, the owner thereof, the number of the receipt issued there- for, the kind and grade of said grain; and that no grain shall be delivered from store from any such public warehouse of Class A or Class B (in counties where a chief grtiin inspector has or shall be lawfully appointed), for which, or representing which, any such receipt shall have been issued, except upon the return of said receipt stamped, or otherwise i)lainly marked by the warehouse registrar with the words ''registered for cancella- tion," and the date thereof. And it shall be the duty of the warehouseman, after said receipts have been stamped and marked "registered for cancellation," and within twenty-four (24) hours after the last of the grain has been delivered, to re- port said receipts to the registrar cancelled; and any warehouse- man, agent, clerk or servant failing to issue receipts for grain, when received as aforesaid, shall be subject to a fine of one ILrLlNOIS. 147 hundred ($100) dollars for each offense. And any warehouse- man, agent, clerk or servant so delivering any grain, where receipts have been issued as aforesaid, or inspector or person connected with the grain department, knowingly permitting said grain to be delivered without notice from the registrar that said receipts have been registered for cancellation, shall be deemed guilty of a crime, and upon conviction thereof shall be fined an amount (equal) to the value of the property so de- livered, or imprisonment in the penitentiary not less than one year nor more than ten years. Id. ch. 114, sec. 160a. An Act to amend an act entitled "An act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to article thirteen (13) of the constitution of the state," approved April 25, 1871, in force July 1, 1871, and to establish a committee of appeal, and prescribe their duties. (Approved April, 1873. In force July 1, 1873.) Commissiouers to establish grades : Be it eyiacted by the People of the State of Illinois, represented in the General Asseynhly, That the board of railroad and ware- house commissioners shall establish a proper number and stand- ard of grades for the inspection of grain, and may alter or change the same from time to time : Provided, no modification or change of grades shall be made, or any new ones established, without public notice being given of such contemplated change, for at least twenty days prior thereto, by publication in three daily newspapers printed in each city containing warehouses of Class A: And, provided, further, that no mixture of old and new grades, even though designated by the same name or distinc- tion, shall be permitted while in store. /(/. ch. 114, sec. 161. Committee of appeals : Within twenty days after this act takes effect, the board of railroad and warehouse conmiissioners shall appoint three dis- creet and competent persons to act as a committee of appeals, in every city wherein is located a warehouse of Class A, who shall hold their office for one year and until their successors are appointed. And every year thereafter a like committee 148 ILLINOIS LAWS. of appeals shall be appointed by said commissioners, who shall hold their office for one year and until their successors are ap- pointed: Provided, said commissioners shall have power, in their decision, to remove from office any member of said com- mittee at any time, and fill vacancies thus created by the ap- pointment of other discreet persons. Id. ch. 114, sec. 162. Appeals — Notices : In all matters involving doubt on the part of the chief in- spector, or any assistant inspector, as to the proper inspection of any lot of grain, or in case of any owner, consignee or ship- per of grain, or any warehouse manager, shall be dissatisfied with the decision of the chief inspector or any assistant in- spector, an appeal may be made to said committee of appeal, and the decision of a majority of said committee shall be final. Said board of commissioners are authorized to make all neces- sary rules governing the manner of appeals as herein provided. And all complaints in regard to the inspection of grain, and all notices requiring the services of the committee of appeal, may be served on said committee, or may be filed with the ware- house registrar of said city, who shall immediately notify said committee of the fact, and who shall furnish said committee with such clerical assistance as may be necessary for the proper chscharge of their duties. It shall be the duty of said com- mittee, on receiving such notice, to immediately act on and render a decision in such case. Id. ch. 114, sec. 163. Committee of appeals— Oath — Bond — Who may serve on: The said committee of appeals shall, before entering upon the duties of their office, take an oath, as in case of other in- spectors of grain, and shall execute a bond in the penal sum of five thousand dollars ; with like conditions as is provided in the case of other inspectors of grain, which said bonds shall be subject to the approval of the board of railroad and warehouse commissioners. It is further provided, that the salaries of said committee of appeal shall be fixed by the board of railroad and warehouse commissioners, and be paid from the inspection fund, or by the party taking the appeal, imder such rules as the com- mission shall prescribe; and all necessary expenses incurred in ILLINOIS. 149 carrying out the provisions of this act, except as herein other- wise provided, shall be paid out of the funds collected for the inspection service upon the order of the commissioners: Pro- vided, that no person shall be appointed to serve on the com- mittee of appeals who is a purchaser of, or receiver of grain, or other articles to be passed upon by said committee. (As amended by act approved June 26, 1885. In force July 1, 1885, L. 1885, p. 178.) Id. ch. 114, sec. 164. " Registered for collection" — Inspection fees : No grain shall be delivered from store from any warehouse of Class A, for which or representing which warehouse receipts shall have been issued, except upon the return of such receipts stamped or otherwise plainly marked by the warehouse register with the words "registered for collection" and the date thereof; and said board of commissioners shall have power to fix the rates of charges for the inspection of grain, both into and out of warehouses; which charges shall be a lien upon all grain so inspected and may be collected of the owner, receivers or ship- pers of such grain, in such manner as the said commissioners may prescribe. Id. ch. 114, sec. 165. Repeal : Section 13 of the act to which this is an amendment, is hereby repealed : Provided, the provisions contained in said section shall remain in force until the grades for the inspection of grain shall have been established by the commissioners, as provided in section 1 of this act. (Grades fixed by commissioners, July 1, 1873.) Id. ch. 114, sec. 166. Delivery — Penalty : Every railroad corporation which shall receive any grain in bulk for transportation to any place within the state, shall transport and deliver the same to any consignee, elevator, warehouse, or place to whom or to which it may be consigned or directed: Provided, such person, warehouse or place can be reached by any track owned, leased or used, or which can be used by such corporation; and every such corporation shall permit connections to be made and maintained with its track 150 ILLINOIS LAWS. to and from any and all public houses where grain is or may be stored. Any such corporation neglecting or refusing to comply with the requirements of this section, shall be liable to all per- sons injured thereby for all damages which they may sustain on that account, whether such damages result from any de- preciation in the value of such property by such neglect or refusal to deliver such grain as directed, or in loss to the pro- prietor or manager of any public warehouse to which it is di- rected to be delivered, and costs of suit, incluthng such rea- sonable attorney's fees as shall be taxed by the court. And in case of any second or later refusal of such railroad corpora- tion to comply with the requirements of this section, such corporation shall be by the court, in action on which such failure of refusal shall be found, adjudged to pay, for the use of the people of this state, a sum of not less than $1,000, nor more than $5,000, for each and every such failure or refusal, and this may be a part of the judgment of the court in any second or later proceeding against such corporation. In case any railroad corporation shall be found guilty of having vio- lated, failed or omitted to observe and comply with the re- quirements of this section, or any part thereof, three or more times, it shall be lawful for any person interested to apply to a court of chancery, and obtain the appointment of a receiver to take charge of and manage such railroad corporation until all damages, penalties, costs and expenses adjudged against such corporation for any and every violation shall, together with interest, be fully satisfied. Id. ch. 114, sec. 120. Appointment — Term ; Be it enacted by the People of the State of Illinois, represented in the General Assembly: That a commission which shall be styled ''Railroad and Warehouse Commission," shall be ap- pointed as follows: within twenty days after this act shall take effect, the governor shall appoint three persons as such com- missioners, who shall hold their ofhce until the next meeting of the general assembly, and until their successors are appointed and qualified. At the next meeting of the general assembly, and every two years thereafter, the governor, by and with the advice and consent of the senate, shall appoint three persons ILLINOIS. 151 as such commissioners, who shall hold their offices for the term of two years from the first day of January in the year of their appointment, and until their successors are appointed and qualified. Id. ch. 114, sec. 167. Qualifications : No person shall be appointed as such commissioner who is at the time of his appointment in any way connected with any railroad company or warehouse, or who is directly or in- directly interested in any stock, bond, or other property of, or is in the employment of any railroad company or ware- houseman; and no person appointed as such commissioner shall during the term of his office, become interested in any stock, bond or other property of any railroad company or warehouse, or in any manner be employed by or connected with any rail- road company or warehouse. The governor shall have power to remove any such commissioner at any time, in his discre- tion. Id. ch. 114, sec. 168. Oatli — Bond : Before entering upon the duties of his office, each of the said commissioners shall make and subscribe, and file with the secre- tary of state, an affidavit, in the following form: I do solemnly swear (or affirm as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of commissioner of railroads and warehouses, ac- cording to the best of my ability. And shall enter into bonds, with security to be approved by the governor, in the sum of $20,000, conditioned for the faithful performance of his duty as such commissioner. Id. ch. 114, sec. 169. Statement by warehouseman : It shall be the duty of every owner, lessee and manager of every public warehouse in this state to furnish in writing under oath, at such times as such railroad and warehouse commis- sioners shall require and prescribe, a statement concerning the condition and management of his business as such warehouse- man. Id. ch. 114, sec. 175. 152 ILLINOIS LAWS. Report by commissioners — Examiiiatiou : Such commissioners shall, on or before the first day of De- cember, in each year, and oftener if required by the governor to do so, make a report to the governor of their doings for the preceding year, containing such facts, statements and explana- tions as will disclose the actual workings of the system of rail- road transportation and warehouse business in their bearings upon the business and prosperity of the people of this state, and such suggestions in re'ation thereto as to them may seem appropriate, and particularly, first, whether in their judgment the railroads can be classified in regard to the rate of fare and freight to be charged upon them, and if so, in what manner; second, whether a classification of freight can also be made, and if so, in what manner. They shall also, at such times as the governor shall direct, examine any particular subject connected with the condition and management of such railroads and ware- houses, and report to him in writing their opinion thereon with their reasons therefor. Id. ch, 114, sec. 176. Examinations of railroads and warelionses — Suits : Said commissioner shall examine into the condition and man- agement, and all other matters concerning the business of rail- roads and warehouses in this state, so far as the same pertain to the relation of such roads and warehouses to the public, and to the accommodation and security of persons doing business therewith; and whether such railroad comj^anies and ware- houses, their officers, directors, managers, lessees, agents and employees comply with the laws of this state now in force, or which shall hereafter be in force concerning them. And when- ever it shall come to their knowledge, either upon complaint or otherwise, or they have reason to believe that any such law or laws have been or are being violated, they shall prosecute or cause to be prosecuted all corporations or persons guilty of such violation. In order to enable said commissioners effi- ciently to perform their duties under this act, it is hereby made their duty to cause one of their number, at least once in six months, to visit each county in the state, in which is or shall be located a railroad station, and personally inquire into the man- ILLINOTS. 153 agemont of such railroad and warohouso business. Id. ch. 114, sec. 177. Ciiucellatioii of w.arehouse licenses : Said commissioners are hereby authorized to hear and de- termine ah a])phcations for the cancellation of warehouse li- censes in this state which may have been issued in pursuance of any laws of this state, and for that purpose to make and adopt such rules and regulations concerning such hearing and determination as may, from time to time, by them be deemed proper. And if, upon such hearing, it shall appear that any public warehouseman has been guilty of violating any law of this state concerning the business of public warehousemen, said commissioners may cancel and revoke the license of said public warehouseman, and immediately notify the officer who issued such license of such revocation and cancellation and no person whose license as a public warehouseman shall be can- celled or revoked, shall be entitled to another license or to carry on the business in this state of such public warehouseman, until the expiration of six months from the date of such revocation and cancellation, and until he shall have again been licensed: Provided, that this section shall not be so construed as to pre- vent any such warehouseman from delivering any grain on hand at the time of such revocation or cancellation of his said license. And all licenses issued in violation of the provisions of this section shall be deemed null and void. Id. ch. 114, sec. 178. Power to examine books, etc. : The property, books, records, accounts, papers and proceed- ings of all such railroad companies, and all public warehouse- men, shall at all times, during business hours, be subject to the examination and inspection of such commissioners, and they shall have power to examine, under oath or affirmation, any and all directors, officers, managers, agents and employees of any such railroad corporation, and any and all owners, man- agers, lessees, agents and employees of such public warehouses and other persons, concerning any matter relating to the con- dition and management of such business. Id. ch. 114, sec. 179. 154 TLLIXOTS LAWS. May exsiiniiie witnesses, etc. : In making any examination as contemplated in this act for the purpose of obtaining information, pursuant to this act, said connnissioners shall have the power to issue subpoenas for the attendance of witnesses, and may administer oaths. In case any person shall willfully fail or refuse to obey such sub- poena, it shall be the duty of the circuit court of any county, upon application of the said commissioners, to issue an attach- ment for such witness, and compel such witness to attend be- fore the commissioners, and give his testimony upon such mat- ters as shall be lawfully required by such commissioners; and the said court shall have power to punish for contempt, as in other cases for refusal to obey the process and order of such court. Id. ch. 114, sec. 180. Penalty against witness : Any person who shall willfullj' neglect or refuse to obey the process of subpoena issued by said commissioners, and appear and testify as therein required, shall be deemed guilty of a misdemeanor, and shall be liable to an indictment in any court of competent jurisdiction, and on conviction thereof shall be punished for each offense, by a fine of not less than $25 nor more than $500, or by imprisonment of not more than thirty days, or both, in the discretion of the court before which such conviction shall be had. Id. ch. 114, sec. 181. Penalty against railroad companies, warelionsenien, etc. ; Every railroad company, and every officer, agent or employee of any railroad company, and every owner, lessee, manager or employee of any warehouse, who shall willfully neglect to make and furnish any report required in this act, at the time herein required, or who shall willfully and unhnvfully hinder, delay or obstruct said commissioners in the discharge of the duties imposed upon them, shall forfeit and pay a sum of not less than $100 nor more than $5,000 for each offense, to be recov- ered in an action of debt in the name of the state of Illinois; and every railroad company, and every officer, agent or em- ployee of any such railroad company, and every owner, lessee, manager, or agent or employee of any public warehouse, shall ILLINOIS. 155 be liable to a like penalty for every period of ten days it or he shall willfully neglect or refuse to make such report. Id. ch. 114, sec. 182. Attorney general and state's attorney to prosecute suits : It shall be the duty of the attorney general, and the state's attorney in every circuit or county, on the request of said com- missioners, to institute and prosecute any and all suits and pro- ceedings which they, or either of them, shall be directed by said commissioners to institute and prosecute for a violation of this act, or any law of this state concerning railroad companies or warehouses, or the officers, employees, owners, operators or agents of any such companies or warehouses. Id. ch. 114, sec. 183. In name of people — Pay — Qui tarn actions : All such prosecution shall be in the name of the people of the state of Ilhnois, and all moneys arising therefrom shall be paid into the state treasury by the sheriff or other officer col- lecting the same; and the state's attorney shall be entitled to receive for his compensation, from the state treasury on bills to be approved by the governor, a sum not exceeding ten per cent of the amount received and paid into the state treasury as aforesaid: Provided, this act shall not be construed so as to prevent any person from prosecuting any qui tarn action as authorized by law, and of receiving such part of the amount recovered in such action as is provided under any law of this state. Id. ch. 114, sec. 184. Rights of individuals saved : This act shall not be so construed as to waive or affect the right of any person injured by the violation of any law in re- gard to railroad companies or warehouses, from prosecuting for his private damages in any manner allowed by law. Id. ch. 114, sec. 185. An act to provide that the railroad and warehouse commis- sion may keep and use a common seal for the authentication of its acts, records and proceedings. (Approved June 19, 1891. In force July 1, 1891, L. 1891, p. 185.) 156 ILLINOIS LAWS. Seal — How records, etc., jiuthenticated : Be it enacted by the People of the State of Illinois, represented in the General Assembly: That the raih'oad and warehouse com- mission of tliis state may, for the authentication of its records, process and proceedings, adopt, keep and use a common seal, of wliich seal judicial notice shall be taken in all courts of this state; and any process, writ, notice or other paper which the said conmiission may be authorized by law to issue shall be deemed sufficient if signed by the secretary of said commission and authenticated by such seal; and all acts, orders, proceed- ings, rules of inspection, entries, minutes, schedules and rec- ords of said commission may be proved in any court of this state by a copy thereof, certified to by the secretary of said commission, and with the seal of said commission attached. Id. ch. 114, sec. 185a. An act to provide for the appointment of state weigh-mas- ters. (Approved June 23, 1883. In force July 1, 1883, L. 1883, p. 172.) Weigh-in aster — Appointment of : Be it enacted by the People of the State of Illinois, represented in the General Assembly: That there shall be appointed by the Railroad and Warehouse Commissioners in all cities where there is state inspection of grain, a state weigh-master and such as- sistants as shall be necessary. Id. ch. 114, sec. 186. Dnties of : Said state weigh-master and assistants shall, at the places aforesaid supervise and have exclusive control of the weighing of grain and other property which may be subject to inspection, and the inspection of scales and the action and certificate of such weigh-master and assistants in the discharge of their aforesaid duties shall be conclusive upon all parties in interest. Id. ch. 114, sec. 187. Fix fees : The Board of Railroad and Warehouse Commissioners shall fix the fees to be paid for the weighing of grain or other property, which fees shall be paid equally by all parties interested in the ILLINOIS. 157 purchase and sale of the property weighed, or scales inspected and tested. Id. ch. 114, sec. 188. Weigh-master—Qualiflcatioiis— Bond— Compensation: Said state weigh-master and assistants shall not be a mem- ber of any board of trade or association of like character; they shall give bonds in the sum of five thousand dollars ($5,000) conditioned for the faithful discharge of their duties, and shall receive such compensation as the Board of Railroad and Ware- house Commissioners shall determine. Id. ch. 114, sec. 189. May adopt rules : The Railroad and Warehouse Commissioners shall adopt such rules and regulations for the weighing of grain and other prop- erty as they shall deem proper. Id. ch. 114, sec. 190. Neglect of duty— Penalty : In case any person, warehouseman or railroad corporation, or any of their agents or employees, shall refuse or prevent the aforesaid state weigh-master or either of his assistants from having access to their scales, in the regular performance of their duties in supervising and weighing of any grain or other prop- erty in accordance with the tenor and meaning of this act they shall forfeit the sum of one hundred ($100) dollars for each offense, to be recovered in an action of debt, before any justice of the peace, in the name of the people of the state 'of IlHnois; such penalty or forfeiture to be paid to the county in which the suit is brought, and shall also be required to pay all costs of prosecution. Id. ch. 114, sec. 191. Fraudulent receipts— Issuing by warehousemen and others : Whoever fraudulently makes or utters any receipt, or other written evidence of the delivery or deposit of any grain, flour, pork, wool, salt, or other goods, wares or merchandise, upon any wharf or place of storage, or in any warehouse, mill, store or other building, when the quantity specified therein has not in fact been delivered or deposited as stated in such receipt or other evidence of the delivery or deposit thereof, and is not, at the time of issuing the same still in store, and the property 158 ILLINOIS LAWS. of the person to whom or to whose agent the receipt is issued, or for the whole or any part of which any other receipt is out- standing or uncancelled, shall be imprisoned in the penitentiary not less than one nor more than ten years. Id. ch. 38, sec. 124. Removal of warehouse goods : Whoever, having given any such receipt or written evidence of deposit or storage as is specified in the preceding section, or being in the possession or control of such property, shall sell, incumber, ship, transfer, or in any manner remove from the place of storage, or allow the same to be done, any such grain, flour, pork, wool, salt, or other goods, wares and mer- chandise, without the written consent of the holder of such receipt or other evidence of deposit or storage, except in cases of necessity for the purpose of saving such property from loss or damage by fire, flood or other accident, shall be imprisoned in the penitentiary not less than one nor more than ten years. Id. ch. 38, sec. 125. Embezzlement by commission merchants and others : If any warehouseman, storage, forwarding or commission merchant, or other person selling on commission, or his agent, clerk of servant, shall convert to his own use any fruit, grain, flour, beef, pork or other property, or the proceeds or avails thereof, without the consent of the owner thereof, or shall fail to pay over the avails or proceeds thereof, less his proper charges, on demand by the person entitled to receive the same, or his duly authorized agent, he shall be fined not exceeding $1,000, or confined in the county jail not exceeding one year, or both, and shall be liable to the person injured in double the value of the property or amount of the money so converted. Id. ch. 38, sec. 78. ILLINOIS. 159 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment and sale — The depositing of grain in a public ware- house and the mixing thereof with other grain is a bailment. If grain be deposited in a public warehouse in this state to be mixed with the grain of other persons, under the warehouse act, such depositary becomes the owner of an equal quantity of grain of the same kind and quantity as that deposited and the title to such deposited grain does not pass to the ware- houseman. In short, it is a bailment only and not a sale. National Bank of Pontiac v. Langan, 28 111. App. 401 ; Meadow- craft V. German National Bank, 95 111. 124; Canadian Bank v. McCrea, 106 111. 281. Same — When sale and not a bailment — Private warehousemen — Receipt construed. Where plaintiff delivered wheat to the defendant, a mill- owner, and received therefor a receipt in which it was stated that the defendant had received the wheat and that he was to take the market price for the same whenever he saw fit to sell, it was held that this was not a contract of storage but a sale of the wheat and that the title passed to the millowner. The fact that the wheat was mixed with other wheat in the mill does not change the case. The wheat being subsequently destroyed by fire, the defendant was liable for the value thereof. Ives V. Hartley, 51 111. 520; Lonergan v. Stewart, 55 111. 44. Same — Sale — Inability to return same grain — Destruction by pre. A warehouseman received grain without any special contract from which it could be shown whether it was a bailment or a sale. The evidence showed that there was a notice posted in the warehouse, in which it was stated that grain would be re- ceived for storage for one month free of charge and other state- ments from which it would be inferred that the transaction was a bailment; but the evidence further showed that the ware- houseman disposed of the grain and counted on being able to 1(30 ILLINOIS DECISIONS. subsequently purchase a sufficient quantity of grain in event that the depositor made a demand for the same or gave to the warehouseman an order to sell. Subsequently, a fire oc- curred and the warehouse and contents were destroyed. In an action against the warehouseman for the value of the grain, it was held that he was liable on the ground that the trans- action was a sale and not a bailment. Cloke v. Dowse, 38 111. App. 252, aff'd 137 111. 393. Same — The principle determining when it is a bailment and when a sale. The principle determining when the transaction constitutes a bailment and when a sale is as follows: When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment and the title to the property is not changed, but when there is no obligation to restore the specific article and the warehouseman is at liberty to restore another thing of equal value he becomes the debtor to make the return, and the property is changed— it is a sale. Evi- dence was received to prove a custom among warehousemen sho\Adng that depositors who stored grain never expected to receive the identical grain back, but to get their money for the same at the market price on the day on which the demand was made. Loner gan v. Stewart, 55 111. 44. Same— Special agreement with warehouseman— Instruction to jury — Bailment. It was perfectly proper for one to make an agreement with his warehouseman for the mixing of the grain, by which the title might be determined; this entirely independent of the constitution and the statutes relating to warehousemen. The evidence as to the terms of the agreement was conflicting, the defendant testifying positively to facts which would make the agreement one of bailment, the plaintiff's testimony was to the effect that the transaction constituted a sale. The court re- fused to give an instruction prayed for by defendant to the effect that if they believed his testimony they should find for him this held reversible error, Ardinger v. Wright, 38 111. App. 98. ILLINOIS. 161 B. Ordinary care — Grain purchased for customers — Different rule. Where warehousemen purchased grain for others, which was subsequently stored in their warehouse, the following instruc- tion to the jury in an action brought against the warehouse- men for the recovery of the value of the grain, held correct; that, by the terms of the receipt given by the defendants to the plaintiff, the defendants became the bailors of the plaintiff and were only bound to take reasonable care of the grain and have it ready for delivery for a reasonable time, and if the same was injured without the negligence of the defendant, they were not responsible for such injury, and that they had a right to charge storage after a reasonable time, if the jury believed from the evidence that the plaintiff failed to take it away within a reasonable time after being notified to do so. Myers et al. v. Walker, 31 111. 353; aS^. Louis, A. & T. H. R. R. Co. v. Mont- gomery, 39 111. 335; Chicago & A. R. R. v. Scott, 42 111. 132. Who a public warehouseman. The fact that one keeps a public warehouse is of itself notice to the world that the property therein stored is held for others, at least sufficient to put parties interested on inquiry. Na- tional Bank of Pontiac v. Langan, 28 111. App. 401 ; Broadwell v. Howard, 77 111. 305. Warehousemen — Duty to the public — Public agencies — Pro- hibited from speculation in grain stored in their own warehouses. The evidence showed that the defendant was the owner of a large warehouse in the city of Chicago, doing business as a pub- lic warehouseman under the warehouse act of 1871, and amend- ments thereto, that it was his practice to purchase grain in large quantities, overbidding legitimate grain dealers to the extent, in many instances, of one fourth of one cent per bushel, and thereafter disposing of the same by under-selling such bid- ders and obtaining his profit by virtue of his storage charges. The effect was to practically prohibit competition and resulted in the warehousemen becoming the owners of a large proportion of the grain in the market. It was held that pulilic ware- houses, established under the law, were public agencies and 11 162 1LLI>'0IS DECISIONS. the defendant as a licensee pursued a public employment and that he was therefore charged with a public duty; further, that his course of dealing was inconsistent with the safe and im- portant performance of his duty to the i)ublic. The evidence failed to sustain the contention of the defendant that, at the time of the passage of the warehouse act, it was the custom among owners of large warehouses to store their own grain therein. Central Elevator Co. v. The People, 174 111. 203. Approaches to warehouses — Not bound to a high degree of care — Approaches to railroad terminals distinguished. A warehouseman is not obliged to exercise as high a degree of care as a common carrier in jiroviding for safe approaches to his warehouse. It would not be consistent with the analogy of the law to hold that a warehouseman, who is only held to ordinar}^ care in conducting his business, should be held to an extraorcUnary care in protecting persons in coming to his ware- house to transact business with him. He is liable only for ordinary care in the structure of his warehouse and appurte- nances. Buckingham v. Fisher, 70 111. 121. Degree of liability — Real object of the transaction. Where plaintiff hired the defendant, a warehouseman, to remove her goods and store them, and several months there- after to return them to her, it was held that this was clearly a contract of storage and that the defendant could not be held to the liability of a common carrier. Storage was the main thing in contemj^lation of the parties and the removal of the goods to the warehouse and the return to the bailor, in the same city, were necessarily incidental to it. The defendant was obliged to exercise only ordinary care. Armfield v. Humphrey, 12 111. App. 90. Conversion — Action in assuwp.' amount, kind and grade of grain received and sliipped upon each; also, how much gi-ain, if any, was so deHvercd or sliippod, and the kind and grade of it for which warehouse reccijjts had not been issued; the aggregate of sucii leported cancelhition and delivery of unreceipted grain corresponding in amount, kind and grade with the amount so reported delivered or shijjped. He shall also at the same time report what receipts, if any, have been cancelled and new ones issued in their stead, as herein provided for; and the warehouseman making such statement shall, in adcUtion, furnish the secretary of said board of trade any further information regarding the receipts issued or can- celled that may be necessary to enable him to keep a full and correct record of all receipts issued and cancelled, and of grain received and delivered. Id. sec. 3255. Schedule of fates : Every warehouseman of public warehouses located in this state shall be required, during the first week in September of each year, to publish in one or more of the newspapers (daily, if there is such) published in the city or village in which such warehouse is situated, a table or schedule of rates for the storage of grain in his warehouse during the ensuing year, which rates shall not be increased during such year. The maximum charge for storage and handling of grain, including the cost of receiving and delivering, shall be, for the first fifteen days or part thereof, one cent per bushel; and for each fifteen days or part thereof after the first fifteen days, one half cent per bushel ; and for continuous storage between the fifteenth day of November and fifteenth day of May following, no more than four cents a bushel. Id. sec. 3256. Be permitted to dry or clean — Damages : Any public warehouseman may, on the written request of the owner of any grain stored in a private bin, upon the surrender of the receipt therefor, be permitted to dry, clean, or otherwise change the condition or value of any such lot of grain ; but in such case it shall only be delivered as such separate lot, without reference to the grade it may be made by such process of drying or cleaning. Notliing in this section, however, shall prevent 246 KANSAS LAWS. any warehouseman from removing grain within his warehouse, for its preservation or safe-keeping. Xo puljhc warehouseman shall be held responsible for any loss or damage to property by fire while in his custody, provitled reasonable care and vigilance be exercised to protect and preserve the same; nor shall he be held hable for damage to grain by heating, if it can be shown that he has exercised proper care in handling and storing the same, and that such heat or damage was the result of causes beyond his control. In order that no injustice may result to the holder of grain in any public warehouse, it shall be the duty of such warehouseman to dispose of, by delivery or shipping in the ordinary and legal manner of so delivering, that grain of any particular grade which was first received by him, or which has been for the longest time in store in his warehouse; and unless the public notice hereinafter provided has been given, that some portion of the grain in his warehouse -is out of condi- tion, or is becoming so, such warehouseman shall deliver grain, of quality equal to that delivered to him, on all receipts as pre- sented. In case, however, any warehouseman shall discover that any portion of the grain in his warehouse is out of condi- tion, or becoming so, and it is not in his power to preserve the same, he shall immediately give personal notice to the owner, if known, and if not known by public notice by advertising in a daily newspaper in the city in wliich such warehouse is situ- ated, and by posting a notice in the most pubUc place (for such purpose) in such city, of its actual condition, as near as he can ascertain. It shall state in such notice the kind and grade of the grain, and the bin in which it was stored, and shall also state in such notice the receipts outstanding upon which such grain will be delivered, giving the numbers, amount and date of each, which receipts shall be those of the oldest dates and numbers then in circulation or uncancelled, the grain represented by which has not previously been declared or receipted for as out of condition; or if the grain longest in store has not been re- ceipted for, he shall so state, and shall give the name of the party for whom such grain was stored, the date it was received, and the amount of it; and the enumeration of receipts and the identification of grain so discredit^^d shall embrace as near as KANSAS. 247 may be as great a quantity of grain as is contained in such bins ; and such grain shall bo delivered upon return and cancellation of the receipts, and the unreceipted grain upon the request of the owner or person in charge thereof. Nothing herein con- tained shall be held to relieve the said warehouseman from ex- ercising proper care and vigilance in preserving such grain after such publication of its condition, but such grain shall be kept separate and apart from all direct contact with other grain, and shall not be mixed with other grain while in store in such warehouse. Any warehouseman guilty of any act or neglect, the effect of which is to depreciate j^roperty stored in the ware- house under his control, shall be held responsible therefor to the person damaged thereby, and the bond of such warehouseman shall be held for all damages occasioned thereby. Nothing in this section shall be construed so as to permit any warehouse- man to deliver any grain stored in a special bin or by itself as provided in this act to any but the owners of the lot, whether the same be represented by a warehouse receipt or otherwise. In case the grain declared out of condition as herein provided for shall not be removed from store by owner thereof within thirty days from the date of the notice of its being out of con- dition, it shall be lawful for the warehouseman where the grain is stored to sell the same at public auction for account of said owner by giving ten days' public notice by advertisement in a newspaper (daily, if there be such) published in the city or town where such warehouse is located. Id. sec. 3257. Examination of : All persons owning property, or who may be interested in the same, in any public warehouse, and all duly authorized in- spectors of such property, shall at all times during the ordinary business hours be at full liberty to examine any and all prop- erty stored in any public warehouse in this state, and all proper facilities shall be extended to such person by the warehouse- man, his agents and servants, for an examination, and all parts of the public warehouse shall be free for the inspection and examination of any person interested in property stored therein, or of any authorized inspector of such property; and all scales used for weighing of property in })ublic warehouses shall be 248 KANSAS LAWS. subject to the examination and test by any duly autliorized inspector, weighmaster or sealer of weights and measures at any time when required by any person or persons, agent or agents, whose property has been or is to be weighed on such scales, and the fee for said test shall be paid by the parties making such demand if the scales are found correct, and by the warehouse proprietors if found incorrect. Any wvarehouseman who may be guilty of continuing to use scales found to be in an imperfect or incorrect condition by such examination and test, until the same shall have been pronounced correct and properly sealed, shall be hable to be procieeded against as hereinafter provided. Id. sec. 3258. In case of dissatisfaction : In case any owner or consignee of grain shall be dissatisfied wdth the inspection of any lot of grain, or shall from any cause desire to receive his property wdthout it passing into store, he shall be at liberty to have the same withheld from going into the public warehouse (whether the property may have been pre- viously consigned to such warehouse or not), by giving notice to the person or corporation in whose possession it may be at the time of giving such notice; and such grain may be withheld from going into store, and be delivered to him subject only to such proper charges as may be a lien upon it prior to such notice ; the grain in railroad cars to be removed therefrom by such owner or consignee wdthin twenty-four hours after such notice has been given to the railroad company having it in possession, provided, such railroad company place the same in a proper and convenient place for unloading; and any person or corpo- ration refusing to allow such owner or consignee to receive his grain shall be deemed guilty of conversion, and shall be liable to pay such owner or consignee double the value of the property so converted. Notice that such grain is not to be delivered into store may also be given to the proprietor or manager of any warehouse into which it would otherwise have been deliv- ered, and if after such notice it be taken into store in such ware- house, the proprietor or manager of such warehouse shall be liable to the owner of such grain for double its market value. Id. sec. 3259. KANSAS. 249 Unlawful : It shall be unlawful for any pi'opriotor, lessee or manager of any j^uhlic \A'ai-ehouse to enter into any contract, agreement, understanding or combination with any railroad company or other corporation, or with any individuals, by which the prop- erty of any person is to be delivered to any ])ublic warehouse for storage, or for any purpose contrary to the directions of the owner, his agent or consignee. Id. sec. 3260. Bill of ladiii;^ — Shortage : Each railway company operating a railway wholly or partly within this state shall be required to give to any person deliv- ering grain, seed or hay in bulk or in sacks to such company for transportation, at any station entitled to track scales under this act, a bill of lading, in duplicate, which bill of lading shall state the exact number of bushels or pounds of grain, seed or hay so delivered to such railway company, by whom delivered and to whom consigned; and thereafter such railway company shall be responsible to the consignee named in said bill of lading, or to his heirs or assigns for the full amount of such grain, seed or hay so tlelivered to such railway company, until it shall show that it has delivered the whole amount of such grain, seed or hay to such consignee or to his lunrs or assigns: Provided, how- ever, That if the shortage on any car of grain, seed or hay shall not exceed one fourth of one ]3er cent of the amount of grain, seed or hay put in the car then the railway company shall be deemed to have delivered the whole amount of grain, seed or hay in the car. And in any action hereafter brought against any railway company for or on account of any failure or neglect to deliver any such grain, seed or hay to the consignee, or his heirs or assigns, either duplicate of such bill of lading shall be conclusive proof of the amount of such grain, seed or hay so received by such railway company. Id. sec. 5943. 250 KANSAS DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. B. Bailment — Universal rule. It is the universal law of bailments that where the bailment is for the benefit of both parties, the bailee is required to exer- cise ordinary care and is liable for ordinary negligence. U. P. Ry. Co. V. Rollins, 5 Kan. 167; L. L. & G. R. R. Co. v. Maris, 16 Kan. 333. Duty of warehouseman on receipt of consignment — Specific di- rections by depositor. If a consignment of property is made to a warehouseman, with specific directions as to how it is to be held or disposed of, under ordinary circumstances the warehouseman must either refuse to accept the consignment, or comply in substance with the instructions of the consignor. Kansas Elevator Co. v. Harris, 6 Kan. App. 89. Delivery — Miist deliver within a reasonable time after demand. In an action against a warehouseman for conversion of grain stored with him, it was shown that he failed to deliver the same on demand, although he did not refuse to deliver and, in fact, continually promised to do so. It was urged in his behalf that he had not refused to deliver, in this connection the court held that a person cannot, by promising to perform his legal duty and failing to do so, avoid liability. Anrl that the defendant in this case was in no better position than if he had notified the plaintiff that he did not intend to comply with his demand. Upon demand being made of a bailee, he must make delivery within a reasonable time thereafter. Id. Bailee cannot dispute bailor^ s title. A bailee cannot set up title in himself to defeat the claim of his bailor. Thompson v. Williams, 30 Kan. 114. Conversion — Evidence — Misjoinder of parties and of causes of action. The several parties ]ilaintiffs, brought a joint action against KANSAS. 251 the defendant warehouseman and also made defendant the sheriff who had attached the grain deposited in the defendant's warehouse (in an action brought by a bank against the ware- houseman), the bank being also made a party defendant. Sub- sequent to the attachment, the warehouseman issued an instru- ment to the several plaintiffs in which it was stated that the grain held for them did not belong to the warehouseman al- though it had been attached in an action against liiin, it being further stated in such instrument that the warehouseman there- by sold to the several plaintiffs their pro rata interest in the grain remaining in the warehouse. It appearetl that the grain had been deposited by the plaintiffs at different times and in every instance but one the contract of bailment had been oral. The defendant demurred on the ground that there was a mis- joinder of parties and also a misjoinder of causes of action. A judgment was given for the plaintiff pursuant to very conflict- ing findings by the jury. It was held on appeal, that the find- ings indicate that the wheat was deposited for bailment and not for sale and therefore the plaintiffs had no joint cause of action and that the joint verdict in their favor could not be upheld. Central State Bank et at. v. Walker et al., 7 Kan. App. 748. Board of trade — Right of inspection of grain. The Kansas City Board of Trade brought an action pra3dng that an injunction be granted against the Argentine Board of Trade and its officers, to restrain them from licensing inspec- tors of grain. It alleged that there were two warehouses in the vicinity of the defendant which were regularly inspected by deputy inspectors appointed by the complainant. It was alleged in the answer that the defendant was duly incorporated and that its deputy inspectors were appointed in compliance with the laws of the state and the rules of the grain inspectors, which rules the complainant was and had been continually violating. The defendant prayed that the petition of the com- plainant be denied and further that the complainant be per- manently enjoined from collecting or attempting to collect any fees for the inspection of grain in the vicinity of Argentine, and from, violating or interfering with the defendant's exercise and enjoyment of its exclusive rights to inspect grain in its 252 KANSAS DECISIONS. immediate vicinity. The reply filed by the complainant denied the averments of the answer and insisted upon its right to in- spect grain in the vicinity of Argentine. The case was sub- mitted to the court on the pleadings, except that the plaintiff withdrew all demand for relief prayed for in its petition. The court found for the plaintiff and that the defendant board of trade was not entitled to the relief prayed for in its answer, and the injunction was tlenied. On appeal the case was affirmed, the court holding that the defendant could not invoke injunction unless its private rights were being invaded by the plaintiff, and no other remedy existed. That the defendant could not assume the duties and responsibilities of the state and the public prosecutor of protecting public interests and securing the pun- ishment of warehousemen who violated the provisions of the statute. If the plaintiff board and its officers were violating the law, the state must interpose by an appropriate proceeding to prevent the unlawful exercise of the power. Jones v. Board of Trade of Kanms City, 52 Kan. 95. H. Storage charges — Tender necessary — Replevin. Where the defendant bailee stated to a third party that he would not deHver the property bailed even to his bailor upon payment of charges due, and it appeared that such third person was acting without authority conferred upon him by the bailor when he made an offer to pay the charges, it was held that this was not a tender such as is required before action of replevin brought. Brown v. Holmes, 21 Kan. 687. I. Commingling of goods — // without authority constitutes conver- sion. An instruction to the jury that if they found that the con- tract of the parties was that the grain of the plaintiff was to be separately binned and the identical grain be redelivered, that a mingling of the grain with other grain, although of like quality, constituted a conversion for which the warehouseman was liable, held to be correct. Kansas Elevator Co. v. Harris, 6 Kan. App. 89. KANSAS. 253 M. Pledge — Bailee has no right to pledge to secure personal indebt- edness. Where a bailee is in possession of property for the purpose only of bailment, he is not authorized to pledge the same to secure a personal debt due from him. Therefore, the owner has the right to recover the possession of the property so pledged. In order to acquire title to property, it must be purchased from one who is the owner thereof or one authorized to sell the same and the same rule applies in regard to pledge. Branson v. Heckler, 22 Kan. 610. Loss by fire — Not liable unless negligence be shown. A carrier holding goods in capacity of warehouseman held not responsible for loss occasioned by fire in the absence of negli- gence. L. L. & G. R. R. Co. V. Maris, 16 Kan. 333; Union Pacific Railroad Co. v. Moyer, 40 Kan. 184; Kansas City, Ft. Scott & M. R. R. Co. V. Patten, 3 Kan. App. 338. 0. Measure of damages. Where corn, delivered by bailee to his bailor, is of inferior quality to that deposited and the bailor accepts the same, the measure of damages is the difference between the value of the corn delivered and that deposited. Kansas Elevator Co. v. Harris, 6 Kan. App. 89. Warehouse receipts — Evidence — When parol evidence receivable. A mere receipt may be contradicted or varied by parol but if it is more than that and constitutes a contract of bailment between the parties it cannot be varied by such testimony. Thompson v. Williams, 30 Kan. 114. R. Bill of lading — What exemptions valid. While a provision in a bill of lading, or contract between the shipper and carrier, that the latter will not be liable beyond a certain sum expressed therein, may be valid, to limit the lia- bility of the carrier as an insurer, a condition of this character 25-1: KANSAS DECISIONS. which seeks to cover the negUgence of the carrier is void. K. C. St. J. & C. B. R. R. Co. V. Simpson, 30 Kan. 645; Railroad v. Moijer, 40 Kan. 184. Bill of lading — Effect of transfer. The transfer of a bill of lading passes title to the property represented thereby, but its transfer only gives with it such rights as the party in possession of the goods could transmit by an actual delivery of the goods themselves. Branson v. Heckler, 22 Kan. 610. Same — Transfer. Property may be transferred by assignment of the bill of lading representing same. Means v. Bank of Randall, 146 U. S. 620; Halsey v. Warden, 25 Kan. 128. Same — Railroad liable if duplicate bill of lading issued. Where a railroad company issued bills of lading for a part of the consignment and also issued one bill of lading for the entire consignment without cancelling those first issued, and one of such former bills of lading came into the hands of a third person without knowledge, it was held that the railroad was estopped to deny that the bill of lading was binding and that it was liable thereon. Wichita Savings Bank v. Atchison, etc., R. R., 20 Kan. 519. KEJSTUCKY. 255 CHAPTER XVII. KENTUCKY. LAWS PERTAINING TO "WAREHOUSEMEN. Warehousemen — AVho deemed : Any person or corporation who shall receive cotton, tobacco, pork , grain, corn, wheat, rye, oats, hemp, whiskey, coal, or any kind of produce , wares, merchandise, commodity, or any other kind or description of personal property or thing whatever in store, or undertake to receive or take care of the same, with or without compensation or reward therefor, shall be deemed and held to be warehousemen. Kentucky Stats. 1899, sec. 4768. Above section construed : The person who issues a warehouse receipt, within the mean- ing of the above act, must be a person regularly engaged in the business of warehousing. Mechanics' Trust Co. v. Dandridge, 18 Ky. L. R. 625. Receipt to be given for articles : Every warehouseman receiving anything enumerated in the preceding section shall, on demand of the owner thereof or the person from whom he receives the same, give a receipt there- for, setting forth the quality, quantity, kind and description thereof, if known, and which shall be designated by some mark, and which receipt shall be evidence in any action against said warehouseman. Id. sec. 4769. Receipts negotiable and trausferjible : All receipts issued by any warehousemen as provided by this chapter shall be negotiable and transferable by indorsement in blank, or by special indorsement, and with like liability as bills of exchange now are, and with like remedy thereon. Id. sec. 4770. 256 KENTUCKY LAWS. Receipt not to issue unless goods in warehouse : No warehouseman, or other person or persons, shall issue any receipt or other voucher for any goods, wares, merchan- dise, produce or other thing enumerated in section four thou- sand seven hunch'ed and sixty-eight of this article, or for any other commodity or thing, to any person or corporation, un- less such goods, wares, merchandise, produce, property, com- modity or thing shall have been bona fide received into posses- sion and store by such warehouseman or other person, and shall be in store and under his control, care and keeping at the time of issuing such receipt. Id. sec. 4771. Receipt not to issue as security unless goods are in posses- sion — Liens stated : No warehouseman or other person shall issue any receipt or voucher upon or for. any goods, wares, merchandise, prod- uce, commodity, property, or other thing, of any description or character whatever, to any person or corporation, as security for any money loaned or other indebtedness, unless such goods, wares, merchandise, produce, commodity, property or other thing so receipted for shall be, at the time of issuing such re- ceipt or voucher, the property of the warehouseman and ac- tually in store and under his control, and if there be a lif^n on the property, then the character and extent of the lien shall be fully set forth and explained in the receipt or voucher. Id. sec. 4772. Duplicate receipts not to i)e issued : No warehouseman or other person shall issue any receipt or other voucher for any goods, wares, merchandise, produce or other things enumerated in section four thousand seven hun- dred and sixty-eight of this article, whilst any former receipt for any such goods, wares, merchandise, produce, conmiodity, property or thing as aforesaid, or any part thereof, shall be outstanding and uncancelled. Id. sec. 4773. Property receipted for not to be sold or incumbered with- out consent : No warehouseman or other person shall sell or incumber, KENTUCKY. 257 ship, transfer, or in any manner remove beyond his immediate control, any goods, wares, merchandise, produce, commodity, property or chattel for which a receipt or voucher shall have been given without the written consent of the person or per- sons holding such receipt, and the production of the receipt. Id. sec. 4774. Penalty for violation of this article : Any warehouseman or person who shall willfully and know- ingly violate any of the provisions of this article shall be deemed a cheat and swindler, and subject to indictment, and, upon conviction, shall be fined in any sum not exceeding five thousand dollars, or shall be imprisoned in the penitentiary not less than two nor more than five years, or both so fined and imprisoned, in the discretion of the jury ; and every person aggrieved by the violation of any of the provisions of this article shall have and maintain an action against the person or corporation violating any of the provisions of this article to recover all damages, immediate, consequent, legal and extra- ordinary, which he or they may have sustained by reason of such violation as aforesaid, whether such person may have been convicted or not. Id. sec. 4775. Above section construed — Indictment under this act: For necessary statements to be contained in an indictment of a warehouseman under this act, see Comm. v. Mason, 82 Ky. 256. Receipts — Pledgee may dispose of : When any receipt or voucher shall have been issued as pro- vided by this article, and used or pledged as collateral security or otherwise for the loan of money, the bank or person to whom the same may be pledged, hypothecated or transferred shall have power and authority to sell the same, and transfer title thereto in such manner and on such terms as may be agreed upon in writing by the parties at the time of making the pledge. Id. sec. 4776. Register to be kept by warehouseman — What it shall show : Wai-ehousemen shall keep a register, in which shall be fq- 17 258 KENTUCKY LAWS. corded a list and description of all property which may br stored in their warehouses, and the name and residence of the owner, if known, and the time when the same was received, and the amount of charges thereon. Id. sec. 4777, Sale of property to pay storage — Notice : Any property in a warehouse upon which the charges have not been paid for twelvemonths after the same have become due, unless otherwise provided by contract, the warehouseman may sell such propert}-, or enough thereof to pay the charge, at pubhc auction, at the warehouse or at the courthouse door of the county in which the warehouse is situated. Before any such sale shall be made, the warehouseman shall cause the sale of the property to be advertised for not less than twenty days before the day of the sale, by printed notices posted at the door of the courthouse of the county, and in three or more public places in the county where the sale is to take place, and by having such notice published at least once a week for at least three weeks in a newspaper of general ( irculation in the county where the warehouse is situated. Such notice shall contain the day and place of sale, a description of the property to be sold, if known; if not, a description of the package in which it is contained, the amount of charges and the name and place of residence of the owner, if known; and the ware- houseman, at least ten days before the day of sale, shall mail to the owner a notice of the time and place of sale, with a de- scription of the article to be sold and amount of charges. Id. sec. 4778. Proceeds of sale — How disposed of : The warehouseman, from the proceeds of the sale, shall pay all the necessary charges and costs of the sale, and shall hold the overplus, if any, subject to the order of the owner, and shall, immediately thereafter, mail to the owner thereof a no- tice of said sale, amount due him, if his place of residence be known ; and at any time within twelve months after such sale, upon the demand of the owner, the warehouseman shall pay the same to him. All such sums which may be in the hands of the warehouseman, not claimed by the owner for twelve KENTUCKY. 259 months after such sale, shall be paid into the State Treasury, which shall be held for a period of two years, subject to the order of the owner or his representatives, upon he or they mak- ing satisfactory proof or the rightful ownership of same. Id. sec. 4779. Common-law liability cannot be restricted : It shall be unlawful for the owners, operators or controllers of any warehouse of the kind herein contemplated to make any contract restricting or limiting their common-law liability for goods stored. Id. sec. 4780. Grain warehouses — Public granaries, elevators, ware- houses defined: Public grain elevators, warehouses and granaries in this com- monwealth shall embrace those in which grain is stored, in- spected, classified and sold. Id. sec. 4781. License procured from county clerk — Revocation of : The proprietor, lessee or manager of any public grain ware- house shall, before transacting any business therein, procure from the clerk of the county court a license permitting him to transact business of such a warehouse, which license shall be issued by the clerk of said court, on a written application, set- ting forth the location and name of such warehouse, and the name of each person interested as owner or principal in the management thereof; if the warehouse be owned or kept by a corporation, its name and those of its president, secretary and treasurer. This license shall be granted upon the payment of a fee of one dollar to the clerk, and shall be recorded in the bond and power of attorney book in the clerk 's office. It shall be revocable by the circuit court of the county upon a summary proceeding before that court upon written complaint of any person setting forth the particular violation of law, and on sat- isfactory proof, to be taken as may be directed by the court. Id. sec. 4782. Bond to be executed — Terms of — Action on : The person receiving a license shall file a bond in the county clerk's office with good sureties, to be approved by the court. 260 KENTrCKY LAWS. conditioned for the faitliful performance of his duty as a public grain warehouseman, and his compliance with the laws relating thereto, ^'uit may be brought on such bond by any person in- jured by the violation of this law, or by the non-performance of any of the warehouseman's duties. Id. sec. 4783. License from city not dispensed with — Penalty for doing business without : The license herein provided for shall not dispense with the obtaining from year to year such license as any city may lawfully require \mder its charter for the purpose of taxation. Any one transacting the business of a wai'ehouseman without first pro- curing a license, as herein provided, or continuing such business after such license is revoked (except by deli\'ering property pre\Hously stored), shall be fined, on conviction, in the sum of one hundred dollars for each day such business is carried on, and the court revoking a license may adjudge that no new one shall be granted to the person holding it, or to any of them, within one year from the time the same may be revoked. Id. sec. 4784. Gr.iin — Duty of warehousemen concerning : It shall be the duty of every such warehouseman to receive for storage any grain that may be tendered to him, without making any discrimination between persons, such grain in all cases to be inspected and graded by a duly authorized in- spector, and to be stored with grain of a similar grade received at the same time, as near as may be. In no case shall grain of different grades be mixed together while in store ; but if the owner or consignee so requests, his grain may be kept by itself in a separate bin. If a warehouse receipt be issued for grain so kept separate, it shall state on its face that it is in a sepa- rate bin. Nothing in this section shall be so construed as to require the receipt of grain into any warehouse in which there is not sufficient room to accommodate or store it properly, or in cases where the warehouse is necessarily closed. Id. sec. 4785. Receipts issued for grain — Form of : On application of the owner or consignee of grain stored in KKNTl'CKY. 20 1 such a warehouse, and the charges of inspection being paid, the warehouseman shall issue to the person entithxl thereto a warehouse receipt therefor, subject to the order of the owner or consignee, which receipt shall bear date corresponding with the receipt of grain into store, and shall state upon its face the quantity and inspected grade of the grain, and that the grain mentioned has been received in store, to be received with other grain of like grade anrl of about the same time of receipt, and that it is deliverable upon the return of the receipt, prop- erly indorsed by the i)erson to whose order it was issued, and the payment of the proper charges for storage. All warehouse receipts for grain issued from the same warehouse shall be con- secutively numbered, and no two receipts shall bear the same number except in case of a lost or destroyed receipt, in which case the new receipt shall bear the same date and number as the original, and shall be plainly marked on its face " Dupli- cate." If the receipt was received from railroad cars, the number of each car shall be stated upon the receipt, with the amount it contained ; if from steamboat or other vessel, the name of the craft ; if by team or by other means, the manner of its receipt shall be stated. On delivery of grain from store against receipt, such receipt shall be plainly marked across its face with the word " Cancelled " and the name of the person cancelling the same, and shall thereafter be void, and not again be put in circulation. Id. sec. 4786. Receipt to issue only for grain actnally delivered : No warehouse receipt shall issue, except on the actual de- livery of grain into store in the warehouse from which it pur- ports to be issued, and which is to be represented by the receipt, nor for a greater quantity of grain than was received. Where part of the grain represented by the receipt is delivered out of store, a new receipt may be issued for the remainder, but it shall bear the same date as the original and show on its face that it is balance of the original number, and the receipt on which part has been delivered shall be cancelled. When it is desired to divide one receipt or to consolidate two or more into one, this may be done with the warehouseman's consent, and the original receipts may be cancelled; but the new ones 262 KENTUCKY LAWS. must show on their face that the}' have proceeded from such di\'ision or consoUdation, together with the numbers and dates of the old receipts. Id. sec. 4787. Receipt not to effect legal liability : No grain warehouseman can, by any proviso in the receipt or in any otherwise , restrict the Habihty put upon him by law. Id. sec. 4788. Grain to be delivered upon presentation of receipt — Penalty : Upon presentation of the receipt, properly indorsed, and tender of charges, the quality of grain therein named shall be at once delivered to the owner , and no storage can be charged after demand made ; and for any delay in delivery beyond the time required with due diligence, care and prudence , the ware- houseman shall be liable for damages which, at the option of the party injured, may be assessed at one cent per bushel for every day of neglect or refusal to deliver. Id. sec. 4789. Statements — Posting and delivery of to registrar : Each grain warehouseman shall, on every Tuesday, post in his office a statement of the amount of each kind and grade of grain on store in his warehouse at the close of business hours of the preceding Saturday, and shall furnish daily to a registrar of warehouses, hereinafter provided for, if there be one ap- pointed for the city or county in which the warehouse is situ- ated , a statement of all the receipts and deliveries and of the issual and cancellation of receipts of the day, together with any other information that may be needed for keeping a true and faithful record of the state of the warehouse. If there be no registrar, ho shall post, as provided in this section, a statement of the receipts and deliveries, and of the issue and cancellation of receipts of the week ending with such Saturday. Id. sec. 4790. Inspector, weigher and registrar — Appointment — Removal — Qualifications — Compensation: The conmiissioner of agriculture shall appoint an inspector, weigher and registrar for the warehouses in the city, and fix KENTUCKY. 263 their duties, the amount and kind of bond to be given by them, and their fees, which shall be paid by the seller, and the board of trade shall, at least once in each year, establish standard grades of the various kinds of grain by which the inspectors shall be governed in their inspection; but any warehouseman, seller or buyer, or other person in interest, may, on summary com- plaint to the circuit court of the county, obtain a reduction of the fees, if, in the opinion of that court, they are exorbitant. And the same court shall, upon complaint of malfeasance or neglect, remove any inspector, weigher or registrar, and declare him incompetent for reappointment, the proceedings being as near as may be similar to those for vacating an office. No member of the board of trade or person interested in any ware- house shall be appointed inspector, weigher or registrar, nor shall any inspector, weigher or registrar have stored or offer for sale, in any warehouse under his supervision, any com- modity owned by him or in which he is directly or indirectly interested, nor shall he be a purchaser at any sale made by the warehouse of any commodity inspected, weighed or registered by him. No person shall be appointed inspector, weigher or registrar unless he be a citizen of the state of Kentucky, has attained the age of twenty-five years, and has been a resident of the city for which he has been chosen at least one year next preceding his appointment. Id. sec. 4791. Rates and charges to be posted seini-aiiiiiially : Every such warehouseman shall, before receiving any grain on store and thereafter within the first week of every January and July, publish his rates of storage and charges for receipts and deliveries, by posting them in his office and in the rooms of the board of trade, if there be any in a city situated in the same county as the warehouse, and shall not increase them during the intervening time, nor shall any subsequent change of rates apply to grain previously received in the warehouse. Id. sec. 4793. Inspector and weigher— When apjjointed by fiscal court — Qualifications— Bond — Fees — Term of ollice : In all cities and counties where there are grain warehouses, 264 kkntucky laws. and where there is no board of trade, it shall be the duty of the fiscal court of the county to appoint an inspector and weigher for said warehouses, who shall file a bond in the county clerk's office, with good sureties, to be approved by the court, conditioned for the faithful performance of his duty as such inspector and weigher, on which suit may be brought by any person injured by the violation of such duty. Said inspector and weigher shall have the inspection and weighing of all com- modities stored in said warehouses. The fiscal court of the county shall fix the fees of said inspector and weigher, which shall be paid by the seller. No person interested in any ware- house shall be appointed an inspector, weigher or registrar; nor shall any inspector, weigher or registrar have stored or offered for sale in any warehouse under his supervision any commod- ity owned by him or in which he is directly or indirectly in- terested. Nor shall he be a purchaser at any sale made by the warehouse of any commodity inspected, weighed or reg- istered by him. No person shall be appointed inspector and weigher unless he be a citizen of the state of Kentucky, has attained the age of twenty-five years, and has been a resident of the county for which he has been chosen at least one year next preceding his appointment. Said inspector and weigher shall be appointed for the term of two years, and until his suc- cessor is appointed and qualified. Id. sec. 4793. Fire or injury to ^rain — Wlieii warehoiiseiiian not liable — Duty of — Notice to owner : No public warehouseman shall be held responsible for any loss or damage to property by fire while in his custody, pro- vided reasonable care be exercised to protect and preserve the same, nor for loss or damage by heating, if he has exercised due care in handling and storing the grain, and the heating resulted from causes beyond his control. To prevent injustice from heating, it shall be the duty of the warehouseman, as nearly as possible, to deliver out grain of (>ach grade in the order of time in which it was received. In case, however, that a warehouseman shall discover that any part of the grain in his warehouse is out of condition, or becoming so, and it is not in his power to preserve the same (provided it is not stored in a KENTUCKV. 265 separate bin as above provided for), he shall, by notice published in a daily newspaper of Louisville, or in the county where the warehouse is situated, if there be one, and posted at the board of trade rooms, if there is a board of trade in the city where the warehouse is located, or by written notice to the person to whom tlio warehouse receipt was issued, if known, of its actual condition, as near as he can ascertain it, state the kind and grade of grain, and the bin in which it is stored; and shall also state in such notice the receipts outstanding upon which such grain will be delivered, giving the numbers, amounts and dates of each, which receipts shall be those of the oldest dates then in circulation or uncancelled, the grain represented by which has not previously been declared or receipted for as out of condi- tion; or if the grain longest in store has not been receipted for, he shall so state, and shall give the name of the party for whom such grain was stored, the date it was received, and the amount of it ; and the enumeration of receipts and identification of grain so discredited shall embrace, as near as may be, so great a quan- tity of grain as is contained in such bins; and such grain shall be delivered upon the return and cancellation of the receipts, and the unreceipted grain upon the request of the owner or per- son in charge thereof. Nothing herein contained shall be held to relieve the said warehouseman from exercising proper care and vigilance in preserving such grain after publication of its condition; but such grain shall be kept separate and apart from all direct contact with other grain, and shall not be mixed with other grain while in store in such warehouse. Any ware- houseman guilty of any act of neglect, the effect of which is to depreciate property stored in the warehouse under his control, shall be held responsible as at common law, or upon the bond of such warehouseman, and, in addition thereto, the license of such warehouseman shall be revoked. In case the grain de- clared out of condition, as herein provided for, shall not be re- moved from store by the owner thereof within two months from the date of the notice of its being out of condition, it shall be lawful for the warehouseman where the grain is stored to sell the same at public auction, for account of said owner, by giving ten days' public notice in a daily newspaper of Louisville, or of 266 KENTL'CKV LAWS. the county where the warehouse is situated, if there be one. Id. sec. 4794. Grain of different qualities not to be mixed : It shall not be lawful for any public warehouseman to mix any grain of different grades together, or to select different qualities of the same grade for the purpose of storing or de- livering the same, nor shall he attempt to deliver grain of one grade for another, or in any way tamper with grain while in his possession or custody with a view of securing any profit to himself or any other person; and in no case, even of grain stored in a separate bin, shall he be permitted to mix grain of different grades together while in store. He may, however, . on request of the owner of any grain stored in a private bin, be permitted to dry, clean or otherwise improve its condition or value of any such lot of grain; but in such case it shall only be delivered as such separate lot, or as the grade it was origi- nally when received by him, without reference to the grade it may be as improved by such process of drying or cleaning. Nothing in this section, however, shall prevent any warehouse- man from moving grain while within his warehouse for preser- vation or safe-keeping. Id. sec. 4795. Inspector or weigher — Penalty for neglect: Any duly authorized inspector and weigher of grain, who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect or grade any grain improperly, or who shall accept any money or other consideration, directly or indirectly, for any neglect of duty or the improper performance of any duty as such inspector of grain, and any person who shall im- properly influence any inspector of grain in the performance of his duties as such inspector, shall be deemed guilty of a mis- demeanor and, on conviction, shall be fined in a sum not less than one hundred dollars nor more than one thousand dollars, in the discretion of the jury, or shall be imprisoned in the county jail not less than three nor more than twelve months, or both, in the discretion of the jury. Id. sec. 4796. Law — Copy of this to he posted : All proprietors or managers of public grain warehouses shall KENTUCKV. 207 keep posted up at all times, in a conspicuous place in their business offices, and in each of their warehouses, a printed copy of this act. Id, sec. 4797. Tobacco warehouses— Who are Avarehousemeii ? All persons receiving in this commonwealth leaf tobacco for storage and sale* at public auction, for which they charge com- mission or fees for their services, are declared public ware- housemen. Id. sec. 4798. Duties of warehousemen— Weighing and marking casks : That hereafter warehousemen storing and selling leaf tobacco in this state shall carefully and correctly weigh, or cause to be weighed, every hogshead, box or bale of tobacco which may be sent to such warehousemen for storage and sale on the day same is to be sold. They shall mark, or cause to be marked, the gross weight distinctly on the head of each hogshead, box or bale, and on each sample card, and enter the same in sample book, and after the tobacco is stripped, they shall take the exact tare weight of each cask in which the tobacco has been prized ; and after each hogshead, box or bale of tobacco has been sold, the proprietor shall settle with the seller according to the net weight, including the sample, after deducting the exact tare. Id. sec. 4799. Above section construed : The settlement with the customer must be actual, and the action must be brought by the "party aggrieved." Mc- M asters v. Burnett, 92 Ky. 358. See also Murrell v. Citizens Bank, 19 Ky. L. R. 693. False weights— Mutilating samples— Penalty— Lia))ility : If any person or persons shall make a false or fraudulent weight of such tobacco, or shall jnirposely alter or mutilate any sample before the hogshead, box or bale it represents has been sold, or alter the weight marked thereon, or record other weights on the warehouse books than the weights marked there- on, such persons shall be deemed guilty of a misdemeanor and fined in any sum of not less than twenty- five nor more than one hundred dollars, in the discretion of the court or jury try- 268 KENTUCKY LAWS. ing the case, and in addition, shall be liable to the party ag- grieved in damages for any and all loss they may have sus- tained. Id. sec. 4800. Commissions — Compensation : That hereafter warehousemen and commission merchants en- gaged in selling leaf tobacco at public auction, shall receive as commission or compensation therefor two dollars per hogshead from the owner hereof or his agent. Id. sec. 4801. Rejections — Fees on resale : That in the event the sale of any hogshead of tobacco is rejected, and a resale is made by the same warehouseman or in the same warehouse, no greater sum than one dollar and fifty cents per hogshead shall be charged as fees or compensation for such resale, and no additional charge shall be made for weighing, nor device resorted to so as to increase the price for selling to a greater amount than is in this act provided. Id. sec. 4802. Commissions for pjiyiug money to seller not allowed : That it shall be unlawful for any warehouseman or commis- sion merchant to directly or indirectly charge the seller or owner anything, by way of commission or otherwise, for pay- ing to him the money for which his tobacco is sold. Id. sec. 4803. Hypothecating forbidden — Exception : That it shall be unlawful for any warehouseman to hypothe- cate or pledge any tobacco shipped to or stored with him, or issue any warehouse receipts for any tobacco so shipped or stored, without the written consent of the owner, of said to- bacco; and if he does so without the written consent of the owner, said pledge or receipt shall be null and voi loan was a sufficient consideration foi* tlie issuance of tlu^ new receipts. Cochran (^ Fulton v. Ripley, Hardie & Co., 13 Bush, 495. Same — Same — Bona Jide holder protected. A warehouseman sold whiskey to A, who pledged the receipts as collateral security with H, the warehouseman retaining pos- session of the goods. V])()]\ (l('f;iii!l in payment by A («f his debt to B, the latter hccanic owner of the warehouse receipts. In an action between H and the warehouseman it was held that B's rights were superior to the claim of the warehous(>man for unpaid purchase money. Greemhauni v. Burns, 15 K. L. R. 716. Same — Same — Receipt must contain distinguishing 7narks. In an action by a bank against the assignee, in insolvency, of a warehouseman for the recovery of the value of proi)ert)'' upon which the warehouseman had borrowed money and had delivered to the bank his warehouse receipts for the same, as collateral security', it appeared that there were no distinguish- ing marks upon the warehouse receipts except the usual trade- mark of the firm; it also appeared that there was a large ([uan- tity of other goods similarly marked. The court held that the requirements of the act of March G, 1869, in regard to dis- tinguishing marks, had not been complied with, for the marks must be such as will distinguish the property represented by the receipt from other property of similar kind and quality; accordingly the judgment given for the plaintiff, in the lower court, was reversed and the case remanded. Ferguson, Jr., As- signee, V. Northern Bank of Kentucky, 14 Bush, 555. Same — As collateral — Duplicate. Where a warehouseman pledged with one making a loan to him, a warehouse receipt in which it was stated that the ware- houseman held certain goods for a tliird person, it was held that this was a fraud on its face for the warehouseman had no 28-i KENTUCKY DECISIONS. right to possess such a receipt nor to pledge the same, and that the receipt was void. Smith v. Anderson & Co., 10 K. L, R, 725. Same — Assignee of warehousemen — Estoppel. It was contended that the assignee of a warehouseman was estopped to deny a sale of property stored in his assignor's warehouse. This in an action against the assignee personally for the conversion of the property, it was held that he was not so estopped, and further, that the burden of proof was on the plaintiff to show title in himself. Ferguson, Jr., Assignee, V. Northern Bank of Kentucky, 14 Bush, 555. Sam e — Liability. The assets of the warehouseman in the hands of his assignee may be reached by the holder of an ineffectual warehouse re- ceipt issued by the warehouseman, but such assignee is not personally liable therefor. Id. Same — Duplicate of. A firm of distillers having decided to issue new green re- ceipts for old yellow ones placed in the hands of their finan- cial manager the green receipts. There were certain yellow receipts outstanding being pledged to secure a note held by a creditor. The financial manager did not take up these yellow receipts but issued new green receipts against the same whiskey to secure an indebtedness to another creditor. The note to former creditor was paid but only part of the yellow receipts returned. Held that this vested in the holder of the green receipts title to the whiskey represented by the returned yellow receipts and this so even though the returned yellow receipts were immediately pledged by the firm to obtain the cash with which to meet the check given by them to take up the note. Block V. Oliver & O'Bryan, 19 K. L. R. 1278. Same — Same — Effect of retention of receipt after payment of note — Other indebtedness. Under the statement o"f facts as set forth above where the person to whom the original yellow receipts were pledged does KENTUCKY. 285 not deliver all of the same upon payment of the note, it was held that the evidence would not sustain the contention that he held such receipts as bailee of the warehouseman, but that it would be presumed that he retained them as collateral se- curity for the payment of other indebtedness due him by the warehouseman. Further, that the contention that no hability on the part of the warehouseman existed on account of green receipts, until all of the yellow receipts were surrendered and cancelled could not be sustained, and that the warehouseman was liable to the one to whom the green receipts were issued for the property represented thereby. Id. Same — Same — Counsel fees recoverable. Appellant recovered counsel fees from warehouseman, such expenditure being occasioned by issue of duplicate receipts by warehouseman. Held correct. Lupe v. Anderson Distilling Co., 9 K. L. R. 149. Same — Same — Constitutes actual fraud. The issuance of duplicate receipts to one who takes without notice of the fact that former receipts have been issued con- stitutes, according to principle and authority, actual frauj^ which cannot be avoided by declaration of honest motives. Taylor v. Farmer, 81 Ky. 458; Farmer v. Gregory & Stagg, 78 Ky. 475. B. Bill of lading — Negotiability. A bill of lading does not possess the characteristics of bills of exchange or other negotiable instruments placed on the footing of bills of exchange. The peculiar characteristics of these in- struments rest entirely upon statute or conmiercial usage sanc- tioned by express consent, A bill ui lading has neither of these to rest upon. It does not represent money, and it does not possess the characteristics of negotiable commercial paper. When it is said that a bill of lading is negotiable, it is only meant that its true owner may transfer it by indorsement, or assignment, so as to vest the legal title in the indorsee. Doug- las, Receiver, v. Peoples^ Bank of Ky., 86 Ky. 176; Polland v. Vinton, 105 U. S. 7. 28t) LOUISIANA LAWS. CHAPTER XVIII. LOUISIANA. LAWS PERTAINING TO WAREHOUSEMEN. Governing the manner in which cotton-press receipts, ware- house receipts, or the receipts of other custodians of any prop- erty whatever, shall be issued, in all cases where such receipts shall or may be used or pledged as collateral security for money advanced or borrowed on faith of the property therein specified, and governing the delivery and disposal of the property for which such receipts may be issued. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened : That no cotton press, or other custodian or custodians of produce or property shall issue any receipt or other voucher for any produce, mer- chandise or other property, to any person or persons purporting to be the holder, owner or owners thereof, unless such produce, merchandise or other property shill have been actually received into store, or upon the premises of such cotton press, or other custodian or custodians, shall be in the store, cotton press or warehouse, or on the premises aforesaid, or under his or their control at the time of issuing such receipt. Be it further enacted, etc.: That any person, firm or associa- tion who shall, or may be, or in any way become the custo- dians of any property, goods, products or merchandise what- ever, and who may issue receipts therefor, shall not, under any circumstances, or upon any order or guarantee whatever, deliver property for which such receipts have been issued until the party or parties to whom the receipts were issued, or the legal holders thereof, shall have surrendered the same to said custodians for cancellation, and in default of a strict compliance with the provisions of this section of this act, they may be held liable by the legal holder or owner of their receipt for the market value of the property therein described as may be established LOUISIANA. 287 by the chamber of commerce of the city of New Orleans or any committee thereof, approved antl authenticated by the })resident or vice president of said chamber of commerce. All warehouse receipts intended for pledge under the provisions of this act shall be paragraphed before being issued, as follows: I'or hypothecation in accordance with the provisions of this act. Be it further enacted, etc.: That no cotton press or other custo- dian or custodians of produce or other property shall issue any second or duplicate receipt for any goods, wares, merchandise, grain, flour, or other produce or commodity, while any former receipt for any such goods, wares, merchandise, grain, flour, or other produce or commodity as aforesaid, or any part thereof, shall be outstanding and uncancelled, without writing across the face of the same, ''duplicate," in a highly conspicuous manner. And any person who may issue warehouse receipts for any prop- erty of any kind whatsoever not actually in their possession and under their entire control, shall be and are hereby made liable for the market value of any and all property for which they may have issued such false receipts in manner as specified in foregoing section, and shgill furthermore be liable to criminal prosecution as having aided and abetted in obtaining money under false pretenses. Be it further enacted, etc.: That parties who may borrow money on the faith of warehouse receipts, representing property in store, shall file their affidavit with the pledgees that such property is theirs, the pledgors' personal property, or that it is the property of some party for whom the pledgor is acting as agent, factor, commission merchant, or in any other fiduciary capacity, and that said party is justly and truly indebted to the pledgor in an amount equal in value to the value of the property pledged, as specified in the warehouse receipt, for moneys paid to him, or paid by his order and for his account by the party or con- signee making the pledge. The cashier of a bank or the secre- tary of any insurance company incorporated or working under any law in the United States or of this state is hereby author- ized to administer the oath contemplated under the provisions of this act. Any deviation therefrom shall render the party or parties so deviating liable for the value of the property, or any 288 LOUISIANA LAWS. excess in value over and above the amount for which it may have been pledged in any manner specified in section one of this act, and to prosecution for perjury and also for obtaining money under false pretenses. Be it further enacted, etc.: That the vendors' lien of five days' privilege, now allowed in commercial transactions for the pa}'-- ment of the purchase price, shall not be affected by the provisions of this act, except in case in whicli a ^^•arehouse receipt has been pledged as collateral for money borrowed. The holder of the warehouse receipt shall be considered and held as the actual owner of the property described in the receipt, and no clause of this act shall operate to the detriment or injury of the holder of a warehouse receipt, to the extent of the value of the prop- erty specified, made and issued in accordance with and under the provisions of this act; provided, that where the factor, agent or pledgor may have wrongfully pledged, in violation of this act, any property, the lien of the owner shall be valid even against the third holder of the warehouse receipt. Be it further enacted, etc.: That should the pledgor fail to pay his pledge note, secured by warehouse receipts representing the property therein described, on the day of its maturity, the pledgee shall, on the following day after the maturity of such pledge note, notify the pledgor of same, and inform him that he may appoint one expert to act jointly with another one to be appointed by the pledgee, which expert shall examine, appraise, and sell the goods or merchandise pledged, or such an amount of the same as they may determine to satisfy the claim of the pledgee, to- gether with costs and the usual expenses. In case of doubt the two experts already selected will be authorized to appoint a third. In the event of the pledgor refusing, or for any reason failing to appoint such expert within five days, allowing one additional day for every twenty miles that the residence of the pledgee may be distant from the residence of the pledgor, then the pledgee shall be and he is hereby authorized and empowered to appoint two experts, and they to appoint a third, all of whom shall be familiar with the value and management of the character of the merchandise involved ; said experts to examine, appraise, and sell to the best possible advantage all of the prod- LOUISIANA. 289 uce pledged, or such an amount as may be necessary to settle the pledge note in full, together with such costs and necessary expenses as may be or have been incurred. The experts thus appointed shall i)roceed at once to take action and to complete their duties at the earliest practical day consistent with the usual and customary manner of selling the produce or merchan- dise in question, and said experts shall make their report im- mediately thereafter. They shall be authorized to sell at public auction, after five days' notice in a public journal published in the parish in which the pledgee resides, without legal process of any kind or description whatever; and the pledgee or holder of said warehouse receipt shall be in full and complete posses- sion of the merchandise described in the receipt from and after the day on which the pledge note based on the merchandise may have matured; the surrender of the warehouse receipt to the custodian or custodians of the property, and cancellation of same, shall relieve and exonerate them from all further re- sponsibility in the premises. Be it further enacted, etc. : That said experts shall make a sworn statement of their proceedings and the disposition of the funds realized, and file said statement in the office of some duly quali- fied notary public, or in any court of record located in the parish in which the pledgee may reside. Said experts shall receive such fee as may be agreed upon, but they shall not be au- thorized to exact a fee in excess of the usual commissions charged, according to commercial usage, on the character of the property upon which they may have administered. Be it further enacted, etc.: That all warehouse receipts as by this act provided, shall be negotiable by indorsement in blank, or by special indorsement, in the same manner and to the same extent as bills of exchange and promissory notes now are. Be it further enacted, etc. : That this act shall take effect from and nfter its passage, and all laws or parts of laws in con- flict herewith be and the same are hereby repealed. Laws, 1876, No. 72, p. 113. Above act construed— Owner protected where factor retains receipt in his own name and pled£:es tlie same : Under the above act and the other statutes of this state per- 19 290 LOLISIA^A LAWS. taining to brokers, warehousemen, factors and warehouse re- ceipts, it was held that it was not the intention of the general assembly that where a factor should b:- the holder of a ware- house receipt taken out by himself in his own name, that such statutes would confer upon parties the right to deal with him as owner and to absolutely ignore, under full protection of the law, the relation which the factor bore to the property and to its owner. Holton & Winn v. Hubbard & Co. et at., 49 La. Ann. 715. To amend the act No. 125 of 1880, approved April 10, 1880, with reference to corporations for works of public improve- ment. Be it enacted by the General Assembly of the state of Louisiana : That section 4 of said Act No. 125 be amended and re- enacted so as to read as follows : That any railroad, plank road, turnpike, canal, elevator or warehouse company, or any com- pany for drainage, sewerage, land reclamation and levee build- ing, established under the laws of this state, whether under and by special or general act, may borrow from time to time such sums of money as may be required for construction, repairs or acquisition of [property or franchises, and for this purpose may issue bonds or other obligations, secured by mortgage or pledge, as the case may be, of the franchises and all the property, real and personal, and incomes, revenues, contributions, and receipts of said companies, and payable in such terms and at such times and places as the board of directors, trustees, managers or com- missioners may direct or designate, with power to sell, pledge or otherwise dispose of said bonds on such terms as the rail- road respectively may direct or deem expedient. Laws, 1882, No. 102, p. 155. An act to define and regulate the business of public ware- houses, and the issue of public warehouse receipts ; to define and punish violations of this act, and to repeal conflicting laws. Note. For an act to regulate the employment of children, younf]^ per- sons and women in warehouses or workshops where the manufacture of any goods whatever is carried on or where any goods are prepared for manu- facturing, see act No. 43, Laws of Louisiana, 1886, p. 55. LOUISIANA. "29 L Formalities .iikI (lualiflcation : That the proprietor, lessee or manager of any pubHc ware- house, whether an individual, firm or corporation, bef(jre trans- acting any business in such warehouse, shall procure from the civil district court of the parish in which the warehouse or ware- houses are situated, a certificate that he is transacting business as a public warehouseman under the laws of this state, which certificate shall be issued by the clerk of said court, upon a written petition setting forth the location and name of such warehouse or warehouses and the name of each person individ- ually or a member of the firm, interested as owner or principal in the management of the same; or if the warehouse be owned or managed by a corporation, the names of the president, sec- retary and treasurer of such corporation shall be stated, and the said certificate shall give authority to carry on and con- duct the business of a public warehouse within the meaning of this act, and shall be revocable by said court upon a summary proceeding before the court, on complaint by written petition of any person setting forth the particular violation of the law, and upon satisfactory proof, as in other cases at law. The per- son receiving a certificate, as herein provided for, shall file with the clerk of the court granting same, a bond to the state of Louisiana, with good and sufficient security, to be approved by said court, in the penal sum of five thousand dollars ($5,000) • conditioned for the faithful performance of his duty as a public warehouseman, and his full and unreserved compliance with all "laws of the state relating to such business. Penalty for non-compliance : That any individual, member of firm, or president, secretary ■ or treasurer of a corporation, who shall transact the lousiness • of a pubhe warehouse without first procuring a certificate as therein provided, or who shall continue to transact any such .'business after such certificate has been revoked (save only that he may be permitted to deliver property previously stored in such warehouse) shall, in summary proceedings on the written petition of any person setting forth the fact, as above, and ujion satisfactory proof before the court whose clerk is authorized to issue the certificates provided for in section first of this act, "292 LOLLSIANA LAWS. be adjudged to pay to the police juiy of the parish where the warehouse is situated, or to the city of New Orleans, if that be the location of the warehouse, at the discretion of the court, a sum not less than one hundred dollars (SlOO), nor more tlian five hundred dollars fSoOO). and costs of court, for each and every day such business is so carried on; and the court may refuse to renew the certificate or to grant a new one. to any of the persons whose certificate has been revoked, within one \ear from the time the same was revoked. But nothing herein shall be construed to interfere with, repeal or conflict with the reg- ular license laws of the parish, city or state. , Receipts, how issued, etc. : That on application of the owner or depositor of the prop- erty stored in a public warehouse, the warehousemen shall is- sue over his own signatm'e, or that of liis duly authorized agent, a public warehouse receipt therefor, to the order of the person entitled thereto, which receipt shall i:)uri)ort to be issued by a public warehouse, shall bear date of the day of its issue, and shall state upon its face the name of the warehouse and its lo- cation, the description, quantity, number ;uid marks of the property stored, and the date on which it was originally received in warehouse, and that it is deli^•erable ujwn the return of the receipt properly indorsed by the person to whose order it was issued, and on payment of all charges for storage. All such receipts shall be numbered consecutiveh% in the order of their issue, and no two receipts bearing the same number shall be issued from same warehouse during the same year, nor shall any duplicate receipt be issued, except in the case of a lost or destroyed receipt in which case the new receipt shall bear the same date anrl number as the original, and be plainly marked on its face, "Duplicate"; and, provided, that no such dupli- cate receipt shall 1)e issued by any public warehouseman until adequate security be deposited with, or to the order of. said warehouseman to protect the party or parties who may finally hold the original receipt in good faith and for a valid consid- eration. Not Avithout previous receipt of i?oo(ls : That no warehou.se receipt shall be issued except upon the LOUISIANA. 293 actual previous delivery of the goods into the warehouse or on the premises and under the control of the warehouseman by whom it purports to be issued, and the name of the warehouse shall invariably be specified in such receipt. Delivery to Iiolder of receipt : That on the presentation and return to the warehouseman of any public warehouse receipt issued by him and properly in- dorsed, and the tender of all proper warehouse charges upon the property represented by it, such property shall be deliverable immediately to the holder of such receipt, but no public ware- houseman who shall issue receipts for goods shall under any cir- cumstances or upon any order or guarantee whatsoever deliver the property for which such receipts have been issued, until the said receipt will have been surrendered and cancelled, and in default of the strict compliance with the provisions of this section of this act, he shall be held liable to the legal holder of the receipt for the full value of the property therein described, as it appeared on the day of the default, and shall furthermore be liable to the special penalties herein provided, in addition to the existing penalty attached to the crime of obtaining money or goods under false pretenses, or aiding and abetting therein. Upon delivery of the goods from the warehouse upon any re- ceipt, such receipt shall be plainly marked in ink across its face with the word "cancelled," with the name of the person cancelling the same, and shall thereafter be void, and shall not again be put in circulation. Limitation of liability — Prohibited : That no public warehouseman shall insert in any public ware- house receipt issued by him any language limiting or modify- ing his liabilities or responsibilities as imposed by the laws of this state, excepting not accountable for leakage or deprecia- tion. Negotiability : That the receipts issued against property stored in public warehouses, as herein provided for, shall be negotiable and transferable by indorsement in blank or by special indorsement, and delivery in the same manner and to the same extent as 294 LOUISIANA LAWS. bills of exchange and promissory notes now are, without other formality, and the transferee or holder of such public ware- house receipt shall be considered and held as the actual and exclusive owner, to all intents and purposes, of the property herein described, subject only to the lien and privilege of the public warehouseman for storage or other warehouse charges; provided, however, all such public warehouse receipts as shall have the words ''not negotiable" plainly written or stamped on the face thereof, shall be exempt from the provisions of this section; and provided, further, that no public warehouse- man shall issue warehouse receipts against his ow'n property in his own warehouse, but upon sale of such property in good faith, may issue to the purchaser his ])ul)lic warehouse receipt in form and manner as herein provided, which issue and de- livery of the receipt shall be deemed to complete the sale, and shall constitute the purchaser full owner, as aforesaid, of the property therein described. Nothing in this last clause shall be construed to exempt the issues of said receipt for his own goods in his ow^n public warehouse from complying wdth and being subject in all respects to all the other sections and pro- visions of this act. Penalties : That any public warehouseman who violates any of the pro- \dsions of this act shall be deemed guilty of a criminal offense, and upon indictment and conviction thereof shall be fined at the discretion of the court in any sum not exceeding five thou- sand dollars fSo,000) or be imprisoned in the state penitentiary not exceeding five years, or both. Act not applicalile to private warehonses : That nothing in this act shall be construed to apply to private warehouses, or to the issue of receipts by their owners or man- agers under existing law^s, or to prohibit public warehousemen from issuing such receipts as are now issued by private ware- housemen under existing laws, provided, that such private re- ceipts issued by public warehousemen shall never be written on a form or blank indicating that it is issued from a public ware- house, but shall on the contrary bear on its face in large char- LOUISIANA. 295 acters, the words " Not a Public Warehouse Receipt," in ad- dition to any form of words imposed by laws heretofore in force. Repealing clause : That all laws and parts of laws in conflict with this act be and are hereby repealed in so far as they conflict. Laws, 1888, No. 156. Granting a special lien and privilege to persons who sell ag- ricultural products of the United States in chartered cities and towns of this state, on said products for the space of five days after the delivery of the same ; and to repeal conflicting laws. Be it enacted by the General Assembly of the State of Louisiana : That any person who may sell the agricultural products of the United States in any chartered city or town of this state shall be entitled to a special lien and privilege thereon, to secure the payment of the purchase money for and during the space of five days only after the day of delivery ; within which time the ven- dor shall be entitled to seize the same in whatsoever hands or place it may be found, and his claim for the purchase money shall have preference over all others, and especially over any warehouse pr'vilege or claim for warehouse cha ges, or any priv- ilege or claim by the holder of any warehouse receipt. If the vendor gives a written order for the delivery of any such prod- uce and shall say therein that it is to be delivered without vendor's privilege, then no lien shall attach thereto. Be it further enacted, etc. : That all laws and parts of laws, and especially any part of act No. 156 of the Legislature of 1888 — approved July 12, 1888 — in conflict with this act, be and the same are hereby repealed. Laws, 1890, No. 63. An act authorizing the sale by warehousemen of goods re- maining in warehouses, on which charges remain due and un- paid; to provide for the disposition of the proceeds, and to re- peal conflicting laws. That whenever any goods, wares or merchandise shall have remained on storage in any warehouse in this state, for a period of one year, and the charges thereon or storage and expenses shall have remained due and payable for a period exceeding 290 LOUISIANA LAW'S. six months, it shall be lawful for the warehouseman to gi^•e notice in writing of tliirty days to the person who has stored said goods, to pay such charges and expenses; and if the same are not paid within thirty days after giving such notice, it shall then be lawful for such warehousemen to sell said property for cash, at public auction, by a duly licensed auctioneer after having duly advertised the terms, time and place of such sale for ten days in the manner required for judicial advertisements of the sale of movables; provided that a separate advertise- ment of each article to be sold shall not be required, but one general advertisement shall be sufficient to authorize the sale of said property, the name or names of the parties storing the same, however, to be given. That the aggregate proceeds of sales under such advertise- ment shall be applied in the first place to the payment of charges and expenses for storage and expenses for advertise- ment and sale; and the residue if any shall be retained by the warehouseman for the period of three months from the date of sale, and if, during the said period, the owners of any of the property sold shall present themselves, they shall be entitled to receive the proceeds of the sale of their property, less the de- ductions hereinbefore authorized to be made, and the balance, if any, remaining unclaimed after the expiration of three months as aforesaid shall be paid into the treasury of the state of Louisiana to the credit of the general school fund of the state of Louisiana to be disbursed in such manner as other money to the credit of the general school fund of Louisiana, and the said warehouseman shall be released from all liability on account of the property so sold. That no warehouseman shall have the right to take the bene- fit of this act \mless the first section of this act shall have been printed or WTitten on the receipt given for the property. That all laws or parts of laws, contrary to or inconsistent with the provisions of this act, be and the same are hereby re- pealed. Laws, 1894, No. 85. All pledges of movable property may be made by private writing, accompanied by actual delivery; and the delivery of property on deposit in warehouses, shall pass by private assign- LOUISIANA. 297 ment of the warehouse receipt, so as to authorize the owner to pledge such property ; and such pledge so made, without furthei' formalities, shall be valid, as well against third persons as against the pledgees thereof, if made in good faith.'' Art. 3158 R. Civ. Code. Note. The charters of some cities and towns in Louisiana vest munici- pal authoritieB with certain control over warehouses located therein. 298 LOUISIANA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. B. Warehouseman — Responsibility in ijenei'al. It seems that a warehouseman will be held responsible for the loss of property stored, in all cases where he fails to show that the loss occurred without his fault. Thomas v. Darden, 22 La. A. 413. Saine — No presumption of oumership. The presumption of ownership resulting from possession is not applicable to factors, brokers and other avowed agents, with respect to money or property intrusted to them for the special purposes of their vocation. Succession of Hardy Boisblanc, 32 La. A. 109. Same — Goods held subject to order of depositor. A depositary is bound, in the absence of any judicial pro- ceedings, to hold the property deposited, subject to the order of the depositor, C. C. sees. 2920, 2921 and 2929. A deposi- tary cannot therefore be held liable in damages, in the absence of fraud, for obeying the ordei's of the depositor. Britton v. Aymar et al., 23 La. A. 63. Same — Failure to obey instructions — Liability. Failure to obey instructions in regard to goods intrusted to the care of commission merchants will cause them to incur a liability to the owners for the value thereof. Copes v. Phelps & Co., 24 La. A. 562. Common carrier not entitled to license as warehousemen. Permanent storage is not incidental to railroad business, hence carrier is not entitled to a license as warehouseman under Act No. 101 of 1S86, on ground that the storage of goods is incidental to its business. State v. Southern Pac. Co., 52 La. A. 1822. Defaidt by warehousemen — Recovery. The putting in default of a depositary is a prerequisite to LOUISIANA. 29!) enable the depositor to recover, where the thing deposited has been lost or destroyed. Jame^ v. Greenwood, 20 La. A. 297. Title — Depositary cannot impeach. A depositary cannot be permitted to introduce evidence to impeach the title of the depositor. Graham & Anderson v. Williams, 21 La. A. 594. Goods pledged by factor — Oivner protected — Surrender under judicial process — Warehouseman not guarantor of the title of stored property. The owner of cotton shipped the same to his factor with the direction to hold it until a better price could be obtained. With- out the consent of the owner, the factor stored the property and borrowed money upon the warehouse reccnpt therefor as collat- eral. The factor subsecjuently failed. In an action, brought by the owner, against the lender, the former obtained judgment and then possession of the property, giving bond on appeal. The appellate court affirmed the judgment of the lower court, holding that the lender, by the indorsement of the warehouse receipt to him, took only such title as the factor had, and that the pledge by the factor w^as WTongful and invalid as to the plaintiff. Further, that the delivery, by the warehouseman, of the property under a judicial writ was, in legal effect, a com- pliance with the terms of the warehouse receipt, which stated that delivery would only be made upon the return of such re- ceipt. Insurance Co. v. Kigcr, 108 U. S. 352. Conversion — Responsible for value. A depositary who sells sugar deposited with him and converts the proceeds to his own use is responsible to the owner for its value. Short v. Lapey reuse, 24 La. 45. Same — Sale by depositary a theft. A depositary who sells the deposit conunits a theft. Mc- Gregor et al. v. Ball, 4 La. 289. E. Factor and principal— Nature of their relations. The relation between factor and principal is not the ordinary i^OO LOUISIANA DECISIONS. relation between debtor and creditor. It is a relation of trust and confidence. It creates a contract in the nature of iluit which is known, in the civil law, as the irregular dei^osit. The factor is to be considered as undertaking to hold the funds confided to him by his principal as subject to his order, and to be ready to pay them over to him, deducting only his own charges and advances made in the course of his (Muployment, and he cannot retain the funds on the ground of having paid other claims against the principal, which he had received notice from the principal not to pay. Nolan v. Shaiv & Co., 6 La. A. 40. Factors — Nature of contracts with. The contract implied between principal and factor, in the ordinary transaction of business, partakes, in some respects, (jf the nature of the contracts both of loan and irregular de- l)osit. Their current accounts are necessarily provisional until settled, and even after settlement may be rectified by either party on account of errors or omissions, subject to which every settlement is held to be made. Bloodworth v. Jacobs et ah, 2 La. A. 24. Same — Same — Effect upon third -persons. It was never contemplated by the lawmakers that the mere fact that a factor should be the holder of a warehouse receipt, taken out by himself in his own name, should confer upon par- ties the right to deal with a factor, and to absolutely ignore, under full protection, the relations which he has to the prop- erty and to its owner. Holten & Winn v. Hubbard & Co. et ah, 49La. A. 715. Same — Pledge — Own debts. A factor cannot pledge for his own debts, property consigned to him, nor can he give it in payment for his own debts. Had- win V. Fisk, 1 La. A. 74:;Lallandc v. His Creditors, 42 La. A. 705; Holton & Winn v. Hubbard & Co. et al., 49 La. A. 715. Same — Same — Sam e — Defense. A factor cannot pledge goods of his principal's for his own LOUISIANA. 301 debts, and where the pledgee is cognizant of the ownership, lie cannot in an action by the owner, avail himself of the defense that he has been misled by any act or omission of such owner. Bonniot & Co. v. Fuentes & Co., 10 La. A. 70. Same — Same — Creditor of owner. A factor who holds a warehouse receipt may pledge the goods covered by the receipt, to the extent that he is a creditor of the principal. Chambers, Holton & Winn v. Hubbard & Co. et al., 51 La. A. 887. Same — Investment of customer's funds. A cotton factor, who by direction of his customer, invests the latter's funds, is not responsible to him for the illegality of the investment. Allen, West & Brush v. Wheatstone et at., 35 La. A. 846. Commission merchants — Own debt — Trustee. A factor or commission merchant who resides in the city of New Orleans, and who accepts a consignment from a person acting as trustee, in a state where such titles are universally recognized, cannot compensate the claim against himself for the proceeds of the articles consigned, with a debt held by him against the person from whom the trust is derived. Bell v. Powell, 23 La. A. 796. I. Change of form, — Property in principal. The product or substitute of a thing follows the nature of the thing itself, so long as it can be ascertained to be such. So the property of a principal intrusted to a factor for a special purpose is considered still to belong to the principal, notwithstanding any change of form it may have undergone, so long as it can be identified. Bloodworth v. Jacobs et al, 2 La. A. 24. N. Loss by fire — Liability — Diligence. A depositary is not answerable, in any case, for acts produced by overcoming force, such as fire, unless he fail to use proper diligence. McCullom v. Porter, Thomas & Foley, 17 La. A. 89. 302 LOUISIANA DECISIONS. Liability for cotton unaccounted for. The proprietors of a cotton 3'ard and press will be held re- sponsible for cotton deposited in their warehouse, and which is not accounted for. Marr et al. v. Barnes, 1 R. 190. Prior and subsequent damage to goods — Burden of proof. Where defendant shows that cotton was damaged before he was authorized to take ])ossession of it, it is incumbent on plain- tiff to show that other damages were sustained and the extent thereof, before he can recover. Farley, Jury & Co. v. Van- wickle & Co., 19 La. A. 9. Overpowering force — Means to preserve the goods. In order to avoid liability for the loss of cotton on storage, the warehouse keeper must show that the loss occurred without his fault. He cannot be relieved by showing simply that the loss occurred by an overpowering force. He must also show that he used all possible means to preserve it. Schwartz, Kauffman & Co. v. Baer, 21 La. A. 601 ; Levy et al. v. Bergeron, 20 La. A. 290. Same — Same — Insufficient protection. Where the defendant, the keeper of a public warehouse, re- ceived a lot of cotton on storage, and gave a receipt therefor, it is not sufficient excuse for not delivery, when demanded, for him to show that soldiers were encamped near the warehouse and that it was commonly believed that they and the freedmen were stealing the cotton; that the back door of the warehouse could easily have been forced open at night, and the cotton taken out, and then closed again, without being discovered in the daytime. Thomas v. Darden, 22 La. A. 413. Same — Depositary not liable. Where the depositary is not able to resist the seizure and con- sequent custody of deposited cotton by the authorities of the United States, he could not be held liable in damages for his failure to deliver it upon demand by depositor. Britton v. Aymar et al, 23 La. A. 63; McCullom v. Porter et at., 17 La. A. 89; Yale v. Oliver & Drake, 21 La. A. 454. LOUISIANA. 303 Same — Burden of proof. Where defendant luiving shown a sufficient legal excuse (the cotton having been taken by the federal forcesy for not deliver- ing the property, the burden of proof falls on plaintiffs, before they can recover, to sh(nv that the cotton was lost to them through the fault or neglect of defendant. Babcock & Ker- noclian v. Murphy, 20 La. A. 399. When not overpowering force, default not necessary. Where an agent or mandatory, or person having property on deposit at a time when he is not menaced by any overpowering force, allows the property to be taken from his possession with- out the consent or authority of the owner, he becomes respon- sible therefor, and the putting of him in default by demand and refusal is unnecessary. James v. Greenwood, 20 La. A. 297. 0. Same — Measure of damages — When cotton held to await better prices. Where cotton was stored and held, by a warehouseman, by direction of the owner in order to obtain better prices than those prevailing, and the same was converted and sold, the measure of damages is not the price obtained for the cotton but the best price prevailing within a few months after the sale. Pierson v. Canal Bank, 106 La. 305; Pierson v. Metropolitan Bank, 106 La. 298. P. Insurance — Custom. Where the practice or custom of a factor is to insure consign- ments of produce, and this is brought to the knowledge of his consignor by uniform charges for insurance in his accounts rendered, the factor will be deemed to have continued that custom until he gives notice to the consignor of the change, and he is responsible for any loss, consec^uent upon his failure to insure, before such notice reaches the consignor. Area & Lyons V. Milliken, 35 La. A. 1150. 304 LOUISIANA DECISIONS. Warehouse receipt — Issue to factor and in his name and used as collateral— Owner protected. The owner who ships under a bill of lading and hands the bill to his factor may be said to have more or less connection with tliat instrument when it is subsequently advanced by a tliird party as the basis of rights predicated by him upon possession of the bill by the factor, particularly if the delivery of the prop- erty is directed to be made to the factor or his order. If after the cotton has been received and the bill of lading therefor has fully carried out its purpose of delivery, the factor stores the cotton, takes a receipt for the same in his own n;ime from the warehouse and makes use of the receipts as a basis for credit, the warehouse receipt evidences a contract with which the owner is disconnected; it is an original transaction between the factor in his own name and the j^roprietors of the warehouse to which the owner is not "a party" though he has an interest in the subject-matter. It is clear that any contract by which one person attempts to divest another of his {property, without the owner's consent, express or implied, or through due process of law, is without force. Holton & Winn v. Hubbard et al., 49 La. A. 715. Same — Same — hiterest of factor protected. To the extent that a factor is a creditor of his principal and holds a warehouse receipt for his claim, the principal is without interest to question the form of the receipt; a factor, being, under operation of law, subrogatetl to the rights of his principal to the extent of which he is his principal's creditor. Chambers, Holton & Winn v. Hubbard & Co. et al., 51 La. 887. Same — Negotiability — Pledge by factor. A warehouseman had issued receipts for cotton stored with him to one who represented himself as the owner thereof, but who was in reality only the factor of the owner and had no in- terest in the property stored. Such depositor subsequently pledged the receipts to secure the payment of a loan made to him. In an action brought by the owner against the lender, LOUISIANA. 305 it was held that the latter, by the negotiation of the receipts to him, took only such title as the factor had, and a jiulgiiiont awarding the property to the owner was affirmed. The pos- session and transfer of the receipt held to be equivalent only to possession and transfer of the property itself. Insurance Co. v. Kiger, 103 U. S. 352. Same — Rights of pledgee and of administrator of depositor. A warehouseman issued a warehouse receipt for two hundred and twenty-five bales of cotton then actually in his warehouse but without specification on the receipt of the particular bales of cotton received, deliverable on surrender of the receipt, in- dorsed by the original holder. The depositor pledged this re- ceipt to one of his creditors by indorsement of the receipt, and the pledgee gave immediate notice of the pledge to the ware- houseman. The depositor subsequently deposited other cotton in the same warehouse, receiving receipts for the same, also without designating the particular cotton covered by it. He then died. At the time of his death only seventy bales remained in the hands of the warehouseman, the balance having been de- livered under orders of court to parties who had successfully claimed ownersliip thereof. In a contest for the remaining cotton between the pledgee of the warehouse receipt and the administrator of the succession of the depositor, held that the former was entitled to recover the cotton (citing Cutters v. Baker, 2 La. A. 572; Williams v. Pmer, 10 La. A. 277; Cormmach V. Floyd, 10 La. A. 351 ; Connery v. Webb, 12 La. A. 272; Newton V. Gray, 10 La. A. 67). State Nat. Bank v. Bryant & Mathers, 49 La. A. 467. Same— Pledge of— Statute must be strictly complied with— Re- ceipt must represent specific goods. Act No. 72 of 1876 requires that warehouse receipts shall be paragraphed ' • for hypothecation " and section 4 of the act requires the making of an affidavit. In a case where there was a failure to comply with the requirements of these two sections, it was held that there was not a valid pledge of the property repre- sented by the receipts. A warehouse receipt in the form pre- ^0 306 LOUISIANA UKCISIONS. scribed by the above act must stand for the goods themselves, in such a way that its deUvery will operate as a delivery of the goods ; but in order that this should be, the receipt must repre- sent the specific goods, or, at any rate, must represent a specific part of a common, or uniform mass ; and a lot of cotton bales cannot be treated as a common or uniform mass, especially when, in addition to the physical disparity of the component bales there is a moral and legal disparity. The nature of the pledge of warehouse receipts is regulated in this state by the above mentioned act and non-conformity with the statute is fatal to any attempted pledge. Pierson v. Metropolitan Bank, 106 La. 298; Pierson v. Canal Bank, 106 La. 305. Same — Deposited by a factor and used as collateral by him — Judgment — Warehouseman protected. A warehouseman who had received cotton on deposit from a factor issued his warehouse receipt for the same, dehverable to the depositor or his order, only on surrender of the certificate. The factor who had deposited the cotton in his own name in the warehouse pledged the warehouse receipt to one of his own creditors. Certain parties claimed a portion of the property in the hands of the warehouseman, alleging that the factor was without authority to pledge the cotton. The warehouseman called upon the factor who had deposited the cotton and on the holders of the warehouse receipts, that they might oppose the restitution, but judgment was rendered ordering the ware- houseman to surrender the cotton to the claimants. Held that the delivery of the cotton by the warehouseman to the claim- ants, under the judgment, protected him against any liability upon the receipts. C. C. 2934. Bank v. Bryant & Mathers, 49 La. A. 467. Same — Attached to draft — Surrender on acceptance. In the absence of instructions a collecting agent is au- thorized to infer that warehouse receipts were annexed to a draft to secure its acceptance, and were to be surrendered upon acceptance. Moore & Sinnott v. La. Nat. Bank, 44 La. A. 99. LOUISIANA. 307 R. Bills of lading — Fundion.s of. The function of a bill of lading is different from that of ordi- nary commercial paper. It is not a representative of money, used for the transmission of money, or the payment of debts. It is merely a contract for the performance of a certain duty —a representative of goods or personal property to be delivered. Lallande v. His Creditors, 42 La. A. 705. Same— Stipulations against loss by fire— Cannot excuse negli- gence. A stipulation in a bill of lading, for the transportation of cot- ton, that the carrier shall not be liable for damage occasioned by fire, will not exonerate it from responsibility for loss or dam- age from this cause if the fire be occasioned through the fault or ordinary negligence of the agents, servants or employees of the carrier. Maxwell & Putnam v. Southern Pac. R. R., 48 La. A. 385. Same — Not negotiable paper. Notwithstanding, by statute, bills of lading may be made negotiable in form, they do not become possessed of all the incidents of negotiability that are attributes of bills and notes. Lallande v. His Creditors, 42 La. A. 705. 308 MAINE LAWS. CHAPTER XIX. MAINE. LAWS PERTAINING TO WAREHOUSEMEN. How far shipper, factor or aj^ent shall be considered the owner of goods under his control : Every person, in whose name merchandise is forwarded, every factor or agent intrusted with the possession of any bill of lad- ing, custom house permit, or warehouse keeper's receipt for the delivery of such merchandise, and every such factor or agent not having the documentary evidence of title, who is intrusted with the possession of merchandise for the purpose of sale, or as security for advances to be made thereon, shall be deemed the true owner thereof, so far as to give validity to any lien or contract made by such shipper or agent with any other person for the sale or disposal of the whole, oi- any part of such mer- chandise, money advanced, or negotiable instrument, or other obligation in writing, given by such person upon the faith thereof. Rev. Stat. Me. 1883, ch. 31, sec. 1. Not to extend to prior demands against agent : No person, taking such merchandise in deposit from such agent as security for antecedent demand, shall thereby acquire or enforce any right or interest therein other than such agent could then enforce. Id. ch. 31, sec. 2. Rights of the true owner in such cases : But the true owner of such merchandise, upon repayment of the money so advanced, restoration of the security so given, or satisfaction of all legal liens, may demand and receive his property, or recover the balance remaining as the produce of the legal sale thereof, nftor deducting all proper claims and expenses thereon. Id. ch. 31, sec. 3. MAINK. H09 Title to soods in itossessioii of wjirclKMisfincii ]>ass<'s to purchaser, or pN'dgee, by hidorseiiieut ot warchoiiseiiiairs receipt : The title to imMvhaiuliso stored in a public warohousc, or on the wharves and premises of the warehouseman, and in his pos- session, passes (o a purcliascM- or pledgee, in good I'aitli, by the indorsement to such purchaser, or pledgee, l>ut not in blank, of the warehouseman's recei|)t therefor, signed by the person to whom the icceipt was originally given, or by an indorsee of the receipt, and i-ecorded in the books of the warehouseman with whom such merchandise is stored. Id. ch. 31, sec. 4. Account of warehouse transactions to be liept : J^^ach warehouseman shall keep books in which shall be en- tered an account of all transactions relating to the warehousing, storing and insui'ing ol' merchandise, the issuing of warehouse- man's certificates, and the indorsement thereof, which books shall be open to the inspection of any person interested in the property stored in his warehouse. Id. ch. 31, sec. 5. (jloods attachable as goods of person receipted to : Merchandise stored with a public warehouseman may be at- tached as the prop(M'ty of tlu^ person naiiie(l in tlu> warehouse- man's receipt th(>rofor, when no indorsement of such receipt has been recorded on th(> books of the warehouseman; and where such indorsement has Ikhmi I'ecorded, may be attached as the property of the last indorsee of tlu^ receipt, shown by the books of the warehouseman, by leaving at the warehouse where the merchandise is stored a coi)y of the writ, with a copy of so much of the olHcer's return thereon as relates to the attacliment of such merchanchse. And an attachment so mad(^ is \'alid against any transfer thereof, the evidence of which is not re- corded in the books of the waivhouseman, when the co|)y of tlie writ is so left. Id. ch. 31, sec. 6. Penalty for disposint; of warehouseman's certificate with- out disclosing attacliment : Whoever indorses or assigns, or otherwise disposes of a ware- houseman's certificate, aftei- his interest in tlie pi-ojierty de- scribed in such certificate has been attached, without disclosing 310 MAINE LAWS. the attachment, thereof to the person to whom such certificate has been indorsed, assigned, or (Hsposed of, shall, if he has knowledge of such attachment, be punished by fine not exceed- ing five thousantl dollars and imprisoned in the state prison not exceeding three years, or by imprisonment in jail not ex- ceeding one year. Id. ch. 31, sec. 7. Who is a public warehouseniau : Whoever advertises or offers to receive merchandise, on storage for other parties, is a public warehouseman for the purposes of this chapter. Id. oh. 31, sec. 8. Grraiu, etc., stored in public warehouse becoming mixed — Proceedings : When grain or other property is so stored in a public ware- house that different lots or parcels are mixed together, so that the identity of the same cannot be accurately preserved, the warehouseman's receipt for any portion thereof shall be deemed a valid title to so much thereof as is designated in said receipt, without regard to any separation or identification. Id. ch. 31, sec. 9. The following section is hereby added to chapter thirty-one of the Revised Statutes : Goods, etc., remaining in wareliouse one year, may be sold at public auction— Demand shall first be made tor pay- ment of charges upon person depositing goods — Notice shall be given of sale — How proceedings of sale shall be disposed of: "Whenever goods, merchandise or an}^ articles of personal property shall remain in a public warehouse for one year after the expiration of the time for which the charges thereon shall have been paid, the same may be sold at public auction, subject to the following conditions: the warehouseman shall first demand payment of the charges thereon by registered letter directed to the person who shall have deposited such goods, merchandise or articles of personal property in said warehouse, if such person shall have left with the warehouseman his address to which the MAINE. 811 letter may be directed. After such demand, or in cases where no address shall have been given to the warehouseman to which such letter may be directed, the warehouseman shall give thirty days' notice of the time and place of sale in a pul^lic newspaper published in the city or town where the warehouse shall be, or if no public newspaper shall be published in such city or town, then in any public newspaper published in the county in wliich such city or town shall be; said notice shall contain a brief de- scription of the property to be sold, with such marks thereon as may serve to identify it, if it shall be so marked, together with the name of the person depositing such articles in said warehouse and the name of the owner thereof if known; and shall specify the time after the expiration of said thirty days and the place, which shall be in the city or town where the ware- house shall be, at which the sale shall be made. The proceeds of such goods, merchandise or articles of per- sonal property so sold, after deducting the charges thereon, including the cost of publishing such notice and sale, shall be placed to the credit of the owner of the goods, merchandise or other articles of personal property sold, if known, otherwise to the credit of the person depositing said goods, merchandise or articles of personal property in the books of the warehouseman making the sale, and shall be paid to the owner thereof on de- mand, and the warehouseman shall not be liable for any greater sum than shall be received from said sale, less the charges thereon. Laws, Me. 1897, ch. 304, p. 339. Larceny by night in a dwelling honse, or at any time breaking and entering certain other buildings, vessel, or railroad car — Punishment : Whoever, without breaking, commits larceny in the night- time, in a dwelling house, or building adjoining and occupied therewith, or breaks and enters any office, bank, shop, store, warehouse, barn, stable, vessel, railroad car of any kind, court- house, jail, meetinghouse, college, academy, or other building for public use or in which valuable things are kept, and commits larceny therein, shall be punished by imprisonment for not less than one nor more than fifteen years; and when the offense is committed in the day-time, by imprisonment for not more than 312 MAINE LAWS. six years, or by a fine not exceeding one tliousand dollars. Rev. Stat. Me., 1883 ch. 120, sec. 2. Business, travelling and recreation prohibited on the Lord's day: Whoever, on the Lord's day, keeps open his shop, workhouse, warehouse, or place of business, travels, or does any work, labor, or business on that day, except work of necessity or charity; uses any sport, game or recreation ; or is present at any dancing, public diversion, show, or entertainment, encouraging the same, shall be punished by fine not exceeding ten dollars. Id. ch. 124, sec. 20. Penalty for uttering forged receipts of delivery or deposit of goods, bonds, or securities : Whoever fraudulently makes or utters a receipt or other writ- ten evidence of the delivery or deposit or any grain, flour, pork, wood, or other goods, wares, or merchandise in any warehouse, mill, store, or other building, when the quantity specified therein had not, in fact, been delivered or deposited in such building; or so makes or utters any receipt or other written evidence of the delivery or deposit with him of any bonds or other securities or evidences of debt, when the same have not, in fact, been so delivered and deposited, shall be punished by imprisonment for not less than one year nor more than ten. Id. ch. 126, sec. 2. MAINE. 3iy DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Bailee may sue in his own name. A bailee of personal property, which is injured while in his possession, may sue in his own name and recover the amount of the injury in an action against the wrongdoer. Little v. Fossett, 34 Me. 545. Same — Replevin . The general owner of property in the hands of a bailee may maintain replevin against an officer, who, having attached the same as the property of the bailee, puts it in the hands of a receipter, by whom it is sufferefl to go back into the hands of the bailee— the attachment being not thereby dissolved. Sinall V. Hutchins, Jr., 19 Me. 255. Same — Bailee can give no lien. A bailee can give no lien upon the property bailed, as against the owner. Sinall v. Robinson, 69 Me. 425. Same— Stipulation against loss by fire— Posted notices. A bailee may properly stipulate that he will not be responsi- ble for goods lost by fire and this stipulation may be shown by proving a notice to this effect brought to the attention of the bailor. Reinstein v. Watts, 84 Me. 139. Same — Assignment by bailor — Notice. It is not a contradiction of the rule that a bailee shall not dis- pute his bailor's title to allow him to show that since the bail- ment the title has been assigned to another. Roberts v. Noyes, 76 Me. 590. R. Bill of lading — Definitiori. A bill of lading in the usual form is a receipt for the quantity of the goods shipped, and also a promise to transport and de- liver the same. O'Brien v. Gilchrist, 34 Me 554. 314 MAINK DECISIONS. Same — Parol proof. In so far as a bill of lading is a receipt, it may in a suit be- tween the parties to it be controlled by parol evidence. Id. Same — Stipulations against negligence. Common carriers cannot sti])ulate for exemption from re- sponsibility for losses occasioned by the negligence of them- selves or their servants. Sanger v. Portsmouth, S. P. & E. R. R. Co., 31 .Me. 228; Willis et ah v. Grand Trunk R. R. Co., 62 Me. 488; Railroad Co. v. Lockwood, 17 AVallace, 357. Same — "Good order ^' construed — Burden of proof. The signing of a bill of lading, acknowledging to have re- ceived the goods in question in good order and well conditioned, is prima facie evidence that, as to all circumstances which were open to inspection and visible, the goods were in good order, but it does not preclude the carrier from showing, in case of loss or damage, that the loss was produced from some cause, which existed, but was not apparent, when the goods were received, and which, if shown satisfactorily, will discharge the carrier from liability. But in case of such loss or damage, the pre- sumption of law is that it was occasioned by the act or default of the carrier, and the burden of i)roof is upon the carrier to show that it arose from a cause existing before receipt of the goods for carriage. Tarhox et al. v. Eastern Steamboat Co., 50 Me. 339. Same— Sale before arrival of goods— Stoppage in transitu. If a consignee assigned a bill of lading to third person for a valuable consideration, the right of the consignor to stop the goods in transitu as against such assignee is divested. This held to be the established rule of commercial law in England and in this country. The above is true when the assignment is made for a pre-existing debt. Lee v. Kimball, 45 Me. 172. Bills of lading— Negotiability. Bills of lading are transferable by indorsement, and when thus transferred by the consignee, to a bona fide purchaser, without notice of adverse claims, they pass the legal title, and operate as a sale and transfer of the property to the indorsee. Winslow v. Norton, 29 Me. 419; Lee v. Kimball, 45 Me. 172. MARYLAND. 31o CHAPTER XX. MARYLAND. LAWS PERTAINING TO WAREHOUSEMEN. Bills of lading to be iiei?otiable iiistriiiiionts : All bills of lading and all receipts, vouchers or acknowledg- ments whatsoever in writing, in the nature or stead of bills of lading for goods, chattels or commodities of any kind, to he transported on land or water, or on both, which shall be ex- ecuted in this state, or being executed elsewhere, shall provide for the delivery of goods, chattels or commodities of any kind within this state, and all warehouse, elevator or storage receipts whatsoever for goods, chattels or commodities of any kind stored or deposited, or in said receipts stated or acknowledged to be stored or deposited for any purpose in any warehouse, elevator or other place of storage or deposit in this state, shall be and they are hereby constituted and declared to be negotiable instruments and securities, unless it be provided in express terms to the contrary on the face thereof, in the same sense as bills of exchange and promissory notes, and full and complete title to the property in said instruments mentioned or de- scribed, and all rights and remedies incident to such title, or arising under or derivable from the said instrument, shall enure to and be vested in each and every bona fide holder thereof for value, altogether unaffected by any rights or equities whatso- ever, of or between the original or any other prior holders of or parties to the same, of which such bona fide holder for value shall not have had actual notice at the time he became such. PubHc General Laws, Md. art. 14, sec. 1. Conclusive evidence of their contents : Every instrument of those mentioned and described in sec- tion 1, which shall be issued by any person or corporation, or by any agent or officer of any person or corporation authorized 316 MARYLAND LAWS. to issue the same on his or its behalf, or authorized or permitted by such person or corporation to issue hke instruments on liis or its behalf for goods, chattels or commodities, actually re- ceived for transportation or held on storage, as the case may be, shall be conclusive evidence in the hands of any bona fide holder for value of such instrument, who shall have become such without actual notice to the contrary, that all of the goods, chattels and commodities in said instrument mentioned or described, had been actually received by and were actually in the possession and custody of such person or corporation at the time of issuing the said instrument according to the tenor thereof, and for the purpose and to the effects therein stipulated or provided, not- withstanding that the fact may be otherwise, and that such agent or officer may have had no authority to issue any such instrument on behalf of his said principal, except for goods, chattels or commodities actually received and in possession at the time of such issue. Id. sec. 2. Storage receipts also to be negotiable : Every acceptance of an order and every other voucher what- soever, for any goods, chattels or commodities as on storage or deposit, whereby the custody or possession of such goods, chat- tels or commodities shall be acknowledged or certified by any warehouseman, wharfinger or other person or corporation within this state, and which acceptance or voucher shall not on its face provide or stipulate in terms that it shall not be negotiable, shall be held and taken when issued to be a negotiable receipt and instrument to all intents and effects within the meaning and operation of this article. Id. sec. 3. When held to be completely issued : Any instrument declared negotiable by this article shall be held and taken to have been issued within the meaning of this article when it shall have been signed and shall have been de- livered out of the custody of the person or corporation to be charged or bound by the same, or of his or its agent or officer aforesaid. Id. sec. 4. Not to be issued until goods are actually delivered : No person or corporation, or agent or officer of any person MARYLAND. 317 or corporation in this state, shall issue any bills of lading, re- ceipt, acknowletlgnient or voucher whatsoever, for goods, chat- tels or commodities of any kind to be transported on land or water, or on both, or any receipt, acceptance of an order or other voucher for goods, chattels or connnodities, as on storages or deposit in this state, until and unless the whole of the said goods, chattels and connnodities shall have been actually received to be transported by such person or corporation in the one case, or shall be actually in the i)ossession or custody, or upon the premises, or undei- the absolute and exclusive control of such person or corporation in the other case at the time when such instrument shall be issued; and any principal person or corpo- ration, or any agent or officer whatsoever, of any person or corporation, willfully violating this section, or any of the pro- visions thereof, shall be guilty of a misdemeanor, and on con- viction thereof shall be subject to a fine of not less than one thousand nor more than five thousand dollars, in the discretion of the court. Id. sec. 5. Above section construed— Wliat is a warehouse receipt witliin its nieaniuj^ : The following held not to be a storage or warehouse receipt within the meaning of Act of 1876, ch. 262 (above) : "Received on storage in my canning house, from E. B. M. & Co., seventeen hundred and twenty cases, 3x tomatoes, my own packing. Deliverable to the order of E. B. M. & Co., only on production of this receipt, properly indorsed." State of Maryland v. Bryant, 63 Md. 66. Duplicates — Delivery of goods — Penalties : No warehouseman or corporation or person whatsoever hav- ing issued or caused to be issued or having outstanding, and issued by any agent or officer of such person or corporation as aforesaid, any receipt, acceptance of order or other voucher for goods, chattels or commodities as on deposit or storage with or in the custody or on the premises, or under the control of such person or corporation, shall issue any other receipt, acceptance of order or other voucher whatsoever for the same, or ans part thereof until the said first issued instrument shall 318 MARYLAND LAWS. have been returned and cancelled or destroyed; and no person or corporation whatsoever having issued or having outstanding as aforesaid, any such receipt, acceptance of order or other voucher aforesaid, and no agent or officer of any such person or corporation shall part with, deliver or remove or permit to be delivered or removed, the goods, chattels or commodities in such instrument named or described, or any part thereof, except only to or by the holder of said instrument, or upon his order, and upon the presentation of said instrument with his indorsement in every case, or without cancelling or destroying said instrument in case of complete delivery or removal or indorsing thereon the quantity and description of the goods, chattels or commodities delivered or removed, and the names of the persons to whom delivered, or by whom removed in case such delivery or removal shall be partial onl}^; and any princi- pal, person or corporation or agent or officer of any person or corporation willfully violating this section or any of the pro- visions thereof, shall be guilty of a misdemeanor, punishable by a fine of not less than one thousand, nor more than five thousand dollars in the case of a corporation, and in the case of an individual by a fine of not less than one hundred, nor more than five thousand dollars, and imprisoned in the peni- tentiary for a period of not less than one year, nor more than three years, in the discretion of the court; provided, however, that nothing herein contained shall be construed to prohibit the bona fide issuing of duplicate receipts, acceptances or other vouchers aforesaid, with the word " duplicate " conspicuously written or printed upon the face thereof, in the stead of any original outstanding receipts, acceptances or other vouchers aforesaid, which may have been lost, destroyed or mislaid. Id. sec. 6. Civil remedies upon : No person having any claim, right or action whatever under this article or otherwise upon or under any instrument declared negotiable thereby, or by reason of the issuing, negotiation or holding of said instrument, or the doing of any matter or thing by this article forbidden or made punishable, shall be in any way hindered or precluded from asserting or maintain- MARYLAND. 319 ing the same by or because of any prohibitory or punitive pro- vision in this article contained. Id. sec. 7. Fraud— Breach of trust— Bills of lading— Elevator of warehouse receipts : If any person or persons, shall on his or their own behalf, or shall for or on behalf of any other person or persons, or shall for [or] on behalf of any firm, co-partnershij) or corporation, receive, accept or take in trust, from any person, persons, firm, co-partnership or corporation, any warehouse receipt or ele- vator receipt, or bill of lading or any document giving or pur- porting to give title to or the right to possession of any goods, wares, merchandise or other personal property of any kind, under or subject to any written contract or agreement express- ing the terms and conditions of such trust; and if such person or persons so receiving any warehouse receipt or elevator re- ceipt, bill of lading or any document giving or purporting to give title to or the right to possession of any goods, wares or merchandise or other personal property of any kind shall, in violation of good faith, fail, neglect, or refuse to perform or fulfill the terms and conditions of such trust as expressed in such written contract or agreement, then and in every such case such person or persons so failing, neglecting or refusing to per- form or fulfill the terms and conditions of such trust shall, on being convicted thereof, be imprisoned in the penitentiary for a term not more than ten years or less than one year, or be fined not more than five thousand dollars or less than five hun- dred dollars, or both in the discretion of the court. Supp. to Public General Laws of Md. 1890-1898, sec. 87a. Fraud — Warehouse — Storage and elevator receipts : If any person intrusted with any money, drafts or checks, as advances against any grain or other merchandise purchased and stored in any elevator in the city of Baltimore or elsewhere, and for which certificates or receipts have been turned into such elevator, or delivered to the parties with whom the same is stored, to be shipped or transported from the city of Balti- more to the purchaser of said grain or other merchandise, .shall for his own benefit and in violation of good faith neglect or 320 MARYLAND LAWS. refuse to deliver to the party so intrusting him with said money, draft or checks, the draft or bills of exchange, with the docu- ments for the shipment of the said cargo of grain or other mer- chandise, and the policies of insurance upon said grain or other merchandise, as soon as the shipment is completed and the bills of lading delivered therefor, every such offender shall be guilty of a mistlemeanor, and being convicted thereof shall be im- {)rison('d in the penitentiary not more than ten years nor less than one year, or be fined not more than five thousand dollars or less than five hundred, or shall be both fined and ini])i-isoned as aforesaid, in the discretion of the court. Id. sec. 119a. Appointment — Tenure of office and salaries of cliief in- spector and deputy inspectors of tobacco : The governor shall nominate and by and with the advice and consent of the senate, biennially appoint one chief inspector of tobacco, at a salary of two thousand dollars per annum, who shall have charge of all the state tobacco warehouses now used in the city of Baltimore, whose term of office shall begin on the first day of March following ; the governor shall also biennially api)oint three deputy inspectors, whose term shall begin and end at the same time as the chief inspector, and who shall re- ceive a salary of eighteen hundred dollars per annum. Public General Laws, Md., art. 48, sec. 9. Bond and duties of cliief inspector : The chief inspector so appointed shall, before entering upon the discharge of the duties of his office, give bond to the state of Maryland in the sum of fifty thousand dollars, with a surety or sureties to be approved by the treasurer of the state, con- ditioned for the faithful performance of the duties inposed on him by law and for the full and punctual report at the end of each quarter of the receipts and disbursements of the state tobacco warehouses in the city of Baltimore under his charge, which bond shall be recorded in the office of the clerk of the superior court of Baltimore city, and the said chief inspector shall, so soon as he shall have bonded and qualified as required by law, take charge of all the tobacco warehouses in Baltimore city, except No. 2 warehouse, and all the tobacco, books, furni- MARYLAND. 321 ture, appurtenances and effects belonging to the same, and shall receipt to his predecessors in office for the same, and upon the appointment and qualification of his successor, shall deliver the same to said successor and take a similar receipt; he shall per- sonally or by deputy inspectors or their assistant d{'i)uties, in this subtitle provided for, inspect all tobacco in said ware- houses ; but said chief inspector, the deputies, assistant deputies or other persons appointed to or employed in said tobacco warehouses shall not be engaged in the purchase or sale of tobacco (except that they may sell tobacco of their own raising), nor shall it be lawful for any person thus appointed or employed in the warehouses to receive any gift or emolument whatever, either directly or indirectly, for any favor rendered in the line of his duty, other than his regular salary or wages, and any person violating the provisions of this section shall be inmiedi- ately dismissed from office or service. Each of the deputy in- spectors before entering on the duties of his office shall give bond to the chief inspector with a surety or sureties to be ap- proved by said chief inspector in the sum of ten thousand dol- lars, conditioned for the faithful discharge of his duties ; and the said chief inspector in his discretion may exact a bond from the persons who directly receive and handle the moneys col- lected on account of the business of said warehouses. The deputy inspectors shall be subject to removal for cause by the chief inspector, with the approval of the governor, and the said deputy inspector shall have authority to dismiss any assistant or employees in said warehouses whenever in his judgment shall seem for the good of the service for which they are re- spectively employed; and every deputy inspector shall be re- sponsible to the chief inspector for the faithful performance of the duties of all employees under them, respectively, and any neglect of duty on the part of any employee shall be cause for his immediate removal by the deputy inspectors in their re- spective warehouses. Id. sec. 10. Appointment — Duties and sal.iry of chief clerk of chief inspector — Appointment and salaries of clerks to deputy in- spectors — Employment of laborers — Their wages : The chief inspector of tobacco shall be entitled to appoint 21 322 MAUYLAXD LA^YS. one chief clerk at a salary of twelve hundred dollars per annum, which chief clerk shall have his office at such one of the ware- houses as shall be designated and occupied by the chief in- spector, and shall perform all the duties of chief clerk to said chief inspector for all the business done at all of said warehouses. The said deputy inspectors provided for in this article shall re- spectively be in charge of such warehouse to which he is as- signed by the governor, and shall each be authorized to appoint one tobacco note clerk, one receiving clerk, one shipping clerk, one weighing clerk, one assistant clerk, one sample tier, one janitor, one finder, one elevator and stay-floor man and not more than ten screwmen nor more than four laborers. The salaries of the tobacco note clerks shall be one thousand dollars per annum each, receiving clerks, shipping clerks and weighing clerks shall be eight hundred dollars per annum, each, that of the sample tiers shall be seven hundred dollars per annum each. The wages of the assistant clerks, janitors, finders, ele- vator or stay-floor men and screwmen shall be two dollars per day each, the wages of the laborers shall be one dollar and fifty cents per day each. No deputy inspector shall employ any additional force or labor than that hereinbefore specified, with- out the approval of the chief inspector, but with such approval the deputy inspectors are authorized to employ as many la- borers at one dollar and fifty cents per day as may be necessary for the proper and economical management of the respective warehouses, and it shall be the duty of the chief inspector to order the discharge of any or all of said additional laborers in part or whole, whenever the regular force can do the work. Id. sec. 11. Daily reports to be made by clerks — Office of chief inspec- tor : At the end of each day the tobacco note clerk in each of said warehouses shall make a detailed report of the operation of such respective warehouses to the chief clerk, who shall enter a full record thereof in a book kept by him for that purpose; the chief clerk shall collect all moneys due said warehouses, and in a set of books to be provided for that purpose, keep the ac- counts of each warehouse separately, and consolidate the opera- MARYLAND. 323 tions of all of said warehouses in one general ledger, so as to show the operations thereof individually and collectively. The chief inspector shall select an office in one of the warehouses now used by the state, to be most agreeable to him, with due regard to the most central location for the purpose of business. Id. sec. 12. How the salaries of chief inspector and other officers and employees shall be paid : The salaries and wages of the chief inspector, deputies, as- sistant clerks and all employees and appointees of said ware- houses shall be paid from the receipts thereof and from no other source. Id. sec. 13. Chief inspector to have charge of receipts and expenditures, to make quarterly reports : The chief inspector shall have full charge of all the receipts and disbursements of the said warehouses, shall make all con- tracts for nails or other articles required for the use of said warehouses except for repairs, and shall make a report quar- terly, viz: On the first of January, April, July and October in each year, showing the receipts and disbursements of each of said warehouses with the vouchers therefor, giving in detail the respective amounts received from outage, storage, cooperage, reconditioning, stays and sale of scraps, and also showing the respective amounts paid for labor, nails, lumber, hoops, inci- dentals, wages and salaries, and showing the cash balance for each quarter, and at the quarter ending April first in each year, pay over to the comptroller to whom the aforesaid reports are required to be made, all moneys in hand after paying all ex- penses and salaries of said warehouses, and said chief inspector shall have power to have tobacco delivered at such warehouses, as in his judgment may seem best for the public interest. Id. sec. 14. In case of absence from sickness — Inspector to appoint his substitute from among his clerks or employees — Oath of such substitute : In case of absence of the inspector by reason of sickness or any unavoidable cause, then fluring his absence his duties shall 324 MARYLAND LAWS. devolve iii)on the chief clerk or other such clerk or employee as the inspector may select or designate, who shall qualify under oath for the faithful discharge of the same. Id. sec. 15. Duty of inspector in regard to numbering, etc., of hogs- lieads of tobacco : It shall be the duty of the inspector to cause each hogshead of tobacco landed or delivered at the warehouses to be num- bered in succession, as received, and cause said number to be entered in a book kept for that purpose, together with the time said hogshead was received, the name of the vessel or other conveyance, if known to him, by which said hogshead was brought to the city of Baltimore and of the owner or consignee of said tobacco, and the initials or other trade-marks on said hogshead identifying the same, and when' said hogshead shall be removed from said warehouses he shall cause an entry to be made in some book, kept for that purpose, of the time when the same was removed, the name of the person to whom the same was delivered and of the vessel or other conveyance by which the same was taken away. Id. sec. 18. Dispute concerning tobacco to be referred to arbitration committee — Proviso : Whenever any dispute shall arise concerning the correctness of any sample furnished by the inspector of tobacco under the seal of the state, said controversy shall be referred to a com- mittee of arbitration, consisting of three persons, to be selected as follows: one thereof shall be selected by the inspector, one thereof shall be selected by the claimant or claimants, or his or their agents, and the two thus selected shall select the remain- ing memlier of said committee; provided, however, that no person shall be so selected, or if selected, shall be competent to serve as a member of any committee of arbitration, who shall have a direct or indirect interest in the tobacco in controversy. Id. sec. 23. Payment of the award : The inspector shall pay the amount of any award made in writing and under seal by any committee of arbitration duly MARYLAND. 325 constituted as heretofore provided, to the party or parties thereto entitled, witliin thirty clays after the date thereof, and shall take the receipt of the claimant or his agent for the same, which said receipt together with said award signed and sealed by said committee of arbitration or a majority of them, shall be returned by the inspector to the comptroller of the treasury in the inspector's next ensuing report thereafter and shall be a voucher for money expended. Id. sec. 25. Storage shall be rented wlieu necessary : Whenever so large an amount of inspected tobacco shall have accumulated in the warehouses as to delay inspections, the in- spector shall have the right to rent storage for as much as may be necessary to remove. Id. sec. 41. Inspector to have control of the wharves in absence of state wharfinger : In the absence of the state wharfinger, the inspector of to- bacco shall have control of the wharves in front of the ware- houses, so far as relates to the landing or corcUng of wood or other materials to the exclusion of tobacco, and vessels having tobacco or other conveyances having tobacco to deliver to such warehouses shall have preference over all others in the use of such wharves; no charge for wharfage shall be laid or any tobacco received at or delivered from any of the state warehouse wharves. Id. sec. 44. Duty of arbitration committee : If any owner or owners of tobacco, or his or their agent or agents shall believe that any of their tobacco has been incor- rectly sampled, and shall so notify the inspector before the sale thereof witliin ten days of the date of its inspection, the matter shall be referred to a committee of arbitration, consisting of three persons to be selected as follows: One thereof shall be selected by the inspector, one thereof shall be selected by the owner or owners of the tobacco, or their agent or agents, and the two thus selected shall select the remaining member of the committee ; and said committee shall have the power to require the deputy inspector in charge of said hogshead of tobacco to 326 MARYLAND LAWS. have the same re-opened a lul if it shall bo found that the sample does not correctly represent said tobacco, the said committee or a majority of them, shall select a sample which shall cor- rectly represent, and shall be substituted in the place of the rejected sample at no cost of theown(>r; provided, however, tlvat if said sample shall be found by said committee to properly represent said tobacco, then the cost of re-opening the said tobacco shall be paid by the owner of the same, and said cost shall be one dollar ($1.00) per hogshead. Id. sec. 50a. XOTE. Corporations may be found for the purpose of conducting the warehouse business under the provisions of art. 23, sec 14 et seq. Maryland Public General Laws. MARYLAND. 327 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Wheji not countermand able. Where money or goods are delivered to a bailee to be delivered to a third person, the bailment is not countermandal^le after the third person has assented thereto, if there is a valuable con- sideration for the bailment. Creager v. Link, 7 Md. 259. B. Reasonable care — Defined. An instruction to the following effect, given by the court to the jury, defining the duty of a warehouseman in the bestowal of reasonable care, held, on appeal, to have been correct: "The said defendant was bound to use reasonable care in storing said goods in a place of safety according to their kind, and then by the practice of the same care keeping them from injury until called for by the plaintiff ; that reasonable care in this connection means such care as a prudent man would give to the keeping of his own goods of like kind and under like circumstances." Merchants' & Miners' Transportation Co. v. Story, 50 Md. 4. Same — Deposit of bonds in a bank. In an action against a national bank for the recovery of the value of certain bonds which were stolen from its vault, such bonds being held by the bank as collateral security for the pay- ment of any loans which it might, at subsequent times, make to the plaintiff, the court instructed the jury that the bank would be responsible if the jury found from the evidence that the bonds had been stolen in consequence of failure on the part of the defendant to exercise such care and diligence in the custody and keeping of them as, at the time, banks of common prudence, in like situation and business, usually bestowed in the custody and keeping of similar property belonging to them- selves. That the care and diligence shf)ul(l be proportional to the consequences likely to arise from any improvidence on the part of the defendant, and that the jury might take into con- sideration whether it would have been a proper precaution to 328 MARYLAND DECTSlON^S. have had an inside watchman in the bank at nights and on Sundays ; that the jury should also consider the value of the bonds and liability to loss, the temptation they offered to theft, the difficulty of recovering them if stolen, the situation of the building and vault, and the sufficiency of the safe in which the defendant kept them at the time they were stolen. Such in- struction held correct. Third National Bank v. Boyd, 44 Md. 47. Conversion — Action at law. A conversion simply creates a pecuniary liability, and an action in erjuity will be dismissed for the want of jurisdiction unless there is some particular fund which the plaintiff seeks to recover on other ground for equitable relief. Even though a cause of action involves equitable features, if the legal remedy be complete, sufficient, and certain, it must be resorted to. Cecil National Bank v. Thurber et aL, 59 Fed. Rep. 913; Biizard V.Houston, 119U. S. 347. N. Goods damaged by water — Unusual rains — Reasonable care. A carrier, acting in the capacity of warehouseman, stored goods upon its wharf, and, owing to unusual rains, there was a sudden rise in the river, the goods being damaged by water. It further appeared that the tide had been steadily rising all day and it was not until the water came with a rush that the defendant attempted to remove plaintiff's goods. It was held that the defendant was liable in that it had not exercised reasonable care in its efforts to preserve the goods. Merchants' & Miners' Transportation Co. v. Story, 50 Md. 4. 0. Same — Measure of damages. In an action by the assignee of a warehouseman against an insurance company, on a policy covering twenty-eight (28) bales of cotton, where it appeared that some of the cotton stored in the warehouse had been rescued, the following instruction to the jury, in ascertaining the amount of damages, held to be correct: "If the jury find from the evidence that the plaintiffs MARYLAND. 829 are entitled to recover, then, in ascertaining the amount of loss or damages which the plaintiffs are to recover, the jury ought to deduct such sum as from the evidence in the cause they may find is the proportion due to twenty-eight bales of cotton, in the distribution of the proceeds of sale of the rescued and saved cotton." Hough, Clendeninq & Co. v. Fred. & Dir. Peoples' Fire Ins. Co., 36 Md. 398. Same — Bonds stolen from vault. Where bonds were stolen from vault of defendant, a national bank, the court instructed the jury that the proper measure of damages should be the value of the bonds at the time they were stolen and not the value at the time of demand. This instruc- tion held correct. Third National Bank v. Boyd, 44 Md. 47. P. , Insurable interest — Warehouseman has. The law is well settled that a person having goods in his possession as consignee, or on commission, may insure them in his own name, and in the event of loss, recover the full amount of the insurance, and, after satisfying his own claim, hold the balance as trustee for the owner. Hough, Clendeninq & Co. v. Prest. & Dir. Peoples Fire Ins. Co., 36 Md. 398; Home Insurance Co. V. Baltimore Warehouse Co., 93 U. S. 527; London & N. W. Ry. Co. V. Glyn, 1 Ell. & Ell. Q. B. 652. Same — Double policies. Where several policies are in favor of the same assured, on the same interest, in the same subject, and against the same risk they are what is known as double policies, and the insurance companies issuing them are bound to contribute their respective proportion of the loss. Hough, Clendening & Co. v. Prest. & Dir. Peoples' Fire Ins. Co., 36 Md. 398; Balto. Fire Ins. Co. v. Loney, 20 Md. 38. Warehouse receipts — Negotiability — Bona fide Iwlder protected. A warehouseman issued receipts for goods stored with him to one who represented himself as the owner of the goods, it appearing from certam tickets in the nature of liills of lading 330 MARYLAND DECISIONS. that such person was the consignee of the goods. The ware- houseman afterward loaned money to him and accepted the warehouse receipts as collateral security. It subsequently ap- peared that the person who iuid deposited the goods was not in fact the owner thereof but that they had been consigned to him by the owner, in the course of business dealings. In an action against the warehouseman by the owner, it was held that the warehouseman was bona fide holder of the receipts and, therefore, judgment was rendered in his favor. Article 14, section 1 of the Code construed. Farmers' Packing Co. v. Broum & So?is, 87 Md. 1 ; Tildeman v. Knox, 53 Md. 612. (Note. The case of B. & 0. R. R. Co. v. Wilkins, etc., 44 Md. 11, held that bills of lading were not negotiable in the sense that promissory notes were, but this case was decided in the October term, 1875, whereas art. 14, sec. 1 of the Code was enacted in 1876.) Same — Sayne — ''Actual notice," ivhat is equivalent to. Where a bill of lading contains statements which would put a reasonable man on notice that other persons than the assignor had an interest in the goods, such statements held to be equiva- lent to actual notice, and the assignee does not take the propertv clear of all equities. If, imder such circumstances, the assignee failed to follow up, by inquiry, and thus learn all about the transaction, it was held to be his own fault and he had no right to complain. Jacob Dold Packing Co. v. Ober & Sons Co., 71 Md. 155; Richards, Leftwich & Co. v. Meyer & Kross, 57 Md. 10. Same — Must be issued by warehouseman. It is clear from the language of the Act of 1876 (chapter 262), which provides that bills of lading, warehouse, elevator, or storage receipts shall be negotiable in the same sense as bills of exchange, that the legislature never meant to declare that a mere receipt issued by one engaged in the canning business, for the goods canned by him, which were to remain in his pos- session subject to the order of the purchaser, should pass title to the goods as against all other persons, and should also be negotiable in the same sense as bills of exchange and prom- issory notes. State of Maryland v. Bryant, 63 Md. 66. MAUVLAND. 331 B. Bills of lading— Exemptions in. Common carriers may, by special contract, limit their liability, as recognized by the common law, where there seems to be reason and justice to sustain the limitation. McCoy & Parkhurd v. Erie & Western Trails. Co., 42 Md. 498; Ba??/v«rf/ v. B. & 0. R. R., 34 Md. 197; Railroad Co. v. Lockwood, 17 Wall. 357. Same— Evidence received to the effect that the goods were never received. ^ It appeared that the agent of the defendant company had signed a bill of lading in which it was stated that certain goods had been received by the defendant. It was shown, on the trial, that the agent issued this bill of lading upon a promise that the railroad or cotton press receipts for the property would be subsequently delivered to him. The court held that it was proper to allow the agent to explain the circumstances under which he was induced to sign the bill and also to testify to the fact that the goods, represented to have been received, were not in fact delivered to him. Lazard et al. v. Merchants' & Miners' Transportation Co., 78 Md. 1. Same— Parol agreement and parol proof. The legal operation of the contract contained in a bill of lad- ing may be modified by adding thereto a parol supplementary agreement that the freight was to be at the risk of the shipper, and such special agreement may be established by parol proof. Atwell & Appleton v. Milhr, 11 Md. 348. 332 MASSACHUSETTS LAWS. CHAPTER XXI. MASSACHUSETTS. LAWS PERTAINING TO WAREHOUSEMEN. Public warehouseinen may be licensed by the governor : The governor, with the advice and consent of the council, may license in any city or town suitable persons, or corporations estabhshed under the laws of the commonwealth and having their places of business within the commonwealth, to be public warehousemen, who may keep and maintain public warehouses for the storage of goods, wares, and merchandise. But no rail- road corporation which may be licensed as a public warehouse- man shall be recjuired as such to receive any property except what has been or is forthwith to be transported over its road. P. S. ch. 72. sec. 1, 1882. Bond in amount and with such sureties as shall be approved by the governor : Every person and corporation licensed under the preceding section shall give bond to the treasurer of the commonwealth in such amount and with such sureties as shall be approved by the governor, for the faithful discharge of the duties of a public warehouseman; except that a railroad corporation so licensed shall not be required to give any sureties on its bond. 1885, ch. 167, sec. 2. How an action on bond may be brought : When a licensed public warehouseman fails to perform his duty or violates any of the provisions of this chapter, any person injured by such failure or violation may bring an action in the name of the commonwealth, but to his own use, in any court of competent juriscUction, on the bond of such warehouseman. In such action the writ shall be indorsed by the person in whose behalf the action is brought, or by some other person satisfactory to the court; and the indorser shall be liable to the defendant MASSACHUSETTS. 383 for any costs whicli the (Ictc'iidanl may recover in such action, and the commonwealth shall not be liable for any costs. P. S. c. 72, sec. 3. Warehoiisonian may be required to insure property depos- ited with hill) : Every such warehouseman shall, when requested thereto in writing by a party placing property with him on storage, cause such property to be insured for whom it may concern. When such warehouseman is a railroad corporation, it may itself in- sure such property, instead of causing it to be insured by any other insurer. Id. sec. 4. Negotiable warehouse receipts — What to state — Non-nego- tiable receipts given on request — Stamped — Assignments of of non-negotiable receipts not valid till recorded : Every such wtirehouseman shall, except as hereinafter pro- vided, give to each person depositing property with him for storage, a receipt therefor, which shall be negotiable in form, and shall describe the property, distinctly stating the brand or distinguishing marks upon it, and if such property is grain the quantity and inspected grade thereof. The receipt shall also state the rate of charges for warehousing the property and the amount and rate of insurance thereon: Provided, however, that every such warehouseman shall upon the request of any person depositing property with him for storage give to such person his non-negotiable receipt therefor, which receipt, shall have the words "non-negotiable" plainly written, ]:)rinted or vStamped upon the face thereof; and Provided, further, that assignments of such non-negotiable receipts shall not be effectual until re- corded on the books of the warehouseman issuing them. 1886, c. 258. Title of property stored to pass by indorsement and de- livery of receipt : The title to goods and chattels stored in a public warehouse shall pass to purchaser or pledgee by the indorsement and de- livery to him of the warehouseman's receipt therefor, signed by the person to whom such receipt was originally given or by an indorsee of such receipt. P. S. c. 72, sec. 6. 334 MASSACHUSETTS LAWS. Speekl provision for grain, etc. : Where grain or other property is stored in a public warehouse in such a manner that tUfferent lots or parcels are mixed to- gether so that the identity thereof cannot be accurately pre- served, the warehouseman's receipt for any portion of such grain or propert}^ shall be deemed a valid title to so much thereof as is designated in said receipt, without regard to any separation or identification. Id. sec. 7. Warehonsenian to keep l)ooks open to inspection, etc. : Every such warehouseman shall keep books in which shall be entered an account of all his transactions relating to the warehousing, storing, and insuring of goods, wares, and mer- chantlise, and to the issuing of receipts therefor, which books shall be open to the inspection of any person actually interested in the property to which such entries relate. 1895, c. 348, sec. 1. Notice of names of persons licensed, and of amount of their bonds, to be publislied, etc. : Due notice of the license and qualifications of each ware- houseman, of the amount of the bond given by him, and also of his discontinuance as a warehouseman, shall be given at his expense by the secretary of the commonwealth by publishing the same for not less than ten days in one or more new'spapers published in the county or town in which the warehouse is located, or, if no newspaper is published in such county, then in one of the newspapers published in the city of Boston. P. S. c. 72, sec. 9. Penalty for the unlawful sale of property deposited in a public warehouse : Whoever unlawfully sells, pledges, lends, or in any other way disposes of, or permits, or is a partj^ to the unlawful selling, I^ledging, lending, or other disposition of any goods, wares, merchandise, article, or thing deposited in a public warehouse, without the authority of the party who deposited the same, shall be ])unished by a fine not exceeding five thousand dollars and by imprisonment in the state prison for not more than three years. But no public warehouseman shall be liable to the penalties provided in this section unless with intent to injure MASSACHUSETTS. 335 or defraud any person he so sells, pledges, lends, or in any (jther way disposes of, or permits or is a party to the selling, jjiedging, lending, or other disposition of any goods, wares, merchandise, article, or thing so deposited. 1895, ch. 348, sec. 2. For fori?ing, etc., warehouse receipt, etc. : Whoever falsely makes, utters, forges, or counterfeits, or permits or is party to the false making, uttering, forging, or counterfeiting, of a warehouse receipt, certificate, or other in- strument used to pass or to give title to property deposited in a public warehouse, shall be punished by fine not exceeding five thousand dollars and inij)risonment in the state prison for not more than three years. P. S. ch. 72, sec. 11. For forging, etc., signature of warehouseman — Indorser, etc., on receipt : Whoever falsely makes, utters, forges, or counterfeits, or permits or is a party to the false making, uttering, forging, or counterfeiting, of the signature of a warehouseman or of an in- dorser or other person to an instrument used to pass or to give title to property deposited in a public warehouse, shall be pun- ished by fine not exceeding five thousand dollars and by im- prisonment in the state prison for not more than three years. Id. sec. 12. Warehouseman may appoint deputies : A warehouseman appointed under the provisions of this chap- ter may appoint one or more deputies, for whose acts he shall be responsible. Id. sec. 13. Penalty for disposing of warehouseman's receipt after property has been attached : Whoever, after his interest in the property described in a warehouseman's receipt has been attached, indorses, assigns, or otherwise disposes of such receipt, without disclosing such at- tachment to the person to whom such receipt is indorsed, as- signed, or disposed of, shall, if he has knowledge of such attach- ment, be punished by fine not exceeding five thousand dollars and by imprisonment in the state prison for not more than three 336 MASSACHUSETTS LAWS. years, or by imprisonment in tlie common jail for not more tlian one year. Id. sec. 14. Collection of charges for storage by public warehouseman : Every public warehouseman, who shall have in his possession any property by virtue of any agreement or warehouse receipt for the storage of the same, on which a claim for storage is at least one year overdue, may proceed to sell the same at public auction, and out of the proceeds may retain the charges for storage of said goods, wares and merchandise, and any advances that may have been made thereon by him or them, and the ex- pease of advertising and sale thereof; but no sale shall be made until after the giving of a printed or written notice of such sale to the person or persons in whose name such goods, wares and merchandise were stored, requiring him, her or them, naming them, to pay the arrears or amount due for such storage, and in case of default in so doing that such goods, wares and mer- chandise wdll be sold to pay the same, at a time and place to be specified in such notice. 1887, ch. 277, sec. 1. Notice of sale of goods by public warehousemen for pay- ment of storage charges — How served : The notice required by the last preceding section shall be served by delivering it to the person or persons in whose name said goods, w^ares and merchandise were stored, or by leaving it at his usual place of abode, if within the commonwealth, at least sixty days before the time of such sale, and a return of the service shall be made by some officer authorized to serve civil process, or by some other person, with an affidavit of the truth of the return. If the party storing such goods cannot with reasonable diligence be found within the commonwealth of Massachusetts, then such notice shall be given by publication once in each week for three successive weeks, the last publica- tion to be at least thirty days before the time of such sale, in a newspaper publishefl in the city of town where such warehouse is located, or if there is no such paper, in one of the principal newspapers published in the county in which said city or towm is located. In the event that the party storing such goods shall have parted with the same, and the purchaser shall have notified MASSACHUSETTS. 337 the warehouseman, with his address, such notice shall bo (i;i\cii to such person in lieu of the person storing the goods. 1895, eh. 348, sec. 6. Warehouseinaii to enter in a book surplus of proceeds of sale and pay the same into the treasury of theconinionweaith — Affidavit — Evidence : Such warehouseman shall make an entry, iu a book kept for that purpose, of the balance or surplus of the proceeds of the sale, if any, and such balance or surplus shall be paid over to such person or persons entitled thereto on demand ; and if such balance or surplus is not called for or claimed by said party or owner of said property within six months after such sale, such balance of surplus shall be paid by such warehouseman to the treasurer of the commonwealth, who shall pay the same to the parties entitled thereto, if called for or claimed by the rightful owner within five years after the receipt thereof; and such warehouseman shall, at the same time, file with said treasurer an affidavit, in which shall be stated the name and place of residence, so far as the same are known, of the person whose property has been sold, the articles sold and the prices at which they were sold, the name and residence of the auctioneer making the sale, together with a copy of the notice served or published, and how served. Such notice and affidavit, when filed as above provided, shall be admitted as evidence of the giving of the notice. 1895, ch. 277, sec. 3. Perishable or dangerous property deposited in a public warehouse may be sold in certain cases : Whenever a public warehouseman has in his possession any property which is of a perishable nature, or which will deterio- rate greatly in value by keeping, or upon which the charges for storage will be likely to exceed the value thereof, or which by its odor, leakage, inflammability, or explosive nature is likely to injure other goods, such property having been stored upon a non-negotiable receipt; and when said warehouseman has noti- fied the person in whose name the property was received to re- move said property and such person has refused or omitted to receive and take away such property and to pay the storage and proper charges thereon, said public warehouseman may, in the 338 MASSACHUSETTS LAWS. exercise of a reasonable discretion, sell the same at public or private sale without advertizing, and the proceeds, if there are any proceeds, after deducting the amount of said storage charges and expenses of sale shall be paid or credited to the person in whose name the property was stored; and if said person cannot be found, on reasonable inquiry, the sale may be made without any notice; and the proceeds, of such sale after deducting the amount of storage, expenses of sale and other proper charges, shall be paid to the treasurer of the commonwealth, who shall pay the same to the person entitled thereto, if called for or claimed by the rightful owner within one year of the receipt thereof by said treasurer. 1895, ch. 348, sec. 3. Disposal of property which warehouseman caiiuot sell : Whenever a public warehouseman, under the provisions of the preceding section, has made a reasonable effort to sell per- ishable and worthless property and has been unable to do so because of its being of little or no A'alue, he may then proceed to dispose of such property in any lawful manner, and he shall not be liable in any way for property so disposed of. Id. sec. 4. Liability of depositor of goods in public warehouse for charges regulated : Whenever a public warehouseman, under the provisions of the two preceding sections, has sold or otherwise disposed of property, and the proceeds of such sale or disposition have not equaled the amount necessary to pay the storage charges, ex- penses of sale and other charges against such property, then the person in whose name said property was stored shall be liable to said public warehouseman for an amount which, added to the proceeds of such sale, will be sufficient to pay all of the proper charges upon such property ; or in case such property was value- less, and there were no proceeds realized from its disposition, the person in whose name said property w^as stored shall be liable to said public warehouseman for all proper charges against said property. Id. sec. 5. Notice of sale of goods for public warehouseman for pay- ment of storjige charges — How served : The notice required by the last preceding section shall be MASbACHU SETTS. 339 served by delivering it to tlie person or persons in whose name said goods, wares and merchandise were stored, or by leaving it at his usual place of abode, if within the commonwealth, at least sixty days before the time of such sale, and a return of the service shall be made by some officer authorized to serve civil process, or by some other person, with an affidavit of the truth of the return. If the party storing such. goods cannot with reasonable diligence be found within the commonwealth of Massachusetts, then such notice shall be given by publication once in each week for three successive weeks the last publica- tion to be at least thirty days before the time of such sale, in a newspaper published in the city or town where such warehouse is located, or if there is no such paper, in one of the principal newspapers published in the county in which said city or town is located. In the event that the party storing such goods shall have parted with the same, and the purchaser shall have noti- fied the warehouseman, with his address, such notice shall be given to such person in lieu of the person storing the goods. Id. sec. 6. Determination of title, etc., to property held by public warehousemen, etc. : Be it enacted, etc., as follows : In any action in which recovery of, or the determination of the title to, property held by a public warehouseman or other depositary is sought, if it appears that such property is claimed by another party than the plain- tiff, whether by the husband or wife of said plaintiff or other- wise, the court in which such action is pending, on the petition of the defendant, which petition shall give the name and resi- dence of all known claimants, and on such notice as the court may order to the plaintiff and to such claimants, may order the proceedings to be amended by making such claimants defend- ants therein ; and thereupon the rights and interests of the several parties in and to such property shall be heard and de- termined. Such property may remain in the hands of the public warehouseman or other depositary until final judgment, and shall then be delivered in accordance with the order of the court. Acts & Resolves, Mass. 1899, ch. 352, p. 310. 340 MASSACHUSETTS DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. B. Ordinary care. A warehouseman is only obliged to bestow ordinary care in the custody of property intrusted to him. Cox v. Boston & P. R. R. Co., 10 Met. 472; Aldrich v. Boston & }Vorcester R. R. Co., 100 Mass. 31. Same— Failure to deliver— Need not show jyrecise manner of the loss. A warehouseman who fails to deliver property bailed to him must account therefor; if lost he is bound to show that the loss occurred without a want of ordinary care or diligence on his part, but not necessarily the precise manner in which the loss oc- curred. Lichtenhein v. Boston & P. R. R. Co., 11 Cush. 70; President, Directors, etc., Conway Bank v. American Express Co., 8 Allen, 512. Same — Liability coextensive to possession — Ride stated. The obligation of warehousemen to exercise ordinary care for the protection and safety of goods committed to their custody depends upon and is coextensive with actual and continued possession. If they lose that possession through any omission of the duty thus attaching to them in that relation, they are liable for all the consequences that ensue from it. On the other hand, if without fault on their part the property is taken from their possession, or lost by means for which they are not responsible, they are not required to go in pursuit of it, or to incur any expense of time, labor or money in endeavoring to discover or regain it. Sessions & Ano. v. Western R. R. Cor- poration, 16 Gray, 132. Conversion — Delivery to officer — Attachment does not consti- tute. The defendant, a warehouseman, opened the door of a com- partment in his warehouse in which the property of the plain- tiff was stored and allowed an ofhcer to attach the same. This MASS AC I lU SETTS. 341 was held in nowise to constitute u voluntary surrender of the property by the warehouseman, and further that the warehouse- man, in allowing this attachment to be made, was not guilty of conversion. Cleqq v. Boston Storage Warehouse Co., 149 Mass. 454. Conversion — Warehouseman with power to receive offers not au- thorized to sell — Lien — Innocent purchaser. The plaintiff at the request of one J., who was a commission merchant and warehouseman, made certain advances to J. upon wool consigned to him. The plaintiff received from J. the re- ceipt from the railroad for the wool and never surrendered pos- session thereof. The wool was stored in J. 's warehouse and he was given authority by the plaintiff to negotiate sales thereof, to be reported to plaintiff for approval before being concluded. J. was a part owner of the wool but this fact was unknown to plaintiff. Without the knowledge of plaintiff, J. fraudulently pledged the wool to defendant for advances; the defendant had the wool removed to another warehouse, but he did not de- mand of J. a bill of lading or other proof of title and he knew J. was engaged in business as a warehouseman. Upon the above state of facts it was held tliat the plaintiff 's rights as con- signee in the wool were not lost by placing the same in the ware- house of J. to be stored until it could be sold. Further that it was not the doctrine in Massachusetts that even if the plaintiff had known that J. was a part owner of the wool that the de- posit of it in good faith with him as a warehouseman, with au- thority to negotiate sales as a broker, to be concluded by plain- tiff, would have enabled J. to have vested a good title in an innocent purchaser by a sale made by him on his own account. Further, that J. was not a " factor or other agent intrusted with the possession of merchandise for the purpose of sale," within the meaning of c. 54, sec. 2 Gen. Stats., nor was J. " a per- son intrusted with merchandise, and having authority to sell or consign the same" within the meaning of c. 54, sec. 8, C!eii. Stats. Finally that the plaintiff held a valid lien against the' property; that defendant having sold the ssame this amounted to a conversion thereof, for which the defendant was liable to the plaintiff. Thatcher v. Moors, 134 Mass. 156. 342 MASSACHrsETTS DKCISIONS. G. Bonded warehouses — Private warehouse — " Warehoused ^^ con- strued. The plaintiff, an importer, brought an action against the de- fendant, as collector of the port of Boston, for nionej' paid to the defendant to which the latter was not entitled, under the warehouse law. It appeared that when a quantity of molasses, consigned to the plaintiff arrived at the port of Boston, the public warehouses at tliat port were filled. The plaintiff thereupon procured, at his own expense, accommodations in private ware- houses, and the defendant assented to the deposit of the mo- lasses at the places secured by the plaintiff, on condition that the latter would pay to the defendant, as collector for said port, one half the usual rates of storage charges on similar goods. It does not affirmatively appear that while the goods w^ere stored government officials were in charge thereof, but in the absence of such testimony the court assumed that this was the case. On the withdrawal, the sum of $145.19 was demanded of the plaintiff by the defendant, which was accord- ingly paid to him. The court held that from the agreed state- ment of facts, which was substantially as above, the action could not be maintained. Atkins v. Peaslee, 1 Clif. 446. Sa7ne — Withdrawal through fraud — Misdelivery of spirits — Forfeiture. It appeared that spirits had been fraudulently withdrawn from a government w\arehouse, without the payment of the internal revenue tax, and had been mixed with other spirits. In an action by the government against the spirits, it was contended, in the behalf of one of the claimants, that as the collector had surrendered the spirits upon the production of a permit, the delivery had been made with proper authority. But, as it appeared that such permit had been obtained by fraud, it was held, as respects the perpetrator of the fraud, the permit was a mere nullity. It was further held that as the spirits seized came from the rectifiers, mixed with the spirits fraudulently withdrawn from the bonded warehouse and other lots belonging to the claimants, so that they could not be distinguished, the United States were entitled to a for- MASSACHUSETTS. 343 feiture of a fair proportion of tlie mixture, even though the mixture might have been innocently made. United States v. Two Hundred and Seventy-eight Barrels of Distilled Spirits, 3 CUf. 261. H. Lien for storage charges — Partial delivery — Lien on remainder for full storage charges. The plaintiff, the owner of goods, shipped the same by a common carrier to one who intended to purchase them, but owing to a defect in the quality, the latter refused to accept the goods. The carrier thereupon stored the goods and about ten days thereafter, notified the consignee that it had done so. Subsequently an arrangement was made between the owner and the consignee for the sale of the goods to the latter. The carrier delivered a portion of the goods but refused to sur- render the balance unless the warehouseman's storage charges were paid. It was held that this contention was correct and that the warehouseman had a lien on the goods retained for the full amount of charges against all of the goods. Barker v. Brown, 138 Mass. 340 ; Lane v. Old Colony & Fall River R. R., 14 Gray, 143 ; New Haven & Northampton Co. v. Campbell, 128 Mass. 104. M. Effect of pledge — Possession by pledgor — Lien not always de- stroyed. The mere fact that the pledgor has possession, so that in him the possession and the general ownership are united, does not as a matter of law destroy the lien of the pledgee, without regard to the circumstances under which, or the purposes for which, the possession was obtained. Thacher v. Moors, 134 Mass. 156 ; Macomber v. Parker, 14 Pick. 497 ; Walcott v. Keith, 2 Foster, 196. N. Loss by fire — At night — Employees present under no obligation to rescue goods. In an action against a warehouseman for the loss of goods which had been destroyed by a fire, which consumed the ware- '^/' 44 MASSACHUSETTS DECISIONS. house and its contents, the evidence showed that the em- ployees of the defendant were present during the fire and might, with safety to themselves, have rescued property belonging to the plaintiff, it was held that the warehouseman was not liable ; that it was no part of the duty of the employees of the de- fendant to attend to the removal of goods from the warehouse in the case of fire at night. They were under no obligation to be present during the fire and their voluntary attendance im- posed upon them no legal liability for the mere omission to do anything when on the spot. Whatever they did was done by them as volunteers, as neighbors, and as citizens — not as em- ployees of the defendant. Aldrich v. Boston & Worcester R. R. Co., 100 Mass. 31. Same — Carrier liable as warehouseman — When Public Statutes, chapter 112, section 214, not applicable. The defendant, a common carrier, was sued in tort by the plaintiff for the loss of his goods, which were destroyed, while in a freight house belonging to the defendant, by fire communi- cated from a locomotive of defendant. It appeared that the goods had been carried by the defendant for the plaintiff and that the transit had terminated. The court held that the ac- tion could not be maintained under Public Statutes, chap. 112, sec. 214. The goods of the plaintiff having been destroyed while in the possession of the defendant pursuant to a contract made between them, the plaintiff must seek his remedy under such contract. Bassett v. Connecticut River R. R. Co., 145 Mass. 129. Same — Same — Same — Property still held under contract for carriage. WTiere, in a case similar to the above, it appeared that the contract for carriage had not been completed and that the goods were still in the possession of the defendant, as carrier, either in its cars or in its warehouse for a reasonable time in which the plaintiff could remove the same, the carrier was held liable for the loss of the goods. Blaisdell v. Connecticut River R. R. Co., 145 Mass. 132. MASSACftrSETTS. 345 Misdelivery — Change of ownership in warehouse — Goods in wrong name. A suit was instituted against a warehouseman who had pur- chased a warehouse from one previously engaged in the business and who took an assignment -thereof, together with a Ust of all the property in the warehouse and the names of the several owners thereof. It appeared from the evidence that there was a mistake made in such list and goods which, in reality, be- longed to A. were therein stated to belong to H. The ware- houseman notified H. to remove the goods, which he did. The evidence showed that the warehouseman acted entirely in good faith in the matter. The court held, in the action by the owner for the recovery of these goods, that the delivery by the defend- ant to H. did not constitute a conversion and that the ware- houseman was not liable to the owner therefor. Parker v. Lombard and another, 100 Mass. 405. Pleading — Burden of proof — Instruction to jury. In an action against a carrier, charging it with liability as a warehouseman, the defendants alleged that the goods had been fraudulently abstracted from their custody. The judge ruled that to maintain the action, it was only necessary for the plain- tiff, in the first instance, to show the receii)t of the goods by the defendants and their failure to deliver them upon demand; that this imposed upon the defendants the duty of accounting for them, but that the defendants were not bound to show afhrmatively in what precise manner the loss occurred, but only, if they were unable to prove how it occurred, to show clearly that they had exercised ordinary care respecting the goods, and that the loss did not happen from any negligence or want of ordinary care on their part. The judge further ruled, that if the property were taken by mistake from the depot, and the defendants exercised ordinary care in the mat- ter, the defendants would not be answerable for a loss under such circumstances, but that if the agent of the defendants delivered it by mistake to a wrong person, the defendants would be responsible. On appeal the above ruling held correct. Lichtenhein v. Boston & Providence R. R. Co., 1 1 Cush. 70. 346 MASSACHUSETTS DF.CISIONS. Same — Burden of proof on -plaintiff. The plaintiff alleged that the tlefendant had been guilty of negligence in the care and custody of plaintiff's goods. The plaintiff simply proved non-delivery on demand and the court instructed the jury to find for defendant, stating that plaintiff must show the alleged negligence. This instruction held cor- rect on appeal. Lamh v. Western R. R. Cor., 7 Allen, 98; Roberts V. Gurney, 120 Mass. 33; Willett et at. v. Rich et ah, 142 Mass. 356; Murray v. International Steamship Co., 170 Mass. 166; Gay et al. V. Bates, 99 Mass. 263. Same — When burden of proof on warehouseman — Where declara- tion alleges demand and refusal but not negligence. The plaintiff sued the defendant, a railroad corporation, al- leging that it was liable as a warehouseman, that the prop- erty had been received by it and, upon demand, redelivery had been refused. In the answer the defendant admitted that it received the property, and alleged that without any neglect, default, or caselessness whatever on its part, the same was stolen from its warehouse. Upon these pleadings it was held, on appeal, that this form of declaration imposed the duty and burden upon the defendant who had put in special matter in defense of the action. The case was clearly distinguished from Lamb V. Western Railroad Corporation, 7 Allen, 98, in that the allega- tion of the declarations were materially different. In the pres- ent case, the court held that the breach of contract was not denied by the defendant, the issue being on the new matter alleged by it, and therefore, the burden w^as upon the party alleging such new matter — the defendant. Cass v. Boston & Lowell R. R. Co., 14 Allen, 448. Same — Warehouseman need not show precise manner of loss. Where an action was instituted, charging the defendant with liability as a warehouseman, for the non-delivery of goods in- trusted to him, the court held that the defendant was not bound to show the precise manner in which the loss occurred, but, if unable to do this, he might exonerate himself from that burden by clearly showing that the loss did not happen from MASSACHUSETTS. 347 any negligence or want of care on his part. Lichtenhein v. Boston & Providence R. R. Co., 11 Cush. 70. Same — Evidence — Letter offering to compromise, inadmissible. A letter, written by an employee of the defendant, a ware- houseman, before the institution of the suit, to the plaintiff, offering to allow the goods to be removed free of storage charges, for the purpose of settling, in this way, a claim for damages to the goods stored, which damages were alleged to have resulted from the condition of th(^ warehouse, held, not admissible in evidence. Gay et al. v. Bates, 99 Mass. 263. Damages for loss of property — Right of consignee to recover. A consignee of merchandise is entitled to recover full dam- ages, and is responsible over to his consignor for any balance re- maining after satisfying his claims upon the property. Thacher V. Moors, 134 Mass. 156 ; U II man v. Barnard, 7 Gray, 554. Same — Measure of damages — Ordinary rule. The ordinary rule of damages is the market value of the property at the time of the conversion, with interest from that time. Thacher v. Moors, 134 Mass. 156. P. Loss by fire — Burden of proof on plaintiff to show negligence. An instruction to the jury that the burden of proof was on the plaintiff to satisfy them that the fire was due to defend- ant's negligence was correct. Cox v. Central Vermont R. R., 170 Mass. 129. Same — Testimony showing intoxication of watchman, receivable. It was held competent in an action against a warehouseman, for the loss of goods destroyed by fire, to show that the night watchman employed by the defendant was one in the habit of becoming intoxicated; that the watchman had indulged in this habit at a period several years before the occurrence, and that such habit had continued to the time of the fire. This evidence was receivable on the ground that the defendant, in the exercise of reasonable care, ought to have known of the 348 MASSACHUSETTS DECISIONS. habits of his watchman. Cox v. Central Vermont R. R., 170 Mass. 129. Same — Safety of place of storage — Question for the jury. Whether or not the place which the defendant furnished for the plaintiff to store his goods was reasonably safe is a question for the jury. Nealand v. Boston & Maine R. R., 161 Mass. 67; Nichols et al. v. Smith et al., 115 Mass. 332. Warehouse receipt — Negotiability. A warehouse receipt, even when in terms running to order and assigns, is not negotiable like a bill of exchange, but merely a symbol or representative of the goods themselves, and the rights arising out of such a receipt correspond, not to those arising out of the indorsement of a negotiable promise for the payment of money, but those arising out of the actual delivery of the property itself under similar circumstances. Commercial Nat. Bank v. Bemis et al., 177 Mass. 95; Stollenwerck v. Thacher, 115 Mass. 224. Same — Same — Issued by private warehouseman. The plaintiff held a receipt, for goods stored, issued by one who was not a public warehouseman in the meaning of the laws of Massachusetts. The receipt was indorsed to the plain- tiff as collateral security for the payment of a debt due him by the bailor. The receipt was not in terms negotiable. Subse- quently, the goods represented by the receipt were attached in an action against the owner. Held that the plaintiff did not take title to the goods as against the attaching creditor. Hall- garten et al. v. Oldham, 135 Mass. 1. Same — Pledge of. Where one held a warehouse receipt, as pledgee, and in turn pledged the receipt to secure a claim to him, it was held that the title of the owner of the receipt was not impaired. There is no more reason to infer that one having possession of a receipt is the owner thereof than that his interest is something less than that. Commercial Nat. Bank v. Bemis et al., 177 Mass. 95. MASSACHUSETTS. 349 Order on warehouseman — Refusal to deliver — Jury — Usage. The defendants, as public warehousemen, received lor storage one hundred and fifty barrels of Hour, portions of which were delivered from time to time, under plaintiff's orders, until but twelve barrels remained. The plaintiff delivered to the de- fendants an order for the balance due. With this order, the defendants refused to comply, insisting that the order should specify the number of barrels. It appeared that there was no express agreement, between the parties, that orders should specify the number of barrels, and that there was no such usage of trade in Boston. The court instructed the jury that the question of the propriety and reasonableness of the demand of the defendant was one for them to decide. Held that the order for the balance of the flour held by the defendants was sufficient; that they should have deUvered the iDalance upon the presentation of the ortler and that they were liable for their failure to do so. Porter v. Hills, 114 Mass. 106. R. Bill of lading — Defined — Shipper liable for freight charges. It is a settled doctrine that a bill of lading is a written simple contract between the shipper of the goods and the shipowner, the latter to carry the goods and the former to pay the stipu- lated compensation for the services performed. The shipper is the bailor and he is liable for the compensation to be paid the shipowner. The master is not bound, at his peril, to enforce payment of freight by the consignee. Wooster et al. v. Tarr and another, 8 Allen, 270; Blanchard v. Page, 8 Gray, 281. Same — Proof of loss — Burden of proof. In an action on a bill of lading, by w^hich a shipowner prom- ises to deliver the goods ''in like good order and condition as received, dangers of fire and navigation excepted" after proof of loss and failure to deliver, the burden of proof is on him to bring such loss and failure to dehver within the exception. Alden v. Pearson, 3 Gray, 342. Same — Negotiability. A bill of lading, though not strictly a negotiable instrument, 350 MASSACHUSETTS DECISIONS. like a bill of exchange, is the representative of the property itself and is the means by which property may be transferred in a manner equivalent to an actual delivery of the property. Forbea et al. v. Boston & Lowell R. R. Co., 133 Mass. 154. Same — Not a '^negotiable instrument ^ A bill of lading is not a negotiable instrument in the original sense of the word, and indorsement and delivery of it for value operates to transfer the title of the goods described in it, but not as an assignment of the contract except by force of some statute. Cox v. Central Vermont R. R., 170 Mass. 129; Stollen- werck v. Thacher, 115 Mass. 224; Finn v. Western R. R., 112 Mass. 524. Same — As collateral. One who holds a bill of lading as collateral security for the payment of a debt has such title in the property represented as to enable him to recover of any one who wrongfully converts it. Forbes et al. v. Boston & Lowell R. R. Co., 133 Mass. 154; Chicago National Bank v. Bayley, 115 Mass. 228; DeWolf v. Gardener, 12 Cush. 19; Dows v. National Exchange Bank, 91 U. S. 618. Sa77ie — Same — Fraud on the part of director of bank. The plaintiff, the owner of sugar, shipped the same to an agent for the purpose of sale. From the bill of lading it ap- peared that the goods had been shipped subject to the order of the consignee. The consignee pledged the bill of lading with the defendant bank, of which he was a director, as security for a large loan made to him by the bank, he being present at the threctors' meeting which authorized the loan. It was shown that the bank acted in entire good faith in the matter. It was attempted, by the plaintiff, to impute the fraud of the con- signee to the defendant bank. It was held that this could not be done, and judgment was accordingly given for the defend- ant. Innerarity et al. v. Merchants' National Bank, 139 Mass. 332. Bill of lading — Exemption in — Burden of proof. Where there was a stipulation in a bill of lading that notice MASSACHUSETTS. 351 of loss must be given within thirty days, the court held that the burden of proof was on the phiintiff to show that such stipu- lation was a just and reasonable one. Carriers may, by stipu- lation in bills of lading, limit their common-law liability if the effect is not to relieve them of the consequences of their own negligence, or that of their servants, and the contracts are, in themselves, just and reasonable. Cox v. Central Vermont R. R., 170 Mass. 129; Lewis v. Smith, 107 Mass. 334; Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397; Bank nf Kentucky v. Adams Ex. Co., 93 U. S. 174; Hoadley v. Northern Transportation Co.j 115 Mass. 304, 352 JNUCHIGAN LAWS. CHAPTER XXII. MICHIGAN. LAWS PERTAINING TO WAREHOUSEMEN. Who deemed to be a warehouseiiian : The People of the State of Michigan eyiact : That every person, firm, company, association, warehouse company or other cor- poration, lawfully engaged in the business of storing for hire goods, wares, merchandise, grain, flour, provisions, or other products, commodity or personal property, excepting persons or companies engaged in the business of storing grain in elevators, shall be deemed and held to be a warehouseman under this act. Compiled Laws, Mich, 1897, ch. 127, sec. 1. Warehouseinaii to have a lien on goods : Every warehouseman shall have a lien on all goods, wares, merchandise and other personal property deposited and stored with him, for his storage charges, and for all moneys advanced by him for cartage, labor, insurance, weighing, coopering and other necessary expenses to or on such property; and such lien shall extend to and include all legal demands for storage and expenses paid as above, which he may have against the owner of said property; and it shall be lawful for him to detain said property until such money is paid. Id. ch. 127, sec. 2. Above act construed — Lien extends to all such charges against the owner — If possession be lost and subsequently regained, lien revives : A warehouseman lost possession of goods which were in- trusted to him and at the time his charges for storage were unpaid ; subsequently he obtained possession of the goods. In an action against him to recover possession of the goods the warehouseman claimed a lien thereon for his charges due on the former storage as well as for the latter; it was held that under MICHIGAN. 858 this statute he had a vahd lien against the goods for his charges for both the former and latter storage. Kaufman v. Leonard (Wayne County Circuit Court, May, 1908, not yet reported) following Stillman v. Kimberly, 121 N. Y. 393, aff'd 53 Hun, 531. Lien on portion of goods : Where a quantity of goods, wares, merchandise, or other personal property is stored at one time and as one parcel, and portions of it are from time to time delivered without i)ayment of storage charges, said warehouseman shall have a lien upon the portion left for storage and for expenses paid as above on the whole. Compiled Laws, Mich. 1887, ch. 127, sec. 3. Warehouseman to have a lien on property for advanced charges — When not liable for damage to i>roperty : Wherever, in pursuance of any custom or by request of the owner or consignee, such warehouseman on receiving from a common carrier goods, wares or merchandise, or other personal property in apparent good order, may advance the freight due to said carrier on said property, he shall have a lien on said prop- erty for the amount of said freight paid, in addition to his own charges for storage and expenses as above; and if he shall de- liver said goods to the owner or consignee without payment, he may afterwards recover of such owner or consignee the amount of said storage paid. And if the property has been injured be- fore coming to the possession of said warehouseman, wliich injury is not apparent or known to him before or at the time of receiving the property, the owner or consignee must look to the carrier, and cannot recoup his damages in an action by the warehouseman. Id. ch. 127, sec. 4. Lien on property : Whenever any warehousemnn shall, at the request of the owner of personal property stored with him, and during the time that said property so remains in storage, pay any charges or liens on said property, or loan any money to said owner on said property, and the fact and the amount of said loan >^\\a\\ be specified in or indorsed on the warehouse receipt given for said property, said warehouseman shall have a lien on said property for the amount of said advance or loan and interest, 23 35-4 MICHIGAN LAWS. and this lien shall be good as against any assignee of said re- ceipt, and as against every subsequent purchaser or incum- brancer of said property. Id. ch. 127, sec. 5. Lien shall be paraiiiouiit to that of a chattel mortgage — Right of mortgagee : The lien of a warehouseman for customary storage charges, and for necessary expenses paid in reference to the stored prop- erty, as above specified, shall be paramount to that of a chattel mortgage of the property in all cases where said mortgage shall have been made after said goods shall have been received for storage by said warehouseman. But this shall not deprive the mortgagee of the right which he might otherwise have of tak- ing possession of the goods under his mortgage, upon paying the charges up to the date of taking such possession. Id. ch. 127, sec. 6. Record of propei-ty to be kept — Receipt : Every warehouseman shall keep a record book, in which shall be entered immediately upon its receipts, a description of all property deposited with him for storage, including the brand or distinguishing marks on such property, together Math the date of the reception of said property and the name and ad- dress of the owner thereof. And every receipt given for any such property shall also contain the same particulars, and shall be evidence in any action against said warehouseman. Id. ch. 127, sec. 7. Receipts negotiable— Original receipt to be surrendered when — Proviso as to " non-negotiable receipts " : Warehouse receipts shall be negotiable, and may be trans- ferred by indorsement and delivery thereof, and said indorse- ment may be either in blank or to the order of another. Such indorsement shall be deemed to be a warranty that the in- dorser has good title and lawful authority to sell the property named in such receipt subject, however, to the lien of the w^are- houseman for freight and charges on said property. No prop- erty covered by such receipt or voucher shall be delivered by said warehouseman except on the surrender and the cancella- tion of said original receipt or voucher; or in case of partial sale MICHIGAN. 355 or release of the said property, by the written assent of the hokler of said receipt or voucher indorsed thereon: Provided, That all warehouse receipts oi- vouchers which shall have the words "non-negotiable" plainly written, printed or stani{)e(l on the face thereof shall be exempt from the provisions of this section. Id. ch. 127, sec. 8. Receipt not to be issued for property not actually stored : No warehouseman shall issue any receipt or voucher for any goods, wares, merchandise or other personal property to any person or persons purporting to be the owner or owners thereof, unless such property shall have been actually received into store or on the premises of such warehouseman, and shall be in store or on the premises as aforesaid, and under his control, at the time of issuing such receipt or voucher. Id. ch. 127, sec. 9. Receipt not to be issued as security for money loaned : No warehouseman shall issue any receipt or voucher for any personal property to any person, or persons or corporation as security for money loaned or for other indebtedness or in- demnity, unless such property so receipted for shall be, at the time of issuing such receipt or voucher, the property, without incumbrance, of said warehouseman, and shall be actually in store and under the control of said warehouseman at the time of giving such receipt or voucher, and if such property be in- cumbered by prior lien, then the character, extent and amount of that lien shall be fully set forth and explained in the receipt. Id. ch. 127, sec. 10. Duplicate receipt : No warehouseman shall issue any second or duplicate re- ceipt for any goods, wares, merchandise or other personal proj)- erty while any former receipt or voucher for any such property as aforesaid, or any part thereof, shall be outstanding anrl un- cancelled, without writing or stamping in ink across the face of the same ''duplicate." Id. ch. 127, sec. 11. Return of receipt : No warehouseman shall sell or incumber, ship, transfer, or in 356 MICHIGAN LAWS. any manner remove beyond his immediate control, any goods, wares, merchandise, or other personal {property for which a re- ceipt shall have been given by him as aforesaid, whether re- ceived for storing, shipping, grinding, manufacturing or other purposes, without the return of such receipt. Id. ch. 127, sec. 12. Penalty for violjitioii of provisions of tliis act : Any warehouseman who shall willfully violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not ex- ceeding two thousand dollars in amount, or by imprisonment in the state prison or county jail not exceeding two years, or by both such fine and imprisonment ; and all, and every person or persons aggrieved by the violation of any of the provisions of this act, may have and maintain an action at law against the person or persons violating any of said provisions, to recover the damages which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent juris- diction, whether such person shall have been convicted of mis- demeanor as aforesaid under this act or not. Id. ch. 127, sec. 13. Wlien goods may be sold — Proviso : Every warehouseman who shall have had in his possession any goods, wares, merchandise or other personal property, by virtue of any agreement or warehouse receipt for the storage of the same, on which, or any part thereof, shall be due one year's storage, may at any time thereafter proceed to sell said property in the manner provided in this act: Provided, how- ever, That in case of property received from a common carrier as mentioned in section four of this act, upon which property said warehouseman shall have advanced freight charges, and said freight charges shall not be repaid within three months, he may proceed to sell said property at any time after said period of three months. Id. ch. 127, sec. 14. Notice of sale of property— How served : Before any such sale shall be made, at least thirty days' writ- ten or printed notice shall be given to the person or persons MICHIGAN. 367 in whose name or names such property was stored, notifying him or them of the default in payment of such storage charges or advances, if made on said property, and to pay the arrears or amount due, and in case of default in so doing that such goods, wares, merchancUse or other personal property will be sold to pay said charges and advances, at the time and place to be specified in such notice. Such notice may either be served personally upon such person or persons, or sent to him or them by mail, postpaid, addressed to the place of residence given at the time of storing said goods or subsequently, in writing to the warehouseman. In the event that the person or persons storing such goods or merchandise shall have parted with the same, and the purchaser shall have notified the warehouseman, with his address, such notice shall be given to such transferee as well as to the person storing the goods. Id. cli. 127, sec. 15. Notice of sale to be published in newspaper : Before any such sale shall be made, notice thereof shall also be given by publication once a week for three successive weeks before the time of such sale, in a newspaper published in the county where such sale is to take place. Said notice shall spec- ify the time and place of sale, a description of the property, the name of the owner and also of the transferee, if any. Copies of said notice shall also be posted within said time in four of the most public places in the city, village or township where said sale shall be held. Id. ch. 127, sec. 16. Time and place of sale— Proceeds of sale : Such sale shall be by public auction to the highest bidder, and shall be held between the hours of nine in the forenoon and six in the afternoon, and may be held either at the ware- house or other place of deposit of said property. From the proceeds of sale, said warehouseman may retain his charge for storage of the property and any advances made thereon by him, and interest, and the expenses of advertising and sale. Said property may be sokl in bulk or in parcels, according to the discretion of the warehouseman, with the view of obtain- ing as large a price as possible for the same. Id. ch. 127, sec. 17. 358 MICHIGAN LAWS. Record of sale to be kept — Surplus of sale to be paid to county treasurer : Such warehouseman shall make au entry in a book kept for that purpose, of all sales made as aforesaid, and of the surplus of the proceeds of the sale, if any, and such balance or surplus may be paid over to such person or persons entitled thereto, within thirty days after such sale. After the expiration of said thirty ilays, such balance or surplus, if not called for by the owner, shall be paid by such warehouseman to the county treasurer of the county in which such sale was made and said warehouseman shall at the same time file with said treasurer an affidavit, in which shall be stated the name and place of residence, so far as the same are known, of those persons whose goods or merchandise have been sold, the articles sold and the prices at which they were sold, the name and residence of the auctioneer making the sale, together with a copy of the pub- hshed notice. Id. ch. 127, sec. 18. Statement to be filed : The county treasurer shall make an entry of the amount received by him and the time when received, and shall have in his office such statement so delivered to him by said warehouseman. Id. ch. 127, sec. 19. When owner may recover : If the owner of the property sold, or his legal representatives, shall at any time within six years after such money is deposited in the county treasury, furnish satisfactory evidence to the treasurer of the ownership of such property, he shall receive from such treasurer the amount so deposited with him. Id. ch. 127, sec. 20. Amount to be deposited : If the amount so deposited with any county treasurer is not claimed by the owner thereof, or his legal representatives, within the said six years, the same shall belong to the county and shall be credited to the general fund thereof. Id. ch. 127, sec. 21. Perishable property may be sold : Property of a perishable kind and subject to decay by keeping, MICHIGAN. 359 consigned or left for storage in the manner before mentioned, if not taken away within thirty days after il is left, may be sold after giving ten days' notice thereof in Ihc manner above pro- vided, but the sale shall be conducted and the proceeds of the same apphed in the manner before provided in this act; Pro- vided, however, Thjit any property in a state of decay, or that is manifestly liable immediately to become decayed, ma}- i^e summarily sold without notice. The owner of such property shall be liable to said warehouseman, U)v any excess of freight and storage charges above the amount realized from the sale of said property. Id. ch. 127, sec. 22. Warehouseman may replevy i^oocls after delivery : Any warehouseman who has parted with his possession to stored property, through fraud or mistake, to any person not entitled to the possession of the same, may after demand main- tain an action of replevin for the same, or, if the property can- not be found, an action of assumpsit or trover against the per- son converting or removing it. In case of replevin, if there was no fraud in obtaining such possession, the plaintifT shall first tender to the defendant the freight or other proper charges which may have accrued at the time of the demand of posses- sion. Id. ch. 127, sec. 23. When property is taken by attachment warehouseman to give notice to owner — Notice to be delivered personally or by mail : Whenever any goods, wares, merchandise or other j^ersonal property shall be taken from the possession of any warehouse- man, by writ of attachment or replevin, or other legal process, said warehouseman shall at once give written or printed notice thereof to the owner or person named in the warehouse receipt given for said property, or in case said warehouseman shall have received notice of any transfer of said property, and of the name and address of the transferee, he shall also give to said trans- feree like notice of said suit. Said notice may be delivered personally or sent by registered mail, postpaid. If such notice shall be given as aforesaid, said warehouseman shall not in any way be liable on account of said suit to said holder or trans- 360 MICHIGAN LAWS. feree of said property, or the holder of any receipt or voucher given for the same, saving and reserving to such owner or holder the legal remedies for the recovery of the said goods, wares, merchandise and other personal property from any person un- lawfully detaining the same, or for damages against any person unlawfully taking the same. Id. ch. 127, sec. 24. Warehouseman not to be responsible for damages caused by fire : No warehouseman shall be held responsible for any loss or damage to property by fire while in his custody, provided rea- sonable care and vigilance be exercised to protect and preserve the same. Id. ch. 127, sec. 25. When owners may examine property : All persons owning property, or who may be interested in the same, stored in any public warehouse, at all times during ordinary business hours, shall, on production of the warehouse receipt, be at full liberty to examine such property, and all proper facilities shall be extended to such person by the ware- houseman, his agents and employees for such examination. Id. ch. 127, sec. 26. Warehouse companies — Authority to incorporate : The People of the state of Michigan enact: That any five or more persons, residents of this state, may associate themselves together as a body corporate, for the purpose of constructing, owning and controlling warehouses for the storage of grain and other commondities. Id. ch. 183, sec. 1. Conditions — Affidavits required ; Such persons shall, under their hands, and seals, make and subscribe to a certificate, which shall specify: First, the name and the business of said association ; second, the amount of the capital stock thereof, and the amount of cash capital actually paid in; third, tiie number of shares into which said capital stock shall be divided, and it is hereby provided that such shares shall not be less than twenty-five dollars each ; fourth, the names of the stockholders, their respective residences, and the num- bers of shares held by each person ; fifth, the amount of all MICHIGAN. 361 property, real and personal, that may be held by such cor- poration; sixth, the term of the existence of said corporation, not to exceed thirty years. Which certificate shall be verified by the affidavits of the persons subscribing the same, ami be acknowledged before some officer authorized to take the acknowledgment of deeds, and shall be recorded in the office of the secretary of state, and in the office of the clerk of the county in which such corporation is located. Id. ch. 183, sec. 2. Body corporate — Powers, etc. — Limit of property — Pro- viso : Upon compliance by such persons with the provisions of the preceding section, such association shall be and is hereby de- clared a body corporate, empowered to hold and possess so much real and personal estate that may be purchased by it, or that may be given, granted, or devised to it as a corporation, in ac- cordance with the provisions of law at the time such gift, grant or devise shall take effect, as may be necessary for the use and occupation of said corporation for the purposes of its business, not to exceed (exceeding) in value two million dollars: Pro- vided, That all the property of such corporation shall be subject to taxation, and shall be used for no other purpose than the legitimate business of said corporation as hereinafter stated. Id. ch. 183, sec. 3. Right to build, and receive grain, etc., on storage : Any corporation formed under the provisions of this act is hereby authorized to erect a warehouse or warehouses, on any portion of the real estate that may be owned or acquired by it in accordance with the preceding section, and to receive for storage therein grain and other commodities, to fix the price for such storage, and to make all necessary rules and regulations for the management of its said business. Id. ch. 183, sec. 4. Manner of calling the first meeting — Election of officers — Proviso : When any corporation shall be formed under this act, any three of those associated may call the first meeting of the cor- poration, at such time and place as they may appoint, by giving 362 MICHIGAN LAWS. notice thereof, by j)ul)lishiiig the same two or more times in some newspaper printed in the county in which the place of business of said corporation is located, at least fifteen days be- fore the time appointed for such meeting; at which meeting, or at any adjourned meeting thereof, the stockholders of siud corporation may elect such officers of said corporation as they shall deem necessary for the proper management of the prop- erty and business of said corporation, and may also make all necessary by-laws and regulations for the proper management of their affairs: Provided, That said by-laws and regulations shall be in conformity with the provisions of chapter seventy- three of the compiled law^s relative to corporations. Id. ch. 183, sec. 5. Other provisions : All corporations formed under this act shall be subject to the general provisions of chapter seventy-three of the compiled laws, in all matters not herein enumerated and specified so far as the same may be applicable thereto. Id. ch. 183, sec. 6. Disposition of luiclaimed property — Description and date of reception of property to be entered in certain cases ; Whenever any personal proj^erty shall be consigned to, or deposited with any forwarding merchant, wharf keeper, ware- house keeper, tavern keeper, or the keeper of any depot for the reception and storage of trunks, baggage, and other personal property, such consignee or bailee shall immediately cause to be entered in a book to be provided and kept by him for that purpose, a description of such i)roperty, with the date of the reception thereof. Id. ch. 148, sec. 1. When notice to be j?iven to owner by letter : If such property shall not have been left with such consignee or bailee, for tho purpose of being forwarded or otherwise dis- posed of according to directions received by such consignee or bailee, at or before the time of the reception thereof, and the name and residence of the owner of such property be known or ascertained, the person having such property in liis custod}' shall immediately notify such owner by letter, to be directed MICH Id AN. 363 to him, and deposited in a post-office, to be transmitted by mail, of the reception of such property. Id. ch. 148, sec. 2. Notice when and how to be ]>uhlishe(l : In case any such property shall remain unclaimed for three months after its reception as aforesaid, the person having pos- session thereof shall cause a notice to Ix' publishcfl once in each week for four successive weeks in a newspaper puljlishcd in the same county, if there be one, and if not, then in some paper published at the seat of government, describing such property, and specifying the time when it was so received, and stating that unless such property shall be claimed within thi-oc months from the first publication of such notice, and tlie lawful charges thereon paid, the same will be sold according to the statute in such case made and provided. Id. ch. 148, sec. 3. Proceedings if the property remain nnclaimed : In case the owner or person entitled to such property shall not, within three months after the first publication of such notice, claim such property and pay the lawful charges thereon, including the expense uf such publication, the person having possession of the property, his agent or attorney, may make and deliver to any justice of the peace of the same county, an affi- davit, setting forth a description of the property remaining un- claimed, the time of its reception, the jniblication of the notice, and whether the owner of such property be known or unknown. Id. ch. 148, sec. 4. Inventory and order for sale when to be made by justice : Upon the delivery to him of such affidavit, the justice shall cause such property to l)e opcMunl and examined in his presence, and a true inventory thereof to be made, and shall make and annex to such inventory an order under his hand, that the property therein described be sold by any constable of the city or township where the same shall be, at public auction, upon due notice. Id. ch. 148, sec. 5. Constable to give notice and sell property : It shall be the duty of the constable receiving such inventory and order, to give ten days' notice of the sale, by posting up 364 MICHIGAN LAWS. written notices thereof in three pubhc places in the city or township, and to sell such property at public auction for the highest price he can obtain therefor. Id. ch. 148, sec. 6. Return of constable : Upon completing the sale, the constable making the same shall indorse upon the order aforesaid a return of his proceed- ings upon such order, and deliver the same to such justice, together with the inventory, and the proceeds of the sale, after deducting his fees, which shall be the same as upon an execu- tion. Id. ch. 148, sec. 7. Disposition of proceeds, etc. : From the proceeds of such sale, the justice shall pay the charges and expenses legally incurred in respect to such property, or a ratable proportion to each claimant, if there be not suffi- cient for the payment of the whole; and such justice shall as- certain and determine the amount of such charges in a summary manner, and shall be entitled to one dollar for each day's services rendered by him in such proceedings. Id. ch. 148, sec. 8. Inventory, etc., to be delivered to county treasurer : Such justice shall deliver to the treasurer of the county in which the property was sold, the affidavit, inventory and order of sale, and return herein before mentioned, together with a statement of the charges and expenses incurred in respect to such property, as ascertained and paid by him, wdth a statement of his own fees, and shall at the same time pay over to such treasurer any balance of the proceeds of the sale, remaining after payment of such charges, expenses and fees. Id. ch. 148, sec. 9. Entry, etc., to be made by treasurer : The treasurer shall file in his office, and safely keep all the papers so delivered to him, and make a proper entry of the pay- ment to him of any moneys arising from such sale, in the books of his office. Id. ch. 148, sec. 10. When owner may receive amount deposited with treasurer : If the owner of the property sold, or his legal representatives MICH Hi AN. 865 shall, at any time within five years after such moneys shall he deposited in the county treasury, furnish satisfactory evidence to the treasurer of the ownershi]) of such property, he or they shall be entitled to receive from such treasurer the amount so deposited with him. Id. eli. 148, sec, 11. If amuiint not paid to owner, to be paid into state treas- ury : If the amount so deposited with any county treasurer shall not be paid to such owner or his legal representatives witliin the said five years, such county treasurer shall pay such amount into the state treasury, to the credit of the general fund. Id. ch. 148, sec. 12. Owners, etc., of factories, warehouses, etc., to provide fire escapes : It shall be the duty of the owner, proprietor, or lessee of any building, factory, mill, warehouse, or workshop, more than two stories in height, where male or female help is employed above the second story in such building, to provide suitable ladders, or such other fire escapes as may be deemed necessary, for the escape of such help or other persons occupying such building, in cases of fire, as provided in section four of this act. Id. sec. 5534. Sliops, etc., not to be kept open on the first day of the week, etc. : No person shall keep open his shop, warehouse, or work- house, or shall do any manner of labor, business, or work, or be present at any dancing, or at any public diversion, show, or entertainment, or take any part in any sport, any game, or play on the first day of the week. The foregoing provisions shall not apply to works of necessity and charity, nor to the making of mu- tual promises of marriage, nor the solemnization of marriages. And every person so offending shall be punished by a fine not ex- ceeding ten dollars for each offense. Id. ch. 154, sec. 1. Burning in tlie night a meetinghouse, etc. : Every person who shall willfully and maliciously burn in the night-time, any meetinghouse, church, courthouse, college, 366 MTCHIOAX LA AYS. academy, jail, railroad depot, or other building erected for public use; or any banking house, warehouse, store, manu- factory, or mill of another, being with the property therein contained, of the value of one thousand dollars; or any barn, stable, shop or office of another, within the curtilage of any dwelling house; or any other building by the burning whereof anv building mentioned in this section shall be burnt in the •/ CD night-time, shall be punished by imprisonment in the state prison for any term of years. Id. ch. 320, sec. 3. Biiruiiig of the same in the day-time : Every person who shall willfully and maliciously burn, in the day-time, any building mentioned in the preceding section, the punishment for which, if burnt in the night-time, would be im- prisonment in the state prison for any term of years, shall be punished by imprisonment in the state prison not more than ten years. Id. ch. 320, sec. 4. Buriiiug certain buildings, etc., in niglit or day time : Every person who shall willfully and maliciously burn, either in the night-time or in the day-time, any banking house, ware- house, store, manufactory, mill, barn, stable, shop, office, out- house, or other building whatsoever of another, other than is mentioned in the third section of this chapter, or any bridge, lock, dam or flume, or any ship, boat, or vessel of another, lying within the body of any county, shall be punished by imprison- ment in the state prison not more than ten years. Id. ch. 320, sec. 5. Penalty for setting fire to buildings : Everj' person who shall set fire to any building mentioned in the preceding sections or to any other material with intent to cause any such building to 1je burned, or shall, by any other means or by soliciting any othei- person, attempt to cause any such building to be burned, whether such building is owner or occupied by himself or herself or by another, shall be punished by imprisonment in the state prison not more than fifteen years, or in the county jail not more than one year, or by a fine not exceeding one thousand dollars. Id. ch. 320, sec. 6. MICHIGAN'. 367 Penalty for breaking into, etc., olHee, warehouse, etc., in night-time : Every person who shall break and enter, in the night-time, any office, shop, store, saloon, railroad depot, warehouse, mill, schoolhouse or factory, not adjoining to or occupied witii a dwelling house, or any railroad car, shop, boat or vessel within the body of any county, with intent to coiiuiiit the criiiie of nmrder, rape, robbery, or any other felony or larceny, shall be j)unished by imprisonment in the state prison not more than fifteen years. Id. ch. 320, sec. 12. Penalty for entering dwelliugs, etc., in the night, without breaking, in day-time, etc. : Every person who shall enter in the night-time without break- ing, or shall break and enter in the day-time, any dwelling house, or any outhouse thereto adjoining, kept therewith, or any office, shop, store, saloon, restaurant, barn, granary, rail- road car, railroad depot, warehouse, mill or factory, or any ship, boat, or vessel, within the body of any county, with intent to commit the crime of murder, rape, robbery, or any other felony or larceny, the owner of any other person lawfully therein being put in fear, shall be punished by imprisonment in the state prison not more than ten years. Id. ch. 320, sec. 13. Penalty for entering dwelling, etc., with intent to commit crime, etc., proviso as to penalty for unlawful entry in freight car to obtain carriage : Every person who shall enter any dwelling house in the night- time, without breaking, or shall break or entei' in the day-time, any dwelling house, or any outhouse thereto adjoining and oc- cupied therewith, or any church, office, shop, store, saloon, restaurant, barn, granary, railroad car, railroad depot, ware- house, mill, schoolhouse or factory, or any ship, boat or vessel lying within the body of any county, with intent to commit the crime of murder, rape, robbery or any other felony or larceny, shall be punished by imprisonment in the state prison not more than five years, or by a fine not exceeding five hundred dollars and by imprisonment in the county jail not more than one year: Provided, That every person who shall unlawfully break into any railroad freight car, or unlawfully enter the same without break- 368 MICHIGAN LAWS. ing, with intent to obtain carriage in such car, the same being a part of a freight train, shall be punished by a fine not exceed- ing fifty dollars, or imprisonment in the county jail not more than sixty days, or both such fine and imprisonment. Id. ch. 320, sec. 14. Ste.iling in day-time in dwelling, etc., or bre.iking in in the night and stealing in public building : Every person who shall steal in the day-time, in any dwelling house, office, store, shop, warehouse, mill, factory, ship, boat or vessel, or shall break and enter in the night-time, any meeting- house, church, courthouse, college, academy, or other building erected for public use, and steal therein, shall be punished by imprisonment in the state prison not more than five years, or by fine not exceeding five hundred dollars, and imprisonment in the county jail not more than one year. Id. ch. 320, sec. 15. Embezzlement of goods, etc., which may be the subject of larceny — Deemed larceny : If any person to whom any money, goods, or other property which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny. Id. ch. 320, sec. 34. Above statute construed — Existence of lien, will not justify conversion — Hotel keeper — Actual conversion and intention essential : The fact that one was a guest at a hotel and that the pro- prietor thereof would have a lien upon the baggage of his guest for the amount of charges of the proprietor for board gives to the latter no authority to dispose of the property as his own. The contention that the hotel keeper had a lien on the baggage and that therefore he could not be guilty of larceny in relation thereto cannot be sustained under the above statute. An in- struction to the jury to the following effect held to be correct, that in order to find a conversion they must find an actual con- version by the proprietor to his own use and also an intent MICHIGAN. 3)5!» existing at the time of such act of conversion, to deprive the owner of his property therein and to use it hiniseh"; further, that if the proprietor acting under the beUef that he had a lien on the goods for his charges and that therefore he liad a right to dispose of the same and (Ud so under this belief that this action on the part of the proprietor would negative an intent to deprive the owner of his goods. People v. Husband, 36 Mch. 300. Penalty for iiiiikiii!^ fraudulent warehouse receipts : If any warehouseman or forwarding merchant or any other person, or the agent or clerk of any warehouseman or forward- ing merchant or other person, shall knowingly execute and deliver to any person a receipt or certificate purporting to be for flour, wheat, pot or pearl ashes, or any grain, produce or thing of value, as being at the time of executing and delivering such receipt in possession of such warehouseman or forwarding merchant, or other person, or in store for the person or persons, co-partnership, or firm named in any such receipt or certificate, without being at the time of executing and delivering such re- ceipt in the actual possession of such flour, wheat, pot or pearl ashes, or any grain, produce, or thing of value, as expressed in such certificate or receipt, such warehouseman, forwarding merchant, or other person, agent or clerk so executing and de- livering any such receipt, or certificate shall be deemed guilty of a felony, and on conviction thereof shall be punished by a fine not exceeding two thousand dollars, or imprisonment in the state prison not exceeding three years, or by both such fine and imprisonment, in the tliscretion of the court; and sending or forwarding to a person who shall be duly entitled or authorized to receive the same, by the public mails, or through the gov- ernment post-office, or by the hands of any person or persons, any such receipt or certificate as aforesaid, shall be deemed to be a good and lawful delivery thereof, within the meaning of this section. Compiknl Laws, Mich. 1S97, ch. 320, sec. 35. Fraudulent disj)osition of property by agents, etc. : Whenever money, or any goods, wares, merchandise or other personal property, shall be delivered, committed or intrusted to, or put in charge of, any person or persons as agent or agents 24 370 MICHIGAN LAWS. with written instructions, or upon any written agreement signed by the party so instructed as agent, or such written instructions shall be dehvered, or such written agreement shall be made, at any time after delivery to such agent or agents, of any money or goods, wares, merchandise, or other personal property, which instructions or agreements shall express the appropriation, pur- pose or use to which such money shall be applied, or the terms, mode or manner of the application or employment of such money, or which shall express or direct the disposition or use to be made by such agent, of any goods, wares, merchandise, or other per- sonal property, so delivered or intrusted to such agent; if the person or persons to whom any such money or goods, wares or merchandise or other personal property shall be so delivered, committed or intrusted, shall purposely and intentionally apply, appropriate, dispose of, or use any such money or goods, wares, merchandise or other personal property in any other way or manner, or for any other purpose, use or intent, than such as shall be expressed in such written instrument or agreement touching the same, the person or persons so doing shall be deemed guilty of felony, and on conviction thereof before a competent tribunal, shall be subject to a fine not exceeding two thousand dollars, or imprisonment in the state prison for a term not exceeding three years, or by both such fine and im- prisonment, in the discretion of the court. Id. ch. 320, sec. 36. Penalty for enibezzleiueiit of property receipted for : If any warehouseman or forwarder, or other person who shall have issued a receipt or certificate for property, as recited in the thirty-fifth section of this chapter, or shall receive property on deposit or for sale on a specific contract or understanding, and shall, after issuing said receipt or certificate, or receiving such property, embezzle, dispose of, or convert to his own use, such property or the moneys received on the sale of such prop- erty, contrary to such receipt or certificate, or to the previous contract or understanding, he shall be deemed guilty of a felony and on conviction thereof shall be punished by imprisonment in the state prison not more than five years, or by a fine not exceeding five thousand dollars, or l)y imprisonment in the county jail not more than one year. Id. ch, 320, sec. 37. MICHIGAN. 371 DECISIONS AFFECTING WAREHOUSEMEN. B. Bailment and sale — Fads constitutiny bailment — Trover — Evi- dence as to usage. An action of trover was brought against the defentlant, a warehouseman, for the recovery of the vahu; of certain wheat stored with him. The defendant had dehvered to the plaintiff a large quantity of wheat and this action was brought for the recovery of a quantity still due the plaintiff, which allegation was denied by the defendant. Evidence was received of the usage whereby wheat, so stored on similar receipts, was mixed with other wheat of like kind and quality and that a delivery of the same wheat is never expected, but only of similai' wheat of the same quality. In the lower court, upon the above state of facts, judgment was rendered for the defendant on the ground that the plaintiff should have sought his remedy in assumpsit, and not in trover, the transaction not creating a bailment but amounting to a sale. It was held, on appeal, that the question of the admissibility of the evidence showing the usage as to the mixture of grain was a very doubtful one, but granting that such usage was known to the parties and was incorporated in their agreement, that the transaction nevertheless constituted a bailment and not a sale. Erwin v. Clark, 13 Mich. 10. Same — Same — Intention of parties in receipt construed — Usage. The plaintiff delivered wheat to the defendants, merchant millers, and received a receipt therefoi- in the following terms: "No. 96 820 bus. Crescent Mills. "Grand Rapids, Mirfi. March 26, 1.S7S. " Received of William B. Ledyard by L. Byrne, valid pledge thereof. The court further held that the mere fact that the receipt in ques- tion mentioned both number one and number two wheat did not constitute an indefiniteness which would vitiate the pledge although the quantity of each kind of wheat was not mentionetl in the receipt. And that in the absence of any specification of the quantity of each kind that was to be held, the legal construe- 374 MICHIGAN DECISIONS. tion would entitle the pledgee to an equal amount of each kind if it remained unmanufactured. Merchants' & Mfgrs: Bank of Detroit v. Hibhard et al., 48 Mich. 118. Elevator receipts — Valid tender by. An offer to deliver grain represented by elevator receipts, where title is in such receipts, held to be valid tender and that the delivery of such receipts would be a delivery of the grain represented thereby. Gregory et al. y. Wendell et al, 40 Mich 432. R. Bill of lading — Indorsement — Effect of. Indorsement of a bill of lading is no more than an assignment of the shipper's obligation, and of the property called for by the bill. It involves no promise on the part of the indorser to do anything towards forwarding the property to its destina- tion. Maybee & Hasley v. Tregent, 47 Mich. 495. MINNESOTA. 37i CHAPTER XXIII. MINNESOTA. LAWS PERTAINING TO WAREHOUSEMEN. Consij£?nee to keep record of personal property : Whenever any personal property is consigned to, or deposited with, any forwarding merchant, wharf Iceeper, warehouse keeper, tavern keeper, express company, or the keeper of any depot for the reception and storage of trunks, baggage, merchandise, or other personal property, such consignee or bailee shall imme- diately cause to be entered, in a book kept by him, a description of such property, with the date of the reception thereof. G. S. 1866, ch. 19, sec. 15; G. S. 1878, ch. 19. sec. 11. Property may be sold — When : If any such property is not claimed and taken away within one year after the time it is so received, the consignee or bailee may at any time thereafter proceed to sell the same in the manner provided in this chapter. G. S. 1866, ch. 19, sec. 17; G. S. 1878, ch. 19, sec. 13. Notice of sale — How given : Before any such property is sold, if the name and residence of the owner thereof are known, at least sixty days' notice of such sale shall be given him, either personally or by mail, or by leaving at his residence or place of doing business; but if the name and residence of the owner are unknown, the person hav- ing the possession of such property shall cause a notice to be published, containing a description of the propertv; for the space of six weeks successively, in a newspaper, if there is one, printed and published in the same county; if there is no such newspaper, then said notice shall be published in a newspaper printed and published at the capital of the state; and the last publication of sudi notice shall be at least eighteen days pre- 376 MINNESOTA LAWS. vious to the time of sale. G. S. 1866, ch. 19, sec. 18; G. S. 1878, ch. 19, sec. 14. Affidavit to be made and delivered to justice : If the owner or person entitled to such property does not take the same away, and pay the charges thereon after sixty days' notice has been given, the consignee or bailee, his agent or attorney, shall make and deliver to a justice of the peace of the same county an affidavit setting forth a description of the prop- erty remaining unclaimed, the time of its reception, the publica- tion of the notice, and whether the owner of such property is known or unknown. G. S. 1866, ch. 19, sec. 19; G. S. 1878, ch. 19, sec, 15. Justice to make inventory : Upon the delivery to him of such an affidavit, the justice shall cause such property to be opened and examined in his presence, and a true inventory thereof to be made, and shall annex to such inventory an order under his hand, that the prop- erty therein described shall be sold by any constable of the county at public auction. G. S. 1866, ch. 19, sec. 21 ; G. S. 1878, ch. 19, sec. 17. Constable to give notice of sale : The constable receiving such inventory and order shall give ten days' notice of the sale, by posting ujd written notices thereof in three or more places in such county, and shall sell such prop- erty at public auction to the highest bidder, in the same manner as provided by law for sale under executions from justices' court. G. S. 1866, ch. 19, sec. 21; G. S. 1878, ch. 19, sec. 17. To made a return to justice : Upon completing the sale, the constable shall indorse upon the order aforesaid a return of his proceedings thereon, and re- turn the same to the justice, together with the inventory, and the proceedings of the sale after deducting his fees. G. S. 1866, ch. 19, sec. 225; G. S. 1878, ch. 19, sec. 18. Proceeds of sale — How disposed of : From the proceeds of such sale, the justice shall pay all legal MINNKSOTA. 877 charges incurred in relation to such pro[)erty, or a ratable pro- portion of each charge, if the i)roceeds of said sale are not suffi- cient to pay all the charges, and the balance, if any, he shall imme(Hately pay over to the treasurer of the coiinty in wliicii the same is sold, and deliver a statement therewith, containinsr a description of the property sold, the gross amount of such sale, and the amount of costs, charges and expenses paid to each person. G. S. 1866, ch. 19, sec. 23; G. S. 1878, ch. 19, sec. 19. Duty of county treasurer : The county treasurer shall make an entry of the amount re- ceived by him and the time when received, and shall file in his office such statement so deliven^d to him by the justice. G. 8. 1866, ch. 19, sec. 24; G. S. 1878, ch. 19, sec. 20. Mouey deposited to be delivered to owner : If the owner of the property sold, or his legal representatives, shall, at any time within five years after such money is deposited in the county treasury, furnish satisfactory evidence to the treasurer of the ownership of such property, he shall receive from such treasurer the amount so deposited with him. G. S. 1866, ch. 19, sec. 25; G. S. 1878, ch. 19, sec. 21. UnclaiiMed money to belony: to county : If the amount so depositetl with any county treasurer is not claimed by the owner thereof or his legal representatives within the said five years, the same shall belong to the county, and may be disposed of as the board of commissioners direct. G. 8. 1866, ch. 19, sec. 26; G. S. 1878, ch. 19, sec. 22. Perisliable property — How sold : Property of a perishable kind and subject to decay by keepiRg, consigned or left in the manner before mentioned, if not taken away within thirty days after it is left, may be sold by giving ten days' notice thereof; the sale to be conducted, and the pro- ceeds of the same to be applied, in the manner before provided in this chapter: Provided, That any property in a state of decay, or that IS manifestly liable immediately to become decayed, may be summarily sold by order of the justice of the peace, 378 MINNESOTA LAWS. after inspection thereof as provided in section twenty of this chapter. G. S. 1866, ch. 19, sec. 27; G. S. 1878, ch. 19, sec. 23. Fees of justice and constable : The fees allowed to any justice of the peace under the pro- visions of this chapter shall be one dollar for each days' service, and to any constable the same fees as are allowed by law for sale upon an execution, and ten cents per folio for making an in- ventory of property. G. S. 1866, ch. 19, sec. 28; G. S. 1878, ch. 19, sec. 24. Unclaimed baggage, etc. — Delivery to warehouseman : When any personal baggage shall have remained, for a period of thirty days, in the possession of any carrier of passengers, at any station of such carrier in this state, to which it may have been carried in performance of the contract of such carrier relative thereto, or wJien any freight or merchandise shall have remained, for a period of sixty days, after notice given by mail to the consignee thereof, in possession of any common carrier, at any office or station of such carrier within this state, to which such freight or merchandise may have been consigned, then and in that case such carrier, upon payment of its just charges for the transportation and storage of the same, may deliver such baggage, freight or merchandise to any warehouseman or storage companj^ doing business in this state. 1885, ch. 202, sec. 1 ; G. S. 1878, v. 2, ch. 19, sec. 27a. Storage lien : Any warehouseman or storage company receiving any prop- erty, as provided in section one of this act, shall provide suitable storage for the same; and such warehouseman or storage com- pany shall have a lien upon such property for all charges paid to* the carrier from which the same was received, and for all reasonable charges for handling, storage, insurance, and other expenses necessarily incurred in safely keeping the same, with legal interest on all thereof. G. S. 1885. ch. 202, sec. 2; G. S. 1878, V. 2, ch. 19, sec. 276. Sale — Notice : If the owner of such property, or his agent, does not appear MTNXKSOTA. 879 and duly claim the same within twelve months from its receipt from the carrier, such warehouseman or storage company may proceed to sell the same, at public auction, to the highest bidder. A notice specifying the time and place of such sale shall be pub- lished at least once in each week for three successive weeks prior to such sale, in a newspaper printed and published at the capital of the state, and also in a newspaper printed and j)ul)lished in the county where such sale is to take })lace, if there be such newspaper, and also mailing a copy thereof to the owner, if his address be known, and by posting a copy of the same in three public places in the town, city, or village where the proj)- erty is to be sold. G. S. 1885, ch. 202, sec. 3; G. S. 1878, v. 2. ch. 19, sec. 27r. Sale — Proceeds : The proceeds of all sales made under the authority of this act, or so much thereof as may be necessary, shall be applied to the payments of all reasonable charges of such warehouse- man or storage company, and the expenses of such sale; and the surplus, if any, shall be immediately paid over to the treas- urer of the county in which the property was sold, accompanied by a statement as provided in section nineteen of chapter nine- teen of General Statutes of one thousand eight hundred and seventy-eight, which statement shall be filed and surplus dis- posed of in all respects as provided in sections twenty, twenty- one and twenty-two, of said chapter nineteen. 1885, ch. 202, sec. 4; G. S. 1878, v. 2, ch. 19, sec. 27d. Warehouseman — Bond : Before any warehouseman or storage company shall be en- titled to the benefit of the provisions of this act, such warehouse- man or storage company shall execute a bond to the state of Minnesota, with at least two sureties, to be approved by the governor of the state, in the sum of ten thousand dollars, con- ditioned for the faithful performance of all duties injoined upon such warehouseman or storage company under the provisions of this act, which bond shall be for the use of any party interested, and shall be deposited in the office of the secretary of state. 1885, ch. 202, sec. 5; G. S. 1878, v. 2. ch. 19, sec. 27e. 380 MINNESOTA LAWS. Act retrospective : The provisions of this act shall apply to all property now held by any carrier in this state, or which has been heretofore delivered to any warehouseman or storage company in accord- ance with the provisions of this act, as fully as though this act had been in force at the time of the receipt of such property by such carrier, warehouseman, or storage company. 1885, ch. 202, sec. 6; G. S. 1878, v. 2, ch. 19, sec. 27/. Lieu of comiuoii carriers and stable keepers : Any person who is a common carrier, and any person who at the request of the owner or lawful jjossessor of any personal property carries, conveys or transports the same from one place to another, and any person who safely keeps or stores any per- sonal property, and any keeper of a livery or boarding stable for horses, mules, cattle or gtock, and any person who pastures or keeps the same, at the request of the owner or lawful pos- sessor thereof, shall have the same lien for his charges for carry- ing, transporting, storing, keeping, supporting and caring for such property, and the same right to hold and retain possession thereof, and the same power of sale for the satisfaction of his reasonable charges and expenses upon the same conditions and restrictions as provided in the preceding section. 1889, ch. 199, sec. 2. drain delivered for storage deemed a bailment : That whenever any grain shall be delivered for storage to any person, association or corporation, such delivery shall in all things be deemed and treated as a bailment, and not as 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. And in no case shall the grain so stored, and which such bailee may hereafter be required to keep on hand, be liable to seizure upon any process of any court in an action against such bailee. 1887, ch. 86, sec. 1 ; G. S. 1878, ch. 124, sec. 13. Receipt — Contents — Penalty for giving false receipt : Whenever any grain shall be deposited in any warehouse. MINNESOTA. 381 (^levator, or other clppositary for storage, tlu.' bailee tiuMeof shall issue and deliver to the; person so storinjr the same, a re- ceipt or other written instrument, which shall, in clear terms, state the amount, kind and grade of the grain stored, the terms of storage, and if advances are made, the words "advance made"; which receipt shall be prima facie evidence; that the holder thereof has in store with the party issuing such receipt, the amount of grain of the kind and grade mentioned in such receipt; and any warehouseman, proprietor of an elevator, or bailee, who shall issue any receipt or other wiitten instrument for any grain received for storage, which shall be false in any of its statements, shall be guilty of a misdemeanor, and shall upon conviction be punished by a fine not exceeding three hundred dollars, or imprisonment in the county jail not exceeding three months, or by both such fine and imprisonment. 1876, ch. 86, sec. 2; G. S. 1878, ch. 124, sec. 14. Full quantity and ^rade to be delivered : It shall be the duty of every person, association or corpora- tion receiving any grain for storage, .upon the demand of the bailee, or his assigns or representatives, and tender of all charges for storage and money advanced by the bailee, and upon the faith and credit of such bailment, and offer to surrender and (any) receipt or other written instrument evidencing the re- ceipt of such grain for storage, to deliver to the person entitled thereto a quantity of grain equal in amount and of the kind and grade delivered to such bailee. Every person and every member of any association or corporation who shall, after de- mand, tender and offer, as provided in section three of this act, willfully neglect or refuse to deliver to the person making such demand, the full amount of grain of the kind and grade which such person is entitled to demanil of such bailee, shall be deemed guilty of larceny, and shall be punished by fine or imprisonment, or both, as is prescribed by law for the punishment of larceny. 1876, ch. 86, sec. 3; G. S. 1878, ch. 124, sec. 15. Same — Action for failure to redeliver : Whenever, upon any demand, tender or offer, as provided in section three of this act, any such bailee shall neglect or refuse 382 MINNESOTA LAWS. to (leli\'er aiiy grain received for storage, or a quantity of grain equal in amount and of the same kind and grade as received, any sucli bailor, or his assigns or representatives, may com- mence in any court having jurisdiction thereof, an action against such bailee, to recover possession of a quantity of grain ecjual in amount and of the same kind and grade as that delivered to such bailee, and in every action it shall be the duty of the sheriff or other pro})er officer, to take into his possession, from the warehouse of such bailee, or other place where he may have the same, a quantity of grain equal in amount and of the same grade as that specified in tlic affidavit made on writ issued in such action. Such action shall be commenced and jjrosecuted, if in district court, in the manner provided in actions for the claim and delivery of personal property; and if in justice courts, in the manner provided in actions for replevin. 1876, ch. 86, sec. 4; G. S. 1878, ch. 124, sec. 16. Warehouse receipts, etc., negotiable — Exception : Warehouse receipts, given for any goods, wares or merchan- cUse, grain, flour, produce or other commodity, stored or de- posited with any warehouseman, or other person or corpora- tion in this state, or bills of lading, or receipt for the same, when in transit by cars or vessels to any such warehouseman, or other person, shall be negotiable, and maj^ be transferred by indorsement and delivery of such receipt or bill of lading; and any person to whom the said receipt, or bill of lading, may be transferred, shall be deemed and taken to be the owner of the goods, wares or merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges thereon: Provided,T\vAt all warehouse receipts, or 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. 1876, ch. 86, sec. 5; G. S. 1878, ch. 124, sec. 17. No delivery, etc., witlioiit authority of owner : No person receiving or holding grain in store shall sell or otherwise (hspose of, or deliver out of the storehouse or ware- house where such grain is held or stored, the same, or any part MINNESOTA. 883 thereof, without the express authority ol i\n: cnvner of such grain and the return of the n^ceipt given for the same, except as herein provided. 1876, ch. 86, sec. 6; G. S. 1878, ch. 124, sec. 18. Different grades not to be mixed, etc. : It shall be unlawful lor any warehouseman, oi- owner or keeper of any elevator, or any agent of either, to mix together any grain of different grades, so received in store, or to select different (jualities thereof of the same grade for the jjurpose of storing or delivering the same, or attempt to deliver grain of one grade for another, or in any way to tamper with any grain of other persons while in his possession or custody, with a view to securing any profit to himself, or any one, without the consent of the owner. 1876, ch. 86, sec. 7; G. S. 1878, ch. 124, sec. 19. Penalties : Any warehouseman or other person violating any of the pro- visions of section six or section seven of this act, shall be deemed guilty of a felony, and upon conviction shall be fined in a sum not over one -thousand dollars or imprisonment in the state prison of this state not exceeding five years, or both. 1876, ch. 86, sec. 8; G. S. 1878, ch. 124, sec. 20. Maximnni rate for liandling grain in elevators, etc. — IVIio not to be inspectors : It shall not be lawful for any railroad company or person, association or corporation engaged in the business of keeping an elevator or warehouse situated upon the line of any railroad in this state, for receiving and handling grain for other j^ersons, to charge any greater sum than two cents per bushel for re- ceiving, elevating, handling and delivering such gi'ain; nor shall it be lawful for any such railroad company, person, association or corporation to employ or allow any person to act as in- spector of the grain received into their elevator or warehouse who is in any manner directly or indirectly interested in the purchase or shipping thereof. 1874, ch. 31, sec. 1 ; G. S. 1878, ch. 124, sec. 7. Wlien railroad company refnses to handle grain at le^ral rate — Private persons, etc., may erect elevators, etc. : When any railroad company shall refuse to receive, store, 384 MINNESOTA LAWS. handle and deliver grain, at any station on the road, at the rates provided in section one of this act, then in such case, said railroad company shall, upon demand, allow any person, asso- ciation or corporation, to erect and maintain, at such station, adjoining the railroad track, or side-track, warehouses to re- ceive, store and ship grain; or, at the option of the railroad company, such company shall build antl maintain a side-track to and for the use and accommodation of any warehouse near the station. And no ^xn-son keeping a warehouse or elevator shall in any case be compelled to pay the railroad company or any person keeping any other warehouse or elevator, any sum or compensation for or on account of the privilege of doing business. 1874, ch. 31, sec. 2; G. S. 1878, ch. 124, sec. 8. Peualty for violatiug tliis act : Any railroad company, or any keeper of any warehouse or elevator, or an}^ person, who shall violate any of the provisions of this act, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in a sum not less than one hundred nor more than five hundred dollars, in the discretion of the court. 1874, ch. 31, sec. 3; G. S. 1878, ch. 124, sec. 9. Chapter 144, General Laws, 1885. An Act to regulate warehouses, inspection, weighing and handling of grain. Be it enacted by the Legislature of the State of Minnesota : Section 1. Dulutli, Minneapolis and St. Paul elevators — Public. All elevators or warehouses located at Minneapolis, St. Paul and Duluth, in this state, in which grain is stored in bulk, and in which the grain of diffpront owners is mixed together, or in which grain is stored in such a manner that the identity of the different lots or parcels cannot be accurately preserved, and doing business for a compensation, are hereby declared to be ))ublic warehouses. Sec. 2. Proprietors of public warehouses to procure license. The proprietor, lessee, or manager of any public warehouse shall be required, before transacting any business, to procure from the railroad and warehouse commissioners, a license permitting such proprietor, lessee or manager to transact business as s MINNESOTA. 385 public warehouseman under the hiws of this state; wliieli Hcense shall be issued by the railroad and warehouse coiiiniissioners upon written a[)plication, which shall set forth the location :ind name of such warehouse, and the individual name of each per- son interested as owner or principal in the management of the same; or, if the warehouse be owned or managed by a corpora- tion, the name of the president, secretary and treasurer of such corporation shall be stated, and the said license shall give au- thority to carry on and conduct the business of public ware- house in accordance with the laws of the state, and shall be revocable by said commissioners upon a summary proceeding before the conunissioners upon complaint of any person, in writing, setting forth the particular violation of law, and upon satisfactory proof, to be taken in such manner as may be di- rected by the commissioners. Sec. 3. Bonds required — Fee for license. The person receiving license as herein provided shall file with the commissioners granting the same a bond to the state of Minnesota, with good and sufficient sureties, to be approved by said commissioners, in the penal sum of not less than ten thousand (10,000) dollars nor more than fifty thousand (50,000) dollars, in the discretion of the railroad and warehouse commissioners, for each ware- house licensed in the county, concUtional for the faithful per- formance of his duties as a public warehouseman, and his full and unreserved compliance with all laws of this state in relation thereto. A fee for the issuance of each license of two (2) dollars shall be paid by the person applying for the same; Provided, That when any person or corporation procures a license for more than one warehouse in any county in the state, no more than one bond need be given. Sec. 4. Penalty for transacting business of public warehouseman withoid license. Any person who shall transact the business of a pubHc warehouseman without first procuring a lioonso as herein provided, or who shall continue to transact any such business after such license has been revoked (save only that he may be permitted to deliver property previously stored in such warehouse), shall on conviction by indictment be fined in a sum not less than one hundred (100) dollars nor more than five hun- 25 386 MINNESOTA LAWS. dred (500) dollars for each and every day such business is car- ried on, and the railroad and warehouse connnissioners may refuse to renew any license, or grant a new one to any of the persons whose license has been revoked within one (1) year from the time the same was revoked. Above sections coustrued — License required of wareliouse- man storing his own grain exclusively : Where the defendant's warehouse was used for the storage of his own grain onty, it was held that the weighing and grad- ing of his grain was so related to the public interest that the legislature could properly require such owner to take out a license. State ex rel, etc., v. W. W. Cargill Co., 77 Minn. 233, aff'd 180 U. S. 452. Sec. 5. Duties of public warehousemen — Discrimination pro- hibited — also mixing of grain without permission of owner. It shall be the duty of every public warehouseman to receive for storage any grain, dry and in a suitable condition for ware- housing that may be tendered to him in the usual manner in which such warehouses are accustomed to receive the same in the ordinary and usual course of business, not making any dis- crimination between persons desiring to avail themselves of warehouse facilities, such grain to be in all cases inspected and graded by a duly authorized inspector, and to be stored with grain of a similar grade. And in no case shall grain of a differ- ent grade be mixed together while in store, but if the owner or consignee so requests, and the warehouseman consents thereto, his grain of the same grade may be kept in a bin by itself apart from that of other owners, which bin shall thereupon be marked and known as a special bin. If a warehouse receipt be issued for grain so kept separate, it shall state on its face that it is in a special bin, and shall state the number of such bin, and all grain delivered from such warehouse shall be inspected, on its deUvery, by a duly authorized inspector of grain. Nothing in this section shall be construed so as to require the receipt of any kind of grain into any warehouse in which there is not sufficient room to accommodate or to store it properly, or in cases where such warehouse is necessarily closed. The charges for inspec- tion, upon receipt and delivery, shall be paid by the warehouse- MINNKSOTA. 387 man, and may be added to the charge of the storage. The cliief inspector may recover such charges of the warehouseman by an appropriate action in his name. Sec. 6. Public warehouseman shall issue numbered receipts for. Upon application of the owner or consignee of grain stored in a public warehouse, the same being accompanied with evidence that all transportation or other charges which may be a lien upon the grain, including charges for inspection and wi'ighing, have been paid, the warehouseman shall issue to the person en- titled to receive it a warehouse receipt therefor, subject to the order of the owner or consignee, which receipt shall bear date corresponding with the receipt of the grain in store, and shall state upon its face the quantity and inspected grade of the grain, and that the grain mentioned on it has been received into store to be stored with grain of the same grade by inspec- tion; and that it is deliverable upon the return of the receipt properly indorsed by the person to whose order it was issued, and the payment of proper charges for storage. All warehouse receipts for grain issued by the same warehouse shall be con- secutively numbered, and no two receipts bearing the same number shall be issued from the same warehouse during any one year, except in case of a lost or destroyed receipt, in which case the new receipt shall bear the same date and number as the original, and shall be plainly marked on its face ''Duphcate." If the grain was received from railroad cars the number of each car shall be stated upon the receipt, with the amount it con- tained; if from barges or other vessels, the name of such craft; if from team or by other means, the manner of its receipt shall be stated on its face. Sec. 7. Receipts cancelled on delivery of grain by elevator, etc. Upon the delivery of grain from store upon any receipt, such receipt shall be plainly marked across its face the word "Can- celled," with the name of the person cancelling the same, and shall thereafter be void, and shall not again be put in circula- tion, nor shall grain be delivered twice upon the same receipt. No warehouse receipt shall be issued except upon actual de- livery of grain into store in the warehouse from which it pur- ports to be issued, and which is to be represented by the receipts. 388 MINNESOTA LAWS. Nor shall any receipt be issued for a greater quantity of grain than was contained in the lot or parcel stated to have been re- ceived. Nor shall more than one receipt be issued for the same lot of grain, except in cases where receipt for a part of a lot is desired, and then the aggregate receipt for a particular lot shall cover that lot and no more. In cases where a part of the grain represented by the receipt is deliveretl out of store, and the re- mainder is left, a new receipt may be issued for such remainder, but the new receipt shall bear the same date as the original, and shall state on the face that it is balance of receipt of the original number, and the receipt upon which a part has been delivered shall be cancelled in the same manner as if it had all been de- livered. In case it be desirable to divide one receipt into two or more, or in case it be desirable to consolidate two or more receipts into one, and the warehouseman consents thereto, the original receipt shall be cancelled the same as if the grain had been delivered from store, and the new receipts shall express on their face that they are a part of another receipt or a consolida- tion of other receipts, as the case may be; and the numbers of the original receipts shall also appear upon the new ones issued, as explanatory of the change; but no consolidation of receipts of dates differing more than ten (10) days shall be permitted, and all new receipts issued for old ones cancelled, as herein pro- vided, shall bear the same date as those originally issued, as near as may be. Sec. 8. Liability of warehouse. No warehouseman in the state shall insert in any receipt issued by him any language in any- wise limiting or modifying his liabilities or responsibility as im- posed by the laws of this state. Sec. 9. On return of warehouse receipt property shall be delivered. On the return of any warehouse receipt by him properly in- dorsed, and the tender of all proper charges upon the property represented by it, such property shall be immediately deliver- able to the holder of such receipt, and it shall not be subject to any further charges for storage after demand for such delivery shall have been made, and the property represented by such receipt shall be delivered within twenty-four (24) hours after such demand shall have been made, and the cars or vessels for MINNKSOTA. 389 the same shall have been tuniished. The warehouseman in default shall be liable to th(> dwihm' oI' such receipt lor damages for such default in the sum of one (1) cent per bushel, and in addition thereto one (1) cent per bushel for each and every day of such neglect or refusal to deliver; Provided, No warehouseman shall be held to be in default in delivery if the property is deliv- ered in the order demanded, and as rapidly as due diligence, care and prudence will justify. Sec. 10. Statement of condition and management of elevators. It shall be the duty of every owner, lessee and manager of every public warehouse in the state to furnish in writing under oath at such times as the board of warehouse commissioners shall require and prescribe, a statement concerning the condition ;md management of the business as such warehouseman. Sec. 11. Statement of kind and grade of grain. Daily reports to be furnished registrar. The warehousemen of every jjublic warehouse located at Minneapolis, St. Paul and Duluth, shall, on or before Tuesday morning of each week, cause to be made out, and shall keep postefl up in the business office of his ware- house in a conspicuous place, a statement of the amount of each kind and grade of grain in store in his warehouse at the close of the business on the previous Saturday, and shall also on each Tuesday morning render a similar statement, made under oath, before some officer authorized by law to administer oaths, by one of the principal owners or operators thereof, or by the book- keeper thereof, having personal knowledge of the facts, to the warehouse registrar appointed as hereinafter provided. They shall also be required to furnish daily to the said registrar a correct statement of the amount of each kind and grade of grain received in store in such warehouse on the previous day, also the amount of each kind and grade of grain delivered or shipped by such warehouseman during the previous day, and what warehouse receipts have been cancelled upon which the grain has been delivered on such day, giving the number of each receipt, and amount, kind and grade of grain received and shipped upon each; also how much grain, if any, was so deliv- ered or shipped, and the kind and grade of it, for which ware- house receipts had not been issued, and when and how sucii un- :390 MINNESOTA LAWS. receipted grain was received by tliem, the aggregate of sucli reported cancellations and delivery of unreceipted grain corre- sponding in amount, kind and grade with the amount so reported delivered or shipped. They shall also at the same time report what receipts, if any, have been cancelled and new ones issued in their stead, as herein provided for. And the warehouseman making such statements shall, in addition, furnish the said registrar any further information regarding receipts issued or cancelled that may be necessary to enable him to keep a full and correct record of all receipts issued and cancelled and of grain received and delivered. Sec. 12. Secretary of commissioners. It is hereby made the duty of the secretary of the railroatl and warehouse commis- sioners to act as registrar in accordance with the spirit and in- tent of section eleven (11) of this act. Sec. 13. Schedule of rates for storage to be published — Max- imum. rates fixed. Every warehouseman of j^ublic warehouses located at Minneapolis, St. Paul and Duluth, shall be required during the first (1st) week in September of each year to publish in one (1) or more of the newspapers (daily if there be such) published in the city or village in which such warehouse is situ- ated, a table or schedule of rates for the storage of grain in his warehouse during the ensuing year, which rates shall not be increased during the year, and such published rates, or any published reduction of them, shall apply to all grain received into such warehouse from any person or source, and no dis- crimination as to rates shall be made, directly or indirectly, by such warehouseman for the storage of grain. The maximum charge for storage and handling of grain, including the cost of receiving and delivering, shall be, for the first (1st) fifteen (15) days or part thereof, one and one-half (1^) cents per bushel, and for each fifteen (15) days, or part thereof, after the first (1st) fifteen (15) days, one-half ih) cent per bushel, and for contin- uous storage between the fifteenth (15th) day of November and the fifteenth (15th) day of May following, not more than four (4) cents per bushel. Sec. 14. Mixing of different grades -prohibited — Not liable for damage by fire, or heating, when — Public notice when grain is MINNESOTA. 391 found out of condition — Liable for negligence — Grain sold at auction, whoi. It .shall not he lawful for any public warehouse- man to mix any grain of different grades together, or to select different qualities of the same grade for the purpose of storing or delivering the same; nor shall he attempt to deliver grain of one grade for another, or in any way tamper with grain while in his possession or custody, with a view of securing any profit to himself or any other ])(M-s()n. And in no case, even of grain stored in a separate bin, shall he be permitted to mix grain of different grades together while in store. He may, however, on request of the owner of any grain stored in a private bin, be per- mitted to dry, clean, or otherwise improve the condition or value of any such lot of grain, but in such case it shall only be deliv- ered as such separate lot, or as the grade it was originally in- spected when received by him, without reference to the grade it may be as improved by such process of drying or cleaning. Nothing in this section, however, shall prevent any warehouse- man from removing grain while within his warehouse for its preservation or safe-keeping. No public warehouseman shall be held responsible for any loss or damage to property by fire while in his custody, provided reasonable care and vigilance be exercised to protect and preserve the same; nor shall he be held liable for damage to grain by heating, if it can be shown that he has exercised proper care in handling and storing the same, and that such heat or damage was the result of causes beyond his control; and in order that no injustice may result to the holder of grain in any public warehouse of Minneapolis, St. Paul and Duluth, it shall be deemed the duty of such warehouseman to dispose of, by delivery or shipping in the ordinary and legal manner of so delivering, that grain of any particular grade which w^as at first received by them or which has been for the longest time in store in his warehouse, and unless public notice has been given that some portion of the grain in his warehouse is out of condition, or becoming so, such warehouseman sliall deliver grain of quality equal to tliat received by him, on all receipts as presented. In case, however, any warehouseman of Minneapolis, St. Paul or Duluth shall discover that any por- tion of the grain in his warehouse is out of condition, or becom- 392 MINNESOTA LAWS. ing so, and it is not in his power to preserve the same, he shall immediately give public notice by advertising in a daily news- paper in the city in which such warehouse is situated, and by posting a notice in the most public place (for such purpose) in such city, of its actual condition as near as he can ascertain. It shall state in such notice the kind and grade of the grain, and the bins in which it is stored, and shall also state in such notice the receipts outstanding, upon wliich such grain will be deliv- ered, giving the numbers, amounts and dates of each, which receipts shall be those of the oldest dates then in circulation or uncancelled, the grain represented by which has not previously been declared or receipted for as out of condition ; or if the grain longest in store has not been receipted for, he shall so state, and shall give the name of the party for whom such grain was stored, the date it was received, and the amount of it, and the enumera- tion of receipts, and identification of grain, as so discredited, shall embrace as near as may be, as great a quantity of grain as is contained in such bins. And such grain shall be delivered upon the return and cancellation of the receipts, and the unre- ceipted grain upon the request of the owner or persons in charge thereof. Nothing herein contained shall be held to relieve the said warehouseman from exercising proper care and vigilance in preserving such grain after such publication of its condition, but such grain shall be kept separate and apart from all direct contact with other grain, and shall not be mixed with other grain while in store in such warehouse. Any warehouseman guilty of any act or neglect, the effect of which is to depreciate property stored in the warehouse under his control, shall be held responsible as at common law, or upon the bond of such warehouseman, and in addition thereto the license of such ware- houseman, if his warehouse be in Minneapolis, St. Paul or Du- luth, shall be revoked. Nothing in this action shall be so con- strued as to permit any warehouseman to deliver any grain stored in a special bin, or by itself, as provided in this act, to any but the owner of the lot, whether the same be represented by a warehouse receipt or otherwise. In case the grain declared out of condition, as herein provided for, shall not be removed from store by the owner thereof within two (2) months from MINNESOTA. 393 the date of the notice of its being out of condition, it shall be lawful for the warehouseman, where the grain is stored, to sell the same at public auction, for account of said owner, by giving ten (10) days' public notice by advertisement in a newspaper (daily if there be such) published in the city or town where such warehouse is located. Sec. 15. All property in public elevators shall he subject to exam- ination — Scales 77nist be sealed. All persons owning property, or who may be interested in the same, in any public warehouse, and all duly authorized inspectors of such property, shall at all times during ordinary business hours, be at full lil)erty to exam- ine any and all property stored in any public warehouse in this state. And all proper facilities shall be extended to such per- son by the warehouseman, his agents, and servants, for an ex- amination, and all parts of the public warehouses shall be free for the inspection and examination of any person interested in property stored therein, or of any authorized inspector of such property. And all scales used for the weighing of property in public warehouses shall be subject to examination and test by any duly authorized inspector, weighmaster, or sealer of weights and measures, at any time when required by any person or per- sons, agent or agents, whose property has been or is to be weighed, on such scales. The expense of such test by an in- spector or sealer to be paid by the warehouse proprietor if the scales are found incorrect, but not otherwise. Any warehouse- man who may be guilty of continuing to use scales found to be in an imperfect or incorrect condition by such examination and test, until the same shall have been pronounced correct and properly sealed, shall be liable to be proceeded against as here- inafter provided. Sec. 16. State weighmaster s. The railroad and warehouse com- missioners shall appoint in all cities where there is state inspec- tion of grain, a state weighmaster and such assistants as shall be necessary. Sec. 17. State supervision of weighing grain. [Said state weighmaster and assistants shall, at the jjlaces of St. Paul, Minneapolis, Duluth and St. Cloud, supervise and have exclu- sive control of the weighing of grain and other property which 394 MINNESOTA LAWS. may be subject to inspection, except when otherwise ordered or directed by the party shipping the same, and the inspection of scales; and the action and certificates of such weighmaster and his assistants in the (Uscharge of their aforesaid duties shall be conclusive upon all parties, either in interest or otherwise, as to the matters contained in said certificates.] Amendment in brackets approved April 5, 1893. Sec. 18. Fees of same. The board of railroad and warehouse commissioners shall fix the fees to be paid for the weighing of grain and other property, which fees shall be paid by the ware- houseman, and may be added to the charges for storage. Sec. 19. Qualification — Bond. Said state weighmaster and as- sistants shall not be a member of any board of trade or associa- tion of like character. They shall give bonds in the sum of five thousand (5,000) dollars conditioned for the faithful discharge of their duties, and shall receive such compensation as the board of railroad and warehouse commissioners shall determine. Sec. 20. Rules and regulations. The railroad and warehouse commissioners shall adopt such rules and regulations for the weighing of grain and other property as they shall deem proper. Sec. 21. Penalty for refusing weighmaster access to scales, etc. In case any person, warehouse, or railroad corporation, or any of their agents or employees shall refuse or prevent the afore- said state weighmaster, or either of his assistants from having access to their scales, in the regular performance of their duties in supervising the weighing of any grain or other property in accordance with the tenor and meaning of this act, they shall forfeit the sum of one hundred flOO) dollars for each offense, to be recovered in an action of debt before any justice of the peace in the name of the state of Minnesota, such penalty or forfeiture to be paid to the state treasurer for the benefit of the grain inspection fund, and shall also be required to pay all costs of prosecution. Sec. 22. Chief inspector to he appointed — Term of office — Bonds. It shall be the duty of the railroad and warehouse commissioners to appoint a suitable person as chief inspector of grain in the state of Minnesota, who shall hold his office for the term of two (2) years, unless sooner removed by said railroad and ware- MINNESOTA. 395 house commissioners, who shall, before entering upon the duties of his office, take an oath of office, as in the case of other state officers, and shall execute a bond to the state of Minnesota, in the penal sum of ten thousand (10,000) dollars, with gootl and sufficient sureties, to be approved by the railroad and ware- house commissioners, conditioned that ho will faithfully and impartially discharge the duties of the office of chief inspector according to law and the rules and regulations of said railroad and warehouse commissioners, and that he will pay all damages to any person or persons who may be injured by reason of his neglect or failure to comply with the law or the rules and regu- lations aforesaid. Sec. 23. Deputy inspectors. Said chief inspectors shall ap- point, subject to the approval of the railroad and warehouse commissioners, such number of deputy inspectors as may be required, one of wliich deputies in each of the cities of St. Paul and Minneapolis, and the village' of Duluth shall ho denomi- nated and styled chief deputy. Sec. 24. Oath—Bond of deputies. Such deputy inspectors shall take a like oath of office to that required from the chief inspector, and shall give a bond to the state of Minnesota in the penal sum of five thousand (5,000) dollars, with such good and suffi- cient sureties as may be approved by the railroad and warehouse commissioners, and conditioned in like manner as the railroad and warehouse commissioners require from the cliief inspector. Sec. 25. Bonds to be filed ivith secretary of .^tate. The bonds given l^y the chief inspector and the deputy inspectors shall be filed in the office of the secretary of state for the state of Minne- sota, and suit may be brought upon said bond or bonds in any court having jurisdiction thereof, for the use of the person or the persons so injured. Sec. 26. Chief inspector may remove deputy. The chief in- spector shall have power to remove any of the deputy inspectors at pleasure, and said deputy inspectors shall act under the im- mediate control and supervision of said chief inspector. Sec. 27. Rules for inspection. The chief inspector of grain and all deputy inspectors shall be governed in their inspection duties by such rules and regulations as may be provided by the 390 MINNESOTA LAWS. railroad and warehouse commissioners; and the said commis- sioners shall have power to fix the rate of charges for inspection of grain, and the manner in which the same shall be collected, and which charges shall be regulated in such manner as will, in the judgment of said conmiissioners, produce sufficient revenue to meet the necessary expenses of the inspection service, and no more; said railroad and warehouse commissioners shall fix the amount of compensation to be paid to the chief inspector and deputy inspectors, and prescribe the time and manner of payment thereof; which compensation shall be paid out of the grain inspection fund, hereinafter created, on the order of the railroad and warehouse commissioners. Sec. 28. Restrictions on inspector and his deputies. No chief inspector or deputy inspector of grain shall, during his term of service, be interested, directly or indirectly, in the handling, stor- ing, shipping, purchasing, or selling of grain, nor shall he be in the employment of any person or corporation interested in the handling, storing, shipping, purchasing, or selling of grain. Sec. 29. Inspector may be removed from office, when. Upon complaint, in writing, of any person to the railroad and ware- house commissioners, supported by reasonable and satisfactory proof, that the chief inspector, or any of his deputies, have vio- lated any of the rules prescribed for his government, or has been guilty of any improper official act, or has been found inefficient or incompetent for the duties of his position, said person shall be by said railroad and warehouse commissioners immediately removed from office. Sec. 30. Penalty for acting as inspector without authority. Any person who shall assume to act as an inspector of grain, who has not first been so appointed and sworn, shall be held to be an imposter, and shall be punished by a fine of not less than fifty (50) dollars, nor more than one hundred (100) dollars, for each and every attempt to so inspect grain, to be recovered before a justice of the peace in an action of debt in the name of the state of Minnesota for the use of any person choosing to sue. Sec. 31. Penalty for neglect of duty of inspector. Any duly au- thorized inspector or deputy inspector of grain, who shall be guilty of any neglect of duty, or who shall knowingly or care- MINNKSOTA. S97 lessly inspect or grade any grain iiiii)r()perly, or wliu shall accept any money or other consideration, directly or indirectly, for any neglect or duty or any improper performance of duty as such inspector of grain, or any person who shall improperly in- fluence any inspector of grain in the performance of his duty as such inspector, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not less than one hundred (100) dollars, nor more than one thousand (1000) dollars, (m- shall be im))risonetl in the county jail not less than thirty (30) days nor more than one (1) year, or both in the discretion of the court. Sec. 32. Charges for inspection to he a lien. The charge for the inspection and weighing of grain shall be and constitute a lien on grain so ins))ected, and whenever such grain is in transit the said charges shall be treated as advanced charges, to be paid by the conmion carrier in whose possession the same is at the time of inspection. Sec. 33. Decision of inspector final unless appeal taken. The decision of the chief inspector or any of the deputy inspectors as to grade of grain shall be final and binding on all parties, un- less an appeal is taken from such decision as hereinafter provided. Sec. 34. Appeals to the railroad and warehouse commissioners. In case any owner, consignee or shipper of grain, or any ware- house manager shall be aggrieved by the decision of the chief inspector or any of his deputies, an appeal may be had to the railroad and warehouse commissioners, and a decision of a ma- jority of such commissioners shall be final, and the railroad and warehouse commissoners are authorized to make all necessary rules governing such appeal; Provided, That the party appeal- ing shall pay to the chief inspector a sum not to exceed five (5) dollars per case before said case be entertained, which sum shall be refunded in case such case is sustained. Sec. 35. Grain need not go into any public warehouse. In case any owmer or consignee of grain shall be flissatisfied with the inspection of any lot of grain, or shall from any cause desire to receive his property without its passing into store, he shall be at liberty to have the same withheld from going into any public warehouse (whether the property may have previously been 398 MINNESOTA LAAYS. coiLsigued to such warehouse or not) by giving notice to the person or corporation in whose possession it may be at the time of giving such notice; and such grain shall be withheld from going into store, and delivered to him, subject only to such jjroper charges as may be a lien upon it prior to such notice — the grain, in railroad cars, to be removed therefrom by such owner or consignee within twenty-four (24) hours after such notice has been given to the railroad company having it in pos- session; Provided, Such railroad company place the same in a proper and convenient place for unloading; and any person or corporation refusing to allow such owner or consignee to receive his grain shall be deemed guilty of conversion, and shall be lia- ble to pay such owner or consignee double the value of the prop- erty so converted. Notice that such grain is not to be delivered into store may also be given to the proprietor or manager of any warehouse into which it would otherwise have been delivered; and if, after such notice, it be taken into store in such w^arehouse, the proprietor or manager of such warehouse shall be liable to the owner of such grain for double its market value. Sec. 36. Direction of the owner of grain must he obeyed. It shall be unlawful for any proprietor, lessee, or manager of any public warehouse to enter into any contract, agreement, understanding, or combination with any railroad company or other corpora- tion, or wdth any individual or individuals, by which the prop- erty of any person is to be delivered to any public warehouse for storage or for any other purpose, contrary to the direction of the owner, his agent or consignee. Sec. 37. "Minnesota Grades'' to he established. Th{> railroad and warehouse commissioners shall, before the fifteenth (15th) day of September in each year, establish a grade for all kinds of grain bought oi- handled by any public warehouse in the state, which shall be known as "Minnesota Grades"; and the grades so established shall be published in some daily newspaper, in each of the three places of St. Paul, Minneapolis and Duluth, each day, for the space of one week. Sec. 38. Samples shall he furnished. It shall be the duty of the chief inspector of grain to furnish any elevator or warehouse in this state standard samples of grain, as established by the MINNESOTA. 399 official inspection, when requested so to do by the proprietoi-, lessee or manager thereof, at the actual cost of such samples. Sec. 39. Commissioners to have supervision oj grain business. It will be the duty (^f the railroad and warehouse connnissioners to assume and exercise a constant supervision over the grain in- terests of this state, to supervise the handling, inspection, weigh- ing and storage of grain; to establish all necessary rules and regulations for the weighing, grading, inspection and appeal on inspection of grain, and for the management of the public ware- houses of the state, as far as such rules and regulations may be necessary to enforce the provisions of this act or any law of this state in regard to the same; to investigate all complaints of fraud or oppression in the grain trade, and to correct the same as far as it may be in their power. Sec. 40. Rules and regulations to be published. The aforesaid rules and regulations, not being contrary to the provisions of law, shall be published by said railroad and warehouse commis- sioners, in a daily paper in St. Paul, Minneapolis and Duluth, and shall be in force and effect until they shall be changed or abro- gated by said commissioners in a like public manner. Sec. 41. All moneys collected shall be paid into state treasury. All moneys collected by state grain inspectors, weighmasters and other officers, as herem provided for, shall by them be paid into the state treasury. Sec. 42. Duty of treasurer. It shall be the duty of the treas- urer of the state of Minnesota, to receive all moneys aforesaid and all fines and penalties collected by virtue of this act, and to keep a separate account of the same, and to pay the same on the order of the railroad and warehouse connnissioners, and not otherwise. Sec. 43. Attorney general's duties — County attorney to prose- cute. The attorney general of the State of Minnesota shall be ex-officio attorney for the railroad and warehouse commissioners, and shall give them such counsel and advice as they may from time to time require, and he shall institute and i:)rosecute any and all suits which such railroad and warehouse connnissioners may deem expedient and proper to institute, and he shall render to such railroad and warehouse commissioners all counsel, ad- 400 MINNESOTA LAWS. vice and assistance necessary to carry out the provisions of this act according to the true intent and meaning thereof. In all criminal prosecutions against a warehouseman for the violation of any of the provisions of this act, it shall be the duty of the county attorney of the county in which such prosecution is brought to prosecute the same to a hnal issue. Sec. 44. Grain may be sold by sample. Nothing in this act shall be so construed as to prevent any person from selling grain by sample, regardless of grades. Sec. 45. Chapters 95 and 99, Laws of 1879, repealed. Chap- ters ninety-five (95) and ninety -nine (99) of the General Laws of eighteen hundred and seventy-nine (1879) are hereby rejiealed. Sec. 46. Conflicting laws repealed. All acts and parts of acts, general or special, conflicting with this act are hereby repealed. Sec. 47. Appropriation. The sum of one thousand (1,000) dollars, or so much thereof as is necessary to carry out the pro- visions of this act, is hereby appropriated out of any money in the state treasury not otherwise appropriated. Sec. 48. Old system to apply to grain in store prior to the passage of this act. But the provisions of this act shall not change the liability of warehousemen on grain now in store, nor the in- spection thereof ; but said inspection shall be had under the same system under which it was received into store. Sec. 49. When to take effect. This act shall take effect and be in force after the expiration of sixty (60) days after its pas- sage. Approved March 5, 1885. Sec. 50. Making St. Cloud a terminal point. [That whenever the cities of St. Paul, Minneapolis and Duluth are named in this chapter, the name of St. Cloud shall be included, and the i)rovi- sions of said chapter shall be construed to extend to said city of St. Cloud, to the same extent as to said cities of St. Paul, Minneapolis and Duluth.] Amendment in brackets approved April 20, 1891. Sec. 51. Weighmasters to keep accurate account of all iveighing. [All state weighmasters and assistants provided for by this law and the amendments thereto shall be required to make true weights under the penalties hereinbefore provided, and in addi- MINNESOTA. 401 tion thereto keep a correct record of all weighing done by them at the places hereinbefore named, in wliich record shall be entered an accm'atc account of all grain or other jiioperty weighed, ov the weighing of which was supervised by ihcni oi- their assist- ants, giving the amount of each weight, the number of the car or cars weighed, if any, the initial letter (^f said car or cars, place where weighed, date of weighing and contents of car.] Amendment in l)rackets approved April 5, 1893. Sec. 52. Weiglwiaders lo fiirnuh certificalea of weight — Certifi- cates to be prima facie evidence. [Said weigh master and assist- ants shall give upon demand to any person or persons having weighing done, a certificate under his hand and seal, showing the amount of each weight, number of car or cars weighed, if any, the initial of said car or cars, place where weighed, date of weighing and contents of car. And it is hereby provided that said weighmaster's certificate shall be admitted in all actions, either at law or in equity, as prima facie evidence of the facts therein contained, but the effect of such evidence may be re- butted by other competent testimony.] Amendment in brackets approved April 5, 1893. Chapter 123, General Laws, 1897. An Act to establish state weighing and inspection of grain at the city of Fergus Falls in the county of Otter Tail and the city of AVinona in the county of Winona, and making said cities of Fergus Falls and Winona terminal points, and making all laws of this state that are applicable to the weighing and inspection of grain at the termmal points of St. Paul, Minneapolis, Duluth and St. Cloud, applicable to Fergus Falls and Winona. Be it enacted by the legislature of the state of Minnesota : Section 1. Making Fergus Falls and Winona terminal points. The cities (city) of Fergus Falls in the county of Otter Tail and the city of Winona, in the county of Winona, are hereby made and established as terminal points for the weighing and inspec- tion of grain. Sec. 2. All laws of this state applying, governing and regu- lating the weighing and inspection of grain at St. Paul, Minne- 26 402 MINNESOTA LAWS. apolis, Duluth and St. Cloud shall apply, regulate and govern the weighing and inspection of grain at the cities of Fergus Falls and Winona. Sec. 3. This act shall be in force from and after its passage. Approved April 14, 1897. Chapter 30, General Laws, 1897. An Act to establish state weighing and inspection of grain at the city of Little Falls in the county of Morrison, and making said city of Little Falls a terminal ponit, and making all laws of this state that are applicable to the weighing and inspection of grain at the terminal points of St. Paul and Minneapolis, Duluth and St. Cloud applicable to Little Falls. Be it enacted by the legislature of the state of Minnesota : Section 1. Making Little Falls a terminal point. The City of Little Falls, in the County of Morrison, is hereby made and es- tablished a terminal point for the weighing and inspection of grain. Sec. 2. All laws of this state applying, governing and regulat- ing the weighing and inspection of grain at St. Paul and Minne- apolis, Duluth and St. Cloud shall apply, regulate and govern the weighing and inspection of grain at the city of Little Falls. Sec. 3. This act shall be in force from and after its passage. Approved March 2, 1897. Chapter 295, General Laws, 1895. An Act to exempt the scales of certain elevators, mills and railroad yards from the jurisdiction of city sealers of weights and measures. Be it enacted by the legislature of the state of Minnesota : Section 1. Scales under supervision of state grain department. That the scales at all elevators, mills and railroad yards operated by and under the control of a duly appointed state weigher, and which scales are directly under the supervision of the state grain weighing department, shall bo exempt from the jurisdiction of city sealers of weights and measures. MINNESOTA. 408 Sec. 2. All acts or parts of acts inconsistent with this act are hereby repealed. Sec. 3. This act shall take effect and be in force from and after its passage. Approved April 13, 1895. Chapter 30, General Laws, 1893. An Act to provide for the purchase of a site and for the erec- tion of a state elevator or warehouse at Dulutli in this state for public storage of grain, and the regulation thereof, to publish a market report, and to appropriate money for that purpose. Be it enacted by the legislature of the state of Minnesota. Sec. 3. Market price of grain and farm products, also freight rates on same, to be kept on file in office of commission — Weekly market report. The said commission shall keep on file for pub- lic inspection publications showing the market price of grain and farm ])roducts in the markets of Liverpool, London, Paris, Hamburg, New York, Buffalo, Quebec, San Francisco, Chicago, Minneapolis and Duluth. Also the freight rates between said markets, either by railroad, lake, ocean or other means of trans- portation. They shall publish a weekly bulletin or market report showing the prices paid in said markets for farm prod- ucts. Said market report to show the prices as reported by the publications received from the other cities for one week and immediately preceding the date of said publication, as near as practicable; also the rates of freight between Duluth and Minne- apolis and said markets. Said bulletin to be kept on file in said institution and in the office of said commission in St. Paul; also to be furnished by mail to all persons who shall order the same and pay the price fixed by said commission, which shall not exceed one dollar per annum. Sec. 16. This act shall take effect and be in force from and after its passage. Approved April 18, 1893. (All other sections of said act, from section one (1) to section fifteen (15), inclusive, providing for the purchase of a site and for the erection of a state elevator or warehouse at Duluth. in 404 MINNESOTA LAWS. this state, for public storage of grain and the regulation thereof, declared unconstitutional by the decision of the supreme court of Minnesota. See Rippe v. Becker, 56 Minn. 100.) Chapter 29, General Laws, 1893. An Act to provide for the care and protection of grain in cars at the several places designated by law as terminal points within the State of Minnesota. Be it enacted by the legislature of the state of Minnesota : Section 1. Inspector>i to examine condition of cars of grain — Inspectors — To close and reseat cars after inspection — Record. It shall be. the duty of the chief inspector of grain, and of any deputies as officials serving under him, before opening the doors of any cars containing grain upon their arrival at any of the several places designated by law as terminal points in this state, for the purpose of inspecting the same, to first ascertain the condition of any such car or cars, and determine whether any leakages have occurred while the said car or cars were in transit ; also whether or not the end or side doors are properly secured and sealed, making a record of such facts in all cases and recorchng the same in a proper book to be kept for the purpose. After such examination shall have been duly made and re- corded, and the inspection of such grain has been made, it shall be the duty of the said officials of the state grain inspection de- partment, above mentioned, to securely close and reseal such doors as have been opened by them, using a special seal of the said state grain inspection department for the purpose. A record of all original seals broken by said officials and the time when broken, also a record of all state seals substituted there- for and the time when such state seals were substituted, to- gether with a full description of said seals, with their numbers, shall be made by the said officials. Sec. 2. Police protection to he furnished by railroad companies. It shall be the duty of all railroad companies operating any lines of railroad at the terminal points of this state to furnish ample and sufficient police protection at each and all of their MINNESOTA. 405 several terminal yards ami on llu-ii' iciminal ti'acks lo .securely protect all cars containing grain, while the same is in tiieir pos- session, pending transfer and delivery of .same, and it shall be the duty of such railroad companies to prohihil and restrain all unauthorized persons, whether under the guise of sam|)lers, sweepers, or under any other pretext whatever, fiom ciitrring of loitering in oi' about their respective railroad yards or tracks and from entering any cars of grain undei' their control, or re- moving grain therefrom, and shall em):)loy and detail such num- ber of watchmen as may be necessary for the purpose of carry- mg out the provisions of ihc within section. Sec. 3. Warehousemen at terminal points must protect cars re- ceived. It shall be the duty of all \\'are housemen operating and controlling grain elevators and warehouses at any terminal point within this state, and it shall further be the duty of all persons, firms or corporations engaged in the manufactun; of flour or other grain products at such terminal points, to furnish ample and sufficient protection to all grain in cars which may be in their possession and to properly care for all cars of grain consigned to their respective elevators, warehouses, mills oi- manufactories after delivery of same has been made by the railroad companies, and in case of shipment of grain in cars from such elevators, warehouses, mills or manufactories, the said persons shall fully protect and care for said cars of grain until delivery of same has been made to the railroad company. Sec. 4. Breaking seals a misdemeanor — Penalty. Any person other than those charged by sc^ctions one, two and three of the within act with the care of the property described herein who shall tamper with or l)reak any seals placed upon such cars of grain, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not less than ten dollars and not exceed- ing one hundred dollars, or by imprisonment in the county jail not less than ten days and not exceeding ninety tlays upon conviction. Sec. 5. Neglect to 'perform duties of this act. If any pei'son or persons mentioned in sections one, two and three of the within act shall neglect or fail to carry out the duties prescribed for 40() ]\nNN*ESOTA LAWS. their government in said sections, he or they shall be Uable to the owner for the full amount of actual loss or damage which said owner may suffer by reason thereof. Sec. 6. Shippers to affix cards — Failure to comply. It shall be the duty of every sliipper of grain by railroad to the terminal points within this state to fasten u]wn the inside of the door of every car so shipped by him, a card u])()n which shall be given the number and initials of such cai-, the date of shipment, and the exact weight of the grain in such cai' as ascertained and de- termined by such shipper. In case of failure on the part of any shipper to comply with the provisions of this section, the weight of the grain in such car as ascertained and determined by the state weighmaster at the terminal point shall be taken as prima facie evidence of the amount of grain in such car contained. Sec. 7. This act shall take effect and be in force from and after its passage. Approved April 6, 1893. Chapter 148, General Laws, 1895. An Act to regulate the receipt, storage and shipment of grain at elevators and warehouses on the right of way of railroads, depots grounds and other lands used in connection with such line of railway in the state of Minnesota, at stations and sidings, other than at terminal points. Be it enacted by the legislature of the state of Minnesota: Section 1. Railroad elevators placed under railroad and ivare- house commission — Must be licensed — License fees — Revoking license. All elevators and warehouses in wiiich grain is re- ceived, stored, shipped or handled and which are situated on the right of w^ay of any railroad, depot grounds or any lands acquired or reserved by any railroad company in this state to be used in connection with its line of railway at any station or siding in this state, other than at terminal points, are hereby declared to be public elevators and shall be under the super- vision and subject to the inspection of the railroad and ware- house commission of the state of Minnesota, and shall, for the MINNESOTA. 407 purposes of this act, be known and designated as public country elevators or country warehouses. It shall be unlawful to receive, ship, store or handle any grain in any such elevator or warehouse, unless the owner or owners thereof shall have produced a license therefor from the state railroad and warehouse conmiission, which license shall be issued for the fee of one (1) dollar per year, and only upon written ap- plication under oath, specifying the location of such elevator or warehouse and the name of the person, firm oi- corporation owning and operating such elevator or warehouse and the names of all the menbers of the firm or the names of all the officers of the corporation owning and operating such elevators or ware- house and all moneys received for such licenses shall be turned over to the state grain insi^ection fund. Such license shall confer u{)on the liccmsee full authority to operate such ware- house or elevator in accordance with the laws of this state and the rules and regulations prescribed by said commission, and every person, company or corporation receiving such license shall be held to have accepted the provisions of this act, and thereby to have agreed to comply with the same. If any elevator or warehouse is operated in violation or in disregard of the laws of this state its license shall, upon due proof of this fact, after proper hearing and notice to the licensee, be revoked by the said railroad and warehouse commission. Every such license shall expire on the thirty-first (31st) day of August of each year. Sec. 2. Penalty for operating without a license. No person, firm or corporation shall in any manner operate such public country elevator or country warehouse without having a license as specified in the preceding section, and any attempt to operate such elevator or warehouse without such license shall be deemed a misdemeanor to be punished as hereinafter provided, and any attempt to operate such elevator or warehouse in violation of law and without having the license herein prescribed, may upon complaint of the party aggrieved, and upon complaint of the railroad and warehouse commission, be enjoined and restrained by the district court for the county in which the elevator or warehouse in question is situate, by temporary and permanent 408 MINNESOTA LAWS. injunction, conformably to the procedure in civil actions in the district court. Sec. 3. Rules and regulations. The railroad and warehouse commission shall before the first (1st) of September of each year, and as much oftener as they shall deem proper, make and pro- mulgate all suitable and necessary rules and regulations for the government and control of public country elevators and public country warehouses, and the receipt, storage, handling and shipment of grain therein and therefrom, and the rates of charges therefor, and the rates so fixed shall be deemed prima facie responsible and proper, and such rules and regulations shall be binding and have the force and effect of law; and a printed copy of such rules and regulations shall at all times be posted in a conspicuous place in each of said elevators and warehouses, for the free inspection of the public. Sec. 4. Accounts of business done by elevators to be kept — Duties in the runni?ig of an elevator — Warehouseman's liability for de- fault in delivery — Limit of charges — Receipts, how numbered and issued. The party operating such country elevator or country warehouse shall keep a true and correct account in writing, in proper books, of all grain received, stored and shipped at such elevator or warehouse, stating the weight, grade and dockage for dirt or other cause on each lot of grain received in store for sale, storage or shipment, and shall, upon the request of any person delivering grain for storage or shipment, receive the same without discrimination during reasonable and proper business hours, and shall, upon request, deliver to such person or his principal, a warehouse receipt or receipts therefor in favor of such person or his order, dated the day the grain was received, and specifying upon its face the gross and net weight of such grain, the dockage for dirt or other cause, and the grade of such grain, conformable to the grade fixed by the state railroad and warehouse commission and in force at terminal points ; and shall also state upon its face that the grain mentioned in such receipt or receipts has been received into store to be stored with grain of the same grade under such inspection, and that, upon the return of said receipt or receipts, and upon the payment or tender of payment of all lawful charges for receiving, storing, MINNESOTA. 409 delivering or otherwise haiitlliiig said grain, whicli ciiargos may have accrued up to the time (jI' tlie return of said receipt or receipts, such grain is deliverable to the person named therein, or his order, either from the elevator or warehouse where it was received for storage; or if the owner so desires, in quantities not less than a carload on track on the same line ol railway at any terminal point in this state which the owner may designate, where state inspection and weighing is in force, such grain to be subject to such official inspection and weight as may be de- termined upon its arrival or delivery at sucii terminal point and the party delivering shall be liable for the delivery of Ihc kind, grade and net quantity called for l)y such certificate, less an allowance not to exceed sixty (()()) ])ounds per carload for shrinkage or loss in transit, if such shrinkage or loss occurs. On the return or presentation of such niceipts by the lawful holder thereof, properly indorsed, at the elevator or warehouse where the grain represented therein is made deliverable and upon the payment or tender of payment of all lawful charges, as hereinbefore provided, the grain shall be immediately deliv- ered to the holder of such receipt, and it shall not be subject to any further charges for storage after demand for sucli (leli\'ery shall have been made, and cars are furnished by the railway com- pany which the party operating the elevator or warehouse shall have called for promptly upon the request for shipment made by the holder of such receipt in the order of the date upon whicii such receipts are surrendered for shipment. Th(> grain repre- sented by such receipt shall be delivered within twenty-four (24) hours after such demand shall have been made and c;irs or ves- sels or other means of receiving the same from the elevator or warehouse shall have been furnished. If not delivered upon such demand within twenty-four (24) hours after such car, vessel or other means for i-eceiving the same shall have been furnished, the warehouse in default shall be liable to the owner of such receipt for damages for such de- fault, in the sum of one (1) cent per bushel and in addition thereto, one (1) cent per bushel for each and every day of such neglect or refusal to deliver; Provided, No warehouseman shall be held to be in default in delivering if the property is delivered 410 MINNESOTA LAWS. in the order clemanded by holders of chfferent receipts or termi- nal orders and as rapidly as due diligence, care and prudence will justify. Above section construed : Held to be penal in character and that a strict compliance therewith was necessary to set the statute in motion. A de- mand upon the agent's son at the usual place of business of the agent held not a proper demand. Ferch v. Victoria Elevator Co., 79 Minn. 416. On the return of said receipts, if shipment or delivery of the grain at terminal point is requested by the owner thereof, the party receiving such grain shall deliver to said owner a certifi- cate in evidence of his right to such shipment or delivery, stat- ing upon its face the date and place of its issue, the name of the consignor and consignee and place of destination and shall also specify upon the face of such certificate the kind of grain and the grade and net quantity exclusive of dockage, to which said owner is entitled by his original warehouse receipts and by official inspection and weighing at such designated terminal point. The grain represented by such certificate shall be subject only to such freight or transportation or other lawful charges which would accrue upon said grain from the date of the issue of said certificate to the date of actual delivery, within the meaning of this act, at such terminal point. All warehouse receipts issued for grain received and all certifi- cates shall be consecutively numbered, and no two receipts or certificates bearing the same number shall be issued during the same year from the same warehouse, except when the same is lost or destroyed, in which case the new receipt or certificate shall bear the same date and number as the orignal and shall be plainly marked on its face "Duplicate." Warehouse re- ceipts or certificates shall not be issued except upon grain which has actually been delivererl in said country warehouse. Ware- house receipts shall not be issued for a greater quantity of grain than was contained in the lot or parcel stated to have been re- MIXNKSOTA. 411 ceived. No receipt or certificate .shall contain language in any- wise limiting or modifying the liability of the party issuing the same as imposed by the laws of this state, and any such lan- guage, if inserted, shall be null and void. A failure to specify in such warehouse receipts or certificates the true and correct grade and net weight, exclusive of dockage, of any lot of grain to which the owner of such grain may be entitled shall be deemed a misdemeanor on the part of the per- son issuing the same for which, on conviction, he may be pun- ished as hereinafter pro\'ided. Sec. 0. When grain to be submitted to grain inspector far grad- ing or dockage. In case there is a disagreement between the person in the immediate charge of and receiving the grain at such country elevator or warehouse, and the person dehvering the grain to such elevator or warehouse for storage or ship- ment, at the time of such dehvery, as to the proper grade or proper dockage for dirt oi otherwise, on any lot of grain deliv- ered, an average sample of at least three (3) quarts of the grain in dispute may be taken by one or both parties and forwarded in a suitable sack, properly tied and sealed, express charges prepaid, to the chief inspector of grain at St. Paul, which shall be accompanied by the request in writing, of either or both of the parties aforesaid, that the said chief inspector shall exam- ine the same and report what grade or dockage or both the said grain is, in Ms opinion, entitled to and would receive, if shipped to the terminal points ana subjected to official inspection. It shall be the duty of said chief inspector, as soon as practi- cable, to examine and inspect such sample of grain and adjudge the proper grade or dockage or both, to which said .sample is, in liis judgment, entitled and which grain of like quality and character would receive if shipped to the terminal points and subjected to official inspection. As soon as said chief iiLspector has examined, inspected and adjudged the grade and dockage, as aforesaid, he shall at once make out in wTiting and in triplicate a statement of his judg- ment and finding in respect to the case under consideration, and shall transmit by mail to each of the parties to said disagree- ment, a copy of the said statement of his judgment and finding. 412 MINNESOTA LAWS. preserving the original togothei- with the sample on file in liis office. The judgment and finding of the said chief inspector shall be deemed conclusive as to the grade or dockage, or both, of said sample, submitted for his consiileration, as herein provided, as well as conclusive evidence of the grade or dockage, or both, that gram of the same quality and character would receive if shipped to the terminal points and subjected to official in- spection. Sec. 6. Complaints of unfairness and discrimination — How dealt with. Whenever complaint is made, in writing, to the railroad and warehouse commission, by any person aggrieved, that the party operating any country elevator or country ware- house under this act fails to give just and fair weights and grades, or is guilty of making unreasonable dockage for dirt or other cause, or fails in any manner to operate such elevator or ware- house fairly, justly and properly, or is guilty of any discrimina- tion then it shall be the duty of the railroad and warehouse commission to inquire into and investigate said complaint and the charge therein contained, and to this end and for this pur- pose the commission shall have full authority to inspect and examine all the books, records and papers pertaining to the business of such elevator or warehouse and all the scales, ma- chinery and fixtures and appliances usetl therem. In case the said commission find the complaint and charge therein contained, or any part thereof true, they shall adjudge the same in writing and shall at once serve a copy of such de- cision, \v\\h. a notice to desist and abstain from the error and malpractice found, upon the party offending and against whom the complaint was made, and to afford prompt redress to the party injured, and if such party does not desist and abstain and does not give the proper redress and relief to the party injured, it shall be the duty of the said commission to make a special report of the facts found and ascertained upon the investiga- tion of said complaint and the charge therein contained, which report shall also include a copy of the decision by said commis- sion made therein to the attorney of the county where such elevator or warehouse is located who shall institute and carry MINNESOTA. 413 on in the name of the complainant such actions, civil or otiu-i- wise, as may be necessary antl appropriate to redress the wrongs complained of and to prevent their recurrence in the future. Sec. 7. Reports to railroad and warehouse commission — Inspec- tion of warehouses. Any person, firm or corporation operating any country warehouse or country elevator under this act, shall at any and all times when requested by the railroad ami ware- house commission, render and furnish in writing, under oath, to the said commission a rej:)ort and itemized statement of all gi'ain received and stored in or delivered oi* slii|)])ed fi-om such elevator or warehouse during the year them last passed; such statement shall specify the kind, grade, gross and net weight of all grain received or stored and all grain delivered or shii)i)e(l, and shall particularly specify and account for all so-called over- ages that may have occurred during the year. iSuch statement and report shall be made upon blanks and forms furnished and prescribed by the railroad and warehouse commission. The commission shall cause every warehouse and the business thereof, and the mode of conducting the same, to be inspected at such times as the commission may order, by one or more members of the commission or by some member of the grain inspection department, especially assigned for that purpose, who shall report in writing to the commission the result of such examination; and the property, books, records, accounts, papers and proceedings, so far as they relate to their condition, opera- tion or management, shall, at all times during business hours, be subject to the examination and inspection of such commission. Sec. 8. Pooling not lawful. It shall be unlawful for any per- son, firm or corporation who shall operate any country grain elevator or country warehouse, under this act, to (Miter into any contract, agreement, understanding or combination with any other person, firm or corporation, who shall operate any other country grain elevator or country grain warehouse under this act, for pooling of the earnings of business of other different and comj^eting grain elevators or warehouses so as to divide between them the aggregate or net proceeds of the earnings or business of such grain elevators or warehouses, or any j)ortion thereof; and in case of any agreement for the pooling of the earnings or 414 MINNESOTA LAWS. business aforesaid, eacli da}' of its continuance shall be deemed a separate offense. Sec. 9. Penalty for violating any of these provisions. Any per- son, firm or corporation who is guilt}- of any of the misdemeanors specified in this act, or who is guilty of violating any of the pro- visions of this act, shall, on con\'iction, be jjunished by a fine of not less than fifty (50) dollars and not more than five hundred (500) dollars and in case a natural person is so convicted, he may be imprisonetl until the fine is i)aid or until discharged by due course of law ; and in case a corporation is so convicted, the fine may be collected by execution, as judgments are collected in civil actions, or the property of the corporation may be seques- tered and charged with the same in appropriate legal proceed- ings. Sec. 10. All laws and parts of laws inconsistent with this act are hereby repealed. Sec. 11. This act shall take effect and be in force from and after the date of its passage. Approved April 16, 1895. Chapter 65, General Laws, 1893. An Act to provide for the construction of side tracks and switches upon the right of way of railroad companies, to eleva- tors, warehouses, mills or manufactories located on lands adja- cent to the right of way of any railroad company in this state. Be it enacted by the legislature of the state of Minnesota: Section 1. Demand for side track and ,sioitch. The owner or owners of any elevator, warehouse or mill of not less than five thousand bushels capacity, located on lands adjacent to the right of way of any railroad company in this state, at or in the immediate vicinity of any regular way station of any railroad, shall have the right to demand of such railroad company the construction of a side track over its right of way from such elevator, warehouse, mill or manufactory, which said side track shall connect with a switch with the main or other side track of such railroad, at a j^oint within a reasonable distance from such way station, and the railroad company shall build said MINNESUTA. 415 side track and make such connection at its own expense. And in ('a.s(> no suitable pkice for the erection of such elevator, ware- house and mill can be had, for any cause, within the distance occupied by the switches, then tiie railroad itiid warehouse com- mission shall have the ri^ht upon application of either jjarty in interest, to designate a plac(> for the erection of the sanu^, not more than one quarter of ;i mile beyond the end of such switch; |)rovided, however, that no such owner or owners shall have the right to demand, nor shall any such railroad company be re- quired to construct any side track under the i)rovisions of tliis act which shall connect with the main track of sucli iviilrond outside of the outside switches of the yard of such station or siding as the same may be established at the date of such de- mand. Sec. 2. 7^066 kept in repair by railroad company — Agreement as to compensation. Such side track and switch shall at all times be under the control and management of, and be kept in repair and be operated by the railroad company constructing or own- ing the same, and used for the business of such elevator, ware- house, mill or manufactory, for whose use the same may have been constructed, upon such terms and conditions as may be agreed upon by the ownei* or owners of such elevator, ware- house, mill or manufactory and the railway comjDany building such side track and switch, or in case of failure^ to make such agreement upon such terms and conditions tis are imposed by the railroad and warehouse commission, as provided in sec- tion three of this act. Sec. 3. Failure to agree upon location. In case the owner oi- owners of such elevator, warehouse, mill or manufactory and th(^ railroad company of which the demand is made cannot agree upon the location of such side track and switch, or ui)on the terms and conditions upon which the same sliall be con- structed, maintained and operated, either party may apply to the railroad and warehouse commission of this state, which is hereby authorized and required, after hearing the parties, to fix the location and the terms and conditions upon which such railroad company shall be compelled to locate, build, maintam and operato such side track and switcn, and the decision of the 416 MINNESOTA LAWS. railroad and warehouse commission in relation thereto shall be accepted and received as an administrative order, made pursu- ant to section ten of chapter ten of the General Laws of Minne- sota of 1887, and shall be enforced as all other administrative orders as are in said act provided. Sec. 4. This act shall take effect and be in force from and after its passage. Approved ]\Iarch 15, 1893. Chapter 64, General Laws, 1893. An Act providing for the erection of public grain warehouses and grain elevators, on or near the right of way of railways, and providing for condemnation proceedings in connection therewith. Be it enacted by the legislature of the state of Minnesota: Section 1 Application for permission to build. Any person, firm or corporation desirous of erecting and operating at or contiguous to any railway station or siding a warehouse or ele- vator for the purchase, sale, shipment or storage of grain for the jjublic for hire, may make application in writing containing a description of that portion of the right of way of said railroad on which said person, firm or corporation desires to erect a ware- house or elevator, and the size and capacity of the warehouse or elevator proposed to be erected and the time for which it is desired to maintain said warehouse or elevator to the person, firm or corporation owning, leasing or operating the railway at such station oi' siding for the right, privilege and easement of erecting and maintaining for the time stated in said appli- cation and for reasonable compensation such warehouse or elevator as aforesaid upon the right of way appertaining to such railway at such siding or station, and within and between the outside switches of the yard of such railway station or sid- ing, and upon paying or securing in the manner hereinafter pre- scribed reasonable compensation for the right, privilege and easement aforesaid shall absolutely and unconditionally be en- titled to the same. Sec. 2. Compensation proposed — Notice of acceptance or re- jection. The application provided in the first section of tliis MINNESOTA. 417 act shall also state the amount the applicant deems a reasonable compensation for the right, privilege and easement he desires to acquire, and said applicant shall tender and pay to such per- son, firm or corporation from whom such easement is sought the sum stated in such application, and in case the amount so named and tendered is not accepted and the parties cannot agree on the amount to be paid for such right, privilege and easement, the same shall be ascertained, assessed and deter- mined by proceedings in the district court of the county in which the station or siding at which the right, privilege and easement sought is situated, which court is hereby given full jurisdiction in the premises and shall at all times be deemed open and in session for the purposes of this act. It shall be the duty of any person, firm or corporation to whom application is made for the right to erect and maintain an elevator or warehouse under the provisions of this act to within ten days after the receipt of said application notify said applicant in writing of the acceptance or rejection of the amount stated in said application to be reasonable compensation for the right, privilege and easement sought to be acquired, and m case said person, firm or corporation fails to notify the appli- cant within said ten days, said person, firm or corporation shall be deemed to have accepted said amount, and upon payment or tender thereof said applicant shall be deemed to have ac- quired the right, privilege and easement applied for. Sec. 3. Proceedings in case of failure to agree. Proceedings in the district court shiUl be instituted and carried on as follows : The party seeking the right, privilege and easement aforesaid shall present to and file wdth the district court a petition in writing, and under oath specifying and describing the right, privilege and easement sought and the time for which the same is sought and the fact that the parties to the proceedings are unable to agree upon the amount of compensation therefor. A copy of the application for such privilege shall be attached to said petition and thereupon it shall at once be the duty of the court, by its order in writing, to fix upon a place and a time not more than thirty days thereafter where and when the court M'ill try, ascertain, assess and determine the amount of such 27 418 Ml^'NESOTA LAWS. compensation, a certified copy of which order, at least twenty days before the time so fixed upon, shall be served upon the party from whom the right, privilege ;in(l easement is sought, as summons are served in civil actions of said court, and such service when made shall be ample notice to and summons for the party so served to appear and join in the proceedings and shall be ample to give the court full juriscUction over the party against whom the proceedings are instituted and the property involved in the proceedings. Sec. 4. Trial by judge or jury — Findings of court or jury — Appeal to supreme court — Costs and disbursements. At the time and place so fixed for ascertaining, assessing and determining the compensation aforesaid the court shall immediately pro- ceed to try said matter, without a jury, if the parties consent, and if they do not consent and if the time and place fixed for said hearing is at a general or special term of said court where a petit jury has been summoned, the court shall proceed to the hearing of such matter with a jury selected and sworn from the panel present at said term, in the same manner as jurors are selected in civil actions, and if the regular panel is exhausted before a jury is secured talesmen may be summoned. In case said proceedings are made returnable at any other time than at a term where a petit jury shall have been summoned the court shall make an order requiring the selection of twenty- four jurors from those returned by the county commissioners, which jury shall be drawn and selected in the same manner provided by law for the drawing of jurors for general terms of the district court, and from the jurors so returned a jury shall be selected the same as in civil actions and the trial shall pro- ceed after the manner of trials in civil actions and the court or jury, as the case may be, shall find and assess compensation both in the form of an annual rental and in the form of a gross sum for the right, privilege and easement sought, and imme- diately after the finding or verdict has been made the party against whom the proceedings have been taken shall elect whether to receive the annual rental or the gross sum found, and in case such election is not made by this party then the other party to the proceedings may make such election, and MINNESOTA. 419 after election is made as aforesaid judgment shall be rendered, adjudging, among other things, that upon the payment of the gross sum found, or the annual rental found, yearly in advance, as the case may be, the party instituting the proceedings shall be entitled to the right, privilege and easement of erecting and maintaining the elevator or warehouse asked for in the appli- cation and petition aforesaid and for the time therein specified ; and thereupon the party in whose favor said judgment is ren- dered shall be entitled to a writ of execution in proper form to immediately invest such party with the right, privilege and easement aforesaid. In case the annual rental is elected the same shall be paid yearly in advance, and if not so paid after thirty days' default the right, privilege and easement aforesaid shall be absolutely forfeited. Within thirty days after the entry of said judgment as hereinbefore provided, but not later, an appeal may be taken by either party to the supreme court, but such appeal shall not stay or hinder the use or enjoyment to the fullest extent of the right, privilege and easement asked for by the petition and conferred by the judgment, if the party instituting the pro- ceedings shall make and file a bond with sureties, to be ap- proved by the court, in an amount double the gross sum or annual rental, conditioned to pay such sum or rental and to abide and satisfy any judgment the supreme court may render in the premises. Costs and disbursements as in civil actions shall, in each court, be paid by the unsuccessful party. If the findings of the court or jury is for a less or the same amount as tendered by the petitioner before instituting the proceedings, then the peti- tioner shall be deemed the successful party ; but if the amount found is larger than the sum tendered, then the petitioner shall be deemed the unsuccessful party. In the supreme court, if the judgment or order appealed from is reversed or modified, the appellant shall be deemed the successful party; but if the judgment or order appealed from is affirmed, the respondent shall be deemed the successful party. Sec. 5. To he public elevators and warehouses. All elevators and warehouses erected and maintained under the provisions of 420 MINNESOTA LAWS. this act shall be deemed public elevatois and public warehouses and shall be subject to legislative control and shall be kept open lor business for the public for reasonable business hours from the fifteenth day of September in each calendar year to the fifteenth day of January in each succeednig calendar year. Any person, firm or corporation who fails to comply with the provisions of this section shall forfeit the rights, privileges and easements acquired under this act. Sec. 6. Erection of elevators to commence unthin sixty days. Any persons, firms or corporations availing themselves of the provisions of this act shall, within sixty days after the amount to be paid for the easement acquired thereunder is finally de- termined by agreement or by proceedings in court, commence the erection of the warehouse or elevator stated in the apphca- tion referred to in section one, and complete the same within ninety days thereafter, and in case of failure to comply with the provisions of this section they shall be deemed to have abandoned the right, privilege and easement acquired, and the part or portion of the rail roar! right of way described in their application shall be subject to selection by other applicants who may desire to avail themselves of the provisions of this act. Sec. 7. This act shall take effect and be in force after the first day of May, A. D. 1893. Approved April 8, 1893. Chapter 73, Laws, 1879. An Act to prevent fraud by coloring grain. Section 3e. Grain not to be colored. No person shall subject, or procure to be subjected, any barley or other grain, to fumi- gation by sulphur or other material, or to any other chemical process af!ecting the color of such barley or grain. Sec. 3/. Sale of colored grain forhidden. No person shall sell, or offer for sale, any barley or other grain which shall have been subjected to fumigation or other process mentioned in the last section, knowing the same to have been so subjected. Sec. 3g. Penalty Any person violating the provisions of this act, shall, upon conviction thereof, be punished by a fine not MINNESOTA. 421 exceeding five hundred (500) dollars, or imprisonment, not ex- ceeding one (1) year in the state priscjn, or both such fine and imprisonment, and shall be liable to treble the damages sus- tained by any person injured by such violation. (1879, chap. 73, sees. 1, 2, 3.) WEIGHTS AND MEASURES. General Statutes, 1878, Chapter 21. Section 1. Standard weujhts and measures. The standard weights and measures received from the secretary of state of the United States, and all scalebeams, weights and measures owned by this state, shall be deposited in the office of the state treasurer, who shall receive and preserve the same. Sec. 2. State treasurer to be sealer of weights, etc. The state treasurer shall be the sealer of weights and measures for the state. He shall try and prove by said standards all weights and measures, scales or beams sent or brought to him for that purpose by any county sealer, and shall seal such when found to be accurate, by stamping upon the letters "Min." witii a seal he shall have and keep for that purpose. Sec. 3. Treasurer to he sealer of each county. The treasurer of each county shall be the sealer of weights and measures for the county. He shall procure, at the expense of the county (if not already provided), a full set of weights and measures, scales and beams, which he shall cause to be tried, proved and sealed by the state standard, and certified by the state treasurer; and the county treasurer for the time being, one in every five (5) years from the first (1st) day of January, .\. D. one thousand eight hundred and sixty-five (1865), shall cause the standard in his keeping to be tried, proved and sealed by the state stand- ards under the direction of the state treasurer. Such weights and measures, when so sealed and certified, shall be deposited in the office of the county treasurer as the county standards, by which he shall try and prove all scalebeams, steelyards, weights and measures brought to him for that purpose, and shall seal such, when found to be accurat(^ by stamping upon them the letters "Min." with a seal he shall have and keep for that 422 MINNESOTA LAWS. purpose. And for each trying and proving, whether sealed or not, he shall receive a fee of five (5) cents for every scalebeam, steelyard, weight or measure. Sec. 4. Deputy sealers of weights and measures. The county treasurer of each organized county shall have power to appoint in writing a deputy sealer of weights and measures for each railroad station and wheat market in his county, each of which appointments shall be recorded in the office of the register of deeds, and thereupon each of said deputies shall have all the powers and shall be competent to perform all the duties of such office, and shall, in case of willful neglect or refusal to faithfully discharge the duties required of him by law, be punished in accordance with the provisions of this act relating to the office of sealer of weights and measures. (As amended 1874, chap. 76, sec. 1.) Sec. 11. Weights and measures — Penalty for using not proved and sealed, etc. — Sealer or deputy to examine and test weights and measures when so requested — Fines. All persons engaged in any business, trade or occupation, requiring the use of weights or measures, shall cause to be tried, proved and sealed by the sealer of weights and measures, in their respective counties, all scalebeams, steelyards, weights, or measures, used by them in buying or selling any goods, wares, merchandise, grain or other commodities. If, after the expiration of three months from the passage of this act, any person shall buy, sell or dispose of any goods, wares, merchandise, grain or other commodities by any scalebeams, steelyard, weight or measure, not proved and sealed in accordance with the provisions of the law to which this is amendatory, or shall fraudulently buy, sell or dispose of any goods or commodities, wares, grain or merchandise, by any scalebeam, steelyard, weight or measure that has been sealed, but is unjust, shall be deemed guilty of a misdemeanor, and, upon conviction thereof by any court having competent juris- diction, shall be fined not less than five (5), nor more than one hundred (100) dollars; and, upon neglect or refusal to pay such fine and the costs of prosecution, the court before whom the accused shall have been tried, shall commit him to the county jail, until such fine and costs are paid, or he is discharged by MINNESOTA. 423 due course of law. And for the purpose of enforcing the law; it shall be the duty of the sealer of weights mikI measures, or his deputy, upon the written request of any aggrieved person ; and upon the payment to him in advance by such person, the sum of one (1) dollar, and the further sum of twenty (20) cents per mile for going and returning, as travelling expenses, to ex- amine and test any weights or measures used within his county, whether the same shall have been before tested, proved and sealed or not, at any time when called upon, and without previ- ous notice to the person or party complained of. And if such sealer of weights and measures, or any deputy sealer of weights and measures, shall, directly or indirectly, give previous notice or information to the party complained of, of such examina- tion, in any manner whatever, he shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than fifty (50), nor more than one hundred (100) dollars, or by imprisonment in the county jail for not less than thirty (30), nor more than ninety (90) days, or by both fine and imprisonment, in the discretion of the court. All fines collected under the provisions of this act shall be paid over to the county treasurer for the benefit of the school fund of the county where the action is brought. (As amended 1874, chap. 76, sec. 3.) Sec. 12. Neglect to procure weights and measures — Penalty. If the treasurer of any county, or the sealer of weights and measures of any township, neglects to procure (if not already provided) a set of weights and measures for such county or township, in compliance with the provisions of this chapter, he shall, upon conviction thereof by any court of comi:)etent jurisdiction, forfeit a sum not exceeding one hundred (100) dol- lars to the use of the county. Sec. 13. Action against sealer, hovj instituted. No action shall be commenced against any county or township sealer for neg- lecting to procure the sets of weights and measures as required by law, until the person proposing to bring such action gives such sealer notice in writing of his intention to commence such action, at least twenty (20) days prior thereto. And if such weights and measures are provided in accordance with the re- 424 MINNESOTA LAWS. quirements of law, within twenty (20) days from such notice, then such action shall not be commenced. (Only such sections which pertain to measures and weights of grain are included in foregoing chapter.) Chapter 31, General Laws, 1897. An Act to amend section nine (9) of chapter twenty-one (21) of the General Statutes of eighteen hundred and seventy-eight (1878), as amended by chapter .twenty-two (22) of the General Laws of eighteen hundred and eighty-seven (1887) and by chap- ter one hundred and nine (109) of the General Laws of eighteen hundred and ninety-three (1893), relating to weights and meas- ures. Be it enacted by the legislature of the state of Minnesota : Section 1. That section nine (9) of chapter twenty-one (21) of the General Statutes of one thousand eight hundred and seventy-eight (1878), as amended by chapter twenty-two (22) of the General Laws of one thousand eight hundred and eighty- seven (1887) and by chapter one hundred and nine (109) of the General Laws of one thousand eight hundred and ninety- three (1893) be and the same is hereby amended so as to read as follows: "Sec. 9. Weights to apply on various commodities — Penalty. Whenever any of the following articles shall be contracted for or sold or delivered, and no special contract or agreement shall be made to the contrary, the weight avoirdupois per bushel shall be as follows, to-wit: Apples, green, fifty (50) pounds; ap- ples, dried, twenty-eight (28) pounds; beans, sixty (60) pounds; barley, forty-eight (48) pounds; buckwheat, fifty (50) pounds; beets, fifty (50) pounds; blue grass seed, fourteen (14) pounds; blueberries, forty-two (42) pounds ; broom corn seed, fifty-seven (57) pounds; corn, shelled, fifty-six (56) pounds; corn, in ear, seventy (70) pounds; clover seed, sixty (60) pounds; carrots, forty-five (45) pounds; charcoal, twenty (20) pounds; cran- berries, thirty-six (36) pounds; currants, forty (40) pounds; gooseberries, forty (40) pounds; hemp seed, fifty (50) pounds; Hungarian grass seed, forty-eight (48) pounds; millet, forty- MINNESOTA. 426 eight (48) pounds; oats, thirty-two (32) pounds; onions, fifty- two (52) pounds; orchard grass seed, fourteen (14) pounds; peas, sixty (60) pounds; Irish potatoes, sixty (60) pounds; sweet potatoes, fifty-five (55) pounds; parsnips, forty-two (42) pounds; poaches, dried, twenty-eight (28) pounds; plastering hair, washed, four (4) pounds; plastering hair, unwashed, eight (8) pounds; rape seed, fifty (50) pounds; red top seed, fourteen (14) pounds; rutabagas, fifty-two (52) pounds; rye, fifty-six (56) pounds; sorghum seed, fifty-seven (57) pounds; timothy seed, forty-five (45) pounds; wheat, sixty (60) pounds; coal, eighty (80) pounds; provided, that if coal be sold by the ton the weight thereof shall be two thousand (2,000) pounds. Whenever any wood shall be contracted for or sold or deliv- ered, and no special contract or agreement shall be made to the contrary, the measurement per cord shall be one huntlred and twenty-eight (128) cubic feet. And whoever in buying any of said articles shall take any greater number of pounds or cubic feet thereof to the bushel, ton or cord, as the case may be, or in selling any of said articles shall give any less number of pounds or cubic feet thereof to the bushel, ton or cord, as the case may be, than is herein allowed and specified, except when expressly authorized so to do by special contract or agreement to that effect, shall be deemed guilty of a misdemeanor and shall be punished by a fine of not less than ten (10) dollars, nor more than one hundred (100) dollars, or by imprisonment in the county jail for not more than ninety (90) days. Sec. 2. This act shall take effect and be in force from and after its passage. Approved March 5, 1897. Chapter 199, General Laws, 1899. An Act establishing a board of appeals for the inspection of grain, and prescribing its duties. Be it enacted by the legislature of the state of Minnesota : Section. 1. The governor shall appoint six (6) suitable, com- petent persons, on or before July fifteenth (15th), eighteen hundred and ninety-nine (1899), after the passage of this act, 426 MINNESOTA LAWS. three (3) of whom shall constitute a board of appeals for the inspection of grain at Minneapolis, and the other three (3) to constitute a similar board at Duluth, each respective board to consist, so far as may be, of one (1) practical or representative protlucer of grain, one (1) practical or representative grain com- mission merchant, and one (1) practical or representative grain merchant, exporter or miller; not more than two (2) members of either of said boards of appeals shall belong to the same political party, whose terms of office shall commence Angus' first (1st), eighteen hundred and ninety-nine (1899), and who shall hold their office for a period of two (2) years, and until their successors are appointed and qualified. Every two (2) years thereafter, and within thirty (30) days prior to the expiration of their terms of office, the governor shall appoint six (6) such suitable, competent persons, to succeed those whose terms will expire on August first (1st), who shall hold their ofhce for two (2) years, and until their successors are appointed and (jualified. Any vacancy which shall occur in the office of any member of said respective boards of appeals shall be filled by the gov- ernor for the remainder of the term, when a successor shall be appointed for the full term of two (2) years. The governor shall have power, in his discretion, to remove from office any member of said respective boards of appeals at any time, and fill vacancies thus created by the appointment of any suitable person or persons. Sec. 2. In all matters involving doubt on the part of any grain inspector as to the proper grade of any lot of grain under the standard or rules of inspection, or in case any owner, con- signee or shipper of grain, or any warehouse manager shall be dissatisfied with the decision of the chief inspector or any of his chief deputy inspectors, or other inspectors, an appeal may be made to the said board of appeals, in the district where the inspection was first made, and a decision of a majority of the said board of appeals shall be final. The railway and ware- house commissioners are authorized to make all necessary rules governing such appeals and to fix the fees for the same. All notices requiring the services of the board of appeals shall be ftHNNESOTA. 427 filed in the office of the chief deputy inspector, in whose dis- trict the grievance or dispute arises, who shall in turn deliver the same promptly to said board. Provided, however, that the party appcalinp; shall pay to the chief deputy inspector, with whom he serves notice of appeal, a sum not to exceed one (1) dollar per case before said appeal be entertained, which sum shall be refunded should such appeal be sustained. Sec. 3. The entire six (6) members constituting the two (2) boards of appeals shall meet together, or a majority of said six (6) members, not later than September fifteenth (15th) each year, and prescribe or designate standards for grades, and when grades are so prescribed, designated and published, the same shall not be changed during the crop year, or from one annual meeting until the next, except on approval of at least five (5) members of the two (2) joint boards. Sec. 4. It shall be the duty of either branch of the board of appeals, when of the unanimous opinion that any inspector is incompetent, indifferent, intemperate or untrustworthy, to re- port such fact to the railway and warehouse commission. Sec. 5. Either branch of the board of appeals shall hear, and it is hereby made the duty of either branch to whom an appeal shall be made, to hear and determine all questions at issue as to grades of grain, made by any inspector, or made against any public country warehouse. All such appeals shall be made to either branch of the board of appeals, hereby created in sec- tion one (1) of this act. Sec. 6. Each of the members of the said board of appeals shall, before entering vipon the duties of their office, take an oath of office as in the case of other state officers, and shall execute a bond in the penal sum of five thousand (5,000) dollars, to the state of Minnesota, with good and sufficient sureties, to be approved by the governor, conditioned that they will faith- fully and impartially disch;irge the duties of their office, accord- ing to law, such bonds to be filed with the secretary of state. The sureties required by this section shall not be interested in, nor connected with any elevator, or grain commission busi- ness, firm or corporation, and surety bonds may be received 428 MINNESOTA LAWS. from any surety company, approved by the governor, which is authorized to do business in this state. No member of such board of appeals shall be a member of any board of trade or other grain exchange or grain firm, nor shall he in any way be engaged in, or interested in the business of buying or selling grain. Sec. 7. The salaries of the members of the said boards of ap- peals shall be fixed by the railway and warehouse commissioners by consent of the governor, and shall be paid from the grain inspection fund, and all necessary expenses incurred in carrying out the provisions of this act shall be paid out of the said grain inspection fund, upon the order of the railway and warehouse commissioners. Sec. 8. All acts or parts of acts inconsistent herewith are hereby repealed. Sec. 9. This act shall take effect and be in force from and after its passage. Approved April 13, 1899. Chapter 157, General Laws, 1901. An Act to establish state inspection and weighing of grain at country points, and making such country points terminal points as far as relates to such service, and making the provi- sions of chapter 144, General Laws of 1885, being "An act to regulate warehouses, inspection, weighing and handling of grain, applicable to such country terminal points." Be it enacted by the legislature of the state of Minnesota : Section 1. That upon proper application to the railroad and warehouse commissioners of the state of Minnesota by the owner or manager of an elevator, warehouse or mill, located out- siflo of St. Paul, Minneapolis and Duluth, in this state, for ter- minal inspection and weighing service, the said commissioners are hereby authorized, if in their judgment it is expedient and feasible, to furnish such service. Provided, that such owner or manager shall first enter into an agreement with said com- missioners to pay all costs of such service at such local point. The said commissioners shall also, if in their judgment it is con- MINNESOTA. 429 sidered desirable, make and promulgate special rules and regu- lations covering such service at country terminal points. Sec. 2. All laws of this state applying, governing and regulat- ing, weighing and inspection of grain at St. Paul, Minneapolis, Duluth and St. Cloud shall apply, regulate and govern the weighing antl inspection of grain at all j)oints which may here- after be established as terminal points by the railroad and warehouse connnissioners. Sec. 3. This act shall take effect and be in force from and after its passage. Approved April 6, 1901. Chapter 334, General Laws, 1901. An Act to establish state weighing and inspection of grain at the city of Willmar, in the county of Kandiyohi, and mak- ing said city of Willmar a terminal point, and making all laws of this state that are applicable to the weighing and inspection of grain at the terminal points of St. Paul, iMinneapolis, Duluth, St. Cloud, Fergus Falls and Winona applicable to Willmar. Be it enacted by the legislature of the state of Minnesota : Section 1. The city of Willmar, in the county of Kandiyohi, is hereby made and established as a terminal point for the weighing and inspection of grain. Sec. 2. All laws of this state ai:)plying, governing and reg- ulating the weighing and inspection of grain at St. Paul, Minneapolis, Duluth and St. Cloud shall apply, regulate and govern the weighing and inspection of grain at the city of Willmar. Sec. 3. This act shall take effect and be in force from and after its passage. Approved April 13, 1901. Chapter 132, General Laws, 1901. An Act to establish state weighing and inspection of grain at the city of New Prague, in the counties of Scott and Le Sueur, and making said city of New Prague a terminnl point, and making all laws of this state that are applicable to the weigh- 430 MINNESOTA LAWS. ing and inspection of grain at the terminal points of St. Paul, Minneapolis, Duluth, St. Cloud, Little Falls, Fergus Falls and Winona applicable to New Prague. Be it enacted by the legislature of the state of Minnesota: Section 1. The city of New Prague, in the counties of Scott and Le Sueur, is hereby made and established as a terminal point for the weighing and inspection of grain. Sec. 2. All laws of this state applying, governing and regulat- ing the weighing and inspection of grain at St. Paul, Minne- apolis, Duluth, St. Cloud, Little Falls, Fergus Falls and Winona shall apply, regulate and govern the weighing and inspection of grain at the city of New Prague. Sec. 3. This act shall be in force from and after its passage. Approved April 4, 1901. Ch.\pter 107, General Laws, 1901. An Act to amend subsection "second" of subsection 3 of sec- tion fifteen (15) of chapter one hundred and forty-five (145) of the General Laws of the year 1895, relating to banks of dis- count and deposit. Be it enacted by the legislature of the state of Minnesota : Section 1. That subsection "second'' of subsection 3 of sec- tion fifteen (15) of chapter one hundred and forty-five (145) of the General Laws of the year 1895, relating to banks of dis- count and deposit, be and the same is hereby amended so as to read as follows: "Second. That the full amount of the loans shall at all times be covered by policies of fire insurance issued by companies admitted to do business in this state, to the extent of their ability to cover such loans, and then by companies having sufficient paid-up capital to be so admitted, and all such policies shall be made payable in case of loss to the bank or holder of the warehouse receipts, except that in all cases where the prod- ucts covered by warehouse receipts are stored in a warehouse or warehouses pronounced by the railway and warehouse com- missioners to be fireproof, their certificate to that effect to be MINNESOTA. 431^ accepted in lieu of the policy of fire insurance provided for in this clause." Sec. 2. This act shall take effect and be in force from and after its passage. Approved April 2, 1901. 432 MINNESOTA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment and sale. Where a party delivers or deposits grain with another, with an agreement, express or implied, that the latter may use and dispose of it, and fulfill his obligations to the former by return- ing an equal amount of other grain of the same quality, the transaction, in the absence of a statute changing the rule, is a sale and not a bailment. Fishback v. Van Dusen & Co., 33 Minn. 110. (Note. The party receiving the wheat for storage was not a " warehouseman." See Nat. Ex. Bank of H. v. Wilder, 34 Minn. 149, modifying certain dicta in above case and dis- tinguishing the same.) See also Weiland v. Krejnick, 63 Minn. 314; Weiland v. Sunwall, 63 Minn. 320. Same — Right to sell at any time — Sale. In an action against a warehouseman to recover the value of wheat deposited with him, the evidence showed that it was the invariable custom at the warehouses in the city to mingle together all the gi-ain of the same grade, and that this was done with the knowledge of the depositors, and that, if a depositor should demand the wheat, instead of the value, he would not receive, unless by accident, any of the identical wheat deposited by him. The evidence further showed that it was unusual for the depositor to demand a return of the wheat, as he almost always choose to take the value thereof at the date on which he surrendered the receipt and closed the transaction. Held that such a contract constituted a sale and not a bailment. Rahilly v. Wilson, 3 Dillon, 420. Same — Option to buy. A receipt for grain placed in store, which in all other respects constituted a bailment, contained the following: "The condi- tions on which this wheat is received at this elevator are that Rieger (the warehouseman) has this option: either to deliver the grade of wheat that this ticket calls for, or to pay the bearer the market price tor the same, less elevator charges, on sur- MINNESOTA. 483 render of this ticket." Held that this did not render the con- tract one of sale. It merely gave the warehouseman an option to buy when the receipt was presented. This option he could only exercise when the receipt was presented, and by paying the money. State of Minnesota v. RiUjer, 59 Minn. 151; Stale V. Cowdery, 79 Minn. 94. B. Ordinary care — Evidence of custom not conclusive as to such care having been exercised. The following held to be correct instruction given by the court, to the jury, in defining the degree of care to be exercised by a warehouseman: "That by ordinary care is meant that care which a person of common prudence takes of his own con- cerns, or that degree of care which men of common prudence exercise about their own affairs in the age and country in which they live; that in determining what would be ordinary care in this particular case, reference must be had as to the actual state of societ}^ the business habits, and general usage peculiar to the time and country. That what is done by men of ordi- nary prudence in any particular country in respect to things of a like nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence. But the evidence of customs of railroads given in this case is merely evidence to go to the jury for what it is worth. It is not conclusive." Derosia v. The Winona & St. Peter R. R. Co., 18 Minn. 133. Rights of depositors — Title to goods — Commingling grain. A deposit of grain for storage is a bailment, the title remain- ing in the depositor, so that he is deemed to bo the owner of the grain in the warehouse to the amount of his deposit, al- though the identical grain he deposited has been removed, and other grain, of like kinfl and quality, substituted in its stead. Hall V. Pillsbury et al., 43 Minn. 33. Demand on agent in charge of warehouse, proper. An agent lawfully in charge of the business of a warehouse in which goods, the title to which is in dispute, are deposited in the proper party upon whom to make demand for the de- 28 434 MINNESOTA DECISIONS. livery thereof, by the person claiming title thereto. Lundherg V. Northwestern Elevator Co., 42 Minn. 37. Conversion — Sale by warehouseman — Owners may follow goods. If a warehouseman sell as his own, out of a common mass of grain in his warehouse, any in excess of that which he person- ally has stored there, it is a conversion, his sale passes no title and the owners, the depositors, may follow the grain into the hands of the purchaser and recover of him. Hall v. Pillsbury et al, 43 Minn. 33. Same — Same — Fraudulent sale by warehouseman — Equity. A warehouseman received wheat, for storage, from different depositors, and mingled the same in a common mass, issuing receipts for the same to the various owners. The warehouse- man, after having fraudulently sold a large quantity of the wheat, absconded. The creditors thereupon attached all the wheat remaining in the warehouse. In an action of replevin, brought by one holding a majority of the receipts, against the sheriff, in which he claimed that he was entitled to all of the property remaining in the warehouse, the court held that he was not so entitled; that no one of such receipt holders could recover, at law, the whole amount, nor could any number of such holders, less than all of them, recover the whole amount stored. The court further held that it was a case to be brought in equity. Hammergen v. Schuermier et al., 1 McCrary, 434; Greenleaf et al. v. Dows & Co., 8 Fed. Rep. 550. Same — Wrongful shipment by warehouseman of grain stored — Demand by receipt holder. A demand by the holder of a warehouse receipt for grain depo.sited for storage, for the amount represented by the receipt, is good notwithstanding that, by reason of removal of grain by the warehouseman, there is not enough left in store to an- swer all the receipts. Lenthold et al. v. Fairchild et al, 35 Minn. 99. Same — Same — Liability of agent, knowingly aiding in the wrong. The agent of a warehouseman, who assists him in wrongfully MINNESOTA. 435 disposing of the wheat, Ivnowing that he is doing it wrongfully, is liable to the owners of the wheat. Id. Contract of storage — Evidence — Correspojidence. The complaint herein alleged that the plaintiff sold and de- livered, at French, Minn., to the defendant, a quantity of wheat, for which it agreed to pay, at any future time when demanded, the then market price of wheat at Duluth or xMinne- apolis, less thirteen cents per bushel. Held that certain cor- respondence between the parties did not establish such con- tract. Wemple v. Northern Dakota Elevator Co., 67 Minn. 87. H. Tender of storage charges — Waiver. It is competent for a bailee of grain held in store to waive the formal requisites of a tender of charges and grain receipts pro- vided for by Gen. St. 1878, ch. 124, sec. 15. Wallace v. Minne- apolis & Northern Elevator Co., 37 Minn. 464; Tarbell v. Farmers' Mutual Elevator Co., 44 Minn. 471. Ground of refusal — Estoppel. Where a bailee places his refusal to deliver stored grain solely on the ground that it is claimed by a third party, he will not be permitted subsequently to change his position, and justify such refusal on the ground that his charges are not paid. Wallace V. Minneapolis & Northern Elevator Co., 37 Minn. 464. Excessive sale for storage charges — Conversion — Burden of proof. A large number of articles were deposited by plaintiff with defendant for storage, the charge for storage to be two dollars per month. After the storage for the first month had been due for more than three months, the defendant advertised and sold article by article, all the goods, under the provisions of laws, 1889, ch. 1999. Enough was realized to more than pay the charges overdue for three months and expenses of the sale. The action being for conversion, heJd that the right to sell ceased as soon as the sale had produced enough to satisfy the charges overdue three months and expenses of sale, and all 436 MINNESOTA DECISIONS. articles sold after that were illegally sold; and it was for de- fendant to show what articles were sold before the right to sell ceased, and, there being no evidence on this point, plaintiff was entitled to recover the value of all the articles. Jesurun v. Kent, 45 Mum. 222. Warehouseman's lien for his charges and for freight, distin- guished. The lien of a warehouseman upon goods for warehouse charges, and the lien of a warehouseman upon goods for money advanced for freight charges, depend upon different principles of law. A warehouseman who receives goods from a steamboat in the carrying trade, and pays to such boat the freight charges, does not by reason of such payment obtain a lien upon the goods. Bass & Co. V. Upton, 1 Minn. 408. I. Grain in mass — Receipt holders tenants in common — When warehouseman tenant in common. Where the grain of several depositors is deposited in a com- mon mass, the receipt holders are tenants in common of the mass, the interest of each being limited to the amount called for by his receipt. The warehouseman too may be a tenant in common; if he has grain in the mass his interest is limited to the excess above what is necessary to meet his outstanding receipts. Hall v. Pillsbunj, 43 Minn. 33; Nat. Ex. Bank of H. V. Wilder, 34 Minn. 149. M. Pledge — Constructive possession — Warehouse receipt. While possession by the pledgee is necessary to the existence and continuance of a pledge, yet this need not be actual physi- cal possession. The delivery of a recognized symbol of title, such as a warehouse receipt, which puts the pledgee in control and constructive possession of the property, is sufficient. Nat. Ex. Bank of H. v. Wilder, 34 Minn. 149. Same — Commingled wheat. Where the pledged property is part of a larger uniform mass, us wheat in an elevator, separation from such uniform mass is MINNESOTA. 437 not necessary to constitute an a[)proi)riution of tlu; property to the contract of i)ledgc. The pledgee becomes tenant in common with the other owners. Id. Same — Substitution of other grain by warehouHeman ipledcjor). Where a warehouseman has pledged the warehouse receipts for his own wheat stored in his own warehouse, wliidi wlicat is commingled with that of his customers, and in the course of his business ships out the specific grain pledge(l and {)urchases and stores in his warehouse other grain of the same kind and quality, the latter, by virtue of the provisions of the statute (ch. 86, Laws of 1876), takes the place of the former, and is ap- propriated to the contract as the property of the pledgee or depositor. Id. N. Loss by fire — Nondelivery due to warehouseman's negligence — Liability. If, by the negligence of a warehouseman, the owner of goods stored with him is unable to obtain possession thereof, and, as a consequence, the goods remain with the warehouseman and are afterwards burned, although without the fault of the ware- houseman, it was held that this was a direct consequence of the warehouseman's default, and he is liable therefor. Derosia v. The Winona & St. Peter R. R. Co., 18 Minn. 133. Negligence of warehousemen — Decay of apples in cold storage — Jury. Where plaintiff stored apples in the cold storage warehouse of defendant and there was sufficient evidence of negligence on the part of defendant to justify the verdict in favor of plaintiff; it was held such verdict will not be set aside on appeal, and further, that the question of negligence was properly one for the jury. Townsend v. Rich, 58 Minn. 559. Same — Rendering them insurers. Defendants, warehousemen, received from the plaintiff, for storage, certain goods, she was to bear the risk from fiic, and so had the goods insured in the warehouse. In contemplation of their removing the goods, at some indefinite time, to another warehouse, they agreed to give her notice when the 438 MINNESOTA DECISIONS, goods were removed, so that she might have the insurance continued on them in such warehouse. Defendants removed the goods but failed to give notice to the plaintiff. By the removal the insurance became void. The goods were destroyed by fire. Defendants had no authority from plaintiff to make any arrangements for insurance. Defendants testified, but it was denied by the agent of the insurance company, that they informed such agent of the removal of the goods and that he promised to make the necessary change in the policy. Held that, conceding plaintiff, when informed of this after the fire, might have adopted or ratified what defendants testified to, as an agreement by the insurer to continue the policy, she was not bound to do so, and that though found by the jury to be as defendants testified, it was no defense to an action for neglect- ing to give notice of the removal. Conover v. Wood, 48 Minn. 438 ; Brigham v. Wood, 48 Minn. 344. Negligence in storage of cheese — Dripping brine pipes — Terms of receipt. The defendant, a warehouse company, received from plain- tiff a large amount of cheese for storage in its warehouse and issued to plaintiff a receipt, the conditions of which were as follows: "All property is to be at owner's risk of any loss or damage from riot, fire, water, deterioriation, defective coop- erage, packing, ratage, vermin, leakage, frost, or from being perishable or otherwise inherently defective when stored." The overhead brine pipes used by defendant in keeping a low temperature in its storage I'oom were covered with ice, and the defendant negligently allowed the temperature in said room to rise so that the ice melted, and the water therefrom dripped down upon and greatly damaged plaintiff's cheese. Held that defendant was not exempt from liability for damage caused by its own negligence. Minn. Butter & Cheese Co. v. St. Paul Cold Storage Warehouse Co., 75 Minn. 445. 0. Measure of damages — When conversion willful and when not — Rule stated. Where the conversion of personal property is accidental and MINNESOTA. 439 under the belief that the person has a right to the property, and he acts with no wrongful purpose or intent, the measure of damages is the value of the property at the time of the actual taking and conversion. But where the original taking and con- version is willful and without color or claim of right, the meas- ure of damages is the value of the property at the time and in the condition in which it is, when demand for its return is made. Dolliff v. Rohhins, 83 Minn. 498. Warehouse receipts — Expressed conditions as to payments to be made — Notice to purchaser. In certain warehouse receipts, issued to a third party and purchased by the plaintiff, there appeared a clause whereby the warehouseman stipulated to deliver a specified number of gallons of whiskey on return of the receipts and "payment of the whiskey, the United States government and state tax, in- terest and charges." Held that although the w^ords "payment of the whiskey" were indefinite and ambiguous, it was obvious that a prepayment of some character was required in addition to the government and state tax, interest and charges. By the use of this language the plaintiff was notified of an infirmity in the receipts, and he was bound to inquire its meaning or, failing to do so, suffer the consequences. Stein v. Rheinstrom et al, 47 Minn. 476. Same — Construction of — Advanced charges. A warehouse receipt stated that the property was deliverable "on payment of charges" without stating their nature or amount, the spaces for the insertion of the amount of "storage" and "advanced" charges respectively being left blank. Held that this was sufficient to put a purchaser of the property upon inquiry as to the amount and character of the charges, and that the warehouseman was not estopped, as against such pur- chaser, from asserting his lien for "advanced" charges. Se- curity Bank of Minnesota v. Minneapolis Cold Storage Co., 55 Minn. 107. Same — Same — Contract of insurance in. A storage receipt for wheat delivered at a public elevator, 440 MINNESOTA DECISIONS. after stating the rate of storage, contained the follo^\dng clause: "This charge for storage shall cover the loss by fire only; all other damage by the elements, or by heating or riot, or by the act of God, or which in any way has been caused b}^ the holder of this receipt, shall be excepted." Held this, by implication, constituted a contract of insurance by the warehouseman against loss by fire. Thompson v. Thompson, 78 Minn. 379. Same — Same — Modification of contract. Further held in above case that by a subsequent agreement modifying the contract so as to provide that no charge should thereafter be made for storing the grain, this implication as to insurance dropped out and thereafter the warehouseman was not such insurer. Id. Same — Rate of storage. The storage receipt provided that the rate of storage "shall not exceed four cents for six months." Held this was in- tended to fix the rate of storage and not the duration of the bailment. Id. Same — Authority to sell. A provision in a storage receipt, issued under G. S. 1894, sec. 7646, that the stored property may be mingled with other property of the same kind or transferred to other elevators or warehouses, does not confer authority on the warehouseman to sell the property described therein. State v. Cowdery, 79 Mimi. 94. Same — Written parts control printed. In a contract for the storage of wheat by which a warehouse- man had authority to sell, there was an inconsistency or conflict between the written and printed parts thereof; it was held that the written parts controlled. Murray v. Pillshury, 59 Minn. 85. Same — Estoppel by. Where a warehouseman has issued a negotiable receipt, he is estopped to deny that he has received the goods, in an action MINNKSOTA. 441 brought against him for their value by an assignee thereof. M'Neil V. Hill, 1 Woohvorth, 96. Same — Pledge by warehouseman. The owner of goods, ij a warehouseman, can pledge the same by issuing and dehvering his own warehouse receipt to the pledgee. Nat. Ex. Bank of H. v. Wilder, 34 Minn. 149, mod- ifying Fishback v. Van Dusen & Co., 33 Minn. 111. » Same — Same — Warehouse act of 1876. Under the grain warehouse law of 1876 no distinction can be made between the person who makes an actual delivery of his grain at a pul)lic warehouse (actually ui)on deposit in the ware- house), and the one who leaves it in store with the pro])rietor as his bailee, taking a warehouse receipt therefor, following the rule laid down in Nat. E.v. Bank of H. v. Wilder, 34 Minn. 149. Eggers et al. v. Nat. Bank of Co)nmerce, 40 Minn. 182. Same — Cold storage — E.vemption from liahility — Negligence. A warehouse receipt issued by a warehouseman to his bailor, exempting the former from liability for loss from certain causes, construed and held that the loss did not result from an}' of the excepted causes. Hunter v. Baltimore Packing and Cold Stor- age Co., 75 Minn. 408. Same — Negotiabiliy— Transfer by sale without indorsement. The title to property represented by a warehouse receipt may be passed by the sale, transfer and delivery of the receipt for a valuable consideration, aUhough not in the form of an indorsement. State v. Loomis, 27 Minn. 521 ; Pease v. Rush, 2 Minn. 89. Same — Bona fide holder protected. A public warehouseman issued numerous receipts for wheat stored in his warehouse, some of which were in the hands of the plaintiff, he having ncquired them in good faith. The warehouseman then shipped the wheat to defendants, connnis- sion merchants, who sold the same and applied the proceeds to a debt due them from the warehouseman. Held this was a 442 MINNESOTA DECISIONS. conversion on the part of defendants and that they were liable to plaintiff for value of the wheat. Dolliff v. Robbins, 83 iMinn. 498. Sa77ie — Purchaser of, must exercise ordinary prudence. The purchaser of what purports to be, or is said to be, nego- tiable paper, nuist exercise ordinary prudence in respect to knowledge derived from an inspection of the paper. Steiii v. Rheinstrom et ai, 47 Minn. 476. Same — Implied contract of insurance passes with assignment. Where a warehouse receipt contains an implied contract of insurance of the wheat stored, held that an assignment of such contract of insurance passed by a transfer of the storage receipt. Thompson v. Thompson, 78 Minn. 379. Same — As collateral — Payments from bill of sale or from re- ceipts — Burden of proof on defendant — Judgment sustained by findings. According to the findings of the court, prior to the execution of the bill of sale, the insolvent had executed, as security for his indebtedness to the defendant, warehouse receipts for chattel property, some of which were afterwards also included in the bill of sale referred to. The defendant permitted the insolvent to retain possession of all the property covered by either the receipts or the bill of sale, to sell and dispose of it and to pay part of the proceeds to apply to the indebtedness for which the property was security, and to use part in his own business. The payments sought to be recovered in this action were made out of the proceeds of property covered by either or both the warehouse receipts and the liill of sale, but the court did not find, except as to $700, what amount of such payments was made out of proceeds of property covered by the warehouse receipts. Held that, under the circumstances, the burden was on the defendant to show what part of the payments was made out of the proceeds of property covered by warehouse receipts, and hence that the findings, as made, justified an order for judg- ment against the defendant for the full amount of the pay- MINNKSOTA. 443 ments except the $700. Clarke v. Nat. Citizens Bank of Man- kato, 74 Minn. 58. Same — "Exchange tickets^' and "inspector's tickets^^ for same property both outstanding — Liability. The (lofcndaiit, a raih'oad company, issued to the plaintiff, "inspector's ticket'' for wheat stored with it, ami, upon the presentation of the ticket to the agent of the railroad, it issued, in lieu thereof, in accordance with its custcjin, an "exchange ticket.'' It appeared that in some manner the original "in- spector's ticket" found its way into the hands of other parties, who presented the same to defendant and obtained possession of the wheat. Upon demand, by the i)laintiff, for the wheat, the defendant refused to deliver, [dleging that it had already made delivery thereof. The court held that the delivery by the defendant to one holding "inspector's ticket" was an affair between the defendant anrl its agent or such other person, with which the plaintiff had no concern, and that the plaintiff was, therefore, entitled to judgment against the defendant for the value of the wheat. Lewis et al. v. St. Paul & S. C. R. R. Co., 20 Minn. 260. Same — Informal receipts — Warehouseman not estopped by. A warehouseman issued a receipt in the following form: No. 711. Account A. P. Foster. 41.25 bushels No. 2 wheat. 20 sacks. Dyer. J- G. Swart. Minneiska, Sept. 29, 1866. The owner disposed of this receipt and after several trans- fers it became the property of the plaintiff. The warehouse- man stored the wheat, represented by this receipt, in a separate bin and, when the plaintiff demanded the same of him, the identical wheat deposited was tendered for delivery. The plain- tiff declined to receive the same on the ground that it was in- ferior to No. 2 wheat, as stated on the receipt. In an action 444 MINNESOTA DECISIONS. against the warehouseman, it was held that this receipt con- tained no representation that the defendant had agreed to dehver to Foster, or his assigns, No. 2 wheat; that it did not constitute the contract between the warehouseman and Foster and, to ascertain what this agreement was, it was necessary for the phuntiff to go outside of the receipt and to inquire for the other facts. Further, that the defendant was not estopped by the terms of this receipt. Robson v. Sivart, 14 Minn. 371; Her- rick et al. v. Barnes, 78 Minn. 475. Same — Contract for sale and storage construed. A certain contract construed and held to be an agreement by the owner of grain giving the warehouseman authority to sell it as the agent of the owner, and not merely a contract for storage, except such temporary storage as is incident to re- ceiving, shipping and selling. Murray v. PiUsbury, 59 Minn. 85. Same — Indictment for larceny of receipt — Cannot plead want of authority. The defendant was proceeded against under an indictment charging him with the larceny of certain warehouse receipts, which were issued by a railroad company acting in the capacity of a warehouseman. The defendant, among other defenses, alleged that the receipts issued by the railroad company were not warehouse receipts, within the meaning of the statutes, and, under its corporate powers, it had no authority to issue such receipts. In this regard, the court held that the railroad had assumed the legal right to exercise the requisite authority, and, having reaped the benefit of the transaction, it would be es- topped from setting up a want of authority in any action brought on the receipts, by any lawful holder thereof. Further, that, if the railroad company could interpose no such defense against its liability, upon the receipts, certainly the party who had feloniously obtained possession thereof could not be heard to assert it in answer to indictment for the theft. State v. Loomis, 27 Minn. 521. Same — Contract — Parol evidence. Where a writing embraces both a receipt and a contract, the MINNESOTA. 445 contract cannot be varied by parol, any more than if it were a separate instrument. Tarbell v. Farmer's Mutual Elevator Co., 44 Minn. 471. Same — Same — Same — Fmn name. Defendant, Thompson, was doing business in the name of Smith & Thompson, and the storage receipt was signed in that name. Held the terms of the receipt could not for that reason be varied by parol, except so far as to explain the fact that de- fendant was doing business under such firm name. Thompson V. Thompson, 78 Minn. 379. Same — Conversion of luheat — Evidence. Rule applied and evidence considered in an action, by the holder of storage receipts for wheat issued by a warehouseman, against a purchaser of the wheat from the warehouseman for its conversion, and held, (1) that it was error for the trial court to dismiss the action without making findings of fact; (2) that the evidence would have sustained a finding to the effect that the title to the wheat in question was in plaintiffs, and that it did not require, as a matter of law, a finding that they con- sented to the sale of the wheat to the defendant and received the purchase price therefor; (3) that if the storage receipts were intended by the parties thereto to cover the wheat actually in store, a misdescription of the grade thereof in the receipts would not, as between the parties, affect the title of the holder of the receipts to the wheat. Herrick v. Barnes, 78 Minn. 475. R. Bills of lading in name of bank discounting draft — Conversion. Y., a warehouseman, having in his warehouse wheat deposited by others for storage, shipjwd it without their consent to Chi- cago; took bills of lading in which the bank of K. was named as consignee; drew his drafts on the parties in Chicago for whom the wheat was destined; procured the bank to discount them, delivering to it his bills of lading as security for them. The bank indorsed the bills in blank, and forwarded them, with the drafts, to its correspondent in Chicago, and the latter on payment of the drafts delivered the bills of lading to the drawee. 446 MINNESOTA DECISIONS. Held that this did not render the bank liable, as for a conver- sion, to the owners of the wheat. Lenthold et al. v. Fairchild et al,So Minn. 99. U. Building grain elevator and carrying on grain business, by the state, are not the regulation of that business — Unconstitutional law. Laws, 1893, ch. 30, entitled, "An Act to provide for the pur- chase of a site and for the erection of a state elevator or ware- house at Duluth for public storage of grain," etc., is not an exercise of the police power of the state to regulate the business of receiving, weighing and inspecting grain in elevators. It has no relation to the regulation of the business, but provides for the state itself engaging in carrying it on. Ruppe v. Becker, 56 Min. 100. Same — In violation of art. 9, sec. 5, of the Constitution. The act in question is in violation of the Constitution, art. 9, sec. 5, providing that "the state shall never contract any debts for works of internal improvement or be a party in carrying on such works." Id. Regulation of carriers — Unconstitutional law. The provision in Laws, 1895, ch. 149, sec. 11, requiring railroads and transportation companies to turn over to a storage com- pany or public warehouse all property which the consignee fails to call for or receive within twenty days after notice of its arrival, is unconstitutional and void. State of Minnesota v. Chicago, M. & St. P. Ry. Co., 68 Minn. 381. Warehouse for owner^s grain — Must have license — Laws, 1895, ch. 148, applicable and held constitutional. The defendant operated a grain warehouse, in a village in this state, in which no grain was stored but the defendant's own, which he purchased of farmers at the warehouse where the grain was delivered and where it was weighed and graded by defendant on his own scales and with his own appliances. Held that the business so carried on was of such a public char- acter, and sufficiently affected with public interest, that the legislature could require persons operating such warehouse to MINNESOTA. 447 take out a license therefor as provided in Laws, 1895, ch. 148, and that this requirement was not repugnant to the Constitu- tion of the United States. State ex rel. Railroad, and Ware- house Commission, etc. v. W. W. Cargill Co., 77 Minn 223 aff'd 180 U. S. 452. 448 MISSISSIPPI LAWS. CHAPTER XXIV. MISSISSIPPI. LAWS PERTAINING TO WAREHOUSEMEN. Sale of goods for : When the consignee or owner of any goods or articles trans- ported on any raih-oad cannot be found or refuses to receive the same or pay the charges, or neglects to do so for an unrea- sonable time, ajjplication may be made by the railroad com- pany or its agent to a justice of the peace for an order of sale; and if it be made to appear that the goods have been trans- ported by the compan}^, and that the consignee or owner can- not be found, or refuses or neglects to pay the costs and charges for transportation, or to receive the goods, the justice shall issue an order directed to the sheriff, or any constable or marshal, directing the sale of the goods at public vendue, at such time as the justice may direct, and the payment out of the proceeds of sale of the charges on such goods, and all costs which have accrued in procuring the order and making the sale ; and should there be a balance left, it shall be paid into the county treasury, and the owner of the goods may receive the same out of the treasury, on the order of the board of supervisors, if applied for within one year, but not afterwards. Perishable goods may be sold, as herein provided, according to the exigency, if not im- mediately called for and taken. Code, I\Iiss. 1892, sec. 2108. The same extended to watercraft and warelionsenien : The owners of steamboats and other watercraft, and ware- housemen, have the right to enforce charges foi- freight and storage in accordance with the provisions of the last preceding section, on goods which have been transported or stored by them where the consignee or owner cannot be found, or refuses or neglects to pay such charges. Id. sec. 2109. Mississipi'i. 449 Powers of mayor and hoard of aldernien : The mayor and l)()ai(l of aldennou of every city, town, and village shall have the care, management, and control of the city, town, or village, and its property and finances, and shall have power to enact ordinances for the i)urposes hereinafter named, and such as are not repugnant to the laws of the state, and such ordinances to alter, modify, and repeal ; and they shall have power to regulate parks, })ublic grounds, depots, depot grounds, and i)laces of storage of freight and goods within cor- porate limits, and to provide for and regulate the construction and passage of railways and street railroads through the streets, avenues, alleys, or lanes, and public grounds of the municipal- ity; but a person or company to whom the right and privilege shall, at any time, be granted by the authorities of a city, town, or village to construct railroads and street railroads through the municipality, shall not have the exclusive privilege to do so. Id. sees. 2925, 2931. A privilege tax was levied upon public warehouses by ch. 5, Laws of Miss. 1898, p. 29, as follows: On each public warehouse where storage is charged, in villages of three hundred inhabitants or less $2 . 50 In towns or villages of five hundred or less inhabitants, and not less than three hundred inhabitants 5 . 00 In towns of over five hundred and less than one thousand inhabitants 10.00 In towns of over one thousand inhabitants and less than two thousand inhabitants 15.00 In cities or towns of over two thousand inhabitants 20 . 00 29 MISSISSIPPI DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. B. Ordinary care and diligence. It is only required of a warehouseman that he should exer- cise reasonable and ordinary diligence in the keeping and preser- vation of articles intrusted to him, such as men exercise in their own private affairs. Couies v. Pointer, 26 Miss. 253; Archer et al. V. Sinclair et al., 49 Miss. 843; ///. Cent. R. R. Co. v. Tron- stine & Co., 64 Miss. 834; Merchant'. '< Whorfboat Assn. v. Wood & Co., 64 Miss. 661. Same — Construction of ivarehouse — Requirements. A warehouseman is not required l:)y law to construct his buildings secure from all possible contingencies, but they are sufficient if reasonably and ordinaril}- safe against ordinary and common occurrences. Coivles v. Pointer, 26 Miss. 253. H. Lien — Lost by surrender of goods — Warehouseman has not a general lien for balance due. The lien of a warehouseman is a common-law lien, which is a creature of l)olicy, and is a specific or particular lien which attaches to each separate bailment and is lost when the particu- lar articles of each l^ailment are delivered to the bailor, or his assignee. Therefore, where the plaintiff sued the defendant, in replevin, for the recovery of fifty-nine bales of cotton, alleg- ing that he had made tender of all charges due thereon and the warehouseman refused to deliver unless plaintiff also paid charges upon cotton previously stored and delivered, judgment was given for the plaintiff. Shingleur-J ohnson & Co. v. Canton Cotton Warehouse Co., 78 Miss. 875. Same — Section 2682, Code, 1892, construed. The contention that a warehouseman, under section 2682, Code, 1892, has a lien on cotton raised in this state, for storage, and other charges connected therewith, is not supported by any reasonable construction of that statute. Id. MISSISSIPPI. 461 K. Property taken under legal process— Duty and liahility of bailee. If cotton, stored in a warehouse, be seized, under legal proc- ess, against any other person than the warehouseman or the owner, and the warehouseman give notice of such seizure and of all facts known to him, or which might have been known to him by the exercise of ordinary care and inquiry, to the owner, the warehouseman is relieved from liability; and, in the absence of the claim of other parties, he would be justified in acting as if the person, to whom the receipts had been given, had con- tinued owner. The seizure of property under legal process against the owner is a legal discharge of the bailee. Mortimore V. Ragsdale, 62 Miss. 86. L. Replevin — When bailor cannot maintain. A bailor cannot maintain an action of replevin for the use of the pledgee, of his warehouse receipts, against a warehouseman with whom the property is stored. The pledgee alone can maintain replevin or trover against the warehouseman. Selleck V. Macon Compress Co., 72 Miss. 1019; Mortimore v. Ragsdale, 62 Miss. 86. N. What constitutes prima facie case. Where the plaintiff in an action against a warehouseman had introduced the warehouse receipts and proved a demand made upon the defendant, or his agent, for the property therein de- scribed, at any time before the institution of the suit, he had established a prima facie right to recover. Mortimore v. Rags- dale, 62 Miss. 86. P. Same — Negligence of carrier employed by owner cannot be im- peded to latter — Instruction to jury. The owner of cotton shipped the same, by a carrier who had an arrangement with the defendant warehouseman, under which all cotton received by it should be stored with the defendant, if necessary, to await the arrival of a steamboat. The evi- dence showed that the owner knew nothing of this arrange- ment, and that the warehouse containing the jotton was de- MISh;iSSIPri DKCISIONS. ffoyed without negligence on tlie pai1 of the warehouseman. In an action 1)}" the owner against the warehouseman, the con- tention was made by the tlefendant that if the phice where the cotton was stored was dangerous, it was known to the raih'oad company, and, as il was the agent of the owner, such knowl- edge was imputable to the owner. It was held that this con- tention could not be sustained. It was furtlier twld that an instruction to the jury that the conditions and surroundings of the place m which the cotton w^as stored constitut/cd a warning to the defendant of the danger of fire, and that although the fire did not originate from either of the enumerated conditions that the defendant was nevertheless responsible therefor, was errone- ous. Merchants' Wharfboat Assn. v. Wood & Co., 64 Miss. 661. Warehouse receipts — Negotiability — Transfer without indorse- ment. A w^arehouse receipt provided that it was transferable only / by inflorsement and delivery thereof. In a case where the property, represented b)'' such a receipt, was sold, and there was no indorsement of the receipt made, it was held that, as be- tween the parties, this was a valid transfer of the property. Shingleur- Johnson & Co. v. Canton Cotton Warehouse Co., 78 Miss. 875. Same — Delivery without the return of receipts to true owner — Burden of proof. Property stored in a warehouse, for which A held the re- ceipt, is sold by him to B, but the receipts therefor were not transferred to B. In such a case, it was held that a delivery by the warehouseman to B, of the property represented, was legal, notwithstanding that the receipts were not taken up by the w^arehouseman and were not indorsed to B, for such de- livery was one to the true owner. But the burden of estab- lishing the riglit of B to receive the property was upon the warehouseman. Mortimore v. Ragsdale, 62 Miss. 86. Same — Action by assignee of unindorsed receipt — Objection must be made at trial. The plaintiff purchased certain property and obtained ware- MISSISSIPPI. 458 house receipts representing the same. The receipts were not indorsed to him. In an action of replevin brought by him against the warehouseman for the recovery of the property, it was held, by tlie appelhite court, that, as no objection had been made in the trial court to the receipts because not imlorsed, objection now made, for the first time, comes too late. Shing- leur- Johnson & Co. v. Canton Cotton Warehouse Co., 78 Miss. 875. R. Bill of lading — Exceptions therein. Common cai-riers may obviate the rigor of the law holding them liable as insurers of goods intrusted to them by inserting in the bill of lading proper exceptions. Gilmore v. Carman, 1 S. & M. 279. Same — Meaning of " inevitable accident." A provision in a bill of lading providing that a carrier was not responsible for loss resulting from ''inevitable accident" held that this phrase was synonymous with "act of God." Neal V. Saunderson, 2 S. & M. 572. Sa7ne — Not conclusive as to ownership. The names of the consignor and the consignee, stated in a bill of lading, are not conclusive as to the ownership of the property represented thereby. Testimony will be received to establish the facts as to the real ownership. Fast v. Canton, A. & N. R. R. Co., 77 Miss. 498. 45-t MISSOURI LAWS. CHAPTER XXV. MISSOURI. LAWS PERTAINING TO WAREHOUSEMEN. Warehouses and storehouses declared public warehouses : That all warehouses or storehouses situated in cities of over fifty thousand inhabitants, and wherein other property than grain is stored for a compensation, are declared to be public warehouses. Laws, 1895, p. 282. License for public warehouse : The proprietor, lessee or manager of any public warehouse provided for by this chapter shall be required, before transact- ing any business in such warehouse, to procure from the circuit court of the county in which such warehouse is situated — or if to procure license for a public warehouse in the city of St. Louis, application shall be made to the circuit court of said city — a license permitting such proprietor, lessee or manager to trans- act business as a public warehouseman under the laws or this state, which license shall be issued by the clerk of said court upon written application, which shall set forth the location and name of such warehouse, and the individual name of each per- son interested as owner or principal in the management of the same; or if the warehouse be owned by or managed by a corpora- tion, the names of the president, secretary and treasurer of such corporation shall be stated; and the said license shall give au- thority to carry on and conduct the business of a public ware- house, other than a warehouse for the storage of grain, in ac- cordance with the laws of this state and shall be revocable by the said court upon a summary proceeding before the court, upon the complaint of any person, in writing, setting forth the particular violation of the law to he sustained by satisfactory proof, to be taken in such manner as may be directed by the court. Id. p. 282. MISSOURI. 455 Public warehouseman to give bond : The person (3r persons receiving a license under the provisions of this chapter shall file with the clerk of the court j;ranting the same, a bond to the people of the state of Missouri, with good and sufficient security, to be approved by said court, in the penal sum of twenty-five thousand dollars, conditioned for the faithful performance of his or their duties as jjublic ware- houseman or warehousemen, and as security for the payment of all penalties and damages found and adju(lls, $15,000. For a public warehouse with a capacity of mon* than 300,000 bushels and not exceed- ing 400,000 bushels, $20,000. For a public warehouse with a, capacity of more than 400,000 bushels and not exceetling 500,000 bushels, $25,000. For a public warehouse with a capacity of more than 500,000 bushels and not exceeding 750,000 bushels, $37,500. For a public warehouse with a capacity of more than 750,000 bushels and not exceeding 1,000,000 bushels, $50,000. For a public warehouse with a capacity exceeding 1,000,000 bushels, $100,000 — conditioned for the faithful performance of his or their duties as public warehouseman or warehousemen, as security for any penalites found by due course of law for vio- lation of any clause of this article, and his or their full and un- reserved compliance with the laws of this state in relation thereto. Id. sec. 5609. 462 MISSOLIM LAWS. Trausacting business without a license — Penalty : Any person or persons who shall transact the business of public warehouseman or warehousemen without first procuring license and giving a bond as herein provided, or who shall continue to transact such business after such license has been revoked or such bond may have become void or found insufficient security for the penal sum in which it is executed by the court approv- ing the same, save only that he may he i)ermitted to deliver })roperty previously stored in such warehouse, shall be guilty of a misdemeanor, and upon conviction be fined in a sum not less than $100 nor more than $500 for each and every day such business is carried on; and the court that issued may refuse to renew any license or grant a new one to any person or persons whose license has been revoked within one year from the time same was revoked. Id. sec. 5610. Duties of public warehousemen : It shall be the duty of the person or persons doing a public warehouse business under this article to receive for storage any grain that may be tendered to him oi- them in the usual manner with which warehouses are accustomed to receive the same in the ordinary and usual course of business, and not to discrimi- nate between persons desiring to avail themselves of warehouse facilities, and that the scheduh^ of charges for such warehouse service shall be uniform, regardless of quantities of lots so of- fered or received. Id. sec. 5611. Grain to be inspected : Receipts of grain by public warehouses in all cases shall be inspected and graded by a duly authorized inspector, and shall be stored with grain of a similar grade, received as near the same time as may be; but if the owner or consignee so requests and the warehouseman consents thereto, his grain of the same grade may be kept in a bin by itself apart from that of the gen- eral stock of the warehouse, which bin shall be marked "special," with the name of the owner and with the quantity and grade of same, and the warehouse receipt issued for the same shall state upon its face that the grain is stored in a special bin, giving the number of same and the quantity and grade of the grain so stored. Id. sec. 5612. MissuuKi. -iiaS No grain to be delivered unless inspected : No grain shall be delivered fi'oin a public warehouse consti- tuted by this article unless it be iiisj)ected by a duly authorized inspector, and found to be of grad(> called for by receipt pre- sented for such delivery. Id. sec. 5613. Wareliouseinan shall not mix ^rain, etc. : Public warehousemen shall not mix any grain of different grades together, nor select or mix different qualities of the same grade for the i)vu"pose of storing or delivering the same, nor shall they deliver or attempt to deliver grain of one grade for grain of another grade, nor in any way tamper with grain while in a public warehouse in his or their possession or custody, nor permit the same to be done by others with the view or re- sult of profit to any one; and in no case shall grain of different grades, either from the general stock or from special bins, be mixed together while in store or control of such public ware- housemen : Provided, that the provisions of this section shall not apply to grain in such warehouse belonging to the ownei\ lessee or manager thereof; and provided furtJier, that any public warehouseman shall, on the written request of the owner of any grain stored in a special bin, upon the production of the receipt thereof, and the indorsement of such written request on such receipt, be required to dry, clean or otherwise change the con- dition or value of any such lot of grain, and said warehousemen shall then issue a new receipt, correctly describing the amount and grade of such grain. Id sec. 5614, amended, Laws, 1893, p. 180. May run grain through machinery, when : Whenever it may be necessary, in order to jjreserve the con- dition of any bin or lot of grain belonging to any person stored in a public warehouse, to run said grain through machinery to air, clean or otherwise improve its condition, and it is so desirefl by the owner, this shall be done, but in such manner as will in- sure the contents of each bin or lot intact, and of the same grade as when stored; but this shall not be done except under the supervision of an authorized inspector under this article. Id. sec. 5615, amended, Laws, 1893, p. ISO. 464 MISSOURI LAWS. Grain not to be received unless sufficient room : Nothing in this article shall be construed so as to compel the receipt of grain into any warehouse in which there is not suffi- cient room to acconmiodate or store it properly, oi' in cases where such warehouse is necessarily closed. Id. sec. 5616. Shall not receive and mix grain until inspected and graded : In all places where there are legally appointi>d insi)ectors of grain, no proprietor or manager of a public warehouse shall be permitted to receive any grain and mix the same with grain of other owners in the storage thereof, or stored in special bins, until the same shall have been inspected and graded by such inspector. Id. sec. 5617. Shall not enter combination : No warehouseman, agent or manager of a public warehouse shall enter into any combination, agreement or understanding with any railroad, steamboat, transfer or other carrying corpo- ration, or with any person or persons, by which the property of any person is to be delivered to any public warehouse for storage, or other purpose, contrary to the direction of the owner, his agent or assignee. Id. sec. 5618. To issue receipts, when — How numbered : Upon application of the owner or consignee of grain stored in a public warehouse, the same being accompanied with evidence that all charges which may be a lien upon such grain, including charges for inspection, have been paid, the warehousemen shall issue to the person entitled thereto a warehouse receipt there- for, subject to the order of the owner or consignee, which icceipt shall bear date corresponding with the receipt of the grain into store, and shall state upon its face the quantity and inspected grade of the grain, and that the grain mentioned in it has been received into store to be stored with grain of the same grade by inspection received at about the date of the receipt, and that it is deliverable upon the return of the receipts properly indorsed by the person to whose order it was issued, and upon the pay- ment of the charges accrued for storage. All warehouse re- ceipts for grain issued from the same warehouse shall be con- MISSOURI. 465 sccutively numbered, and no two receipts bearing tlie same number shall be issued from the same warehouse during an\' one year, except in case of a lost or destroyed receij)!, in wjiich case the new receipt shall bear the same date and number as the original, and shall be plainly marked upon its face, "duijlicate." If the grain for which receipts are issued was received from railroad cars, the number of each car shall be stated in the re- ceipt, with the amount each car contained; if l)y boat, barge or other vessel, the name of such craft ; if fi(jni wagons oi' other means, it shall be so stated ; if having been bulked from sacks, the manner of its receipt shall be stated upon the face of such receipt for grain stored. Id. sec. 5619. Receipts — How issued, etc. : No warehouse receipt shall be issued except upon actual de- livery of grain into store in the warehouse from which it pur- ports to be issued, and which is to be represented by the receipt; nor shall any receipt be issued for a greater quantity of grain than was contained in the lot stated to have been received; nor shall more than one receipt be issued for the same lot of grain except in cases where receipts for a j^art of a lot are desired, and then the aggregate receipts for a particular lot shall cover that lot and no more. In cases where a part of the grain represented by the receipt is delivered out of store and the remainder is left, a new receipt may be issued for such remainder; but such new receipt shall bear the same date as the original, and shall state on its face that it is the balance of receipt of the original num- ber, and the receipt upon which a part has been delivered shall be cancelled in the same manner as if the grain it called for had all been delivered. In case it be desirable to divide one receipt into two or more, or in case it be desirable to consolidate two or more receipts into one, and the warehouseman consents thereto, the original receipt shall be cancelled the same as if the grain had been delivered from store; and the new receipts shall state on their face that they are parts of other receipts or a consolida- tion of other receipts, as the case may be ; and the numbers of the original receipts shall also appear upon the new ones issued explaining the change, but no consolidation of receipts or dates differing more than ten days shall be permitted, and all new 30 466 MISSOURI LAWS. receipts issued for old ones cancelled as herein provided shall bear the same dates as those originally issued, as near as may be. Id. sec. 5620. Receipt not to limit or modify responsibility : No warehouseman under this article shall insert in any re- ceipt issued for grain received, any language in anywise limit- ing or modifying his responsibility or liability as imposed by the laws of this state. Id. sec. 5621. Receipt to be marked and cancelled npon delivery of grain : Upon delivery of grain from store upon any receipt, such re- ceipt shall be plainly marked across its face with the word "can- celled," with the name of the person cancelling the same, and shall thereafter be void and shall not again be put in circula- tion, nor shall grain be delivered twice on the same receipt. Id. sec. 5622. Receipts transferable by indorsement : Warehouse receipts for property stored in warehouses created by this article as herein described shall be transferable by the indorsement of the party to whose order such receipt may be issued, and such indorsement shall be deemed a valid transfer of the property represented by such receipt, and may be made either in blank or to the order of another. Id. sec. 5623. Frandulent receipts— Penalty : Any warehouseman of any public warehouse created by this article, employed in such warehouse, or owner or manager con- nected with the same, who shall be guilty of issuing any ware- house receipt for any property not actually in store at the time of issuing such receipt, or who shall be guilty of issuing any warehouse receipt in any respect fraudulent in its character, either as to its date or the quantity, quality or inspected grade of such property, or who shall remove any property from store except to preserve it from fire or other sudden danger, without the return and cancellation of any and all outstanding receipts that may have been issued to represent such property, shall, when convicted thereof, be guilty of a felony, and shall suffer in addition to other penalties prescribed by this article, im- MISSOURI. 467 prisonment in the penitentiary for not less than one and not more than ten years. Id. sec. 5624. Grain to he delivered upon presentation of receipt : Upon the return of any warehouse receipt issued by persons in charge of warehouses created by this article, and the demand for the delivery of property represented by such receipt, duly indorsed, if not presented by original holder, accompanied by the tender of all proper charges upon the property representerl, such property shall be immediately deliverable to the holder of such receipt, and it shall not be subject to further charges for storage after demand for such delivery shall have been made, and deliveries shall be made by the warehouseman in the order in which such receipts are presented and demand for deliveries made. Id. sec. 5625. Warehousemen to publish schedule rates : The manager of every public warehouse created by this arti- cle shall be required, within thirty days after the passage of this article, and during the first week in January of each year thereafter, to publish in one or more of the newspapers pub- lished in the vicinity in which such warehouse is situated, a schedule of rates for the storage of grain in his warehouse dur- ing the ensuing year, which rates shall not be increased during the year, and such published rates or any published reduction of them shall apply to all grain received into such warehouse from any person or source, and no discrimination shall be made, directly or indirectly, for or against any person, in any charges made by such warehouseman for the storage of grain. The maximum charge for storage and handling of grain, including the cost of receiving and delivering, shall ho for the first ten days or part thereof two cents per bushel and for each ten days thereof or part thereof after the first ten days, one half of one cent per bushel. Id. sec. 5626. To post amount and grade of ^rain on hand weekly : The manager of every public warehouse created under this article shall, on or before Tuesday morning of each week, cause to be made out, and shall keep posted in the business office of his warehouse in a conspicuous place, a statement of the amount 468 MISSOURI LAWS. of each kind and grade of grain in store in his warehouse at the close of business on the ])revious Saturday, and shall also, on each Tuesday morning, render a similar statement, made under oath before some officer authorized by law to administer oaths, by some one connected with such warehouse having personal knowledge of the facts, to the board of railroad and warc^iouse commissioners. He shall also be required to furnish daily to said board a correct statement of the amount of each kind of grain and grade of same received in store in such warehouse on the previous day; also the amount of each kind of each grade of grain delivered or shipped by such warehouse during the previous day, and what warehouse receipts have been cancelled upon which the grain has been delivered on such day, giving the num- ber of each receipt and the amount, kind and grade of grain received and shipped upon each; also, how much through grain in transit to points outside of the state, if any, may have been received for transshipment, for which warehouse receipts have not been issued, was so shipped or delivered, and the kind and grade of it, when and how much unreceipted grain w^as received. He shall also make daily report to the commissioners of receipts and tleliveries of such unreceipted grain, if any, received for the account of the owners of such warehouse, either directly or indirectly, with the amount, kind and grade of same. He shall also report daily to the commissioners what receipts, if any, have been cancelled and new ones issued in their stead as herein provided foi-. He shall also make such further statements to the commissioners regarding receipts issued or cancelled as may be necessary for the keeping of a full and correct record of all receiy)ts issued and cancelled and of grain receivQd and delivered. Id. sec. 5627. Not responsible for losses by fire, etc — To give notice of grain damaged : The owners of public warehouses under this article shall not be held responsible for any loss or damage to property by fire while in their custody: Provided, reasonable care and vigilance be exercised to protect and preserve the same; nor shall they be held liable for damage to grain by heating, if it can be shown that proper care has been exercised in handling and storing the MISSOURI. 469 same, and that such daniagc was the. result of causes beyond their control; but unless pubhc notice be given that some por- tion of the grain hi store is out of condition or becoming so, grain of equal quality to that received shall be deli\-ered on all receipts presented. In case, however, any warehouseman shall discover that any portion of the grain in his wai'fihouse is out of condition or becoming so, and it is not in his jwwer to preserve the same, he shall immediately give public notice by advertise- ment in a daily newspaper, if one is publislK^l in the city or town in which such warehouse is situated, and by posting a notice in the most public place for such a })urpose in such city or town, of its actual condition, as near as it can be ascertained. Such notice shall state the kind and grade of the grain, and give the number of the bins in which it is stored, and shall also state in such the receipts outstanding upon which such grain will be delivered, giving the numbers and amounts and dates of each, which receipts shall be those of the oldest dates then in circu- lation or uncancelled, and the grain represented by which has not previously been declared or receipted for as out of condi- tion; the enumeration of receipts and identification of grain s(^ discredited shall embrace as near as may be as great a quantity of grain as is contained in such bins, and such grain shall be delivered upon the return and cancellation of the receipts so declared to represent it, upon the request of the owner thereof. Nothing herein contained shall be held to relieve the said ware- houseman from exercising proper care and vigilance in pre- serving such grain after such ])ublication of its condition; but such grain shall be kept separate and apart from all direct con- tact with other grain, and shall not be mixed with other grain while in store in such warehouse. In case the grain declared out of concUtion, as herein provided for, shall not be removed from store by the owner thereof within two months from the date of the notice of its being out of condition, it shall be law- ful for the warehouseman where the grain is stored to sell the same at public auction, for account of said owner, by giving ten days' public notice by advertisement in a daily newspaj^er. if there be one published in the city or town where such ware- house is located. Id. sec. 5628. 470 MISSOURI LAWS. Negligence how punished : Any warehouseman proved guilty of any act of negligence, the effect of wliich is to depreciate the condition of property stored in the warehouse under his control, shall be held responsi- ble upon the bond given for such warehouse, and in addition thereto, the license given for such warehouse shall be revoked by a proceeding as hereinbefore stated. Id. sec. 5629. To furnish statement to commissioners : It shall be the duty of every owner, lessee and manager of every public warehouse in this state to furnish in writing, under oath, at such times as such railroad and warehouse commis- sioners shall require and prescribe, a statement concerning the condition and management of his business as such warehouse- man. Id. sec. 5630. To post this article in warehouses : All proprietors or managers of public warehouses in this state shall keep posted up at all times in a conspicuous place in their offices, and in each of their warehouses, a printed copy of this article. Id. sec. 5631. Inspectors and owners to examine grain— Scales, how reg- ulated : All persons owning property, or who may be interested in the same, stored in any public warehouse created by this arti- cle, and all duly authorized inspectors of such property, shall at all times during ordinary business hours be at full liberty to examine any and all property stored in any public warehouse in this state, and all proper facilities shall be extended to such persons by the warehouseman, his agents and servants, for an examination; and all parts of public warehouses shall be free for the inspection and examination of any person interested in property stored therein, or by any authorized inspector of such property. All scales used for weighing of property in public warehouses shall be subject to examination and test by any ckily authorized inspector, the expense of such test by inspector to be paid by the warehouseman where scales are so tested; and no scales shall be used for the weighing of grain after being found incorrect, until put in order and found accurate and ap- MISSOURI. 471 proved for further use by an authorized inspector. Id. sec. 5632. Violation of precodliii^ sections — Penalty : A violation of any of the precechng i)rovisions of this arti- cle, except in cases covered by sections 7628, 7642, and 7647, by any warehouseman, owner, lessee, manager or employee of public warehouses created by this article, is declared a misde- meanor, and, upon conviction thereof, the violator shall be fined not less than one thousand nor more than five thousand dollars, one fourth of such fine to be awarded and paid to the informer of such misdemeanor. Id. sec. 5633. Duty of prosecuting attorney : In all criminal prosecutions against a warehouseman for the violation of any of the provisions of this article, it shall be the duty of the prosecuting attorney of the county in which such prosecution is brought, or, if in the city of St. Louis the duty of the prosecuting attorney of said city, to prosecute the same to a final issue in the name of and on behalf of the people of the state of Missouri. Id. sec. 5634. Injured persons may sue on bond : If any warehouseman shall be guilty of a violation of any pro- vision of this article, to the jury of any person by such violation, it shall be lawful for such injured person to bring suit in any court of competent jurisdiction, upon the bond of such ware- houseman, in the name of the people of the state of Missouri, to the use of siich person. Id. sec. 5635. Chief inspector to have general supervision : It shall be the duty of the chief inspector provided for by this article to have a general supervision of the inspection of grain as required by this article Or laws of this state, under the ad- vice and immediate direction of the board of railroad and ware- house commissioners. Id. sec. 5636. Chief inspector to nominate deputy and assistants : The said chief inspector shall l)e authorized to nominate to the commissioners such suitable persons in sufficient numbers 472 MISSOURI LAWS. as may be deemed qualified for a deputy chief inspector, to be acting chief inspector in the absence of the chief inspector, and assistant inspectors who shall not be interested in any ware- house, and also such other employees as may be necessary to properly conduct the business of his office; and the said com- missioners are authorized to make such appointments. Id. sec. 5637. Chief inspector to take oath and give bond : The chief inspector shall, upon entering upon the duties of his office, be required to take an oath that he will faithfully and strictly discharge the chities of his said office of inspector according to law and the rules and regulations prescribing his duties. He shall execute a bond to the people of the state of Missouri in the penal sum of fifty thousand dollars, with sureties to be approved by the board of railroad and warehouse com- missioners, conditioned that he will pay all damages to any person or persons who may be injured by reason of his neglect, refusal or failure to comply with the law and the rules and regu- lations of this article. Id. sec. 5638. Deputy and assistant inspectors — How qualified : The deputy chief inspector and all assistant inspectors ap- pointed under this article shall be under the supervision of the chief inspector, to whom they shall report in detail all services performed by them at the close of each working day. The deputy chief inspector and each assistant inspector shall take the same oath as the chief inspector, and execute a bond in the penal sum of ten thousand dollars, with like conditions and to be approved in like manner as provided for the bond of the chief inspector, which bonds shall be filed in the office of the said commissioners. Suit may be brought upon bonds of either the chief inspector, deputy chief inspector or assistant inspect- ors, in any court having jurisdiction thereof, in the county or city where the defendant resides, for the use of any person in- jured by any act of said chief inspector, the deputy chief in- spector or assistant inspectors. Id. sec. 5639. To be governed by rules of connnissioners : The chief inspector of grain, the deputy chief inspector, as- MISSOURI. 4 73 sistant inspectors and other employees in connection therewitli, shall be governed in their respective duties by such rules and regulations as may be prescribed by the board of railroad and warehouse commissioners, and the said conunissioners shall have full power to make all proper rules and regulations for the in- spection of grain, not inconsistent with this article, to include the fixing of charges for the inspection of grain and other duties of said chief inspector, deputy chief inspector and assistant in- spectors, and to make rules for the collection of same which charges shall be regulated in such manner as will in the judg- ment of the commissioners, produce sufficient I'e venue to meet the necessary expenses of the service of inspection, and no more. Id. sec. 5640. Board to fix compensation : It shall be the duty of said board of commissioners to fix the amount of comj^ensation to be paid to the chief inspector, deputy chief inspector and assistant inspectors, and all other persons employed in the service of inspection, and prescribe the time and manner of payment. Id. sec. 5641. Malfeasance of inspectors — Penalty : Any duly authorized chief inspector, deputy chief inspector or assistant inspector of grain under this article who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect or grade any grain improperly, or who shall accept any money or other valuable consideration, directly or indirectly, for any neglect of duty as such chief inspector, deputy chief inspector or assistant inspector, or any person who shall im- properly influence any chief inspector, deputy chief inspector or assistant inspector of grain under this article in the perform- ance of his duties as such inspector, shall be deemed guilty of a misdemeanor, and on conviction shall be fined in a sum not less than five hundred dollars noi- more than a thousand dol- lars, or shall be imprisoned in the county jail, or. if in the city of St. Louis, the jail of said city, not less than six nor more than twelve months, or both such fine and imprisonment, in the dis- cretion of the court. Id. sec. 5642. Impostors punished — How : The inspection or grading of grain in this state, whether into 474 MISSOURI LAWS. or out of warehouses, elevators, or in cars, barges, wagons or sacks arriving at or sliipped from points where stat(> grain in- spection is estabhshed, must be performed by such persons as may be duly appointed, sworn and have given bond under this article, and any person who shall assume to act as an in- spector of grain who has not been duh' ai)point(Hl, sworn, and has given bond under this article, shall be held to be an im- poster, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not less than one hundred dollars nor more than five hundred dollars or imprisoned in the county jail, and if in the city of St. Louis, in the city jail of said city for not loss than three months nor more than six months, or both such fine and imprisonment, at the discretion of the court, for every offense so committed. Id. sec. 5643, amended, Laws, 1893, p. 182. Complaint against inspector — How made : Upon complaint in writing of any person to the said com- missioners supported by satisfactory proof that any person appointed or employed by said commissioners under the pro- visions of this article has violated any of the rules prescribed for his government, or has been guilty of any improper official act, or has been found incompetent for the duties of his posi- tion, such person shall be removed from his employment by the same authority that appointed him, and his place shall be filled, if necessary, by a new appointment. When it shall be deemed necessary to reduce the number of persons appointed or employed, their terms of service shall cease under the orders of the same authority by which they were appointed or em- ployed. Id. sec. 5644. Appeals to board of arbitration : In all matters involving doubt on the part of the chief in- spector, the deputy chief inspector or any assistant inspector, as to the proper inspection into or out of any warehouse created by this article, or in case any owner, consignee or shipper of grain, or any warehouse manager, shall be dissatisfied with the decision of the chief inspector, the deputy chief inspector or any assistant inspector in matters pertaining to inspection, an appeal MISSOURI. 475 may be made to the committee hereinafter provided for, who shall at once convene, and whose decision, after a careful in- quiry into the questions at issue, shall be final. Id. sec. 5645. Board of arbitration : The board of railroad and warehouse commissioners shall, as soon after the passage of this article as is practicable, appoint committees for the adjustment of differences between inspectors and warehousemen, or owners or representatives of grain, aris- ing from the acts of inspectors — each committee to consist of three persons well known as experts in grain; and a committee shall be appointed in each city or towm where public warehouses under this article are located, said committees to be known as the arbitration committees of the board of railroad and ware- house commissioners. Id. sec. 5646. Cominissioiiers to make rules for arbitrators : The commissioners shall make equitable and legal rules gov- erning said committees' procedure, in the arbitrations, the man- ner and amount of compensation, the method of appointment and terms of service. Id. sec. 5647. Commissioners to establisli grades of grains : The commissioners shall establish a proper number and stand- ard of grades for the inspection of grain, with due regard to the prevailing usage of the markets of this state, the interests of both producers and dealers, and as near as may be to conform with standards of grade adopted by leading markets of the United States. In addition to which, such grades as may have been or may be hereafter established or recognized in other states and territories, shall prevail and be lawful in this state when used and applied in dealings had in anrl with grain j^ro- duced in such other state and territory, so that grain prorluced in other states and territories may be sold and handled in this state under the same grades prevailing at the place of the pro- duction of said grain: Provided, no modifications or changes of grade shall be made, or any new ones established, without public notice being given of such contemplated changes for at least twenty days prior thereto, by publication in three daily news- 476 MISSOURI LAWS. papers, one of which shall be printed in German, printed in tliis state; and provided further, that no mixture of old or new grades, even though designated by the same name or destinc- tion, shall be permitted while in store, except as in this article provided. Id. sec. 5648, amended, Laws, 1893, p. 180. Commissioners to report to governor : The board of railroad and warehouse commissioners shall, on or before the first day of January of each year, make a report to the governor of their doings for the preceding year, to contain such facts as will disclose the actual working of the system of the warehouse business of this state as contemplated by this article, and such suggestions thereto as to them may appear pertinent. Id. sec. 5649. Commissioners to examine and visit warehouses : Said commissioners shall examine into the condition and management, and all other matters concerning the business of warehouses under this article, in this state, so far as the same may pertain to the relations of such warehouses to the public, and to the security and convenience of persons doing business therewith, and to ascertain whether the officers, directors, man- agers, lessees, agents and employees comply with the laws of this state now in force or to be in force concerning such warehouses. Whenever it shall come to their knowledge or they shall have reason to believe that any law governing the public warehouses of this state under this article is being or has been violated, they shall cause to be prosecuted or to prosecute all persons guilty of such violation. To enable said commissioners efficiently to per- form their duties under this article, it is hereby made their duty to cause one or more of their number, at least once in six months, to visit each warehouse in this state and to personally inquire into the management of such warehouse business. Id. sec. 5650. Books, etc., subject to examination : The property, books, records, accounts, papers and proceed- ings of all such warehousemen as are contemplated by this article, shall at all times during business hours be subject to the examination and inspection of the commissioners, or any MISSOURI. 477 one of them, and they or any one of them shall have power to examine, under oath, any owner, manager, lessee;, agent (jr employee of a public warehouse, and any other person, con- cerning the condition and management of such warehouse. Id. sec. 5651. Coiiiniissioners may siibiKPiia witnesses : In making any examination as contemplated by this article, or for the purpose of obtaining information as contemplated by this article, said commissioners shall have power to issue subpoenas for the attendance of witnesses, and may administer oaths. In case any person shall willfully refuse to obey such subpoena, it shall be the duty of the circuit court of any county, if in St. Louis the circuit court of said city, upon application of said commissioners, to issue an attachment for such witness and compel such witness to attend before the commissioners and give his testimony upon such matters as shall be lawfully required by such commissioners; and the said court shall have power to punish for contempt as in other cases of refusal to obey the process and order of such court. Id. sec. 5652. Failure to obey siibpcena — Penalty : Any person who shall willfully neglect or refuse to obey the process of subpoena issued by said commissioners, and appear and testify as therein required, shall be guilty of a misdenieanor, and shall be liable to arraignment and trial in any court of com- petent jurisdiction, and on conviction thereof shall be punished for each offense by a fine of not less than twenty-five dollars nor more than five hundred dollars, or by imprisonment of not more than thirty days, or both such fine and imprisonment, in the discretion of the court before which such conviction shall be had. Id. sec. 5653. Duty of attorney-general and prosecuting attorneys : It shall be the duty of the attorney-general and the state's attorney in every county, if in cases brought in St. I^ouis, the state's attorney for said city, on the request of said commis- sioners, to institute and prosecute any and all suits or pi-oceerl- ings which they or either of them shall be directed by said com- 478 MISSOURI LAWS. missioners to institute anil prosecute for a violation of this arti- cle, or any law of this state concerning public warehouses as constituted by tiiis article, or the officers, employees, owners, operators or agents of such warehouses. Id. sec. 5654. Prosecutions to be in the name of the state : All prosecutions under this article shall be in the name of the people of the state of Missouri, and all moneys arising there- from shall be paid into the state treasury by the sheriff or other officer collecting the same: Provided, this article shall not be construed so as to prevent any person entitled to receive a per- centage of fines imposed and collected, as a reward for informa- tion furnished as hereinbefore stated, which percentage shall be paid to such person by the officer collecting such fine. Id. sec. 5655. Not to deprive persons of common-law remedy : Nothing in this article shall deprive any person of any com- mon-law remedy now existing. Id. sec. 5656. Not to affect ri^ht to prosecute for damages : This article shall not be construed so as to waive or affect the right of any person injured by the violation of any law in regard to warehouses from prosecuting for his private damages in any manner allowed by law. Id. sec. 5657. Weighmasters — Duties of, etc. : It shall be the duty of the chief inspector provided for by this article, to nominate to the commissioners suitable persons to act as weighmasters at such points in this state wherever state grain inspection may be established in conformity with sec- tion 7655 of this article; said weighmasters shall at the places aforesaid supervise the weighing of all grain before removing from the car, which may be subject for inspection, at all ware- houses where there are no such scales as hopper scales, and in such case track scales shall be provided upon which the gross, tare and net weight of each car, wagon or other package shall be taken, but all warehouses having hopper scales the net weight of grain contained in each car, wagon or other package shall be taken, and the inspection of scales and the action and certificate MISSOURI. 479 of such weighmasters in the discharge of their aforesaid duties shall be conclusive upon all parties in interest: Provided, that such weighmasters shall have the entire control of such scales. Laws, 1893, p. 182. Commissioners to fix fees for weifflniif? : The board of railroad and warehouse conunissioners of the state of iVIissouri shall fix the fees to be paid for the weighing of grain, which fees shall be paid by the wareliouseinan, and may be added to the charges for storage, and the said commis- sioners shall adopt such rules and regulations for the weighing of grain as they shall deem proper. Id. p. 182. Warehousemen to furnish scales — To weigh grain in store — WJien : It shall be the duty of the person or persons doing a public warehouse business under this article to provide and maintain suitable scales, upon which all grain tendered to him or them for storage shall be weighed under the supervision of a weigh- master, as provided for in the preceding section. Said scales shall be located at the most convenient point upon the track of some railroad running into or adjoining such warehouse. It shall further be the duty of the person or persons doing a public warehouse business under this article, at some convenient time, at least once a year, and under the supervision of such weigh- master or other authorized employee of the state grain inspec- tion department, to weigh all grain at such time or times then in store at such warehouse, and to report to the warehouse registrar the result of such weighing and the actual amount of each kind and grade in store. During such time as such weigh- ing is going on, the receiving and shipping of grain into and from such warehouse shall be discontinued until such general weigh- ing has been completed. Id. p. 182. Railroad to furnish scales to weigh grain handled : At all terminals or other points within this state wherever state grain inspection may be established, it shall be the duty of all railroads to provide suitable scales upon which all grain handled by them, and not consigned to public warehouses, but sulijoct to inspection, may be weighed as required by this arti- 480 ^USSOURl LAWS. cle. Said scales shall be located at places to be designated by the board of railroad and warehouse commissioners of this state, and it shall be the duty of said commissioners to see that the provisions of tliis and all other sections of this article are strictly enforced. Id. p. 182. Weigh masters to give bond — Coinpeiis.ation : The wcighmasters provided for in this article shall give bond in the sum of five thousand dollars, conditioned for the faithful discharge of their duties, and shall receive such compensation as the board of railroad' and warehouse commissioners shall determine. Id. p. 182. Penalty for fraudulent Aveighing, etc. : Any person, association, firm, trust or corporation, or any representative thereof, or any weighmaster, who shall know- ingly cheat or falsely weigh any wheat or other agricultural products, or who shall violate the provisions of sections 7677 to 7682, inclusive, or shall do or perform any act or thing therein forbidden, or who shall fail to do and keep the requirements as herein provided, shall be deemed guilty of a misdemeanor, and shall be fined in a sum not less than five hundred dollars nor more than one thousand dollars, or shall be imprisoned in the county jail, or if in the city of St. Louis the jail of said city, not less than six nor more than twelve months, or both such fine and imprisonment, in the discretion of the court. Id. p. 182. Inspection of tobacco — Term of office and qualillcations of inspector : There is hereby established in the city of St. Louis, Missouri, a tobacco inspection. The governor shall api)oint in the city of St. Louis an inspector of tobacco, who shall hold his office for two years; said inspector shall be a discreet, suitable person, and shall not be interested in any of the tobacco warehouses selling leaf tobacco in the city of St. Louis as a stockholder or other- wise than as tobacco inspector. R. S. 1889, sec. 5580. Duties of inspector : No inspector shall either buy or sell any tobacco, except of MISSOURI. 481 his own raising, but shall auctioneer and cry off all inspected and leaf tobacco, for the owner or agent, sold at the warehouse, /d. sec. 5581. His bond : The inspector shall, before he enters upon the duties of his office, enter into bond to the city of St. Louis, to be approved by the mayor of said city, with sufficient security, in a sum not less than ten thousand dollars, conditioned for the faithful per- formance of his duties according to law, which bond shall be recorded in the office of the city register and filed in the office of the secretary of state, and a certified copy thereof shall be evidence. Id. sec. 5582. Book to be kept by him : The inspector shall keep a book, in which shall be entered the marks of all tobacco which he may be required to inspect, and he shall inspect and examine the same in due time as it shall be entered in such book, unless otherwise agreed, without favor or partiality, and shall attend at the respective ware- houses during all business hours of each regular secular day, whenever called on so to do. Id. sec. 5583. Penalty for failing to attend : Any inspector failing to attend when so requested shall for- feit to the party aggrieved fifty dollars for every such failure, or the aggrieved party may recover all damages he may have sustained by such failure by action on the bond of inspector or by civil action. Id. sec. 5584. Charges and fees — By whom paid : The purchaser and seller shall each pay one half of all ware- house charges, including inspection fees, on all tobacco sold, but when the sale of any tobacco offered is rejected, then the owner or agent shall pay the whole of the warehouse charges, including the inspection fees. Id. sec. 5585. Warehousekeeper to have tobacco inspected : Any person or persons who may erect or shall keep a tobacco warehouse in the city of St. Louis, for the purpose of offering 31 482 MISSOURI LAWS. and selling leaf tobacco prized in hogsheads, shall have such tobacco inspected before sale, by the state inspector appointed in and for the city of St. Louis, and by no other. Id. sec. 5586. Oath of inspector : The oath of the inspector shall be in the form following: I, , do solemnly swear that I will carefully and diligently inspect and examine all tobacco which 1 may be called on to inspect, and that I will not change, alter or give out any tobacco as a sample other than such as shall have been taken from the hogshead for which the receii)t to be taken was given, and that I will not, directly or indirectly, be engaged in the manufactur- ing, shipping or exportation of tobacco, nor will I deal in any manner in the article during the time that I shall continue in office except as expressly ]:)prmitted by law, but that I will in all things well and faithfully (Uscharge and perform my duty in the office of inspector, according to the best of my skill and judgment, and according to the direction of the law, without fear, favor or affection, malice or partiality, so help me God. Id. sec. 5587. To be filed, where : Such oath shall be filed in the office of the secretary of state, and a violation thereof shall be deemed perjury, and shall sub- ject the party, upon conviction, to the ])enalties of perjury. Id. sec. 5588. Hogsheads to be weiglied and branded before inspection : The inspector of tobacco shall, before any hogshead of tobacco is uncased for inspection by him, cause the same to be carefully weighed and the gross weight marked or branded thereon. Id. sec. 5589. Mode of inspection : After a hogshead has been thus weighed and marked and branded, the inspector shall uncase and break the same in not less than two nor more than four places, and take from each break a like proportion of tobacco as a sample of the whole hogshead that he may inspect, and each hogshead shall be by him carefully weighed in the scales or the balance, and with MISSOURI. 483 the weight kept in the warehouse, and shall be by him marked with the tare of the hogshead, and the quantities of tobacco therein contained, and also with the words "Missouri State Tobacco Inspection." Id. sec. 5590. Tare and net weight : The tare, with the addition of ten pounds for weight of sam- ple, shall be deducted from the gross weight; the remainder shall be the net weight, and the inspector shall in all cases de- liver to the owner of the purchaser of any hogshead of tobacco the samples which were drawn from the same. Whenever any hogshead of tobacco shall have been weighed under the super- intendence of the inspector, and the net weight registered and marked on such hogshead of tobacco, he shall be responsible to the purchaser, owner or agent of the same for the net weight of tobacco so registered and marked on such hogshead of tobacco, reasonable allowance being made for waste in handling. Id. sec. 5591. Samples to be clone up, how : It shall be the duty of the inspector to have all samples of tobacco drawn by him well tied, tagged and sealed; the card or tag so placed upon the sample shall contain the number, gross weight, net weight and date of inspection, and the seal so used shall contain the words "Missouri State Tobacco Inspec- tion." Id. sec. 5592. Form of certificate of inspection : The inspector shall issue a certificate to the owner or agent for each hogshead of tobacco by him inspected, which shall, as near as possible, be in the form following: At warehouse in the city of St. Louis, in the state of Missouri, this day of , 19 — , inspected for one hogshead of leaf to- bacco (strips, scraps or stems, as the case may be), number, mark and weight as follows; Number 1, marks 1, gross 1, tare 1, net 1. Witness my hand, the day and year aforesaid. A , Inspector. And the keeper or superintendent of any warehouse where such tobacco is left on storage shall, upon every certificate issued 484 jvnssouRi laws. by the inspector, certify upon the face of the same that said tobacco is on storage and dehverable only on return of said certificate to the holder thereof. Id. sec. 5593. Hogshead to be restored to good shipping order : It shall be the duty of the inspector to attend and see that after the uncasing and inspection of the hogshead of tobacco the same to be replaced to its former condition, and in good shipping order, and that all leaf tobacco belonging to each and every hogshead so opened and insjjected be put back as near as possible to where it belonged before the same was uncased. Id. sec. 5594. Inspector's fees : For every hogshead of tobacco inspected in the city of St. Louis, the inspector shall receive twenty-five cents inspection fee, which may be collected with the other warehouse fees. Id. sec. 5595. Penalty for unautliorized inspection : If any person other than the inspector shall inspect any hogs- head of tobacco within the city of St. Louis, or if any person occupying any store or warehouse within the city of St. Louis shall suffer or permit any person other than the inspector to inspect any hogshead of tobacco upon the premises occupied by him, such person inspecting the tobacco, and such person or persons suffering and permitting such illegal inspection, shall each be fined in the sum of one hundred dollars for every hogs- head of tobacco so inspected to the use of the state, to be re- covered by indictment. Id. sec. 5596. Scales and hands, by Mhom furnished : No inspector shall be required to furnish scales or hands to strip or break tobacco, but the same shall be furnished by the warehouse or any person or persons that may have tobacco inspected in the city of St. Louis. Id. sec. 5597. Fraudulently packed hogsheads to be marked, how : In case the inspector in the inspecting or sampling of any hogshead of tobacco shall find any evidence or indication of its MlSSOL'Kl. 48r) being falsely or fraudulently packed, it shall be his duty to write across the face of his certificate and across the face of the tag in red ink, "falsely or fraudulently packed," and he shall further give notice to the assembly of dealers before offering said hogshead of tobacco for sale. Id. sec. 5598. Appointment and qnalifiention of deputies : The inspector is hereby empowered, if necessary to the con- venient dispatch of his respective duties, to appoint one or more deputies at his own cost, for whom he shall be account- able, which deputies are hereby empowered to perfoi-m the duties of inspection, and shall be liable to the same penalties as the inspector; said deputies shall take the same oath as pre- scribed for the inspector, and for whose official conduct the said inspector shall be liable upon his official bond. Id. sec. 5599. Inspectors and warehousekeepers not responsible for nat- ural loss in weights : Section 7609 shall not be construed so as to hold the inspector and warehousekeeper, or either of them, responsible for the natural losses of weight that may occur or take place during storage and while the same is undergoing the sweat to which leaf tobacco is subject. R. S. 1889, sec. 5600. Sales of tobacco to be approved by the owner : All tobacco cried off, or offered for sale, shall be subject to the approval of the owner or agent thereof, but it shall be the duty of the said owner or agent to accept or reject the sale of said tobacco before the tobacco sale is over on that day; but in the event of his failure to accept or reject such sale within the time specified as above, it shall be at the option of the purchaser to accept the terms of said sale. Id. sec. 5601. Certificates of inspection negotiable : The certificate of a hogshead of tobacco issued by the in- spector of tobacco, and countersigned by the keeper or superin- tendent of the warehouse, shall be negotiable, and the ware- house, store, person or persons under whose charge the package or hogshead of tobacco for which said certificate was issued is stored, shall be responsible for the full value of the same to the 486 AHSSOURI LAWS. holder of said certificate, loss or damage from elemental causes alone excepted. Id. sec. 5602. Appoiutmeut of local inspectors in other towns : Nothing in this article shall be so construed as to prevent any other town, city or county from establishing tobacco in- spection, when twenty-five freeholders shall petition the gov- ernor for the appointment of a tobacco inspector for such local inspection: Provided, said inspector so appointed by the gov- ernor shall be subject to all the provisions of this article relat- ing to the qualifications, duties and fees of the tobacco inspector for the city of St. Louis, except so far as regards the matter of residence and filino; his bond. Id. sec. 5603. ^& Limit of warehouse fees : The warehouse fees shall not exceed three dollars for each hogshead, including inspection fee at any one offer. Id. sec. 5604. Common carriers may retain goods until charges are paid : When any goods, merchandise or other property shall have been received by an)^ railroad or express company, or other common carrier, commission merchant or warehouseman, and shall not be received by the owner, consignee, or other author- ized person, it shall be lawful to hold the same by said carrier, commission merchant or warehouseman, or the same may be stored with some responsible person, and be retained until the freight and all just and reasonable charges be paid. Id. sec. 6806. Property unclaimed to be sold, how : If no person calls for said goods, merchandise or other prop- erty, within sixty days from the receipt thereof, and pay freight and charges thereon, it shall be lawful for such carrier, commis- sion merchant or warehouseman, to sell such goods, merchan- dise or other property, or so much thereof at auction, to the highest bidder, as will pay said freight and charges, first having given twenty days' notice of the time and place of sale to the owner, consignee or consignor, when known, and by advertise- ment in a daily paper, or if in a weekly paper, four weeks, pub- MISSOURI. 487 lished where such sale is to take place; and if any surplus be left after paying freight, storage, cost of advertising, and all other just and reasonable charges, the same shall be paid over to the rightful owner of said property at any time thereafter, upon demand being made therefor, within sixty days. Id. sec. 6807. Money not to be loaned to exceed what amonnt, etc. : No incorporation or private bank in this state shall loan its money to any individual, corporation or company, directly or indirectly, or permit any individual, corporation or company to become at any time indebted or be liable to it in a sum ex- ceeding twenty-five per cent of its capital stock actually paid in, or permit a line of loans or credits to any greater amount to any individual or corporation ; a permanent surplus, the setting apart of which shall have been certified to the secretary of state, and which cannot be diverted without due notice to said officer, may be taken and considered as a part of the capital stock for the purposes of this section: Provided, said surplus is equal to in excess of fifty per cent of the capital stock of said bank: Provided, that the provisions in this section shall not be so con- strued as in anywise to interfere with the rules and regulations of any clearing association in this state in reference to the daily balances between banks: Provided, that this section shall not apply to balances due from correspondents subject to draft; and provided further, that the discount of the following classes of paper shall not be considered as money borrowed within the meaning of this section, viz.: (1) The discount of bills of ex- change drawn in good faith against actually existing values. (2) The discount of paper based upon the collateral security of warehouse receipts covering agricultural and manufactured products in store in elevators and warehouses under the follow- ing conditions: First, that the actual market value of the prop- erty held in store and covered by such receipts shall at all times exceed at least twenty per cent the amount loaned upon the same. Second, that the full amount of the loans shall at all times be covered by policies of fire insurance issued by com- panies admitted to do business in this state to the extent of their ability to cover such loans, and then by companies having 488 Missouri laws. sufficient paid-up capital to be so admitted, and all such poli- cies shall be made payable in case of loss to the bank or holder of the warehouse receipts. Id. sec. 2758, amended, Laws, 1897, p. 89. Shipments of grain in bnlk : Every railroad corporation which shall receive any grain in bulk for transportation to any place within the state shall trans- port and deliver the same to any consignee, elevator, warehouse or place to whom or to which it may be consigned and directed: Provided, such person, warehouse or place can be reached by any track owned, leased or used, or which can be used by such cor- poration; and every such corporation shall permit connections to be made and maintained with its track to and from any and all public warehouses where grain is or may be stored. Any such corporation neglecting or refusing to comply with the re- quirements of this section shall be liable to all persons injured thereby for all damages which they may sustain on that ac- count, whether such damages result from any depreciation in the value of such property, by such neglect or refusal to deliver such grain as directed, or in loss to the proprietor or manager of any public warehouse to which it is directed to be delivered, and costs of suit, including such reasonable attorney's fees as shall be taxed by the court. And in case of any second or later refusal of such railroad corporation to comply with the re- quirements of this section, such corporation shall be, by the court, in an action on which such failure or refusal shall be found, adjudged to pay, for the use of the people of this state, a sum of not less than one thousand nor more than five thou- sand dollars, for each and every such failure or refusal, and this may be a part of the judgment of the court in any second or later proceeding against such corporation. In case any rail- road corporation shall be found guilty of having violated, failed or omitted to observe and comply with the requirements of this section, or any part thereof, three or more times, it shall be law- ful for any person interested to apply to a court of competent jurisdiction, and obtain the appointment of a receiver to take charge of and manage such railroad corporation until all dam- ages, penalties, costs and expenses adjudged against such cor- MISSOURI. 489 poration for any and every violation shall, together with inter- est, be fully satisfied. Id. sec. 2G17. Consigiiineiits to elevators, etc., declared temporary : All consignments of grain to any elevator or public warehouse shall be held to be temporary, and subject to change by the consignee or consignor, at any time previous to the actual un- loading of such projierty from the cars in which it is transported. Notice of any change in consignment may be served by the con- signee or any agent of the railroad corporation having the prop- erty in possession, who may be in charge of the business of such corporation at the point where such property is to be delivered; and if, after such notice, and wliile the same remains uncan- celled, such property is delivered in any way different from such altered or changed consignment, such railroad corpora- tion shall, at the election of the consignee or person entitled to control such property, be deemed to have illegally appropriated such property to its own use, and shall be liable to pay the owner or consignee of such property the value of the property, and shall forfeit and pay to the owner or consignee the sum of twenty-five dollars, to be recovered by civil action before any court of com- petent jurisdiction; and no extra charge shall be permitted by the corporation having the custody of such property in conse- quence of such change of consignment. Id. sec. 2618. No discri 111 illation allowed in shipping grain— Grain to be weighed and shortage made up : Every railroad corporation chartered by or organized under the laws of this state, or doing business within the limits of the same, when desired by any person wishing to shij) any grain over its road, shall receive and transport such grain, in hulk or otherwise, within a reasonable time, and load the same either upon its track, at its depot, or at any warehouse adjoining its track or side track, without distinction, discrimination of favor between one shipper and another, and without distinction or discrimination as to the manner in which such grain is offered to it for transportation, or as to the person, warehouse or place to whom or to which it may be consigned; and at all stations where scales are required to be kept, at the time such grain is 490 MISSOURI LAWS. receiA'ed by it for traiispoi'tatioii, such corporation shall care- fully and correctly weigh the same, and issue to the shipper thereof a receipt or bill of lading for such grain, in which shall be stated the true and correct weight, and such corporation shall weigh out and deliver to such shipper, his consignee or other person entitled to receive the same, at the place of de- livery, the full amount of such grain, without any deduction for leakage, shrinkage or other loss on the quantity of the same, except that one half of one per cent shall be allowed for leakage, shrinkage or other loss on bulk grain. In default of such de- livery, the corporation so failing to deliver tlie full amount of such grain shall pay to the person entitled thereto the full mar- ket value of any such grain not delivered at the time and place when and where the same should have been delivered. Id. sec. 2620r. Note. Companies may be incorporated for the purpose of conducting the warehouse business iiuder chapter xii, art. ix, Revised Statutes of Mis- souri, 1899. MISSOUKI. 491 DECISIONS AFFECTING WAREHOUSEMEN. A. Waj-ehouse — Definition . There is no technical meaning to the word warehouse cUffer- ent from its ordinary significance of storehouse. The State v. Watson, 141 Mo. 338; The State v. Spragne, 149 Mo. 409. Bailment and sale — Option to pay for in money or other prop- erty, effect thereof. Plaintiff deposited wheat in the defendant's warehouse ; un- der the agreement between them, defendant was obliged to de- liver a certain quantity of flour or of bran, proportional to the amount of wheat deposited. Before demand made, ware- house and contents were destroyed by fire. The court held that in view of the fact that the wheat of the various depositors was mingled with other wheat deposited, and that all of tlie depositors had a right to demand, according to the terms of the contract, so much flour and bran for each bushel of wheat deposited, and not the flour and bran manufactured out of the wheat deposited by them, such a transaction could be regarded in no other light than as a sale, and was wholly inconsistent with the character of bailment. O'Neil v. Stone, 79 Mo. App, 279; Martin v. Ashland Milling Co., 49 Mo. App. 23; Smith v. Clark, 21 Wend. 23, overruling Seymour v. Brown, 19 Johns. 44. See also mird v. West, 7 Cow. 752; Pierce v. Schenck, 3 Hill, 28; Norton v. Woodruff, 2 N. Y. 153; Mallroy v. Willis, 2 N. Y. 76. B. Ordinary care. Warehousemen are only bound to take reasonable care of property and are only answerable for losses occasioned by de- fault and neglect. Gashweiler v. Wabash, St. Louis & Pacific R. R. Co., 83 Mo. 112; Holtzclaw et al. v. Duff, 27 Mo. 392. Same — What constitutes — When a question for the jury and when for the court. What constitutes a requisite diligence and care to be exer- cised by a warehouseman is always one to be determined by 492 >nssouRi decisioxsl the jury, in view of the surrounding circumstances, when there is substantial evidence upon which to submit to the-m such an issue ; but in the absence of such evidence, it becomes a question of law to be determined by the court. American Brewing Assn. V. Talbot et al, 141 Mo. 674. Conversion — What constitutes. The action of one in withholding property from the real owner thereof, when demand has been made upon him for it, is in law a conversion thereof. Foster Woolen Co. v, Woolman, 87 Mo. App. 658; Rembaugh v. Phipps, 75 Mo. 422. G. Government bonded warehouse — Vendor's lien — Non-negotiable receipt. The plaintiff sued the defendant for the conversion of a num- ber of barrels or whiskey, to which plaintiff alleged he was en- titled, pursuant to the receipt issued therefor, by one who had purshased the whiskey from the defendant. It appeared that the defendant had not been paid in full for the whiskey when sold, but had accepted the purchaser's notes in payment of the balance due. Thereupon the whiskey was stored in a government bonded warehouse. The purchaser subsequently pledged the whiskey with the plaintiff, for the payment of a loan and, as security therefor, delivered to him a non-negotiable warehouse receipt. From the above facts, the court held that the warehouse receipt in question only had the effect of trans- ferring the title of the whiskey to the plaintiff, as security for his debt, and was not for value in a sense that would extinguish the equitable right of the defendant to his vendor's lien, and that, therefore, the defendant had a lien thereon for the amount of the unpaid purchase price. Vogelsang's Admr. v. Fisher, 128 Mo. 386. Same— Vendor's lien not lost by placing goods therein— Nature of this lien fully considered. Where whiskey was placed in a government bonded ware- house, it was held that the vender's lien was not destroyed; that a delivery to such warehouse was not a delivery to the MISSOURI. 493 vendee so as to impair the lien (jf the vendor. The existence of the vendor's lien presupposes that the title to the goods has passed. It is in no sense a right to rescission, but, on the con- trary, proceeds in affirmation of the contract of sale. It is in the nature of a pledge raised or created by law upon the hap- pening of the insolvency of the vendee, to secure the unpaid purchase money to the vendor. Conrad v. Fisher, 37 Mo. App. 352. H. Warehouseman's lien— Goods stored by sheriff— Warehouseman protected — Lien highly favored by law. The sheriff attached goods, in an action against the owner thereof, and stored them with the defendant warehouseman, for safe-keeping. The judgment against the owner was dis- charged and the attachment released. The owner thereupon demanded the goods of the defendant, who refused to surrender the same unless his storage charges were paid, he claiming to have a lien against the goods therefor. The court held that the defendant's lien remained after the attachment was dis- solved, and was as binding and as effectual as if the property had been stored by the plaintiff himself, instead of by the con- stable, who was authorized to do so by law. A warehouseman's lien is highly favored, and the law is against presuming a waiver or extinguishment of it. Further held that the possession by the sheriff was the same as possession by a receiver; in each instance the goods are in custody of the court. Case Plow Works V. Union Iron Works, 56 Mo. App. 1; Ward v. Moffett, 38 Mo. App. 400; Wycoff v. Southern Hotel Co., 24 Mo. App. 382; Kneeland v. American Loan & Trust Co., 136 U. S. 89. Same — Subordinate to right of mortgagee under chattel mortga{je. Where a mortgagor of goods, without the consent of the mort- gagee, under a chattel mortgage, stored the same, it was held that the lien of the warehouseman, for charges, was inferior to the right of the mortgagee. Vette v. Leonori, 42 Mo. App. 217. Same — Tender of amount due necessary to avoid lien — Excess- ive demand. The mere fact that the demand, made by the bailee of prop- 494 MISSOURI DECISIONS. erty, was either premature or excessive did not avoid his lien from the amount justly chargeable to the bailor. If the bailee desired to terminate the lien all he had to do was to tender the amount whicli was justly due. Muench v. Valley National Bank, 11 Mo. App. 144; Montieth v. Great Western Printing Co., 16 Mo. App. 450. L. Replevin — Bailee may maintain. A person in possession of goods as bailee may maintain an action of replevin against all persons except the true owner, and even against him if he has a lien for services, advances, and the like, upon them. Sriowden v. Kessler, 76 Mo, App. 581. M. Pledge — Right to possession. The pledgor has no right to the possession of the pledge until he pays, or offers to pay, what he owes. Any damage he sus- tains by the wrongful sale on account of injury actually done to his property, or expense of getting it back, he may recover by the appropriate action. But the pledge itself, or its value, he may only recover by keeping his undertaking. Schaaf, Admr., v. Fries, 90 Mo. App. 111. N. Misdelivery — When ivarehoiiseman not liable. A warehouseman is not responsible for the delivery of prop- erty intrusted to him to one who presents a proper bill of lading therefor, the warehouseman making proper inquiry, such as would be satisfactory to a prudent business man. Bush v. St. Louis, K. C. & N. Ry. Co., 3 Mo. App. 62. Act of God — Lost by flood — Unprecedented rise in river — Burden of proof and the shifting thereof. The defendants operated a warehouse situated upon the river front. After unprecedented rains, water arose in the cellar of the warehouse, and the defendants thereupon removed the goods stored to the upper portions thereof. Subsequently the warehouse collapsed. It was held that the warehouseman wa.^ not liable; that such result was from inevitable accident, or s MISSOURI. 495 what is termed act of God. In such a case, the burden of proof is first upon the bailor to prove the contract and delivery of the goods, then upon the bailee to show the loss and manner thereof; the burden then again shifts to the Ijailor to establish that the loss was due to the bailee's negligence. American Brewing Assn. V. Tolbot et ai, 141 Mo. 674. See also Fuchs v. St. Louis el ciL, 133 Mo. 168, the doctrine of which was challenged by Sherwood, J., in former decision. Same — Larceny and burglary — Warehouse and storehouse sy- nonymous. An indictment charged burglary and larceny from a store- house. It was insisted, on behalf of the defendant, that the trial court erred in allowing evidence to be introduced for bur- glary of a warehouse and larceny therefrom. The court, an- swering the above contention, stated that as the defendant was guilty of burglary, it did not concern him if there was an improper designation of the building burglarized, and sec- ondly, the words warehouse and storehouse were synonymous. State V. Sprague, 149 Mo. 409. P. Contract to insure goods — Warehouse7nan liable. Where a warehouseman agreed with the owner of goods stored with him, at the time of deposit, to have the same fully insured against fire, he is liable for the value thereof, in case of their destruction from this cause. Dawson v. Waldheim, 80 Mo. App. 52; Ferguson v. Pekin Plow Co., 141 Mo. 161. Loss by fire — Evidence as to location of warehouse — Pleading. The defendant was sued, charged with liability as a ware- houseman, for the destruction by fire oi goods belonging to the plaintiff, stored in the defendant's warehouse. The petition alleged that the defendant failed and neglected to exercise rea- sonable care of said flour while so stored. It was not alleged that by reason of the proximity of the warehouse to a refining establishment, the warehouse was not a safe place in which to store the flour. On the above pleadings it was held that evi- dence tending to prove that the defendant owned the property 496 MISSOURI DECISIONS. upon which the refining works were situated, and that such works were of very inflammable nature, etc., was properly ex- cluded. Standard Milling Co. v. White Line C. T. Co., 122 Mo. 258. Warehouse receipts — Issued by warehouseman against his own goods not a " icarehouse receipt." A receipt issued by the owner of goods, stored in his own store, is not a warehouse receipt. Conrad v. Fisher, 37 Mo. App. 352 ; Valley National Bank v. Frank, 12 Mo. App. 460 ; Thome v. First National Bank, 37 Oh. St, 254; Adams v. Mer- chants' National Bank, 2 Fed. Rep. 174; S. C, 9 Biss. (U. S.) 396; Yenni v. McNamee, 45 N. Y. 614; Farmers' Bank v. Lang, 87 N. Y. 209. Same — Negotiability — Payable to bearer — Not negotiable. Warehouse receipts, made payable to bearer, not transferable by indorsement, are not negotiable as mercantile paper. There must be both a delivery and indorsement to confer upon a ware- house receipt the negotiability of mercantile paper. The trans- fer of cotton notes or receipts gives to transferee no greater light than he would have acquired by the delivery of the goods themselves. Warehouse receipts or cotton notes represent the cotton itself, and a pledge thereof is as effectual as a pledge of the cotton itself. Erie & Pacific Despatch v. Compress Co., 6 Mo. App. 172; Fourth National Bank v. St. Louis Cotton Conip. Co., 11 Mo. App. 333; Shaiv v. Railroad Co., 101 U. S. 557. Same — Same — Transfer to assignee of holder not negotiation. The owner of certain goods shipped the same to his agent, who sold part of the same and stored the portion sold in the warehouse of the defendant. The warehouseman issued a re- ceipt therefor to the purchaser, which receipt, upon the insol- vency of the purchaser, passed to his assignee. In an action brought by the owmer for the recovery of the goods, it was held that the receipt, in the hands of the assignee, gave no claim to him as against the owner; that the owner would not be required to recover the receipt, but he could obtain possession of the property, and that the statute in relation to warehouse receipts MISSOURI. 497 was not intended for such a case as this. Jones el al. v. Evans et al, 62 Mo. 375. Same — Collateral security. A valid pledge of property may be made by the delivery of the bill of sale, copy of ganger's return, and warehouse receipts, for these are symbols of the property itself. Conrad v. Fisher, 37 Mo. App. 352. Same — Attornment by warehouseman not necessary. Attornment by a warehouseman is not required by the laws of Missouri in order to complete a symbolical delivery. In fact, the general rule in this country is that such attornment is not necessary ; in Massachusetts it appears that the English doctrine of attornment has been followed. Id. Same — What constitutes. A negotiable warehouse receipt is one given for goods stored or deposited. It must contain an obligation to hold the prop- erty, represented thereby, in store. An instrument which is in efTect an agreement to ship the goods is not such a receipt. Union Savings Assn. v. St. Louis Grain Elevator Co., 81 Mo. 341 ; Saine v. Same, 16 Mo. App. 560. B. Bill of lading — Transfer thereof. The transfer of a bill of lading passes the title of the prop- erty represented thereby. The holder of such bill holds the legal title to the goods, and is entitled to all the rights of a bona fide purchaser for value, and when the consignor transfers the bill of lading for value, he loses his control over the goods, and has no right, therefore, to give directions to the carrier with regard to transportation. White Live Stock Co. v. Chicago, Milwaukee & St. Paul R. R. Co., 87 Mo. App. 330; Dymock v. Railroad, 54 Mo. App. 400; Bank v. Railroad, 62 Mo. App. 531; Obert V. Railroad, 13 Mo. App. 81. Same — Receipt and contract — Parol testimony. A bin of lading partakes of the nature of a receipt, and of a 32 498 MISSOURI DECISIONS. contract. So much as partakes of the nature of a receipt may be explained or contradicted by parol testimony. Steamboat Missouri v. Webb, 9 Mo. 192. Indictment — Thejt from warehouse. The defendant was indicted for theft from a granary warehouse and building, the same being a building in which divers goods and various things were kept for sale and deposit. It was con- tended by the defendant that this description did not include a warehouse, the objection being that the word granary, before the word warehouse, was used as an adjective to qualify the following word. It was held that this contention could not be sustained. State v. Watson, 141 Mo. 338. T. Unlaivjul sale by warehouseman— Requisites of indictment. Section 742, R. S. 1889, provides that it shall be unlawful for a warehouseman to sell or permit the removal of goods from his warehouse, without the assent of the holder of the receipt. Therefore, it was held that under this section, it must be affirm- atively charged, in the indictment against the warehouseman, for the violation of its provisions, that he sold or removed the stored property without the assent of the holder of the receipt therefor. State v. Kirby, 115 Mo. 440. U. Constitutionality of act relating to ivarehouse receipts under sec- tion 32, article 4, of the constitution of Missouri. Section 32, article 4, of the constitution of the state of Mis- souri declares: "No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title." Defendant was indicted for selling and disposing of grain for which he had not paid, under the section of the act entitled, "An act to prevent the issue of false receipts or bills of lading and to punish fraudulent transfers of property by warehousemen, wharfingers, and others." It was contended, in behalf of the defendant, that as the section in said act pro- vided that any person who shall purchase any goods or other commodity, for cash, and sell, hypothecate, or pledge the same MISSOURI. 499 to another, and use the proceeds thereof for any other purpose than the payment of the purchase price, witli intent to cheat or defraud such vendor, shall be guilty of a felony, was uncon- stitutional and void for the reason that it was not germane to the subject of the act nor included in the title thereof. The court held that an exact and strict compliance with the letter of the constitutional provisions is almost impracticable, and that the nature and object of this act was clearly within its title, for, by a fair construction thereof, it related to a class of defenses of a kindred character, all connected, blended, and germane. State of Missouri v. Miller, 45 Mo. 495. Erection of ivarehouse on 'public ground 'permitted — Use a public one. The city of St. Louis leased to the defendant part of its wharf for the purpose of the erection of a warehouse thereon. The lease could be terminated by the city upon six months' notice to the lessee. The warehouseman served the public by receiv- ing grain from the boats on the Mississippi river. It was con- tended that the lease to the defendant was void on the ground that it was a use of public property for private purposes. The court held that this contention could not l)e sustained; that as a warehouseman could show no favoritism and was obliged to receive property for storage as long as he had room therefor, the property was clothed with and had attached to it a public trust; further, that, like a railroad or steamboat, the property is private and is operated for private gain, but the use is jDublic. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 101 Mo. 192. Where the city had leased the property to the defendant uncon- ditionally, it was there held that such lease was void. See Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121. Charges for storing grain may be regulated by state. Where an elevator company is engaged in the business of storing grain, and is doing business in all respects as a public warehouseman, it is engaged in a public trust, is subject to pub- lic regulations, and the state may prescribe i-(>gulations even as to the charges of storage. Belcher Sugar Refining Co. v. St. 500 MISSOURI DECISIONS. Louis Grain Elevator Co., 101 Mo. 192; Mimn v. Illinois, 69 III 80, aff'cl 94 U. S. 113. See also State ex rel Star Pub. Co. v. Associated Press, 159 Mo. 410, in which the doctrine of Munn V. Illinois is severely criticised. See also People v. Biidd, 117 N. Y. 1, aff'd 143 U. S. 517 ; North Dakota ex rel. Stoeser v. Brass, 2 N. D. 482, aff'd 153 U. S. 391. See note to People v. Budd in New York decisions, this volume, page 601. -MONTANA. 501 CHAPTER XXVI. MONTANA. LAWS PERTAINING TO WAREHOUSEMEN. Issuing fictitious bills of lading, etc.: Every person being the master, owner, or agent of any vessel, or officer or agent of any railroad, express or transportation company, or otherwise being oi- representing any carrier, who delivers any bill of lading, receipt, or other voucher, by which it appears that any merchandise of any description has been shipped on board any vessel, or delivered to any railroad, ex- press or transportation company, or other carrier, unless the same has been so shipped or delivered, and is at the time actu- ally under the control of such carrier, or the master, owner, oi- agent of such vessel, or of some officer or agent of such com- pany, to be forwarded as expressed in such bill of lading, re- ceipt or voucher, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Code of Mont. 1895, sec. 1020. Issuing fictitious warehouse receipts ; Every person carrying on the business of a warehouseman, wharfinger, or other depositaiy of property, who issues any receipt, bill of lading, or other voucher for any merchandise of any description, which has not been actually received upon the premises of such person, and is not under his actual control at the time of issuing such instrument, whether such instru- ment is issued to a person as being the owner of such merchan- dise, or as security for any indebtedness, is punishable by im- prisonment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Id. sec. 1021. Erroneous bills of lading or receipts issued in good faith : No person can be convicted of any offense under the last two 502 MONTANA LAWS. sections by reason that the contents of any barrel, box, cask, or other vessel or package mentioned in the bill of lading, re- ceipt, or other voucher, did not correspond with the descrip- tion given in such instrument of the merchandise received, if such description corresponded substantially with the marks, labels, 01- brands upon the outside of such vessel, or package, unless it appears that the accused knew such marks, labels, or brands were untrue. Id. sec. 1022. Duplicate receipts must be marked " duplicate " : Every person mentioned in this chapter, who issues any second or duplicate receipt or voucher, of a kind specified there- in, at a time while any former receipt or voucher for the mer- chandise specified in such second . receipt is outstanding and uncancelled, without writing across the face of the same the word "duphcate" in a plain and legible manner, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Id. sec. 1023. Selling, etc., property received for transportation or stor- age : Every person mentioned in this chapter who sells, hypothe- cates or pledges any merchandise for which any bill of lading, receipt, or voucher has been issued by him, without the con- sent in writing thereto of the person holding such bill, receipt or voucher, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding one thou- sand dollars, or both. The provisions of this section do not apply where the property is demanded or sold under process of law. Id. sec. 1024. Sales of explosives after dark : No person or persons shall store, or keep in any store, ware- house, or any other building within the limits of any unincor- porated town or village, more than five thousand giant caps at any one time, or any coal oil, kerosene or petroleum, exceed- ing sixty gallons, other than in original packages, within the limits of the said unincorporated town or village, or shall sell. MONTANA. r,03 lend, barter or dispose of, or deliver or receive the same, or any or either of the said articles or materials, in the section herein enumerated, after dark, by the aid of any lamp, lantern, candle, match or other artificial light, except electric light. Id. sec. 718. 504 MONTANA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. R. Bill of lading — Transfer of — Statute of frauds. The transmission of a bill of lading amounts to the actual delivery of the possession of the property described in it, and is a compliance with the statute of frauds as to the sale and delivery of property. First Nat. Bank v. McAndrews et at., 5 Mont. 325; Wetzel et al. v. Power et al, 5 Mont. 214; Walsh v. Blakeley, 6 Mont. 194. NEBRASKA. ^Q i> CHAPTER XXVII. NEBRASKA. LAWS PERTAINING TO WAREHOUSEMEN. Description of property : Whenever any personal property shall be consigned to, or deposited with, any forwarding merchant, wharf keeper, ware- house keeper, tavern keeper, or the keeper of any depot 'for the reception and storage of trunks, baggage, and other personal property, such consignee or bailee shall immediately cause to be entered in a book to be provided and kept by him for that purpose, a description of such property, with the date of the reception thereof. Compiled Statutes, Neb. 1901, sec. 5344. Notice to owner : If such property shall not have been left with such consignee or bailee for the purpose of being forwarded or otherwise dis- posed of, according to directions received by such consignee or bailee, at or before the time of the reception thereof, and the name and residence of the owner of such property be known or ascertained, the person having such property in his custody shall immediately notify such owner, by letter to be directed to him and deposited in a post-office to be transmitted by mail, of the reception of such property. Id. sec. 5345. Unclaimed property — Sale : In case any such property shall remain unclaimed for three months after its reception as aforesaid, the person having pos- session thereof shall cause a notice to be publisher 1 once in each week for four successive weeks, in a newspaper published in the same county, if there be one, and if not, then in some pajier published at the seat of government, describing such property, and specifying the time when it was received, and stating that unless such property shall be claimed within three months from the first publication of such notice, and the lawful charges there- 506 NEBRASKA LAWS. on paid, the same will be sold according to the statute in such case made and provided. Id. sec. 5346. Same— Proceedings before justice : In case the owner or persons entitled to such property shall not, within three months after the publication of such notice, claim such property and pay the lawful charges thereon, in- cluding the expenses of such publication, the person having possession of the property, his agent, or attorney, may make and deliver to any justice of the peace of the same county an affidavit, setting forth a description of the property remaining unclaimed, the time of its reception, the publication of the no- tice, and whether the owner of such property is known or un- known. Id. sec. 5347. Same: Upon the delivery to him of such affidavit, the justice shall cause such property to be opened and examined in his presence, and a true inventory thereof to be made, and shall make and annex to such inventory an order under his hand that the prop- erty therein described be sold by the sheriff of the county where the same shall be, at public auction, upon due notice. Id. sec. 5348. Notice : It shall be the duty of the sheriff receiving such inventory and order, to give ten days' notice of the sale by posting up written notices thereof in three public places in the county or city, and to sell such property at public auction for the highest price he can obtain therefor. Id. sec. 5349. Sheriff's return : Upon completing the sale, the sheriff making the same shall indorse upon the order aforesaid a return of his proceedings upon such order, and the proceeds of the sale after deducting his fees, which shall be the same as upon an execution. Id. sec. 5350. Expenses : From the proceeds of such sale the justice shall pay the NEBRASKA. 507 charges and expenses legally iricurrecl in respect to such prop- erty, or a ratable proportion to each claimant if there be not sufficient to pay the whole; and such justice shall ascertain and determine the amount of such charges in a sunnnary man- ner, and shall be entitled to three dollars for each days' service rendered by him in such proceeding. Id. sec. 5351. Avails — Disposition : Such justice shall deliver to the treasurer of the county in which the property was sold, the affidavit, inventory, and ordor of sale and return hereinbefore mentioned, together with a statement of the charges and expenses incurred in respect to such property as ascertained and paid by him, with a state- ment of his own fees, and shall at the same time pay over to such treasurer any balance of the proceeds of the sale remain- ing after payment of such charges, expenses and fees. Id. sec. 5352. Duties of treasurer : The treasurer shall file in his office, and safely keep all the papers so delivered to him, and make a proper entry of the pay- ment to him of any moneys arising from such sale in the books of his office. Id. sec. 5253. Money paid to owner : If the owner of the property sold, or his legal representatives, shall, at any time within five years after such moneys shall have been deposited in the county treasury, furnish satisfactory evi- dence of the ownership of such j)roperty, he or they shall be entitled to receive from such treasurer the amount deposited with him. Id. sec. 5354. Money paid to school fund : If the amount so deposited with any county treasurer shall not be paid to such owner, or his legal representatives, within the said five years, such county treasurer shall pay such amount into the school fund of the proper county, to be appropriated for the support of schools. Id. sec. 5355. Wareliouse receipts — Negotiable — Lien : Any person, firm or corporation engaged in the business of 508 ISTEBRASKA. LAWS. pcacking pork, or beef, or manufacture of distilled spirits, or of linseed oil, or raising chicory roots, or manufacturing chicory, or producing, or owning or handling any product, manufactured article, or merchandise, or any other article or product capable of being stored having a warehouse for the storage of his or its own product; and any person, firm or corporation, being the keeper, proprietor or owner of any elevator, warehouse, crib or tank, wherein is stored any of the products or articles con- templated by this act belonging to such keeper, proprietor or owner, may issue receipts for his or its own property as con- templated by this act, which such persons, firm or corporation has so stored, in the usual form of warehouse receipts which shall have the same force and effect as the receipts issued by the keeper of a public warehouse to parties having property so stored therein, which receipt shall be negotiable by indorse- ment and entitle the bona fide holder thereof, advancing money on the credit of the same, to a lien upon the property so stored and described therein for the money so advanced as to all sub- sequent purchasers and creditors of any person interested therein, from the date of issuance of such receipts and the advance of the money. Id. sec. 5356. Same— Fraudulent — Penalty : If any person, or any individual or officer of any firm or cor- poration described in the preceding section, shall execute and deliver or cause to be executed and delivered to any person, firm or corporation, false, fraudulent or fictitious warehouse receipts, acknowledgments or other instruments in writing to the effect that the person, firm or corporation so issuing same has in store in a warehouse, elevator, cribs, tanks, or bins, any of the products or articles contemplated by this act, when in fact said article is not so stored according to the tenor and effect of said receipt, acknowledgment or writing; and if, hav- ing issued such receipt thereon as in the preceding section pro- vided, such person, individual or officer of any firm or corpora- tion shall sell, incumber, ship, transfer, or in any manner re- move beyond his or its immediate control the property de- scribed in such receipt without first having discharged the lien bv said section thirteen (13) sec. [5356] provided without the NEBRASKA. 50i< written consent of the holder of said receipt, with the intent to deceive, defraud, or injure any person, firm, or corporation whomsoever, or if any sucli person, individual or ofhcer of any firm or corporation shall indorse, assign, transfer or deliver to any other person, firm or corporation any such false or fraudu- lent receipt, acknowledgment or instrument in writing, know- ing the same to be false, fraudulent or fictitious with like in- tent, such person, individual or officer of such firm or corpora- tion shall be adjudged guilty of a felony and upon conviction thereof shall be punished by :i fine not exceeding one thousand dollars ($1,000), and imprisonment in the penitentiary of this state not exceeding three years. Id. sec. 5357. Elevators and storehouses declared public warehouses : That all elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses. Id. sec. 5358. Required to make weekly statements : The owner, lessee or manager of each and every public ware- house shall make weekly statements under oath, on or before each Tuesday up to the close of business of the previous Satur- day, before some officer designated by law, and keep the same posted in some conspicuous place in the office of such ware- house, and shall also file a copy for public examination in such other place or places designated by law, which statement shall correctly set forth the amount of each and every kind of grain in such warehouse, together with such other property as may be stored therein, and what warehouse receipts have been issued and are at the time of taking such statement, outstanding therefor, and in cities of the metropolitan or first class, the owner, lessee, or manager of each public warehouse situated therein shall, in addition to the above, note such daily changes on the copy posted in the warehouse as may be made in the quantity and grade of grain in such warehouse ; and the differ- ent grades of grain shipped in separate lots shall not be mixed with inferior lots without the consent of the owner or consignee thereof. Id. sec. 5359. 510 NEBRASKA LAWS. Owners at liberty to examine property and books : The owner or owners of property stored in any warehouse, or holder of a receipt for the same, shall always be at liberty to examine such property stored and all the books and records of the warehouse in regard to such property. Id. sec. 5360. Warehouses classified : All public warehouses as herein defined shall be divided into three classes, to be designated as A, B and C, respectively, and they shall receive, ship, store and handle the property of all alike without discrimination. This does not apply to property extra hazardous. Id. sec. 5361. Classes defined : Public warehouses of Class A shall embrace all warehouses, elevators and granaries in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved, such warehouses, elevators or granaries being located in the cities of the metropolitan or first class. Public warehouses of Class B shall embrace all other warehouses, elevators, or granaries in which grain is stored in bulk, and in which the grain of differ- ent owners is mixed togather. Public warehouses of Class C shall embrace all other warehouses or places where property of any kind is stored for a consideration. Id. sec. 5362. License : The proprietor, lessee or manager of any public warehouse shall be required before transacting any business in such ware- house, to procure from the board of transportation a license permitting such proprietor, lessee or manager to transact busi- ness as a public warehouseman under the laws of this state, which license shall be issued by the board of transportation upon a written application which shall set forth the location and name of such warehouse, and the individual name of each person interested as owner or principal in the management of the same; or, if the warehouse be owned or managed by a cor- poration, the name of the president, secretary and treasurer of NEBRASKA. 511 such corporation shall be stated, and the said license shall give authority to carry on and conduct the business of a public ware- house in accordance with the laws of this state and shall be revocable by the said board of transportation upon conij)laint of any person in writing, setting forth the particular violation of law, and upon satisfactory proof, to be taken in such manner as may be directed by the said board of transportation. Id. sec. 5363. Bond : The person receiving a license as herein provided shall file with the said board of transportation a bond to the people of the said state of Nebraska, with good and sufficient security, to be approved by said board of transportation, in the penal sum of ten thousand dollars (.110,000), conditioned for the faithful per- formance of his duty as public warehouseman, and his full and unreserved compliance with all laws of this state in relation thereto. Id. sec. 5364. Penalty for doing business without a license : Any person who shall transact the business of a public ware- house without first procuring a license as herein provided, or who shall continue to transact any such business after such license has been revoked (save only that he may be permitted to deliver property previously stored in such warehouse) shall on conviction be fined in a sum not less than one hundred dol- lars ($100) nor more than five hundred dollars (S500) for each and every day such business is carried on, and the said board of transportation may refuse to renew any license or to grant a new one to any of the persons whose license has been revoked within one year from the time it was revoked. Id. sec. 5365. Not to discriminate — Not to mix grain — Reeoipts : It shall be the duty of any warehouseman of Classes A and B to receive for storage or shipment any grain that may be ten- dered to him in the usual manner in which warehouses are ac- customed to receive the same in the ordinary and usual course of business, not making any discrimination between persons desiring to avail themselves of warehouse facdities, and in the 512 NEBRASKA LAWS. case of every warehouseman of Class A such grain in all cases shall be inspected and guarded by a duly authorized inspector, and stored with grain of a similar grade received at the same time as near as may be. In no case shall grain of different grades be mixed together in warehouses of Class A while in store, but if the owner or consignee so requests and the ware- houseman consent thereto, his grain of the same grade may be kept in a bin by itself apart from that of the owners, which bin shall thereupon be marked and known as a "separate bin." If a warehouse receipt be issued for grain so kept separate, it shall state on its face that it is in a separate bin, and shall state the number of such bin, and no grain shall be delivered from such warehouse of Class A unless it be inspected on the delivery thereof by a duly authorized inspector of grain. Nothing in this section shall be so construed as to require the receipt of grain into any warehouse in which there is not sufficient room to acconmiodate or store it properly, or in cases where such warehouses are necessarily closed. Id. sec. 5366. Manner of issuing receipts — Class A : Upon application of the owner or consignee of grain stored in a public warehouse of Class A, the same being accompanied with evidence that all transportation or other charges which may be a lien upon such grain, including charges for inspection have been paid, the warehousemen shall issue to the person entitled thereto a warehouse receipt therefor, subject to the order of the owner or consignee, which receipt shall bear date corresponding with the receipt of the grain into store, and shall state upon its face the quantity and inspected grade of the grain, and that the grain mentioned in it has been received into store, to be stored with grain of the same grade by inspection, re- ceived at about the date of the receipt, and that it is deliverable upon the return of the receipt, proj^erly indorsed by the person to whose order it was issued and the payment of proper charges for storage. All warehouse receipts for grain issued from the same warehouse shall be consecutively numbered, and no two receipts bearing the same number shall be issued from the same warehouse during anj^ one year excej^t in the case of a lost or destroyed receipt, in which case the new receipt shall bear the NEBRASKA. 613 same date and number as tlie original and shall be plainly marked on its face "duplicate." If the grain was received from railroad cars the number of each car shall be stated upon the receipt with the amount it contained; if from canal-boat, barge or other vessel the name and mimber of such craft; if from teams or by other means the manner of its receipt shall be stated on its face. The number of the bin shall also be written on the face of the receipt when desired by tlie owner or consignee. Id. sec. 5367. Cancelling receipts : Upon the delivery of grain or other property from store, upon any receipt, such receipt shall be plainly marked across its face with the word "cancelled," with the name of the person can- celling the same, and shall thereafter be void, and shall not again be put in circulation, nor shall grain or other property be delivered twice upon the same receipt. Id. sec. 5368. Further, of issuing and cancelling receipts : No warehouse receipt shall be issued except upon the actual delivery of grain or other property into store in the w^arehouse from which it purports to be issued and which is to be repre- sented by the receipt, nor shall any receipt be issued for a greater quantity of grain or other property than was contained in the lot or parcel stated to have been received, nor shall more than one receipt be issued for the same lot of grain or other property except in cases where receipts for a part of a lot are desired, and then the aggregate receipts for a particular lot shall cover that lot and no more. In cases where a part of the grain or other property represented by the receipt is delivered out of store and the remainder is left, a new receipt may be issued for such re- mainder, but such new receipt shall bear the same date as the original, and shall state on its face that it is balance of receipt of the original number, and the receipt upon which a part has been delivered shall be cancelled in the same manner as if it had all been delivered. In case it be desirable to divide one receipt into two or more, or in case it be desirable to consolidate two or more receipts into one, and the warehouseman consent thereto, the original receipt shall be cancelled the same as if 33 514 NEBRASKA LAWS. the grain or other property had been delivered from store, and the new receipts shall express on their face that they are parts of other receipts or a consolidation of other receipts, as the case may be, and the number of the original receipts shall also ap- pear upon the new ones issued as explanatory of the change, but no consolidation of receipts of dates differing more than ten days shall be permitted, and all new receipts issued for old ones cancelled as herein provided, shall bear the same dates as those originally issued as near as may be. Id. sec. 5369. Warehouse not to limit liability : No warehouseman in this state shall insert in any receipt issued by him any language in anywise limiting or modifying his liabilities or responsibilities as imposed by the laws of this state. Id. sec. 5370. Delivery of property : On the return of any warehouse receipt issued by him prop- erly indorsed and the tender of all proper charges upon the property represented by it, such property shall be delivered to the holder of such receipt in the order demanded and as rapidly as due diligence, care and prudence will justify. Unless the property represented by such receipt shall be promptly deliv- ered as above, after such demand shall have been made, the warehouseman in default shall be liable to the owner of such receipt for damages for such default ten per cent of the value of the property at the time of the demand, and in addition thereto one per cent of the value of the property for each and every day of such neglect or refusal to deliver. Id. sec. 5371. Posting grain in store — Statements to registrar — Daily publication — Cancelled receipts — Class A : The warehouseman of every j^ublic warehouse of Class A shall on or before Tuesday morning of each week cause to be made out and shall keep posted in the business office of his ware- house, in a conspicuous place, a statement of the amount of each kind and grade of grain in store in his warehouse at the close of business on the previous Saturday, and shall also on each Tuesday morning render a similar statement made under NEBRASKA. 516 oath before some officer authorized by law to achiiiiiister oaths, by one of the priiiciixil owners or operators thereof or by the bookkeeper thereof having personal knowledge of the facts to the warehouse registrar appointed as hereinafter provided. They shall also be required to furnish daily to the same registrar a correct statement of the amount of each kind and grade; of grain received in store in such warehouse on the previous tlay ; also the amount of each kind and grade of grain delivered or shipped by such warehouseman during the previous day and what warehouse receipts have been cancelled ujjon wiiicli the grain has been delivered on such day, giving the number of each receipt and amount, kind and grade of grain received and shipped upon each; also how much grain, if any, was so delivered or shipped and the kind and grade of it, for which warehouse receipts had not been issued and wh(>n and how much unre- ceipted grain was received by them, the aggregate of such re- ported cancellations and delivery of unreceipted grain corrf^- sponding in amount, kind and grade with the amount so reported delivered or shipped. They shall also at the same time report what receipts, if any, have been cancelled and new ones issued in their stead, as herein provided for. And the warehouseman making such statements shall in addition furnish the said reg- istrar any further information regarding receipts issued or cancelled that may be necessary to enable him to keep a full and correct record of all receipts issued and cancelled and of grain received and delivered. Id. sec. 5372. Chief inspector : It shall be the duty of the governor to appoint by anrl with the advice and consent of the senate, a suitable person, who .shall not be a member of any board of trade, and who shall not be interested directly or indirectly in any warehouse in this state, a chief inspector of grain, who shall hold his office for the term of two years, unless sooner removed as hereinafter provided for. in every city or county in which is located a warehouse of Class A or B, provided that no such grain inspector for cities or counties in which are located warehouses of Class B shall be appointed, except upon the application and petition of two or more warehouses of Class B doing business in such city or county, 516 NEBRASKA LAWS. and when there shall be a legally organized board of trade in such cities or counties such application and petition shall be officially indorsed by such board of trade before such applica- tion and petition shall be granted. Id. sec. 5373. His duties : It shall be the duty of such chief inspector of grain to have a general supervision of the inspection of grain as required by this act or the laws of this state, under the advice and imme- diate direction of the board of transportation. Id. sec. 5374. Assistant inspectors : The said chief inspector shall be authorized to nominate to the said board of transportation such suitable persons, in suffi- cient number, as may be deemed qualified for assistant inspect- ors, who shall not be members of any board of trade nor inter- ested in any warehouse, and also such other employees as may be necessary to properly conduct the business of his office, and the board of transportation is authorized to make such ap- pointments. Id. sec. 5375. Chief inspector's oath and bond : The cliief inspector shall, upon entering the duties of his office, be required to take an oath, as in case of other officers, and he shall execute a bond to the people of the state of Ne- braska in the penal sum of fifty thousand (50,000) dollars when appointed for any city in which is located a warehouse of Class A and ten thousand (10,000) dollars when appointed for any other city or county, w^ith sureties to be approved by the board of transportation, with a condition therein th;it he will fnithfully and strictly discharge the duties of his said office of inspector according to law and the rules and regulations prescribing his duties, and that he will pay all damages to any person or per- sons who may be injured by his neglect, refusal or failure to comply with law and the rules and regulations aforesaid. Id. sec. 5376. Assistant inspector's oath and bond : .\nd each assistant inspector shall take a like oath, execute a bond in the penal sum of five thousand (5,000) dollars with like NEIillASKA. 517 conditions and to be approvod in lik(> manner as is provided in case of the chief inspector, vvhicli .said several bcjnds shall be filed in the office of said board of transportation, and suit may be brought upon said bond or bonds in any court having juris- diction thereof, in the county where the plaintiff or defendant resides, for the use of the person or persons injured.' Id. sec. 5377. Rules for inspection charges : The chief inspector of grain and all assistant inspectors of grain and other employees in connection therewith shall be gov- erned in their respective duties by such rules and regulations as may be prescribed by said board of transportation, and the said board of transportation shall have full power to make all rules and regulations for the inspection of grain, and shall also have power to fix the rate of charges for the insi)ection of grain, and the manner in which the same shall be collected, which charges shall be regulated in such a manner as will in the judg- ment of the said board of transportation produce sufficient revenue to meet the necessary expenses of the service of inspec- tion and no more. Id. sec. 5378. Pay of inspectors and assistants : It shall be the duty of the said board of transportation to fix the amount of the compensation to be paid to the chief inspector, assistant inspectors and all other persons employed in the in- spection service, and prescribe the time and manner of their payment. Id. sec. 5379. Appointment of registrar and assistants : The said board of transportation are hereby authorized to appoint a suitable person as warehouse registrar and such as- sistants as may be deemed necessary to perform the duties imposed upon such registrar by the provisions of this act. Id. sec. 5380. General supervision, pay, etc. : The saifl board of transi:»ortation sh;dl have and exercise a general supervision and control of such appointments, shall prescribe their respective duties, shall fix the amount of their ol8 NEBRASKA LAWS. compensation and the time and manner of its payment. Id. sec. 5381. Reiiiov.il from office : Upon the complaint in writing of any person to the said board of 'transportation, supported by reasonable and satis- factory proof, that any i)erson appointetl or employed under the provisions of this section has violated any of the rules pre- scribed for his government, has been guilty of an improper act or has been found insufficient or incompetent for the duties of his position, such person shall be immediately removed from his office or employment by the same authority that appointed him and his place shall be filled if necessary, by a new appoint- ment, or in case it shall be deemed necessary to reduce the num- ber of persons so appointed or employed, their term of service shall cease under the orders of the same authority by which they were appointed or employed. Id. sec. 5382. Expenses — How paid : All necessary expenses incident to the inspection of grain and to the office of registrar economically administered, including the rent of suitable offices, shall be deemed expenses of the in- spection service, and shidl be included in the estimate of ex- penses of such inspection service, and shall be paid from the funds collected for the same. Id. sec. 5383. Rates of storage : Every warehouseman of public warehouses of Class A shall be recjuired fluring the first week in January of each year to pub- lish in one or more of the newspapers, daily, if there be such published in the city in which warehouse is situated, a table or schedule of rates for the storage of grain in his warehouse dur- ing the ensuing year, which shall not be increased, except as is hereinafter provided during the year, and such published rates, or any published reduction of them shall apply to all grain re- ceived into such warehouse from any person or source, and no discrimination shall be made directly or indirectly for or against any charges made by such warehouseman foi- the storage of grain. The maximum charge for storage and handling of grain, NEBRASKA. 519 inclucliiig the cost of rccciviiii-; and (Iclivcriiig, shall bu for the first ten clays or part thereof. Id. sec. 5384, (See note. ) Weighing : All grain shall be Aveighed on receipt and delivery from the public warehouse of Class A and 1^ and anmially on the date prescribed by the board of transj^ortation all grain in bulk stored in said pul)lic warehouse shall be \veighe(l according to its kind and grade and reported to the register. Id. sec. 53lic ware- house of Classes A and B it shall be deemed the duty of such warehouseman to tlispose of by delivery or shipping in the or- dinary and legal manner of so delivering that grain of any j^artic- ular grade which was first received by them or which has been the longest time in store in his warehouse, and unless i)ublic notice has been given that some portion of the grain in his ware- house is out of condition or becoming so, such warehouseman shall deliver grain of (juality equal to that received !)}• liiin on all receipts as presented. In case, however, any wait house- man of Classes A and B shall discover that any portion of the grain in his warehouse is out of condition or becoming so. and it is not in his power to preserve the same, he shall immediately give public notice by advertisement in a daily newspaper in which warehouse is situated [so in act] and by posting a notice in the most public place for such a i)urpose in such city, of its actual condition as near as he can ascertain it, shall state in such notice the kind and grade of the grain and the bins in which it is Stored, and shall also state in such notice the receipts outstand- ing upon which such grain will be delivered, giving the num- NoTE. This is the exact readinc: of this section as p.tssed by the Nebra-'ka Jegislature 520 XEBItASKA LAWS. bers, amounts and dates of each, wliich receipts shall be those of the oldest dates then in circulation or uncancelled, the grain represented by which has not previously been declared or re- ceipted for as out of condition, or if the grain longest in store has not been i-eceipted for ho shall so state and shall give the name of the party for whom such grain was stored, the date it was received and the amount of it and the enumeration of re- ceipts and identification of grain so discredited shall embrace, as near as may be, as great a quantity of grain as is contained in such bins, and such grain shall be delivered upon the return and cancellation of the receipts and the unreceipted grain upon the request of the owner or person in charge thereof. Nothing herein contained shall be held to relieve the said warehouseman from exercising proper care and vigilance in preserving such grain after publication of its condition, but such grain shall be kept separate and apart from all direct contact with other grains and shall not be mixed with other grain while in store in such warehouse. Any warehouseman guilty of any act or neglect, the effect of which is to depreciate property stored in the warehouse under his control, shall be held responsible as at common law, or upon the bond of such warehouseman, and in addition thereto the license of such ware- houseman shall be revoked. Nothing in this section shall be so construed as to permit any warehouseman to deliver any grain stored in a special bin or by itself, as provided in this act, to any but the owner of the lot, whether the same be repre- sented by a warehouse receipt or otherwise. In case the grain declared out of condition, as herein provided for, shall not be removed from store by the owner thereof within one month from the date of the notice of its being out of condition, it shall be lawful for the warehouseman where the grain is stored to sell the same at public auction for the account of said owner by giving ten days' notice by advertisement in a daily newspaper, if there be such published in the city or town where such ware- house is located. Id. sec. 5386. Tainperiua: with stored grain — Private business — Drying — Cleaning — Moving : It shall not bo lawful foi' any public warehouseman to mix NEBRASKA. 521 any grain of different grades together or to select diffei-ent (lualities of the same grade for the purpose of storing or deU\-- ering the same, nor shall he attempt to deliver grain of one grade for another, or in any way tamper with grain while in his possession or custody, with a view of securing any profit to him- self or any other person, and in no case even of grain stored in a separate bin, shall he be permitted to mix grain ..f different grades together while in store. He may, however, on request of the owner of any grain stored in a private bin, be permitted to dry, clean, oi- otherwise improve the condition or value of any such lot of grain, but in such case it shall only be delivered as such separate lot or as the grade it was originally when re- ceived by him, without reference to the grade it may be as im- proved by such process of drying or cleaning. Nothing in this section, however, shall prevent any warehouseman from mov- ing grain while within his warehouse for its preservation or safe- keeping. Id. sec. 5387. Examiuatiou of grain and scales— Incorrect scales : All persons owning property or who may be interested in the same in any public warehouse and all duly authorized inspectors of such property shall at all times during ordinary business hours be at full liberty to examine any and all j^roperty stored in any public Avarehouse in this state, and all proper facilities shall be extended to such person by the warehouseman, his agent and his servants for an examination, and all jDarts of public ware- houses shall be free for the inspection and examination of any person interested in property stored therein, or of any author- ized inspector of such property; and all scales used for the weighing of property in public warehouses shall l)e subject to examination and test by any duly authorized inspector or sealer of weights and measures at any time when required by any person or persons, agents or agents, whose property has been or is to be weighed on such scales, the expense of such tests by an inspector or sealer to be paid by the warehouse proprietor if the scales are found incorrect, but not otherwise. Any ware- houseman who may be guilty of continuing to use scales found to be in an imperfect or incorrect condition, by such examina- tion and test, until the same shall have been pronounced cor- 522 NEBRASKA LAWS. ret't and properly sealed, sliall be liable to be proceeded against as hereinafter provided. Id. sec. 5388. Grain must be inspected : In all places where there is legally appointed an inspector of grain, no proprietor or manager of a public warehouse of Class A and B shall be permitted to receive any gi'ain and mix the same with the grain of other owners in the storage thereof until the same shall have been inspected and graded by said inspector. Id. sec. 5389. Bogus inspector — Penalty : Any person who shall assume to act as an inspector of grain who has not been legally appointed and sworn, shall be held to be an imposter, and shall be punished by a tine of not less than one hundred (100) dollars nor more than two hundred (200) dollars for each and eveiy attempt to so inspect grain to be re- covered before a justice of the peace. Id. sec. 5390. Misconduct of inspector — Influencing— Penalty : Any duly authorized inspector of grain who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect or grade any grain improperly, or who shall accept any money or other consideration, directly or indirectly, for any neglect of duty as such inspector of grain and any person who shall im- properly influence any inspector of grain in the performance of his duties as such inspector, shall be deemed guilty of a misde- meanor and on conviction shall be fined in a sum not less than one hundred dollars (SlOO) nor more than one thousand dol- lars ($1,000) in the discretion of the court, or shall be impris- oned in the county jail not less than three nor more than twelve months, or both, in the discretion of the court. Id. sec. 5391. Owner, etc., dissatisfied with inspection — His rights— De- livery on track : In case any owner or consignee of grain shall be dissatisfied with the inspection of any lot of grain, or shall from any cause desire to receive his property without its passing into store, he shall be at liberty to have the same withheld from going into any l)ublic warehouse (whether the property may have been pre- NEBRASKA. 523 viously consigned to such warehouse or not), by giving notice to the person or corporation in whose possession it may be at the time of giving such notice, and such grain shall be withheld from going into store and be delivered to him, subject only to such proper charges as may be a lien upon it prior to such notice. The grain, if in railroad cars to be removed therefrom by such owner or consignee within twenty-four hours after such notice has been given to the railroad company having it in possession, provided, such railroad company place the same in a proper and convenient place for unloading, and any person or corporation refusing to allow such owner or consignee to so receive his grain or other property in carloads shall be deemed guilty of conver- sion and shall be liable to pay such owner or consignee, double the value of the property so converted. Notice that such grain or other property is not to be delivered into store may also be given to the proprietor or manager of any warehouse into which it would otherwise have been delivered, and if after such notice it be taken into store in such warehouse, the proprietor or man- ager of such warehouse shall be liable to the owner for double its market value. Id. sec. 5392. Combiiiatiou : It shall be unlawful for any proprietor, lessee or manager of any public warehouse to enter into any contract, agreement, understanding or combination with any railroad company or other corporation, or with any individual or individuals, by which the property of any person is to be delivered to any pub- lic warehouse for storage or any other purpose contrary to the direction of the owner, his agent or consignee. Any violation of this section shall subject the offender to be proceeded against as provided in the next section of this act. Id. sec. 5393. Suits — Against warehouseman : If any warehouseman shall be deemed guilty of a violation of any of the provisions of this act it shall be lawful for any per- son injured by such violation to bring suit in any court of com- petent jurisdiction upon the bond of such warehouseman in the name of the people of the state of Nebraska to the u.'^e of such person. In all criminal prosecutions against a wanOiousonian 524 NEBRASKA LAWS. for the violation of any of the provisions of this act it shall be the duty of the prosecuting attorney of the county in which said prosecution is brought to prosecute the same to a final issue, in the name of and on behalf of the people of the state of Nebraska. Id. sec. 5394. ^Varehouse receipts negotiable : Warehouse receipts for property stored in any class of public warehouses as herein described shall be transferable by the in- dorsement of the party to whose order such receipt may be issued, and such indorsement shall be deemed a valid transfer of the property represented by such receipt, and may be made either in blank or to the order of another. All warehouse re- ceipts for property stored in public warehouses of Class C shall distinctly state on their face the brand or distinguishing marks upon such property. Id. sec. 5395. False receipts — Fraudulent removal — Penalty : Any warehouseman of any public warehouse who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt, or who shall be guilty of issuing any warehouse receipt in any respect fraudu- lent in its character, either as to its date or the quantity, qual- ity or inspected grade of such property, or who shall remove any property from store except to preserve it from fire or other sudden danger, without the return and cancellation of any and all outstanding receipts that may have been issued to represent such property, shall, when convicted thereof, be deemed guilty of a crime, and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the penitentiary for not less than one and not more than ten years. Id. sec. 5396. Common-law remedy saved : Nothing in this act shall deprive any person of any common- law remedy now existing. Id. sec. 5397. Printed copy of act posted : All proprietors and managers of public warehouses shall keep posted up at all times in a conspicuous place in their business NERHASKA. o2o offic^es and in each of their warehouses a printed copy of this act. Id. sec. 5398. Duty of bojird of transportation— Eiiforceiiiont of act : It shall be the duty oi the board of transportation to see that the provisions of this act are duly enforced. Id. sec. 5399. Defining additional duties of the board of transportation in counties witli public warehouses — Additional ))('nal sum of five thousand dollars ($5,000) with like conditions as is provided in the case of other inspectors of grain, which said bond shall be subject to the approval of the said board of transi)ortation. It is further provided that the salaries of said conunittee on appeals shall be fixed by the said board of transportation and be paid from the inspection fund, or by the party taking the appeal, under such rules as the board of transportation shall prescribe, and all necessary expenses incurred in carrying out the provisions of this act, except as herein otherwise provided, shall be paid out of the fund collected for the inspection .-^ernce upon the order of the said board of transportation on the state 34 530 NEBRASKA LAWS. treasurer : Provided, that no person shall be appointed to serve on the committee of appeal who is a purchaser of or a receiver of grain or other articles to be passed upon by said committee. Id. sec. 5413. Registered for collection — Inspection fees : No grain shall be delivered from store from any public ware- house of Class A for which or representing which warehouse receipts shall have been issued, except upon the return of such receipts stamped oi- otherwise plainly marked by the ware- house registrar with the words 'Registered for collection," and the date thereof, and said board of transportation shall have power to fix the rates of charges for the insjDection of grain both into and out of the public warehouse, which charges shall be a lien upon all grain so inspected, as may be collected of the owner, receiver or shipper of such grain, in sucli manner as the said board of transportation may prescribe. Id. sec. 5414. Deposit of inspection fund : All money collected for the inspection fund shall be depos- ited with the state treasurer, who shall be liable under his official bond for the proper care of same, and no payment shall be made therefrom except by order of the said board of transportation as they may prescribe. Id. sec. 5415. Weiglimaster, appointment of assistants : That there shall be appointed by the state board of trans- portation ill all cities where there is state inspection of grain, a state weighmaster, and such assistants as shall be necessary. Id. sec. 5416. Duties : Said state weighmaster and assistants shall, at the place aforesaid, supervise and have exclusive control of the weighing of grain and other property which may be subject to inspection, and the inspection of scales and the action and certificate of such weighmaster and assistants in the discharge of their afore- said duties shall be conclusive upon all parties in interest. Id. sec. 5417, NEliltASKA. ,531 Fix fees : The said board of transportation shall fix the fees to be paid for the weighing of grain or other pr<)p(>rty, which fees shall be paid equally by all parties intereste(l in tlic i)urcli;ise and sah; of the property weighed, on scales inspected and tested, hi sec. 5418. Weighinaster—Qualintjitions-lJoiKl— Compensation : Said state weighniaster and assistants shall not be a member of any board of trade or association of like character. They shall give bonds in the smn of five thousand (5,000) dollars con- ditioned for the faithful discharge of their duties, and shall re- ceive such compensation as the board of railroad and warehouse commissioners shall determine. Id. sec. 5419. May adopt rules : The said board of transportation shall adopt vsuch rules and regulations for the w^eighing of grain or other property as they shall deem proper. Id. sec. 5420. Neglect of duty — Penalty : In case any person, warehouseman or lailroad corporation ov any of their agents or employees shall refuse or prevent the afore- said state weighniaster or either of his assistants from having ac- cess to their scales, in the regular performance of their duties, in super\'ising the weighing of any grain or other j)roperty in ac- cordance with the tenor and meaning of this act, they shall for- feit the sum of one hundred dOO) dollars for each and every offense, to be recovered in an action of debt before any justice of the peace in the name of the people of the state of Nebraska, such penalty or forfeiture to be paid to the county in wliirh th»> suit is brought, and shall also be required to pay all cost of prosecution. Kepeal : All existing acts inconsistent ^vith this act are hereby re- pealed. Id. sec. 5421. Fraudulent appropriation of merchandise hy auent : Every factor or agent who shall deposit any merchandise 532 NEBRASKA LAWS. intrusted or consigned to him, or any document so possessed or intrusted aforesaid, as a securit}^ for any money borrowed, or negotiable instrument received by such factor or agent, and shall apply or dispose of the same to his own use, contrary to good faith, and with intent to defraud the true owner, and every factor or agent who shall sell any merchandise or other property intrusted or consigned to him, in the like manner, and with the like fraudulent intent, and every other person who shall knowingly connive with, or aid, or assist any such factor or agent in any such fraudulent deposit or sale, shall be impris- oned in the penitentiary not exceeding three years nor less than one year. Id. sec. 7693. Fr.aii(ls by consignors : If the owner of any merchandise, or other person in whose name any merchandise shall be shipped or delivered to the keeper of any warehouse, or other factor or agent, to be shipped, shall, after the advancement to him or them of any money, or the giving to him or them of any negotiable security, by the consignee or consignees of such merchandise, without the con- sent of such consignee or consignees being therefor first had and obtained, make any disposition of such merchandise, different from, and inconsistent with that agreed upon between such owner or other person aforesaid, and such consignee or con- signees, at the time of said money being so advanced, or said negotiable security being so given, with the intent to defraud or injure such consignee or consignees, said owner or other person aforesaid, and all other persons conniving with him or them for the purpose of deceiving, defrauding, or injuring said consignees shall be imprisoned in the penitentiary not more than three years nor less than one year: Provided, however, That no person shall be subject to prosecution under this section, who shall, before disposing of such merchandise, pay, or offer to pay to the consignee or consignees the full amount of any advance- ment made thereon. Id. sec. 7694. False bills of ladini? and receipts : If any person shall execute and deUver, or shall cause, or pro- NEHIi.vsKA. ;">8;>> cure to be executocl and delivered to any person, any false or fictitious bill of lading, receipt, schedule, invoice, or other writ- ten instrument, to the purport or effect that any goods, wares, merchandise, hve stock or other property usually trans|)ort( 1 by carriers, had been or were held, delivered, received, jjlaced, or deposited on board of any steamboat, or water craft, navi- gating the waters in or bordering upon the state of Nebraska, or at the freight ofhce, depot, station, or other place designated or used by any railroad company or other connnon carrier, for th(> reception of any such property so usually transported b}- carriers, when such goods, wares, merchandise, live stock, or other property were not held, or had not in fact and good faith been deHvered, received, or deposited on !)oartl of such steam- boat, or other water craft, or at such freight office, depot, sta- tion, or other place so designated or used by any common carrier for the reception of such property, when such bill of lading, re- ceipt, invoice, schedule, or other written instrument was matle and delivered, according to the purport and effect of such bill of lading, receipt, invoice, schedule, or other written instrument with intent to deceive, defraud, or injure any person or corjio- ration, or if any person shall indorse, assign, transfer, or put off or attempt to indorse, assign, transfer, or put off any such false or fictitious bill of lading, receipt, invoice, schedule, or other written instrument, knowing the same to be false, fraudulent, or fictitious, the person offending shall be imprisoned in the penitentiary not exceeding four years nor less than one year. Id. sec. 7695. Same : If any person shall execute and deliver, or shall cause or pro- cure to be executed and delivered to any other jjerson, any false and fictitious warehouse receipt, acknowledgment, or other instrument of writing, to the purport and effect that such person, or any other person or persons, copartnership, firm, body politic or corporate, which he or she represents, or pretends to represent, held or had received in store, or held or had receiveil in any warehouse, or in any other place, or held or had received into possession, custody, or control, of such person or persons, 534 NEBRASKA LAWS. copartnership, Hriii, or body politic, any goods, or wares, or merchandise, when such goods, wares, or merchandise were not held and had not been received in good faith, according to the purport and effect of such warehouse receipt, acknowledg- ment or instrument of writing, with iiilciit to defraud, deceive, or injure any person whomsoever, or if any person shall in- dorse, assign, transfer oi- deliver, or shall attempt to indorse, transfer and deliver, to any other person any such false and fictitious warehouse receipt, acknowledgment, or instrument of writing, knowing the same to be false, fraudulent, or fictitious, such person shall be punished by imprisonment in the peniten- tiary not more than three years nor less than one year. Id. sec. 7696. Frauds of parties haviiij? possession of merchandise by virtue of warehouse receipts, etc. : If any person or persons, or the agent of any person or per- sons, having in his or their possession, custody, or control, any goods, wares or merchandise, by virtue of any genuine instru- ment of writing, of the purport or effect of any such instrument of writing as is mentioned in either of the last two preceding sections, shall without authority, and with intent to injure or defraud the rightful owner thereof, sell, assign, transfer, or incumber such goods, wares or merchandise, or any part thereof, to the value of fifty dollars or upward, or shall in any way con- vert the same to his own use, or if the consignor or consignors, or the agent of such consignor or consignors of any goods, wares or merchandise, not being the absolute owner thereof, and not having authority to stop, countermand, or change the consign- ment thereof, or not having authority to sell or incumber the same during the transit, shall, after the shipment thereof on board any water-craft, or, after the deposit thereof in or upon any vehicle for land carriage, in any way stop, countermand, or change the consignment thereof, or shall sell, dispose of, or incumber such goods, wares or merchandise, during their transit, or after their delivery, or shall in any way convert the same, or any part thereof, to his or her own use, to the value of fifty dol- lars or upward, so that the rightful owner thereof shall sustain a loss thereby to the value of fifty dollars or upward, the person NEBRASKA. 58.0 SO offending, with inleut as aforesaid, sliall he iini)risonod in tlu^ penitentiary for a term nut loss than one noi' more tlian four years. Id. sec. 7697. Note. For laws iirovidinL; penalties for sctiin*,' firn to or Imrglarizinij dwellings, warehouses, ctr., see Criraiual Code, ch. 11, sec. 48 et aeq. 536 NEBRASKA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Delivery to true owner always good defense for the bailee — Conversion. A bailee is bound to restore the property to his bailor, or ac- count for it, but he has in legal contemplation accounted for it when he has delivered it to one whose demand and right of pos- session are paramount to that of his bailor. He may, if he chooses, yield possession to a stranger claiming the property, by taking the risk of establishing the title thus recognized. A refusal to deliver to the rightful owner constitutes a conver- sion of the property. Shellenberg v. Fremont, E. & M. V . R. Co., 45 Neb. 487. Same — Special contract. Where a bailee agreed to keep property intrusted to him in a vault, he was bound under the terms of his contract to so keep the property, although, under the general principles of law gov- erning his duty as bailee, he would not have been bound to exer- cise so high a degree of care. Butler v. Greene, 49 Neb. 280. Sa^ne — Involuntary bailee — Entitled to compenmtioji. An involuntary bailee of goods is entitled to be paid a rea- sonable compensation for the storage and care until they are demanded of him. This case distinguished from Moline, Mil- burn & Stoddard Co. v. Neville, 38 Neb. 433, where judgment was given for plaintiff who had declared on an express contract, which judgment was reversed on appeal for the reason that the verdict, finding that an express contract existed, was unsus- tained by the evidence. Moline, Milburn & Stoddard Co. v. Neville, 52 Neb. 574. B. Ordinary care. A bailee is required to exercise such care as a person of rea- sonable prudence would exercise under similar circumstances. Butler V. Greene, 49 Neb. 280. NEBltASIvA. 53 iJiH Conversion — Failure to deliver on demand. A bailee in possession of proiKTty bokjnginp; to another is under duty to surrender it upon demand n\n)n the payment ol' just charges. A sufficient excuse woukl exist if there liad been a prior lawful seizure of the property under judicial process issued against the owner. A refusal to surrender without a valid excuse constitutes a conversion for which the bailee is liable. Wood Harvester Co. v. Dohri/, 59 Nel). 590. H. Lien — Possession essential — Rule stated. It is a fundamental rule, that exclusive possession of the claimant whether a factor, broker or warehouseman, is essen- tial to the existence, or continuance, of a lien in favor of one; who holds property in subordination to the will or control of another. Moline, M. & S. Co. v. Wood, M. & R. M. Co., 49 Neb. 869. Same — No lien attaches if contrary to terms of contract. Where a defendant warehouseman contracted to receive all of the goods consigned to it b}- the plaintiff, to store the same in its warehouse, and " to reship any of said goods or parts of same," on the order of the plaintiff, or his agents, it was held that this provision negatived any lien of the warehousQmtui for storage charges. This condition of the contract being inter- posed as preserving to tlie ])Iaintiff his right, at pleasure, to sell and deliver the goods consigned to the defendant, and as imposing upon defendant a corresponding duty to yield posses- sion thereof upon plaintiff's order, relying ui)on the personal credit of the latter for the amount of his storage charges. Moline, M. & 8. Co. V. Wood. M. & R. M. Co., 49 Neb. 869. K. Execution — Cannot issue against bailee. Property held by a bailee as such cannot be lawfully attached in an execution issued against him. McClelland el ol. y. Smu/- gin, 35 Neb. 536. Warehouse receipt — Negotiation after withdrawal of part of the deposited property. The plaintiff, a warehouseman, had issued a receipt for pro|> 538 NEBRASKA DECISIONS. erty stored in his warehouse to the depositor and owner. The owner of the property withdrew a part thereof from tlie ware- house and subsequently assigned the receipt for the full amount to a purchaser for value and without notice that part of the property had been withdrawn. The purchaser presented the receipt to plaintiff who delivered all the original property re- maining and pays to such purchaser the value of the property previously withdrawn. In an action against the former owner held that plaintiff was entitled to recover the amount paid the purchaser. Michel v. Ware, 3 Neb. 229. Same — Same — Qualified indorsement — Effect. An indorsement of a warehouse receipt "without guarantee" will not release the assignor of the implied warranty governing in all sales of property, that the subject-matter of the contract is in esse at the time it is made. Id. Same — Delivery without return of receipt — Conversion — Re- ceipt need not be in any particular form. The defendant, a warehouseman, received and stored corn and issued therefor a receipt, as follows: "Received in store for account of B. & W., 3,000 sacks of corn." Subsequently, and without the knowledge of the defendant, B. & W. assigned the receipt to the plaintiff, as security for a pre-existing debt. The defendant deUvered to B. & W. the corn represented by this receipt, and did not procure the return of the receipt. Held, that, on the above state of facts, the defendant warehouseman was Hable to the plaintiff for the value of the corn. Further held that the contention that the receipt issued was not a formal warehouse receipt which did not provide in terms that it might be assigned, could not be sustained. Harris v. Brod- ^2/, 2 Dill. 284. Same — Who bona fide holder, a question foz the jury. Whether or not a person who acquires a warehouse receipt by assignment is a bona fide holder is one for the determination of the jury. Michel v. Ware, 3 Neb. 229. NKERASKA. Oiii) R. Bill of lading — Indorsement — Effect. Bills of lading are symbols of property, and when properly indorsed operate as a delivery of the property itself, investing the indorsees with a constructive custody which serves all the purposes of an actual possession, and so continues until there is a valid and complete delivery of the property, under and in pursuance of the bill of lading, to the persons entitled to receive the same. Union Pacific Ry. Co. v. Johnson et ai, 45 Neb. 57. 540 KKVADA DECISIO-VS. CHAPTER XXVIII. NEVADA. Note. It seems that there are in Nevada no statutes in force pertaining to warehousemen as such. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Presumption if goods are lost — Conversion. When a person is intrusted with the care and custody of goods, it is his duty to return them at the end of the b;iihnent, or ac- count for their loss or show that it happened without legal neg- ligence on his part. If he fails to do either the presumption is that he has converted them, or that they have been lost through his negligence, and he is responsible for them. Dolan v. Clark 23 Nev. 203. B. Same — Ordinary care — Gross negligence. This is equally true whether by the nature of the bailment, the bailee is bound to exercise ordinary care and diligence or is hable only for gross neglect. Id. N. Same — Loss of goods — Burden of proof. The burden of proving that they have been lost without his fault, being upon him, it is not sufficient for him to simply pro- duce evidence to that effect. He must estal^lish the fact to the satisfaction of the court. Id. NEW HAMPSHIRE. 641 CHAPTER XXIX. NEW HAMPSHIRE. LAWS PERTAINING TO WAREHOUSEMEN. Bailee converting to liis own nse — Larceny : If any person to whom any money, goods, or property which may be the subject of larceny shall have been delivered or in- trusted for keeping, or carriage, or use, or for manufacture, or work thereon, shall fraudulently dispose of or convert to his own use the same or any part thereof, or shall secrete the sanu; or any part thereof, with intent so fraudulently to dispose of or convert to his own use, he shall be deemed guilty of larceny thereof, and shall be punished as for the larceny of goods of the same value. Sec. 11, ch. 275, P. S. 1901. Note. It seems that, there are, in New Hampshire, no statutes pertain- ing to warehousemen, as such. 542 KEW hampshikp: decisions. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — iS'a/e by bailee without aiitlwritij — Bailor protected. If a bailee sell property without authority, a purchaser, al- though buying in good faith, and without notice, acquires no title, and the owner may recover his property or its value from any one in possession. Johnson v. Willey, 46 N. H. 75; Sanborn V. Column, 6 N. H. U]Lovejoy v. Jones, 30 N. H. l^^; Sargent v. Gile, 8 N. H. 325. B. Ordinary negligence. A bailee for hire is answerable for ordinary negligence. Shel- den V. Robinson, 7 N. H. 157 ; Smith v. Nashua & Lowell R. R., 27 N. H. 86. H. Lien — Waiver of — Possession. The right of hen is to be deemed to be waived when the party enters into a special agreement inconsistent with the existence of the lien, or from whicli a waiver of it may be fairly inferred. Possession is not only essential to the creation, but also to the continuance of a lien; when the party voluntarily parts with the possession of the property upon which the hen has attached, he is devested of the lien. Pickett v. Bullock, 52 N. H. 354. K. Attachment against bailed property. Where property has been bailed for hire, for a specific time, a creditor of the bailor cannot attach the pro])erty and take it from the bailee, during the term of the bailment. Where such attachment was made, and the property I'emoved by the ofhcer, held that the bailee was, notwithstanding, liable to the bailor for rent. Hartford v. Jackson, 11 N. H. 145. NEW JERSEY. 643 CHAPTER XXX. NEW JERSEY. LAWS PERTAINING TO WAREHOUSEMEN. n Act to prevent the issue of false receipts and to punish fraudulent transfers of property by warehousemen, wharfingers and others, and to provide for the transfer of merchandise, re- ceipts and other vouchers of indorsement. Approved March 11, 1881. Warehouseman not to issue receipt, etc. — Unless goods, etc., shall be in store and under his control : That no warehouseman, wharfinger, public or private in- spector, or custodian of property, or other person or corpora- tion, shall issue any receipt, acceptance of an order, or other voucher, for or upon wares, merchandise, provisions, grain, flour, or other produce or commodity, to any person or persons, or corporation, purporting to be the owner or owners thereof, or entitled or claiming to receive the same, unless such goods, wares, merchandise, provisions, grain, flour or other commodity shall have been actually received into the store or upon the premises of such warehouseman, wharfinger, inspector, custo- dian or other person, or corporation, as stated therein, and shall be in the store or upon the premises as aforesaid, and under his or its control at the time of issuing such receipt, acceptance or voucher. P. L. 1881, p. 100 sec. 1. Not to issue receipt, etc. — As security for indebtedness, unless goods, etc., shall be in store and under his control : That no warehouseman, wharfinger, custodian or other per- son or corporation shall issue, or cause to be issued, any receipt or other voucher upon any goods, wares, merchandise, provi- sions, grain, flour or other produce or commodity, to any per- son or persons, or corporation, as security for any money loMned 544 NEW JERSEY LAWS. or other indebtedness, unless such goods, wares, merchandise, provisions, grain, flour or other produce or commodity shall be at the time of issuing such receipt of other voucher in the custody of such warehouseman, wharfinger or other person or corporation, and shall be in store or upon the prt^mises and under his or its control at the time of issuing such receipt or other voucher as aforesaid. Id. sec. 2. Wheu not to issue second or duplicate receipt, etc. : That no warehouseman, wharfinger, inspector, custodian or other person or corporation, shall issue any second or duplicate receipt, acceptance or other voucher, for or upon any goods, wares, merchandise, provisions, grain, flour or other produce or commodity while any former receipt, acceptance or voucher, for or upon any such wares, merchandise, provisions, grain, flour or other produce or commodity as aforesaid, or any part thereof, shall be outstanding and uncancelled without stamp- ing or writing in ink across the face of the same "duplicate." Id. sec. 3. Not to sell or remove goods, etc., for which receipt has been given, without consent of person liolding receipt : That no warehouseman, wharfinger, custodian or other per- son or corporation, shall sell or incumber, ship, transfer or in any manner remove beyond his immediate control any goods, wares, merchandise, provisions, grain, flour or other produce or commodity, for which a receipt shall have been given by him as aforesaid, whether received for storing, shipping, grinding, manufacturing or other purposes, without the written consent of the person or persons holding such receipt, except in case of a notice in writing served upon the person holding such receipt, demanding removal of the same, in which case the same shall be removed within twenty days after the service of such notice. Id. sec. 4. Master of vessel, etc., not to give bill of lading, etc., un- less goods have actually been shipped : That no master, owner or agent of any vessel, or boat of any description, or officer or agent of any railroad company, or NEW JERSEY. 54,-, other person, shall sign or give any bill of hiding, receipt or other voucher or document, for any merchandise (jr property, from which it shall appear that such merchandise or projK-rty has been shipped on board any vessel, boat or railroad cai- un- less the same shall have been actually shi[)ped, and put on board such vessel, boat or car, and shall be at the time actually on board or delivered to such vessel, boat, or car, to be carried and conveyed as expressed in such bill of lading or other voucher or document. Id. sec. 5. How warehouse receipts, etc., may be transferred : That all warehouse receipts or other vouchers given for any goods, wares, merchandise, provisions, grain, flour or other produce or commodity stored or deposited with any ware- houseman, wharfinger, corporation or other person or per- sons, may be transferred by indorsement or delivery thereof, and any person to whom the same may be transferred shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified without notice of such transfer, or an actual delivery, or change of possession of the goods, wares, merchandise, grain, flour or other produce or conmiodity named therein, so far as to give validity to any pledge, security, lien or transfer made or created by any person or persons, cor- poration or corporations; but no property shall be delivered except on surrender and cancellation of said original receipt or the indorsement of such delivery thereon, in case of partial de- livery ; all warehouse receipts, however, which shall have the words "not negotiable" -plainly written, printed or stamped on the face thereof, shall be exempt from the provisions of this section: Provided, however, that the person or persons, corpo- ration or corporations, to w^hom such receipts or vouchers are indorsed and delivered, shall be subject to the same conditions as the person or persons, corporation or corporations, to whom the same were originally delivered. Id. sec. 6. Penalty for the violation of this act : That any warehouseman, wharfinger, inspector, custodian or other person or corporation who shall violate any of the fore- going provisions of this act shall be deemed guilty of a misde- 35 546 NEW JERSEY LAWS. ineanor, and, upon indictment and conviction, shall be fined in any sum not exceeding one thousand dollars or imprisonment not exceeding one year, or by both such fine and imprisonment ; and all and every person or persons, corporation or corpora- tions, aggrieved by the violation of any of the provisions of this act, may have and maintain an action at law against the per- son or persons, corporation or corporations, violating any of the provisions of this act, to recover all damages, immediate or consequential, which he or they may have sustained by rea- son of any such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted as hereinbefore mentioned or not. Id. sec. 7. Act not to apply to property removed by operation of law : That so much of this act as forbids the delivery of property, except on surrender and cancellation of the original receipt, or the indorsement of such delivery thereon, in case of partial de- livery, shall not apply to propert)^ removed by operation of law. Id. sec. 8. An act concerning warehousekeepers. Approved April 5, 1886. Storage, cartage, etc., to be the first lien on goods left for storage : That the proprietor or proprietors of any warehouse for the storage of goods and chattels shall have the first lien on all goods and chattels left with them for storage for the amount of the bill due the proprietor of any such storage warehouse for such storage, or for any charges for carting or insurance con- tracted by the owner to be paid to him therefor, and shall have the right, without the process of law, to retain the same until the amount of indebtedness is discharged. P. L. 1886, p. 181, sec. 1. When property may be sold at pnblic sale : That all property held on storage, for which the bill for stor- age or such other charges has not been paid for one year, may, in the whole or in part, be exposed by said proprietor for sale at public auction, upon a notice of said sale being first pub- NK^\■ .JEKSKV. .•■)47 lished for the space of two weeks in some newspaper circulat- ing in the city or township in which such goods are stored, and also after five days' notice of said sale, set up in five of the most public places in said city or townshij), and after mailing, if their addresses can be ascertained, to the owners of said goods, or to any one known by said proprietor to claim or to ai)pcar to have any mortgage or lien on or bill of sale for such goods, notice of sale two weeks before the tlay of sale; and the pro- ceeds of said sale shall be applied to the payment of such lien and the expenses of such sale; and no more of such goods shall be sold, if they are of a nature as to be easily separated or divided, than shall be necessary, as near as may be, to pay such lien and expenses, and the balance, if any, shall be paid over to the owner of such goods when the goods shall be taken away or settled for in full. Id. sec. 2. When warehouseman not liable for taxed costs. Approved March 27, 1893 : That whenever a warehouseman at the time any goods or chattels are placed on storage with him shall obtain from the party placing such goods or chattels on storage a statement in writing that such goods are the sole and absolute property of the bailor aforesaid, and in any action of replevin thereafter brought in any court for the recovery of such goods or chattels by any person other than the bailor aforesaid, no costs of suit shall be adjudged, taxed or recovered against said warehouse- keeper in any action aforesaid, whenever judgment is obtained against the defendant in such action. P. L. 1893, p. 451, sec. 1. NEW JERSEY DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — In ter -pleader . A bailee is iioi entitled to call upon a party to interplead as to the right to the property, on the ground that, as to such party, he is a stakeholder or trustee, when at the time of the bailment, the party was unknown and had no connection with the transaction, and if his claim respecting the property is true, the bailee's possession of the property, if not tortious at its inception, became so after demand and refusal to deliver. First Nat. Bank v. Bininger et al, 11 C. E. Gr. 345. Same — Same — Equity jiirisdiction . In cases of adverse independent titles, the party holding the property must defend himself as well as he can at law, and he is not entitled to the assistance of a court of equity, for that would be to assume the right to try merely legal titles, upon a controversy between different parties, where there is no privity of contract between them and the third person who calls for an interpleader. Id. Conversion by bailee— May set up amount of claim secured by lien. A bailee, converting goods on which he has bestowed labor and acquired a lien, may, in an action of trover brought by the owner, set up his lien-claim in reduction of damages. Long- street V. Phile, 10 Vr. 63. H. Liens — At common law and statutory. It is one of the characteristics of common-law liens, as dis- tinguishing from liens created by contract or statute, that the former as a general rule attach to the property itself, without any reference to ownership, and override all other rights in the property, while the latter are subordinate to all prior exist- ing rights therein. Sullivan v. Clijion, 26 Vr. 324. u. Attempt to compel service by injunction— Analoqy between one conducting stockyard and a ivarchouseman—Not subject to public control — Equity jurisdiction . Complainant, a railioad corporation, attempted to conij)('l tlio defendant, a corporation created for the purpose of carryin^r „„ a stockyard business, to receive live stock offered to it under certain conditions, on the ground that as it was engaged in a business of a public nature it was required to receive live; stock from any one offering the same. The court held that as de- fendant's business was one of recent origin it was difficult to find its counterpart in any of the established instruments of commerce, but that it bore a closer resemblance to the business carried on by warehousemen than to any other business known to the law. Further that in order to entitle complainant to the relief asked it must show its right thereto by virtue oi a con- tract, a usage or a statute; that in this case complainant failed to prove any such contract, usage oi- law and that an equity court was therefore without jurisdiction. The case of Muiiu V. Illinois, 94 U. S. 113, discussed and distinguished. TIkmv there was a duty owing under a statute, although it iia.i ixrn enacted subsequent to the erection of the warehouse and es- tablishment of the business. The business was such, how- ever, as was at all times subject to legislative control. Dela- ware, L. & W. R. R. Co. V. Central Stock Yard d- Transit Co., 18 Stew. 50, aff'd 1 Dick. 2S0. o50 NEW MEXICO DECISIONS. CHAPTER XXXI. NEW MEXICO. Note. It seems that there are, in New Mexico, no laws pertaining to warehousemen, as such. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Ordinary care. A bailee for hire is bound to take as much care of property intrusted with him as a prudent man, mindful of his own in- terests, would take of his own property of a similar kind. Waldo V. Beckwith, 1 N. Mex. 97. R. Bill of lading — Exemption, effect of. Where the bill of lading provided that a carrier should not be liable for losses resulting from unavoidable accident, it was Jield such an exemption would not limit or restrict the respon- sibility or liability imposed by law upon common carriers, Seligman & Bro. v. Amijo, 1 N. Mex. 459. NEW YORK. 551 CHAPTER XXXIL NEW YORK. LAWS PERTAINING TO WAREHOUSEMEN. Warehouseman to hold possession subject to order of court : Whenever in any action or proceeding commenced, or about to be commenced, there shall be brought into question the title to or right of possession of any goods, wares or merchandise? on storage in any warehouse, the warehouse company, or per- son or persons having the possession thereof as such warehouse- man shall, after service upon it, them or him, of a notice setting forth the alleged claim of the plaintiff, and the name of the court in which the action or proceeding is pending, or about to be commenced, hold such goods, wares or merchandise sub- ject to the order of the court in which such action or proceeding is about to be or may be brought, and sliall deliver the same to the person or persons named in any order, judgment or decree made by such court for the delivery thereof; after the payment to such warehouseman for all lawful charges for the care and custody of such goods, wares or merchandise; but no order, judgment of decree for the delivery of such goods, wares or merchandise, shall be made except upon proof to the satisfac- tion of the court that the person named in said order is tlie owner or entitled to the possession thereof, after service of a notice as hereinbefore specified, (upon the) warehouse com- pany or the persons or person having possession of any such goods, wares or merchandise, and the court or any judge thereof may direct the attendance of such warehouse comjiany, persons or person, its, their or his agents, servants or employees, and the production of all papers, books or documents pertaining to the property in question for the purpose of examination as to the title of such goods, wares and merchandise. Laws, 1S95. ch. 633. 552 NEW YORK LAWS. Section 2 of the above law held to be uiicoustitutioual : The second section of the above provides that : ' ' No ware- house company or person or persons lawfully engaged in the business of storing goods, wares and merchandise for hire, shall be made a party defendant in any action concerning the title to or possession of any goods, wares or merchandise, held on storage by such warehouse company, persons or person, unless such warehouse company, persons or person, so holding the same on storage, shall claim some right, title or interest of, in or to the same, other than a lien for the lawful charges growing out of the care and custody thereof." In the trial of an action of replevin for the recovery of the plaintiff's goods, the plain- tiff alleged that she had made a tender of all lawful charges, the complaint was dismissed on motion of the defendant on the ground that the above section applied and that a warehouse- man could not be made a defendant except where his claim was for come other charge than on a lien for storage. It was held on appeal that the dismissal of the complaint was error, that the facts made by the pleadings should have been tried in the usual manner before a jury and that section two of the Laws of 1895, ch. 633, as given above, was unconstitutional and void. It would give to warehousemen an opportunity to make whatever charges they might wish and would protect them from being made defendants in an action for the recovery of such goods although such charges might be excessive and ex- tortionate. Therefore, the case was reversed and sent back for trial. Cottew v. Dvbe, 32 Misc. 632; Follett Wool Co. v. Albany Terminal Warehouse Co., 61 App. Div. 296. Rate of Interest on loans or warehonse receipts : Upon advances of money repayable on demand to an amount not less than five thousand dollars made upon warehouse re- ceipts, bills of lading, certificates of stock, certificates of deposit, bills of exchange, bonds or other negotiable instruments, pledged as collateral security for such repayment, any bank or indi- vidual banker may receive or contract to receive and collect as compensation for making such advances any sum to be agreed upon in writing by the parties to such transaction. Laws, 1900, ch. 310, sec. 56. NEW VUKK. 553 Warehouseman's liens : A warehouse compiuiy, warehouseman or other person hiw- fully engaged m the business of storing goods, wares and mer- chandise for hire has a hen on goods deposited and stored with him for his storage charges, and for moneys advanced by liim for cartage, hibor, weighing and coopering in relation to sucli goods, or other goods belonging to the same owner, and he may detain such goods until his lien is paid. Laws, 1897, art. 6, ch. 418, sec. 73. Enforcement of liens on personal property by sale — Sale of personal property to satisfy a lien : A lien against personal property, otlier than a mortgage on chattels, if in the legal possession of the lienor, may be satis- fied by the public sale of such property according to the pro- visions of this article. Id. sec. 80. Before such sale is held the lienor shall serve a notice upon the owner with due diligence within such county, if such owner can be found when such lien arose, if not, then to the person for whose account the same is then held personally, provided such service can be made with due diligence, within the county where such lien arose, but if such person cannot with due tlili- gence be found within such county, then such notice shall be served by mailing it to him at his last known place of resi- dence, or to his last known post-office address. A like notice shall be served in the same way upon any person who shall have given to the lienor notice of an interest in the property subject to the lien. Such notice shall contain a statement of the fol- lowing facts: First, the nature of the debt or the agreement under which the lien arose, with an itemized statement of tiic claim and the time when due; second, a brief description of the personal property against which the lien exists; third, the esti- mated value of such property; fourth, the amount of such lien at the date of the notice. It shall also require such owner nr person to pay the amount of such lien on or before a day men- tioned therein, not less than ten days from the ser\'ice thereof, and shall state the time when and place where such property will be sold, if such amount is not paid. If the agreement on which the lien is based j^rovides for the continuous care of 554 NEW YORK LAWS. property the lienor is also entitled to receive all sums which maj' accrue under the agreement, subsequent to the notice and prior to payment or a sale of the property ; and the notice shall contain a statement that such additional sum is demanded. Such notice shall be verified by the lienor to the effect that the lien upon such property is valid, that the debt upon which such lien is founded is due, and has not been paid and that the facts stated in such notice are true to the best of his knowledge and belief. Id. sec. 81 (as amended).* Sale to be advertised (as amended) : Each sale of personal property to satisfy a lien thereon shall be at public auction to the highest bidder, and shall be held in the city or town where the lien was acquired. After the time for the payment of the amount of the lien specified in the notice required to be served by the preceding section, notice of such sale, describing the property to be sold, and stating the name of the owner or person for whose account the same is then held and the time and place of such sale, shall be }niblished once a week for two consecutive weeks, in a newspaper published in the town or city where such sale is to be held, and such sale shall be held not less than fifteen days from the first publica- tion; if there be no newspaper published in such town, such notice shall be posted at least ten days before such sale in not less than six conspicuous places therein. Id. sec. 82. Redemption before sale : At any time before such property is so sold the owner thereof may redeem the same by paying to the lienor the amount due on account of the lien and whatever legitimate expenses have been incurred at the time of such payment in serving the notice and advertising the sale as required in this article. Upon mak- ing such payment, the owner of such property is entitled to the possession thereof. Id. sec. 83. *Copj' of printed law as issued V)y Secretary of State. Bill as introduced was amended previous to enactment. Should read: "Before such sale is held the lienor shall serve a notice upon the owner if snch owner can be found, with due diligence within the county where such lien arose." NEW VOJ'Jv. r.r.r. • '•JO Disposition of proceeds : Of the proceeds of such sale, the Henor shall retain an amount sufficient to satisfy his lien and the expenses of advertisement and sale. The balance of such proceeds, if any, shall he held by the lienor subject to the demand of the (nvner, or his as- signee or legal representative, antl a notice that such balance is so held shall be served personally or by mail upon the owner of the property sold. If such balance is not claimed by tin; owner or his assignee or legal representative within thirty days from the day of sale, such balance shall be deposited with the treasurer or chamberlain of the city or village, or the sujjct- visor of the town where such sale is held. Tiicre shall be filed with such deposit the affidavit of the lienor, stating the nam(! and place of residence of the owner of the projjerty s(j1(1, if known, the article sold, the prices obtained therefor, that tlu; notice required by this article was duly served and how served upon such owner, and that such sale was legally and how ad- vertisetl. There shall also be filed therewith a copy of the notice served upon the owner of the property and of the notice of sale published or posted as required by this article. The officer with whom such balance is deposited shall credit the same to the owner of the property, and pay the same to such owner, his assignee or legal representative, on demand and satisfactory evidence of identity. If such balance remains in the posses- sion of such officer for a period of five years, unclaimed by tho. person legally entitled thereto, it shall be transferred to the general funds of the town, village or city, and be applied and used as other moneys belonging to such town, village or city. Id. sec. 84. Remedy not exclusive : The provisions of this article do not preclude any other rem- edy by action or otherwise, now existing, for the enforcement of a lien against personal property, or bar the right to rec()\-er so much of the debt as shall not be paid by the proceeds of the sale of the property. Id. sec. 85. Laws, 1897, ch. 418, art. 7, as amended by Laws, 1899, ch. 369. (Thid law repeals all of ch. 336, Laws, 1879.) 556 NEW YORK LAWS. Elevator charges regulated : The maxiniuiu charge for elevating, receiving, weighing and discharging grain by means of floating and stationary ele- vators and warehouses in this state shall not exceed the fol- lowing rates, namely: For elevating, receiving, weighing and discharging grain, five eighths of one cent a bushel. In the process of handling grain by means of floating and stationary elevators, the lake vessels oi- proi)ellcrs, the ocean vessels or steamships, and canal boats, shall only be required to pay the actual cost of trimming or shoveling to the leg of the elevator when unloading, and trimming cargo when loading. Laws 1888, ch. 581, sec. 1. Violations thereof a misdemeanor — Penalty : Any person or persons violating the provisions of this act shall upon con\'iction thereof be adjudged guilty of a mis- demeanor, and be punished by a fine of not less than two hun- dred and fifty dollars and costs thereof. Id. sec. 2. Damages — How recovered : Any person injured by the violation of the provisions of this act may sue for and recover any damages he may sus- tain against any person or persons violating said provisions. Id. sec. 3. Act how to apply : This act shall not apply to any village, town or city having less than one hundred and thirty thousand population. Id. sec. 4. This act shall take effect inmiodiately. Id. sec. 5. Fees and charges for elevators and warehouses : The maximum charge for elevating, receiving, weighing and discharging grain by means of floating and stationary ele- vators and warehouses in any city having a population of one hundred and thirty thousand or over, shall not exceed five eighths of one cent a bushel. In the process of handling grain by means of floating and stationary elevators, the lake pro- pellers or vessels, the ocean vessels or steamships and canal NEW VUKK. 557 boats shall only be required to pay the actual cost of triiiiinin^ or shoveUng to the leg of the elevator when unloading, and trimming cargo when loading; and in any case the fee charged for the use of a shovel operated by steam or other mechanical power, in connection with any floating or stationary elevator, shall not exceed the sum of one dollar and fifty cents for each thousand bushels elevated. For every violation of any provision of this article, the per- son committing such violation shall forfeit to the people of the state the sum of two hundretl and fifty dollars. A person in- jured by a violation of this section may recover any damages sustained from the person violating the same. This act shall take effect immediately. Laws, 1896, ch. 376, sec. 32, as amended by Laws, 1903, ch. 366. Overcharging, a misdemeanor : A person who charges for elevating, receiving or discharging grain by means of floating or stationary elevators a greater sum than is allowed by law is guilty of a misdemeanor. Laws, 1896, ch. 551, sec. 384c. Above act held to he constitntional : The above act held to be a constitutional exercise of the police power of the state, that the business of elevating grain was one "affected with a pubHc interest" and that therefore the legislature had a right to prescribe the maximum rates which might be charged for storage. People v. Biidd, 117 N. Y. 1, aff' d 143 U. S. 517. (For complete collection of ca.«;es on the above see New York Decisions, page 601.) Demand loans of five thousand dollars and upwards, on collateral, may bear any interest : In any case hereafter in which advances of money, repayable on demand, to an amount not less than five thousand dollars, are made upon warehouse receipts, bills of lading, certificates of stock, certificates of deposit, bills of exchange, bonds or other negotiable instruments pledged as collateral .«?ecurity for such repayment, it shall be lawful to receive or to contract to receive and collect, as compensation for making such advances, any 558 MEW VOKK LAWS. sum to be agreed upon in writing by the parties to such trans- action. Laws, 1882, ch. 237, sec. 1. Section 2 repeals all in- consistent acts. When factor deemed owner : Every factor or other agent, intrusted mth the possession of any bill of lading, custom house permit, or warehousekeeper's receipt for the delivery of any such merchandise, and every such factor or agent not having the documentary evidence of title, who shall be intrusted with the possession of any mer- chandise for the purpose of sale, or as a security for any ad- vances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any con- tract made by such agent with any other person, for the sale or disposition of the whole or any part of such merchandise, for any money advanced, or negotiable instrument or other obhgation in writing, given by such other person upon the faith thereof. Laws, 1830, ch. 179, sec. 3. Merchandise pledged by factor : Every person who shall hereafter accept or take any such merchandise in deposit from any such agent, as security for any antecedent debt or demand, shall not acquire thereby, or enforce any right or interest in or to such merchandise or document, other than was possessed or might have been en- forced by such agent at the time of such deposit. Id. sec. 4. Rights of true owner : Nothing contained in the last two preceding sections of this act shall be construed to prevent the true owner of any mer- chandise so deposited, from demanding or receiving the same, upon repayment of the money advanced, or on restoration of the security given, on the deposit of such merchandise, and upon satisfying such lien as may exist thereon in favor of the agent who may have deposited the same; nor from recovering any balance which may remain in the hands of the person with whom such merchandise shall have been deposited, as the produce of the salo thereof, after satisfying the amount justly due to such person by reason of such deposit. Id. sec. 5. NEW VOKK. 559 Sale or pledge by coniinoii carrier, etc.: Nothing contained in tliis act shall authorize a common car- rier, warehousekeeper, or other person to whom merchandise or other property may be committed for transportation or storage only, to sell or hypothecate the same. Id. sec. 6. Powers of court, etc. : Nothing contained in the last preceding section shall be construed to prevent the court of chancery from comi)elling cUscovery, or granting reli(>f ui)on any bill to be filed in that court by the owner of any merchiuidise so intrusted or con- signed against the factor or agent by whom such merchandise shall have been apphed or sold contrary to the provisions of the said section, or against any person who shall have been knowingly a party to such fraudulent application or sale there- of; but no answer to any such bill shall be read in evidence against the defendant making the same, or the trial of any in- dictment for the fraud charged in the bill. Id. sec. 8. Issuing fletitious bills of lading, receipts and vouchers : A person who : 1 . Being the master, owner or agent of any vessel, or officer or agent of any railway, express or transporta- tion company or otherwise being or representing any carrier, who delivers any bill of lading, receipt or other voucher, by which it appears that merchandise of any kind has been shipped on board of a vessel, or delivered to a railway, express or transportation company, or other carrier, unless the same has been so shipped or delivered and is at the time actually under the control of such carrier, or the master, ownei" oi* agent of such vessel, or of some officer or agent of such company, to be forwarded as expressed in such bill of lading, receipt or voucher ; or, 2. Carrying on the business of a warehouseman, wharfinger or other depository of property, who issues any receijjt, bill of lading or other voucher for merchandise of any kind which has not been actually received upon the premises of such per- son, and is not under his actual control at time of issuing such instrument, whether such instrument is issued to a person as being the owner of such merchandise, or as security for any indebtedness; is guilty of a misdemeanor, punishable by im- 560 NEW YORK LAWS. prisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. Pen. Code, sec. 629, as amended, Laws, 1892, ch. 692. Last two sections qualified : No person can be convicted of an offense under the last two sections, for the reason that the contents of any barrel, box, case, cask or other vessel or package mentioned in the bill of lading, receipt, or other voucher did not correspond with the description given in such instrument of the merchandise re- ceived, if such description corresponds substantially with the marks, labels or brands upon the outside of such vessel or package, unless it appears that the defendant knew that such marks, labels or brands were untrue. Pen. Code, sec. 630. Duplicate receipts must be marked : A person mentioned in sections 628 and 629, who issues any second or duplicate receipt or voucher, of a kind specified in those sections, at a time while a former receipt or voucher for the merchandise specified in such second receipt is outstand- ing and uncancelled, without writing across the face of the same the word "duplicate," in a plain and legible manner, is punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. Id. sec. 631. Selling, etc. — Property received for transportation or storage : A person mentioned in sections 628 and 629, who sells or pledges any merchandise for which a bill of lading, receipt or voucher has been issued by him, without the consent in writing thereto of the person holding such bill, receipt or voucher, is punishable by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. Id. sec. 632. Bill of lading, when to he cancelled : A person mentioned in section 629, who delivers to another any merchandise for which a bill of lading, receipt or voucher has been issued, unless such receipt or voucher bears upon its NEW VOKK. 5(jj face the words "not negotiable," plainly written or stamped, or unless such receipt is surrendered to be cancelled at the time of such delivery, or unless, in the case of a partial delivery, a memorandum thereof is indorsed upon such receipt or voucher, is punishable by imprisonment not exceeding one year, or bv a fine not exceeding one thousand dollars, or by both. Id sec. 633. Property demanded l)y process of law : The last two sections do not apply to any case where prop- erty is demanded by virtue of legal process. Id. sec. 634. An Act to define the rights of persons and corporations en- gaged in the business of storing personal chattels, and to regu- late the said business. Section 1. Whenever hereafter a demand shall be made upon a warehouseman for a personal chattel held by him on storage, by a person other than him from whom such chattel was re- ceived, or other than the holder of the warehouse receipt out- standing, the warehouseman shall with due diligence give notice of the demand to the person from whom the chattel was re- ceived and the person in w^hose name a warehouse receipt for the chattel is outstanding. Such notice may be given personally or by mail to the last known post-office address of the party en- titled to notice, if he shall have registered an address with the warehouseman. If the depositor or person in whose name the warehouse receipt is outstanding shall not, within ten days after service of the notice as aforesaid, authorize the delivery of the chattel to the claimant, he shall be deemed to have refused to deliver and the claimant may sue the depositor or the person in whose name the warehouse receipt is outstanrling, in replevin or for conversion. The warehouseman may refuse to deliver a personal chattel to the depositor or holder of the warehouse receipt after a demand is made upon him as aforesaid and dur- ing twenty days after notice of the demand to the depositor or holder of an outstanding warehouse receipt. The warehouse- man shall not, by reason of such a refusal nor by reason of such retention incur any Hability to any person and shall not be sued for and on account of such refusal at law or in equity. And 36 562 NEW YORK LAWS. after a suit in replevin shall be brought by the claimant, and the warehouseman is notified thereof, the warehouseman shall hold the chattel subject to the order of the court in which such action in replevin is brought and shall deliver the same only to the per- son named in the judgment entitled to the delivery. After an action for conversion of the personal chattel is brought by the claimant against the depositor or holder of a warehouse receipt, the warehouseman may at any time deliver the chattel to the holder of the warehouse receipt. For the purposes of all actions concerning title to a personal chattel held by a warehouseman on storage or for the possession of such chattel, the possession of the warehouseman shall be deemed to be the possession of the depositor or holder of a warehouse receipt. The depositor of a chattel shall register with the warehouseman his name and ad- dress and shall notify the warehouseman of any transfer of the warehouse receipt, gi\'ing the name and residence of the trans- feree, and the depositor or the transferee shall notify the ware- houseman of any change in such address. The warehouse- man may make known to the claimant of a chattel the name and address of the depositor, and where such name and ad- dress is so made known the warehouseman shall not be made defendant in an action for conversion or replevin unless he shall claim some right, title or interest in the chattel other than a lawful lien for lawful charges growing out of the care and cus- tody of such personal chattel. If the legality or amount of such charges be chsputed, the warehouseman may be made a party to the action for the purpose of determining that issue only, and shall recover costs if his claim be substantially sustained. If the person in whose name a warehouse receipt is outstanding has ceased to reside or to have a place of business at the address left with the warehouseman and cannot, after due diligence, be found, a court of record in which an action to replevin the chattel is pending or is about to be brought may make an order that the summons may be served upon the person holding the warehouse receipt, in the manner provided in and by the Code of Civil Pro- cedure. In such a case any judgment recovered by the plaintiff shall be only against the depositor or person in whose name the warehouse receipt is outstanding and before any judgment shall NEW YORK. 563 be recovered the plaintiff kIiuII prove his title. If jud^iiicnl is recovered by the plaintiff directing the delivery of the chattel lo the i)laiiitiff, the warehouseman shall obey the judy;ineMt and make tlic dehvery upon payment of his lawful charges and he shall not thereafter be liable to the depositor or the holder of the warehouse receipt on account of such delivery. Sec. 2. A warehouseman shall have a lien upon goods stored with him foi- his charges for storage, cartage, labor, freight, insurance, and other advances thereon, including weighing and coopering in relation to such goods or other goods l)e- longing to the same owner and he may detain such goods until his lien is paid. Such lien of a warehouseman shall be prior and superior to the lien of a chattel mortgage and to any lien or right, title or interest of the vendor in a conditional sale or a sale upon installments, where the chattel mortgage is not made in the name of the depositor or holder of the warehouse receipt, and wiiere the contract or conditional sale is not required by law to be filed and when^ the warehouseman has not actual knowledge of the chattel mortgage or conditional sale. A ware- houseman shall not have a lien for storage charges upon stolen goods. Sec. 3. Whenever a warehouseman shall carry a personal chattel to his warehouse or deliver a personal chattel out of his warehouse and to another place, he shall be liable for the negligence of himself and his servants during the packing, load- ing, carrying and unloading of the personal chattel and shall not be liable otherwise. Sec. 4. The term warehouseman in this act siiall include ever}^ person, partnership, association, or corporation regulariv engaged in the business of storing furniture, household effects and similar chattels. Sec. 5. Tliis act shall take effect immediately. Laws, 1902. ch. 608. Section 1. The forest, fish and game law is hereby amended by adding thereto a new section to be known as section one hun- dred and forty-one, which shall read as follows: Sec, 141. Wherever in this act the possession of fish, game. 564 NEW YORK LAWS. or the flesh of any animal, bird or fish, is prohibited, reference is had equally to such fish, game or flesh coming from without the state as to that taken within the state. Provided nevertheless, that if there be any open season therefor, any dealer therein, if he has given the bond herein pi-ovided for, may hold during the close season such part of his stock as he has on hand undisposed of at the opening of such close season. Said bond shall be to the people of the state, conditioned that such dealer will not during the close season ensuing, sell, use, give away or otherwise dispose of any fish, game, or the flesh of any animal, bird or fish which he is permitted to possess during the close season by this section; that he will not in any way during the time said bond is in force, violate any provision of the forest, fish and game law; the bond may also contain such other provisions as to the inspection of the fish and game possessed as the commission shall require, and shall be subject to the approval of the commission as to amount and form thereof, and the sufficiency of sureties. But no pre- sumption that the possession of fish or game or the flesh of any animal, birfl or fish is lawfully possessed under the pro\'isions of this section shall arise until it affirmatively appears that the provisions thereof have been complied with. Sec. 2. This act shall take effect immediately. Laws, 1902, ch. 194. NKW VOKK. OtJO DECISIONS AFFECTING WAREHOUSEMEN. B. Ordinary care — Definition — Question of fad. A warehouseman is bound to exercise ordinary care and dili- gence in respect to the property intrusted witli him. which may be defined to be that degree of care which men of common prudence in general exert under similar circumstances, with regard to their own property or affairs. What omission or want of care would amount to ordinary neglect in such cases is, as a general rule, rather a matter of fact than law; and if there be any evidence to sustain the verdict of the jury, it will not be disturbed by an appellate court. Smith v. Simms, 51 How, Pr. 305; Arent v. Squire, 1 Daly, 350; Jones v. Morgan, 90 N. Y. 4; Madan v. Covert, 13 J, & S. 245; Williamson v. A^ Y., N. H. & H. R. R, Co., 22 St. Rep. 431 ; Byrne v. Fargo, 36 Misc. 543; Schmidt v. Blood, 42 Amer. Dec. 143; Knapp v. Curtis ct Root, 9 W^end. 60; Tittsivorth v. Winnegar, 51 Barb. 148; Foote v. Storrs, 2 Barb. 326; Schmidt & Webb v. Blood & Green, 9 Wend. 268; Schwerin et al. v. McKie et at., 51 N. Y. 180; Liverpool d' Great Western Steam Co. v. Suitter et al., 17 Fed. Rep. 695; Kaiser v. Latimer, 9 App. Div. 36. Same — Prima facie case — Burden of proof — Presumption re- butted. A prima facie case is made against a warehouseman when the plaintiff shows delivery to the warehouseman and the re- turn of the goods in a damaged condition, or the warehouse- man's failure to redeliver upon demand. The burden of proof is then upon the warehouseman to show that the damage or loss was not a result of a breach of the duty owed ])y him as warehouseman to the plaintiff. The theory that one is pre- sumed to have done his duty until the contrary be shown does not apply to a case where a warehouseman delivers goods in- trusted to his care in a damaged condition, or fails to deliver them. Such action on the part of the warehoui=;eman rebuts this presumption. Arent v. Squire, 1 Daly, 347; Reed v. Croa^ et aZ., 13 Daly, 164; Williamson v. A^ Y., N. H. ifc H. R. R. Co., oGG NEW VOllK DECISIONS. 2^ St. Rep. 431; Lynch v. Kluber, 20 Misc. Rep. 601; Draper v. /). c^ H. C. Co., 118 X. Y. 118. Whe?i warehouseman liable as common carrier — Assuming to act as carrier — Termination of contract oj storage. A warehouseman had stored plaintiff's goods and the term for wliich they were stored having expired she thereupon paid all the storage charges due and surrendered the contract. Plain- tiff then engaged the defendant warehouseman to remove the goods from his warehouse and take them to her home. Subse- quently and while in the warehouse before being removed, the goods were destroyed by fire. Held that the contract of stor- age had terminated and that the defendant was liable as a car- rier and hence as an insurer of the goods. Snelling v. Yetter, 25 App. Div. 590; Wade v. Wheeler, 3 Lans. 201, aff'd 47 N. Y. 658. Delivery — Of key. The dehvery of the key of the warehouse containing the goods to be transferred held a delivery of the goods. Wilkes v. Ferris, 5 Johns. 335. Same — To consignee without authority — Warehouseman liable for freight charges — Conversion. Where a common carrier stores freight with a warehouse- man, the possession of the warehouseman becomes that of the carrier, and if the warehouseman, without authority, delivers the goods to the consignee, he is liable to the carrier for the amount of the freight. The action of the warehouseman in this respect constitutes a convcTsion of the goods. Compton v. Shaw, 1 Hun, 441 ; Williard v. Bridge, 4 Barb. 361. Same — To wife on forged order. The defendants held several United States bonds for the plaintiff as his bailee. They had been instructed by the plain- tiff not to deliver the bonds except upon his written order. It appeared that the wife of the plaintiff presented an order for the bonds to the defendants, purporting to be signed by her husband and that the defendants delivered the bonds to her. It was contended in behalf of the defendants that independent NEM' VoKK. 5G7 of any agency on the part of the wife, tliat because at common law a wife's possession of a chattel was deemed the possession of her husband, the delivery of the bonds to lici- was c([uivalent to a delivery to the plaintifi". It was held that this contention could not be sustained; that the bonds had been obtained fraudulently and that the defendants were lial)le therefor. Further that the attempt to show a cross liability on the part of the plaintiff for the fraud committed by his wife could not be allowed as this w^ould be equivalent to enforcing a right of action against the plaintiff alone for a tort committed wholly by his wife. Rowing v. Manly et al., 49 N. Y. 192. Same — Improper delivery to husband — Conversion. A large quantity of jewelry was deposited with the defend- ant by the plaintiff. A receipt was issued to her in which it was stated, ''This receipt must be returned on delivery of the goods, and all liability under this receipt shall cease with the delivery of such package and contents to holder hereof." Sub- sequently the defendant delivered the jewelry to the husband of the plaintiff without the return of the receipt. In an action for the value thereof it was held that the defendant was liable therefor, that the wrongful delivery of the property to the hus- band of the plaintiff constituted a conversion. Markoe v. Tiffany & Co., 26 App. Div. 95. Same — What will not constitute — Evidence. In an action against a warehouseman to recover for the loss of a trunk alleged to have been intrusted to him, the plain- tiff's evidence showed that an expressman had left the trunk at the defendant's warehouse. On cross-examination the ex- pressman was unable to say that he had delivered it at any particular door or had not actually left it in the street. Further, he did not recollect whether or not he had called the attention of any of the defendant's employees to the trunk. No receipt was taken upon this alleged delivery and no contract with regard to the storage of the trunk was proven. It was held that this evidence was clearly insufficient to prove a deliveiy for the purpose of charging warehouseman upon his failure to return the trunk upon plaintiff's demand. Testimony given 568 NEW YORK DECISIONS. by the plaintiff to the effect that an agent of the defendant had admitted nine months after the transaction that the trunk had been received was held improper, that such testimony formed no part of the res gestce and that the objection to the reception of this testimony was well taken. Strong v. Union Transfer & S. Co., 11 Misc. 430. Cannot deny bailor's title. A warehouseman ha\dng received property from the plaintiff will not be permitted to defeat his right to its return by at- tempting to interpose the claim of ownership in a third person. Leoncini v. Post, 37 St. Rep. 255; Gruel v. Yetter, 27 Misc. 494; Mullins v. Chickering, 110 N. Y. 514; Trajisportation Co. v. Barber, 56 N. Y. 547; Wheeler v. Lawson, 103 N. Y. 40; Frost v. Mott, 34 N. Y. 253. Conversion — Wrongful sale for storage without notice to owner. A warehouseman received goods for storage and three years afterwards sold the same, without notice to the bailor as re- quired by ch. 336, Laws of 1879. Held that the sale made under such conditions was a conversion of the goods for which the warehouseman was liable. Todd v. Haeger, 12 St. Rep. 633. Same — Refusal to deliver to true owner — Time for investigation as to ownership. It has been held that before the refusal of a bailee to deliver goods in his possession to one who claims he is the true owner thereof, will amount to a conversion, that such bailee if he has any honest doubts as to the ownership of the property is enti- tled to a reasonable time in which to investigate. An unqual- ified refusal to deliver held to constitute a conversion. Rogers v. Wier, 34 N. Y. 463. Warehouseman guarantor of advances — Entitled to subrogation. Where a third party makes advances on goods stored with a warehouseman and the warehouseman guarantees the pay- ment of such advances and finally pays the same, he is sub- rogated to all the rights of such third party in the goods. Kil- -patrick v. Dean et al, 3 N. Y. Supp. 60, aff'd 15 Daly, 182. NEW VOllK.. 509 Same — Judgment for slorcu/c charges, not a bar to an acliun jor conversion. In an action against a warehouseman for conversion of cer- tain wood stored with him, it was held that a judgment pro- cured by the defenchmt against the phuntiff for storage charges was not a bar to this action, the record of tlie proceeihugs before the justice who tried the case not sliowing that the wood in question had been delivered to the owner. Merrill v. Peiratw, 10 App. Div. 563. Change of proprietorship of warehouse — Request upon depositor to withdraw his goods — Effect — Market rate of storage — Duty of warehouseman. The defendant had stored a quantity of wood in a warehouse and had received therefor a receipt in which the rate of storage per month was stated, it being the market rate therefor. Sub- sequently the warehouse was taken possession of by the plain- tiff who assumed all outstanding contracts of storage. There- after, plaintiff notified the defendant that he must withdraw the wood from the warehouse or else pay a greatly advanced rate. Defendants refused to comply with this request and al- lowed the wood to remain in the warehouse, offering to pay the market rate for the storage thereof. In an action to sell the wood pursuant to its lien for unpaid storage, it was held that after the refusal of the defendant to remove the wood as re- quested, that this terminated the contract of storage but that the plaintiff would be entitled only to recovei- whatever the market rate for such storage might be shown to be at that time and not the exorbitant charge claimed by the plaintiff. Further held that plaintiff was not bound to retain the property after the contract of storage was terminated by his notice l)ut that he would have been justified in removing it after that date and depositing it in a warehouse at the risk and expense of the owners subject to any lien he might have prior to the removal, Hazeltine et at. v. Weld et ai, 73 N. Y. 156. Same— Several Uahility— Holding in official ca parity no de- fense. The defendant took possession of and operated a warehouse ■ ) I NEW VOKK DECISIONS. in wliich the plaintiff's goods were stored, and during tlie term of such storage the goods were injured. It was held that he was severally liable to the owner of the goods although the warehouse company wliich had previously operated the ware- house was a defendant also. As the injury happened while he was in possession he was liable for the same. The defend- ant attempted to show that he was not liable on the ground that he held and conducted the w^arehouse in an official capacity. The plaintiff denied that she had any notice or knowledge of such representative capacity. It was held therefore that this defense could not be maintained. Kaufman v. Peoples Cold Storage, 10 Misc. 553; Kaufman v. Morgan, 10 Misc. 554. Same — What sufficient to make prima facie case. The defendant company took possession of a warehouse form- erly operated by another firm and notified all the depositors that the customers would in no way be affected by the change in ownership. The plaintiff" had deposited goods in the ware- house prior to tliis change, but upon receiving the goods from the warehouseman found that they were damaged. In an ac- tion for the value thereof, it was held that the plaintiff made out a prima facie case against the defendant by showing de- livery to the former owner and the damaged condition when received, and that it was error to dismiss the case upon this showing. Isler et al. v. Linds Co., 67 N. Y. Supp. 1072; Smith V. Railroad Co., 43 Barb. 225, aff'd 41 N. Y. 620. Evidence — Demand— Burden of proof. In an action against a warehouseman for failure to deliver the goods upon demand, it was held that the plaintiff made out a prima facie case by showing the delivery to the ware- houseman and such failure to redeliver. The court held that the warehouseman is liable in such a case unless he can account for the loss of the goods by showing that they were taken from his possession without any fault on his part. Coleman v. Liv- ingston, 4 J. & S. .32; Burnell v. N. Y. & C. R. R. Co., 45 N. Y. 184. But see Clafiin et al. v. Meyer, 75 N. Y. 260. NEAV VOIIK. Claim of title by a third per.son— Warehouseman not entillec equitable relief — Interpleader. 'llic coiiiplaiiiaiit, a warehouse company, filed a bill in equity alleging that various person^ claimed title to a large (juantity of arms stored with it and also that there were eharges I'or storage due for which the complainant had its lien thereon. The bill prayed that all parties thereto be restrained from further proceedings and that they be compelled to interj)lealetlged with it as collateral security for the payment of a loan. One of the defendants, the owner of the goods, had stored the same in a warehouse and had agreed with the pi'oprietor thereof that- the negotiable receipts which were to be issued therefor should contain no marks by which the particular goods stored could be identified, the object being that the owner desired to sub- stitute other goods which he subsequently did. At the time of the default in the payment of the note for which the ware- house receipt was pledged, it appeared that the quantity of goods remaining in the warehouse and belonging to the original owner was less than that called for by the receipt and that the full amount was made up from goods of a similar character which had been intrusted to the owner as factor and which he had stored along with his own goods; that sul3sef[uent to this transaction the warehouseman issued one receipt cover- ing all of the goods then standing in the name of the owner, which receipt was taken by the jilaintiff as collateral in lieu of the former receipts held by it. It was held that the agreement between the warehouseman and the owner as to the substitu- tion of other goods was a lawful and proper agreement; that the pledge made of the goods which were held as factor was valid under the Factors Act of this state, and that the plain- tiff was entitled to recover for all loss and advances made by it against all of the property stored. New York Security & Trust Co. V. Lipman, 91 Hun, 554. See also Bh/nden stein et al. V. New York S. & T. Co., 15 C. C. A. 14; Sains v. Same, 59 Fed. Rep. 12. Same — Delivery of goods without return of receipt — Section 633 of the penal code construed. An owner of goods shipped the same to a bank, care of the plaintiff warehouseman. When the goods were received by the plaintiff they were stored and a receipt issued to the owner 38 ,59-t NEW YORK DKCISIONS. therefor. The owner thereupon attached to the receipt a draft ch-awn on the defendant at ninety days' sight, which draft was (hily accepted and the owner discounted the same at the bank. The defendant w^as to have possession of the goods upon pay- ment of the draft and the delivery to him of the receipt. The defendant, after accepting the draft, had taken possession of the goods, without authority from the phiintiff. The defend- ant faihng to pay the draft when due, the plaintiff paid the same and procured the warehouse receipt. In an action for the amount of the draft, it was contended that the plaintiff was not entitled to recover on the ground that he had parted with the custody of the goods in violation of sec. 633 of the Penal Code which forbids warehousemen to deliver property unless the re- ceipt be surrendered. It was held that the finding of the jury that the goods were taken from the plaintiff by the defendant, without permission of the former, was conclusive and that in such a case the above section of the Penal Code does not apply. Burnham v. Cape Vincent Seed Co., 142 N. Y. 169, aff' g 49 St. Rep. 918. Same — Same — When warehousemen liable. In an action by the plaintiff bank against a warehouseman, to recover the value of a quantity of wheat and oats repre- sented by certain warehouse receipts, the following procedure was the custom between the parties: A dealer in grain would store the same with the defendant and procure therefor his re- ceipt ; when he desired to sell the same would draw his check on the plaintiff bank and attach his receipt thereto, the plaintiff thereupon honoring the receipt. While the receipt was still in the hands of the plaintiff bank, the warehouseman would de- liver the grain to such dealer who would in turn deliver it to the railroad for shipment. The railroad would then issue its bill of lading to tlio dealer for the grain received and the dealer would then present the bill of lading to the bank, obtain the warehouse receipts and deliver them to the defendant. In the instance from which the cause of action arose, the dealer, although he had received the bill of lading from the railroad company, failed to deliver it to the plaintiff. It was contended in behalf of the defendant that there was a waiver on the part NEW YORK. 595 of the plaintiff of the benefits of the warehouse act. It was hcM that there was not sufficient evidence in support of such wiiivcr to warrant the submission thereof to the jury; and that if the defendant saw fit to intrust the bill of lading to the dealer, lie did so at his peril; finally that the arrangement on the part of the plaintiff to hold the receipt until it had received the bill of lading did not amount to a waiver of the provisions of the stat- ute. First Nat. Bank of Penn Yan v. Bnien, 2.3 A\'('ekly Dig. 00. Same— Receipt of grain and issuance of warehouse receipt vnth- out notice of claim for advances — Warehouseman not liable. One engaged regularly in the business of a warehouseman issued a receipt for grain stored with him in the name of the master of the vessel who delivered the grain. At the time of the issuance of this receipt the warehouseman had no notice of any advances made against the grain. It appeared that the grain had been shipped to the order of the consignor, care of the consignee, the former's broker. The master of the vessel indorsed the receipt to the broker who had previously plerlged the bill of lading in order to obtain funds with which to pay the draft attached thereto, being for the price of the grain. The broker afterward negotiated the receipt to several parties who brought an action against the warehouseman for the con- version of the grain. It was held that the transaction was one of mere bailment and imposed no further (hity upon the de- fendant than to restore the property to lii.s bailor when no intervening rights of others had been asserted. The defentl- ant had no notice of the transaction with the bill of lading and there were no facts brought to his attention from which he could be charged wdth such notice. Hazard v. Abel, Prest., etc., 1 Sheld. 364. Same — Delivery upon, without notice of claim. A warehouseman received a large quantity of grain and, under instructions from the consignor, issued a receipt in the name of the consignee. It appeared that the consignee, who was a purchaser of the grain, had not paid therefor and. in fact, was at the time insolvent, but the defendant warehouse- man had no notice of this nor any notice that his consignor 596 NEW YORK DECISIUNS. had any claim against the consignee. The consignee pledged the receipt to a third party and secured advances thereon. In an action brought against the warehouseman, it was held that the issuance of the receipt by him under the above stated facts was proper and that he was in no wise liable for claims of the consignor against the goods of which he had no notice and that the pledge thereof to the third party was a valid pledge. Hoyt v. Baker, 15 Abb. Pr. (N. S.) 405; Hazard v. Abel, 15 Abb. Pr. (N. S.) 413. Same — Receipt issued by superintendent to owner of factory not a warehouse receipt. The owner of a factory, in which was stored a large quantity of oil, procured from his superintendent a receipt in form simi- lar to warehouse receipts, in which it was stated that the oil was deliverable to the order of such owner. The receipt was subsequently pledged and there was an attachment levied upon the oil in an action against the owner of the factory. Held that such receipt did not constitute a warehouse receipt within the meaning of the warehouse law, title did not pass thereby, and that the execution levied by the sheriff upon the oil was validly levied. Yenni v. McNarnee, 45 N. Y. 614. Same — Fraudulently issued by president of a warehouse com- pany in his own name — Used as collateral security — Facts con- stituting notice — Warehouseman not estopped to show goods are not actually in storage — Evidence. The plaintiff, a national bank, loaned money to the presi- dent of the defendant warehouse company upon a receipt for a quantity of cotton, as collateral security. The warehouse receipt was negotiable and in favor of the president of the com- pany individually and was signed by him as president. The note given for which the receipt was collateral was not paid and the bank instituted an action against the defendant ware- houseman to recover the cotton represented, or its value. It appeared that the by-laws of the defendant authorized either its president or its treasurer to sign warehouse receipts. It was held that an apphcation of the doctrines of principal and agent to such by-laws could not cause them to be construed NEW V(jKK. 597 as to authorize the president or treasurer to issue a receipt iti his own name; that the receipt itself being issued in the name of the president personally and signed by him as pr(\sident was sufficient to put the plaintiff on notice and that the i)laintilT was not a bona fide holder of the receipt. Further that the defendant was not estopped to show that the goods mentioned in the receipt were not actually in store. It was contended in behalf of the plaintiff that a new trial should be granted because at the trial of the case the plaintiff was not permitted to introduce evidence as to a conversation held between its officers ant! the president at the time of the transaction in question. It wils held that only the declaration of one who is at the time acting in the capacity of agent can be receivable as admissions against his principal. Bank of Neiv York N. B. Association v. Aitieri- can Dock & Trust Co., 143 N. Y. 559, aff'g Same v. Same, 70 Hun, 152; Corn Exchange Bank v. American Dock & Trust Co., 149 N. Y. 174, rev'g Same v. Same, 78 Hun, 400. Same — Same — Same — Inquiries made by a holder of the receipt — I?7iplied authority to officer to issue receipts in his own name — Questions for the jury. Where a case arose on a similar transaction to those set forth above but it further appeared that the plaintiff bank had made inquiries of another officer of the defendant company as to whether or not the president had authority to issue receipts in his own name and was told that he had such authority, and that on four or five occasions the president had issued such receipts and they had been honored by the defendant company by a delivery of the goods represented. The plaintiff was not permitted to go to the jury on the question as to whether or not such actions on the part of the defendant did not estop it to deny that its president had authority to issue receipts in his own name, but upon motion of the defendant a verdict was directed in its favor. It was held on appeal that as the ver- dict had been directed against the plaintiff it was entitled to the most favorable inferences which might be drawn from the evidence. That where a principal j^ermits its agent to do an act beyond his authority without objection, he is liable to those who were not aware of any want of authority to the same ex- 598 NEW YOEK DECISIONS. tent as if the necessary power had been directly conferred. While it did not appear from the evidence that the directors had knowledge that its president had on several occasions issued receipts in his own name and such receipts had been honored, nevertheless, it was a question for the jury to deter- mine whether the directors ought not to have known, under all the circumstances, that such transactions had taken place. Therefore, according to stipulation contained in notice of ap-* peal, judgment absolute was directed against the defendant. Hanover Nat. Bank v. American Dock (^ Trust Co., 148 N. Y. 612, afT'g Same v. Same, 75 Hun, 55. II Same — Parol evidence receivable to explain meaning of term cold storage." The plaintiff brought an action against the defendant, a warehouseman, to recover the value of certain poultry which was alleged to have been spoiled while in the cold storage rooms of the defendant's warehouse. On the trial of the case the plaintiff offered to prove that the phrase ''cold storage" had a significance, in the business in which it was employed, which would require the defendant to keep the poultry at a tempera- tm"e below freezing. This evidence was ruled out by the court. The plaintiff also offered to prove that there was a verbal agree- ment made at the time of the storage by the terms of wliich the defendant agreed to keep the poultry in such a degree of cold as would freeze it and thus preserve it from injury or spoiling while it remained in his warehouse. The court also excluded this testimony. It was held on appeal that the evi- dence to explain the meaning of the phrase "cold storage" should have been received in accordance with the legal rule that evidence is always admissible to explain meanings of terms used in any particular trade or occupation, when their meaning becomes material in order to construe a contract ; and further, that it was manifest from an inspection of the ware- house receipt that it was not made or accepted so as to include the broad ground of the entire contract. The plaintiff did not propose to contradict or vary the receipt but to add to it an attribute of the agreement between the parties defining the NKW VOltK. 599 degree of cold agreed upon, which had In-cn omitted from the receipt. Behrman v. Linde, 47 Hun, 530. Same — Evidence not admissible to show other transactions. In an action against a warehouseman it was charged that he had isssued a receipt for goods before liaving tliem in .-^torc. At the trial evidence was admittetl, under oljjection by the defendant, that the defendant, upon another occasion, liad given a receipt for other goods before their actual receipt at the warehouse. Held on appeal that the admi.ssion of such evidence constituted reversible error. McCombie et al.y. Spader, 1 Hun, 193. U. Taking of land for warehouse — Act authorizing, unconstitu- tional — Incidental benefit to public not sufficient. A company was incorporated for the purposes of affording a basin or harbor for vessels and for the warehousing of mer- chandise. By a subsequent act of the legislature the company was permitted, in the event that it was unable to ascertain the owner or owners of certain lands after the exercise of reason- able diligence, to condemn the same and acquire title in the manner provided by law for the acquisition of title to lands for railroad purposes. The company sought to condemn lands pursuant to this act; in the proceedings it appeared that the public would be entitled simply to an entrance to the basin constructed by the company and to the use of the center thereof, the surrounding lands to be occupied with private warehouses. The court held that it could not regard such a project as one for a public purpose or use which would justify the delegation to this company of the right of eminent domain; further that the effect of such procedure Avould be the taking of private property for private use which could never be validly authorized by legislative act, although it might be true that the structure intended to be built on the property sought to be condemned might incidentally tend to benefit the public by affording ad- ditional accommodations for business, commerce or manufact- ure. Matter Appl'n of E. B. W. & M. Co., 96 N. Y. 42. Liability of directors — Failure to file annual report. The defendants, who were directors in a corporation doing 600 NEW YORK DKCISIONS. a general warehouse business, were sued by the plaintiff upon certain notes signed by their corporation under the following circumstances. The payment of such notes was secured by the deposit of a warehouse receipt in a bank from which receipt it appeared that the corporation had a large quantity of grain to its credit in the warehouses of a warehouse association which had issued the receipt. Subsequently, the corporation withdrew the grain from the warehouses of the association and disposed of the same. The notes not being paid by the corpora- tion the warehouse association paid the same, the bank indors- ing the receipt and notes in blank. The association thereupon assigned the receipt and notes to the plaintiff who l^rought suit against the defendants individually on the ground that they were so liable under the laws of the state of New York, it ap- pearing that the corporation of which they were directors had failed to file its annual report as required by law. On the trial verdict was rendered for the plaintiff; a denial of a motion for a new trial was affirmed on appeal. Bedford v. Sherman et at., 68 Hun, 317. Same — Charged with dtdy — Reasonable inspection of the hooks. The directors of a warehouse corporation arc chargeable with the knowledge of the entries made on its books in the ordinary course of its business. Such directors are chargeable with the duty of a reasonable inspection of the books and a reasonable supervision of the conduct of the officers. Hanover Nat. Bank V. American Dock & Trust Co., 148 N. Y. 612. Liability of stockholders — " Fidl paid stock" construed — Statute of limitations. The works "full paid stock" as used in ch. 701 of the Laws of 1872 do not refer to the whole capital stock of the company but to the stock held by individual stockholders. Where a stockholder has paid in full his subscription to stock, his stock is full paid. There is no liability under this act for debts made after the payment of the capital stock and the recording of the certificate as therein required. In an action brouglit more than six years after the cause of action had nccruod, the statute of hmitations was a defense which should have been sustained. NEW YORK. (301 The judgment which was given for the plaintiff was roverserl on appeal. Nat. Park Bank v. Reimen, 23 J. & 8. 144. Public warehousemen— Statute prescribing rates for storage, con- stitutional— Indictment— If such rates be unreasonably low, qwere. The defendant was indicted under cli. 5S1 of the Laws of 1S88 for the alleged violation thereof in that he charged more than the rate allowed by such law for the elevating of a cargo of grain and for exacting more than the actual cost for shovel- ing the grain to the leg of the elevator. The tlefendant con- tended that the act in question was unconstitutional in that it deprived him of Uberty and property without due j)rocess of law, contrary to art. 1, sec. 6, of the constitution of the state of New York, and art. 14, sec. 1, of the constitution of the United States as amended. The court held that the power of the legislature to regulate tlie charge for elevating grain, even where the business is carried on by individuals upon their own premises, fell within the scope of the police power of the state as it was an exercise of authority necessary for the internal regulation and government of the state for its public welfare; that the business of elevating grain was one "affected with a public interest," that warehousemen exercise a public business and assume obligations to serve the entire public and that their property, therefore, in a legal sense, is devoted to a public use. The People v. Budd, 117 N. Y. 1, afT'd 143 U. S. 517. See A'. D. ex rel. Stoeser v. Brass, 2 N. D. 482, aff'd 153 U. S. 391 ; Munn v. Illinois, 69 111. 80, aff'd 94 U. S. 113. Note. Iq the opinion in The People v. Budd (143 U. S. 517) the Supreme Court declined to anticipate what its decision miglit have l)een iiad the storage rates prescribed by statute been inadequate. In tlie first of the above cases to be decided by the United States Supreme Court. .Vi/un V. Illinois, two justices dissented; in the second case, The People v. BuoHa E. By. Co. V. State. 134 U. S. 407 : Sfone v. Farmers' L. <{■ T. Co.. 116 U. S. 307 ; Sw7jth v. Ames, 169 U. S. 466 : Smyth v. Ames, 171 U. S. 361 ; People V. Walsh, 36 L. ed. 247. 602 NORTH CAROLINA LAWS. CHAPTER XXXIII. NORTH CAROLINA. LAWS PERTAINING TO WAREHOUSEMEN. An Act relating to warehousemen, authorizing them to give bonds and issue warehouse receipts secured thereby, and pre- scribing and regulating their powers and duties. Corporation .luthorized by charter to engage in warehouse business may become a warehouseman : Sec. 1. The General Assembly of North Carolina do enact: That any corporation organized under the laws of this state and whose charter authorizes it to engage in the business of a warehouseman within this state may become a public ware- houseman and authorized to keep and maintain public ware- houses for the storage of cotton, goods, wares and other mer- chandise as hereinafter prescribed and upon gi\'ing the bond hereinafter required. Sec. 2. To give hond—r^'^ount — Co7iditions. Every such cor- poration so organized under the preceding section to become a public warehouse shall give bond in a reliable bond or surety company to the clerk of the court of the county wherein is situated the warehouse of the said public warehouseman, in an amount not less than twenty-five thousand dollars, to be ap- proved, filed with and recorded by the clerk of the said court, for the faithful performance of the duties of a public ware- houseman. Sec. 3. Injured persons may sue on bond — Liability for costs. Whenever such warehouseman fails to perform its duty or vio- lates any of the provisions of this act, any person injured by such failure or violation may bring an action in his name and to his own use in any court of competent jurisdiction on the bond of said warehouseman, and in case he should fail in said action, he shall be liable to the defendant for any cost which the defendant may recover in the action. NORTH CAROLINA. 60^^ Sec. 4. Insurance of stored property — Storage receipts — Non- negotiahle receipts. Every such wareliousenian shall, when re- quested thereto in writing by a party placing i^ropcrty with it on storage, cause such property to be insured ; every such ware- houseman shall, except as hereinafter provided, give to each person depositing j^roperty with it for storage a receipt there- for, which shall be negotiable in form and shall describe the property, distinctly stating the brand or distinguishing marks upon it, and if such property is grain, the (luantity and in- spected grade thereof. The receipts shall al.*;o state the rate of charges for storing the property and amount and rate of any other charge thereon, and also the amount of the bond and name of the company in which the bond is taken, given to the said clerk of the court as hereinabove provided: Provided, how- ever, that every such warehouseman shall upon ref|uest of any person depositing property with it for storage, give to such person its non-negotiable receipt therefor, which receipt shall have the words "Non-negotiable" plainly written, printed or stamped on the face thereof: And provided, that the a.ssign- ment of said non-negotiable receipts shall not be effective until recorded on the books of the warehousemen issuing them. Sec. 5. Title to goods stored, how passed. The title to cotton goods, merchandise and chattels stored in public warehouses shall pass to a purchaser or pledged (e) by the indorsement and delivery to him of the warehouseman's receipt therefor, signed by the person to whom such receipt was originally given or by the indorsee of such receipt. Sec. 6. Where identity to property stored cannot he preserved, receipt a valid title to amount designated thereby. When grain or other property is stored in public warehouses in such a man- ner that different lots or parcels are mixed together, or that the identity cannot be accurately preserved, the warehouseman's receipt for any such portion of grain or property shall be deemed a valid title to so much thereof, as is designated in receipt with- out regard to separation or identification. Sec. 7. Warehouseman to keep book of accounts— What to coti- tain — Open to inspection of interested parties. Every such ware- houseman shall keep a book in which shall be entered an ac- 604 NORTH CAROLINA LAWS. count of all its transactions relating to warehousing, storing and insuring cotton, goods, wares and merchandise, and to the issuing of receipts therefor, which books shall be opened to the inspection of any person actually interested in the property to which such entry relates. Sec. S. Power to sell -property after claim for storage one year overdue — Disposal of proceeds — Notice. Every such public ware- houseman which shall have in its possession any property by virtue of any agreement or warehouse receipt for the same, for which a claim for storage is at least one year overdue, may proceed to sell the same at public auction, and out of the pro- ceeds may retain all charges for storage of such goods, wares and merchandise, and any advances that may have been made thereon by him, or them, and the expense of advertising and sale thereof, but no sale shall be made until after the giving of printed or written notice of such sale to the person or persons in whose name the said goods, wares and merchandise were stored, requiring him or them, naming them, to pay the arrears or amount due for such storage, and in case of default in so doing, the goods, wares and merchandise shall be sold to pay the same, at a time and place to be specified in such notice. Sec. 9. Notice how served — Return of service — Notice by publi- cation. The notice required in the last preceding section shall be served by delivering it to the person or persons in whose name such goods, wares and merchandise were stored, or by leaving it at his usual place of abode, if within this state, at least thirty days before the time of sale, and a return of the service shall be made by some officer authorized to serve civil process, or by some other person with an affidavit of the truth of the return, if the party storing such goods cannot with rea- sonable diligence be found within this state, then such notice shall be given by publication once a week for two successive weeks, the last publication to be at least ten days before the time of such sale, in a newspaper published in the city or town where such warehouse is located. In the event that the party storing such goods shall have parted with the same, and the purchaser shall have notified the warehouseman with his ad- NOiiTH CAUOLINA. «J05 dress, such notice sliall bo given to sudi person in lieu of the person storing the goods. Sec. 10. Surplus of proceeds uj sale, how recorded and disposed of. Such warehouseman shall make an entry in a book kept for that purpose of the balance or surplus of the proceeds of sale, if any, and such balance of sale, if any, shall be paid over to such person or persons entitled thereto on demand. If such balance or surplus is not ctdled for or claimed by such party or owner of said property within six months after such sale, such bal- ance or surplus shall be paid by said warehouseman to the clerk of the court of the county in which said warehouse is located, and he shall pay the same to the parties entitled thereto if called for or claimed by the original owner within ten years after the sale thereof, and such warehouseman shall at the same time file with said clerk an affidavit in which shall be stated the name and place of residence so far as the same are known. Sec. 11. Punishment for being party to unlawful sellincj, pledg- ing, lending or disposing of property stored. Whoever unlawfully sells, pledges, lends, or in any other way disposes of or permits or is a party to the unlawful selling, pledging, l(>nding, or other disposition of any goods, wares, merchandise, or anything de- posited in a public warehouse without the authority of the party who deposited the same, shall be punished by a fine not to ex- ceed $2,000 and by imprisonment in the state penitentiary for not more than three years, but no officer, manager or agent of such public warehouse shall be liable to the penalties provided in this section, unless with the intent to injure or defraud any person, he so sells, pledges, lends, or in any other way disposes of the same, or is a party to the selhng, pledging, lending or other disposition of any goods, wares, merchandise, article or thing so deposited. Sec. 12. Powers in regard to perishable or dangerous property stored. Whenever a public warehouseman has in its possession any property of a perishable nature, or which will deteriorate greatly in value by keeping, or upon which the charges for storage will be likely to exceed the value thereof, or which by its odor, leakage, inflammability or explosive nature is likely 606 NORTH CAROLINA LAWS. to injure other goods, such property having been stored upon non-negotiable receipts, and when said warehouseman has noti- fied the person in whose name the property was received to remove said property, but if such person has refused or omitted to remove said property and to pay the storage and proper charges thereon, said pubhc warehouseman may in the exercise of a reasonable discretion sell the same at public or private sale without advertising, and the proceeds, if there are any, after deducting the amount of said storage and charges, and expense of sale, shall be paid or credited to the person in whose name the property was stored, and if said person cannot be found on reasonable inquiry, the sale may be made without any notice and the proceeds of such sale after deducting the amount of storage or expense of sale, shall be paid to the clerk of the court of the county wherein said warehouse is situated, who shall pay the same to the person entitled thereto, if called for or claimed by the rightful owner within five years of the receipt thereof by said clerk. Sec. 13. When unable to sell perishable and worthless property, ivarehouseman may dispose of it in any lawful manner without liability. Whenever a public warehouseman under the provi- sions of the preceding section has made a reasonable effort to sell perishable and worthless property, and has been unable to do so because of its being of little or no value, it may then pro- ceed to dispose of such property in any lawful manner, and it shall not be liable in any way for property so disposed of. Sec. 14. When property sold fails to bring storage expenses and other charges, party in whose name stored liable for balance. When- ever a public warehouseman under the provisions of the two preceding sections has sold or otherwise disposed of property and the proceeds of such sale or disposition have not equalled the amount necessary to pay the storage charges, expenses of sale, and other charges against said property, then the person in whose name said property was stored shall be liable to said public warehouseman for an amount which added to the pro- ceeds of such sale will be sufficient to pay all of the proper charges upon said property ; or in case such property was value- less and there were no proceeds realized from its disposition, NORTH CAROLINA, tJOT the person in whose name said property was stored shall he liable to said public warehousoiiian lor all {iropcr charges against said property. Sec. 15. Conflictimj laws repealed. All acts or parts of acts inconsistent or in conflict with this act are hereby repealed. Sec. 16. This act shall be in force and effect from and after its ratification. In the General Assembly read three times, and ratihetl this the 14th day of March, A. D., 1901. Laws, North Carolina, 1901, p. 908 et seq. An Act to fix a maximum schedule of charges for selling leaf tobacco by all warehouses in North Carolina. Charges of tobacco Avarehouses regulated : Sec. 1. The General Assembly of North Carolina do enact: That the charges and expenses of handling and selling leaf tobacco upon the floor of tobacco warehouses in the state of North Caro- lina shall not exceed the following schedule of prices, viz: For auction fees, fifteen cents on all piles of one hundred pountls or less, and twenty-five cents on all piles over one hundred pounds; for weighing and handling, ten cents per pile for all piles less than one hundred pounds, for all piles over one hundred pounds at the rate of ten cents per hundred pounds; for connnission on the gross sales of leaf tobacco in said warehouses not to exceed two and one half per centum. Sec. 2. All leaf tobacco to he weighed by sworn weigher, etc. — Oath. That all leaf tobacco sold upon the floor of any tobacco warehouse in the state of North Carolina shall first be weighed by some reliable person, who shall have first sworn and siil)- scribed to the following oath, to wit: "I do solemnly swear (or affirm) that I will correctly and accurately weigh all tobacco offered for sale at the warehouse of , and correctly test and keep accurate the scales upon which the tobacco so offered for sale is weighed." Said oath to be filed in the ofl^ce of the clerk of the superior court of the county in which said warehouse is situated. Sec. 3. Bill of charges to he rendered seller, etc. That the proprietor of each and every warehouse shall render to each 608 NORTH CAROLINA LAWS. seller of tobacco at his warehouse a bill plainly stating the amount charged for weighing and handling, the amounts charged for auction fees, and the commission charged on such sale, and it shall be unlawful for any other charges or fees to be made or accepted. Sec. 4. Penalty for violation. That for each and every viola- tion of the provisions of this act a penalty of ten dollars be enforced and the same may be recovered by any one so offended. Sec. 5. Conflicting laws repealed. That all laws and clauses of laws in conflict with this act are hereby repealed. Sec. 6. W}ie7i act to take effect. This act shall be in force from and after the first day of October, one thousand eight hundred and ninety-five. Ratified this 23d day of February, A. D., 1895. Laws, North Carolina, 1895, p. 87 et seq. Tobacco warehouses — Tax on sworn statement to be made to clerk or commissioners : On every tobacco warehouse where' tobacco is sold or exhib- ited for sale the annual tax shall be : For one hundred thousand pounds or less, five dollars, and five dollars for each additional one hundred thousand pounds sold. Every person or firm lia- ble to tax under this section shall, within ten days after the first day of May and November in each year, deliver to the clerk of the board of county commissioners a sworn statement of the total amount of his or their sales for the preceding six months ending on the thirtieth day of April and the thirty- first day of October. The sheriff shall collect the tax without delay. Sec. 33, ch. 216, Laws, North Carolina, 1889. Ratified March 11, 1889. NORTH CAROLINA. 609 DECISIONS AFFECTING WAREHOUSEMEN. B. Warehouseman not insurers — Damages — Negligence. While warehousemen are not insurers like common carriers, they are liable for damages caused by their negligence, to articles stored with them. Motley & Co. v. Southern Finishing & Warehouse Co., 122 N. C. 347. Conversion — Refusal to deliver. Where a bailee refuses on demand to deliver a note to the owner, who is entitled to the possession thereof, it constitutes a conversion, and an action of trover will lie against the bailee. Smith V. Durham, 127 N. C. 417. N. Loss hy fire — Degree of diligence required — Suggestions by bailor or others — Bailee without profit — Rtde. A railroad company had in its possession as warehousemen, the goods of plaintiff, upon which the freight had been j)aid. The goods were retained in the warehouse at plaintiff's re- quest. A fire broke out near the warehouse but not on the property of the company. While the fire was burning plain- tiff asked permission to remove his goods. This was refused, because, in the opinion of the company's officers, if the ware- house were opened much of the property stored therein would be stolen, and also because they did not think at that time there was danger of the warehouse taking fire. The company made every effort in its power to prevent the communication of the fire to the warehouse, and, after it was plain that such efforts would prove fruitless, had the doors of the warehouse broken open and as many goods removed therefrom as possi- ble. The company had property of very great value so located that it must have been burned before the warehouse could take fire, and the utmost diligence was used to remove tliis property. If such efforts had been successful, the danger of the warehouse taking fire would have been greatly reduced. Held that it was not the duty of the company to act upon the suggestion 39 610 NOETll CAIIOLINA DECISIONS. of plaintiff, or strangers, as to the best method to save the goods in the warehouse. That if it used all means at its com- mand and acted upon the bona fide judgment of its employees as to the best method to prevent the destruction or loss of the warehouse and goods therein, it was not liable for the destruc- tion of plaintiff's goods. The custodian of another's property, who uses the means which, at the time of danger, appear to him best for its preservation is not to be held responsible for failing to adopt measures which subsequent events show would have produced better results. An honest and reasonable effort made in the exercise of an honest judgment is all the law requires of him. Turrentine v. Wilmington & W. R. R. Co., 100 N. C. 375. Same — Negligence — Proximate cause . In an action for damages against a railway company to re- cover the value of goods lost by the alleged negligence of the defendant, it appeared that after the arrival of the goods they were placed on a platform at the depot for the convenience of dehvery to consignees, and remained there for nearly two days; notice of their arrival was given the plaintiff who paid the freight charges with full knowledge of the place of deposit, but failed to remove them on account of his inability at the time to procure the services of city draymen for that purpose, and in the afternoon of the second day they were destroyed by fire, together with much of defendant's property. Held, (1) There was a delivery in law of the goods to the plaintiff consignee, which exonerated the defendant company from liability as warehousemen ; (2) the fact that the fire originated in a steam cotton compress, erected on the company's premises with its permission but not under its control, does not constitute negli- gence in the defendant, the permission to erect the same not being the proximate cause of the injury sustained by the plain- tiff. Clark & Co. v. Charlotte, C. & A. R. R. Co., 85 N. C. 423. Same — Exclusion of evidence — Error. The plaintiff brought an action against the defendant steam- boat company for failure to safely convey to him certain goods which were destroyed by fire in defendant's warehouse, where they had been stopped on the route. There was a contract on Noirrn cakoi.ina. i\]\ the bill of lading that the defentlant was not to be liable for any loss or damage arising from fire, etc. Held that (juestions tend- ing to show defendant had negligently allowed an aecuinulation of freight in its warehouse were inijiroiierly excluded. Horn- thai V. Roanoke, N. & B. S. Co., 107 N. C. 76. Negligence. Warehousemen are liable under the general law for damages caused by their negligence. Motley v. Southern Finishing & Warehouse Co., 124 N. C. 232. Ignorance and want of experience of bailee known to bailor — Ordinary care. Where it was known to bailor at the time of storage that the bailee knew nothing about tobacco, and had had no experience in handling it, the bailee would not be held hable for injury result- ing from want of skill and experience ; but would be bound to use such ordinary care as a prudent man would exercise to guard against moisture in the structure of the warehouse and the loca- tion of the tobacco. Motley v. Southern Finishing & Ware- house Co., 126 'N.C. 339. 0. Measure of damages. The measure of damages for property damaged while in the care of a storage or warehouse company is the difference be- tween the market value of the property in its damaged condi- tion and what it would have sold for, if undamaged, on the day of its return to the owner. Motley & Co. v. Soutliern Finishing & Warehouse Co., 122 N. C. 347. R. Bill of lading — Ordinary care. The contract on the bill of lading discharged the defendant from its liability as an insurer, if ordinary care was exercised in protecting the goods while in its warehouse. Hornthal v. Roanoke, N. & B. S. Co., 107 N. C. 76. Same — Limitation as to — Notice of los.'i, mid. A clause in a bill of lading that notice of loss or damage to 612 NORTH CAROLINA DECISIONS. the goods must be given in writing to a carrier within thirty days after dehvery thereof, or after due time for such deUvery, is imreasonable and void. Gwyn Harper Mfg. Co. v. Carolina Central R. R., 128 N. C. 280. Same — / nterpretation — Exemption clause. A clause in a bill of lading that the goods will be shipped, "at the convenience of the company" will not protect it from lia- bility for an unreasonable delay. Branch & Pope v. Wilming- ton & W. R. R. Co., 88 N. C. 573. Same — Agency — Parol. A common carrier is not bound by a bill of lading issued by its agent unless the goods be actually received for shipment; and the principal is not estopped thereby from showing, by parol, that no goods were in fact received, although the bill has been transferred to a bona fide holder for value. Williams, Black & Co. V. The Wilmington & W. R. R. Co., 93 N. C. 42; Brown v. Brooks, 7 Jones, 93, and Smith v. Brown, 3 Hawks, 580. U. Charter provisions — Exclusive privileges unconstitutional. A provision in a charter of a warehouse corporation to the efTect that such corporation shall not be liable for loss or dam- ages not provided for in its warehouse receipt or contract, at- tempts to confer exclusive privileges and is therefore uncon- stitutional and void. Motley & Co. v. Southern Finishing & Warehouse Co., 122 N. C. 347. Same — Same — Illustration. The clause of the charter of the defendant company which reads as follows: "Provided, however, that said company shall not be held responsible for losses arising from the act of God, or of common enemies, nor for any loss or damage not provided for in its warehouse receipt or contract ; and said company may make such stipulations in its warehouse receipts or contracts, as to loss or damage ensuing by fire or other cause, as it may deem necessary and proper'' is in contravention of art. 1, sec. 7, of the constitution. Motley & Co. v. Southern Finishing & Warehouse Co., 124 N. C. 232. l>l01iTll DAKOTA. 013 CHAPTER XXXIV. NORTH DAKOTA. LAWS PERTAINING TO WAREHOUSEMEN. Public warehouses— Coiinnissioiiers of niilroiul, powers aud duties: The duties imposed by the provisions of this article and the powers conferred herein devolve upon the commissioners of railroads. Revised Code, North Dakota, 1895, sec. 1783. Haudliug, weighing aud storage of grain : It shall be the duty of the commissioners of railroads to super- vise the handling, weighing and storage of grain and seed; to establish all necessary rules and regulations for the weighing of grain and for the management of the public warehouses of the state, so far as such rules and regulations may be necessary to enforce the provisions of this article or any law in this state in regard to the same, investigate all complaints of fraud or oppression in the grain trade of this state, and correct the same as far as it may be in their power. Id. sec. 1784. Rules to he published : The rules and regulations so established shall be printed and published by the commissioners of railroads in such manner a.s to give the greatest publicity thereto, and the same shall be in force and effect until they are changed or abrogated by such commissioners in a like public manner. Id. sec. 1785. Amendnieut — Public warehouses — Defined : All Iniildings, elevators and warehouses, and all grist and flour mills doing a shijiping business in this state, erected and operated, or which may hereafter be erected and ojierated by any person, association. co})artnershii), corporation or trust, for the purposes of buying, selling, storing, shipping or handling 614 NORTH DAKOTA LAWS. grain for profit, are declared public warehouses, and the person, association, copartnership or corporation owning or operating such buildings, elevators or warehouses, which are now, or may hereafter be located or doing business within this state, whether such owners or operators reside within this state or not, are public warehousemen within the meaning of this article, and .none of the provisions of this article shall be construed so as to permit discrimination with reference to buying, receiving and handling grain of standard grades or in regard to the persons offering such grain for sale, storage and handling, at such public warehouses, while the same are in operation. [Approved March 13, 1901.] Laws of N. D. 1901, ch. 140, p. 179. License, how obtained — Fee, liow determined : An annual state license must be obtained through the com- missioners of railroads for each and every public grain ware- house in operation in this state. No license issued under this article shall describe more than one public grain warehouse, or grant permission to operate any other public grain ware- house than the one therein described. The license fee is hereby fixed at two dollars for warehouses of a capacity of less than ten thousand bushels; and three dollars for warehouses of a capacity of ten thousand bushels and over, for each public grain warehouse; provided, that before any license is issued the per- son applying therefor shall file with the commissioners of rail- roads the receipt of the state treasurer, showing that the appli- cant has paid into the state treasury the amount of said license fee. Revised Code, North Dakota, 1895, sec. 1787. License to be conspicuously posted — Penalty : The license thus obtained shall be posted in a conspicuous place in the public warehouse so licensed. Every such license shall expire on the first day of August next following the issu- ance thereof, and no license shall run for a longer period than one year. Any person or association, who shall transact the business of public warehouseman without first procuring a li- cense as herein provided, shall on conviction, be fined in a sum not less than twenty-five dollars for each and every day such business is carried on. Id. sec. 1788. NOKTJl DAKOTA. t)l.< Bond to be filed : The proprietor, lessee or inaiiagor of any wareliouse or ele- vator in this state shall file with Xhv commissioners of railroads a bond to the state with good and suflicient sureties to be ap- proved by such commissioners in the penal sum of not less tiian five thousand nor more than seventy-five thousand dollars, in the discretion of the commissioners, conditioned for the faith- ful performance of their duty as public warehousemen and a compliance with all the laws of this state in relation thereto. One bond only need be given for any line of elevators or ware- houses owned, controlled or operated by one individual, firm or corporation. Such bond, specifying the location of each elevator or warehouse operated by such individual, firm or corporation, shall be in a sufliicient amount to protect the holder of outstanding tickets. Id. sec. 1789. Warehouse receipts, wliat to contain : All owners of such elevators and warehouses shall, upon the request of any person delivering grain thereat, give a warehouse receipt therefor, subject to the order of the owner or consignee, which receipt shall bear date corresponding with the receipt of the grain, and shall state upon its face the quantity and grade fixed upon the same. All warehouse receipts shall be con- secutively numbered, and no two receipts bearing the • same number and series shall be issued during the same year. No warehouse receipt shall be issued except upon the actual delivery of grain into such warehouse. No such warehouseman shall insert in any warehouse receipt issued by him any language in anywise limiting or modifying his liabihties as imposed by the laws of this state. Id. sec. 1790. What storage receipts shall express : Each storage receipt issued in this state shall expressly pro- vide that at the option of the holder of such receipt the kind, quality and quantity of grain for which such receij^t was issued shall be delivered back to him at the same place where it was received upon the payment of a roa.'sonable charge per bu.'^hel for receiving, handling, storing and insurance charges, such charges to be fixed by express terms in the storage receipt at 616 NORTH DAKOTA LAWS. the time of recei\'ing the grain at the elevator or warehouse and at the time of issuing the receipt ; but no charges shall be made for cleaning grain unless such grain has been actually cleaned; and nothing in this section shall be construed to require the delivery of the identical grain specified in the receipt so pre- sented, but an equal amount of the same grade, except wheat placed in special bins. Id. sec. 1791. Bailment, not a sale — Insolvency : Whenever any grain shall be deUvered to any person, asso- ciation, firm or corporation doing a grain, warehouse or grain elevator business in this state and the receipt issued therefor provides for the delivery of a like amount and grade to the holder thereof in return, such delivery shall be a bailment and not a sale of the grain so delivered, and in no case shall the grain so stored be liable to seizure upon process of any court in an action against such bailee, except actions by owners of such warehouse receipts to enforce the terms thereof, but such grain shall at all times in the event of the failure or insolvency of such bailee be first applied exclusively to the redemption of out- standing warehouse receipts for grain so stored with such bailee. And in such event grain on hand in any particular elevator or warehouse shall first be applied to the redemption and satisfaction of receipts issued by such warehouse. Id. sec. 1792. Larceny — Punishment : Each person and each member of any association, firm or corporation doing a grain warehouse or grain elevator business in this state, who shall after demand, tender and ofTer as pro- \'ided in the last section, willfully neglect or refuse to deliver to the person making such demand, the full amount of grain of the grade or the market value thereof which such person is entitled to demand of such bailee, shall be deemed guilty of larceny. Id. sec. 1793. Rates of storage : The charges for storage and handling of grain shall not exceed the following rates : For receiving, elevating, insuring, delivering NORTH DAKOTA. GlT and twenty days' storage, two cents per bushel. Storage rates after the first twenty days, one half cent for each Hfteeii days or fraction thereof, and not exceeding five cents for six months. The grain shall be kept insured at the expense of the warehouse- man for the benefit of the owner. Id. sec. 1794. Section coiistitntional : The above section held constitutional in North Dakota ex rel. Stoeser v. Brass, 2 N. D. 482, aif'd 153 U. S. 391. See North Dakota decisions, page 626. Penalty for violation of this article : Any person who shall knowingly cheat, or falsely weigh any wheat or other agricultural products, or who shall violate any of the provisions of this article shall be deemed guilty of a mis- demeanor, and shall on conviction thereof be subject to a fine of not less than two hundred dollars nor more than one thou- sand dollars and be imprisoned in the penitentiary for a period not exceeding one year, in the discretion of the court. Id. sec. 1795. Erection of Grain Warehouses on Railroad Right of Way. Construction of warehouses on right of way : Any two or more persons who have or shall by articles of agreement in writing associate themselves together under any name assumed by them for the purpose of operating a ware- house or elevator for the purchase, storage and shipping of wheat or other grain within this state, may make an aj)i)lica- tion in writing to any railroad company or corporation organ- ized under the laws of this state, or doing business therein, be permitted to construct, maintain and operate a \\arehouse or elevator at any of its regular way stations upon its right of way, to be used for the purpose aforesaid, and the niilroad company or corporation so applied to shall grant such applica- tion without regard to the capacity of such elevator or ware- house and without discrimination as to persons, and in the order in which such application shall be presented. Id. sec. 1796. 618 NOKTH DAKOTA LAWS. Public warehouses, lio» reutal to be tleterniined : All elevators or warehouses erected under the provisions of the last section shall be kept open for the transaction of busi- ness during such portion of the year as may be required by the laws of the state, or commissioners of railroads. The associa- tions or corporations which shall avail themselves of the ben- efit of this section are declared to be public corporations, sub- ject to legislative supervision and control at all times and in all particulars in which rights or powers are conferred upon them by the provisions hereof. Befoi'e the application here- inbefore mentioned need be granted by any railroad company or corporation, the association making the same shall pay or secure to such railroad company or corporation such compen- sation for the right, privilege or franchise demanded in such petition as may be agreed upon between the parties as a just and reasonable yearly rental therefor, or a fixed or certain amount to be paid in one sum in lieu of a rental to be paid annually for the use and occupation of the site occupied by such warehouse or elevator and the uses and privileges con- nected therewith. If they fail to agree upon such yearly rental, or upon a gross sum to be paid in lieu thereof, all further pro- ceedings shall be had under the chapter on eminent domain in the code of civil procedure. Id. sec. 1797. Side tracks to be provided by railroad company : Every railroad company or corporation organized under the laws of this state, or doing business therein, shall upon appli- cation in writing provide reasonable side track facilities and running connections between its main track and elevators and warehouses upon or contiguous to its right of way at such sta- tions; and every such railroad corporation shall permit con- nections to be made and maintained in a reasonable manner with its side tracks to and from any warehouse or elevator without reference to its size, cost or capacity, where grain is or may be stored, that such railroad company sliall not be required to construct or furnish any side tracks except upon its own land or right of way; provided, further, that such ele- vators and warehouses shall not be constructed within one hundred feet of any existing structure and shall be at safe fire NORTH DAKciTA. (JlV» distance from the station building and so as not essentially to conflict with the safe and convenient operation of the road; and where stations are ten miles or more apuvi the railroad company when required so to do by the commissioners of rail- roads shall construct and maintain a side track for the use of shippers between such stations. Id. sec. 1798. Rights and privileges of indiyidnnls : Individuals shall have the same rights and privileges under the provisions of the last three sections as associated persons, corporations and associations. Id. sec. 1799. See ch. 114, Law^s of 1895, below. When nnclainied ])roi)erty may be sold : Whenever any trunk, carpetbag, valise, bundle, package or article of propert}'- transported or coming into the possession of any railroad, or express company or any other conmion carrier in the course of his or its business as common carrier shall remain unclaimed and the legal charges thereon unpaid during the space of six months after its arrival at the point to which it shall have been directed and the owner (m- jierson to whom the same is consigned cannot be found upon diligent inquiry or, being found and notified of the arrival of such arti- cle, shall refuse or neglect to receive the same and pixy the legal charges thereon for the space of three months, it shall be lawful for such common carrier to sell such article at public auction after giving the owmer or consignee fifteen days' notice of the time and place of sale through the post-office and by advertis- ing in a newspaper published in the county where such sale is made and out of the proceeds of such sale to pay all legal charges on such article and the amount over, if any, shall be paid \o the owner or consignee upon demand, hi. sec. 1195. When perishable property may be sold : Perishable property w^hich has been transported to its desti- nation and the owner or consignee notified of its arrival, or being notified, refuses or neglects to receive the .same and pay the legal charges thereon, or if upon diligent inciuiry the con- signee cannot be found, such carrier may in the exercise of a 620 NORTH DAKOTA LAWS. reasonable discretion sell the same at public or private sale without advertising and the proceeds after deducting the freight and charges and expenses of sale shall be paid to the owner or consignee upon demand. Id. sec. 4196. Applies to hotel keepers and warehousemen : The provisions of the last two sections shall apply to hotel keepers and warehousemen. Id. sec. 4197. Bill of lading — Defined : A bill of lading is an instrument in writing signed by a carrier or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place. Id. sec. 4198. Negotiable : All the title to the freight which the first holder of a bill of lading had when he received it passes to every subsequent in- dorsee thereof in good faith and for value in the ordinary course of business with like effect and in like manner as in the case of a bill of exchange. Id. sec. 4199. ^in^ When delivery transfers : When a bill of lading is made to bearer or in equivalent terms a simple transfer thereof by delivery conveys the same title as an indorsement. Id. sec. 4200. Obligations of carriers not altered : A bill of lading does not alter the rights or obligation of the carrier as defined in this chapter unless it is plainly inconsistent therewith. Id. sec. 4201. Carrier must give sets of bills on demand : A carrier must subscribe and deliver to the consignor on de- mand any reasonable number of bills of lading of the same tenor, expressing truly the original contract for carriage; and if he refuses to do so the consignor may take the freight from him and recover from him besides all damages thereby occa- sioned. Id. sec. 4202. NOKTll l>AlvUTA. 621 Carrier exonerated by deliverini,' freight to holder : A carrier is exonerated I'lom liability for freight by delivery thereof in good faith to any liolder of a bill of lading therefor, properly indorsed, or made in favor of the bearer. Id. sec, 4203. When surrender required : When a carrier has given a bill of lading or other instrument substantially equivalent thereto, he may reciuirc its surrender or a reasonable indenmity against claims thereon before deliv- ering the freight. Id. sec. 4204. Making false manifest — Bill of lading— Penalty : Every person guilty of preparing, making or subscribing, any false or fraudulent manifest, invoice, bill of lading, boat's register or protest, with intent to defraud another, is punishable by im- prisonment in the penitentiary not less than one and not ex- ceeding three years, or by a fine not exceechng one thousand dollars, or both. Id. sec. 7497. Bills of lading — Fraudulent — Punishment : Every person being the master, owner or agent of any vessel or officer or agent of any railroad, express or transportation company or otherwise being or representing any carrier, who delivers any bill of lading, receipt or other voucher, or by which it appears that any merchandise of any description has been shipped on board any vessel or delivered to any railroad, ex- press or transportation com]3any or other carrier, unless the same has been shipped or delivered, and is at the time actually under the control of such carrier, or the master, owner or agent of such vessel, or of some officer or agent of such company, to be forwarded as expressed in such bill of lading, receipt or voucher, is punishable by imprisonment in the penitentiary not less than one and not exceeding five yenrs. or by a fine not exceeding one thousand dollars, or both. Id. sec. 7540. Warehouse receipt — Fraudulent — Punishment : Every person carrying on the business of a warehouseman, wharfinger or other depositary of property, who issues any receipt, bill of lading or other voucher for any merchandise of (322 ^•OKTH DAKOTA LAWS. any description which has not been actually received upon the premises of such person, and is not under his actual control at the time of issuing such instrument, whether such instru- ment is issued to a person as being the owner of such merchan- dise or as security for any indebtedness, is punishable by im- prisonment in the penitentiary not less than one and not ex- ceeding five years or by a fine not exceeding one thousand dollars, or both. Id. sec. 7541. Same — Exceptions : No person can be convicted of any offense under the last two sections by reason that the contents of any barrel, box, case, cask or other vessel or package mentioned in the bill of lading, receipt or other voucher, did not correspond with the description given in such instrument of the merchandise re- ceived, if such description corresponded substantially with the marks, labels or brands upon the outside of such vessel or package, unless it appears that the accused knew that such marks, labels or brands were untrue. Id. sec. 7542. Warehouse receipt — Duplicate : Every person mentioned in sections 7540 and 7541, who issues any second or duplicate receipt or voucher, of a kind specified in those sections, at a time while any former receipt or voucher for the merchandise specified in such second receipt is outstand- ing and uncancelled, without writing across the face of the same the word "duplicate," in a plain and legible manner, is punish- able by imprisonment in the penitentiary not less than one and not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Id. sec. 7543. Selling goods witliout consent of holder of bill of lading : Every person mentioned in sections 7540 and 7541, who sells, hypothecates or pledges any merchandise for which any bill of lading, receipt or voucher has been issued by him, without the consent in writing thereto of the person holding such bill, re- ceipt or voucher is punishable by imprisonment in the peniten- tiary not less than one and not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Id. sec. 7544. NOKTII KAKUTA. 623 Bill of lading or receipt must be eaiicelled : Every person, such as inoiitioned in section 7541, who delivers to another any merchandise for which any bill of lading, receipt or voucher has been issued, unless such receipt or voucher bore upon its face the words "not negotiable," plainly written or stamped, or unless such receipt is surrenderetl to be cancelled at the time of such delivery, or unless, in the ca«e of a partial delivery, a memorandum thereof is indorsed upon such receipt or voucher, is punishable by imprisonment in the penitentiary not less than one and not exceeding five years, or by a fine not exceeding one thousand dollars or both. Id. sec. 7545. When last two sections do not apply : The last two sections do not apply when property is de- manded by virtue of process of law. Id. sec. 7546. 624 NUKTH DAKOTA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — The mingling of ivheat with other of a like quality. The plaintiff, the owner of wheat, deposited the same with the defendant, a warehouseman. It appears under the ware- house receipts and the statutes pertaining thereto that plaintiff Wiis not entitled to demand the delivery of the identical wheat stored. It was held that this constitutes a contract of bailment and not a sale. Marshall v. Andrews & Gage, 8 N. D, 364. B. Conversion — Prima facie case. Where the plaintiff shows delivery of the property to the defendant and a demand for its return and a refusal to comply with such demand, he has made out a prima jade case of con- version. Id. Same — Necessity of demand. In order to sustain an action for the conversion of property stored with a warehouseman it is essential to show demand prior to suit. Towne v. St. Anthony & Dakota Elevator Co., 8 N. D. 201; Sanford v. Diduth & Dakota Elevator Co., 2 N. D. 6. Same — Effect of notice as to ownership of property stored. If a warehouseman receives grain and stores the same issuing the receipts therefor in the name of the one who deposits the same, it is held that in the absence of notice, actual or con- structive, of the claim of another of title to the grain stored, that the warehouseman cannot be held guilty of conversion. If, however, it can be shown that the warehouseman received notice or w^as in possession of such facts as would put a reason- able man on guard or notice of the adverse title, it is held that the issuance of receipts to one not the owner of the grain, or, the shipment of the grain out of the state, would constitute a conversion thereof. Towne v. St. Anthony & Dakota Elevator Co., 8 N. D. 200. NOllTll DAKOTA. ^^•25 Same— Purchase of mortgaged chattel not in itself a conversion. The owner of certain wheat who had borrowed money thereon and had given a chattel mortgage to secure the payment tliereof, such mortgage being properly recorded as retjuired by law, de- posited the same in the warehouse of the defendant, the defend- ant thereupon paying in full U>r \hv wheat and becoming the purchaser thereof. In a suit against the defendant for the conversion of the wheat it was held that in sucii a case a de- mand was essential before suit brought, and further that the sale and delivery alone did not constitute; a conversion. It was further held that even had the defentlant had actual notice of the mortgage in addition to the constructive notice that the purchase by him of the property would in no sense have been a conversion thereof as, under the laws of the state, the owner of personal property has always a right to sell and de- liver the same, the purchaser taking a good title subject to any lien thereon, and finally that a chattel mortgage does not trans- fer the title of the property. Sanford v. Duluth & Dakota Ele- vator Co., 2 N. D. 6. Same — When demand unnecessary. The defendant, a warehouseman, received wheat in store and prior to issuing the receipts therefor to the depositor received notice from the plaintiff that she had a claim against such wheat pursuant to an agreement with the depositor and notified the warehouseman not to issue the receipts until her claim was satisfied. Subsequently the defendant issued the receipts to the depositor without notice to the plaintiff. Upon the above stated facts it was held that the issuance of these receipts by the warehouseman constituted a conversion of the property for which he was liable and that the contention made in his behalf that it was necessary to show a demand made upon him prior to suit brought could not be sustained as the conversion had taken place at the time the receipts were issued to the depositor. Willard v. Monarch Elevator Co., 10 N. D. 400. L. Replevin — When it will not lie — Mingling of grain. The owner of certain wheat who had mortgaged it to the 40 626 NORTH DAKOTA DECISIONS. plaintiff stored the same in a warehouse and took a general storage receipt therefor. As was the custom, the wheat was mingled with other wheat stored in the warehouse and the de- fendant had a right to the return of the identical wheat stored. The mortgagee brought replevin against the defendant for the recovery of the wheat. It was held that it could not be main- tained for the defendant as the owner of the storage ticket did not have either constructive or actual possession of the grain m question. Best v. Muir, 8 N. D. 44; Marshall v. Andrews & Gage, 8 N. D. 364. N. Loss by fire — Gratuitous payment — Gross negligence. In a suit against a railroad company charging it \\ith Hability as a warehouseman for the destruction of goods by fire wliile stored in its depot the evidence was conflicting as to whether or not the company was acting as a gratuitous bailee or as one for hire ; but as the evidence further showed that burning waste had been thrown within thirty inches of the depot platform and had been left there by one of the employees of the defend- ant, it was held that the company was liable in either' case and that such conduct constituted gross negligence. Whiting v. Chicago, M. & St. P. R. R. Co., 5 Dak. 90. Same — Burden of proof. Where the defendant, a warehouseman, attempted to excuse the non-delivery of goods intrusted to him on the ground that they were destroyed by fire, the burden of proof was on him to show that the fire was not caused by his negligence. Marshall V. Andrews & Gage, 8 N. D. 364. U. Puhlic warehousemen— Statute prescribing rates of storage con- stitutional—If such rates be unreasonably low, qucere. By chapter 126 of the Laws of 1891 of the state of North Dakota the rates of storage which public warehousemen were allowed to charge were prescribed. Said act further defined what would constitute a public warehouse. In an action by the state at the relation of one Stoeser against a warehouseman for violation of this statute it was contended in behalf of the NORTH DAKOTA. 627 flefendant that the act in question abridged his privileges .-ind immunities and that it deprived him of liis hberty and i)ropc'rty without due process of law and that it denied to him the ('.([U-A protection of the law guaranteed to him jjy the state and federal constitutions. It apijeared that the defendant had suflicient empty space in his warehouse in which to store the relator's grain and that he refused to receive the grain for the reason that he was unwilling to reduce his storage charges under legis- lative diction. Nothing was alleged or claimed in argument tending to show that the prescribed rate would be noncom- pensatory; much less that it would operate practically to con- fiscate defendant's business as a warehouseman. The cjuestion involved was therefore clearly one of legislative power with reference to the limitations of such power existing in the con- stitutions of the state and nation. The court held that the act in question was constitutional as the legislature in the proper exercise of the internal police power, inherent in every govern- ment, could control the business of warehousemen. Xorth Dakota ex rel. Stoeser v. Brass, 2 N. D. 482, aff'd 153 U. S. 391; Munn V. Illinois, 69 111. 80, aff'd 94 U. S. 113; The People v. Budd, 117 N. Y. 1, aff'd 143 U. S. 517. In the last cited case the United States supreme court declined to anticipate what its decision might have been had the storage rates prescribed by statute been inadequate. See note under People v. Budd, New York Decisions, p. 601, this volume. &2S OHIO LAWS. CHAPTER XXXV. OHIO. LAWS PERTAINING TO WAREHOUSEMEN. Lien of consiguee of merchandise : Every person in whose name any merchandise is shipped, or delivered to the keeper of any warehouse, or other factor or agent, to be shipped, shall be deemed the true ow^ner thereof, so far as to entitle the consignee of such merchandise to a lien thereon: First, for any money advanced, or negotiable security given by such consignee, to or for the use of the person in whose name such shipment, or such delivery of merchandise to be shipped has been made. Second, for money or negotiable security received by the person in whose name such shipment, or such delivery of merchandise to be shipped, has been made to, or for the use of, such consignee. Bates' Annotated Ohio Stats. 1900, sec. 3214. Limitation on last section : The lien provided for in the preceding section shall not exist when such consignee has notice by the bill of lading, or other- wise, at or before the advancing of any money or security by him, or at or before receiving of such money or security by the person in whose name the shipment or the delivery of the mer- chandise to be shii)]:)ed has been made, that such person is not the actual and bona fide owner thereof. Id. sec. 3215. In what cases factor or agent deemed true owner : Every factor or other agent, intrusted with the possession of any bill of lading, custom house permit, or warehousekeeper's receipt for the delivery of any such merchandise, and every such factor or agent, not having the documentary evidence of title, intrusted with tho possession of any morchandiso for the purpose of sale, or as a security for any advances to be made OHIO. 629 or obtained thereon, shall be deemed to he the true owner there- of, so far as to give vahdity to any eontraet made l>y such a^ent with any other person for the sale or disposition of the whole or any part of such niciehandise, for any money advanced or negotiable instnnnent, or other obligation in writing, given by such other person upon the faith thereof. Id. see. :i21(). Above section construed : Where a bank had in good faith loaned money to a factor and had taken in security therefor a warehouse receipt, which had been sent to the factor by the owner for the purpose of effecting a sale, it was held that the transaction was a valid one and the bank was therefore protected; it appearing that the loan made to the factor was a new loan and that the receipt had not l)een transferred to the bank to secure any antecedent debt or de- mand. Cleveland, Brown & Co. v. Shoeman, 40 0. S. 176. When merchandise accepted from such agent as security for antecedent debt : Every person who accepts any such merchandise on rleposit from any sucli agent, as security for any antecedent debt or demand, shall not thereby acc^uire or enforce any right or in- terest in or to such merchandise or document, other than was possessed or might have been enforced by such agent, at the time of such deposit. Bates' Annotated Ohio Stats. 1900, sec. 3217. Rights of true owner under last two sections : Nothing contained in the two last preceding sections shall be construed to prevent the true owner of any merchandi.-^e, so deposited, from demanding or receiving the same, upon repay- ment of the money advanced, or on restoration of the security given on the deposit of such merchandise, and ui)on satisfying such lien as may exist thereon in favor of the agent who may have deposited the same; nor from recovering any balance which may remain in the hands of the person with whom snch merchandise has been deposited, as the produce of the sale thereof, after satisfying the amount justly due to such person by reason of such deposit. Id. sec. 3218. 630 OHIO LAWS. Hypothecation, etc., by common carriers and warehouse- men : Nothing contained in this chapter, except as hereinafter pro- Aaded, shall authorize a common carrier, warehousekeeper, or other person to whom merchandise or other property may be committed for transportation or storage only, to sell or hy- pothecate the same. Id. sec. 3219. Owner's relief by action : A comt may compel discovery, or grant relief in an action therein by owner of any merchandise or other property, so intrusted or consigned, against the factor or agent by whom such merchandise or other property has been applied or sold, contrary to law, or against a person who knowingly is a party to such fraudulent application or sale thereof; but no answer in such action shall be read in evidence against the defendant making the same on the trial of any indictment for the fraud charged in the petition. Id. sec. 3220. Notice to owner of receipt of freight : All express companies, transportation companies, forward- ing and commission merchants, common carriers, warehouse- men, wharfingers, and railroad companies, doing business in this state shall within thirty days after the receipt of any property in their warehouse, depot, station, store or other place of de- posit or doing business when such property is plainly marked with the owner's name and place of residence, or be other-v\dse known, notify the owner that such property is held by them subject to charges, either by leaving such notice at the usual residence or place of business of the owner, or by depositing the same, postage prepaid, in the proper post-office, duly ad- dressed to such owner. Id. sec. 3221. Register of freight : All persons, associations, or companies, shall keep a register, in which shall be entered a list or inventory of all goods, wares, merchandise, baggage, or other property, with a pertinent de- scription thereof by marks thereon, the size and weight, and the depot, warehouse, or other place where the same is deposited. uijio. 0:^1 the time when the same was reccivetl, and the amount of charges claimed thereon, whicli may be left in the possession of such person, association or company, by reason of tlie owner being unknown, or wlien such owner's residence is not iinown. or when such property has been refused, or the owner has neglect^jd to receive the same. Id. sec. 3222. When property may be sold : When any such property has been conveyed to any point in this state, and remains unclaimed for the space of six montiis at the place to which it is consigned, and the owner fails within that time to claim the same, and to pay the proper charges, if there be any against it, such person, association, or company, may sell such freight or other property, at pubUc auction, of- fering each parcel separately. Id. sec. 3223. Notice of sale of property to be given : Such property may be offered for sale either in the place where the office, station, depot, or warehouse in which the same has been deposited for safe-keeping, is located, or at any other place where such person, association, or company may deem best to insure a prompt sale thereof; at least thirty days' notice of the time and place of sale, containing a descriptive list of the several articles to be sold, with names, numbers, and marks 'thereon, shall be given, by posting such notice at the ofhce, station, or depot of such person, association, or company in the county where the place to which such property was consigned is situ- ated, or, if there be no such office, station, or depot, by posting such notice in three public places in such county; and. in addi- ■ tion to the posting at the place of consignment, such descriptive list must be posted at the place where the property is to be sold, and thirty days' notice of the time and place of sale must bo published in a newspaper of general circulation in the county where the property is to be sold. Id. sec. 3224. Disposition of proceeds of sale : Such person, association, or company, from the proceeds of the sale of such property, shall pay nil the necessary costs and expenses of the sale, and all proper charges for freight and storage 632 OHIO LAWS. of the property sold, apportioning such expenses and charges, as near as may be, among the articles sold, to the amount re- ceived for each, and hold the overplus, if any, subject to the order of the owner thereof, at an}'- time within one year after such sale, upon proof of ownership by affidavit of the claimant or his attorney; and after the expiration of one year, all such sums unclaimed shall be paid into the state treasury, to be placed to the credit of the common schools ; but any such article remaining unsold may again be offered as above provided, until sold. Id. sec. 3225. Suit to subject freight to payment of costs, etc. : Such person, association or company may bring suit before any court of competent jurisdiction for the amount of the freight, storage, and legal charges thereon, and subject such freight to the payment thereof, after ten days from the giving of the notice provided for in section thirty-two hundred and twenty-one unless such cost and charges are paid, if the owner or consignee is known or can be found in the county, but if such owner or consignee is unknown, a non-resident of the county, or his place of residence is unknown, then such notice shall be published for not less than ten days in a newspaper of general circulation in such county, and in such case the suit may be brought after ten days from the first publication; and the judgment obtained shall be a lien upon the freight, to satisfy which, with costs of suit, the same shall be sold. Id. sec. 3226. Storage and lien therefor : Such person, association, or company, after the expiration of ten days from the receipt of goods at the place to which they are consigned, may, upon giving or depositing the notice pro- vided in section thirty-two hundred and twenty-one, and the ex- piration of ten days, charge a fair and reasonable cost for stor- age, which shall be a lien upon the goods so stored, and such person, association, or company may, after the expiration of said ten days, deliver such goods to any warehouseman or storage merchant at the point of destination of such goods or merchandise, or in case there be no responsible warehouseman or storage merchant at such point willing to receive the goods, OHIO. ii'M then at the most convenient point wiiere storage can be offectrd. and receive from such warehouseman the freight and charRcs due such I'aih-oud or other company ujjon tlie same, notifyinj; the owner or consignee of such storage, when known, in the manner provided in section thirty-two hundred and ticenty-one, and the advances made, and all reasonable charges for storage shall be a lien upon the goods so stored. Id. sec. 3227. Copy of notice, sale bill, etc., to be kept : Such person, association, or company shall keep a copy of the notice, a copy of the sale bill, and the expenses thereof, pro- portional to each article sold, and also the oath of the claimant of the residue of the proceeds as aforesaid, and shall furnish an inspection of the same, and, if required, copies thereof to any one, on payment of the proper charges therefor. Id. sec. 3228. Sale of perishable articles : If any perishable property be so conveyed as freight, and remain unclaimed until in danger of great depreciation, or tiie same be refused, or the owner thereof cannot be found, then such person, association or company may sell the same at private sale, or auction, without giving notice, for the best price it will bring, and apply the proceeds as aforesaid. Id. sec. 3229. Above section construed : Live stock is perishable property within the meaning of above section, and may be sold when no owner can be found. Town- ship Trustees v. Brighton Stock Yards Co., 27 0. S. 435. Within what time property may be claimed : If the owner of any such property, at any time within five years, reclaim the same, and produce satisfactory evidence to the auditor of state of his ownership thereof, the auditor shall draw his warrant in favor of such person upon the treasurer of state for the amount paid into the state treasury. Bates' An- notated Ohio Stats. 1900, sec. 3230. Penalty for neglect to comply witli i)rovisioiis : Any such person, association or company who refu.ses or neg- 634 OHIO LAWS. lects to perform any of the duties required by this chapter, with the intent to avoid the provisions thereof, shall forfeit and pay a sum not less than one hundred dollars, nor more than five hundred dollars, at the discretion of the court, to be recovered for the use of common schools in the county in which the prin- cipal office of such person, association, or company is located, and shall, moreover, be liable to any person injured thereby in double the value of the property. Id. sec. 3231. Authorizing certain corporations to purchase or lease real estate : A corporation organized for the purpose of constructing and maintaining buildings to be used for hotels, storerooms, offices, warehouses, factories, shall be authorized to acquire by pur- chase or lease, and to hold, use, mortgage and lease all such real estate or personal property as may be necessary, for the purpose hereinbefore mentioned; provided, however, that no such corporation shall acquire or mortgage any real or lease- hold estate, or lease the same for a period exceeding (with all privileges of renewal) the term of five years, without the con- sent of the holders of two thirds of the stock, obtained at a meeting called for that purpose, written notice of which shall have been given to each stockholder, either personally, or de- posited in the post-office, properly addressed and duly stamped, not less than ten days before the day fixed for such meeting. Nothing herein shall be construed as authorizing corporations to buy and sell, or to deal in real estate for profit. Id. sec. 3884a. Authorizing railroad companies to issue storage or ware- house certificates : Any railroad company, organized under the laws of this state, upon the receipt of iron ore or grain or other merchandise from any vessel, water-craft or other source for storage and deposit, duly consigned to said company may, upon the request or de- mand of the owner or owners of said ore, grain or other mer- chandise, and with the written consent of the consignee, issue to the owner or owners of said ore, grain or other merchandise, a certificate, receipt or voucher, which certificate, receipt or voucher, shall name the railway company by whom said ore or OHIO. C;3o grain or other merchandise is held at the time said certificate, receipt or voucher is issued, to wlioiu said ore, grain or (Alier merchandise was consigned, the quantity held by said company, and so near as may be the quality or grade thereof, but not in- curring any liability for the grade or ([uality, which certificate, receipt or voucher, shall be signed by the president or vice- president of said company, and countersigned by the general agent of said company appointed for that purpose, or such other officers as may be appointed by said railroad company, and shall be transferable and negotiable by indorsement thereon, by the person or persons to whose order the same is made pay- able. That on the presentation of said certificate, receipt or voucher, so indorsed to said railroad comf)any at its general office, (by) the holder or holders thereof and on demand, the said railway company shall deliver to said holder or holders, the iron ore or grain or other merchandise so described therein, on the payment by such person or persons to said railway company (of) all proper charges thereon. Id. sec. 3378 Z. False or fictitious bills of lading : Whoever executes and delivers to any person any false or fictitious bill of lading, receipt, schedule, invoice, or other writ- ten instrument, to the purport or effect that any property usually transported by carriers had been or was held, delivered, re- ceived, or deposited on board of any steamboat or watercraft navigating the waters in or bordering upon the state of Ohio, or at the freight office, depot, station, or other place designated or used by any railroad company, or other common carrier for the reception of any such property, when such property was not held, or had not, in fact and in good faith, been delivered, re- ceived, or deposited on board such steamboat, or other water- craft, or at such place, at the time such written instrument wa.*? made and delivered, with intent to defraud ; or indorses, assigns, transfers, or puts off, or attempts to indorse, assign, transfer, of put off, any such false or fictitious bill of lading. recei|)t. in- voice, schedule, or other written instrument, knowing the same to be false, fraudulent, or fictitious, shall be imprisoned in the penitentiary not more than four years nor less than one year. Id. sec. 7085. 636 OHIO LAWS. . False or llctitious wareliouse receipts : "Whoever executes and delivers to any person any false or fictitious warehouse receipt, acknowledgment, or other instru- ment of writing, to the purport and effect that any person held or had received in store, or held or had received in any ware- house, or in any other place, or held or had received in posses- sion, custody, or control, any goods, wares, or merchandise, when such goods, wares, or merchandise were not held, or had not been received, in good faith, by such person, with intent to defraud; or indorses, assigns, transfers, or delivers, or attempts to indorse, transfer, or deliver to any person, any such false or fictitious warehouse receipt, acknowledgment, or instrument of writing, knowing the same to be false, fraudulent, or fictitious, shall be imprisonerl in the penitentiary not more than three years nor less than one year. Id. sec. 7086. Appointment of tobacco inspector : The probate court of any- county, upon application of the proprietor of any leaf tobacco commission warehouse, who offers for sale tobacco at public auction, shall qualify the appointee of such commission warehouse of one or more suitable persons, well skilled in the inspection of leaf tobacco, to act as inspectors and weighers of tobacco at such commission warehouse to serve as such during the pleasure of such warehouseman, and until successors shall be appointed and qualified, and the court shall thereupon also grant a license to the proprietor of such ware- house to conduct his business in accordance with the provisions of this chapter. Id. sec. 4334. Exemption from duty for auction sales : No duty or tax shall be imposed or collected for sales of tobacco at auction at such warehouse. Id. sec. 4335. TVarehouseman's bond : Before granting any license for the establishment of a tobacco warehouse, the court shall require the proprietor of such ware- house to enter into bond, payable to the state, in the penal sum of twenty thousand dollars, with at least one sufficient surety, resident in the county, conditioned for the faithful discharge OHIO. 637 of all duties devolved upon him by this chapter, which shall be filed at the probate court granting the license for the use of any person who may be aggrieved by the non-fuUilment of such duties. Id. sec. 4336. Fees for issuing? license, etc : The fees for issuing such license shall be five dollars, and for appointing inspectors and approving tlioir bonds, three dol- lars. Id. sec. 4337. Entry of appointment on journal : The court shall cause an entry of the appointment of an in- spector to be made on the journal of the court, and a certificate of his appointment, under the seal of the court, shall be deliv- ered to the person so appointed. Id. sec. 4338. Form of inspector's oath : Every inspector of tobacco, before he acts as such shall, under the penalty of three hundred dollars, take the follow- ing oath of office: "I, A. B., appointed inspector of tobacco at warehouse, do swear that I will, in all things, faithfully discharge my duty in the office of inspector according to the best of my skill and judgment, according to law, without fear, favor, affection, malice, or partiality, so help me God;' which oath any justice of the peace may administer, a copy of which shall be transmitted to the court appointing the inspector, within ten days from the time the oath has been administered. Id. sec. 4339. Inspector's bond : Every such inspector and weigher, before he execut<»s any part of his duty, shall, under the penalty of eight hundred dollars, enter into bond in the penal sum of two thousand dollars, to the satisfaction of the probate judge, with sullicient sureties, payable to the state for the use of any j)erson injured by the neglect or misconduct of such insj)ector and weigher, with condition that such inspector w^ill diligently and carefully uncase and break in at least four places, or cau.«!e the i^ame to be done, in his presence, view and examine all tobacco brought to the warehouse, at which he is inspector and weigher, which tJ38 OHIO LAWS. he is called on to view, weigh and inspect, at such warehouse, or any other public warehouse; and that he will not receive, weigh, pass, or mark any tobacco, or hogshead, barrel, box, or case of tobacco, prohibited by this chapter, and that he will, in all things, well and faithfully discharge and execute his duty in the office of inspector and weigher, according to the provi- sions of this chapter, which bond shall be deposited with the said probate judge, who shall file the same in his office, and any person injured may bring suit thereon for a breach thereof. Id. sec. 4340. Above section construed : The contention that the inspectors appointed under ch. 6, title 5, of the Revised Statutes as amended April 20, 1881 (78 0. Law, 242), have the exclusive right to inspect tobacco in all the warehouses belonging to the members of a certain board of trade, cannot be maintained. The tobacco which such in- spectors are required to inspect is hmited to such tobacco as they may be ''called on to view, weigh and inspect, at such warehouse, or any other public warehouse." Sec. 4340, above; The State v. Casey, 38 0. S. 555. Fees of inspector : There shall be allowed to inspectors of tobacco, appointed by virtue of this chapter, the sum of twenty-five cents for each hogshead, box, or case of tobacco inspected, to be paid by the owner or agent delivering the same at the warehouse, and to the proprietor or proprietors of such warehouse, two dollars and fifty cents per hogshead, and one dollar per box or case, for receiving, storing, weighing, marking, selling at public out- cry or at private sale, at the request of the owner or consignor, and collecting, one half of which shall be paid by the owner or consignor, and the other half by the purchaser of the tobacco, and no proprietor of a warehouse shall be bound to deliver any tobacco stored with him until such charges and the inspector's fees are paid. Bates' Annotated Ohio Stats. 1900, sec. 4341. Penalty against inspector for speculating : No inspector shall, directly or indirectly, during his con- OHIO. 639 tinuance in office, buy or receive any tobacco by way of barter, loan or exchange or in any way nieddk" witli, or busy liiins('lf in procuring tobacco to be sold or consigned to any niercliant, except the tobacco owned by such inspector, under the penalty of one hundred dollars for every hogshead of tobacco so brought or received, or procured to be sold or consigned contrary to this chapter; but any inspector may receive his fees for inspection, and his proper rents or debts in tobacco. /(/. sec. 4342. Penalty against altering, etc., inspector's marks : Whoever willfully erases or in anywise alters or defaces any letter, mark, number or figure placed ujjon any hogshead of tobacco by an inspector, or in any manner counterfeits any letter, mark, number, or figure, on any such hogshead of to- bacco, shall forfeit and pay one hundred dollars for every such ofTense. Id. sec. 4343. Penalty against inspector for taking illegal fees, etc. : An inspector who accepts or receives, directly or indirectly, any gratuity or reward for anything done by him in pursuance of this chapter, other than his fees, as in this chapter defined, shall forfeit and pay the sum of three hundred dollars, and be disabled from holding the office of inspector; and whoever offers a gratuity, reward or bribe to an inspector for anything by such inspector to be done in pursuance of this chapter, shall, for every such offense, forfeit and pay three hundred dollars. Id. sec. 4344. Penalty against inspector for neglect : An inspector who neglects or refuses to attend, as directed by this chapter, unless prevented by sickness or unavoidable accident, shall forfeit and pay to the party aggrieved twenty dollars for every neglect or refusal, or shall be liable to an ac- tion by the party aggrieved, to recover all damages sustained by reason of any such neglect or refusal, together with costs. Id. sec. 4345. Duties of inspector : Every inspector shall uncase and break every hogshead, bar- rel, package, case, or box of tobacco, or cause the same to be 040 OHIO LAWS. done in his presence, which he may be called on to inspect, and weigh in not less than four different places; and if the said in- spector and weigher is of the opinion that such tobacco is sound, clean, in good order and condition, and merchantable, he shall weigh or cause the same to be weighed in his presence, on scales with weights, which he shall mark or cause to be marked on the head, side or bulge thereof, with the name of the warehouse, the tare of the hogshead, barrel, box, or package, and quantity of net tobacco therein contained, and also mark on the head of the hogshead, barrel, or package, with the initials of the name of the owner, and the number of the hogshead, barrel, box, or package there inspected. Id. sec. 4346. Inspector to select samples, one for purchaser and one to be returned and preserved : The inspector shall select two fair samples of each hogshead, barrel, box, or package of tobacco, by him inspected, and passed as sound and merchantable, which samples shall consist of not less than six hands or bundles, and each of which he shall bind together with a cord, and attach a label thereto, on which shall be written the name of the person for whom, or in whose name the tobacco is inspected, together with the number of the pack- age, the gross weight, tare and net weight of the tobacco, one of which samples shall be delivered to the purchaser of the tobacco, with a note or certificate hereinafter provided for, and the other of which samples said inspector shall retain and care- fully preserve for one year after such inspection. Id. sec. 4347. Record of inspection to be kept : The inspector shall carefully enter, or cause to be entered, in a book to be provided and kept for that purpose, every hogs- head of tobacco viewed, passed and marked by him, and the quality thereof, mark and warehouse number, with the gross, tare and net weight of all such tobacco. Id. sec. 4348. Re-assortment of tobacco rejected by inspector : If a hogshead of tobacco is brought to any warehouse for inspection, and the inspector refuse to receive and pass the same, the owner or other person bringing such tobacco will OHIO. f;41 undertake to pick and separate the good from the bad, tlic in- spector shall allow the use of one or more of his prizes for priz- ing such tobacco, so separated and repacked in such hogsheads; and if there are several hogsheads of tobacco, belonging to sev- eral owners, to be packed, repacked and prized at any public warehouse, the owner or other person, whose tobacco is first examined and refused, on bringing the same, shall be first per- mitted to make use of such prize; and the same rule shall be observed in prizing all tobacco picked and prized as aforesaid. Id. sec. 4349. Penalty against inspector for appropriating samples, etc. : No inspector shall take and convert to his own use or other- wise dispose of any draughts or samples of tobacco drawn out of any hogshead, but the same shall be delivered to the owner or other person offering the same for inspection, under the penalty of seventy-five cents. Id. sec. 4350. Storage fees : When any hogshead, box, or case of tobacco has remained in any warehouse, licensed under this chapter, for a longer period than three months, the proprietor shall be entitled to charge additional storage on the same at the rate of twenty cents per month, for each hogshead, box, or case, and a lien is hereby created in his favor for such storage, and all other charges on all tobacco delivered at his warehouse. Id. sec. 4351. Warehouseman to give receipt : Proprietors of warehouses licensed under the provisions of this chapter shall immediately upon the delivery of every hogs- head, box or case of tobacco at any such warehouse, weigh and give receipt for the same if required by the owner or person bringing the same, which shall be given up on the sale or re- delivery of such tobacco. Id. sec. 4352. Inspector's receipt : The inspector who passes any tobacco shall deliver to the owner as many notes as may be required, not exceeding one note or receipt for each hogshead or cask, which note or receipt shall express the time and place of reception, the mark, the ware- 41 04:2 OHIO LAWS. house number, gross, tare and net weight for all tobacco in- spected and passed whether of the first or second quality; the first quaUty to consist of tobacco clear of and unmixed with trash; and the tobacco for which such note calls shall be de- livered to the owner or bearer thereof on demanding the same and giving up such note. Id. sec. 4353. Penalty a!;tl certain (h'afts drawn on them by the defendants for the pur- chase money. The receipts which the defendants gave to B. & Co. were in form warehouse receipts containing the name o( the warehouseman and stating in the body thereof that the whiskey was held for the account of "and subject to the order of B. & Co. Deliverable only on return of this receipt to us properly indorsed, and on payment of United States govern- ment tax and charges on same." B. & Co. failed to pay the drafts at maturity, they became insolvent and the plaintiff purchased the warehouse receipts from one to whom they had been pledged by B. & Co. This purchase was made in good faith and without notice of any claim of the defendants for the unpaid purchase price. On the above stated facts it was held that the defendants were estopped to set up their claim for purchase price by their act in issuing the receipts wliich the plaintiff had purchased in good faith. The plaintiff had no knowledge that the whiskey had not been paid for nor that the real warehouse receipts were in the hands of the defendants. Therefore, judgment which had been given below for defendant was reversed. Ensel v. Levy & Bro., 46 0. S. 255. Same — Not a negotiable instrument. A receipt given by a warehouseman for property placed in his possession for storage is not, in a technical sense, like a bill of exchange, a negotiable instrument, but it merely stands in the place of the property it represents, and a deliver}' of the receipt has the same effect in transferring the title to the prop- erty as the delivery of the property. Second National Bank v. Walbridge, 19 0. S. 419. Same— Issued to factor— Collateral security— Bank protected when bona fide holder. The owner of a quantity of flour sent the warehouse receipt therefor to his factor for the pm-pose of sale. The factor, without authority from the owner, pledged the receipt to secure 654 OHIO DECISIONS. a personal loan made to him. The receipt was not pledged to secure an antecedent debt or demand. The bank in good faith loaned the money and accepted the warehouse receipt as security therefor, and made an agreement for the disposal of the flour. It was held that under the terms of the act of March 12, 1844, sees. 3 and 4, in force at the commencement of the action that the factor was to be regarded as the true owner of the flour and that such transfer and agreement were valid and that the bank was entitled to hold the flour as security for the payment of the loan, Cleveland, Brown & Co. v, Shoeman, 40 0. S. 176. Same — Same — Action for conversion hy assignee. The defendant, a warehouseman, issued warehouse receipts to the depositor of a large rjuantity of lard. Such receipts were assigned to and pledged with the i)laintiff bank as security for advances made by it to the owner of the lard. The defendant afterward delivered the lard to the owner and did not require the return of the receipts. The receipts were in form negotiable. On the above stated facts it was held that the defendant was liable to the plaintiff for the value of the property which he had allowed to be removed from his warehouse. First Na- tional Bank of Cinciiinati v. Bates, 1 Fed. Rep. 702. Same — Same — National hank may hold warehouse receipt as collateral. A national bank mgde a loan on a warehouse receipt as col- lateral security. Under the United States Revised Statutes pertaining to national banks, it was held that such a bank may lawfully make a loan and take as collateral security therefor a warehouse receipt representing personal property. Cleveland, Brown & Co. v. Shoeman, 40 0. S. 176. Saine — Effect of statement in receipt that the bailor has a lien on goods for fidl cost thereof — Goods levied on while stored. In an action to recover damages for the wrongful levy upon property stored with a warehouseman the plaintiff in order to prove his title to the property offered in evidence thirteen ware- house receipts which among other things stated that the ware- "III". 065 houseman agreed to hold tlio goods subject to the on\vv of tli(; plaintiff he having a lien tlu'ivon for the full c(jst of the same, it was held that the general proi^erty in the goods and the right of possession passed to the plaintiff under such warehouse re- ceipts and that he was therefore entitled to conijK!nsati(jn for the time that he was deprived of their possession liy the sherilT. Gibson, Stockivell & Co. v. The Chillicothe Bank, II ( ). S. .111. See Thome v. First National Bank, 37 O. S. 254, which is dis- tinguished from the above. Same — Duplicate — Issued by mistake — Good defense. A warehouseman innocently issued duplicate receipts to the owner for property stored with him and the plaintiff, the as- signee of the second receipt, obtained possession of the gooils from the warehouseman. Subsefjuently the assignee of the first receipt recovered the goods from the plaintiff in an action of replevin. It was held in the action brought by the assignee of the second receipt against the warehouseman that the latter would be permitted to show as against the plaintiff the mistake in the issuance of receipts as a defense to the action, there being no privity between the plaintiff and the defentlant. Second National Bank, etc., v. Walbridge, 19 0. S. 419. 656 OKLAHO-MA LAWS. CHAPTER XXXVII. OKLAHOMA. LAWS PERTAINING TO WAREHOUSEMEN. An Act pro\dcling for the organization of public warehouses, and to regulate the warehousing and inspection of grain in public warehouses and otherwise in the territory, and provid- ing for the appointment of grain inspectors. Be it enacted by the Legislative Assembly of the Territory of Okla- homa: Chief inspector — Appoiiitmeut : It shall be the duty of the governor of the territory of Okla- homa, on or before June first after the passage of this act, to appoint a suitable person who shall not be interested, directly or indirectly, in any public warehouse in this territory, who shall be a grain expert, and who shall be known as the chief inspector of grain for the territory of Oklahoma, whose term of service as such shall continue for two years from the date of his appointment under this act, and until his successor is ap- pointed and qualified. Laws, Oklahoma, 1899, ch. 27, p. 199, sec. 1. Supervision : It shall be the duty of the chief inspector to have general supervision of the inspection of grain as required by this act or the laws of the territory. Id. sec. 2. Public warehouses : Public warehouses shall embrace all warehouses, elevators and granaries in which is stored grain in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots can- not be accurately preserved: Provided, That no warehouse, OKLAHOMA. »j;JT elevator or granary with a capacity of less than 2o,()()() hu.^hcls measurement, shall be considered a public warehouse. Id. sec. 3. License to operate : The proprietor, lessee or manager of any i)ublic warehouse shall be required, before transacting any business in such ware- house, to procure, from the district court of the county in which such warehouse is situated a license permitting such proprietor, lessee or manager to transact business as a pul)lic warehouse- man under the laws of this territory, which license shall be issued by the clerk of said court upon written application", which shall set forth the location and name of such warehouse and the individual name of each person interested as owner or princi- pal in the management of the same, or, if the warehouse be owned or managed by a corporation, the names of the president, secretary, and treasurer of such corporation shall be stated, and the said license shall give authority to carry on and con- duct the business of a public warehouse in accordance with the laws of this territory, and shall be revocable by the said court upon a summary proceeding before the court upon the complaint of any person, in writing, setting forth the particular violation of law, to be sustained by satisfactory proof to be taken in such manner as may be directed by the court. Id. sec. 4. Warehouseman — Bond : The person or persons receiving a license as herein pro\ided shall file with the clerk of the court granting the same a bond to the people of the territory of Oklahoma . with good and sufficient surety to be approved by said court, in the penal sums as per the following schedule of capacities by measure- ment: For a public warehouse with a capacity not exceeding 100,000 bushels, S25,000; for a public warehouse wnth a capacity of more than 100,000 bushels and not exceeding 200,000 bushels, $40,000; for a public warehouse with a capacity of more tlian 200,000 bushels and not exceeding 300,000 bushels. SGO.OOO; for a public warehouse with n capacity of more than 300.000 and not exceeding 400,000 bushels, $75,000, conditionod for 42 658 OKLAIKJMA LxVWS. the faithful perforniance of his or their duties as pubUc ware- houseman or warehousemen, as surety for any penalties found by due course of law for violation of any clause of this act, and his or their full and unreserved compliance with the laws of this territory in relation thereto. Id. sec. 5. Conducting warehouse without license : Any person or persons who shall transact the business of public warehouseman or warehousemen, without first procuring Ucense and giving a bond as herein provided, or who shall con- tinue to transact such business after such license had been revoked, or such bond may have become void or found insuffi- cient surety for the penal sum in which it is executed by the court approving the same (save only that he may be permitted to deliver property previously stored in such warehouse) shall be guilty of a misdemeanor, and upon conviction be fined in a sum not less than $100, nor more than .$500 for each and every day such business is carried on. and the court that issued may refuse to renew any license or grant a new one to any person or persons whose license has been revoked within one year from the time same was revoked. Id. sec. 6. Receiving grain : It shall be the duty of the person or persons doing a public warehouse business under this act, to receive for storage any grain that may be tendered to him or them in the usual manner with which warehouses are accustomed to receive the same in the ordinary and usual course of business, and to not discrim- inate between persons desiring to avail themselves of warehouse facilities, and that the schedule of charge for such warehouse service shall be uniform, regardless of quantities of lots so of- fered or received. Id. sec. 7. Inspection, receipt : Receipts of grain by public warehouses in all cases shall be inspected and graded by a duly authorized inspector and shall be stored wdth grain of a similar grade received as near the same time as may be; but if the owner or consignee so requests and the warehouseman consents thereto, his grain of the same grade OKLAHOMA. G')0 may be kept in a bin by itself ajKiit fn.in that ol the general stock of the warehouse, which bin shall l.c marked "special, "' with the name of the owner and the (|uantity and ^n-ade of same, and the warehouse receipt issued for same shall state upon its face that the grain is stored in a special bin, giving the number of same and the quantity and grade of the grain so stored. Id. sec. 8. Grain not delivered unless inspected : No grain shall be delivered from a public warehouse con- stituted by this act unless it be inspected by a duly authorized inspector, and found to be of grade called ff)r liy receijjt pnv sented for such delivery. Id. sec. 9. Different grades not mixed : Public warehousemen shall not mix any grain of ditferent grades together, nor select or mix different qualities of the same grade for the purpose of storing or delivering the same, nor shall they deliver or attempt to deliver grain of one grade for grain of another grade, nor in any way tamper with grain while in a public warehouse in his or their possession or custody, nor permit the same to be done by others with the view or result of profit to any one; and in no case shall grain of different gratles, either from the general stock or from special bins, be mixed together while in store or control of such jiublie warehousemen. Id. sec. 10. Preservation of grain : Whenever it may be necessary, in ordei- to ))reserve the con- dition of any bin or lot of grain stored in a public warehouse, to run the contents of said grain (bin) through machinery to air, clear or otherwise improve or preserve such condition, and it is so desired by the owner or warehouseman, this may be done, but in such manner as will insure the contents of each bin or lot intact, and of the same grade as when stored: but this shall not be done except under the supervision of an authorized in- spector under this act. Id. sec. 1 1 . Grain refused when : Nothing of this act shall be construed so as to compel the 660 OKLAHOMA LAWS. receipt of grain into any warehouse in which there is not suffi- cient room to accommodate or store it properly, or in cases where such warehouse is necessarily closed. Id. sec. 12. Not mixed until inspection : In all places where there are legally appointed inspectors of grain, no proprietor or manager of a public warehouse shall be permitted to receive any grain and mix the same with grain of other owners in the storage thereof, or stored in special bins, until the same shall have been inspected and graded by such inspector. Id. sec. 13. Combination witli carrier prohibited : No warehouseman, agent or manager of a public warehouse shall enter into any combination, agreement or understanding with any railroad, transfer or other carrying corporation, or with any person or persons, by which the property of any per- son is to be delivered to any pul^lic warehouse for storage, or other purpose, contrary to the direction of the owner, his agent or assignee. Id. sec. 14. Warehouse receipt — Contents : Upon application of the owner or consignee of grain stored in a public warehouse, the same being accompanied with evi- dence that all charges which may be a lien upon such grain, including charges for inspection, have been paid, the ware- housemen shall issue to the person entitled thereto a warehouse receipt therefor, subject to the order of the owner or consignee, which receipt shall bear date corresponding with the receipt of the gi-ain into store, and shall state upon its face the quan- tity and inspected grade of the grain, and that the grain men- tioned in it has been received into store to be stored with grain of the same grade by inspection received at about the date of the receipt, and that it is deliverable upon the return of the receipt properly indorsed by the person to whose order it was issued, and upon the payment of the charges accrued for stor- age. All warehouse receipts for grain issued from the same warehouse shall be consecutivoly mimbored, and no two re- ceipts bearing the same number shall be issued from the same (JKLAHO.MA. 001 warehouse during any one year, except in tlie case of a lost or destroyed receipt, in which case the new receipt sliall hear the same date and number as the original, and shall he plainly marked upon its face "duplicate." If the grain tor which the receipts are issued was received from railroad cars, the nuinher of each car shall be stated in the receipt, with the amount each car contained; if from wagons or other means, it shall be so stated; if lowing been bulked from sacks, the manner of its receipt shall be stated upon the face of such receijjt for grain stored. Id. sec. 15. New receipt : No warehouse receipt shall be issued except upon the actual delivery of grain into store in the warehouse from which it purports to be issued, and which is to be represented by the receipt; nor shall any receipt be issued for a greater (|uantity of grain than was contained in the lot stated to have been re- ceived ; nor shall more than one receipt be issued for the same lot of grain except in cases where receipts for a part of a lot are desired, and then the aggregate receipts for a i)articular lot shall cover that lot and no more. In cases where a part of the grain represented by the receipt is delivered out of store and the remainder is left, a new receipt may be issued for such re- mainder; but such new receipt shall bear the same date as the original, and shall state on its face that it is tlie balance of re- ceipt of the original number, and the receipt ujjon which a part has been delivered shall be cancelled in the same manner as if the grain it called for had all been delivered. In case it be desirable to divide one receipt into two or more, or in case it be desirable to consolidate two or more receipts into one, and the warehouseman consents thereto, the original receij)t shall be cancelled the same as if the grain had been delivered from store; and the new receipts shall state on their face that they are parts of other receipts or a consolidation of other re- ceipts as the case may be; and the numbers of the original re- ceipts shall also appear upon the new ones issued exjilaining the change; but no consolidation of receipts of dates difTering more than ten days shall be permitted, and all w\\ receijjts issued for old ones cancelled as herein provided shall bear the 662 OKLAHOMA LAWS. same dates as those originally issued as near as may be. Id. sec. 16. Liability not limited : No warehouseman under this act shall insert, in any receipt issued for grain received, any language in any wise limiting or modifying his responsibility or liability as imposed by the laws of this territory. Id. sec. 17. Receipt cancelled : Upon delivery of grain from store upon any receipt, such re- ceipt shall be plainly marked across its face with the word "cancelled," with the name of the person cancelling the same, and shall thereafter be void and shall not again be put in cir- culation, nor shall grain be delivered twice upon the same receipt. Id. sec. 18. Receipt transfer : Warehouse receipts for property stored in warehouses created by this act, as herein described, shall be transferable by the indorsement of the party to whose order such receipt may be issued, and such indorsement sh.nll be deemed a valid transfer of the property represented by such receipt, and may be made either in blank or to the order of another. Id. sec. 19. Fraudulent receipt — Penalty for issuing : Any warehouseman of any public warehouse created by this act, employee in such warehouse, or owner or manager con- nected with same, who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt, or who shall be guilty of issuing any ware- house receipt in any respect fraudulent in its character, either as to its date or the quantity, quality or inspected grade of such property, or who shall remove any property from store (except to preserve it from fire or other sudden danger), with- out the return and cancellation of any and all outstanding re- ceipts that may have been issued to represent such property, shall, when convicted thereof, be guilty of a felony, and shall suffer, in addition to other penalties prescribed by this act, OKLAHOMA. (]t)8 imprisonment in the penitentiary for not less thun two nor more than ten years. Id. sec. 20. Receipt returned — Grain delivered : Upon the return of any warehouse receipt issued by persoas in charge of warehouses created by this act, and the demand for the dehvery of property representefl by such receipt, duly indorsed (if not presented by original holder), accomi)anied by the tender of all proper charges upon the property represented, such property shall be immediately deliverable to the holder of such receipt, and it shall not be subject to further charges for storage after demand for such delivery shall have been made, and deliveries shall be made by the warehouseman in the order in which such receipts are presented and demand for deliveries made. Id. sec. 21. Storage rates — Publication of : The manager of every public warehouse created by this act shall be required, within ninety days after the passage of this act, and during the first week in January of each year there- after, to publish, in one or more of the newspapers published in the vicinity in which such warehouse is situated, a schedule of rates for the storage of grain in his warehouse during the ensu- ing year, which rates shall not be increased during the year, and such published rates or any published reduction of them shall apply to all grain received into such warehouse from any person or source, and no discrimination shall be made directly or indirectly, for or against any person, in any charges made by such warehouseman for the storage of grain. The maximum charge for storage and handling of grain, including the cost of receiving and delivering, shall be for the first ten days or part thereof, two cents per bushel, and for each ten days or part thereof after the first ten days, one half of one cent per bushel. Id. sec. 22. Warehouseman's statements — Reports : The manager of every public warehouse created under this act, shall, on or before Tuesday morning of each week, cause to be made out, and keep posted in the business office of hi.'' 664 OKLAHOMA LAWS. warehouse in a conspicuous place, a statement of the amount of each kind and grade of grain in store in his warehouse, at the close of his business on the previous Saturday. He shall also be required to furnish weekly, to the board of commissioners hereinafter provided for, a correct statement of the amount of each kind of grain and grade of same received in store in such warehouse during the previous week, also the amount of each kind of each grade of grain delivered or shipped by such ware- house during the previous week, and what warehouse receipts have been cancelled upon which the grain has been delivered during such week, giving the number of each receipt and the amount, kind and grade of grain received and shipped upon each; how much through grain in transit to points outside of the territory, if any, may have been received for transshipment for which warehouse receipts have not been issued, was so shipped or delivered, and the kind and grade of it, when and how such unreceipted grain was received. He shall also make weekly reports to the said commissioners of receipts and de- liveries of such unreceipted grain, if any, received for the ac- count of owners of such warehouse, either directly or indirectly, with the amount, kind and grade of same. He shall also re- port weekly to the commissioners what receipts, if any, have been cancelled and new ones issued in their stead as herein provided for. He shall also make such further statements to the commissioners regarding receipts issued or cancelled as may be necessary for the keeping of a full and correct record of all receipts issued and cancelled and of grain received and delivered. Id. sec. 23. Loss or damage by fire — Responsibility — Preservation of grain : The owners of public warehouses, under this act, shall not be held responsible for any loss or damage to property by fire while in their custody: Provided, Reasonable care and vigilance be exercised to protect and preserve the same; nor shall they be held liable for damage to grain by heating, if it can be shown that proper care has been exercised in handling and storing the same, and that such damage was the result of causes beyond their control; but unless public notice be given that some por- OKLAHOMA. (JO;', tion of tho grain in store is out of coiKliiion or beconiing 8o, grain of equal ([uality to that receivetl shall bo delivered on all receipts presentctl. In case, however, any warehouseman shall discover that any portion of the grain in his warehouse is out of condition or becoming so, and it is not in his power 1o preserve the same, he shall immediately give public notice by advertise- ment in a daily newspaper, if one is published in th(; city or town in which such warehouse is situated, and by posting a notice in the most public place for such a purpose in such city or town of its actual condition as near as can be ascertained. Such notice shall state the kind and grade of the grain, and give the number of the bins in which it is stored, and shall also state in such notice the receipts outstanding upon which such grain will be delivered, giving the numbers and amounts and dates of each, which receipts shall be those of the oldest dates then in circulation or uncancelled, the grain represented by which has not previously been declared or receipted for as out of con- dition. The enumeration of receipts and identification of grain so discredited shall embrace as near as may be as great a ({uan- tity of grain as is contained in such bins, and such grain shall be delivered upon the return and cancellation of the i-eceipts so declared to represent it, upon the request of the' owner thereof. Nothing herein contained shall be held to relieve the said ware- houseman from exercising proper care and vigilance in j)re- serving such grain after such publication of its condition; but such grain shall be kept separate and apart from all direct con- tact with other grain, and shall not be mixed with other grain while in store in such warehouse. In case the grain declared out of condition, as herein provided for, shall not be removed from store by the owner thereof within two months from the date of the notice of its being out of condition, it shall be law- ful for the warehouseman where the grain is stored to sell the same at public auction, for account of said owner, by giving ten days' public notice by advertisement in a daily newspaper, if there be one published in the city of town where such ware- house is located. Id. sec. 24. Warehouseman— Negligence— Responsibility : Any warehouseman proven guilty of any act of negligence, 666 OKLAHOMA LAWS. the effect of which is to depreciate the condition of property stored in the warehouse under his control, shall be held re- sponsible upon the bond given for such warehouse, and in addi- tion thereto, the hcense given for such warehouse shall be re- voked by a proceeding as hereinbefore stated. Id. sec. 25 Statement under oath : It shall be the duty of every owner, lessee and manager of every public warehouse in this territory to furnish, in writing, under oath, at such time as the commissioners hereinafter pro- vided for shall require and prescribe, a statement concerning the condition and management of his business as such ware- houseman. Id. sec. 26. Copy of this act posted : All proprietors or managers of public warehouses in this ter- ritory shall keep posted up at all times in a conspicuous place in their offices, and in each of their warehouses, a printed copy of this act. Id. sec. 27. Warehouse open to public — Scales tested : All persons owning property, or who may be interested in the same, stored in any public warehouse created by this act, and all duly authorized inspectors of such property, shall at all times during ordinary business hours be at full liberty to ex- amine any and all ]3roperty stored in any public warehouse in this territory, and all proper facilities shall be extended to such persons by the warehouseman, his agents and servants for an examination, and all parts of public warehouses shall be free for the inspection and examination of any person interested in property stored therein, or by any authorized inspector of such property. All scales used for the weighing of property in pub- lic warehouses shall be subject to examination and test by any duly authorized inspector, the expense of such tests by in- spector to be paid by the warehouseman where scales are so tested, and no scales shall be used for the weighing of grain after being found incorrect, until put in order and found accurate and approved for further use by an authorized inspector. Id. sec. 28. OKLAHOMA. 607 Violation — Misdeinoaiior : A violation of any of the preceding provisions of this act (except in cases covered by sections six, twenty and twenty-five) by any warehouseman, owner, lessee, manager oi- cinployeo of public warehouses created by this act, is declared a misdemeanor, and, upon conviction thereof, the violators shall be fined not less than one thousand nor more than five thousand dollars, one fourth of such fine to be awarded and paid to the informer of such misdemeanor. Id. sec. 29. County attorney, duties of : In all criminal prosecutions against a warehouseman for the violation of any of the provisions of this act, it shall be the duty of the county attorney of the county in which such prosecution is brought to prosecute the same to a final issue in the name of and on behalf of the people of the territory of Oklahoma. Id. sec. 30. Bond liable : If any warehouseman shall be guilty of a violation of any provision of this act, to the injury of any person by such viola- tion, it shall be lawful for such injured person to bring suit in any court of competent jurisdiction, upon the bond of such warehouseman, in the nariie of the people of the territory of Oklahoma, to the use of such person. Id. sec. 31. Deputy chief inspector — Assistants : The said chief inspector shall be authorized to appoint a suit- able person as deputy chief inspector, to be acting chief ins})ector in the absence of the chief inspector. He shall also l)e author- ized to appoint assistant inspectors, who shall not be interested in any public warehouse in this territory: Provided, That he shall not appoint more than three assistant inspectors. Id. sec. 32. Oath and bond— Chief inspector : The chief inspector shall, upon entering upon the duties of his office, be required to take an oath that he will faithfully and strictly discharge the duties of his said office of inspector, an- cording to law and the rules and regulations prescribing his 668 OKLAHOMA LAWS. duties. He shall execute a bond to the people of the territory of Oklahoma in the penal sum of ten thousand dollars, with sureties to be approved by the board of commissioners herein- after provided for, conditional that he will pay all damages to any person or persons who may be injured by reason of his neglect, refusal or failure to comply with the law and the rules and regulations of this act. Id. sec. 33. Oath and bond — Deputy and assistant's liability : The deputy chief inspector and all assistant inspectors ap- pointed under this act shall be under the supervision of the chief inspector, to whom they shall report in detail all service performed by them at the close of each working day. The deputy chief inspector and each assistant inspector shall take the same oath as the chief inspector, and execute a bond in the penal sum of twenty-five hundred dollars, with like conditions, and to be approved in like manner as provided for the bond of the chief inspector, which bond shall be filed in the office of the secretary of the territory. Suit may be brought upon bonds of either the chief inspector, deputy chief inspector or assistant inspectors in any court having jurisdiction thereof, in the county or city where the defendant resides, for the use of any person injured by any act of said chief inspector, and deputy chief in- spector, or assistant inspector. Id. sec. 34. Board of commissioners — Rules — Fees : The chief inspector of grain, the deputy chief inspector, as- sistant inspectors and other employees in connection therewith shall be governed in their respective duties by such rules and regulations as may be prescribed by a board of commissioners, consisting of the territorial secretary, territorial auditor and attorney general of the territory, and the said commissioner shall have full power to make all proper rules and regulations for the inspection of grain not inconsistent with this act, to fix the charges for the inspection of grain and other duties of said chief inspector, deputy chief inspector, and assistant inspectors, and to make and prescribe rules for the collection of the same, which charges shall be regulated in such manner as will, in the judgment of the said board of commissioners, produce suffi- OKLAHOMA. 6^9 cient revenue to meet the necessary expenses of tin; service of inspection, and no more. Id. sec. 35. Compensation ; It shall be the duty of said board of commissioners to fix the amount of compensation to be paid to the chief inspector, deputy chief inspector and assistant inspectors, an. I all other persons employed in the service of inspection, and prescribe the time and manner of payment; Provided, That the salary of the chief inspector shall not exceed one thousand dollars per annum, deputy chief inspector, not to exceed six hundred dol- lars per annum, and the assistant inspectors not to exceed three hundred dollars per annum each; and the board of commis- sioners not to exceed one hundred dollars per annum each: And, provided further, That the territory of Oklahoma shall not be liable for the payment of any of the above salaries in any man- ner whatsoever. Id. sec. 36. Neglect or tniuduleut conduct— Misdemeanor : Any duly authorized chief inspector, deputy chief inspector, or assistant inspector of grain under this act who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect or grade any grain improperly, or who shall accept any money or other valuable consideration, directly or indirectly, for any neglect of duty as such chief inspector, deputy chief inspector, or assistant inspector, or any person who shall improperly in- fluence any chief inspector, deputy chief inspector, or assistant inspector of grain under this act in the performance of his duties as such inspector shall be deemed guilty of a misdemeanor and on conviction shall be fined in a sum not less than five hun- dred dollars nor more than one thousand dollars or shall i)e imprisoned in the county jail not less than six nor more than twelve months, or both such fine and imprisonment, in the dis- cretion of the court. Id. sec. 37. Imposter— Misdemeanor : Any person who shall assume to act as an inspector of grain who has not been duly appointed, sworn and given bond under this act, shall be held to be an imposter, shall be guilty of a G70 OKLAHOMA LAWS. misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than three months nor more than six months, or both such fine and imprisonment, at the discretion of the court, for each and every offense so committed. Id. sec. 38. Inspector removed : Upon complaint in writing of any person to the said board of commissioners, supported by satisfactory proof, that any person appointed or employed by said chief inspector under the provisions of this act has violated any of the rules prescribed for his government, or has been guilty of any improper official act, or has been found incompetent for the duties of his posi- tion, such person shall be removed from liis employment by the same authority that appointed him, and his place shall be filled, if necessary, by a new appointment. When it shall be deemed necessary to reduce the number of persons appointed or em- ployed, their terms of service shall cease under the orders of the same authority by which they were appointed or employed. Id. sec. 39. Appeal — Committee : In all matters involving doubt on the part of the chief in- spector, the deputy chief inspector or any assistant inspector, as to the proper inspection into or out of any warehouse created by this act, or in case of any owner, consignee or shipper of grain, or any warehouse manager shall be dissatisfied with the decision of the chief inspector, deputy chief inspector, or any assistant inspector in matters pertaining to inspection, an ap- peal may be made to the committee hereinafter provided for, who shall at once convene, and whose decision, after a careful inquirj'- into the questions at issue, shall be final. Id. sec. 40. Arbitration committee appointed : The board of commissioners shall, as soon after the passage of this act as is practicable, appoint committees for the ad- justment of differences between inspectors and warehousemen, or owners or representatives of grain, arising from the acts of OKLAHOMA. 671 inspectors, each committee to consist of tlireo jjerson-s well known as experts in grain; and a connnittee sliall be appointed in each city or town where pubhc warehouses under this act are located, said committees to be known as the arbitration committees of the board of commissioners. Id. sec. 41. Board of commissioners to make rules : The board of commissioners shall make equitable and legal rules governing said committee's procedure, in the arbitrations, the manner and amount of compensation, the method of ap- pointment and terms of service. Id. sec. 42. Standard of grades — Clianges in notice : The board of commissioners, as soon after the passage of this act as is practicable, shall establish a proper number and stand- ard of grades for the inspection of grain, with due regard to the prevailing usages of the markets of this territory, the interests of both producers and dealers, and as near as may be conform with standards of grade adopted by reputed leading markets of the United States : Provided, No modification or changes of grades shall be made or any new ones established without pub- lic notice being given of such contemplated changes, for at least twenty days prior thereto, by publication in three daily news- papers, one of which shall be printed in German, ))rinte(l in this territory : And, provided further, That no mixture of old or new grades, even though designated by the same name or de- stinction, shall be permitted while in store. Id. sec. 43. Report of commissioners : The board of commissioners shall, on or before the first day of January of each year, make a report to the governor of their doings for the preceding year, to contain such facts as will dis- close the actual working of the system of the warehouse busi- ness of this territory as contemplated by this act, and such sug- gestions thereto as to them may appear pertinent. Id. see. 44. Inspection of warehouse by commissionoi-s : Said commissioners shall examine into the condition and management, and all other matters concerning the business of warehouses under this act in this territory, so far as the same 672 OKLAHOMA LAWS. may pertain to the relations of such warehouses to the pubhc, and to the security and convenience of persons doing business therewith, and to ascertain whether the officers, directors, man- agers, lessees, agents and employees comply with the laws of this territory now in force or to be in force concerning such warehouses. Whenever it shall come to their knowledge, or they shall have reason to believe, that any law governing the public warehouses of this territory under this act is being or has been violated, they shall cause to be prosecuted or prose- cute all persons guilty of such violation. To enable such com- missioners efficiently to perform their duties under this act, it is hereby made their duty to cause one or more of their num- ber, at least once in six months, to visit each warehouse in this territory and to personally inquire into the management of such warehouse business. Id. sec. 45. Books and records inspected by commissioners : The property, books, records, accounts, papers and proceed- ings of all such warehousemen as are contemplated by this act, shall at all times during business hours be subject to the exam- ination and inspection of the commissioners, or any one of them, and they or any one of them shall have power to examine under oath any owner, manager, lessee, agent or employee of a public warehouse, and any other person, concerning the condition and management of such warehouse. Id. sec. 46. Witnesses ; In making any examination as contemplated by this act or for the purpose of obtaining information as contemplated by this act, said commissioners shall have the power to issue sub- poenas for the attendance of witnesses, and may administer oaths. In case any person shall willfully i-efuse to obey such subpoena, it shall be the duty of the district court of any county upon application of said connnissioners, to issue an attach- ment for such witness, and compel such witness to attend before the commissioners and give his testimony upon such matters as shall be lawfully required by such commissioners; and the said court shall have power to punish for contempt as in other cases of refusal to obey the process and order of such court. Id. sec. 47, OKLAHOMA. (j7;{ Refusal to obey subpaMia— Misdeinoanor : Any person who shall willfully ncv. 07 produce or commodity not actually in store at tlic time of issu- ing such receipt, or issue any receipt in any respect fraudulent in its character, either as to its date or the (juantity, (juality, or grade of such property, or duplicate or issue a second receipt for the same while any foi-nier receipt is outstanding h.r the same property or any part thereof, without writing across the face thereof the word'' duplicate." Hill's Annotated Laws of Oregon, 1892, sec. 4202. Must not mix coiinnudities of different grades : No person operating any warehouse, conunission house, for- warding house, mill, wharf, or other place where grain, Hour, pork, beef, wool, or other produce or connnodity is stored shall mix any grain, flour, pork, beef, wool, or other i)roduce or ccjin- modity of different grades together (or different (luality of tiie same grade), or deliver one grade for anotlu^r, oi- in any way tamper with the same while in his possession or custody, with a view of securing any profit to himself oi- any other person and in no case mix different grades together while in store. Id. sec. 4203. Nothing to be shipped or removed without owner's eon- sent : No person operating any warehouse, commission house, for- warding house, mill, wharf, or other place of storage shall s(>ll, incumber, ship, transfer, oi- in any manner remove or jx-nnit to be shipped, transferred, or removed beyond his custody and control, any flour, grain, beef, pork, wool, or other produce or commodity for which a receipt has been given liy him as afore- said, whether received for storing, shii)ping, grinding, or manu- facturing, or other purposes, without the written assent of the holder of the receipt. Id. sec. 4204. Warehouse receipts and checks declared iiegotiaide: All checks or receipts given by any jx'rson operating any wan»- house, commission house, forwarding house, mill, wharf, or other place of storage for any grain, flour, jioik, beef, wool, or otlu-r produce or commodity stored or dejjosited, and all bills of lad- ing and transportation receipts of every kind, are hereby ile- 678 OilEGON LAWS. clared negotiable, and may be transferred by indorsement of the party to whose order such check or receipt was given or issued, and such indorsement shall be deemed a valid transfer of the commodity represented by such receipt, and may be made either in blank or to the order of another. Id. sec. 4205. Must deliver ^oods to owner Avheii charges paid : On the presentation of the receipt given by any person operat- ing any warehouse, mill, wharf, commission house, forwarding house, or any other place of storage for any grain, flour, beef, wool, pork, or other produce or commodity, and on payment of all the charges due thereon, the owner shall be entitled to the immediate possession of the commodity named in such re- ceipt, and it shall be the duty of such warehouseman, wharfinger, millman, or other builder (l^ailee) to deliver such commodity to the owner of such receipt. Id. sec. 4206. Penalty for violation of provisions of this chapter : Any person who shall violate any of the provisions of this act shall be liable to an indictment, and upon conviction shall be fined in any sum not exceeding five thousand dollars, or im- prisonment in the penitentiary of this state not exceeding five years, or both; and in case of a corporation, the person acting for said corporation shall be liable for a like punishment upon indictment and conviction. And all and every person or per- sons aggrieved by a violation of this act may have and main- tain an action at law against the person or persons, corporation or corporations, violating any of the provisions of this act, to recover all damages, immediate or consequential, which he or they may have sustained by reason of such violation, before any court of competent jurisdiction, whether such person shall have been convicted under this act or not. Id. sec. 4207. Liens of carriers, storers of merchandise, and aj^isters of cattle : Any person who is a common carrier, or who shall, at the request of the owner or lawful possessor of any personal prop- erty, carry, convey, or transport the same from one place to another, and any person who shall safely keep or store any OHEGOV. 679 grain, wares, merchandise, and personal property at tlie re- quest of the owner or lawful possessor therecjf, and any jx-rson who shall pasture or feed any horses, cattle, iiogs, sheoj), or other live stock, or bestow any labor, care, or attention upon the same at the request of the owner or lawful possessor thereof shall have a lien upon such property for his just and reasonable' charges for the labor, care, and attention he has bestowed, and the food he has furnished, and he may retain possession of such property until such charges be paid. Id. sec. 3684. Proceeding to enforce such liens, proviso— Further pro- viso : If such just and reasonable charges be not paid within three months after the care, attention, antl labor shall have been per- formed or bestowed, or the materials for food shall have been furnished, the person having such lien may proceed to sell at public auction the property mentioned in the last two sections, or a part thereof sufficient to pay such just and reasonable charges. Before selling, he shall give notice of such sale by advertisement for three weeks, in a newspaper jniblished in the county, or by posting up notice of such sale in three of the most public places in the city or precinct for three weeks before the time of such sale, and the proceeds of such sale shall be applied, first, to the discharge of such lien, and the cost of keef)- ing and selling such property, and the remainder, if any, shall be paid over to the owner thereof; provided, that nothing herein contained shall be construed as to authorize any warejiouseman to sell more of any wool, wheat, oats, or other grain than suffi- cient to pay charges due said warehouseman on such wool, wheat, oats, or other grain; and 'provided jurther, that if any such warehouseman shall sell, loan, or dispose of in any manner, without the consent of the ov/ner thereof, of any such wool, wheat, oats, or other grain, he shall, for each and every offense, forfeit and pay to the owner of such wool, wheat, oats, or other grain a sum equal to the market value thereof, and fifty per cent of said market value in addition as a penalty, the market value to be the price such article or articles bear at the time the owner thereof determines to sell the same, such value and penalty to be recovered by an action at law. Id. sec. 3685. 680 OREGON LAWS. These provisions not to interfere with agreements : The provisions of the last three sections shall not interfere with any special agreement of the parties. Id. sec. 3686. Arson by burning? other building or boat in night-time : If any person shall willfully and maliciously burn in the night- time an}^ church, court house, town house, meeting house, asy- lum, college, academy, school house, prison, jail or other public building erected or used for public uses, or any steamboat, ship, or other vessel, or any banking house, ware house, express office, store house, manufactory, mill, barn, stable, shop, or office of another, or shall willfully and maliciously set fire to any build- ing or boat owned by himself or another, by the burning whereof any edifice, building, boat, or vessel mentioned in this section shall be burned in the night-time, such person shall be deemed guilty of arson, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than five nor more than fifteen years. Id. sec. 1751. Larceny by bailee ; If any bailee, with or without hire, shall embezzle, or wrong- fully convert to his own use, or shall secrete, with intent to con- vert to his own use, or shall fail, neglect, or refuse to deliver, keep, or account for, according to the nature of the trust, any money or property of another delivered or intrusted to his care or control, and which may be the subject of larceny, such bailee, upon conviction thereof, shall be deemed guilty of larceny, and punished accordingly; and if any such bailee shall receive grain of any kind from different bailors, and mix the same and store it together in bulk, in such case, in an indictment charg- ing such bailee so mixing and storing grain with committing, with reference to said grain, the crime defined and made penal in this section, it shall not be necessary to charge in said indict- ment or prove on the trial that the ownership of said grain is more than one of said bailors. And every mortgagor of personal property having possession of property mortgaged shall be Note. See section 17.52 et seq., for penalties for other crimes, which may concern warehouses. ()RK(JON. G81 deemed a bailee within tiic provisions of this section. /(/. sec. 1771. Making false receipt or altering receipt of goods in ware- house : If any person shall willfully or knowingly make or ahcr any receipt or other written evidence of the delivery into any ware- house, commission house, forwarding house, mill, store or other building occupied by him or his employer, of any grain, flour, pork, beef, wool, or other goods, wares, or merchandise, which shall not have been so received or delivered previous to the making and uttering of such receipt or other written evidence thereof, such person, upon conviction thereof, shall be pun- ished by imprisonment in the penitentiary not less than one year nor more than five years, or by imprisonment in the county jail not less than three months nor more than one year. Id. see. 1775. 682 OREGON LH-:ClSIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Commingling of grain. Where grain belonging to different depositors is mingled with grain of like kind by a warehouseman, the transaction between such depositors and warehouseman remains a bailment, McBee V. Ceasar et al., 15 Ore. 62. Same — Alleged title in another. A bailee who alleges the title to be in another does so at his peril, and, by retaining the goods, makes himself a party to the controversy and must stand or fall by the title of his alleged bailor. Wyatt v. Henderson, 31 Ore. 48. Conversion — Mingling of grain does not constitute. The mingling of grain by a warehouseman with that belong- ing to other depositors does not constitute a conversion thereof. Sears v. Ahrams, 10 Ore. 499. Same — Consent of depositor to shipment by warehouseman. If a warehouseman parts with property intrusted to his care without the consent, express or implied, of his depositor, such act amounts to a conversion. McBee v. Ceasar et al., 15 Ore. 62. Same — Custom of warehousemen of shipping grain at a certain season in the year, no defense unless authorized by depositor. A warehouseman who had received a large quantity of grain belonging to different persons, which grain he had mingled together, delivered it to the defendant for the purpose of liquidat- ing an account between them; it was held that when the ware- houseman parted with the grain he was guilty of conversion, further that the plaintiff was not estopped to deny that the shipment by the warehouseman to the defendant was unlawful even if the fact was shown that the plaintiff knew it was the custom of the warehouseman to ship all the grain which he had in store at a certain season of the year. Id. OKE(;ON. «HH Same — Delivery pursuant to order of one not tfie owner. Where one who was not the owner of certain ^oods, whicli were stored in a warehouse, contracted to sell them to the defendant, and the warehouseman delivered the same pursuiint to order of the seller, it was held, in an action of trover brought by the owner, that this act constituted a conversion and that no demand was necessary before suit brought. Further, that the doctrine of caveat emptor applied, and that it was the duty of such purchaser to ascertain the rights of his ventior. VeMan V. Lewis, 15 Ore. 539. Same — TVarehouseman estopped to change position after suit hr ought. In a suit against a warehouseman for the recovery of certain goods deposited with him or the value thereof, the defendant in his plea set forth that the plaintiff was not the owner of the goods. During the trial of the case the defendant offered proof to show that the reason of his refusal to deliver t-he goods was that there had been no payment or tender of storage charges. It was held that he was estopped to so change liis position. Wyatt v. Henderson, 31 Ore. 48, following Anderson v. Portland Flouring Mills Co., 37 Ore. 483. I. Commingling of grain — Loss to he home in proportion to the amounts deposited. Where a deficiency in the common mass of grain occurs with- out any fault of the depositors, the loss must fall ujjon all in the proportion which the amount of grain each had deposited bore to the whole amount deposited. The depositors of grain which is thus mingled become tenants in common thereof antl the several owners are compelled to sustam any lo.ss pro rata which might occur by diminution, decay or otherwise. In order to make a depositor share in any such loss it is necessary tliat his grain be stored there at the time the loss occurs. If the warehouseman should deliver to any depositor a greater quan- tity than he would be entitled to from such residue, although less than the proper quantity to which he would have been entitled if there had been no loss or (Uminutiun. it wouKi be a 684 OEEGON DECISIONS. wrongful taking as well as a wrongful possession as against the other depositors. Brown v. Northcutt, 14 Ore. 529. N. Loss by fire — Caused by negligence — Care of sulphuric acid. The defendant, a common carrier, was liable for plaintiff's goods as warehouseman, the transit having terminated and it having stored the goods in its depot. The evidence showed that an employee of the defendant placed a carboy of sulphuric acid within the depot and that the place in which the acid was stored was near to that part of the depot which had been used by employees of the defendant when filling lamps, there being oil on the floor in consequence; further that the station agent did not know that the acid had been placed there and that it was the custom to place acids of an explosive or dangerous nature outside of the depot. The acid was unloaded and as a result of a leak, the acid coming in contact with oil, an ex- plosion and fire followed. On the above stated facts it was held that the defendant was guilty of negligence in the care and custody of plaintiff's goods and was liable therefor to him for their value. Farmers' Loan & Trust Co. v. Oregon Ry. & Nav. Co., 73 Fed. Rep. 1003. Warehouse receipts — Not negotiable unless declared so by statute. In the absence of a statute declaring warehouse receipts to be negotiable they are not negotiable instruments in the com- mercial sense, so as to bind the maker to the assignee in all cases. The holder of such a receipt takes no better title, nor occupies any more advantageous position than if the goods themselves were held by him. Solomon v. Bushnell, 11 Ore. 277. Same — Requisites of negotiability prior to warehouse act. Prior to the passage of the warehouse act the transfer of a warehouse receipt which in terms stated that the property represented thereby would be delivered to the depositor upon the return of the receipt would not pass title to the property represented thereby. Gill v. Frank & Koshland, 12 Ore. 507, distinguishing, Solomon v. Bushnell, 11 Ore. 277. ORICGON. (]j<5 Same— Negotiability— Not a negotiable imtrumenl mtinn tlie meaning of .the mercantile law. Section 4205 of Hill's Ann. Laws declares wareliouse receipts to be negotiable and by the statute such i-eceipUs, regardless of their form, are made negotiable in the sense that a transfer thereof by indorsement carries the absolute title to the com- modity represented by the receipt, and a bona fide purchaser for value is not chargeable with knowledge of any notice of any equities between the original parties, as in case of the assign- ment of an ordinary chose in action; but the statute does not give to such receipts all the attributes of negotiable paj^er. A transfer of the receipt by indorsement may operate, under the statute, to transfer and vest the title of the goods in the pur- chaser, where before it would not, but the nature of the con- tract itself is unchanged. It is in no sense a negotiable instru- ment under the merchant law. It is simply a written acknowl- edgment by the warehouseman that he has received, and lujlds in store for the depositor, the amount and description of prop- erty named in the receipt, upon the terms and conditic^ns therein stated, and is nothing more than a written contract between the parties, which by the statute is made negotia])le for certain purposes. The word ''negotiable" is evidently not used in the statute in the sense in which it is ordinarily api)lied to bills u{ exchange and promissory notes. Anderson v. Portland Flour- ing Mills Co., 37 Ore. 483; State v. Koshland, 25 Ore. 178; S/iaw V. R. R. Co., 101 U. S. 557. Same — Parol evidence admissible to show that person iJismng such receipt acted in the capacity of agent. Warehouse receipts are not negotiable instruments within the meaning of the rule prohibiting the admission of parol testimony to charge one not bound upon the face of the in.strument. but in that respect they are simple contracts and such e\ndence is admissible to show that, although executed by and in the name of an agent, they are in effect the contract of the jirincipal, and that he is bound thereby. Anderson x. Portland Flouring Mills Co., 37 Ore. 483; Barbre v. Goodale, 28 Ore. 464. 686 OREGON DECISIONS. R. Bill of lading — Not a contract. As between the parties thereto a bill of lading is not a con- tract in writing such as will protect the same against the intro- duction of parol testimony to contradict or vary its terms but it is to be regarded only as an admission on the part of the con- signor as to his purpose at the time of making the shipment, and such admission is subject to be rebutted. McBee v. Ceasar et al, 15 Ore. 62. T. Indictment of a warehouseman — Requisites. An indictment charged the defendant, a warehouseman, under sees. 4201 and 4207 of Hill's Ann. Code with wrongfully issuing a receipt for a greater number of sheep-skins than was actually received. The indictment charged the defendant Avith operat- ing as owner, a warehouse, and with being a warehouseman, and further alleged that he issued receipts for sheep-skins not actually in store at the time; it was not set forth, however, that the defendant operated a warehouse for the storage of sheep-skins and other commodities. It was held on demurrer that this indictment was defective. State v. Koshland, 25 Ore. 178; Stat,e v. Stockman, 30 Ore. 36. U. Constitutionality of statute imposing penalty upon warehouse- men — Failure to specifically mention penalty in the title of act — Indictment. A warehouseman was indicted for violation of the warehouse act of this state for issuing receipts for a greater amount of property than he had actually in the store. The statute under which he was indicted is entitled ''Act to regulate warehouse- men, wharfingers, commission men, and other bailees, and to declare the effect of warehouse receipts." The contention was made in behalf of the defendant that the part of such act which attempted to impose a penalty upon warehousemen was void under sec. 20, art. 4, of the state constitution which provides in effect that all matters contained in the statute shall be em- (J REG ox. 687 braced in the title thereof, h was held that tliis contention could not be sustained; that this provision of the constitution should receive a liberal interpretation in order to |)roniot<', ami not defeat, the beneficial purposes for which it was adopti'd. State V. Koshland, 25 Ore. 178. 688 PENNSYLVANiA LAWS. CHAPTER XXX^TII. PENNSYLVANIA. LAWS PERTAINING TO WAREHOUSEMEN. ^Varehouse receipts and bills of lading to be negotiable — Transferee to be deemed the owner of the goods — Lien of holder — When property to be delivered : Warehouse receipts given for any goods, wares, merchandise, grain, flour, produce, petroleum, or other commodities, stored or deposited with any warehouseman, wharfinger, or other per- son in this state, or bills of lading, or receipts for the same, when in transit by cars or vessels to any such warehouseman, wharfinger or other person, shall be negotiable, and may be transferred by indorsement and delivery of said receipt or bill of lading; and any person to whom the said receipt or bill of lading may be so transferred, shall be deemed and taken to be the owner of the goods, wares and merchandise therein specified, so as to give security and validity to any lien created on the same, subject to the payment of freight and charges thereon; and no property on which such lien may have been created, shall be delivered by said warehouseman, wharfinger or other person, except on the surrender and the cancellation of said original receipt or bill of lading; or, in case of partial sale or release of the said merchandise, by the written assent of the holder of said receipt or bill of lading, indorsed thereon: Pro- vided, That all warehouse receipts or 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. 1866, Sept. 24; P. L. (1867) 1363, sec. 1. No receipt to be given except for goods actually received : No warehouseman, wharfinger of other person, shall issue any receipt or voucher, for any goods, wares, merchandise, petroleum, grain, flour, or other produce or commodity, to any person or TENNSYLVANIA. 68'.» persons, purporting to be the owner or owners thereof, unless such goods, wares, merckincHse, petroleum, grain, (lour ur other produce or commodity, shall have been actually received into store, or upon the premises of such warehouseman, wharhnger or other person, and shall be in store, or on the premises as aforesaid, and under his control, at the time of issuing such receipt. Id. sec. 2. Duplicate receipts to be so indorsed : No warehouseman, wharfinger or other person, shall issue any second or duplicate receipt for any goods, wares, merchandise, petroleum, grain, flour or other produce or conmiodity, while any former receipt for any such goods, wares, merchandise, petroleum, grain, flour or other produce or commodity as afore- said, or any part thereof, shall be outstanding and uncalled, without writing across the face of the same, "duplicate." Id. sec. 3. Warehouseman, etc., not to sell, etc., without return of receipt ; No warehouseman, wharfinger or other person, shall sell, or incumber, ship, transfer, or in any manner remove, beyond his immediate control, any goods, w^'ires, merchandise, petroleum, grain, flour or other produce or conmiodity, for which a receipt shall have been given by him as aforesaid, whether received for storage, shipping, grinding, manufacturing or other purposes, without the return of such receipt. Id. sec. 4. Above act construed — Who a warehouseman within its meaning — Rule of strict construction : The object of the above act is to protect the transferees and pledgees of what is technically known as warehouse receipts. The person who issues such a receipt must be a warehou.seman. or one who is engaged in a like business, and the expression "other business" means those engaged in a similar business, or who may connect the business of warehousemen or wharfin- gers with some other pursuit such as shipping, grinding, or other manufacturing. The statute being penal is to be strictly con- strued, and should not be extended beyond the evident intent of the legislature as expressed upon its face. The receipt 44 690 PENNSYLVANIA LAWS. issued by a warehouseman pursuant to this act need not be in any particular form to be negotiable; for if it is issued by one who is embraced within the class of persons mentioned in the statute, it will, regardless of form be negotiable unless there be a notice on its face that it is not negotiable. Bucher v. Com- monwealth, 103 Pa. St. 528; Moors v. Jagode, 195 Pa. St. 163; People's Bank v. Gayley, 9 W. N. Cas. 49. Same— Holding oneself out as a warehouseman — Effect : Where a distiller had issued receipts upon which it was stated that they were warehouse receipts, the court charged the jury that where a man or firm hold themselves out as warehousemen, assert that they are warehousemen, holding goods on storage for a charge and issuing receipts upon which it is stated that they are warehousemen, that the public has a right to deal with them as such and the effect of the issuance of such receipts constitutes an agreement that they are to be governed by the statutes of Pennsylvania in relation thereto. Judgment was given for the plaintiff which was affirmed on appeal. Rosen- haum v. Batjer, 154 Pa. St. 544. Penalty for violation of preceding provisions : Any warehouseman, wharfinger or other person, who shall violate any of the foregoing provisions of this act, shall be deemed guilty of fraud; and upon indictment and conviction shall be fined in any sum not exceeding one thousand dollars, or impris- oned in one of the state prisons of this state, not exceeding five years, or both; and all and every person or persons aggrieved by the violation of any of the provisions of this act may have and maintain an action at law against the person or persons violating any of the foregoing provisions of this act, to recover all damages which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted of fraud as aforesaid, under this act, or not. 1866, Sept. 24; P. L. (1867) 1363, sec. 5. This act to extend to grain stored in elevators and to petroleum in barrels : The provisions of the foregoing act shall apply to grain stored I'ENNSYLN ANIA. 001 in grain elevators, and to petroleum in barrels, stored or kept in places designated by law; and the owners or lessees (jf any of said elevators or places designated as aforesaid, shall have the rights and powers, and be subject to the obhgations and penalties as therein provided, in ivgard to warehousemen, wharfingers or other persons. Id. sec. 7. Attachments of goods in the hands of bailees reiridaled — Holder of receipt to be deemed garnishee— l)issoliili«.n of att.achmeut : Whenever any goods, wares or merchandise, shall have been, or shall hereafter be attached, by writ of foreign or other attach- ment, in the hands, possession or custody of any warehouse- man, wharfinger of other person, who shall have i.ssued for the same, any warehouse receipt or voucher, or any bill of lading or other receipt, when in transit by car or vessel, which ware- house receipt, voucher, bill of lading or other receipt, shall have been negotiated and transferred by indorsement or tlelivery, as provided in the act to which this is a supplement, the holder of any such warehouse receipt, voucher, bill of lading or other receipt, to whom the same shall have been transferred or de- livered as aforesaid, although not named or sunnnoned in, or served with such writ of attachment, shall nevertheless be deemed and taken to all intents to be a garnishee of the said goods, wares or merchandise attached in the said writ, as if the same were in his hands or possession; and the name of the holder of such warehouse receipt, voucher, bill of lading or other receipt shall upon application to the court wherefrom such writ was issued, be added to the record of the action as a garnishee of the said goods, wares or merchandise; and thereupon the said court shall, upon the motion of the said garnishee, grant a rule upon the plaintiff in such attachment, to appear before the court at the time and place in .such rule named, and there show cause why the attachment of such goods, wares or mer- chandise should not be dissolved, or the )>roceeds thereof, if the same shall have been sold by the order of said court, paid to the holder of such warehouse receipt, voucher, bill of lading or other receipt, upon his giving .security as such garnishee. l)y recognizance and sufficient sureties to be approved by the ()92 PENNSYLVAM.V LAWS. court, or by one of the judges thereof in vacation, with condi- tion that so much of the said goods, wares or merchandise, or of the proceeds thereof, after the sale of the whole or any part thereof, shall remain after the settlement or payment thereout, of the amount of any lien upon the said goods, wares or mer- chandise created by the advance of money or credit by the said holder of such warehouse receipt, voucher, bill of lading or other receipt, transferred or delivered as aforesaid, and also of all prior liens for storage, freight and other charges, shall be re- tained in the hands of said garnishee, to answer, if the plaintiff shall have execution of any judgment of the effects of the de- fendant in the action attached as aforesaid or to abide the further action of the said court. 1874, June 13, P. L. 285, sec. 1. Bailees not to be liable, when the property is taken from them by legal process : Where goods, wares or merchandise shall be taken from the possession of any warehouseman, wharfinger, carrier or other bailee, by writ of attachment, replevin or other legal process, such warehouseman, wharfinger, carrier or other bailee shall not be liable therefor to the owner of such goods, wares or merchan- dise, or to the holder of any receipt, voucher or bill of lading given for the same; saving and reserving, however, to such owner or holder, all legal remedies for the recovery of the said goods, wares or merchandise from any person unlawfully de- taining the same, or for the recovery of damages against any person unlawfully taking the same. Id. sec. 2. Actions tor property delivered by mistake : Any carrier or other bailee of property, who has parted with its possession by mistake, to any person not entitled to the possession, may, after demand, maintain an action of replevin for the same, or if the property cannot be found, an action of assumpsit, or trover and conversion, against the party con- verting or removing it. In the case of replevin, if there was no fraud in obtaining such possession, the plaintiff shall first tender to the defendant the freight or other proper charges which have accrued, at the time of the demand of possession. 1881, June 8, P. L. 86, sec. 1. PENNSyrA'ANFA. Gi<;^> Where receipt has been lost or destroyed, owiirr ma.\ pr.-- seiit petiti(ni to court of coiiimoii picas, pra.viiii; for an onl.r on the company to (leliver up the i^oods Citation : Where any receipt given or issued iiy any warohouscinan, warehousing company, storage or deposit company, or wharfin- ger, has become lost, mislaid or destroyed, it shall he hwful f..r the person claiming to be the owner of such receipt to present to the court of connnon pleas of the county wherein said ware- houseman, warehousing company, storage or deposit comi)any, or wharfinger, issuing such receipt shall have his, their or its principal office, or place of business, a petition verified by the oath or aflirmation of the petitioner, setting forth all the mate- rial facts, including the date of the receipt as accurately as the same can be ascertained, a description of the goods, wares, mer- chandise, petroleum, grain, flour or other produce, commothty or property for which the receipt was given, and a statement of the value thereof, the name of the person or party to whom the receipt was given, the manner in which the petitioner ob- tained title to such receipt, the date at which he acciuired title and whether such title be absolute or in trust, or otherwise qualified, the date of the loss, mislaying or destruction as far as the same can be furnished, and a statement that the i^eti- tioner is unable by reason thereof to return such receipt, or to produce the same, and praying for an order on such warehouse- man, warehousing company, storage or dej)()sit comj)any, or wharfinger who issued the same, to deliver up to the petitioner the goods, wares, merchandise, petroleum, grain, flour or other produce, commodity or property for which sucli receij)t was issued and given, without the petitioner being retiuired to pro- duce or return such receipt; whereupon the court shall cause a citation to issue directed to the warehouseman, warehousing company, storage or deposit company, or wharfinger issuing such receipt, and to such other person or pei-sons. if any. as to the court may seem to have an interest in the matter, recjuir- ing them to appear on a day certain to be fixed by the court, and show cause why the prayer of said petitioner should not be granted and why the order and decree prayed for should not be entered. 1893, May 25, P. L. 133, sec. 1. b'94 PENNSYLVANIA LAWS. Court may grant prayer — The petitioner to execute a bond and file same — Company to deliver up the goods after bond is filed and decree entered — Decree not to impair any lien of company against such goods : On the return of such citation the court may, in its discre- tion, after due consideration, grant the [)rayer of such petition and may order and direct the warehouseman, warehousing company, storage or deposit company, or wharfinger, who issued such receipt, to dehver up to the petitioner the goods, wares, merchandise, petroleum, grain, fiour or other produce, com- modity or property for which such receipt was given without requiring the production or return of such receipt: Provided, however, That the petitioner shall first execute and file in the office of the prothonotary or clerk of said court a bond with one or more sureties to be approved by the court, wliich bond shall be taken in the name of the commonwealth of Pennsylvania for the use and benefit of all parties in interest, and shall be taken in such sum as shall be fixed by the court, after due con- sideration, as to the value of the goods and property so ordered to be delivered as well as to the other circumstances of the case. And upon the filing of such bond and on the entering of such order and decree by the court said warehouseman, warehousing company, storage or deposit company, or wharfinger, who issued such receipt, shall deliver up to the petitioner the goods, wares, merchandise, petroleum, grain, flour or other commodity or produce or property for which such receipt was given, without requiring the production or return of such receipt, and shall be fully released and discharged of and from all liability and re- sponsibility whatsoever to any and all person or parties what- soever by reason of so doing, and should any person or party be injured by such order or decree, his or their recourse shall be solely upon such bond or against the wrongdoer whose action procured such order or decree. And further provided, That no such decree or order shall in anywise impair or affect any right, lien or claim that such warehouseman, warehousing company, storage or deposit company, or wharfinger, ma}'' or shall have upon or against such goods, wares, merchandise, petroleum, grain, flour or other produce, commodity or property for ad- PENNSVIAAXIA. (19;' varices, loans, payments, storage, work or service wluitsoever. Id. sec. 2. Conditions of bond— Any person injured may institute a<'- tion: The bond herein provided for shall be coniiitioned that the petitioner shall indemnify all parties interested against any and all loss, or damage, which may accrue to him, her or them, by reason of any order or decree granted or entered on the prayer of such petition as aforesaid, or by reason of any deliv- ery made upon or under the same, and whatever injury shall be sustained by any person or party under or by reason of such order, decree or delivery, actions of debt or of scire facias may be instituted on said bond, as often as the circumstances may require, against the petitioner, his surety or sureties, and tlu;ir respective heirs, executors or administrators, and in each case a judgment shall be entered and execution shall be issued only for such damage as the party plaintiff may have sustained to- gether with the costs of suit. Id. sec. 3. Costs and counsel fees to respondents shall he paid by petitioner : The costs of such proceeding, together with a reasonalilf al- lowance to be fixed by the court for counsel fee to the respond- ents, shall in every case arising hereunder be fully paid by the petitioner before the respondents shall be required to comply with the order or decree made upon such petition. /(/. sec. 4. 696 PENNSYLVANIA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Bailee not required to open packages. No bailee is bound, on giving a receipt for goods, to open the packages to see if they correspond with the name given to them. If lie acts in good faith, he is not answerable to another who advanced money on the goods on the faith of the transaction; for the reliance was not properly on him, but upon the honesty of the man who procured the receipt. Grier v. Nickle, 1 Amer. L. Reg. 119. Same — No implication of sale. If a man places his property in the hands of another, such person being engaged in the business of receiving property of a like kind for storage, there is no implication that such bailee is the owner thereof. Mann v. English, 7 Pa. C. C. Rep. 637. Sa77ie — Burden of proof. The law will not intend negligence on the part of a bailee, who will be presumed to have acted according to his trust until the contrary is shown. But to throw the burden of proof on the bailor, it is necessary that the bailee should show how the goods were lost. Clark & Co. v. Spencer, 10 Watts, 335. B. Ordinary care — Liable for negligence. A bailee for hire is bound to exercise ordinary care and dili- gence and he will be liable only where the loss or damage results from a failure to exercise such degree of care. Tower et al. v. Grocers' Supply & Storage Co., 159 Pa. St. \OQ;McCarty v. A^ Y. & E. R. R. Co., 30 Pa. St. 247. Delivery — To a warehouseman — Facts which do not constitute a valid delivery. In an action charging a railroad company with liability for the loss of goods which were alleged to have been delivered to it, the evidence showed as follows: That about seven o'clock PENNSYLVANIA. t)97 in the evening, just about dark, wlicn the defend;) nf.s ware- house was closed and locked for the nighi, that the drayman of the plaintiff opened the upper door and put the goods in, there being no one on the grounds in charge of tiie warehouse and no one there representing the company to receive tiie goods. There was further evidence whieli showed that the drayman had, shortly after he deposited the goods as above stated, callcil out to the bill clerk of the railroad that he had loft some goods of the plaintiff's and that he wanted the clerk to bill and ship them the next morning. This was not addres-sed to tiie ship- ping clerk nor to the freight agent. Furthermore, the draynian knew that the bill clerk was not, in fact, that day on ihity. Held this was not a delivery to an authorized agent of the defendant and therefore the defendants were not liable. Spof- ford V. Railroad Co., 11 Super. Ct. 97; Leidij v. Quaker City, etc., Warehouse Co., 180 Pa. St. 323. Conversion — When demand a)id refusal unnecessary. Ordinarily a sufficient demand and a refusal are both es.sential to constitute conversion. The demand is nothing without the refusal, but where there was not only a denial of the title in the owner but an assertion of title in, and delivery of the goods, to another after notice of the dispute between them, it was held that this clearly constituted a conversion of the property. Clowes V. Hughes Bros., 3 Super. Ct. 561 ; Taylor v. Haiilon, 103 Pa. St. 504; Hinckley v. Baxter, 13 Allen, 139. H. Lien — Specific and not general in its nature. A warehouseman has a specific, not a general lien on the goods stored with him, but he may deliver a part and retain the residue for his charges on all the goods received by him under the same bailment, provided the ownei-ship of the whole is in the same bailor. Steinman v. Wilkins, 7 Watts k Sargeant. 46fi. (See note given with this case in 42 Amer. Dec. 257.) K. Attachment— Warehouseman may he made garnishee— Entitled to protection hy bond if negotiable receipts have been issued. If a warehouseman has issued negotiable warehouse receipts 698 PENNSYLVANIA DECISIONS. lor goods deposited with liiin and he is made garnishee in a suit against his depositor, lie is entitled to a bond from the plaintiff indenmifying him against any loss which he might suffer owing to negotiation of the receipts into the hands of bona fide holders. Rondehush v. Hollis et al., defendants, and The Meadville Dis- tilling Co., garnishee, 21 Pa. C. C. Rep. 324. M. Pledge — Without knowledge of bailee — Replevin. If the bailor of goods deposited with a warehouseman pledge them by a delivery of a receipt (not a ' ' warehouse receipt ") issued by an employee of the warehouseman without authority, and the warehouseman having no notice of such pledge, nor of such receipt, delivers the goods to another, a purchaser of a valid receipt subsequently issued by the warehouseman himself, such bailor cannot maintain replevin against the warehouseman for the goods. People's Bank v. Gayley, 92 Pa. St. 518. Same — Same — Requisites of such a notice. A bailee issued a receipt, which was not a negotiable ware- house receipt within the meaning of the statutes of this state, to one who had deposited property with him. At the time of the issuance thereof the attorney of the pledgor stated to the warehouseman's foreman that the receipt was to be used for the purpose of borrowing money thereon and in his presence indorsed the receipt as follows : "Please deliver inclosed pig-iron to W. H. Taber, Esqre., cashier, or order. "Henry G. Morris. "Per Alexander Irwin, Att'y. k',, »j In an action brought by the bank with which the receipt had been pledged, against the defendant warehouseman, it was held that the judgment given for the defendant was correct, for the above transaction did not constitute such notice to the defendants as would make them liable; that it was the duty of the plaintiff bank either to have insisted on regular warehouse receipts, or to have immediately notified the defendant that it held the receipts, which he had issued for this iron, as secu- PENNSVI.N AMA. (J9i| rity for a loan, but as it did neithci' ol these tilings, and that the loss was the resulting consequence. People's Bank v. Miny & Groome, 108 Pa. St. 258. Injury by water — Evidence — Instruction to jury. The plaintiff, the owner of certain household good.*?, sued the defendant, a warehouseman, alleging that the same had Ix-cii injured by dampness during the time when they were stored. The defendant contended that the goods were so damaged be- fore he received them antl offered evidence to show that liLs warehouse was impervious to rain. The defendant then iv- quested the court to instruct the jury to find for him ; this was refused, the question of negligence being left to the jury, a verdict was found for the plaintiff. The defendant took a writ of error upon which the judgment of the lower court was affirmed. Doyle V. Mays, 7 Atl. Rep. 747. N. Loss by fire — Negligence must be shown. In an action against a warehouseman for the loss of goods by fire, the burden of proof is upon the plaintiff to show that the fire occurred as a result of the negligence or want of ordinary care on the part of defendant. Tower et al. v. Grocer's Supply & Storage Co., 159 Pa. St. 106. Same — Same — Instructions to jury. The plaintiff who had stored goods with the defendant ware- houseman alleged that at the time of the storage she had in- structed the assistant in the office of the defendant to have the goods insured. Plaintiff testified that immediately after the fire, she called upon the defendant and stated that she had left orders for such insurance to be placed on her good's. It wn.-^ contended by the warehouseman that as the proofs failed to show essential elements of parol contract to insure, no agree- ment was proved. It was held that as the defendant wa.s en- gaged in the storage business and had made it a part of such business to affect insurance when requested to do so by its customers that a contract made for that object being in the direct line of its business would not be one of insurance re- 700 PENNSYLVANIA DECISIONS. quiring certain necessary elements to constitute it, but would be an undertaking in connection with the bailment. A refusal to instruct the jury that the burden was upon the plaintiff to prove that at the time of the alleged agreement of insurance was entered into that the amount, rate, terms, premium, and risk to be insured against were all to have been arrived at, there- fore held not to be error. Id. Same — Pleading — Insiifjiciency of declaration. The plaintiff sued the defendant, a warehouseman, for goods which he alleged were destroyed by hre while stored in the latter's warehouse. The tleclaration failed to state that there was any contract between the parties by which the defendant was to keep the goods insured, also that the loss resulted from gross negligence on the part of the defendant and that the defendant w^as a bailee for hire. The demurrer to such a dec- laration was sustained with leave to amend. Heaton v. Knowles, 14 W. N. Cas. 74. Cold storage — Damage to goods — Burden of proof. In an action against a warehouseman for the recovery of the value of eggs alleged to have been injured while in cold storage, the court instructed the jury that the plaintiff must establish that during the time the eggs were stored they were injured by the act of the defendant, and by his act alone, because if they were injured by any other act such as inherent decay, etc., the defendant was not responsible; further that the plain- tiff should show by evidence that the eggs were in a good and satisfactory condition to be stored at the time the defendant received them and that the removal of the eggs from another warehouse to that of the defendant did not injure the eggs. The above charge held correct on appeal. Boswell v. Collins, 8 Atl. Rep. 845. Same — What degree of negligence must be shown — Question for the jury. The defendant warehousemen were sued for the value of certain poultry which the plaintiff alleged had been spoiled PENNSYLVANIA. 7yi while stored in their cold storage warehouse. The fcnirt in- structed the jury that the whole case turned u|)on the question as to who liad caused the injury to the poultry. That if they found that the defendants had exercisetl due care in its pre«er- vation, or that the poultry was n<.l in -rood condition when brought to the warehouse of tlu> defendant tiiat their verdict should be for the defendant. I'urthei-, that negligence on the part of the defendant could not be assumed from the mere fact that the goods of the plaintiff were injured, but that negli- gent acts or omissions must be conclusively proved. Tlie court also charged that if the injury to the poultry resulted from any other cause than the negligence of tlie defendant, no matter what that cause might be, the defendants were not responsible. Finally that the jury could consider the fact that the plaintiff's goods were of a very perishable nature as relieving or tending to relieve the defendants from the charge that tlie poultry was spoiled through their negligence. Verdict was given for the plaintiff, and on appeal it was Ae/r/ that the above charge was correct, as the jury had had the question to deter- mine as to whether the loss and injury suffered by the j)laintiff was occasioned exclusively by the acts or omissions of the defendants. Leidy v. Quaker City C. S. & W. Co., 180 Pa. St. 323. Evidence — Negligence — Burden of proof on plaintiff. In an action against one liable as a warehou.seinan for the loss of goods destroyed by fire, the burden is upon the plain- tiff to show that the fire was the result of the defendant's neg- ligence. Nat. Line Steamship Co. v. Smart, 107 Pa. St. 492. Same — Must account for failure to deliver. In an action against a warehouseman where it is shown that he failed to deliver goods intrusted to him on demand, it was held that he must show that the goods were delivered to some- body by the authority of the plaintiff. Simply being unable to account for the fact that the goods were not present when the defendant desired to redeliver them is no excuse. HocvcUer et al. V. Myers et at., 158 Pa. St. 461, 702 PENNSYLVANIA DECISIONS. Warehouse receipts — Must be issued by a warehouseman — He must have possession of the property. A person in charge of a warehouseman's wharf, or a ware- houseman's clerk, cannot issue a vahd warehouse receipt. In such a case the person attempting to issue the receipt is in charge of the goods, it is true, but he has not possession as re- quired by the act of September 24, 1866; he holds for another, — his employer. People's Bank v. Gayley, 92 Pa. St. 518. Same — Must be issued by a warehouseman — Goods must not belong to him. The statutes of this state regarding the issuance of ware- house receipts are in derogation of the common law and estab- lish an exception to the general course of business which is conducted on the presumption that the title of personal prop- erty accompanies possession. To bring a case, therefore, within the statute, all of the requisites thereof must be shown to exist. In order that a warehouse receipt shall be valid it must be issued by a warehouseman and not against his own goods and the warehouseman must be regularly engaged in the business of warehousing. Trademen's Nat. Bank, etc., v. Kent Mfg. Co., Jagode et al., 186 Pa. 556; Moors v. Jagode, 195 Pa. St. 163; People's Bank v. Troutman, 9 W. N. Cas. 54. Same — Revenue tax on — Postal card. A warehouseman was in the custom of notifying consignees by a postal card of the arrival of their goods. The card stated that the goods had been received and were subject to the order of the consignee ; further, that if not removed in ten days they would be stored, held that such a card is not taxable under the War Revenue Act which imposed a tax on warehouse receipts. That the Revenue Act imposed a tax upon the receipt, not upon the transaction and that this was not a warehouse receipt. Merchant's Warehouse Co. v. McClain, 112 Fed. Rep. 787. Same — Negotiability — Bank holding as collateral a bona fide holder. A warehouse receipt which states "this certificate is trans- PENNSYLVANIA. 703 ferable by delivery" is negotiable and its transfer and de- livery operates in law as a delivery of the property itself. If a bank accepts such a receipt in good faith as security for nioney loaned, it is not only a holder for value l)ut also a bona fUe holder of the receipt. Exchange Bank x. Ulihnan-i.'oUshuwu.fk Co., 5 Pa. Dist. Rep. 480; Miller v. Bwwarskij, l.iO Pa St ]{ep 372. Same—Negotiability— Assignee for benefit of creditors not a bona fide holder. A voluntary assignee for benefit of creditors is not a bona fide purchaser for value of warehouse receipts in the hands of his assignor. He is merely the representative of his assignor and he enjoys only such rights as the assignor had. Therefore where one who had deposited goods in a warehouse and jjleilged some of the receipts therefor with a bank as security for a loan, such depositor afterward making an assignment for the benefit of his creditors, it was held that his assignee was estopped to deny the title of the bank to the goods represented by the receipts which it held, it appearing from the evidence that the dejjositor had withdrawn some of the goods deposited and substituted others in the place thereof. Brooks, Miller & Co. v. Western National Bank, 16 W. N. Cas. 298. Same — Same — Delivery of goods in settlement of an antecedent debt not a sale as will defeat pledgee. Certain goods were consigned to the plaintiff hank whicii held the bills of lading and other evidences of title. As a matter of fact, the bank was not the owner of the goods but helil them simply as pledgee and the goods were delivered to th(^ con- signee. The bank delivered these evidences of title and took in return a storage receipt, which however allowed the con- signee to sell the goods but to account for the proceeds and pay to the plaintiff the amount due it. Under these receipts the bank retained the ownership of the goods and the consignee acquired no title which would avail it or its creditors. It had, however, authority to sell, and any valid exercise of that |)ower would divest the bank of its title. The defendants were cus- tomers of the consignee and liad sent to him a check in jiayment 704 PENNSYLVANIA DECISIONS. of a note which had been previously given him. The consignee failed to apply the proceeds of the check to the payment of these notes and the defendants were obliged to pay them at maturity. Subsequently the consignee delivered to the defendants the property uj^on which the plaintiff bank had loaned money to the consignee. In the action brought by the bank agninst the defendants for the recovery of the goods, it was held that the delivery to the defendants of the goods in question was not a sale in the ordinary course of business, such as would be a valid exercise of the authority to sell contained in the storage receipts. Therefore, judgment which was given for the plaintiff was afr firmed on appeal. Canadian Bank v. Baitm & Sons, 187 Pa. St. 48; Brown Bros. & Co. v. Billington, 163 Pa. 76. Same — Same — Distiller's certificate — Indorsee estopped. The defendants had indorsed distiller's certificates for a quan- tity of whiskey to the purchaser thereof who subsequently transferred the same to the plaintiff. The defendants after- wards attached the whiskey while in the warehouse in an action against the purchaser. The plaintiff brought an action against the defendants alleging that the defendants were estopped from raising the question as to the title of the plaintiff by the fact that they had indorsed the certificates and that as a result thereof the plaintiff had obtained possession of them. This held to be correct and judgment given for the defendant was affirmed. Rosenham v. Batjer, 154 Pa. St. 544. R. Bills of lading — Effect of statute declaring them negotiable — Not " negotiable instruments." A bill of lading, of which the consignee has obtained pos-' session in a fraudulent manner and which has been negotiated to an innocent purchaser, does not pass the title to such purchaser as against the person who held its possession lawfully and from whom it was stolen. Where, therefore, the consignee fraudulently obtained possession of an original bill of lading which was attached to a draft and presented to him for accept- ance by a messenger from the bank, who afterwards sold the original bill of lading, it was held that the title to the goods PENNSYLVANIA. 70o remained in the bank. The court further laid that it was not the intention of the legishiture when it dcchired that hills of huUng should be negotiable by indorsement in Uie .same niamicr as bills of exchange, that the nature and character of bill> of lading was thereby put m all respects on the focjting of instru- ments which are the representatives of money, connnonly known as "negotiable instruments." Shaw v. Railroad Co., 101 1'. S. 557. 45 r06 BHODfc: ISLAND LAWS. CHAPTER XXXIX. RHODE ISLAND. LAWS PERTAINING TO WAREHOUSEMEN. Lien of wareliousemeii — Warehouseineii sliall have a lieu on goods stored with them : Every public warehouseman oi- person lawfully engaged ex- clusively in the business of storing goods, wares and merchandise for hire shall have a lien for his storage charges, for money ad- vanced by him for freight, cartage, labor, weighing and cooper- ing paid on goods deposited and stored with him; and such lien shall extend to and include all legal demands for storage and said above described expenses paid, which he may have against the owner of said goods; and it shall be lawful for him to detain said goods until such lien is paid. General Law^s, Rhode Island, 1896, ch. 206, sec. 24. When goods stored may be sold by warehouseman : Every public warehouseman who shall have in his possession any property, by virtue of any agreement or warehouse receipt for the storage of the same, on which a claim for storage is at least one year overdue, may proceed to sell the same at public auction, and out of the proceeds may retain the charges for storage of said goods, wares, and merchandise, and any advance that may have been made thereon by him or them, and the expense of advertising and sale thereof; but no sale shall be made until after the giving of a ))rinte(l or written notice of such sale to the person or persons in whose name such goods, wares and merchandise were stored, requiring him, her or them to pay the arrears or amount due for such storage, and, in case of default in so doing, that such goods, wares and merchandise will be sold to pay the same at a time and place to be specified in such notice Id. ch. 206, sec. 25. RHODi: ISLAND. 707 Notice of saJe, how to be served : The notice required l)y the last |)r('eo(ling section sliall be served by delivering it to the person storing the sanu'. or by leaving it at his usual place of abode, or, if a corporation,' at the office of such corporation, if within the state, at least thirty days before the time of such sale, and a return of the service shall be made by some officer authorized to serve civil proce&s, or by some other person witli an affidavit of the truth of the return. If the party storing the goods cannot with reasonable diligence be found within the state, or, in case of a corporation, if it has no office within the state, then such notice shall be given by publication once in each week for three successive weeks, tlur last publication to be at least thirty days before the time of such sale, in a newspaper published in the city or town where such warehouse is located, or, if there is no such paper, in one of the principal newspapers published in the county in which said warehouse is located. In the event that the party storing such goods shall have parted with his title to the same, and the purchaser shall have notified the warehouseman with his ad- dress, such notice shall be given to such person in lieu of the person storing the goods. Id. ch. 206, sec. 26. Record to be kept of surplus proceeds of sales : Such warehouseman shall make an entry in a bcjok kept for that purpose of the balance or surplus of the proceeds of the sale, if any, and such balance or surplus shall i)e paid over to such person or persons entitled thereto on demand; and if such balance or surplus is not called for or claimed by said party or owner of said property within six months after such sale, such balance or surplus shall be paid by such warehouseman to the general treasurer, who shall pa}' the same to the parties entitled thereto, if called for or claimed by the rightful owner within five years after the receipt thereof; and such warehouseman shall, at the same time, file with said general treasurer an affi- davit in which shall be stated the name and place of resis shall allow 710 RHODE ISLAND LAWS. every inspector of kerosene at all times to enter upon and in- spect such premises. Id. ch. 144, sec. 5. Petroleum oil, etc., not to reinain in open air or on side- walk : In no case shall petroleum oil or any product thereof or any mixture of naphtha or inflanmiable fluid for illuminating pur- poses be allowed to remain in the open air or on any sidewalk beyond the front line of any building or in any street for a longer time than is actually necessary for the storage, ship- ment or delivery of the same, nor between the time of sunset of any one day and sunrise of the following day. Id. ch. 144, sec. 6. Penalty for violating provisions of chapter, or meddling with official brand : Every person who shall violate any of the foregoing provi- sions of this chapter or shall knowingly or willfully alter, efface or destroy any official mark or brand after the same has been placed by the inspector of kerosene or Ms deputies upon any barrel, cask or package in accordance with the provisions of this chapter, shall be fined not less than five hundred dollars nor more than one thousand dollars or shall be imprisoned not exceeding six months. Id. ch. 144, sec. 7. Penalties for putting petroleum, etc., not inspected, into a branded cask : Every person who shall, for the purpose of sale, put or cause to be put into any cask, barrel or other package which shall have been branded or marked by an inspector of kerosene in manner herein prescribed, any petroleum oil, kerosene or coal oil or naphtha or inflammable fluid or any mixture, product or component thereof or of either thereof, intended for sale, the same not having been first tested by such inspector in ac- cordance with the provisions of this chapter, shall be fined not less than five hundred dollars nor more than one thousand dol- lars or shall be imprisoned not exceeding six months; and the name of every person convicted of any violation of this section shall be published in some newspaper published in or nearest RHODK ISLAND. 7| 1 to the town where such offen.so was conmiitted. Id. ch. 144, sec. 8. Appoiiitinent of inspectors Maimer of sfcuiiit,' May be prescribed by ordinances— IViiaUies : The town councils of the several towns, and the city councils of the cities of Newport and Providence, shall appoint annually one or more inspectors of petroleum oil, kerosene and coal oil, their products, compounds and components, and may limit and prescribe by ordinance the place or places and manner of stor- ing or safe-keeping, and the quantity to be stored in any one place, and of sale within their respective towns and cities, of the said articles, their products, comjjounds and components and other like explosive substances, notwithstanding any |)ro- visions hereinbefore contained, mid may inflict fines and pen- alties for the violation of such ordinances, not exceeding, for any one offense, two hundred dollars fine anrl six months im- prisonment. Whenever a vacancy shall occur in the office of inspector of petroleum oil, kerosene and coal oil, the same shall be filled, as soon as may be, for the remainder of the year, by the town council of any town or the city council of any city, by a new election. Id. ch. 144, sec. 9. Note. See Id. chapter 279, concerning offenses against private property. Sections 2, 8 and 9 pertain to the burning, breaking and entering warehouKes and the penalties for so doing. fT 12 HHODE ISLAND DECISIONSi DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Reasonably safe building. Plaintiffs stored carriages in defendants barn and paid storage therefor. The carriages were injured by the falhng of the roof of the barn, due to its being overloaded with snow. Held that defendants were bound to furnish a building which was reason- ably safe for such storage, and were liable if it proved to be unsafe, unless the defect was one they did not know of, and could not have discovered by the use of ordinary care. Moulton & Remington v. Phillips & Sheldon, 10 R. I. 218. H. Storage charges — Storing merchandise for railway company When company not liable for charges. A common carrier stored in a warehouse merchandise at dif- ferent times, the consignees of which either could not be found or refused to receive the goods. The warehouseman paid the freight charges and gave non-negotiable receipts which set forth in most of the instances, the receipt of the goods from the car- rier, the name of the consignee when marked on the goods, and the amount of freight charges paid; in a few instances the re- ceipt of the goods from the carrier on account of the consignee; and in one or two instances the receipt of the goods from con- signee or owner. Held that the non-negotiability of the re- ceipts and the recital in them that the goods were received from the carrier did not render the carrier liable as a matter of law for the storage charges; held further that the terms of the re- ceipts and the actions of the parties showed their understand- ing to be that the warehouseman received the goods as bailee for the owners and consequently the carrier was not liable for the storage charges due thereon. Providence Warehouse Co. v. Providence & W. R. R. Co., 19 R. I. 423. N. Negligence — Definition. Legally speaking, negligence is the want of that care which RHODK ISLAM). 71;; ILS the law requires us to exercise,— whidi it exacts as a duly. Thi care may be due to one individual ;iih1 not to another, and there- fore negligence in fact is not always negligence in law, for un- less a party can show that some duty to him is violated, he shows no legal negligence. Toicer v. Providence c(- IT. J{. U. Co., 2 R. I. 404; Bhjth v. Topham, 1 Cro. .1. 158. 0. Damages — Measure of. The value of goods, converted by a warehou.seman, at the time of the conversion is the measure of damages. Fifth \nl. Bank v. Providence Warehouse Co., 17 R. I. 112. Q- Warehouse receipts — Liability when goods delivered unthout re- turn of — Demand. A. procured a loan from the F. Bank, giving as collateral security a warehouse receipt as follows: "September 28, 188S. Received on storage of A. & Co., subject to the order of the F. Bank, three hundred and ninety cases of eggs. To ])e deli\-- ered according to the indorsement hereon, but only on the sur- render and cancellation of this receipt, and on j)ayment of the charges payable thereon." Across the face of the receipt was the word "Negotiable." The cases bore distingui.shing marks. On November I, 1888, the warehouseman delivered the.se ciuses to A. On March 11, 1889, the F. Bank brought aj^sumpsil against the warehouseman for the value of the eggs, as A. had made default in the payment of his note. Held that the V. Bank was entitled to call for the identical cases stored, further that the warehouseman liy liis delivery to A. had violated his duty as bailee, and that he was not entitled to deliver to the F. Bank any other cases than those described in the ware- house receipt. Further held that by the delivery of the good.s to A. a conversion thereof was shown and that the bank couKI maintain assumpsit without proof of demand. Fifth Nat. Bank V. Providence Warehouse Co., 17 R. I. 112. Same — Construction of clause therein Umitirui liability. The receipt given by an express company as conunon carrier 714 RHODE ISLAND DECISIONS. for a package received by it for transportation limited the lia- bility of the company to fifty dollars, ''at which the article forwarded is hereby ^'alued unless otherwise expressed." The package was lost by the negligence of the express company. Held that the receipt was a valid contract between the shipper and the carrier, and that fifty dollars was the limit of the car- riers' liability in the absence of a declaration in the receipt that the article was of higher value. Ballou v. Earle & Prew Express Co., 17 R. I. 441. SOUTH CAUULINA. CHAPTER XL. SOUTH CAROLINA. LAWS PERTAINING TO WAREHOUSEMEN. Public warehouseiiien : Any person engaged in the business of a waivhoascumn, or any corporation organized under the hiws of this state imd whose charter authorizes them to engage in the business ^(lic- tion, on the bond of said warehouseman; and in case he shall fail in said action he shall be liable to the defendant for any costs which the defendant may recover in the action. Id. sec. 1714. 716 SOUTH CAROLINA LAWS. AVhen shall insure property left in warehouse — Receipt for goods : Every such warehouseman shall, when requested thereto, in writing, by a party placing property with liim, or it, on storage, cause such property to be insured for whom it may concern. Every such warehouseman shall, except as hereinafter pro- vided, give to each person depositing property with him for storage a receipt therefor, which shall be negotiable in form, and shall describe the property, distinctly stating the brand or distinguisliing marks upon it, and if such property is grain the quantity and inspected grade thereof. The receipt shall also state the rate of charges for storing the property, and amount and rate of insurance thereon, and also the amount of the bond given to the clerk of the court as hereinabove provided: Pro- vided, however, That every such w^arehouseman shall, upon re- quest of any person depositing property with him for storage, give to such person his non-negotiable receipt therefor, which receipt shall have the words "non-negotiable" plainly written, printed or stamped on the face thereof. Id. sec. 1715. No warehouse or other receipt for property to he given unless actually received : No warehouseman, wharfinger, public or private inspector or custodian of property, or other person, shall issue any receipt, acceptance of an order or other voucher for or upon any goods, wares, merchandise, provisions, grain, flour or other produce or commodity to any person or persons purporting to be the owner or owners thereof, or entitled or claiming to receive the same, unless such goods, wares, merchandise, provisions, grain, flour or other commodity shall have been actually received into the store or upon the premises of such warehouseman, wharfin- ger, inspector, custodian or other person, and shall be in store or on the said premises as aforesaid and under his control at the time of issuing such receipt, acceptance or voucher. Id. sec. 1716. No such receipt to he issued as security unless goods are in custody : No warehouseman, wharfinger or other person shall issue any SOUTH CAltolJNA. 717 receipt or other voucher upon :uiy fi;()0(ls, wares, iiicrchaiidi.se, grain, flour or other prockice or conunodity to any person or persons as security for any money loancl or ,,tl„.r indrhtcd- ness, unless such goods, wares, niercliandise, grain or otln'r produce or commodity shall be at the time of issuing such re- ceipt in the custody of such warehouseman, wliarlinger or other person, and shall be in store or upon the premises and under his control at the time of issuing such receipt or other voucher as aforesaid. Id. sec. 1717. No duplicate receipt to be issued unless so marked : No warehouseman, wharfinger, inspector, custodian or other person shall issue any second or (lui)licate receipt, acceptance or other voucher for or upon any goods, wares, merchandise, provisions, grain, flour or other produce or commodity while any former receipt, acceptance or voucher for or upon any such goods, wares, merchandise, provisions, flour, grain or other produce or commodity as aforesaid, or any part thereof, shall be outstanding and uncancelled, without writing in ink across the face of the same " Duplicate." Id. sec. 1718. No such goods to be removed without assent of person holdiug receipt : No warehouseman, wharfinger, or other person shall sell or incumber, ship, transfer or in any manner remove beyond his immediate control any goods, wares, merchandise, grain, flour or other produce or commodity for which a receipt shall have been given by him as aforesaid, "whether received for storing, shipping, grinding, manufacturing or other purposes, without the written assent of the person or persons holding such receipt. Id. sec. 1719. Receipts transferable — Rights oi transferee— Receipt to be delivered upon surrender of goods — Not negotiable : Warehouse receipts given for any goods, wares, merchandise, cotton, grain, flour, produce or other commodity and chattel*? stored or deposited with any warehouseman, wharfinger or other person, may be transferred by indorsement and delivery thereof, to the purchaser or pledgee, signed by the person to whom the receipt was originally given, or by an indorsee of such receipt; 718 SOUTH CAROLINA LAWS. and any person to whom the same may be so transferred shall be deemed and talcoii to be the owner of the goods, wares and merchandise therein specified, so far as to give validity to any pledge, lien or transfer made or created by such person or per- sons, but no property shall be delivered except on surrender and cancellation of said original receipt or the indorsement of such delivery thereon in case of partial delivery. The assign- ment of warehouse receipts which shall have the words "Not negotiable" plainly written or stamped on the face thereof shall not be effective until recorded on the books of the warehouse- man issuing them. Id. sec. 1720. As to goods replevied or removed by law : So much of the preceding sections 1719 and 1720 as forbids the delivery of property except on surrender and cancellation of the original receipt or the indorsement of such delivery there- on, in the case of partial delivery, shall not apply to property replevied or removed by operation of law. Id. sec. 1721. Graiu : When grain or other property is stored in public warehouses in such a manner that different lots or parcels are mixed to- gether, so that the identity thereof cannot be accurately pre- served, the warehouseman's receipt for any portion of such grain or property shall be deemed a valid title to so much thereof as is designated in said receipt, without regard to any separation or identification. Id. sec. 1722. Shall keep a book of eutry : Every such warehouseman shall keep a book in which shall be entered an account of all his transactions relating to ware- housing, storing and insuring cotton, goods, wares and mer- chandise, and to the issuing of receipts therefor, which books shall be open to the inspection of any person actually inter- ested in the property to which such entries relate. Id. sec. 1723. Action for damages : All and every person or persons aggrieved by the violation of any of the provisions of section 1716 to 1721 may have and maintain an action at law against the person or persons SOUTH C'AKOIJNA. 7 1 f» violating any of the provisions IIrtcoI' to recover ail damages, immediate or consequential, which he or they may iiave sus- tained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such pei-son shall have been convicted as hereinbefore mentioned or not. /(/. sec. 172-1. When he may sell property left with him : Every public warehouseman who shall have in his po.sses- sion any property by virtue of any agreement (jr warehouse receipt for the same, storage of the same, on which a claim for storage is at least one year overdue, may proceed to sell the same at public auction, and out of the proceetls may return all charges for storage of such goods, wares and merchandise, and any advances that may have been made thereon bv him or them, and the expenses of advertising and sale thereof. Hut no sale shall be made until after the giving of printed or written notice of such sale to the person or persons in whose name such goods, wares and merchandise were stored, requiring him or them, naming them, to pay the arrears or amount due for such stor- age, and in case of default in so doing the gooils, wares and merchandise may be sold to pay the same at a time and place to be specified in such notice. Id. sec. 1725. Notice of sale, how served : The notice required in the last preceding section shall be served by delivering it to the person or persons in whose name such goods, wares and merchandise were stored, or by leaving it at his usual place of abode, if within this state, at lejist thirty days before the time of such sale, and a return of the . clerk of tlu^ court of the county wherein said warehouse is situated, who shall pay l\w same to the person entitled thereto if called for or claimed hy the rightful owner within one year of the receipt thereof hy said clerk. Id. sec. 1728. Same : Whenever a public warehouseman, under the provisions of the preceding section, has made a reasonable effort to sell perishable and worthless property, and has been unable to do so, because of its being of little or no value, he may then proceed to dispose of such property in any lawful manner, and he shall not be liable in any way for property so disposed of. Id. sec. 1729. Liability for storaj?e : Whenever a public warehouseman, under the provisions of the two preceding sections, has sold or otherwise disposed of property and the proceeds of such sale or disposition have not equalled the amount necessary to pay the storage charges, ex- penses of sale and other charges against said jiroperty, then the person in whose name said property was stored shall be lia- ble to said public warehouseman for an amount which, added to the proceeds of such sale, will be sufficient to pay all of the proper charges upon said property; or in case such property was valueless and there were no proceeds realized from its dis- position, the person in whose name said property was stored shall be liable to said public warehouseman for all proper charges against said property. Id. sec. 1730. Maximiiiii rates for selling leaf tobacco fixed— IJills of same to be furiiislied the seller : The charges and expenses of handling and selling leaf tobacco upon the floor of tobacco warehouses in this stat^ shall not ex- ceed the following schedule of prices, to wit: For auction fees, fifteen (15) cents on all piles of one hundred pounds or less, and twenty-five (25) cents on all piles of over one hundred pound.*; 46 722 SOUTH CAROLINA LAWS. and less than two hundred pounds; fifty (50) cents per pile for piles of two hundred pounds or over. P'or weighing and hand- hng ten (10) cents per pile for all piles of less than one hundred pounds; for all piles of over one hundred pounds, at the rate of ten (10) cents per hundred pounds; for commission on the gross sales of leaf tobacco in said warehouses, not to exceed two and one half per centum. The proprietor of each and every ware- house shall render to each seller of tobacco at his warehouse a bill, plainly stating the amount charged for weighing and hand- ling, the amounts charged for auction fees and the commission charged on such sale; and it shall be unlawful for any other charges or fees exceeding those herein named to be made or accepted : Provided, That the provisions of this section shall not apply to the counties of Horry, Sumter, Pickins, and Chester- field. Id. sec. 1731. Railroad coiiimission to fix storage cliarges on freight : Power is hereby conferred on the railroad commission of South Carolina, and thej^ are required to fix and prescribe a schedule of maximum rates and charges for storage of freight made and charged by railroad companies doing business in this state, and to fix at what time, after the i-eception of freight at place of destination such charges of storage shall begin, with power to vary the same according to the value jmd character of the freight stored, the nature of the place of destination, and residence of consignee, and such other facts as in their judg- ment should be considered in fixing the same. All the provisions of the act creating said railroad com- mission, and acts amendatory thereof, prescribing the proce- dure of said commission in fixing freight and passenger traffics, and hearing complaints of carrier and shipper, and of alter- ing and amending said tariffs, shall ai~»iily to the subject of fixing and amending rates and charges for storage, as afore- said. Id. sec. 1732. Discrimination and excessive charges prohibited : No railroad company shall make or retain, directly or indi- rectly, any charge for storage or freight greater than that fixed by the commission for each particular storage, nor shall they SOUTH CAKOLINA. 70.'^ discriminate directly or indirectly by means of rebate, or any device in such charges, between perscjns. Id. sec. 1733. Penalty for overcliarfj:e of stora^'e : If any raih-oad company sliall violate the provisions oj this chapter, either by exceeding the rates of storage prescribed, or by discriminating, as aforesaid, the person or persons so paying such overcharge, or subjected to such discrimination, shall have the right to sue for the same in :m\ court of this state having juriscHctiou of the claim, and shall have .•ill the remedies, and be entitled to recover the same penalties and measure of dam- ages as is prescribed in the case of overcharge of freight rates, upon making like demand as is prescribed in such case, and after like failure to pay the same. Id. sec. 1734. Common carriers may sell property nnclainiecl for six mouths : Every railroad corporation, express company, and the pro- prietors of every steamboat engaged in the transportation of passengers and freight, or either, which shall have had un- claimed freight or baggage not perishable in its jxjssession for the period of six months may proceed and sell the same at public auction, after giving notice to that effect in one or more newspapers published in the state or at the place where such goods are to be sold once a week for not less than four weeks, and shall also keep a notice of such sale posted for the .same time in a conspicuous place in the principal ofhce of .said company. Id. sec. 1735. Contents of advertisement : Said notice shall contain, as near as practicable, a d(\«;crijition of such freight or baggage, the place and time when and where left, together with the name and residenc*' of the owner of the freight or baggage, or person to whom it is consigned, if the same be known. Id. sec. 1736. Disposition of moneys received : All moneys raised from the sale of freight or baggage as aforesaid, after deducting therefrom charges and expen.'^e.s for the transportation, storage, advertising, connnissions for M\- 724 SOUTH CAROLINA LAWS. ing the property, and any amount previously paid for advances on such freight and baggage, shall be paid by the company to the persons entitled to receive the same. Id. sec. 1737. Books of sale to be kept for inspection : The said company shall keep books of record of all such sales as aforesaid, containing copies of such notices, proofs of ad- vertisements and posting, affidavit of sale, with the amount for which each parcel was sold, the total amount of charges against such parcel, and the amount held in trust for the owner, which books shall be kept open for inspection by claimants, at the principal office of said company, and at the office the sale was made. Id. sec. 1738. When and by whom may be sold — Snrplus deposited with clerk of court : It shall be lawful for any mechanic, in this state, when prop- erty may be left in his shop for repair, to sell the same at public outcry, to the highest bidder, after the expiration of one year from the time such property shall have been repaired; and the same shall be sold by any magistrate of the county in which the work was done: Provided, That the said magistrate shall, before selling such property, advertise the same, for at least ten days, by posting a notice in three of the most conspicuous places in his township. And he shall, after deducting all proper costs and commissions, pay to the claimant the money due to him, taking his receipt for the same ; after which he shall deposit the said receipt, as well as the terms of costs and commissions, with the remainder of money or proceeds of the sale, in the office of the clerk of the court, subject to the order of the owner thereof, or his legal representatives. Id. sec. 1739. Comnn'ssions on snch sales : The magistrate who shall sell such property shall be entitled to receive the same commissions as are now allowed by law for the sale of personal property by constables. Id. sec. 1740. No deduction in tare, etc., allowed : The custom of making a deduction from the actual weight of bales of unmanufactured cotton, as an allowance for tare, break- SOUTH ( Alinl.lNA. 7'> I -•) age, or draft thereon, is abolished; and all contracts made in relation to cotton shall he defined and taken as referrinp; to tlie true and actual weight thereof, without deduction for any such tare or draft. General Statutes, South Carolina, 1S82, sec. 1 1 '.»."). Rates of storage : The rates of storage of cotton shall not exceed twelve and one half cents per week for each bale of cotton; the cliarges for weighing cotton shall not exceed ten cents for each bale; and any person violating the provisions of this section, or either of them, shall forfeit to the owner of the cotton ten dollars for each offense, which may be recovered by him in any court of competent jurisdiction in this state. Irl. .sec. HOC). Above section construed— JJoiiii? penal must be strictly In- terpreted : The defendant, a factor, was sued by his principal for having charged him with a greater amount for storage than the rate allowed by the above statute, and in the suit demanded the penalty therein provided for. It appeared that the defendant had not, in fact, stored the same and that he was in no sense a warehouseman. The property in question had been actually stored in a warehouse and the defendant had actually paid rates greater than allowed by the above statute for such storage. It was held that this statute, being penal, must be strictly con- strued and so construing it, it was perfectly manifest that the act prohibited by the statute is making of a charge for storage in excess of the rate there provided, not the pai/infi of a charge in excess of the rate. Therefore, judgment given for defend- ant below was affirmed on appeal. Hoi wan v. Frost S: Co., 26 S. C. 290. 720 SOUTH CAKOLINA DECISIONS. DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — When property liable for debt of bailee — Rule stated. The rule which renders the property of the true owner hable for the debt of the bailee, or person in possession, is applicable only where the original credit was based on the property; and the debt must not be of doubtful beginning, but the plaintiff must show it to have been contracted subsequent to the pos- session of his debtor. Ford v. Aiken, 1 Strob. 93. Same — Statute of limitations — When it begins to run. Where goods held for safe-keeping are destroyed, the statute of limitations begins to run from the time of the loss, or, at the latest, from the time the owner has notice of the loss, and not from the time of demand. Cohrs v. Fraser, 5 S. C. 351. B. Ordinary diligence — Definition. Ordinary diligence, in the law of bailments, is a relative term, and signifies that care which men of common prudence gener- ally take of like articles of their own, at the time and in the place where the question arises. Scott, Williams & Co. v. Crews, 2 S. C. 522. Delivery — To agent. To charge a mandatory with an article lost, it is not necessary that, in every case, the delivery should have been to him indi- vidually, or to one expressly or specifically authorized to receive for him ; but an agency to receive may be implied in the same manner as such agency may be implied in relation to articles which were to be carried for hire. Lloyd v. Barden & Brooks, 3 Strob. 343. Same — Depositing in warehouse — Stoppage in transitu. The deposit of goods when they have reached their destina- tion, in a warehouse, subject to the order and control of the buyer, is an executed delivery, as effectual to defeat the right of SOUTH CAKOLINA. 727 stoppage in transitu, as if they had been deposited in the ware- house of the buyer, and a deposit, in hke manner, in the ware- house of the vendor, (Uvests his right to retain for the price which may be unpaid. Frazer v. Hilliard et at., 2 Strob. 309. Same — When liability attaches. In an action against a railroad company for the loss of goods in transportation, it appeared that the goods had never been removed from the car. The defendant attempted to show that its liability was that of a warehouseman, and that the transit had ended. It was held that there must be an initial point in the matter of the liability of warehousemen and that this initial point was the moment the storage begun, which was not shown in this case. Hi'p'p v. Southern Ry. Co., 50 S. C. 129. Warehouseman — Pleading — Statute of limitations — Code — Prac- tice. In an action against one charged as a warehouseman, to re- cover the value of goods deposited for safe-keeping, the answer set up as defenses: (1) A denial of the alleged bailment; (2) an allegation that the goods were destroyed by an irresistible force, and without the fault of the defendant; and (3) a plea of the statute of limitations. Held that the statute of limitations was properly pleaded, and could not be stricken out of the answer on the ground of inconsistency. An answer under the code may set forth as many legal defenses as were allowed under the former practice. A motion to strike out a defense as in- consistent with other defenses alleged in the answer should be made on notice and before trial, and the practice prescribed by the 21st rule of the circuit courts might well be followed in such cases. Cohrs v. Fraser, 5 S. C. 351. H. Storage charges — Implied contract to pay. Where one allowed a warehouseman to receive and store his goods it was held that there was an implied contract for the payment of reasonable storage charges therefor. Devereux v. Fleming, 53 Fed. Rep. 401, distinguishing Somes v. Shipping Co., 8 H. L. Cas. 338. 728 SOUTH CAROLINA DECISIONS. Lien for storage charges — General balance — Must he under one transaction but not at one time necessarily — Charges continue after warehousevian holding under his lien. A warehouseman's lien upon goods stored is specific and not general but if the goods were received under one transaction and form a part of the same bailment, he may deliver a part of the goods, and retain the residue for the price chargeable on all the goods received, provided the ownership of the whole is in one person. This phrase "under one transaction" does not mean at the same time, but pursuant to one transaction. A contention that a warehouseman was not entitled to his charges from the time he first asserted his lien on the goods up to the date of the judgment on the ground that during such period he held the goods for his own benefit, could not be sus- tained. The right to hold the goods until the charges are paid under the original contract of storage continues and the origi- nal contract does not cease until its charges are paid, remitted, or tendered. Devereux v. Fleming, 53 Fed. Rep. 401, distin- guishing. Somes V. Shipping Co., 8 H. L. Cas. 338. L. Trover — Bailee may maintain — When against owner. The bailee of goods may maintain trover or trespass against any one but the legal owner ; and a bailee whose possession is coupled with an interest, may maintain trespass, even against the owner, for tortiously taking the goods out of his possession. Jones V. M'Neil, 2 Bail. 466. N. Neglect — Proprietor of gin. The proprietor of a cotton machine, for cleaning cotton-wool from its seed, who takes cotton to gin for a reward, is answer- able as a bailee for ordinary neglect. Foster v. Taylor, 2 Brev. 348. P. Insurable interest — Warehousemen have, in stored cotton held in various ways. Warehousemen insured certain bales of cotton stored with them in their own name on a form of policy intended for ware- SOUTH CAROLINA. 729 houses containinoj the special clause "cotton in l)ales, their own or held by them in trust, or on commission, or on joint account with others, or sold but not delivered," contained in their ware- house. After destruction by fire the owner of tlie goods as assignee of the policy sued the insurance company thereon. An instruction by the court to the jury that the warehousemen had a right to insure in their own name under the above terms the cotton in their warehouse, that they had a right to sue there- for in their own name and having such right they could lawfully assign the same, was held correct. Pelzer Mfg. Co. v. St. Paul Fire & M. Ins. Co., 41 Fed. Rep. 271. Sa7ne — Right of subrogation prevented by conditions in lease of insured — Effect on policy. Where the owner of goods, who was the assignee of the fire insurance policy taken out thereon by the warehouseman, sues on such policy for the recovery of the value of the goods which were destroyed, it was shown that the warehouse was con- structed on ground leased from an adjacent railroad company and that the lease contained a covenant that the latter would not be liable for any damage or loss occasioned by its locomo- tives. This clause in the lease was not made known to the insurance company at the time of the issuance of the policy and the company contended that as its right of subrogation was thereby denied to it, its policy was therefore void. At trial the court left to the jury for its determination the question as to whether or not it would have made any difference in the risk if the warehouseman had stated this fact. Tlie jury found that from custom in that part of the country it would have made no difference. It was held on appeal that this being the case that it would not enter into or become a part of the contract of insurance. Pelzer Mfg. Co. v. St. Paul Fire & M. Ins. Co., 41 Fed. Rep. 271; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527. R. Bills of lading — Title passes by delivery as against attaching creditor of the vendor. Where a bank honored a draft witli a l)ill of ladmg attached 730 SOUTH CAROLINA DECISIONS. thereto, it was held the title of the goods represented by the bill of lading passed to the bank as against a creditor of the vendor, who attached the goods subsequent to the bank's pos- session of the bill of lading. Union Nat. Bank v. Rowan, 23 S. C. 339. SOUTH DAKOTA. 731 CHAPTER XLI. SOUTH DAKOTA. LAWS PERTAINING TO WAREHOUSEMEN. Authority conferred upon railroad coiiuiiissioners : That the duties imposed by the provisions of this act and the powers conferred therein devolve upon the board of railroad commissioners. Grantham's Annotated South Dakota Stat- utes, 1901, sec. 228. Duties and powers : That it shall be the duty of the railroad commissioners of the state of South Dakota to supervise the handling, inspection, weighing, grading and storage of grain and seeds; to establish all necessary rules and regulations for the weighing and inspec- tion of grain, and for the management of the public warehouses of the state, as far as such rules and regulations may be neces- sary to enforce the provisions of this act, or any law of this state, in regard to the same; to investigate all complaints of fraud or oppression in the grain trade of this state, and to correct the same as far as it may be in their power. Id. sec. 229. Printing and publishing of rules : The rules and regulations, so established, shall be printed and published by said railroad commissioners in such manner as to give the greatest publicity thereto and the same shall be in force and effect until they shall have been changed or abrogated by said commissioners in a like public manner. Id. sec. 230. Public warehouses : That all elevators and warehouses in this state wherein and whereat grain is purchased, received or handled are hereby de- clared to be public warehouses. Id. sec. 231. License : That it shall not be lawful for the proprietor, lessee or man- 732 SOUTH DAKOTA LAWS. ager of any warehouse or elevator, mentioned in section four (§ 231) of this act, to transact any business until a license has been procured from the railroad commissioners permitting such pro- prietor, lessee or manager to transact business as a public ware- houseman under the laws of this state, which license shall be issued by the railroad commissioners upon a written applica- tion, which shall set forth the location and name and capacity of such elevator or warehouse and the individual name of each person interested as owner or principal in the management of the same ; or, if the elevator or warehouse be owned or managed by a corporation, the name of the president, secretary and treasurer of such corporation shall be stated, and the said license shall give authority to carry on and conduct the business of a public warehouse, in accordance with the laws of this state; Provided, That it shall be unlawful for any warehouseman, com- pany or corporation engaged in purchase and storage of grain, subject to the provisions of this act, to enter into any contract, agreement or combination with any other warehouse, company or corporation for pooling in the purchase and storage of grain by different and competing warehousemen, companies or cor- porations to divide between them the aggregate or net proceeds of margins or profits resulting from their said business as ware- housemen, or any portion thereof, and in any case of such con- tract, agreement or combination for such pooling of their said business as warehousemen, each day of its continuance shall be deemed a separate offense. Id. sec. 232. Bond : That the proprietor, lessee or manager of any warehouse or elevator in this state in which grain is stored for a compensa- tion, shall before receiving the license as hereinbefore provided, file with the commissioners granting the same a bond to the state of South Dakota, with good and sufficient sureties, in the penal sum of not less than $2,000 nor more than $50,000, for each and every elevator operated, proportioned to the capacity of the elevators or warehouses, in the discretion of said commis- sioners, for each license so granted, conditioned for the faithful performance of duty as a public warehouseman and a full and unreserved compliance with all the laws of this state in relation SOUTH DAKOTA. 733 thereto. A fee of $1.00 shall be paid for each Hcense by the [)ersc>n, association, or corporation applying for the same. Id. sec. 233. Penalty for transacting business without license : That any person, association or corporation who shall trans- act the business of public warehouseman, without first procur- ing a license as herein provided, shall be deemed guilty of a misdemeanor and on conviction shall be fined a sum not less than $100 for each and every day such business has been car- ried on. Every such license shall expire on the first day of August next following the issuance thereof, and the said board of railroad commissioners may at any time for good cause shown, in their discretion revoke any warehouseman's license by them granted, but the said warehouseman shall have the right of appeal from said decision to the circuit court in and for the county in which his warehouse is located, upon filing a bond in the sum of $200, conditioned for the payment of the costs of said appeal provided the same is not sustained by said court. Id. sec. 234. Warehouse receipts : All ownei-s of such bonded warehouses and elevators so li- censed shall upon the request of any person delivering grain at such warehouse give a warehouse receipt therefor, subject to the [order of the] owner or consignee, which receipt shall bear date corresponding with the receipt of the grain and shall state upon its face the quality and grade fixed upon the same ; also the amount deducted for dirt or cleaning. All warehouse receijits issued for grain received shall be consecutively num- bered, and no two receipts bearing the same number and sei-ies shall be issued during the same year. No warehouse receipt shall be issued except upon actual delivery of grain into such warehouse. No such warehouseman shall insert into any ware- house receipt issued by him any language in anywise limiting or modifying his liability as imposed by the laAvs of this state. Id. sec. 235. Above section construed : The above section will estop a warehouseman from setting up as a defense against a hona fide holder of a receipt, evidence 734 SOUTH DAKOTA LAWS. that the goods were never stored in his warehouse. Fletcher V. Great Western Elevator Co., 12 S. D. 643. Grain to be delivered upon the return of the receipt : On the return of any warehouse receipt pj-operly indorsed, and the tender of all proper charges upon the property repre- sented by it, such grain, or any equal quality of the same grade, shall be immediately delivered to the holder of such receipt as rapidly as due diligence, care and prudence, will justify. Noth- ing in this section shall be construed to mean the delivery of the identical grain specified in the receipt so presented ; but an equal amount of the same grade, and if the grain so delivered has not been cleaned by said warehousemen, there shall be added to the amount so delivered the amount originally de- ducted from the grain stored for dirt, which amount shall also be delivered ; and when such grain is to be shipjjed to some terminal point where such elevator company or warehouseman is there doing business, such elevator company or warehouse- man shall guarantee both weight and grade. Grantham's An- notated South Dakota Statutes, 1901, sec. 236. Report to railroad commissioners : That every owner or manager of such licensed warehouse or elevator, at such times as the commissoners shall require, shall furnish to the commissioners in writing, under oath, a statement of the condition and management of his business as such ware- houseman. Such report shall show the total number of bushels of each kind and grade of grain purchased and in store, and the number delivered out, and the number remaining in store at the date of the report. But no warehouseman shall be re- quired to Aveigh the grain on hand more than once in each year ; and the warehouseman shall, in addition to the statement herein, be required to furnish to the commissioners any other information regarding the business of his warehouse which the commissioners may require. Id. sec. 237. Inspection of warehouses : The commissioners shall cause every warehouse and the busi- ness thereof, and the mode of conducting the same to be in- spected, at such times as the commissioners may order, by one or more members of the commission, who shall report in writ- SOUTH DAKOTA. 735 ing to the commissioners the result of such examination ; and the property, books, records, accounts, papers and proceedings, kept at each warehouse, so far as they relate to their condition, operation, or management, shall at all times during business hours be subject to the examination and inspection of such commissioners ; and said board of commissioners may, in all matters arising under the provisions of this law, exercise the power to subpoena and examine witnesses conferred upon said board by law in relation to railroad companies. Id. sec. 228. Grades to be established : The railroad commissioners shall, before the first day of September in each year, estabhsh a grade for all kinds of grain bought or handled by any elevator or warehouse in this state, which shall be known as " South Dakota grades," but which shall not differ from grades in the state of Minnesota, and the grades so established shall be printed and published in the manner required by section five [§ 232] of this act : Provided, that no such publication shall be necessary except when changes are made in such grades, and when [then] the changes so made only shall be published. And said board of railroad commis- sioners shall have supervision of the grading, weighing and shipping all grain purchased or handled by public warehouse- men in South Dakota ; and all public warehousemen shall grade all grain purchased or handled by them in conformity with the established " South Dakota grades," as herein pro- vided. Any person aggrieved at the weights or grades given by any warehouseman may appeal to the board of railroad commissioners, and it is hereby made the duty of said board to, without delay, inquire into said grievance and adjust the same in accordance with established standards. Id. sec. 239. Moneys to be paid into state treasury : All moneys collected by the railroad commissioners, as herein provided for, shall be paid into the state treasury. Id. sec. 240. Duty of state treasurer : It shall be the duty of the treasurer of the state of South Dakota to receive all moneys aforesaid and all fines and pen- alties collected by virtue of this act, and to keep a separate ac- count of the same, and pay the same only on the order of the 736 SOUTH DAKOTA LAWS. railroad commissioners to defray the expense of carrying the provisions of this act into effect. Id. sec. 241. Bailment, not a sale — Insolvency : Whenever any grain shall be delivered to any person, asso- ciation, linn or corporation, doing a grain warehouse or grain elevator business in this state, and receipts issued therefor, pro- viding for a delivery of a like kind, amount and grade, to the holder thereof in return, such delivery shall be a bailment and not a sale of the grain so delivered ; and in no case shall the grain so stored be liable to seizure upon process of any court in actions against such bailee, except actions by owners or hold- ers of such warehouse receipts to enfoi-ce the terms of the same- but such grain shall at any and all times, in the event of the failure or insolvency of such bailee, be first applied exclusively to the redemption of outstanding warehouse receipts for grain so stored with such bailee. And in such event grain on hand in any particular elevator or warehouse shall first be applied to the redemption and satisfaction of receipts issued from such warehouse. Id. sec. 242. Denial of storsige not permissible : No person, association, firm or corporation, doing a grain warehouse, or grain elevator business in this state, having is- sued a receipt for the storage of grain, as in section one of this act provided, shall thereafter be permitted to deny that the grain represented thereby is the property of the person to wliom such receipt was issued, or his assigns thereof, and such receipts shall be deemed and held, so far as the duties, liabilities and obligations of such bailee are concerned, conclusive evidence of the fact that the party to whom the same was issued or his assigns thereof, is the owner of such grain, and is the person entitled to make surrender of such receipt and receive the grain thereby promised to be delivered. Id. sec. 243. Above section construed — Pledgee may sue in his own name : Pledgee being assignee of receipt may sue in his own name. Citizens' Nat. Bank v. Great Western Elevator Co., 13 S. D. 1. Larceny— Punishment : Every person, and every member of any association, firm or SOUTH DAKOTA. 737 corporation doing a grain warehouse or grain elevator business in this state who shall after demand, tender and otfer as pro- vided in section nine [§ 236] of this act, willfully neglect or re- fuse to deliver, as provided by said section nine, to the person making such demand, the full amount of grain of the kind and grade or market value thereof which such person is entitled to demand of such bailee, shall be deemed guilty of larceny and shall on conviction thereof be punished by a fine or imprison- ment, or both, as is prescribed by law for the punishment of larceny. Grandham's Annotated South Dakota Statutes, 1901, sec. 244. Receipts : Upon the delivery of grain from store upon any receipt, such receipt shall be plainly marked across its face the word " can- celled " and shall thereafter be void, and shall not again be put in circulation, nor shall grain be delivered twice upon the same receipt. No warehouse receipt shall be issued except upon ac- tual delivery of grain into store in the warehouse from wdiich it purports to be issued, and which is to be represented by the receipts, nor shall any receipt be issued for a greater quantity of grain than was contained in the lot or parcel stated to have been received. Nor shall more than one receipt be issued for the same lot of grain, except in cases where receipt for part of a lot is desired, and then the aggregate receipts for a particular lot shall cover that lot and no more. In cases where a part of the grain represented by the receipt is delivered out of store and the remainder is left, a new receipt may be issued for such re- mainder, but the new receipt shall bear the same date as the original and shall state on the face that it is balance of receipt of the original number, and the receipt upon which a part has been delivered shall be cancelled in the same manner as if it had all been delivered. In case it be desirable to divide one receipt into two or more, or in case it be desirable to consolidate two or more receipts into one, and the warehouseman consents thereto, the original receipt shall be cancelled the same as if the grain had been delivered from store, and the new receipts shall express on their face that they are a part of another re- ceipt, or a consolidation of other receipts, as the case may be ; and the numbers of the original receipts shall also appear upon the new ones issued, as explanatory of the change ; but no con- 47 738 SOUTH DAKOTA LAWS. solidation of receipts of dates differing more than ten (10) days shall be permitted, and all new receipts issued for old ones can- celled, as herein provided, shall bear the same date as those originally issued as near as may be. Id. sec. 245. Schedule of rates to be published : Every warehouseman of bonded warehouses shall be required during the first week in September of each year to publish in one of the newspapers, daily if there be such, published in the city or village m which said warehouse is situated, a table or schedule of rates for the storage of grain in his warehouse dur- ing the ensuing year, which rates shall not be increased during the year, and he shall cause the same to be i)lainly printed on the warehouse receipts or tickets, and such published rates, or any pubhshed deduction of them shall apply to all grain re- ceived into such w^arehouse from any person or source. The charges for storage or handling shall in all cases be equal and just, and shall be approved by the board of railroad commis- sioners before going into effect and shall not exceed the usual charges heretofore existing. Id. sec. 246. Attorney general — State's attorney : The attorney general of the state shall be ex officio attor- ney for the railroad commissioners and shall give them such counsel and advice as they may from time to time require, and he shall institute and prosecute any and all suits which said railroad commissioners may deem expedient and proper to in- stitute, and he shall render to such railroad commissioners all counsel, advice and assistance necessary to carry out the pro- visions of this act or any law which said commissioners are re- quired to enforce according to the true intent and meaning thereof. In all criminal prosecutions against a warehouseman for the violation of any of the ]:>rovisions of this act it shall be the duty of the state's attorney of the county in which such prosecution is brought to prosecute the same to a final issue. Id. sec. 247. Official bonds to be filed with state auditor : All official bonds required to be given by any person, com- pany or corporation, pursuant to the provisions of this act, shall be filed in the office of the auditor of the state of South SOUTH DAKOTA. 739 Dakota, and suit may be brought thereon in any court havino* jui'isdiction thereof, for the use of any person or persons cotn- phuning of having sustained any injury by reason of a viola- tion of the conditions thereof. Id. sec. 248. Certain coiiibii)atiou8 unlawful — Posting of rules : It shall be unlawful for any })roprietor, lessee or manager of any public warehouse to enter into any contract, agreement, understanding or combination with any railroad company, or any corporation, or with any individual or individuals by which the property of any person is to be delivered to any public warehouse for storage or for any othei- purpose con- trary to the direction of the owner, his agent or consignee. Each warehouseman shall also keep posted at all times in a conspicuous place in his warehouse a printed copy of the schedule of grades established by the commissioners and a printed copy of this act, and of the rules and regulations for the manage- ment of warehouses established by the commissioners, to be furnished by the railroad commissioners. Id. sec. 249, Penalty for violation of the provisions of this act : That any person, association or corporation, or any repre- sentative thereof, who shall knowingly cheat or falsely weigh any wheat or other agricultural products or who shall violate the provisions of any section of this act, or who shall do or perform any act or thing therein forbidden, or who shall fail to do and keep the requirements as herein provided, shall be deemed guilty of a misdemeanor and shall on conviction thereof be subjected to a fine of not less [than] one hundred dollars, nor more than one thousand dollars, and be liable in addition thereto to imprisonment for not more than one year in the state prison at the discretion of the court. Id. sec. 250. Test of scales— Standard weights and measures : Said board of commissioners or any one or more members thereof may, at any time, without notice, enter any public warehouse in this state and test and seal all weighing scales and measures used in conducting said warehouse business, and for that purpose the said commission is hereby authorized to provide itself with standard weights and measures. Id. sec. 251. 740 SOUTH DAKOTA LAWS. Producers not bound nnder the provisions of tJiis act : Nothing in tiiis act sliali be so constructed as to prevent the producers from marketing, storing or shipping their own pro- ducts in any manner they choose, without ]irocnring any license or giving any bonds under any provisions of this act. Id. sec. 252. Side tracks : Every railroad company doing business or operating a line of railroad in this state shall upon application in writing made by any person, firm or corporation owning or operating an elevator, warehouse or flouring mill, or a manufactory, upon or immediately contiguous to its right of way, at any of its regular stations, provide suitable side track facilities and run- ning connections between its main track and such elevator, warehouse, flouring mill or manufactory, within twenty days after such application in writing shall be served upon any station agent of such company in the county wherein such side track and running connections is desired, and such side track facilities and running connections shall be made by such rail- road company Avithout reference to the size, cost or capacity of such elevator, warehouse or flouring mill ; but such railroad company shall not be required to furnisli any side tracks except upon its own land, or beyond the right of way over which it is operating its line of railroad ; provided that such side track need not be furnished when the capacity of any elevator is less than 10,U00 bushels, unless so ordered by the board of railroad commissioners. Provided further, that any person wishing to avail himself of the benefits of this act shall so notify the rail- road company before building such elevator, and the railroad company shall have the privilege of granting him a site on the side tracks of the company already constructed. Id. sec. 253. Restrictions : That no elevator, warehouse, flouring mill or manufactory shall be constructed within one hundred (100) feet of any exist- ing structure, and shall be at a safe fire distance from all station buildings, and so as not to conflict with the safe and convenient operation of such railroad. Id. sec. 254. For shippers : Where stations are more than twelve miles apart such rail- SOUTH DAKOTA. 741 road company, when i-eqnired so to do by the board of railroad commissioners, shall construct and maintain a side track for the use of siiippers between such stations. Id. sec. 255. Penalty : A failure or refusal on the part of such railroad company to construct side tracks and running connections as provided in sections one and three [§§ 253, 255J of this act, shall render it lia- ble to the applicant for same for all damages he may sustain bv reason of such failure and refusal ; and such railroad company shall forfeit not less than one hundred dollars nor more than three hundred dollars for each day it shall fail or refuse to comply with the provisions of said sections one and three of this act as to the construction of such side tracks and runnino- connections; and it shall be the duty of the state's attorney of the county where such failure occurs, to prosecute in the name of the state all actions for the recovery of such forfeitures, and when recovered the same shall be paid into the school fund of the county. Id. sec. 256. Warehouse Sites. Duty of railway commissioners : Whenever any person, firm or corporation shall have been refused the privilege of constructing a public warehouse upon the right of waj^ depot grounds or warehouse lots of any rail- way at any station thereon in the state of South Dakota, it shall be the duty of the board of railway commissioners to immedi- ately, upon being notified of such refusal, to serve ten days' notice upon said railway company at the time of the investio-a- tion hereinafter provided for and then at the time so appointed appear at the station where such public warehouse site is desired and upon investigation and consideration of all the circumstances surrounding the case, determine whether the public welfare will be advanced by the construction of another warehouse at such station. Id. sec. 257. Decision of the board to be final, when : If the said board of railway commissioners shall after such consideration determine that the public welfare would not be advanced by the construction of another warehouse at said sta- tion, the said board shall so inform the applicant for said site 742 SOUTH DAKOTA LAWS. and such determination shall be final and no further procedure shall be had in the premises. Id. sec. 258. Board to fix location ; If the said board of railway commissioners shall determine after due investigation that the construction of such warehouse is necessary and that the public welfare will be advanced there- by, then it shall be tiie duty of said board to fix the location of such public warehouse upon the right of way, depot grounds or warehouse lots of the railway company concerned, having in view in fixing such location the interests and convenience of said railway company and of the public, and a memorandum of such determination and of the location so selected shall be furnished to the applicant for such public warehouse site. Id. sec. 259. Coiupeiisatiou for property : In all cases where persons or firms invested with the priv- ilege of taking private property for public use under this act shall determine to exercise such privilege, it shaU be the duty of such person or firm to file a petition in the circuit court of the county in which the property to be taken is situated, pray- ing that a just compensation to be made for such property may be ascertained b\" a jury. Id. sec. 260. Petition to contain what : Such petition shall name the person or firm desiring to take such private property for public use as plaintiff, and the rail- way owning such property as defendant. It shall contain a description of the property to be taken and the purpose for which the same is to be so taken shall be clearly set forth in the petition. Such petition shall be verified in the manner pro- vided by law for the verification of complaints in the circuit court, and the afiidavit of verification shall contain the further statement that the proceeding is in good faith and for the pur- poses specified in the petition. Id. sec. 261. Amendments to petition : If any person or corjioration who are pro])er parties defend- ant to such proceeding, or any propei'ty affected thereby, shall have been omitted from said petition or notice, the plaintiff may file amendments to the same, which amendments from the SOUTH DAKOTA. 743 filinir thereof shall have the same effect as thouo^h contained in said petition or notice. Id. sec. 262. Plaintiff's motion for action : At any time after tiling the petition the plaintiff may issue a summons to the defendant or defendants which shall be en- titled in the action or proceeding, and state the time and place of fihng the petition, the nature of the proceeding, and contain a notice to the effect that if the defendant or defendants do not appear in said proceeding within twenty days from the service thereof, exclusive of the day of service, the plaintiif will apply to the court for an order to empanel a jury and ascertain the just compensation for the property proposed to be taken in such proceeding. Id. sec. 263. Application for drawing of jurors : If no appearance be made in said proceeding by the defend- ant or defendants within the tune specified in the summons, the plaintiff upon affidavit of the default may apply to the court for an order directing the clerk of the court to draw and summon eighteen jurors to attend at the courthouse or place of holding the circuit court of the county to be specified in such order. Said jurors shaU be drawn and summoned in the same manner as jurors are drawn and summoned for the reg- ular or special term of the circuit court. If any of the defend- ants shall have appeared in such proceeding, the plaintiff shall give such defendants three days' notice of the time and place where application shall be made to the court for the order to draw and summon the jurors. Id. sec. 264. Trial of action : At the time and place specified in the order mentioned in section eight, a special term of the court shall be held, at which the proceedings in empaneling the jury, trial, and rendering of the verdict or verdicts shall be conducted in the same manner as trials of actions in the circuit court. Id. sec. 265. Pleadings : No other pleadings shall be necessary in such proceeding ex- cept the petition of the plaintiff, and such as may become neces- sary to enable the court to determine conflicting claims of the 744 SOUTH DAKOTA LAWS. defendants to the compensation awarded b}^ the verdict of the jury or some part thereof. Id. sec. 266. Jury may view premises, when : Upon the demand of any party to the proceeding, if the court shall deem it necessary, the jury may view the premises undei* the rules of law for viewing bj' the jury. Id. sec. 267. Issue or question to be tried — Limited to wliat : The only issue or question which shall be tried b}^ the jury upon the petition shall be the question of compensation to be paid for the property so taken, but in case there shall be ad- verse claimants for such compensation for any part of such property, the court may require such adverse claimants to in- terplead, so as to fully determine the rights and interest in such compensation. Id. sec. 268. Verdict of j ury : Upon the leturnof the verdict the court shall order the same to be recorded, and shall enter such judgment thereon as the nature of the case may require and upon the payment or tender of the amount of damages assessed by the jury, with the clerk of said court for the benefit of such railway company said plaintiff may proceed to erect a public warehouse upon the site selected as aforesaid, and condemned as hereinbefore pro- vided and to occupy the same. The right of occupancy only shall be vested in said plaintiff or his or their heirs or assigns. Id. sec. 269. Extension of lands condemned : Such condemnation of such right of way, depot grounds or warehouse lots and said right of occupancy shall only extend to so much of said grounds as is necessary for the accommoda- tion of such public warehouse and for the convenient operation thereof, together with necessary grounds and free access thereto from the nearest public thoroughfare. Id. sec. 270. Board of appraisers — Duties of : The applicant of such ])ublic warehouse site may thereupon, after five days' notice to such railway company, which notice shall be served as summons are required by law to be served in civil actions, apply to the circuit court in and for the county SOUTH DAKOTA. 745 wher-e such proposed public warehouse is situated, for the ap- pointment of three appraisers, whose duty it shall be to deter- mine the damage sustained by said railway company by the use and occupancy of such site for such public warehouse ; such appraisers shall be freeholdei's of the county wherein such site is located, and shall not be interested in a like question. Tbe a))praisers sliall be duly sworn to perform their duties impar- tially and justly ; they shall inspect the said location and con- sider the injury which said railway company will sustain by the erection of said warehouse upon the said site and the oc- cupancy thereof, and shall assess the damage which such com- pany will sustain by the occupancy of said site for such })ublic warehouse purposes, and they shall forthwith make report, in writing, to the clerk of such court setting forth the descrip- tion boundaries and amount of damages to such right of way which they assess, to said applicant, which report must be filed and recorded by the clerk, and a certified copy thereof may be transmitted to the register of deeds of the county where the site is situated, to be by him filed and recorded, without further proof or acknowledgment, and in the same manner and with the same force and effect as provided for the record of deeds. Id. sec. 271. Payment of damages, how tendered : The applicant for such public warehouse site may thereupon pay or tender the payment of the damages so assessed by de- positing the same with the clerk of said court for the benefit of said railway company, and thereupon and thereafter may proceed to erect a public warehouse upon the site so selected and condemned as hereinbefore provided and to occupy the same. The right of occupancy only being vested in said appli- cant or his or their heirs and assigns. Id. sec. 272. o Appeal may be taken : That either part}^ may appeal to the circuit court from the assessment of the said appraisers within thirty da3''s after the said report it filed with the clerk of the court as hereinbefore provided, and the trial of such appeal shall be conducted in all things as a trial of a civil action in such court, but if the ap- pellant does not recover a verdict more favorable to said appel- lant than the assessment of the appraisers, he shall not recover 746 SOUTH DAKOTA LAWS. costs in the circuit court, and all cost of said appeal shall be taxed against said appellant. Such appeal shall not interfere with the right of the applicant to occupy such site and to erect a public warehouse thereon, but such railway company shall have a first lien upon any building so erected for any increase of damages recovered in the circuit court, together with the costs incident thereto. Id. sec. 273. Pay of appraisers : Each of the appraisers shall be entitled to a fee of one dol- lar and to ten cents for each mile necessarily traveled in making such appraisal. Id. sec. 274. Costs to be paid by applicant : All costs incident to the appointment of appraisers and to the appraisal of damages provided for herein shall be paid by the applicant for said public warehouse site. Id. sec. 275. Facilities for shipping : That upon the application of any person or firm owning or occupying any public warehouse, or any mill adjacent to the right of way of any railway company, such person or firm shall be granted the same facilities for shipping that are granted any other shipper at the same place. Id. sec. 276. Fraudulent bill of lading : Every person being the master, owner or agent of any ves- sel or officer or agent of any railroad, express or transportation company, or otherwise being or representing any carrier who delivers any bill of lading, receipt or other voucher, or by which it appears that any merchandise of any description has been shipped on board any vessel, or delivered to any railroad, express or transportation company or other carrier, unless the same has been so shipped or delivered, and is at the time ac- tually under the control of such carrier, or the master, owner or agent of such vessel, or of some officer or agent of such com- pany, to be forwarded as expressed in such bill of lading, receipt or voucher, is punishable by imprisonment in the state prison not exceeding five vears, or bv a fine not exceedino^ one thou- sand dollars, or both. Id. sec. 8180. Fraudulent warehouse receipts : Every person carrying on the business of a warehouseman, SOUTH DAKOTA. 747 wharfinger or other depositary of i)roperty, who issues any re- ceipt, bill of lading or other voucher for any merchandise of any description which has not been actually received upon the premises of such person, and is not under his actual control at the time of issuing such instrument, whether such instru- ment is issued to a person as being the owner of such merchan- dise, or as security for any indebtedness, is punishable by im- prisonment in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars, or both. Id. sec. 8131. When not liable : No person can be convicted of any offense under the last two sections by reason that the contents of any barrel, box, case, cask or other vessel or package mentioned in the bill of lad- ing, receipt or other voucher, did not correspond with the de- scription given in such instrument of the merchandise received, if such description corresponded substantially with the marks, labels or brands upon the outside of such vessel or package, unless it appears that the accused knew that such marks, la- bels or brands were untrue. Id. sec. 8132. Duplicate receipts or vouchers : Ever}' person mentioned in sections sixty-eight hundred and sixty-six and sixty-eight hundred and sixty-seven [§§ 8130, 8131] who issues any second or duplicate receipt or voucher, of a kind specified in those sections, at a time while any former receipt or voucher for the merchandise specifiefl in such second receipt is outstanding and uncancelled, without writing across the face of the same the word " duplicate," in a plain and legi- ble manner, is punishable by imprisonment in the state prison not exceeding five years, or by a fine not exceeding one thou- sand doUars, or both. Id. sec. 8133. Selling goods without consent of holder of bill of ladins: : Every person mentioned in section sixty-eight hundred and sixty-six and sixty-eight hundred and sixty-seven [^Jg 8130, 8131], who sells, hypothecates or pledges any merchandise for which any bill of lading, receipt or voucher has been issued by him, without the consent in writing thereto of the person hold- ing such biU, receipt or voucher, is punishable by imprisonment 748 SOUTH DAKOTA LAWS. in the state prison not exceeding five years, or by a fine not exceeding one thousand dollars or both. Id. sec. 8134. Bill of lading must be caucelled, when : Every person, such as mentioned in section sixty-eight hun- dred and sixty -seven [§8131], who delivers to another any mer- chandise for which any bill of hiding, recei})t or voucher has been issued, unless such receipt or voucher bore upon its face the words "not negotiable," plainly written or stamped, or un- less such receipt is surrendered to be cancelled at the time of such delivery, or unless, in the case of a partial delivery, a memorandum thereof is indorsed upon such receipt or voucher, is punishable by imprisonment in the state prison not exceed- ing five years, or by a fine not exceeding one thousand dol- lars, or both. Id. sec. 8135. When law does not apply : The last two sections do not apply where property is de- manded by virtue of process of law. Id. sec. 8136. SOUTH DAKOTA. 749 DECISIONS AFFECTING WAREHOUSEMEN. B. Demand — Case when unnecessary — Warehous closed. The plaintiff bank was the pledgee of a warehouse receipt deposited with it as collateral security for the payment of a note. At the time of the maturity of the note, the elevator or warehouse was closed and there was no person in charge on whom demand could be made, nor was it shown that the de- fendant had any other elevator or warehouse in the state at which demand could be made, and of which the plaintiff haxl knowledge. It was held that it was not necessary for the plaintiff to show any other or further effort to make demand. Citizens^ National Bank v. Great Western Elevator Co.y 13 S. D. 1. Right of stoppage in transitu — After goods stored in ware- house. The right of stoppage in transitu may continue to exist even though the goods have been stored in a warehouse. In legal contemplation goods though stored may still be in transit, where they are stored by the carrier. Powell v. McKechnie, 3 Dak. 319. N. Pledge — Pledgee may mmntain action in his own name. The pledgee of a warehouse receipt, under the statute of this state, may maintain an action for the conversion of the goods represented thereby. Such pledgee is entitled to maintain such action in his own name, accounting to the pledgor for any amount he may recover. Citizens^ National Sank v. Great Western Elevator Co.^ 13 S. D. 1. Q Warehouse receipts — False — Estoppel — Measure of damages. The plaintiff, a bona fide holder of a warehouse receipt, brought an action against the corporation which had issued the same for the value of grain represented thereby. It ap- peared from the evidence that the defendant corporation at the time of issuing the receipt was operating numerous warehouses 750 SOUTH DAKOTA DECISIONS. within the state of South Dakota. The receipt was issued by an agent of the defendant when the grain which it represented was not actually in store. It was transferred bv the ag-ent to the plaintiff who took without any knowledge of fraud and he paid full value therefor in cash. It was held that the defendant was liable for the act of its agent in fraudulently is- suing this receipt, and that the defendant was estopped to den}^ that it had actually received the grain represented thereby. Further held, that the plaintiff was entitled to recover not the value of the wheat, but that his claim was limited to the amount which he had paid for the warehouse receipt. FUtcher V. Great Western Elevator Co., 12 S. D. 643 ; Maynard v. In- surance Co., 34 Cal. 48. TENNESSEE. 761 CHAPTER XLII. TENNESSEE. LAWS PERTAINING TO WAREHOUSEMEN. Warehouseman : Hereafter, in this state, every and all person or persons, firms, companies or corporations who shall receive cotton, to- bacco, corn, wheat, rye, oats, hemp, whiskey, or any kind of produce, wares, merchandise, or an}^ description of personal property in store, for hire, or who shall undertake to receive, and take care of, or to sell the same for other persons, shall be deemed and taken to be a warehouseman. Milliken & Vertree's Code of Tennessee, 1884, sec. 2792. Warehouse receipt not to be issued until produce is de- livered : No warehouseman shall issue a receipt for cotton, tobacco, grain, hemp, whiskey, or any kind of produce, wares, mer- chandise, or any description of personal property, unless such produce or personal property be in the custody of such ware- houseman, and in store, or upon the premises and under his control at the time of issuing such receipt. Id. sec. 2793. Duplicate receipts to be so marked : No warehouseman shall issue any second or duplicate re- ceipt while any former receipt for the same produce, or other personal property, or any part thereof, shall remain outstand- ing or uncancelled without writing or stamping plainly across the face of the same the word " duplicate." Id. sec. 2794. Shall hold produce or proceeds subject to receipt : No warehouseman shall sell or incumber, ship, transfer or in any way remove, or permit to be removed, transferred or shipped beyond his control anything hereinbefore mentioned, for which a receipt shall have been given by him until the re- ceipt for the same be surrendered to and cancelled by him. Id. sec. 2795. 752 TEN^^ESSEE LAWS. Warehouse receipts made negotiable : All receipts issued by any wai'ehouseinaii for cotton, tobacco, grain, hemp, whiskey or any kind of produce, wares, mer- chandise 01- any description of personal property, shall be and they are hereby made negotiable by written indorsements thereon and delivery in the same manner and to the same in- tent as bills of exchange and promissory notes, and any person or persons to whom the same may be transferred hoy^a fide, and for value received, shall be deemed and taken to be abso- lute owner of the produce, wares, merchandise or other per- sonal property therein specified, and no clause, condition or limitation, either written or printed, in said receipt shall be held to limit their negotiability or to affect the right of the holder or holders thereof. Id. sec. 2796. Nou-uegotiable receipts : But all such receipts which shall have the words " not nego- tiable " plainly written or stamped thereon shall not be subject to the provisions of this chapter. Id. sec. 2797. Hypothecations exceeding actual advances forbidden : No warehouseman shall pledge, hypothecate, or negotiate any loan upon any receipt for produce, merchandise or other personal property to a greater amount than he has actually paid or advanced thereon. Id. sec. 2798. Punishments and penalties : Any warehouseman who shall violate any of the provisions of this chapter shall be deemed guilty of a criminal offense, and, upon indictment and conviction thereof, shall be fined in any sum not exceeding five thousand dollars, or shall be punished by imprisonment in the penitentiary of the state for not more than five years, or both, in the discretion of the jury trying the case ; and every and all person or persons aggrieved by the violation aforesaid, shall have the right to maintain an action at law against the person or persons, corporation or cor- porations, violating any of the provisions of this chapter, to recover damages which he or they may have sustained by reason of such violation as aforesaid, before any court of com- petent jurisdiction whether such person or persons aforesaid shall have been convicted of a criminal offense under this chap- ter or not. Id. sec. 2799. TENNESSEE. 753 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Demand necessary. In an ordinary case of bailment no action would lie for the conversion of the deposit until there has been a demand and a refusal, but where a debt is created by the transaction, ])aya- ble on demand, the institution of the suit is a sufficient demand. See sec. 1947, Code ; Moore v. Fitzpatrick, 7 Bax. 350 ; Bryant v. Puckett, 3 Hay, 252. Same — Parting with property. Bailees generally cannot part with possession of property without the consent of the owner, and the delivery of property without such consent should be treated as a conversion. Colya/r, Trustee, etc., v. Taylor, 1 Cold. 372; Mariner v. Smith, 5 Heisk. 203. Same — Liability of bailee may be affected by usage. If a usage of trade qualified tiie bailee's liability, testimony will be received to prove such usage. Kelton v. Taylor <& Co., 11 Lea, 264. B. Ordinary care — General rule. Ordinary care defined to be that care and diligence which good and capable warehousemen are accustomed to show under similar circumstances or that which business men, experienced and faithful in their particular department, are accustomed to exercise when in the discharge of their duties. The warehouse must be a suitable building but it need not be fireproof, and the building must be watched in a manner proportional to the risk which the warehouseman assumes. Lancaster Mills v. Merchants'' Cotton- Press Co. et al., 89 Tenn. 1 ; ^Yaller v. Par- ker, 5 Cold. 466 ; Deming & Co. v. Merchants' Cotton- Press, etc., Co., 90 Tenn. 306 ; Kelton v. Taylor & Co., 11 Lea, 264 ; Kirtland v. Montgomery, 1 Swan, 452 ; Polk v. Kirtland et al., 9 Heisk. 292 ; Wallace v. Canady, 4 Sneed, 364. Same — How contract between warehouseman and depositor as- certained. The proper manner of ascertaining the contract existing be- 48 754 TENNESSEE DECISIONS. tweeii the depositor and a warehouseman is not alone from an examination of dray tickets, but the relations of the two must be considered as well as former transactions, and the custom existing between the parties. Lancaster Mills v. Merchants' Cotton-Press Co. et al., 89 Tenn. 1. Title — Parol reservations as to — When valid. A warehouseman advancing money to a customer to purchase produce to be shipped to him and sold on the customer's ac- count, may validly stipulate by parol that the title to the prop- erty thus purchased shall vest and remain in him as security for the money advanced, although its possession passes temporarily to the customer for preparation and shipment ; and upon the title thus reserved the warehouseman can maintain replevin against the customer, his administrators or creditors for such property thus purchased, as can be identified. Grange Ware- house Assoc. V. Owen, 86 Tenn. 355. Attachment of goods while hailed — Owner cannot maintain trover. Where property was attached while in the hands of the bailee the owner thereof cannot maintain trover against the officer having possession of the property under such attach- ment for the reason that the plaintiff in trover must establish his right of possession as well as his right of property, and that right must exist at the time of the conversion. Caldwell V. Cowan, 9 Yer. 261. E. Factors — May pledge goods to secure their interest — When they may refuse to comply icith order to sell. Factors who have made advances upon goods intrusted with them may pledge the same to the extent of theii- interest therein. If such a factor be instructed by the owner to sell the goods he may refuse to do so if the goods would not sell for a sufficient amount to reimburse him for his advances. Blair o& Jefferson v. Childs, 10 Heisk. 199. H. Storage charges — When not recoverable. Storage charges cannot be recovered when the holding of TENNESSEE. 755 depositor does not inure to the beneiit of the true owner. Hamilton tfc Co. v. Kennedy et al., 62 Tenn. 476. L. Replevin — Demand not necessary. In order to maintain an action of replevin, it is not neces- sary to show a demand on the part of the piaintilf, for the prop- erty in conti'oversy, before bringing his suit. Draper v. Moscley ei al., 3 Bax. 201. Detinue — Demand necessary. A defendant to whom property has been bailed by the ap- parent owner cannot be sued in an action of detinue for the property by the true owner, unless a demand for the property had been made previous to the institution of the suit. Ilimter V. Servier^ 7 Yer. 127. N. Loss by fire — Warehouseman not Liable unless the fire results from his negligence — Burden of proof. A warehouse and contents were completely destroyed by fire. In an action against the warehouseman the jury found that he had exercised ordinary care in all respects save that he had failed to keep closed a part of one side of his warehouse be- low the floor ; further, the jury was unable to find that the de- struction of the warehouse resulted from this defect or was in any way connected therewith, and, in fact, was unable to as- certain the cause of the fire. It was held that under the above stated facts the warehouseman was not liable, the court hold- ing that the burden of proof was upon the eonijilainant to show that the fire was a result of the defendant's negligence. It must show that the negligence of the defendant was the pro.xi- mate cause of the loss. Lancaster Mills v. Merchants^' Cotton- Press Co. et al., 89 Tenn. 1 ; By. Co. v. Manchester Mills, 88 Tenn. 653. Same — When statement of warehouseman that goods are not in his possession amounts to negligence — Proximate cause. A carrier which had received goods and had stored them in its depot informed the consignee on several occasions when he called for the goods that they had not been received. The T56 TENNESSEE DECISIONS. goods were destroyed by lire which consumed the depot and its contents. Held that the carrier was liable as a warehouse- man ; that the failure of the carrier's servants to deliver the goods when they were actually in store, and his ignorance in not knowing of their receipt, constituted negligence, and that this mistake on the part of the carrier's servants was the proxi- mate cause of the loss. Railroad v. Kelly, 91 Tenn. 699 ; Butler V. Railroad, 8 Lea, 32 ; Kremer v. Excess Co., 6 Cold. 360. Los8 by act of war — When bailee not liable — Instructions to jury. A bailee of goods is not liable for their loss if he can show that the goods were taken out of his possession or from under his control by irresistible military authority. Therefore, a charge to the jury in a suit against a warehouseman for the value of goods intrusted to his care, to the effect that if they were satis- fied from the evidence that the goods were burned, or directed to be huriied, by the militar}^ authority of the Confederate States affiiinst his consent that thev were to find for the defendant, was erroneous. Although such charge was not excepted to at the trial the appellate court sent the case back for a new trial on the ground that this instruction constituted an actual error which tended to mislead the jury on a material question in the case. Weakley v. Pearce et at., 5 Heisk. 401. P. Contracts to keep insured — When they do not constitute the warehouseman an insurer. A cotton-press company had a contract with a common car- rier that it would insure in solvent companies all cotton which it received from the carrier. Under such an arrangement it was /leld that in view of the fact that the goods, which were only partly insured and subsequently destroyed by tire, did not belong to the carrier, that it was a mere voluntary imposition of an obligation of insurance incidentally beneficial to the owners of the cotton, and that it was not in law or reason the same thing as the assumption of an obligation of insurance. In this case the loss occurred without neglirrence. It was fur- ther held that although the failure of the cotton-press company to carry such insurance might result m incidental damage to the owners of the cotton, the carrier would not be liable for its TENNESSEE. 757 loss unless it could be shown that the carrier was uudei- some obligation to the owners to insure or that the cotton-press com- pany should insure. There was no privity between the car- rier and the owners with respect to insurance. The contract bound the cotton-|)ress company itself ; it was to insure the cotton and not merely the carrier's responsibility therefor ; thus such insurance would infidentally inure to the benefit of the owners but this afforded no reason whatever for holding the cari'ier liable to the owmers for the failure of the cotton-press company to fully carry out its obligation with the carrier in respect of insurance. Lancaster Mills v. Merchants' Cotton^ Press Co. etal., 89 Tenn. 1. Same — Same — Liability for breach of contract — Recovery by owner from other policies a bar. A warehouseman contracted with a carrier that the goods stored with him would be fully covered by insurance for the benefit of the latter. After loss it appeared that the owners had previously insured the ])roperty in their own names and had collected the amount of such policies, the receipt therefor being given as for money " borrowed and received." It Avas held that this contract did not constitute the warehouseman an insurer of the goods but that the owners might recover from him such amount as they could prove they lost as a result of the failure of the defendant to comply with the terms of his con- tract. If the defendant could show that the complainant had received the full value of the goods destroyed under its policy of insurance he could not recover against the warehouseman for he had not been damnified by the defendant's breach of con- tract. Lancaster Mills v. Merchants^ ( 'otton-Press Co. et al., 89 Tenn. 1 Deming <& Co. v. Merchants^ Cotton- Press., etc, Co., 90 Tenn. 306. 'Warehous.e receipt — What is not. A receipt signed jointly by the proprietor of a bonded ware- house and the government storekeeper, and issued to the ]mv- chaser of whiskey on storage in the \varehouse and providing for delivery of the same u])on the return and surrender of the receipt, properly indorsed, and payment of government tax and storage changes, is not a technical warehouse receipt within (o8 TENNESSEE DECISIONS. the meaning of tbe statute on that subject and does not possess the attributes conferred by the statute, although it recites that it " is given in deference to the Tennessee warehouse laws." Marks & Co. v. Bridges <& Son, 106 Tenn. 540, Sa77ie — Innocent holder of handed warehouse receipt. The holder of a government bonded warehouse receipt, ex- cept he be an innocent holder for value, cannot maintain an action against the proprietor of the bonded warehouse for con- version of the whiskey therein described where the latter has, by appropriate legal proceedings, subjected it to public sale for the purchase price and become the purchaser thereof at such sale. Id. Same — A contract — Estoppel. As between the makers of a warehouse receipt and an as- signee thereof m good faith it is not simply a receij)t subject to be explained and contradicted by parol, but it is a contract subject to the rules applicable to other contracts. In an action on a warehouse receipt a warehouseman will be estopped to show b}" parol that he did not actually receive the goods. Stewart Gwynne (& Co. v. Phoenix Ins. Co., 9 Lea, 104. Sayne — Negotiability — Bona fide owner protected. A bona fide owner of warehouse receipts even though the description of the goods is somewhat vague takes title to the property thereby as against an attaching creditor who seizes the goods while stored. Bank of Rotne v. Haselton^ 15 Lea, 216. R. Bill of lading — Exemptions. A stipulation in the bill of lading that the carrier shall not be liable for destruction of the goods by fire while the goods are in its depot, station, yard, landing or warehouse, is valid, provided there is sufficient consideration therefor, and further provided, that it is in no sense a stipulation against the liability of the carrier for its negligent acts. Lancaster Mills v. Mer- chants' Cotton-Press Co. et al., 89 Tenn., 1 ; Railroad Co. v. Craig, 102 Tenn. 298. TENNESSEE, 7.39 Same — Saine — Negligence — Effect of acceptance. A common camer may by general stipulations, based on suf- ficient consiclerati(jn, limit his liabilities, except such as grow out of his neiiiiiience or bad faith, and such limitations mav be embodied in tl)e bill of lading which represents the goods. Thereisamitural presumption when one accepts a bill of lading that he is acquainted with the contents thereof. Dillanl Broa. V. Z. & N. R. R. Co., 2 Lea, 28S ; E. 7'., Va. cfe Ga. R. E. Co. V. Brumhy, 5 Lea, -401 ; MercJiants' Dispatch Transporta- tion Co. V. Block Bros., 2 l^ickle, 392. Same — Same — To be strictly construed. Exemptions contained in a bill of lading are hmitations upon the common-law liability of the carrier and are not favoted by the courts. They are to be strictly construed and limited to the general risk of the carrier after it obtains the- custody of the property, unless the terms thereof expressly extend to a special risk. Dcviing cfe Co. v. Merchants' Cotton-Press, etc., Co., 90 Tenn. 306. Same — Same — As to measure of damage — Conversion. The ordinary measure of damages, to wit, the market value of goods at place of destination, less freights, applies to a case where carrier has been guilty of conversion, altliough bill of lading contains stipulation that the carrier, in case of loss, shall be liable only for the value of the goods at time and place of shipment. Erie Dispatch v. Johnson & Guinee, 87 Tenn. 490. Same — Effect of transfer. A transfer and delivery of a bill of lading vests the property in the transferee, this being regarded in law as a constructive delivery of the property itself. Ochs ei al., Burger & Seibel v. Price et al., 6 Heisk. 483. Same — Same — Possession of bill of lading before delivery — AttacJunent. Factors received a bill of lading for cotton which was shipped to them by the owner. When the cotton was on the wharf but before the factor had taken possession thereof it was attached by a creditor of the owner. It was held that the title of the 760 TENNESSEE DECISIONS. cotton was still in the consignor and that the possession of the bill of lading in this case was not a possession of the cotton itself. It only gave authority to the factor to reduce tlie cotton to possession. Saunders v. Bartlett, Gould cb Heath, 12 Heisk. 316; Oliver et al. v. Moore d^ Co., 12 Heisk, 482; Woodruff \. N. <& a R. R. Co., 2 Head, 87. U. Warehouse act constitutional — Does not embody more than one subject. The act of 1S79 known as the Warehouse Act does not vio- late sec. 17, art. 2 of the constitution of the state of Tennes- see in that it embodies more than one subject. Its title is" An act to define warehousemen, to regulate their duties, and to affix penalties for the violation thereof, and relating to their receipts." This act embodies but one subject and that is plainly expressed in its title. Bank of Rome v. Haselton, 15 Lea, 216 ; Monell V. Fickle, 3 Lea, 79. 7U1 CHAPTER XLIII. TEXAS. LAWS PERTAINING TO WAREHOUSEMEN. Warehouses and warehoiiseiiieii — Regulation of : That all persons, iii-ms, companies or corporations who shall receive cotton, tobacco, wheat, rye, oats, rice, whiskey, oil, or any kind of produce, wares, mercliandise, or any description of peisonal property in store for hire, under the provisions of this act, shall be deemed and taken to be public warehousemen and all warehouses which shall be owned or controlled, conducted and managed in accordance with the provisions of this act shall be deemed and taken to be public warehouses ; provided, that a public warehouse for the storage of cotton may, within the meaning of this act, include a lot or parcel of land enclosed with a lawful fence, the gate or entrances of which shall be kept securely locked at night. Supplement to Sayle's Civil Statutes, 1902, title 108«, sec. 1. That the owner, proprietor, lessee or manager of any public warehouse, whether an individual, firm or corporation, before transacting any business in such public warehouse, shall pro- cure from the county clerk of the county in which the ware- house or warehouses are situated, a certificate that he is trans- acting business as a public warehouseman under the laws of the state of Texas, which certificate shall be issued by said clerk upon a written application, setting forth the location and name of such warehouse or warehouses, and the name of each person, individual, or a member of the firm interested as owner or principal in the management of the same ; or if the ware- house is owned or managed by a corporation, the names of the president, secretary and treasurer of such corporation shall be stated, which application shall be received and filed by such clerk and preserved in his office, and the said certificate shall give authority to carry on and conduct the business of a public warehouse within the meaning of this act, and shall be re- 762 TEXAS LAWS. vocable only by the district court of the county in which the warehouse or warehouses are situated, upon a pi-oceeding be- fore the court, on complaint by written petition of any person, setting forth the particular violation of the law, and upon process, procedure and proof, as in other civil cases. The per- son receiving a certificate, as herein provided for, shall file with the county clerk granting same, a bond payable to the state of Texas, with good and suificient surety, to be approved by said clerk, in the penal sum of five thousand dollars ($5,000), conditioned for tlie faithful performance of his duty as a public warehouseman, which said bond shall be filed and preserved in the oiHce of said clerk. Id. sec. 2. That on application of the owner or depositor of the property stored in a public warehouse, the warehouseman shall issue over his own signature, or that of his duly authorized agent, a public warehouse receipt therefor, to the order of the per- son entitled thereto, which receipt shall purport to be issued by a public warehouse, shall have date of the day of its issue, and shall state upon its face the name of the warehouse and its loca- tion, the description, quantity, number and marks of the prop- erty stored, and the date on which it was oi'iginally received in warehouse ; and that it is deliverable upon the return of the receipt properly indorsed by the person to whose order it was issued, and on payment of all charges for storage. All such receipts shall be numbered consecutively, in the order of their issue, and when such receipt is for cotton, the receipt shall state whether the cotton therein described is exposed to the weather or is under shelter ; and a correct record of such receipts shall be kept in a well bound book which shall be, at all reasonable hours, open to examination by any interested person, and no two receipts bearing the same number shall be issued from the same warehouse during the same year, nor shall any duplicate receipt be issued, except in the case of a lost or destroyed re- ceipt, in which case the new receipt shall bear the same date and number as the original, and shall l)e plainly marked on its face " Duplicate"; and provided that no such duplicate receipt shall be issued by the public w^arehouseman, until adequate se- curity acce|)table to the warehouseman, be deposited with or to the order of said warehouseman, to protect the party or parties who may finally hold the original receipt in good faith and for a valuable consideration. Id. sec. 3. TEXAS. 763 That no public warehouse receipt shall be issued except upon the actual previous delivery of the t^x^ods into the public warehouse or on the premises and undei' the control of the pub- lic warehousemen by Avhom it purports to be issued, and the name of the warehouse shall invariably be specified in such re- ceipt. Id. sec. 4. That on the presentation and return to the warehouseman of any public warehouse receipt issued by him and [u-operly indorsed and the tender of all proper warehouse charges upon the property represented by it, such property shall be de- livered immediately to the holder of such receipt; but no pub- lic warehouseman who shall issue a receipt f^r goods shall un- der any circumstances or upon any order or guarantee what- soever, deliver the property for which receipts have been issued, until the said receipt shall have been surrendered and cancelled, except in case of lost receipts, as provided for in sec- tion 3 hereof, and in default of the strict compliance with the provisions of this section of this act, he shall be held liable to the legal holder of the receipt for the full value of the prop- erty therein described, as it appeared on the day of the de- fault, and shall, furthermore, be liable to the special penalty herein provided. Upon the delivery of the goods from the warehouse upon any receipt, such receipt shall be plainly marked in ink across its face with the word "cancelled," with the name of the person cancelling the same, and shall there- after be void, and shall not again be put in circulation. Id. sec. 5. That no public warehouseman shall insert in the public ware- house receipt issued by him any language limiting or mod- ifying his liabilities or responsibilities as imposed by the laws of this state, excepting " not accountable for leakage or depreciation" or words of like import or meaning. Id. sec. 6. That the receipt issued against property stored in public Avarehouses, as herein provided for, shall be negotiable and transferable by indorsement in blank or by special indorse- ment, and delivery in the same manner and to the same extent, as bills of exchange and promissory notes now are, without other formality, and the transferee or holder of such public warehouse receipt shall be considered and held as the actual and exclusive owner, to all intents and purposes, of the prop- 764 TEXAS LAWS. erty therein described subject onl}' to the lien and privilege of the public warehouseman for storage and other warehouse charges ; provided, however, that all such public warehouse receipts, as shall have the words "not negotiable'' plainly written or stamped on the face thereof, shall be exempt from the provisions of this section ; and provided, further, that no public warehouseman shall issue warehouse receipts against his own property in his own warehouse, but upon sale of such property in good faith, may issue to the purchaser his public warehouse receipt in form and manner as herein provided ; which issue and delivery of the recei])t shall be deemed to complete the sale^and constitute the purchaser full owner, as aforesaid, of the property therein described. Nothing in this last clause shall be construed to exempt the issuer of said re- ceipt for his own goods in his own public warehouse from com- plying with and being subject in all respects, to all other sec- tions and provisions of this act. Id. sec. 7. That any public warehouseman who violates any of the pro- visions of this act shall be deemed guilty of criminal offense, and upon indictment and conviction thereof shall be punished by fine in any sum not exceeding five thousand dollars, or im- prisonment in the state penitentiary not exceeding two vears, or by both such fine and imprisonment. And every and all persons aggrieved by the violation aforesaid, shall have the right to maintain an action against the person or persons, cor- poration or corporations, so violating any of the provisions of this act, for the recovery of damages which he or they may have sustained by reason of such violation aforesaid, before any court of competent jurisdiction, Avhethersuch person or persons so violatino" shall have been convicted of criminal offense under the act or not. Id. sec. 8. That nothing in this act shall be construed to apply to pri- vate warehouses or to the issue of receipts by their owners or managers under existing laws, or to prohibit public warehouse- men from issuing such receipts as are now issued by private warehousemen under existing laws, provided, that such ])rivate warehouse receipts issued Ijy public warehousemen shall never be written on a form or blank mdicating that it is issued, from a public warehouse, but shall, on the contrary, bear on its face in large characters, the words, " Not a public warehouse re- ceipt." Id. sec. 9. TEXAS. 765 Tax on grain elevators : From each owner or manager of every grain elevator doing business for fees or toll with a capacity of over one hundred thousand bushels, fifty doUai's ; on each owner or manager of every elevator with a capacity of fifty thousand bushels and not over one liundred thousand bushels, twenty-five dollars. Art. 5049, subd. 55, Sayle's Texas Civil Statutes, 1897. Note. Corporations maybe formed to construct, purchase and maintain warehouses, elevators, mills, etc., under the provisions of title 21 of ttayle's Texas Civil Statutes, 1897. 766 TEXAS DECISIONS. DECISIONS AFFECTING AVAREHOUSEMEN. A. Bailment — Owner may sue bailee although not a party to the bailment. It is settled in this state, that the owner of property held by a bailee may sue to recover it from him, though not a party to the contract of bailment. Clay d; Browne v. Gage d: Wood, 1 C. A. 661. Same — Bailee taking with notice of claim — Subject thereto. Where one buys property or receives it as bailee with notice of a claim of title bv another, adverse to his vendor or bailor, he takes and holds subject to the rights of the adverse claim- ant, though ostensible title may have been in his vendor or bailor. McAnelly v. Chapman, 18 Tex. 198 ; LuckettM. Town- send, 3 Tex. 119. Same — Same — Conversion. Where a bailee has knowledge of a claim of title by another adverse to his bailor, and by direction of his bailor carries off the property, he becomes responsible to such adverse claimant for the value of the property if the latter proves to be the rightful owner, whether the suit by which such right is estab- lished is then or thereafter brought. McAnelly v. Chapman, 18 Tex. 198. Same — Limiting liability. Bailees may by contract limit their liability provided such lim- itation is not contrary to public policy. Coffield v. Harris, 2 App, Cas. sec. 316. Same — Execution upon property in hands of factor. Property which has been delivered to a factor for shipment, and upon which the factor has made advances, may neverthe- less be taken in execution by a creditor of the owner, subject to the advances which have been made. Joost v. Scott, 19 Tex. 473. TEXAS. 767 Same— When statute of limitations begins to run. Where there was a baihuent for hire to be terminated when demand made for thing bailed, held that in the absence of de- mand the statute began to run upon the death ol" the bailoi-. Wlngate v. Whigate, 11 Tex. 430; Hunter et al. v. Ilahhard, 26 Tex. 537. B. Ordinary care. The habihty of a wareLiouseman for the protection of goods intrusted to him extentls only to the exercise of ordinary care. T. & I*. Eg. Co.v. ScJmeider <& Davis, 1 App. Cas. sec. 118; Same v. Morse, 1 App. Cas. sec. 412 ; Satne v. Wever, 3 App. Cas. sec. 60 ; Coffield v. Harris, 2 App. Cas. sec. 315. Deli/very — To bailor after notice of real owner'' s claim — Con- version — Rule stated. " If the bailee have the temporary possession of the property, holding the same as the property of the bailor, and assert- ing no title in himself, and in good faith, in fulfillment of the terms of the bailment, as expressed by the parties or implied by law, restore the property to the bailor before he is notified that the true owner wiU look to him for it, no action Avill lie agfainst him for he has only done his duty." If delivery be made to the bailor after notice of owner's clahn, it will constitute a con- version. In case of demand by one other than bailor, the bailee has a reasonable time in which to ascertain who is the owner of the property. A failure to deliver to the true owner wiU not constitute a conversion until after the expiration of a reasonable time from time of demand. Roberts v. Yarboro, 41 Tex. 449 ; Nelson v. Iverson, 17 Ala. 216 ; Ilorseley v. Moss (& Pennington, 5 Tex, C. A. 341. Conversion — Delivery after notice of adverse interest in prop- erty stored — Public ginners. The plaintiff sued the defendant for the conversion of one half interest in certain cotton w^hich had been sent to the latter to be ginned. It appeared that the plaintiff was the owner of a certam plot of ground and that he contracted with the lessee that one half of all the cotton produced by him on such ground was to belong to the plamtiff. After the cotton reached the T68 TEXAS DECISIONS. defendants' gin the plaintiff notified them of bis claim and in- structed them not to deliver the cotton without his order. Sub- sequently the defendants delivered the cotton to the lessee con- trary to the instructions of the plaintiff. It was held that this action on the part of the defendants constituted a conversion of the plaintili"s interest in the cotton stored. It was further held that the plamtiff had something more than a landlord's lien on the crops ; he bad a specific interest in the crops themselves, it appearing that the plaintiff furnished not only the land but also tools, implements and the necessary teams. That, there- fore, the landlord and tenant act did not apply for it was not intended by the legislature, by this act, to take away the rights of parties to make any contract they might deem proper in re- gard to the ownership of crops raised or any other matter con- cerning the same. Horsely v. Moss <& PeiiQiington, 5 Tex. C. A. 341. Pledge— Agreement— Right to sell — Pledgee need not wait far most favorable market. If the agreement by which a pledge is made fails to provide that the pledgee may sell the property deposited, the pledgee has the right to sell the same after default, demand made and notice given. By agreement parties may contract and regulate in advance the remedy which the creditor must pursue in sub- jecting the property pledged to the payment of the debt ; fur- ther, such an agreement may contain a valid provision to the effect that no notice need be given after default and that sale may be either at auction or privately. In the absence of such agreement as to notice, the pledgee must give a reasonable no- tice of the time, place and manner of sale. The pledgee is not obliged to wait until the most favorable market may be se- cured for the sale of the property. Xing & Co. v. T. B. cfe Ins. Co., 58 Tex. 669. N. Loss by fire — When warehousemen liable. Where goods m storage have been destroyed by fire the warehouseman is liable for the resulting loss if he were guilty of negligence, indifference or imprudence. Vincoii v. Rather^ 31 Tex. 77. TEXAS. 769 Same — Extent of warehouseman's liability. A warehouseinun is only responsible for the loss of goods destroyed by fire in his warehouse, when it can be shown that the loss was due to the negligence or lack of ordinary care on the part of the warehouseman or his servants. Texas & /*. Ry. Co. V. Weaver^ 3 App. Cas. sec. 61 ; M. P. By. Co. v. JJouy- las (& /So7is, 2 App. Cas. sec. 30. Same — Evidence to prove negligence. Where it appeared that cotton was packed near the old tracks of a railroad, that an engine ran by at a liigh rate of speed emitting a large quantity of sparlvs, held these facts were sufficient to show neghgence on the part of the railroad. Texas c& Pac. Ry. Co. v. Weaver.^ 3 App. Cas. sec. 61. Same — Same — Burden of proof on plaintiff. The burden of showing that a fire which resulted in the loss of plaintiff's goods was caused by the negligence of the defend- ant, a warehouseman, is upon the plaintiff. 1\ dd P. By. Co. V, Capps., 2 App. Cas. sec. 36. P. Advertising '"''Fireproof'' warehouse — Storage in another warehouse not fireproof not due care — Mistake — Custom. The owner of cotton shipped the same by railroad to the de- fendant for storage and sale. Through an error the cotton was received at another warehouse. Such other warehouseman recognized the defendant as the consignee and real factor. The defendant thereupon sent to the owner his warehouse re- ceipt in which it was stated that the cotton was stored in his own warehouse, and a letter accompanied the same which ex- plained the circumstances. It appeared that the warehouse in which the cotton was actually stored was not fireproof and further that the defendant's warehouse was fireproof and that he had advertised this fact. There was also evidence to show that it was probable that the owner knew that the defendant's W'arehouse was firejiroof and that it constituted an inducement for him to have his cotton stored therein. Shortly after its storao^e the cotton and warehouse were destroyed bv fire. It was held that the owner of the cotton had the right to havQ 49 770 TEXAS decisio:ns. the same stored in any warehouse which he might select, that it was the duty of the defendant to use due diligence and every reasonable })recaution to protect and preserve the cotton and his allowing the cotton to remain stored in a warehouse which was shown to be of very inferior construction to that of his own did not constitute such diligence and precaution ; that this liabilitv could not be overcome bv evidence of a usa^e in the city that where cotton was deposited in the wrong ware- house through a mistake it was the custom of warehousemen to allow it to remain there. Vincent v. Rather, 31 Tex. 77. Warehouse receipt — Not a '"'Negotiable instrument'" — Bona fide holder — Lost receipt — Indemnity not required. "Warehouse receipts which are in form payable to bearer are not negotiable in the sense of bills and notes under the law merchant. Even though one obtain possession of a ware- house receij)t in a manner which would constitute him a hona fide holder of a negotiable instrument, nevertheless he cannot recover on such a receipt if the owner of the property repre- sented thereb}^ has not parted with the title. It is well settled that the title to personal property cannot be derived from one who has found it or stolen it from the owner ; therefore, to hold that warehouse receipts pass title to the property they re]ire- sent, in the same manner as negotiable instruments pass title to money, would be in eflPect to place the symbol upon a better footing than the thing represented. The reason for the rule therefore, which requires indemnity from the loser of a negotia- ble instrument as a condition precedent to recover does not exist in the case of a lost warehouse receipt. Clay <& Browne V. Gage <& Wood, 1 C. A. 661. Same — Transfer of, a symbolic delivery of property. The transfer and delivery of a warehouse receipt to a purchaser or pledgee is a symbolical delivery of the property represented thereby. Freidman, Keiler & Co. v. Peter et al., 18 Tex. C. A. 11. B. Bill of lading — Only indicates prima facie ownership in con- signee. A bill of lading evidences y/z-ma facie ownership of the TEXAS. 771 gooils in transit in the consignee. Evidence may be given to sliow that the consignor is still the owner of the property. Craig c& Oijden v. Marx c& Keiiipner, 05 Tex. t;4l>. Same— Effect of transfer— Not " negotiable instruments" The transfer of a bill of lading can give no liigher title to the transferee than would a delivery of the property to him. Where bills of lading are made negotiable by statute the hokler, in the absence of either title to the goods or authority to trans- fer tliem, cannot, by a transfer of the instrument, jmss the right of property m the goods, even though a bona fide purchaser for value; be can convey no greater rights than lie himself has. lands v. Lattin Bros., 19 Tex. C. A. 240 ; Freeman et at. v. Bank of Commerce, 3 App. Cas. sec. 340 ; Shaw v. Railwaij Co., 101 U. S. 557. T. Liability for injury— Heavy boxes improperly packed. The plaintiff, a drayman, called at the warehouse of the de- fendant for certain boxes belonging to his employer. Upon arriving at the warehouse, he went inside in order to ascertain which boxes he was to remove. Upon j^lacing his hand upon one of the boxes for the purpose of identifying it, it toppled over causing him severe injuries. An instruction to the jury that if they found that the boxes had been negligently piled one upon the other and that if such negligence resulted in the in- jury to the plaintiff that they wore to find for him, Avas held to be a correct instruction. Ila/lory <& Co. v. Smith, 76 Tex 262. i il UTAH LAWS. CHAPTER XLIV. UTAH. LAWS PERTAININO TO WAREHOUSEMEN. Wareliouseineii : Every warehouseiiuin or otlier person who shall safely keep or store any personal property at the request of the owner or person lawfully in possession thereof, shall in like manner have a lien upon all such property for his reasonable charges for the storage or keeping thereof, and for all reasonable and proper advances made thereon by hmi in accordance with the usage and custom of warehousemen. Revised Statutes of Utah, 1898, sec. 1403. Eiiibezzlenieut defined : Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted. Id. sec. 4374. Eiiibezzlemeut by banker, trustee, etc. : Every trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator, or collector, or per- son otherwise intrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilt v of embezzlement. Id. 4377. XoTr. It seems that there are, in Utah, no decisions affecting wareliouse- inen as such. vi-:uM(tNT. 77;: 'J CHAPTER XLV. VERMONT. LAWS PERTAINING TO WAREHOUSEMEN. Disposition of iiiiclaiiiK'd property— Unclaimed for six months, owner or consignee to be notified : If personal property stored in a depot or other building of a railroad or steamboat corporation, or with u wharfinger, pub- lic storehousekeeper or express company, without a special con- tract for keeping the same, is not claimed by the owner or consignee within six months from the time it was so deposited, the persons or corporation with whom it is stored shall notify the owner or consignee by letter where the property is. If the owner or consignee is unknown, such persons or corporation at the expiration of such time may cause the property to be opened and examined by the sheriff of the county in which it remains; and if upon such examination the name and residence of the owner or consignee is ascertained, he shall be notified as afore- said. Vermont Statutes, 1894, sec. 4859. If unknown and not claiming property, same to be sold : If such owner or consignee does not, within one month after such notice, claim such property, pay the charges thereon and take it away, or if the owner or consignee is not ascertained or his residence known, the property may be sold by the sheriff. Id. sec. 4860. Sale to be advertised three weeks : The sheriff shall sell such property at public auction, giving notice of such sale in a newspaper pubUshed in the town or county, three \veeks successively, the last of which publications shall not be less than four weeks previous to such sale. Such advertisement shall state the time and place of sale, the place where and the time when the pro[)erty was received, a descrip- 774 VERMONT LAWS. tion of the same, the marks upon the articles to be sold, the place whence sent, if known, and the name of the owner or consignee, if known. Id. sec. 4861. Duty of officer making sale : If the owner or consignee does not claim the property, and pay the legal charges thereon and for advertising the same, be- fore the day of sale, the sheiiff shall sell the same, and make a sw^orn return of the sale, with a list of the property sold and a copy of the advertisement describing such property, within twenty days after such sale, to the state treasurer. Id. sec. 4862. Proceeds — How disposed of: The sheritf shall also return to the state treasurer the papers, notes, drafts, moneys, or other valuables of similar nature, found with such property, which, with the moneys arising from the sale, after deducting the legal charges thereon, and the charges and expenses of the sale, shall beke])t by said treasurer for the benefit of the owner or consignee of such property, and shall be paid to him on producing satisfactory evidence of his right. Id. sec. 4863. To vest ill state after two years — Record : The state treasurer shall keep a record of the time when such moneys, notes, drafts, or other valuables, and the avails of such sales are received ; and if the same remain in his office un- claimed by the owner or consignee thereof for two vears, they shall become the property of the state, and shall be disposed of bv the treasurer for the benefit of the state. Id. sec. 4884. r VERMONT. 77 DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Special contract. A bailee may make a special contract with his bailor by which he will be absohitely liable for the goods ; or he may restrict his common-law liability, provided such restrictions do not attempt to exempt him from loss or damage due to his neg- ligence. Ames (& Co. v. Melevdy, 64 Vt. 554, /Sa7ne — Power of sale — Personal trust. A bailment of property with the power of sale is a personal trust to the bailee which he cannot delegate. Htmt v, Doug- lass, 22 Vt. 128. B. Ordinary care. A warehouseman is bound only to use ordinary care and diligence in the safe-keeping of goods intrusted to him. Rlu- menthal v. Brainerd et al., 38 Vt. 402 ; Gleason v. Estate of Beers, 59 Vt. 581 ; Briggs v. Taylor, 28 Vt. 180. Same — No title in bailor. If a warehouseman receive goods, and the bailor has no title thereto, and such goods are taken from the custod^^of the ware- houseman by the authority of the law, as the property of a third person, the warehouseman may show this in defense of an action brought against him by the bailor for the goods. Bur- ton and Ano. v. Wilkinson a/nd Ano., 18 Vt. 186. Same — Sheriff breaking outer door. If the goods of the debtor are secreted in the warehouse of a third person, the sheriff will be justified in breaking open the outer door for the purpose of taking them by due process of law, if admittance is refused him, after he has demanded it from the proper person ; and he may do this in the night as well as day. Id. ; Fidlam et al. v. Stearns, 30 Vt. 443. Sam,e — Action hy,for tresjMss. Plaintiffs sued in trespass for the breaking and entering of 776 VERMONT DECISIONS. their warehouse by the defendants and the taking of certain goods therefrom. Defendants pleaded they took the goods by virtue of legal process. The plaintitfs re])licd that the goods were the property of A and not of the debtor. The defendants rejoined, setting forth that A had brought an action against them for the goods, and in a trial on the merits judgment had been given for defendants. Held, on denmrrer to this rejoinder, that the matter was well pleaded, and that the defendants were entitled to judgment. Burton and Ano. v. Wilkinson and Ano., 18 Vt. 186. Conversion — Wrongftd sale. A wrongful sale of property by a bailee is a conversion there- of as to both the bailee and the purchaser. An action of trover will lie against both for such a conversion. Buckmaster v. Mower & Ford, 21 Yt. 204. L. Trover — Will lie against bailee if property put to an improper use. If the bailee apply the thing bailed to a different use from that for which it was bailed, his interest is determined, and the bailor may sustain trover for the injury. Swift v. Moseley, 10 Vt. 208 ; Buchnaster v. Mower <& Ford, 21 Vt. 204; Al- vord V. Davenport, 43 Vt. 30. Same — Wrongful detention. An action of trover will lie against a bailee for the wrong- ful detention of property intrusted to him after failure to de- liver on demand. Dohorty v. Madyett, 58 Vt. 323. R. Bill of lading — Exemptions — Conditions prrinted on the hack thereof. In a case where there were exemptions and conditions printed on the back of a bill of lading, which were not referred to on the face thereof, and there was no evidence in the case to show that notice of these conditions had been brouglit to the atten- tion of the shipper of the goods, it was held that as the face of the instrument imported an absolute and express undertaking VEM.MONT. 777 that evidence modifying this undertaking sliould come from the party apparently so bound. Nemll et al. v. Smith da Clark 49 Vt. 255. Same— Effect of transfer as collateral. The indorsement and transfer of a bill of lading, as collateral security for the payment of a draft, vests in the transferee title to the property represented by the bill of lading. TUde7i V. Minor etal., 45 Vt. 196; Davis <& Aubin v. Bradley (& Co., 28 Vt. 118. 778 VIRGINIA LAWS. CHAPTER XLYI. VIRGINIA. LAWS PERTAINING TO WAREHOUSEMEN. Transfer of receipts issued l>y licensed wareliouses : Warehouse or other storage receipts, with the word " nego- tiable " plainly written or stamped on the face thereof, issued by any person keepmg a licensed warehouse or other licensed place of storage in this slate, for goods, wares, merchandise, cotton, grain, flour, tobacco, lumber, iron, or other commodity stored with such person, shall be transferable by indorsement and de- livery, whether the property specified in such i-eceipt be owned by the person issuing the same, or another ; and any person to whom such receipt is so indorsed and delivered sliall be deemed the owner of the property specified therein so far as may be necessary to give effect to any sale to such person, or to any pledge or lien for his benefit, created or secured by such trans- fer, whether the receipt and indorsement be admitted to record or not, subject however to storage and otlier charges of the person keeping such place of storage. Code of Virginia, 1887, sec. 1791. When receipts not to be issned — Duplicate receipts : No person shall issue any such Avarehouse or other storage receipt, unless the property therein mentioned shall be actually in store, or on his premises and imder his control at the timeof issuing such receipt, nor shall a second or duplicate receipt for any property be issued while a former receipt for such property, or any part thereof, is outstanding and uncancelled, without having written or stamped in plain letters, across the face of such second or duplicate receipt, the word " duphcate." Id. sec. 1792. Prohibition against sale, etc., of property for which re- ceipt was issued, without its surrender : No person shall sell, incumber, transfer, deliver, remove, or VIRGINIA. 779 permit to be removed beyond his immediate control, except to enforce bis lion lor storage and otli(!r charges, any pi'opertv for whicli a receipt has been given as aforesaid, without the sur- render and cancellation of such receipt or ther- sons in whose favor such lien exists uncalled for, it shall be 51 802 WASHINGTON LAWS. lawful for such person or persons to cause such property to be sold as is herein provided. Id. sec. 5963. When certain property may be sold for charges : If said pi'operty consists of live stock, the maintenance of which at the place where kept is wasteful and expensive in proportion to the value of the animals, or other of the perish- able pi-operty liable, if kept, to destruction, waste, or great de- ])reciation, the person or persons having such lien may sell the same upon giving ten days' notice. Id. sec. 5964. When other property may be sold : All other property upon which such charges may be unpaid, due, and a lien, after the same shall have remained in store un- called for for a period of thirty days after such chai'ges shall have become due, may be sold by the person or persons having a lien for the payment of such charges upon giving ten days' notice : Provided., That where the property can be conveniently divided into separate lots or parcels, no more lots or parcels shall be sold than shall be sufficient to pay the charges due on the day of sale, and the expenses of sale. Id. sec. 5965. Application of proceeds of sale : The moneys arising from the sales made under the provisions of this chapter shall first be applied to the payment of the costs and expenses of the sale, and then to the payment of the lawful charges of the person or persons having a lien thereon for advances, freight, transportation, wharfage, or storage, for whose benefit the sale shall have been made ; the surplus, if any, shall be i-etained, subject to the future lawful charge of the pei'son or persons for whose benefit the sale was made, upon the property of the same owner still remaining in store uncalled for, if any there be, and to the demand of the owner of the property who shall have jKiid such charges or otherwise satis- fied such lien, and all moneys remaining uncalled for, for the period of three months, shall be paid to the county treasurer, and shall remain in his hands a special fund for the benefit of the lawful claimant thereof. Id. sec. 5966. Special contract not affected : Nothing in this chapter contained shall be so construed as WASHINGTON. 803 to alter or affect the terms of any special contract in writinf, made by the parties, as to the advances, affreightnuint, whai^- age, or storage; but when any such special contract shall have been made, its terms shall govern, irrespective of this chapter. Id. sec. 5967. Notices, how given : All notices required under this chapter shall be given as is or may be by law provided in cases of sales of personal prop- erty upon execution. Id. sec. 5968. Forgery of warehouse receipts : If any warehouseman, miller-, storage, forwarding or com- mission merchant, or his or their servants, agents, or clerks, shall willfully and fraudulently make or alter any receipt or other written evidence of the delivery into the warehouse, mill, store, or other building belonging to him, them, or either of them, or his or their employers, of any grain, flour, pork, beef, or wool, or other goods, wares, or merchandise which shall not have been so received or delivered into such mill, warehouse, store or other building previous to the making and altering such receipt or other written evidence thereof, he shall, upon conviction thereof, be imprisoned in the penitentiary not more than two years, nor less than six months, or imprisoned in the county jail for any length of time not exceeding one year, and fined in any sum not exceeding one thousand dollars. Id. sec. 7130. Unclaimed and lost property— Consignee to keep record : Whenever any ])ersonal property shall be consigned to or deposited with any forwarding merchant, wharf, warehouse, or tavern keeper, or the keeper of any depot for the recei)tion and storage of trunks, baggage, merchandise, or other personal property, such consignee or bailee shall immediately cause to be entered in a book kept by him, a deserij)tion of such prop- erty, with the date of reception thereof. Id. sec. 3055. Notice to owner, Iiow given : If such property shall not have been left with consignee or bailee, for the purpose of being forwarded or disjiosed of ac- cording to directions received of such consignee or bailee, at or 804 WASHINGTON LA^YS. before the time of the reception thereof, and if the name and residence of the owner of such property be known to the per- son having such property in his possession, he shall immedi- ately notify the owner by letter directed to him and deposited in a post-office, of the reception of such property. Id. sec. 3056, Sale {liter oue year if not claimed : If any such })ruperty shall not be claimed and taken away within one j-^ear after the time it shall have been so received, the person having possession thereof may at any time there- after proceed to sell the same, in the manner provided in this chapter. Id. sec. 3057. Notice of intent to sell — Notice of sale : Before any such property shall be sold, if the name and resi- dence of the owner thereof be known, at least sixty days' no- tice of such sale shall be given him, either personally or b}'' mail, or by leaving a notice at his residence, or place of doing business ; but if the name and residence of the owner be not known, the person having the possession of such pi-operty shall cause a notice to be published, containing a description of the pro])ei'ty, for the space of six weeks successively, in a news- pa]3er, if there be one published in the same county ; if there be no newspaper published in the same county, then said notice shall be published in a newspaper nearest thereto in the state ; the last publication of such notice shall be at least eighteen days previous to the time of sale. Id. sec. 3058. Procedure — Affidavit to be filed with justice of tlie peace : If the owner or person entitled .to such property shall not take the same away, and pay the charges thereon, after sixty days' notice shall have been given, it shall be the duty of the person having possession thereof, his agent or attorney, to make and deliver to a justice of the peace of the same county an affidavit, setting forth a description of the property remain- ing unclaimed, the time of its reception, the jiublication of the notice, and whether the owner of such property be known or unknown. Id. sec. 3059. Justice to make inventory and order sale : Upon the delivery to hiiu of such affidavit, the justice shaU W.\sll|\(;r(>x. m') cause such property to be opened and examined in his presence, and a true inventory thereof to be made, and shall annex to such inventory and order, under his liand. that the property therein described be sold by any constable of the precinct where the same shall be, at pubhc auction. Jd. sec. 3000. Notice of sale, how given : It shall be the duty of such constable receiving such inven- tory and order to give ten days' notice of the sale, by posting up written notices thereof in three or more places in such pre- cinct, and to sell such property at public auction to the liighest bidder, in the same manner as provided by law for sales under execution from justice's courts. Id. sec, 3061. Return of order and inventory : Upon completing the sale, the constable making the same shall indorse upon the order aforesaid a return of his proceed- ings thereon, and return the same to the justice, together with the inventory and the proceeds of sale, after deducting his fees. Id. sec. 3062. Disposition of proceeds of sale : From the proceeds of such sale, the justice shall pay all legal charges that have been incurred in relation to such property, or a ratable proportion of each charge, if the proceeds of said sale shall not be sufficient to pay all the charges; and the bal- ance, if any there be, he shall immediately pay over to the treasurer of the county in which the same shall be sold, and deliver a statement therewith, containing a description of the property sold, the gross amount of such sale, and the amount of costs, charges, and expenses paid to each person. Id. sec. 3063. Duties of treasurer : The county treasurer shall make an entry of the amount re- ceived by him, and the time when received, and shall file in his office such statement, so dehvered to him by the justice. Id. sec. 3064. Claim by owner for proceeds of sale : If the owner of the property sold, or his legal representatives, shall, at any time within five years after such money shall have 806 WASHINGTON LAWS. been deposited in the county treasury, furnish satisfactory evi- dence to the treasurer of the ownership of such property, he or they shall be entitled to receive from such treasurer the amount so deposited with him. Id. sec. 3065. After live years to be ajjplied to school fuud : If the amount so (.le})ositc'd wilh any county treasurer shall not be claimed by the owner thereof, or his legal representa- tives, within the said five years, the same shall belong to the county, and shall be applied to the common school fund of said county. Id. sec. 3066. Sale of perishable property : Property of a pei'ishable kind, and subject to decay by keep- ing, consigned or left in manner before mentioned, if not taken away within thirty days after it shall have been left, may be sold by giving ten days' notice thereof, the sale to be conducted, and the proceeds of the same to be applied in the manner be- fore provided in this title : Provided^ that any property in a state of decay, or that is manifestly liable immediately to be- come decayed, may be summarily sold by order of a justice of the peace, after inspection thereof, as provided in section 3060. Id. sec. 3067. Note. For the laws governing the inspection of grain, the appointment of grain inspectors, etc., see sees, 2868 to 2909 of Balliuger's Codes and Statutes of Washington, 1897. WASHINGTON. 807 DECISIONS AFFECTING WAREHOUSEMEN. B. Wharfinger's liability. Where a wharfinger for hire allowed goods of his customer to be placed upon his wharf which was in a rotted condition, resulting in the loss of the goods. It was Jield wharfiiigfr was liable for value of the goods at time of their loss. Oregon Imp. Co. V. Seattle Gas Co.^ 4 Wash. 634. M. Pledge — Stolen property — -Instruction to jury. Where goods are stolen and pledged Avith a pawnbroker the defendant it not entitled to instructions on the theory that he had a right to rely on tlie apparent title of the pledgor. RumpfY. Barto et al., 10 Wash. 382. Warehouse receij^t. A mere receipt signed by a mill owner as "warehouseman" does not make it warehouseman's receipt. Steauhli v. Blaine Nat. BanJi\ 11 Wash. 426. Same — Negotiah ility. Warehouse receipts made negotiable by statute only pass by indorsement the interest which the holder has in and to the property represented by the receipt. Yarwood v. Happy., 18 Wash. 246. Same — Negotiated hy pledgee — Effect. Where one holding a warehouse receipt as security for a loan, and in violation of the terms of the agreement, transfers it to a third party as security, held that original pledgor could re- cover the receipt from the third party. Id. 808 WEST VIRGINIA LAW^. CHAPTER XLVIII. WEST VIRGINIA. LAWS PEETAINING TO WAREHOUSEMEN. Burning certain buildings — Penalty : If a person maliciously burn an>' meeting house, court house, town house, college, academy, or other building erected or used for public purposes (except a jail or prison), or any banking house, warehouse^ storehouse, manufactory or mill, of another person, not usually occupied by persons lodging therein at night, or if he maliciously set fire to anything, by the burning whereof any building mentioned in this section shall be burnt, he shall be confined in the penitentiary, when such building with the property therein is of the value of one thousand dol- lars, not less than three nor more than ten years ; and when it is of less value, not less than three nor more than five years. Laws, West Yirginia, 1899, chapter 3. WEST VIIMilNIA. 80i> DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — Bailee cannot dispute bailor's title — Exceptions to the rule. The general doctrine is well established that, in ordinary cases, the bailee cannot dispute his bailor's title any nioi-e than a tenant can his landlord's. But the general rule has numer- ous exceptions, in which lie will be permitted to do so ; as in a case where it can be shown that the latter fraudulently obtained possession of the goods, oi* that they have been recovered fi-oni the former by suit or paramount title; or he has been notified by the true owner, before the suit was instituted by the bailor, not to deliver to his bailor, and like instances. Ke/ly v. Patch- ell, 5 W. Va. 585. Same — Jurisdiction of equity. In a sense a bailment is a trust, but not such as is cognizable in equity, it is a subject of common-law jurisdiction. Where, therefore, a bill in equity was filed against one who had offered to gratuitously retain the property in his possession for the complainant, it appearing that the complainant charged the defendant with wrongful conversion of the property, the decree of the court dismissing the bill was affirmed on appeal. T/iomj)- son et al. v. Whitaker Iron Co. et al., 41 W. Va. 574. Same — Statute of limitations — Demand must he made within reasonable time. While it is true that demand must be made before action brought for an alleged conversion, it is also true that the time within which such demand must be made cannot be indofinitoly prolonged, A creditor cannot keep his debtor in del)t indefi- nitely. What is a reasonable time is not settled by any pre- cise rule ; it would seem reason ble to require that demand should be made within the time limited by the statute for bringing the action. The same reason exists for hastening the demand as for hastening the commencement of action. Id. 810 WEST VIItGlNlA I)1-:CISI0NS. Same — Whether an action he ex contractu or ex delicto still one of contract. In general it is optional with the plaintiff to declare against a bailee in form ex contractu for the breach of the express con- tract entered into by him or on the promise implied from the act of bailment ; or, in tort for the breach of the duty, which is by law iinpHedly cast on the bailee ; but it seems, that in whatever form he may frame his declaration, the action is still one of contract. Coal Co. v. Bichter, 31 W. Va. 858 ; Maloney V. Barr, 27 W. Va. 381. M. Pledge — A bailment — Definition. A ]3ledge may be defined to be a bailment of goods by a debtor to his creditor, to be kept by him until the debt is dis- charged. First National Bank v. Harkness et al., 42 W. Ya. 156. R. Bills of lading — Effect of transfer — As collateral. The transfer of a bill of lading is equivalent to the transfer of the property itself. Where a bill is transferred or delivered as collateral security, the rights of the pledgee thereunder are the same as those of an actual purchaser of the goods repre- sented, for value. Neill & Ellingham v. Rogers Bros. Produce Co., 41 W. Ya. 37 ; Dow^ v. Bank, 91 U. S. 618. W l8CUNaLN. 811 CHAPTER XLIX. WISCONSIN. LAWS PERTAINING TO WAREHOUSEMEN. Duty of consignee or bailee : Whenever any personal property shall be consigned to or de- posited with any common carrier, forwarding merchant, wharf- inger, or warehouseman, innkeeper or the keeper of any dejiot for the storage of baggage, merchandise or other personal ))rop- erty, such consignee or- bailee shall immediatel\'^ cause to be en- tered in a proper book kept by him a description of such property with the date of the reception thereof ; and if the same shall not have been so consigned or deposited for the purpose of being forwarded or disposed of according to direc- tions received by such consignee or bailee at or before his re- ception thereof he shall immediately notify the owner by mail thereof, if his name and residence be known or can with reasonable diligence be ascertained. Revised Statutes, Wis- consin, 1898, sec. 1637. Sale of property: If any such ])roperty shall not be claimed and taken away within one year after it shall have been so received, the same may be sold as hereinafter directed ; but when such jiroperty shall be perishable or subject to decay by keeping, it may be solil if not claimed and taken within thirty days ; and if any such property be in a state of decay or manifestly liable to immedi- ate decay it may be summarily sold without notice, by order of a justice of the peace, after inspection, as provided in section 1641. Id. sec. 1638. Notice of sale: Before an}' such property, except as aforesaid, shall be sold ten days' notice of such sale, if the property be perishai)le or subject to decay by keeping, and sixty days' notice in other 812 WISCONSIN LAWS. cases, shall be given the owner thereof by the person in posses- sion of such property, either personally or by mail or by leav- ing a written notice at his residence or place of business ; but if the name and residence of such owner be not known and can- not with reasonable diligence be ascertained such notice shall be given by publication thereof for the periods aforesaid I'e- spectively, dating from the first publication, at least once in each week, in a newspaper published in tlie county, if there be one ; and if there be none, then in a newspaper published in an adjoining county. Id. sec. 1639. Proceedings if property not claimed : If the owner or person entitled to such property shall not take the same away and pay the charges thereon after notice as aforesaid shall have been given the person having possession thereof, his agent or attorney shall make and deliver to a jus- tice of the peace of the same town an affidavit setting forth a description of the property remaining unclaimed, the time of its reception, the publication of the notice and whether the owner of such property be known or unknown. Id. sec. 1640. Inventory : Upon the delivery to him of such affidavit the justice shall cause such property to be opened and examined in his presence and a true inventory thereof to be made, and shall annex to such inventory an order under his hand that the property therein described be sold by any constable of the city or to\\Ti where the same shall be at public auction. Id. sec. 1641. Notice and sale : The constable receiving such inventory and order shall give ten days' notice of the sale by posting up written notices there- of in three or more public places in such city or town and sell such property at ])ublic auction to the highest bidder in the same manner as provided by law for sales under execution from justices' courts. Id. sec. 1642. Return of sale : Upon completing the sale the constable making the same shall indorse upon the order aforesaid a return of his j)roceed- ings thereon and return the same to the justice, together with WISCONSIN. 813 the inventory and the proceeds of the sale, after dcducLing liis fees. Id. sec. 1643. Justice's duty : From the proceeds of such sale the justice shall pay all legal charges that have been incurred in relation to such pnjpertv, or a ratable proportion of each charge if the })i-uceeds of such sale shall not be suflScient to pay all the charges ; and the balance, if any there be, he shall immediately [)ay over to the treasurer of his county and deliver a statement therewith con- taining a description of the property sold, the gross amount of such sale and the amount of costs, charges and expenses paid to each person. The county treasurer shall lilesuch statement, give a receipt for the money, and })roperly enter in his books the amount thereof and the date. Id. sec. 1644. Disposition of proceeds : If tlie owner of the property sold, or his legal representatives shall, at any time within five years after such money shall have been deposited in the county treasury, furnish satisfactory evi- dence to the treasurer of the ownership of such property, he or they shall be entitled to receive from such treasurer the amount so deposited with him. If not claimed within said time by the owner or his legal representatives the same shall belong to the county. Id. sec. 1645. Officers' fees : The fees allowed to any justice of the peace under this chap- ter shall be one dollar for each da,y's service, and to any con- stable the same fees as are allowed by law for sales upon exe- cution, and ten cents per folio for making an inventory of prop- erty. Id. sec. 1646. Warehouse receipts : Every warehouse receipt on which the words " not negotia- ble" shall not be written or stamped upon the face thereof shall be deemed negotiable as aforesaid. The instruments men- tioned is section 4425 shall be negotiable as therein provided. Id. sec. 1676. Instruments signed by agents : Every note, certificate or warehouse receipt signed by the »14 WISCONSIN LAWS. agent or any person, under a general or special authority, shall bind such person and have the same effect and be negotiable as provided in the two preceding sections. Id. sec. 1677. Actions : The payees and indorsees of every such note, certificate or warehouse receipt payable to them or their order and the hold- ers of every such note or receipt payable to bearer may main- tain actions for the sums of monev or things therein mentioned m like manner, as in cases of inland bills of exchange and not otherwise. Id. sec. 1678. Couuection with tracks : The owner of any elevator, warehouse, mill, lumber, coal or wood vard within the yard limits of any station or terminus of any railroad may, at his own expense, construct a railroad track from such elevator, warehouse, mill or yard to such rail- road and connect with the same by a switch at a point within the yard limits of such station or terminus, and the railroad corporation shall allow such connection. Such side track and switch shall at all times be under the control and management of and be kept in repair and operated for the benefit of such owner or his assigns by such corporation ; but the actual cost of so maintaining and operating the same shall be paid monthly by the owner thereof ; and in case of his neglect to so pay the same upon demand the obligation of this section upon any such corporation shall cease until such payment be made in full. And no such railroad track constructed before the eleventh day of May, 1891, shall be removed without first giving the ])arties owning such elevator, warehouse, mill or yard six months' notice of such removal. Id. sec. 18(i2. Above section construed— Phiintiff must show ownership or who constructed spur track before being entitled to bene- fits of tiie above : The plaintiff, a warehouseman, brought an action against the defennildings : Any person who shall willfully and maliciously burn, either in the night-time or day-time, any building whatsoever of an- other, or of which he is lessee or tenant, other than is mentioned in the last preceding section, or any bridge, lock, dam or flume. WISCONSIN. 817 shall be punished by imprisonment in the state prison not more than eight years nor less than four years. Id. sec. 44U2. Burning property to injure insurer : Any ])erson who shall wilUully burn any Iniilding or any goods, wares, merchandise or othei' chattels, wliicli shall be at the time insured against loss or damage by tire, with intent to injure the insurer, whether sucii person he the owner of the property or not, shall be punished by ini[)risonment in the state prison not more than ten years nor less than three years. Id. sec. 4405. Breaking office, car, etc., for felonious purpose : Any person who shall break and enter, in the night-time, any office, shop or warehouse or any other building, not adjoin- ing or occupied with any dwellmg-house, or any ship, steam- boat, vessel, railroad freight car or passenger car, with intent to commit the crime of murder, rape, robbery, larceny or other felony, shall be i)unished by imprisonment in the state prison not more than live nor less than one year. Id. sec. 44u9. Entry at night, breaking at day : Any person who shall enter m the night-time, without break- ing, or shall break and enter in the day-time any dwelling-house or any out-house, thereto adjoining and occupied therewith, or any office, shop or warehouse or other building, or anv ship, steamboat or vessel, railroad freight car or passenger car, \\\W\ the intent to commit the crime of murder, rape, robbery, lar- ceny or other felony shall be punished by imprisonment in the state prison not more than three years nor less than one year, or by imprisonment in the county jail not more than one year nor less than six months. Id. sec. 4410. Unlawful entry : Any unlawful entry of a dwelling-house or other building with intent to commit a felony shall be deemed a lireaking and entering of such dwelling-house or other build iuL!' within the meaning of the last four sections. Id. sec. 4411. Larceny and receiving stolen goods from buildings, cars, etc. : Any person who shall break and enter, at any time, any 818 WISCONSIN LAWS. meeting-house, church, court-house, town-house, college, acad- emy or other building erected and e^nployed for public use and steal therein the money or property of another, or shall commit the crime of larency in any dwelling-house, office, sho]i, bank, warehouse or other building, ship, steamboat, vessel, railroad freight car or passenger car by stealing therein the money or property of another, if the money or property so stolen shall exceed the value of twenty dollars, shall be punished by im- prisonment in the state prison not more than three years nor less than one year, or by imprisonment in the county jail not more than one year nor less than six months or by fine not exceeding two hundred dollars ; and if the money or property so stolen shall not exceed the value of twenty dollars he shall be punished by imprisonment in the county jail not more than six months or by a fine not exceeding one hundred dollars. Id. sec. 4412. Enibezzlemeut by officers, carriers, agents, attorneys, etc. : Any officer, agent, clerk, employee or servant of this state or of any county, to^vn, school district, city, village or other municipal corporation therein, or of any banking, railroad, in- surance or telegi-aph company or other corporation, or of any joint-stock company or association, or in the service or employ- ment thereof, who, by virtue of such office or employment, shall have the possession or custody of, or shall be intrusted with, the safe-keeping, disbursement, investment or payment of any money or fund, or with the safe-keeping, sale, carrying or delivering of any goods, wares, merchandise, ])roduce, lumber or any other property or thing which is the subject of larcenv, belonging to or under the care or control of the state, or such municipal or other corporation, or in which the state or such corporation, has an interest, or any factoi*, carrier, warehouse- man, storage, forwarding or commission merchant, or any bailee, executor, administrator, guardian, or any trustee, agent, clerk, attorney, messenger, employee or servant of any private per- son, corporation, copartnership or association, except appren- tices and other persons under the age of sixteen years, who, by virtue of his business or employment, shall have the care, cus- tody or possession of or shall be intrusted with the safe-keeping, disbursement, investment or payment of au}^ mone}', or shall have the care, custody or possession of or shall be intrusted WISCONSIN. 819 with the safe-keeping, carrying, sale or delivery of any goods, wares, merchandise, produce, lumber or any other property or thing which is the subject of larceny, belonging to such other person, corporation, copartnership or association, shall em- bezzle or fraudulently convert to his own use or t(j the use of any other person except the owner thereof, or shall take, cairy away or secrete, with intent to convert to his own use or to the use of any other person except the owner thereof any such money, fund, goods, wares, merchandise, ])roduce, kunber or or any other property or thing shall be punished, if the money or property so embezzled shall exceed the value of one hundred dollars, by imprisonment in the state prison not more than live years nor less than one year, and if the money or property so embezzled shall not exceed the value of one hundred dol- lars and shall exceed the value of twenty dollars, by im- prisonment in the state prison or county jail not more than one year nor less than six months, or by fine not exceeding two hundred dollars, and if the money or property so embezzled shall not exceed the value of twenty dollars, by imprisonment in the county jail not more than six months or by a tine not exceeding one hundred dollars. Any person who is a member of any copartnership or one of two or more beneficial owners of any property specified in this section or of any prop- erty or thing which is the subject of larceny, who shall embezzle or fraudulently convert to his own use or to the use of any other person, except the other members of such copart- nership or the other beneficial owners of such pro]5erty or thins:, or w^ho shall take, carry awav, or secrete with intent to convert to his own use or to the use of any other person except as aforesaid, any such property or thing. shall l)e punished as pro- vided in this section the same as if he iiad not been oi' was not a member of such copartnership or one of such beneficial owners. The oflFense of embezzlement may be prosecuted and ])unished in any county in which the person charged had possession of the property or thing alleged to have been embezzled. Id. sec. 4418. False receipts by warehouseman, railroad officer, etc. : Any warehouseman, wharfinger, master of a vessel or boat, oi- any officer, agent or clerk of any railroad, express or trans- portation company who shall issue any receipt, bill of lading. 820 WISCONSIN LAWS. voucher or other document to any person purporting to be the owner thereof or as security for any loan or indebtedness for any goods, wares, merchandise, hiniber, timber, grain, flour, or other ])roperty, produce or commodity unless at the time of is- suing the same such property shall have been actually received or shipped according to the terms and meaning of such receipt, bill of lading, voucher or other document so issued, or who shall sell (^r incumber, ship, transfer or in any manner remove beyond his immediate control any such property so received, contrary to the terms and meaning of such receipt, bill of lading, voucher or other document, without the consent of the holder thereof, or who shall deliver any such property or any part thereof, ex- cept to the person holding such receipt, bill of lading, voucher or other document and upon the surrender and cancellation thereof, or in case of any partial delivery of such property, up- on the indorsement thereon of such partial delivery, unless re- quired by legal process, or shall issue any second or duplicate receipt ov bill of lading for any such property while any former receipt or bill of lading for an}^ such ])roperty, or any part thereof shall be outstanding and uncancelled, without writing across the face thereof the word " duplicate," shall be punished by imprisonment in the state prison not more than three years nor less than one year, or by imprisonment in the county jail not more than one 3'ear or by fine not exceeding one thousand dollars. Id. sec. 4424. Receipts, bills of lading, etc., negotiability of holder of warehouse receipts protected — Negotiability of receipts de- fined : Any such receipt, bill of lading, voucher oi- other document as is mentioned in the preceding section shall be transferable by delivery thereof without indorsement or assignment, and any person to whom the same is so transferred shall be deemed and taken to be the owner of the property therein specified so far as to give validity to any pledge, lien or transfer made or created by such person unless such receipt, bill of lading, voucher or other document shall have the words " not negotia- ble" plainly written or stamped on the face thereof. And any warehouse receipt issued l)y any person or persons keeping, running and managing a ])ublic warehouse, on goods, wares or merchandise owned bv him or them, and which he or thev WISCONSIN. 821 have, at the time of issuing such warehouse receipt, actually stored in the said warehouse, shall have the same force and ef- fect to protect the owner and holder thereof on any loan or advance of money he may have made on the same, as a ware- house receipt by the keeper and manager of a public ware- house to any other person who brings goods, wares or mer- chandise to be stored in such public warehouse. hJ. sec. 44-25 as amended by ch. 146, Laws, 1899. An act to regulate the issuing of warehouse certificates in certain cases. Who may issue certificates and wiiat they must contain : All persons, firms or coiporations owning or dealing in grains, seeds or other farm products, or engaged '\y\ the busi- ness of slaughtering cattle, sheep or hogs, and dealing in the various products therefrom, or l)uying or selling butter, eggs, cheese, dressed poultry or other similar commodities, who own or control tlie structures wherein any such business is con- ducted, or such commodities stored, may issue elevator or ware- house certificates or receipts for any such commodities actually on hand and in store, the property of such person, firm or cor- poration, and may, by the issue of such certificates, sell, assign, incumber or pledge such commodities. Such certificate or re- ceipt shall contain the date of its issue, the name and address of the person, firm or corporation issuing the same, and the name and address of the party to whom issued, the location of the elevator, warehouse or structure wherein the commodity therein desrcibed is stored, the quantity of each commodity mentioned therein, the brands or marks of identification thereon, if any, and shall be signed by the person, fii-m or cor- poration issuing the same. Laws of 1899, ch. 251, see. \. Declaration of business, etc., to be filed with register of deeds : Before any such person, firm or corporation, except as here- inafter provided, shall be authorized to issue such elevator or warehouse certificates or receipts, he or it, as the case may be, shall file in the office of the register of deeds of the county wherein such elevator, warehouse or other structure is situated, a written declaration which shall contain the name and place 822 WISCONSIN LAWS. ol" residence or location of such person, firm or corporation, and sball state that lie or it designs keeping or controlling an elevator, warehouse or other structure for the storage and sale of commodities mentioned in the preceding section, and shall contain an accurate description of such elevator, warehouse or other structure, the location thereof, and the name or names of any person, other than the one making such declaration, who has an}' interest in such elevator, warehouse or structure, or in the land upon which it is situated. Such declaration shall be signed and acknowledged by the party making the same, be- fore some officer authorized to take acknowledgments of deeds, and shall be recorded in the office of the register of deeds for said county. Id. sec. 2. Certificates to contain record of recording before it conveys title : Each certilicate or receipt issued by any such person, firm or corporation, under the provisions of this act, shall have printed on the back thereof a statement that tlie party issuing the same has complied with the requirements of section 2 of this act, giving the l)ook, page and name of the county where the record of such declaration may be found. When such cer- tificate or receipt is so issued and delivered, it shall have the effect of transferring to the holder thereof the title to the com- modities therein described or enumerated, and shall thereafter be assignable and transferable by delivery, and such delivery shall transfer to any hona fide holder in due course, the title to the commodities therein described or enumerated, against all persons claiming title subsequent to the issuing and deliver}?^ of such certificate or receipt. Id. sec. 3. Certificates to be registered by issuing party : All certificates or receipts given under the provisions of this chapter shall be registered by the party issuing them in a book kept for that purpose, shownng the date thereof, the number of each, the name of the party to whom issued, the quantities and kinds of commodities enumerated therein, and the brands or other distinguishing marks thereon, if any, which book shall be open to the inspection of any person holding any of the cer- tificates or receipts that ma}^ be outstanding and in force, or his agent or attorney, and when any commodity enumerated in WISCONSIN. 828 any such certificate is delivered to the holder thereof or ii in any other manner becomes inoperative, the fact and date of such dehvery or other termination of such liability shall be entered in such register, in connection with the original entry of the issuance thereof. Id. sec. 4. Property to be in warehouse before certificate is issued : No person, linn or cor[)oration shall issue any elevator or warehouse certificates or i-eceipts for any of the commodities mentioned in this chapter, unless such ])roperty is actually in the elevator or warehouse, or structure mentioned therein as the place where such commodity is stored, and it shall remain there until otherwise ordered by the lawful holder of such cer- tificate or receipt, subject only to the hen of the warehouse- man thereon and his right to enforce the same. No second certificate or receipt shall be issued for the same pro])erty, or any part thereof, while any other or prior certificate is out- standmg and in force, nor shall any such commodities be sold, incumbered, transferred or removed from such elevator, ware- house or other structure wherein the same was stored at the time such certificate or receipt was issued by the warehouse- man or any agent or employee thereof, without the written consent of the holder thereof indorsed thereon. Id. sec. 5. Damages may be recovered : Any one injured by the violation of any of the provisions of this chapter, may recover his actual damages sustained on account thereof, and if willfully done, in addition thereto ex- emplai-y damages in any sum not exceeding double the actual damages. Id. sec. 6. o^ Penalty for destroying certificate : Any person who shall willfully alter or destroy any register or certificate or receipt provided for in this chapter, or issue any receipt or certificate without entering or preserving in such book the registered memorandum ; or Avho shall know- ingly issue any certificate or receipt herein provided for, when the commodity or commodities therein enumerateil are not in fact in the building or buildings it is certified they are in ; or shall, with intent to defraud, issue a second or other certificate for any such commodity, for which, or for any part of which. 824 WISCONSIN LAWS. a former valid certificate or receipt is outstanding and in force ; or shall while any valid certificate or receipt for any part of the commodities mentioned in this chapter is outstanding and in force, sell, incumber, ship, transfer or remove from the ele- vator, warehouse or building where the same is stored, any such certified property, or knowingly permit the same to be done, without the written consent of the holder of such certif- icate or receipt, or if any person knowingly receives any such property or helps to remove the same, he shall, upon convic- tion, be punished by fine not exceeding ten thousand dofiars, or by imprisonment in the state prison not exceeding five years. Id. sec. 7. Miusliiig of graius of equal grade allowed : IS'^othing in this act shall ije construed as prohibiting or pre- venting warehousemen from mingling in common bins, grains or seeds of the same grade, and issuing certificates or receipts therefor, and drawing out and shipping said grain and seeds from said bins, provided that a sufiicient quantity of such grain or seeds shall be retained and ke])t in said bins to represent and satisfy all outstanding receipts or certificates. Id. sec. 8. Nothing in this act shall be construed to affect, interfere with or impair any right of issuing and negotiating warehouse re- ceipts or certificates under any existing law, or under any reg- ulations of any chamber of commerce or board of trade within this state. Id. sec. 9. This act shall take effect and be in force, from and after its passage and publication. Approved April 26, 1899. Id. sec. 10. Note. Corporations may be orjijanized for the purpose of conducting a wareliouse business, under chapter 86, Revised Statutes of Wisconsin, 1898. WISCONSIN. 82;j DECISIONS AFFECTING WAREHOUSEMEN. A. Bailment — When property belongs lu another, bailee maij re- fuse to deliver to his bailor — Express company — Real owner may recover prior to delivery to consignee. Where pro|)erty was delivered to an express coiiipanv for carriage and delivery, and the consignor was not the triieosvner thereof, it was held, that while the general principle is true that it is the duty of such a company to deliver proper-ty personally to the consignee and that it would be liable in case of wrongful delivery, that there are, nevertheless, many exceptions to this rule and one of them is that the true owner of the property may enforce his right to it as against the con- signor or consignee of the carrier, or against the bailor or bailee, whenever he sees fit to do so, before its delivery as directed. His right is paramount to the claim of all others, no matter ^yhat may be their relations to each other, unless it is lost, or, for the time being suspended, by his own conduct of surrender or estoppel. So also a warehouseman receiving goods for the consignee who had actual possession of them, to be kept for him may, nevertheless, refuse to deliver them if they are the property of another and the latter prohibits their redelivery. Wells v. American Express Co., 55 Wis. 23. Same — Bailee cannot acquire adverse title to his bailor. Where property intrusted to a bailee was unlawfully seized and sold and the bailee purchased the same, it was held that he thereby acquired no title to the property. The rule is that one who has received property from another as his bailee or agent, must restore or account for the pi'operty to him from whom he received it. Nor can the bailee recover the amount which he paid at such sale, it not appearing that the owner of the propert}^ authorized such payment. Enos v. Cole., 53 Wis. 235 ; Nudd v. Montanye, 38 Wis. 511. Same — Executory contract oj — Possession. An executory contract of bailment does not give the bailee named in the contract the right of possession in the property ; 826 WISCONSIN DECISIONS. but such right accrues to the bailee on delivery. Croshy v. German, 4 Wis. 373. Same — Bailee cannot deny bailor's title. A bailee is at all times at liberty to show that his bailor has parted with his interest in the property subsequent to the bail- ment. But such bailee cannot at law dispute the original title of his bailor. Nudd v. Montayne, 38 Wis. 511. Same — Prima facie case — Burden of proof — Evidence. When the bailment is such that the ])roperty is in the ex- clusive possession of the bailee, away from the bailor, and is returned in a damaged condition, and it is shown that the injur}' is such as does not ordinarily occur without negligeuce, the proof of these facts constitutes Q.prima facie case against the bailee and puts him on his defense. In other words, when such a showing is made, the plaintiff has made ^ prima facie case under the rule that the burden is on the part}' asserting negligence ; and the law will then presume negligence to have been the case, and casts upon the defendant the burden of showing the loss did not occur through his negliffence, or, if he cannot affirmatively do this that, at least, he exercised a degree of care sufficient to rebut the presumption of it. On the trial of a case for the injury of a horse intrusted to another, the de- fendant was permitted, against plaintiff's objection, to testify that a certain person had told him that it was an old founder which appeared upon the horse and to drive it home. Al- though it appeared that the person who told the bailee this had had forty years' experience in the care and handling of horses, it was held that it was clearly error to allow the defendant to testify to this fact as it was an attempt to establish his defense by hearsay evidence. Hildebrand v. Carroll, 106 Wis. 324. Conversion — Disregard of orders to ship in a certain manner. In an action against a warehouseman for the conversion of a quantity of Hour, it appeared that the Hour was stored in the defendant's warehouse and that a properly authorized agent of the plaintiff instructed the defendant to ship the same hy rail to a certain point. It further appeared that the defendant disregarded this order and shipped the flour hy steamer through the lakes, and that the flour was lost while in transit. It was WISCONSIN. 827 held that the disregard by the defeiuhint of the instruction of the plaintiff to ship the Hour by rail constituted a conversion thereof for which the defendant was liable. Graves et al. v. Smith, 14 Wis. 5 ; Young v. Miles, 20 Wis. 615. B. Ordinary care — Definition. A warehouseman is bound to exercise ordinary care and dili- gence in the safe-keeping of goods intrusted with him. Such cai-e may be said to be that which men of common prudence generally bestow upon their own property similarly situated. Dimmick v. Milwaukee c& St. P. By. Co., 18 Wis. 471. Same — Not liable in the absence of negligence — Burden of proof. A warehouseman is not liable for the loss or damage of prop- erty intrusted to him, resulting from fire or other causes, in the absence of negligence or fraud on his part. The burden of proof to show such negligence is upon the phuntiff. Dim?nick V. Milwaukee ^ St. P. Ry. Co., 18 Wis. 471 ; Whitney v. Chi- cago ^ iV. Ry. Co., 27 Wis. 827 ; Lemke v. Chicago, M. ^ St. P. Ry. Co., 39 Wis. 449 ; Schmidt v. Chicago ^ N. Ry. Co., 90 Wis. 504. I. Commingling of wheat — Subsequent separation — Effect thereof — Replevin. Plaintiff stored a large quantity of wheat in a warehouse with the understanding; that it might be mingled with other wheat of similar grade. Subsecjuently the warehouseman sold all of the wheat with the exception of a quantity equal to that owned by the plaintiff. The warehouseman then sold this remaining wheat. On the above stated facts it was held that when there remained in the warehouse the quantity of wheat equal to or slightly less than that claimed by the plaintiff that this identi- cal wheat became the plaintiff's property, and that the subse- quent sale thereof, by the warehouseman, constituted a conver- sion and that the plaintiff could recover possession of the wheat in an action of replevin against the purchaser. Young V. Miles et al., 23 Wis. 643. See also same case, 20 Wis. 615. 828 WISCONSIN DECISIONS. Same — Effect of mixture with grain of better quality without bailor's consent. 1 1 appeared Irom the evidence that a warehouseman had kept the grain of a depositor in a separate bin but had previ- ously mingled the same with other grain of a superior quality thus enhancing its value. In an action to recover the grain or its value the court instructed the jury that the interest of such depositor immediately attached to the mixture and that he Avoukl be entitled to an equal number of bushels thereof. J£ado)i V. Hodges, 18 Fed. Kep. 677. M. Pledge — Requisites. To constitute a valid pledge, there must be a transfer of pos- session to the pledgee, actual or constructive. In the case of a pledge, a lien is created to the existence of which possession is absolutely necessary ; in this important respect a pledge differs from a mortgage. In the former the legal title remains in the pledgor while in the latter the title passes to the mortgagee. Seymour v. Colhurn, 43 Wis. 71 ; Geilfuss v. Corrigan, 95 Wis. 651. Warehouse receipt — Must be issued by a warehouseman. In order that a recei{)t shall be a warehouse receipt, in this state, it must be issued by one regularly engaged in the busi- ness of warehousing. The court will not take judicial notice that one is a warehouseman, but this fact must be proved by the proper evidence. Shejyarchon v. Cary, Exec, 29 Wis. 34 ; Geilfuss V. Corrigan, 95 Wis. 651. Same — Are " negotiable instruments " — Pledged by factor — Pass title to the property — " Factors Act " considered — Effect of notice to vendee or pledgee. A factor was intrusted with the possession of warehouse re- ceipts, the property represented thereby belonging to the plain- tiff, and had deposited them with the defendant bank as se- curity for the amount which he owed it by having overdrawn his account. The factor subsequently died insolvent and the defendant sold the property represented by the receipts and applied the proceeds toward the account owed it by the factor. WISCONSIN. 829 The plaintiff brought this action against the bank on the ground that it was a fraud on the part ol" the factor t(j pledge tlie re- ceipts and that no title bad passed thereby. It wiis/idd, under the Factors Act of this state, that the factor had authority to pledge receipts in his possession and that warehouse receii)ts were negotiable under the laws of this state as promissory notes or bills of exchange ; giving to the holder, under all ordiiuiry circumstances, imperative presumption of title in power of dis- posal ; that a principal voluntarily suffering them to be in the hands of a factor, holds out the factor as owner, with unlim- ited authority to dispose of them ; and that such fnctor may bind his principal, contrary to his instructions, by i)ledge of securi- ties negotiable at common law. A factor's sale or pledge of a negotiable warehouse receipt, in violation of his instructions, will not bind his principal, if the vendee 'or pledgee has no- tice that the factor holds the title for his principal, and sells or pledges in violation of the principal's instructions. Pt'ice v. The Wisconsin Marine d; Fire Ins. Co.y 43 AVis. 2G7. See Vic- tor Seining Machine Co. v. Ileller, 44 Wis. 265. Dictain Hale V. Bock Co., 29 Wis. 482, criticised. Same — Effect of transfer. The execution and delivery, by a warehouseman, of his re- cei])t, carries the vendor's title in constructive possession of the property to the vendee, who, or the party claiming under him, as the holder of the receipt, is thenceforth, in cases free from fraud or bad faith, regarded as the owner of the property for all purposes. The w^arehouseman becomes the mere bailee for the benefit of the vendee, or other holder of the receipt, and subject to his order and control. The doctrine of Shepardson V. Greene, 21 Wis. 546, criticised. Shejmrdso^i v. Can/, Exec, 29 Wis. 34 ; Price v. Wisconsin, Marine and Fire Ins. Co., 43 Wis. 267. Same — Same — Effect of description in the receipt — When goods in barrels or sealed packages — Warehouseman not estopped to deny contents. It appeared that a warehouseman had given a receijit for certain barrels of "mess pork" by the terms of which receipt they were to be delivered to bearer ; it further appeared that S-iO WISCONSIN DECISIONS. the receipt was afterwards purchased by one entirely in good faith and presented to the warehouseman. It was then shown that the barrels stored did not contain '' mess pork" but salt, thereupon the assignee of the leceipt refused to receive the same. It was held, on the above stated facts, that the warehouseman was not estopped in cases where goods were enclosed in barrels, or other sealed packages, to deny that their contents were as stated in storage receipts, and further that the tender by the warehouseman of the identical barrels in store exonerated him from further liability. Hale v. The Milwaukee Dock Co., 23 Wis. 276. See same case 29 Wis. 482. Same — Extent of negotiability — Object of statute. Under the statutes of this state the transfer of a warehouse receipt " by delivery, with or without indorsement thereof," transfers no more than the property in tlie goods, — it does not transfer the contract. Warehouse receipts and bills of lading do not possess the "negotiable " character of commercial paper. The word " negotiable " as used in the act of 1860, ch. 340 and the amendment sec. 1, ch. 73, Laws of 1863, is evidently not intended to be interpreted in the same manner as when ap- plicable to a bill of exchange. It is intended only to mean the passing of the property in the goods themselves. Hale et al. V. Tlie 2filwaukee Dock Co., 29 Wis. 482. But see Price v. Wisconsin Marine cfc Fire Ins. Co., 43 Wis. 267, in which cer- tain dicta in the above case is criticised. Same — As collateral security — Not affected by statute relating to chattel mortgages. Where a warehouse receipt was pledged as collateral security, it was held that the relations of the parties were not af- fected by the statute regulating the making and filing of mortgages of personal property. Shejxtrdson v. Cary, Exec, 29 Wis. 34; Rice v. Cutler, 17 Vis. 351. Same — Same — Must be valid " warehouse receipts. *' In order to validily pledge property represented by a ware- house receipt it must be a receipt issued b}' a warehouseman and in accordance with the terms of the statute. Where, there- fore, one attempted to pledge property represented by " storage WISCONSIN. 831 warrants," it was held that the pledgee took no title to the property represented thereby as against creditors of the pledgoi*. Geilfuss V. Corrigan^ 95 Wis. 651. Same — Pledgee may maintain trover. Where one holds a warehouse receipt as collateral security, such pledgee may maintain trover against the warehouseman for the recovery of the wheat or its value. Eadun v. llodyes^ 18 Fed. Rep. 677. Same — As collateral. A bank which received such storage warrants in. good faith from a mining company as collateral, but which never iiad any other possession of the iron than that given by the transfer of the warrants, and never notified the furnace company of its claim thereto, but permitted the latter to dispose of the iron on hand and substitute other iron in its place — acquired no lien on the iron as pledgee as against third persons, even conceding that the title thereto passed to the mining company. Id. False warehouse receipt — Replevin cannot be maintained by holder of — Evidence. Where a warehouseman gave a receipt for wheat which he did not receive, and afterwards the quantity which he actually had was divided amongst the respective depositors, an action of replevin brought by the assignee of the fictitious receipt could not be maintained when, under it, one of those portions was seized. Evidence offered to show that the wheat in ques- tion was assigned to the defendant was objected to by the plaintiff in the replevin ; but such objection was properly over- ruled. The plaintitT had shown no title in himself. So also, evidence was admissible to show that the receiver of the ficti- tious certificate had never deposited any wheat in the warehouse. The defendants in this case were the assignees of the original warehouseman, and were not responsible, unless it could be shown that wheat was deposited, which had come into their possession. Jackson v. Hale et al., 14 How. 525. ^S2 WVU3UNG LAWS. CHAPTEPw L. WYOMING. LAWS PERTAINING TO WAREHOUSEMEN. Warehouseiueu uot to issue receipts until ^oods received : No warehouseman, wharlinger or other person shall issue any receipt or other voucher for any goods, wares, merchandise, grain or other produce or commodit}-, 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 or wharfinger, or other person, and shall be in store and under his control at the time of issuing such receipt. Revised Statutes, Wyoming, 1899, sec. 5152. Not to issue receipts as security unless invested with owner- ship : jNo warehouseman, wharfinger or other person shall issue any receipt or other voucher upon any goods, wares, merchan- dise, grain or other produce or commodity, to any person or persons, as security for any money loaned, or other indebted- ness, unless such goods, wares, merchandise, grain or other produce or coramodit}', shall be at the time of issuing such re- ceipt, the property of such warehouseman or wharlinger, or other person, and shall be in store and under his control at the time of issuing such receipt or other voucher as aforesaid. Id. sec. 5153. Not to issue second receipt for same goods : No wai'ehouseman, wharfinger or other person, shall issue any second receipt for any goods, wai-es, 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 uncancelled. Id. sec. 5154. Not to sell or transfer goods without consent of owner : JS'o warehouseman, wharfinger or other pei'son shall sell or , WYOMING. 833 incumber, ship, transfer or in any manner remove beyond his immediate control any goods, wares, mercii;indi.s<', gi-ain or other produce or commodity, for whicli a receipt siiall have been given as aforesaid, witlioiit tlie wiitten assent of the per- son or persons hokling such receipt. Id. sec. 5155. Penalty for violating fonr preceding sections : Any warehouseman, \vhar linger or other person wlio shall violate any of the foregoing provisions, relating to wareiiouse- men, siiall be deemed a clieat and be subject to indictment and upon conviction siiall be fined in any sum not more than one thousand dollars and iin])i'isoMed in the penitentiary not more than live years, and all antl every person aggrieved may Lave and maintain an action on the case against the person or per- sons violating any of the foregoing provisions relating to ware- housemen, to recover all damages, immediate or consequential, which he or they may have sustained by reason of sucli viola- tion as aforesaid, before any court of competent jurisdiction, whether such person shall have been convicted as a cheat un- der the foregoing sections or not. Id. sec. 5156. Common carriers and warehousemen — Liens : Every common carrier of goods or passengers who shall, at the request of the owner of any personal goods, carry, convey, or transport the same from one place to another, and any ware- houseman or other person who shall safely keep or store any personal property at the request of the owner or person law- fully in possession thereof, shall, in like manner, have a hen upon all such personal property, for his reasonable charges for the transportation, storage, or keeping thereof, and for aU reasonable and proper advances made thereon by him in ac- cordance with the usage and custom of common carriers and warehousemen. Id. sec. 284:6. Appointment of appraisers : If any such charges for which a lien is given by the preced- ing sections of this chapter be not paid within thirty days after the same becomes due and payable, the mechanic or other per- son to which such lien is given may apply to any justice of the peace of the county wherein the ])roperty on which the lien is claimed is, to appoint appraisers to appraise such property. 53 834 WYOMING LAWS. Such justice shall thereupon appoint by warrant, under his hand, three disinterested householders of the count\', to ap- praise such personal propert}^ Id. sec. 2847. Oatli aud duty of appraisers : The appraisers so appointed shall be sworn by the justice, to well and faithfully appraise and value all such personal prop- erty, and shall thereupon proceed to view and appraise the same, and shall return appraisement wherein shall be set down each article separately, to the justice, by whom the}^ were ap- pointed, within ten days after their appointment. Id. sec. 2848. Notice of sale — Sale aud application of proceeds : After such appraisement is made, the person to whom such lien is given by the foregoing sections of the cha])ter, shall give ten days prior notice of the time, place, and tei-ms of sale to- gether with a description of the pioperty to be sold. Such no- tice shall be personally served upon the owner, or the person from whose possession such property was received, if such owner or person reside within the county ; if not, by publication in some newspaper published in the county Avherein the per- son attempting to enforce his lien resides (or if theie be no such newspaper, then by posting in thi-ee ])ublic places within such county for at least four weeks), and shall transmit hy mail to the owner, at his usual place of abode, if known, a copy of such notice, the notice being personally served, or the serv- ice being complete after four weeks, the party claiming a lien may proceed to sell aU such personal property, or as much thereof as may be necessary to pay his claim, at ]iublic auction, for cash in hand, at any public place within such county, named in such notice, between the hours of ten A. JVI. and four P. ]\I., of the day appointed ; and from the proceeds may pay the rea- sonable costs of such appraisement, notice, and sale, and his reasonable charges for which he hath his lien. The residue of the property unsold, he shall surrender unto the owner. Id. sec. 2849. Requisites of sale: Ko such sale shall be made for less than two thirds of the appraised value of the article sold, nor except upon due no- tice, as required by the preceding section. Every such sale WYOMING. 835 made in violation of the jirovisions of this section shall be ab- solutely void. Id. sec. 2850. Lien holders may purchase ; At any sucli sale, the person to whom such lien is given, may become the purchaser. Id. sec. 2851. Adjournment — Kill of sale : In any case where the property to be sold cannot conven- iently be sold in one day, the sale may be continued from day to day, by public outcry, at the place of sale. Upon the com- pletion of such sales, the person to whom the lien is fiven here- by, shall cause a bill of sale thereof to be filed with the justice of the peace before whom the appraisement was had, in which shall be set down the sum for Avliich each separate article of property was sold, and the name of the purchaser. The justice shall record such bill of sale in his docket, and preserve the original thereof together with the appraisement. Id. sec. 2852. Rij^ht of action preserved : Nothing herein contained shall be so construed as to take away the right of action of the i)arty to whom such lien is given for his charges, or for any residue thereof at the sale of such property. Id. sec. 2853. Clerk and crier of sale : At any such sale, the person to whom such lien is given as herein provided, may appoint a clerk and crier. Id. sec. 2854. Fees of appraisers : Appraisers appointed under the provisions of this chapter shall receive three dollars per day ; justices of the peace shall receive for each warrant of appraisement twenty cents per one hundred words, and the like fees for recording each bill of sale. Clerks and criers at sales made under the provisions hereof shall receive each three dollars per day. Id. sec. 2855. Chattel mortgages subject to liens : Xo mortgage on personal ])roperty shall be valid as against the rights and interests of any person entitled to a lien under the provisions of this chapter. Id. sec. 2856. 836 wyomi>;g laws. Timber liens to be paid pro rata : All lien claims for labor performed in cutting or manufac- turing railroad cross ties, wood, poles, or lumber, or for doing any labor in reference thereto, shall be concurrent liens upon the same, and shall be paid,joro rata, out of the proceeds ris- ing from the sale thereof, if the same shall be sold. Id. sec. 2857. Ideiitifleatioii of property uot required in timber liens : Persons entitled to a lien for labor performed in cutting or manufacturing any railroad cross ties, wood, poles, or lumber, shall not be required to identify any particular tie or ties, or sticks, poles or boards, but may maintain their lien against any or all of that class of property owned and held by the person or persons from whom their pa}' for such labor is due, and may seize and sell the same as provided in this chapter. Id. sec. 2858. When lien not to affect bona fide purchasers : No lien upon pei'sonal property shall be valid as against an innocent and bona fide purchaser unless the person having the right of such lien shall notify said purchaser before he makes payment for such property, of the existence of such lien, in which case the purchaser shall be responsible to the person having such lien claim against said property, for the full amount of his claim, and all legitimate costs and expenses, and pay- ment made on such lien claim shall apply on payment for such personal property. Id, sec. 2859. WYOMING. 837 DECISIONS AFFECTING WAREHOUSEMEN. H. Lien— Depositor must be in lawful possession of 2)roperty. By virtue of sec. 2846, Revised Statutes of 1891», any ware- houseman OP other person is entitled to a lien on jiroperty who shall safely keej) the same at the request of the owner or of the person lawfully in ])ossession thereof. Where, therefore, it was stipulated between the parties to a suit that the plaintiff was in lawful possession of the property at the time when deposited with the defendant, it was held that the defendant's lien for charges attached under this statute. Kimhall Co. v. Payne et ux., 9 AVyo. 441. Same— If entitled to storage charges lien attaches— Need not be a "warehouseman.'" In a case where one stored goods for another which was re- mantled for a new trial, it was Aeld that if the defendant could show that he w^as entitled to any charges whatever for his care of the goods that his lien for charges would attach thereto un- der sec. 1471 of the Revised Statutes, 1887, being sec. 2486 of the Revised Statutes of 1899. It is not necessary that the person earning the storage charges be a warehouseman in the strict technical sense ; a company engaged in a general mercantile business may come within its provisions if it has earned storage charges. Knight et al. v. Bechwith Commercial Co., 6 Av/o. 500 ; Kimhall Co. v. Payne et ux., 9 Wyo. 441. INDEX. References to laws are printed in ronian. Those to decisions are in italics. ABANDONED. See also UNCLAIMED PROPERTY. pack property when may be sold, Kan. 227 ACCEPTANCE, of bill of lading, effect as to exemptions, Ga. 121 of bill of lading implies assent to exemptions therein, Colo. 72 ACCIDENT, effect of exemption in bill of lading, against unavoidable accident, N. Mex. 550 there must be no negligence, Kij. 278 when bailee not liable for loss occasioned by, Ind. 199 negligence must be shown, Ind. 204 ACCOUNTS, weighmasters to keep, of all weighing, ^linn. 400 ' to be kept by warehousemen, Me. 309 statute of limitations runs from date of last item, Ga. 104 ACTION. See also SUIT. by assignee of unindorsed receipt, Miss. 452 pledgee may maintain in his own name, S. Dak. 749 may be maintained by payees and indorsers of warehouse rceeipts etc., same a»s by those of bills of exchange, Wis. 814 against sealers of weights and measures, how instituted, .. ..Minn. 423 on warehouseman's bond, how brought, Mass. 332 ACT OF GOD, warehousemen not liable for losses residtijig from, Ohio. 650 never includes fire of incendiary origin, Cal. 57 damage by elements included therein, Cal. 47 when loss by flood amounts to, Mo. 494 ACT OF WAR, when bailee not liable for loss by, Ten n . 75G not a trespass, ^'^- 1 1 - trover will not lie for goods taken by, 4 /a. 13 instructions to jury, 6'a. 113, Tcnn. 75) "ACTUAL NOTICE." See also NOTICE. what is equivalent to ^I^I- 330 839 840 INDEX. References to laws are printed in roman. Those to decisions are in italics. ADVANCES, PAGE issuance of receipt u-itliout knuidcdcfe of, warehouseman not liable, N. Y. 595 when warehouseman pays he is subrogated to rights of one rrho made them, N. Y. 568 made by warehousemen, usury, N. Y. 574 by warehousemen for freight, entitled to recm^er in full, N .Y . 574 inferior to warehouseman's lien, Ga. 110 goods may be sold for, within ninety days, Colo. 65 factors may sell to recover, Ga. 108 if made against stored grain notice of must appear on warehouse receipt, Minn. 380 ADVERSE CLAIMS, bailee taking with notice of Tex. 766 duty of bailee in case of, Ala. 9 warehousemen not liable unless apprised of the same, Cal. 47 depositary must give prompt notice of to owner, Cal. 34 must be asserted by bailee to constitute conversion, Ky. 275 when delivery to bailor constitutes conversion, Tex. 766 ADVERSE HOLDING, there must be, before statute of limitations begins to run, la. 221 ADVERSE INTEREST, what constitutes actual notice of, on a bill of lading, Md. 330 ADVERTISEMENTS. See also PUBLICATION. containing false statements as to construction of warehouse, ..N^.Y. 587 that warehouse is fireproof, effect, Tex. 769 of sale of unclaimed tobacco, Va. 791 of sale of unclaimed propert}' by carriers, S. C. 723 AFFIDAVIT, to be filed in case of sale of unclaimed property la., 215, Minn., 376, Neb., 5C6, Wash., 804, Wis. 812 to be filed in case of sale for storage charges, Mass. 337 to be filed when warehouse receipt is used as collateral, La. 287 AGENCY, negligence of carrier not imputable to owner on ground of, Miss. 451 AGENTS, may sign warehouse receipts, bills of lading and other vouchers, Wis. 813 when personally liable for storage charges, Ga. 105 no presumption of ownership from possession by avowed agents, . La. 298 how far considered owner of goods in their care, Me. 308 pledge by, riL^hts of true owner, Me. 308 personalh/ liable if they assist in act of conversion, Minn. 434 fraudulent appropriation of merchandise intrusted with, penalty. Neb. 531 INDEX. 841 References to laws are printed in rowun. Tliosr In drn'siom are in italics. AGENTS — Continued. p\(je when warehousemen estopped by false reen'pls of .S'. Dak. 749 delivery by bailee to agent of bailor, defense s.C. 726 when deemed true owners of property in tlieir hands, Ohio, 628 AGISTERS, have lien for cliarines, Qre f,7g manner of enforcing liens of, ( jpc. 079 ALTERATION, of warehouse receipt, penalty, On-., (Isl , Wis. ,S23 AMENDMENT, of petition for warehouse site on line of railroad S. I). 742 ANNUAL REPORTS. See also REPORTS. liability of directors where there is a failure to file, A'. V. 599 ANTECEDENT DEBT. See also DEBT. depositing property by an agent to secure an, effect, Ohio, G23 effect of person taking property from factor or agent to secure, Me. 308 pledge for, made by factor, owner protected, N. Y. 558 delivery of goods in settlement of, when will not defeat a pledge, . . Pa. 709 APPEAL. S3e also COMMITTEE OF APPEALS. from grain inspectors to arbitration committee, Kan., 238, Okla. G70 to board of appeals where grain inspected, Minn. 42.5 to Board of Arbitration, when it lies, Mo. 474 from chief grain inspector to committee of appeals. 111., 147, Xcl). 529 APPLES, negligence in allowing same to decay, question for jury, Minn. 437 APPLICATION, to build warehouse near railway tracks, how made, Minn. 410 APPOINTMENT, of tobacco samplers, Va. 780 and qualification of deputy inspectors of tobacco, Mo. 485 of chief grain inspector by governor, ( )k!a. 050 of tobacco inspectors by probate covu-t, ( 'hio, 030 APPRAISERS, appointment of, when property to be sold under a lim, . . . .Wyo. 833 pay of, where site for warehouse condemned, S. Dak. 710 APPROACHES, to irarehouse, warehousemen not held to high degree nf care in regard to, III. 102 APPROPRIATION to carry out provisions of warehouse act, Minn. 400 ARBITRATION COMMITTEE, appointment of, M'> , •"•'•• ' >'^l;i- <''"0 cost of appeal to, how shown, Md. 325 842 II^DEX. References to laws are printed in roinan. Those to decisions are in italics. ARBITRATION COMMITTEE— Cojiiiuued. page payment of awards made by, Md. 324 rules governing, to be made by boards of commissioners, .... Okla. 671 appeal from grain inspectors to, Okla. 670 rules governing, Mo. 475 selection of, Md. 324 when appeals lie to, Mo. 474 ARSON, burning a warehouse in night-time, penalty, Ore. 680 ASSETS, of a warehouseman may he reached by holder of ineffectual receipt, Ky. 284 ASSIGNEE, for benefit of creditors not bona fide holder of warehoufie receipt, .Pa. 703 of warehouse receipt liable for storage charge.<<, III. 166 not estopped to deny sale by assignor, Ky. 284 suit by, of receipt, takes assignor's rights, III. 177 ASSIGNMENT, of non-negotiable warehouse receipts, when effective, S.C. 718 of title to be recorded by warehouseman, D. of C. 86 ASSUMPSIT, demand not necessary before action brought 7?. /. 713 when warehouseman may maintain, Ala. 11 bailor may sue in, where goods sold, D. of C. 88 in action for conversion, ///. 162 "AT OWNER'S RISK AS TO FIRE," construed, la. 220 ATTACHMENT, of bailed property, effect, N. II. 542 valid where receipt for goods not issued by public warehouseman, Mass. 348 warehouseman may be garnisheed, Pa. 697 dissolution of, on bailed property, Pa. 691 possession of bill of lading before delivery, ivhen attachment fails, Tenn. 759 of property after delivery of bill of lading, ineffectual, S.C. 729 sheriff may break outer door, 17. 775 of goods in hands of bailees regulated, Pa. 691 when levied against stored goods, owner to be notified, Mich. 359 of property lohile bailed, owner cannot maintain trover, Tenn. 754 grain in mass not subject to, in action against warehouseman, . . .III. 171 possession of officer, by leaving person in charge, Cal. 56 a warehouseman's liens on stored property not subject to attachment, III. 167 delivery to officer under, is not conversion, Mass. 340 will lie against person in whose name receipt issued, Me. 309 INDEX. 848 References to laws are printed in roman. Those to decisions arc in italics. ATT ACmiE'ST— Continued. page penalty for disposiiij^ of receipt without disclosiiif!;, Mc 309 penalty for disposing of receipt after, Mass. 335 in case of bailor, may sue in replevin, Mc. 313 ATTORNEY GENERAL, to be attorney for railroad commissioners, S. Dak. 73S to be e.t officio attorney for chief inspector of p;rain, Kan. 2.3S to be ex officio attorney for the railroad and warehouse commis- sion, Minn. 309 duty of, where warehouse act violated .Mo. 177 and state's attorney to prosecute suits a,u;ainst warehousemen, . .111. 15,5 to prosecute suits for violation of warehouse act, .\el). 528 ATTORNMENT, by warehouseman not necessary to complete symbolic delivery, .... Mo. 497 AUCTION. See also SALE. when warehouseman may sell stored grain at, Minn. 390 compensation allowed for selling tobacco at Ky. 268 of tobacco to be free and open, Kv. 270 combination to interfere with bidding unlawful Kv. 270 AUDITOR. See also COUrlTY AUDITOR. AUDITOR OF STATE, detailed report of grain inspection to be filed with, monthly, . . Kan. 234 AWARD, of arbitration committee, payment of, Md. 324 BAGGAGE, sale of when unclaimed, when and how made, S. C. 723 delivery of unclaimed, to warehousemen, Miim. 378 BAILEE. See also DEPOSITARY; TITLE; INVOLUNTARY B.VI- LEE; WAREHOUSEMEN. cannot acquire a title adverse to his bailor, TT'i'.s. S25 wrongful conversion by, declared larceny, Ore. G80 not liable where property taken by legal process Pa. 692 embezzlement by, larceny, Lul. Terr. 210 when guilty of embezzlement, . -. Idaho, 1 24 property held by, not subject to execution in an action agaiiist, .... Xcb. 537 reputation of, when not in issue in case of theft, !'«. 795 may maintain detinue, ]'a. 795 when stored property liable for debts of — rule stated, S. C. 726 ivhen he may maintain trover against the owner, S. C. 728 may maintain replevin, Mo. 494 when burden of proof on, ^a. 101 mortgagee in possession of personal property, when deemed a bailee, Ore. 680 844 INDEX. References to laws are printed in roman. Those to decisions are in italics. BAILEE— Continued. page has no right to pledge bailed property, Kan. 253 may maintain action for loss or damage, la. 219 duty of, upon receipt of property consigned to him, Wis. 811 rights of, Ga. 101 liability of, may be affected by usage, Tenn. 753 has burden of proof where he alleges title in another than bailor, . . Ore. 682 there must be an adverse claim or dominion by, before conversion, .Ky. 275 extent to which they may limit their liability, Tex. 766 duty where property seized under legal process, Miss. 451 can give no lien, Me. 313 may sue in own name, Me. 313 must show diligence after proof of loss, Ga. 101 muy recover for loss of goods, Conn. 78 duty, where there are adverse claims, Ala. 9 BAILMENT. See also DEPOSIT. defined by statute, Ga. 101 essence of contract, Ga. 103 universal rule of, Kan. 250 what constitutes a contract of, Ind. 199 kinds and liabilities, Del. 85 where bailee has power to sell he cannot delegate it, Vt. 775 ivith power of sale is a personal trust, T'^ 775 when stored property liable for bailee's debt, S. C. 726 executory contract of, does not give right of posses.'iion, TT'is. 825 bailee's liability may be changed by contract, extent of, Vt. 775 identical goods must be returned, D. of C. 88 and sale distinguished, Conn. 78 care which a bailee for hire mm^t exercise, N. Mex. 550 grain commingled; transaction remains a bailment, S. Dak. 736 with option to sell, effect, D. of C. 88 burden of proof when goods are lost, Neb. 540, Pa. 696 delivery to true owner always good defense for bailee, Neb. 536 when bailor had no title, delivery to true owner good defense, Vt. 775 bailee may refuse to deliver to bailor when not real owner, Wis. 825 burden of proof, shifting of weight of evidence, Wis. 826 when statute of limitations begins to run, la. 221, S. C. 72G, Tex. 767, W. Va 809 bailee must follow instructions of his bailor, Fla. 95 action against bailee one in contract, TT^. Va. 810 equity has not jurisdiction in ca.'ic of conversion, TT'. Va. 809 ivhen removal of goods under bailor's orders is conversion, Tex. 766 owner may sue bailee althougJi not a party thereto, Tex. 766 legal jrresumption from bailee's failure to deliver on demand,. . .Nev. 540 no implication of sale from, Pa. 696 what constitutes a prima facie ca,se, Wift. 826 requisite of a prima facie case, Cal. 47 building where goods stored must be reasonably safe, R. I. 712 INDEX. 845 References to laws are printed in rotnan. Those to decisions arc in Ualica. BAILM ENT— Con/ mued. page owner of goods may maintain replevin, Mc. IJlIi bailee taking with notice of claim, effect, Tex. 760 special deposit in bank, G'a. 103 if bailee contract to keep property in a certain manner he must do so, Neh. 53G attachment against bailed property, .V. //. 512 sale by bailee conveys no title to purchaser, A'. //. o 12 absolute contract of, construed, Cnl. 17 when bailee cannot call on third party to interplead, .V.J. 548 lohen not countermandable, Md. 327 bailee may sue in his own name, Mc. 313 BAILP^E CANNOT DENY BAILOR'S TITLE. may show that bailor has parted with his property, Wis. 826 exception to rule, 11' Va. SOO B.\ILMENT AND SALE. See also SALE. principle determining when the transaction is one or the other,. . . .III. 160 effect of special agreement, ///. 160 intention of parties to receipt, construed, Mich. 371 interpretation of ambiguous warehouse receipt, Va. 794 effect of "bought of" in receipt, /a. 220 instruction to jury, Ill- 160 question as to lohich a transaction amounts to is one for the jury, Ohio. 648 where grain commingled, transaction remains a bailment, la. 219, III. 159, 169, Ind. 200, Ky. 272, Minn. 433, A'. D. 624, Ohio, 647, Ore. 682 statute declaring transaction to remain a bailment after fjrain com- mingled, Minn. 380, N. D. 616 continues a bailment ivhile goods stored, when, la. 220 contract of .storage held a bailment, la. 220 holding option to purchase, a sale, la. 219 facts constituting a bailment, Mich. 371 where contract of sale is executory, bailment continues until delivery, ■N. Y. 578 wheat left to be ground, a bailment 1 o. 794 where grain commingled transaction becomes a sale, III. 168, Minn. i^-I, Ohio, 646 facts constituting a sale, HI- 159, Minn. 432 what constitutes a sale, ' ''' ' option to pay for in money or other property, sale Mo. 491 holding in cars to await better jwice, sale, Ind. 199 agreement to deliver flour for wheat deposited, a sale, Ind. 199 right to reject cotton, sale, ' '" ' option to buy does not make it a sale, Minn. 432 BAILOR, personally liable for charges if property fail to sell for sufficient to pay same N. C. 606 846 INDEX. References to Uiws are printed in romaii. Those to decisions are in italics. BANKS. See also NATIONAL BANKS. page conducting a warehouse, ivhen, ///. I63 not to make loans to one borrower in excess of 25% of capital . . Mo. 487 BILLHEADS, notice that warehouse is licensed must appear thereon, Va. 791 BILLS OF LADING. See also WAREHOUSE RECEIPTS; STOR- AGE RECEIPTS. IN GEXERAL. defined, X. D. G20, Wash. 797 statute defining, construed, Wash. 797 definition of, La. 307, Me. 313, Mass. 349 is not a contract, q^.^ g§g both a contract and a receipt, ]\f(, 497 not to be issued unless goods have been actually shipped, ....N.J. 544 warehouse act made applicable to, Mo. 459 consignor is ultimately liable for freight, Mass. 349 effect of stipulations against loss by fire, La. 307 functions of, La. 307 what constitutes issuance of, Md. 316 upon assignment of by consignee right of stoppage in transitu termi- nates, Me. 314 not to be issued until goods actually delivered, Md. 316 ivhat actual notice of adverse interest, Md. 330 to be surrendered and cancelled when goods delivered, . . . .S. Dak. 748 to be cancelled when goods delivered, penalty for faihire to do so, N. D. 623 a pledge may be made by, Ky. 277 for grain converted by warehouseman, when pledgee protected, . . Minn. 445 what it must contain, Kan. 249 amount of shortage allowable, Kan. 249 ivhen pledge by ineffectual, after delivery of goods, J a. 225 transfer without indorsement, equitable title passes, Ark. 33 exemption in "forwarders only" not valid, D. of C. 91 time of delivery not to be shown by parol, Ga. 122 notice to purchaser of, necessary to defeat, Ga. 122 stands for the property, Ga. 122 delivery without return of, iraiver Ga. 120 carrier liable if delivery made without return of, Ga. 120 no warranty of title, Fla. 94 not to be issued until goods are in carrier's control, Ark. 28 partial delivery to be indorsed thereon, Pa. 688 carrier exonerated by delivery of freight to holder of, N. D. 621 deliver}^ to holder of original, exonerates carrier, Wash. 801 may be signed by an agent, Wis. 813 rights and liabilities of carriers not affected by, when, Wash. 801 knowledge of the .'^statements in, presumed from acceptance, .... Tenn. 759 when possession of not equivalent to possession of the property itself, Tenn. 759 INDEX. 847 References to laws are printed in roman. Those to decisions are in Holies. BILLS OF LADING in general— Con/mued. page selling goods without consent of holder of, penalty S. Dak. 747 if mistake made penalites not incurred, Mont. 501 carrier not estopped to denij as to third persons thai goods were re- ceived, .\rk. :v.i statement of value is binding on shipper, Conn. M if issued in name of fictitious person, there cannot be a bona fide holder, \ 1,1 jr) carrier must give sets of, on demand, N.I). (120 obligations of carriers not altered bj', .\. I). ()20 when must be surrendered and cancelled unless marked non-nego- tial)le, X. V. 5G0 effect of statement, received "iji good order," /a. 225 "good order" construed, 3/e. 314 in "apparent good order" refers only to external conditions, \rk. 33 when statements on, as to condition of goods not receivable, Ca. 121 when statement "contents unknown" will not protect carrier, . . . .Cal. 61 when one issuing not liable when contents of packages are not as described, S. Dak. 747 "inevitable accident" in, means "act of God," Miss. 453 names on not conclusive as to ownership, Miss. 453 conclusive evidence of their contents, Md. 315 to what extent parol testimony admissible, Mo. 407 parol proof admissible so far as it is a receipt, Ind. 209, Me. 314 parol evidence not receivable, so far as it is a contract, la. 225 parol evidence admissible to vary terms of, Ore. 6S6 when terms may be explained, Conn. 81 a parol supplementary agreement may be shoicn, Md. 331 evidence admissible to show goods were never received, Md. 331 evidence receivable to show goods were never received even after nego- tiation of, A'. C. G12 indicates only prima facie ownership in consignee, Tex. 770 penalty for making false bill of lading, manifest, etc., X. D. 621 effect of indorsement of, Seb. 530 transfer of, vests legal title in transferee, Ky. 2.S5 indorsement to third person makes him consignee, Ga. 122 indorsement necessary to maintain action on, Gn. 121 may be transferred by delivery without indorsement, when, X. D. 020 transfer of property by, complies with statute of frauds, Mont. 504 BILLS OF LADING. AS COLL,\TER.\L. rights of pledgee, ^t- "'''', ^- ^ o- ^^^ fraud on part of bank director not imputable to bank, Mass. 350 holder may recover of one who converts property represented, . . Mass. 350 BILLS OF LADING. BONA FIDE HOLDER. cannot be, if issued in name of fictiiious person,^ -l^- 1^ 848 INDEX. References to laws are printed in roman. Those to decisions are in italics. BILLS OF LADING. page DUPLICATES. must be so marked, S. Dak. 747, Wash. 801 carrier liable if duplicate originals issued, Kan. 254 conditions under which may be issued, . . . '. Md. 317 when issviance of, prohibited, Ark. 28, Md. 317 when must be issued, Kan. 249 BILLS OF LADING. EXEMPTIONS IN. are not favored by the courts and are strictly construed, Tenn. 759 assent to, implied by acceptance, Colo. 72 effect of acceptance, Ga. 121 effect of, N. Mex. 550 ivhat valid, Conn. 82, Kan. 253, Md. 331 burden on carrier to show loss within, Mass. 349 carriers may reduce their liability by, Miss. 453 limitation of liability as to value, valid, Cal. 61 what contrary to law, Ga. 121 limitation of time when notice of loss must be given, void, N.C. 611 cannot protect carrier against unreasonable delay, N.C. 612 measure of damages where bill of lading attempts to /i.c damages, Tenn. 759 when a stipulation against liability for fire is valid, Tenn. 758 effect of conditions printed on back, Vt. 776 not valid against fraud, negligence and misfeasance, Colo. 73. Me. 314, Mass. 350, La. 707, Tenn. 759 BILLS OF LADING. FRAUDULENT. penalty for issuance of, Mont. 501, Neb. 532, N. Y. 559, N. D. 621, Ohio, 635, S. D. 746, Wis. 819 BILLS OF LADING. NEGOTIABILITY. declared so by statute, Ark. 28, Wis. 813 effect of transfer, Del. 85, Kan. 254, Mich. 374, Mo. 497 equitable title passes when transferred without indorsement, Ark. 27 legal title passes by as.'iignment of, Me. 314 delivery while outstanding, penaUy, S. Dak. 748 title passes by delivery as against attaching creditor of vendor, . . .S. C. 729 all the title of first holder passes to subsequent transferees, . .N. D. 620 transfer the sayne as of ivarehou.se receipt, Cal. 62 if drawn to bearer, it passes by dehvery, Wash. 800 transferee deemed the owner of property represented, Minn. 382, Ore. 677, i?a. 688, Wash. 800, Wis. 820 assignment of, transfers the property, . . . .la. 225, Mas>s. 349, Tenn. 759 all title passes, same as with bill of exchange, Md. 315, Mo. 457, Wash, 800 are not negotiable paper, Ga. 122, Ky. 285, La. 307; Mass. 350, Pa. 704, Tex. Ill INDEX. H49 References to laws are printed in roman. Those to ckcisions arc in italics. BILLS OF LADING. PAGE NON-NEGOTIABLE. to be SO marked, Mo. 458, P.a. 688, 8. Dak. 7-18 BILL OF SALE, of property against ivliich receipts had been issued, effect ^[inn. llj delivery to warehouseman passes title to goods, f'al. 48 BOARD OF APPEALS. See also APPEAL. bond to be given by members of, Minn. 127 for inspection of grain, act establishing, Minn. 425 qualifications for membership, Minn 428 oath to be taken by members of, Minn. 427 when appeal may be made to, Minn. 426 BOARD OF APPRAISERS, duties of, where land condemned for warehouse sites, S. Dak. 714 BOARD OF ARBITRATION. See also ARBITRATION COMMITTEE. when appeals may be made to, Mo. 474 BOARD OF COMMISSIONERS. See also RAILROAD AND WARE- HOUSE COMMISSION. personnel of, Okla. 668 to inspect warehouses, Okla. 671 to make rules governing the inspection of grain Okla. 668 to make rules governing arbitration connnittcc, Okla. 671 to fix compensation of inspectors of grain, Okla. 669 shall cause prosecutions to be made for A'iolations of warehouse act, Okla. 671 to direct county attorney, Okla. 673 to inspect books, records and papers of public warehousemen, Okla. 672 may compel attendance of witnesses, Okla. 672 to make yearly reports to governor, Okla. 671 reports to be made by warehousemen to, Okla. 66.3 refusal to obey subpoena is.sued by penalty, ( )k!a. 673 BOARD OF RAILROAD COMMISSIONERS. See also RAILROAD COMMISSIONERS. BOARD OF RAILROAD AND WAREHOUSE COMMISSIONERS. See RAILROAD AND WAREHOUSE COMMISSION. BOARD OF TRADE. rules of, as to warehouse receipts not impaired l>y warehouse act, Wi.^. 824 its right of inspection of grain, Knn. 251 cannot invoke injunction unless private rights invaded, Kon. 251 gambling transactions on, void warehouse receipts, la. 22.3 may require statements from warehousemen, Kan. 211 to issue licenses to public warehousemen, Kan. 239 54 850 INDEX. References to laws are printed in roman. Those to decisions are in italics. BOARD OF TRANSPORTATIOX, page duty of, to enforce warehouse act, Xeb . 525 to appoint warehouse registrar, Xeb. 517 to exercise general supervision over inspection of grain, Xeb. 517 may require verified statement from warehousemen a' any time, Xeb. 525 to appoint state weighmaster, Xeb. 530 may examine warehousemen's books, Xeb. 526 to establish grades of grain, Xeb. 528 to fix fees for tlie weighing of grain, Xeb. 531 to appoint a committee of appeals, Xeb. 528 may subpoena and examine witnesses, Xeb. 526 to make rules for charges for inspection of grain Xeb. 517 to make rules governing inspection of grain, Xeb. 516 to adopt rules for weighing of grain, Xeb. 531 additional duties of, defined, Xeb. 525 BOGUS, grain inspectors, penalty, Xeb. 522 BOXD, to be gi^•en by public warehovisemen, 111. 130, Kan. 240, Mass. 332, Minn. 379, 385, Mo. 455, 461, Xeb. 511, X.C. 602, S. C. 715, S. Dak. 732, Tex. 761 terms of, Ky. 259 all given pursuant to warehouse act to file with state auditor, S. D. 738 w-arehousemen must file with clerk of district court, La. 291 of pubhc warehousemen, to be filed, X. D. 615 to be filed in county clerk's ofl^ice, Ky. 259 suits on warehouseman's bond. 111. 144, Ky. 259, Mass. 332, Xeb. 523 person injured by violation of warehouse act may sue on, Mo. 471 warehouseman liable upon, for violation of warehouse act,. .Okla. 667 public warehousemen liable on, S. C. 715 amount of warehouseman's bond to be published, Mass. 334 amount of, to be graded according to capacity of warehouse,. .Mo. 461 of public W'arehousemen, amounts of, Okla. 657 of weighmasters, Mo. 480 to be given by tobacco inspectors, Md. 320, Mo. 481, Ohio, 637 to be given by proprietor of tobacco warehouse, Ohio, 636 failure of proprietor of tobacco warehouse to give, penalt}^ . .Ohio, 643 required of samplers of tobacco, Va. 781 of grain inspectors, III. 136, Kan. 233 of chief inspector of grain, Minn. 394, Mo. 472, Okla. 667 of assistant and deputy grain inspectors, Kan. 233, INlinn. 395, Okla. 668 of inspector and weigher of grain, Ky. 263 of state weighmaster and assistants, 111. l.')7, Miini. 394, Xeb. 531 of members of committee of appeals, 111. 148, Xeb. 529 to be given by members of board of appeals, Minn. 427 INDICX. 851 Rejeremes to law.s arc printed in roman. Those to decision arc in italics. BOyiB— Continued. of railroad and warehouse commissioners HI. j-,i warehouseman entitled to, in cane of garnishment, Pa. mi that business a monopoly, no defense for sureticK, Ky. 27;j in case of lost or destroyed warehouse receipt, Pa. (joj BONDS, necessary care in the safe keeping of, yj 32? value of, at time of conversion, measure of damages, Md. 329 BONDED WAREHOUSES, sureties released if sale for duties he postponed, N. Y. 572 statute providing that stored goods are at owners risk, only protect.^ the government, N. Y 571 one accepting receipt over a year old, not bona fide holder N . Y . 571 distiller onl\- to issue receipts, Xy 271 statement on receipt that liquor is in "free warehouse" binding on warehouseman, A', y 591 effect of withdrawal when negotiable receipt outstanding, .V. Y. 571 vendor's lien, destroyed by goods being placed therein, ^fo. 492 fraudulent ivithdrawal of spirits, effect, Mass. 342 presumption as to government officials being in charge Mass. 342 appointment of government storekeeper does not lessen liabiliti/ of ivarehousemen, /^',, 277 warehouse act applies to ganger's receipt, Iiid. 196 statutory requirements as to, Ga. 90 insurance of property in, Ga. 97 receipts must he given, Ga. 97 receipts negotiable, Ga. 98 sale for storage charges, Ga. 98 disposition of unsalable property, Ga. 101 penalty for unlawful disposition of goods, Ga. 100 depositor liable for storage charges, Ga. 101 books to be kept, Ga. 98 notice of sale for storage charges, Ga. 00 BOOKS, of public warehousemen subject to inspection, Mass. 334, Mo 476, Xeb. 520, X. C. 003, Okla. 072 what they must show, bonded warehouses, Ga. OS warehousemen's best evidence as to weight of stored cotton, Ga. 112 to be kept bj* inspector of tobacco, Mn. 4M railroad and warehouse commi.'^sion may examine III. 153 what must appear on wareliou.-^eman's book of entry, S. C. 71S of sales of unclaim(>d property to be kept I)y carrier, S. C. 72 1 "BOUGHT OF,'- effect of, in a warehouse receipt, la. 220 852 INDEX. References to laws are printed in roman. Those to decisions are in italics. BRANDS AND MARKS, pack receipt must show brands and distinguishing marks, Cal. 43, lU. 144, Ind. 189, la. 211, Ky. 255, S. C. 716, Tex. 762, Wis. 821 must appear on cotton receipts, La. 305 when warehousemen not hable if tliey are false, N. Y. 560, N. D. 022 warehouseman not liable if they are false, provided due caution be used, A'. Y. 590 when one who issues bill of lading is not liable if contents are not as stated, S. Dak. 747 warehouse receipt must represent specific goods, La. 305 identical goods must be delivered on return of receipt, /?./. 713 warehouse receipts must contain, nature of, Ky. 283 the usual trade-marks on goods are not distinguishing marks,. .Ky. 280 failure of state, effect, ///. 1 75 no penalty for failure to place on irarehouse receipt, ///. 145 failure to place on warehouse receipt does not render it void, ///. 145 penalty for changing, Ala. 5 manner of branding tobacco, Va. 782 penalty for altering those of tobacco inspectors, Ohio, 639 penalty for the false branding of tobacco, Va. 783, 789 "western tobacco" to be so branded, Va. 783 penalty for meddling with, on petroleum oil casks, R. I. 710 penalty for putting kerosene not inspected in branded casl^s, R. I. 710 BREACH OF TRUST, conversion by bailee, D. of C. 88 BRIBERY, of those in grain inspection service, felony, penalty for, Kan. 237 BROKERS, no presumption of ownership from possession by, La. 298 delivery wrongful if made to, when, Ga. 107 BULK. See GRAIN IN BULK. BURDEN OF PROOF, what plaintiff must show in action against ivarehouse?nan, . . . .Ma.ss. 345 upon plaintiff to show warehouseman'. 'i negligence, Ark. 30, Cal. 57, Ky. 278, La. 303, Mass. 346, A^ Y. 580, Pa. 699, 700, Tex. 769, TT'?.s. 826 071 the plaintiff throughout, ivhere negligence charged, N.Y . 583 on plaintiff in action for loss by fire, Tenn. 755 in cold storage contracts, Ind. 204 when on bailee, Gu. 1 04 after proof of loss bailee must show diligence, Ga. 101 when prima facie ca.se made, defendant has burden of showing ab- sence of negligence, Wis. 826 on bailee to prove that goods were lost without his fault, Neb. 540 INDKX. 853 Rejerences to laws are printed in romnn. Those to dccifiions arc in italics. BURDEN OF PROOF— Continued. paoe on warehouseman where he attempts to excuse non-dclirerj/ hij alleging loss by fire, .\ . D. 026 on bailor, what bailee must sliow wIkii (joods have tieen lost, I'n. 090 on bailee after failure to deliver on demand is shown, X. Y . FylO, I'a. 701 rule CIS to the shifting thereof, .Uo. 1!( 1 shifting of, in ease of bailment, Cal. 47 if delivery made to one without the receipt, burden on warehouseman to show true onmer, !/«.!), .Miss. 452 if defendant warehouseman allege manner of loss, burden on him to .'-how this Mass. 340 where there is a breach of replevin bond, ///. 171 on carrier where bill of lading states goods received in "good order," .Me. 314 on carrier to show loss within exemption in bill of lading, Mass. 341) BURGLARY, from warehouse, penalty, Midi. DGT, Oliio, (ill to enter a warehouse, Intl. 197 BURNL\G, penalty for burning warehouse,. . . .Mich. 366, W. Va. SOS, Wi.s. 816 of warehouse, I'la. 93 of warehouse in nicht-tinie, arson, penalty, < )re. 680 BUSHEL, weights of one bushel of various conuuodities fixed by law,. .Minn. 424 CANCELLATION, warehouse receipts to be cancelled on deli\ erj- of grain, Kan. 242, Minn. 387, Neb. 513, Okla. 662, S. C. 718, S. D. 737, Tenn. 751, Wis. 810 of bills of lading and warehouse receii)ts when goods delivereil, S. Dak. 748 of warehouse receipts, manner of, 111. 1 16, Ky. 260 of bills of lading, when to be made, N. V. 560 warehouse receipt void when cancelled, Ind. 1S6 of warehousemen's licenses, when, Xcb. 525 CARDS, to be affixed by shipper to cars containing grain, Miiui. 400 CARE. See also ORDINARY CARE; EXTRAORDINARY CARE. not bound to a high degree of, in the approaches to a icarehouse,. .III. 102 when proportioned according to value of stored property, Md. 327 CARE AND DILIGENCE, degrees of, defined by statute, Ga. 101 CARRIERS. See also EXPRESS COMPANIES; EXPP.F.SSMEN ; BILLS OF LADING, duties and liabilities of, K^"- 231 854 INDEX. References to laws are printed in roman. Those to decisions are in italics. CARRIERS— Continued. page have lien for charges, ]\Iinn. 3S0, Ore. 678, Wyo. 833 manner of enforcing lien, Ore. 679 exonerated by delivery of freight to holder of Inll of lading, N. D. 621, Wash. 801 when may sell unclaimed property, S. C. 723 law requiring them to deliver unclaimed property to warehousemen, unconstitutional , Minn. 446 liability ceases after storage of unclaimed freight, Colo. 63 may store goods if consignee fail or refuse to accept, Cal. 39 must give sets of bills of lading on demand, N. D. 620 obligations of, not affected by bills of lading, N. D. 620 not entitled to icarehouseman's license, La. 298 not permitted to make combinations with warehousemen, Okla. 660, S. Dak. 739 discrimination by, prohibited, penalty, S. C. 723 authorized to issue warehouse receipts, when, Ohio, 634 liable if delivery made ivithout return of bill of lading, Ga. 120 may retain goods until charges are paid, Cal. 44, Mo. 486 requisites of sale of goods for charges, Wyo. 834 permission to build warehouse near tracks of, Minn. 416 proceedings where warehousemen fail to agree on compensation for site on carrier's right of way, Minn. 417 when they must construct side tracks, Minn. 414, S. Dak. 740 action against, to compel operation of spur track, Wis. 814 penalty for failure to construct side tracks, S. D. 741 prohibited from hj-pothecating property intrusted to them, Ohio, 630 prohibition against sale of property entrusted to them for trans- portation, N. Y. 559 when not liable for storage charges on goods stored by them, R.I. 712 penalty for unauthorized sale of property by, N. Y. 560 obliged to receive grain in bulk, Mo. 488 if they refuse to handle grain at legal rate, private persons may erect elevators, jVlinn. 383 to furnish police protection of grain, when, Minn. 404 to furnish scales to weigh grain handled, Mo. 479 liable for loss of goods destroyed by fire, Mass. 344 liable as warehouseman if goods not delivered, Cal. 39 liable as ivarehouseman on termination of transit, Cal. 53 who converts goods guilty of embezzlement, Colo. 68 CARRYING, warehousemen liable for, when, N. Y. 563 CARS, of grain to be examined by inspectors of grain, Minn. 404 to be closed and resealed after inspection, Minn. 404 tvhen placing of, pursuant to consignee's directions, constitutes a delivery of contents, la. 225 INDEX. 855 References to laivs are printed in roman. Those to decisions are in italics. CARTAGE CHARGES, page held to be embraced in "all claims and liens," Cal. 55 CASKS, the weighing and marking of, Ky. 2G7 CERTIFICATES. See also WAREHOUSE RECEII^S. to authorize transaction of wareliouse business La. 201 to be obtained by public warehousemen from county court,. .Te\. 701 for grain, when to be issued, Minn. 110 for grain, if issued in duplicate, to be so marked, Minn. 410 for grain to be consecutively numbered, Minn. 410 full record of, to be kept, lu'i. 192 who may issue, besides warehousemen, Wis. 821 form of certificate of inspection of tobacco, Mo. 4s:? of weights to be furnished by weighmasters, .Minn. 401 penalty for is.suing false, or receipts, Ind. 193 CERTIFICATES OF INSPECTION, declared to be negotiable, Mo. 485 CERTIORARI, action of railroad and warehouse commission, reviewable on, 7/^ 1G3 CHANCERY COURTS. See EQUITY. CHATTEL MORTGAGE, statutes requiring recordation must be stricthj complied with,. .N. Y. 577 recordation of, constitutes notice, Ala. 11 ivhen recordation of, not notice to warehouseman, A','/. 274 the purchase of a mortgaged chattel not in itself a conversion,. .N. D. 625 not valid as against rights of lien holders under warehouse act, Wyo. 835 when warehouseman's lien superior to, Midi. 354, N. Y. 563, Wyo. 835 ivhen warehouseman's lien for charges subordinate to, Mo. 493, N. Y. 576 statute pertaining to does not affect pledge of warehouse receipts. Wis. 830 CHARTER, if provisions in, of exclusive nature, unco7istituiional, N.C. 612 CHEATING, by warehousemen penalties for, I"d. 19/ CHIEF CLERK, appointment of, by chief inspector of tobacco, Md. 321 CHIEF INSPECTOR, appointment, salary and bond of chief inspector of tobacco,.. .Md. 320 appointment of, of grain, qualifications, Mo. 459 duties and rights of, -^'°- "*' ' reports to be made by and duties of, ^Id. 323 to make oath and give bond Mo. 472 bond to be given by Minn. 394 may remove deputy inspectors of grain, Mnin. 395 B56 INDEX. References to laws are printed in roman. Those to decisions are in italics. CIRCUIT COURT, page to issue licenses to public warehousemen, Mo. 454 ma}^ revoke warehouse licenses, Ky. 259 right of, to grant licenses, ///. 129 CITY, license from, also required, Ky. 260 CLAIM AND DELIVERY, against warehouseman where he fail to deliver on demand, Minn. 381 technicaUij no such form of action, Cal. 52 an auxiliary remedy, Cal. 52 CLASSES, of warehousemen defined by statute, Ind. 184, Neb. 510 CLASS A, duty of warehousemen of this class, 111. 128, Ind. 185 manner of issuing warehouse receipts from, Xeb. 512 CLASS B, no provision for appointment of inspectors for, III. 142 duties of warehousemen of this class, 111. 128 CLASS C, duties of warehousemen of this class, . . . 111. 128 COLD STORAGE. See also TEMPERATURE. the term defined, N. Y. 585 agreement as to temperature, ///. 172, X. Y. 584 absence of express agreement as to temperature, Conn. 79 owner having knowledge of the temperature, effect, A'. Y. 584 burden of proof in case of, Ind. 204 parol evidence admissible to explain the term as used in warehouse receipt, A'^. F. 598 proper instrution to jury in case of injury to goods while so stored, Pa. 700 plaintiff has burden of proof when goods injured while so stored. Pa. 700 what degree of negligence must be shown in case of injury, Pa. 700 question of decay of apples is one for jury, Minn. 437 allowing brine pipes to drip held negligence, Minn. 438 liability for injury from odors, Ind. 204 onus on defendant after prima facie case made out, Ind. 204 what constitutes prima facie case, Ind. 204 measure of damages, ///. 173 COLORING, of grain prohibited, Minn. 420 COMBINATIONS, between carrier and warehouseman, prohibited, Kan. 249, Mo. 464, Neb. 523, Okla. 660, S. Dak. 731, 739 INDEX. 857 References to laws are printed in roman. Those to decisions are in italics. COMBINATIONS— Co7i^/n? may recover full damages for loss of goods, Mass. 347 CONSTITUTION, provisions of, pertaining to warehousemen, III. 120 CONSTITUTIONAL LA W. See also POLICE POWER. warehouse act held constitutional, Tenn. 7G0 failure to specifically mention penalties in the title of the warehouse act : law valid, Ore. 686 penal sections of warehouse act covered by title, ///. 1^2 sections in warehouse act imposing penally for fraud germane to subject thereof, -^-^o. 498 act providing for -purchase of site for warehouse at Duluth, held un- constitutional, Minn. 403 act authorizing the taking of land for warehouse site unconstitutional, N. Y. 599 erection of warehouse on public ground permitted, Mo. 409 aA:t prescribing rates of storage, constitutional, III. 127, N. y. 601, A'. D. 620 a^t requiring license and prescribing rates of storage, constitutional, in. 182, Mo. 499 charter provisions fixing liability of trnrehouse company to thai ex- pressed on receipts, unconstitutional, N.C. 612 860 IKDEX. References to laws are printed in roman. Those to decisions are in italics. CONSTITUTIONAL LAW— Continued. ' pagr copy of provision in charter of icarehouse company, which was held unconstitutional, N . C. 612 State prohibited from going into grain business, Minn. 446 requiring carriers to deliver to public warehotiscs uncalled for prop- erty, unconstitutional Minn. 446 where one oicning warehouse and all grain stored compelled to pro- cure license, held this not violative of the constit\dion, Minn. 446 act prohibiting warehousemen from being made defendants in certain cases held unconstitutional, X. Y. 552 CONSTRUCTION, icarehouses need be only of reasonably and ordinarily safe construc- tion, Mi.ss. 450 "CONTENTS UNKNOWN," when statement will not protect carrier, Cal. 61 CONTRACTS. See also STORAGE CONTRACT. between warehouseman and depositor, how ascertained, Tenn. 753 when implied, to pay for storage, S. C. 727 of insurance by uarchousemen, Pa. 699 warehouseman's liability for breach of contract to insure, Tenn. 757 to keep stored property insured, construction of, Tenn. 756 a icarehouse receipt is one of bailment, Ind. 207, Tenn. 758 special contracts may be made for storage, etc., Wash. 802 extent to which bailee's liability may be changed by ]'t. 775 effect of executory contract of sale of unscgrrgated part of goods, N. Y. 578 if conversion be waived suit may he on implied contract, Ind. 202 in writing assignable by indorsement, Ala. 6 CONTROL, warehousemen must keep goods under, Colo. 67 CON \ 'ERSION . See also BA I LEE. what constitutes, Mo. 492 actual conversion and intention essential, Mich. 368 action at law should be brought for, not one in equity, Md. 328 intermeddling with other's property docs not necessarily constitute, Cal. 49 essential to show demand before action brox ght, N . D. 624 demand necessary before action brought, Tenn. 753 when demand unnecessary before action hroigJit, A. Z). 625 when demand and refusal need not be shoum in an action for, . . . .Pa. 697 what makes a prima facie case, N . D. 624 either bailor or bailee may sue third person for, Ga. 103 if deliver]! not made to bailor or to his order it constitutes, Ky. 277 sale of all of commingled grain constitutes, Wis. 827 when it occurs where g^-ain mixed, Minn. 434 commingling does not constitute, la. 220 commingling is not, although unauthorized, la. 222 INDKX, 8G1 References to laws are i/rinled in roman. Those to decisions arc in ilalica. CON VERSIOX— Continued. taqe the commingling of grain is not, Ore. 0S2 when the mixing of grain amounts to, Ohio, G50 if commingling is contrary to instructions it amounts to, Kati. 252 unauthorized coynmingling is, la. 222 if warehousemen violate instructions as to manner of shipping jtrop- erty and loss follows, Wis. 82G no equity jurisdiction in case of, M'. \'si\. /.'. /. 713 862 INDEX. References to laws are printed in roman. Those to decisions are in italics. CONVERSION— Co7itinued. page a refusal to deliver properly to rightful owner constitutes, Neb. 536 must be shown before trover will lie, Ala. 13 unauthorized sale by pledgee is, N. Y. 580 when disregard of orders to sell, not, Ga. 106 judgment for storage charges not a bar to an action for conversion, N. Y. 569 false statement that goods had been sold for .'Storage charges, con- stitutes conversion, Cal. 50 statute of limitations runs from date of adverse holding by bailee, Ga. 104 of property by warehouseman, holder of receipt protected, Minn. 441 by warehouseman, findings of court on appeal, Minn. 445 of stored grain, bank honoring draft with bill of lading, bank pro- tected, Minn. 445 agent of warehouseman who assists in, personally liable, Minn. 434 pledge by bailee constitutes, Colo. 69 pledgee of bill of lading may recover of one who cojiverts property represented, Mass. 350 refusal to deliver unless receipt surrendered, is not, Ga. 119 of grain by bank running a ivarehouse, ///. 163 adverse interest must be asserted by bailee, Ky. 275 if tort waived, demand must be made for irrice received, Ind. 202 defined to be a tort, Cal. 49 misjoinder of parties in case of, Kan. 250 plaintiff must be oivner or entitled to ]>osscssio7}, Ind. 202 ivhat complaint should contain in an action for, Ind. 202 action in assumpsit for, ///. 162 variance between date in pleading and evidence not material,. . . .Cal. 50 not embezzlement, D. of C. 88 wrongful conversion by bailee deemed larceny,. .N. H. 541, Ore. 680 CORPORATIONS, authorized to do warehouse business may become public ware- housemen, how, N. C. 602 formation of, for construction and maintenance of warehouses, Kan. 227 when contracts of, void, Ind. 201 warehouse companies' powers, limit of property, etc., Mich. 361 laws applicable to warehouse companies, Mich. 362 CORRESPOND ENCE, when receivable to show contract of storage, Minn. 435 COSTS, when warehousomon not to \w liable for taxed costs, X. J. 547 suit to subject freiji;ht to payment of, Ohio, 632 in case of appeal to board of appeals, how borne, Minn. 427 of trial where warehouse to be erected on carrier's riglit of way, Minn. 418 INDKX. 803 References (o lawn are itrinUd in riwiaii. 'l'lio.sc to tlccisiotus are m Holies. COTTON, I'AGE warehouse for storajjc of, may l)e an iiuloseil |)arc('l of land,. .Tex. 7(il no allowance for tare to be made, S. C. 724 charges for storage of, and weighinfr, fixed by law, S. C. 725 warchoiiKcman has ttol lien on, under sec. 2682, Code, 1.S92,. . .Miss. •l.'iO piling of, near railroad (rack, mgligcnce, Xrk. '-W COTTON NOTES, transfer of, equivalent to transfer of the property, l/.». JOG COTTON-PRESS RECEIPTS, property must be in store prior to issuance, La. 2.S6 conditions under which duplicates may be issued, La. 2s7 COUNSEL FEES, when recoverable against warehouseman; duplicate receipts, Ky. 285 COURTS, will review on certiorari action of icarehmise commission, ///. \(V.i COUNTY AUDITOR, cannot authorize a manufacturing corporation to do warehouse busi- ness, I lid. 201 COUNTY ATTORNEY, duty of, to prosecute violations of warehouse act, Neb. 527, Okla. G(J7 board of covnmissioners to direct, when, Okla. 073 duty to prosecute for railroad and warehouse commission, Minn. 3'J9 COUNTY CLERK, to issue certificates to ]iublic warehousemen, Tex. 7(>1 hcense to be procured from, Ky. 251) COUNTY TREASURER, duties of, concerning proceeds of sale of imclaimed property, Minn. 377, Wash. 805 to hold balance of proceeds from sale of unclaimetl property, .\eb. 507 to receive surplus from sale for storage charges, Iowa, 217, Midi. 35S affidavit, order of sale and inventory to be delivered to, when unclaimed property sold, Mich. 364 to be sealer of weights for county, Miim. 121 COUNTRY WAREHOUSES, reports to railroad and warehouse commission Minn. 413 rules governing ratas to l)e charged in, etc., Minn. 40S limit of charges to be made in, Minn. 40H unfairness in inspection of grain Minn. 412 pooling agreements between, unlawful, Minn. 413 COURTS OF CHANCERY. See EQUITY. CREDIT, sale on, when instructed to sell for cash, not a conversion, Ga. \|<, depositary liable for all dama-res inciirrrd duriiiK any wronj^'fii! use of thing deposited, _" ^'^^l -jr, consignee may recover full damages, Matis. 317 individuals may prosecute for, aside from warehou c act, Mo. 47S, Xol). .V2S warehouse act does not affect right to bring action for Okla. (l?:} may be recovered for being deprived of the possession of proj)erty represented by warehouse receipts, ()i,if, (-,-,.1 to hold warehouseman liable for exemplary damages, willful viola- tion must be shown, /^ •> I j may be recovered of warehousemen, regardless of criminal pro.secu- tion for violation of warehouse act, Tenn. 752 payment of, when sites for warehouses condemned, S. Dak. 715 in action for conversion against bailee, he may set off amount of claim, .V. ./. 548 DANGEROUS PROPERTY, warehouseman's duty in case of storage of, XT. fiOo sale of, when and how to be made, Mass. 337 DEATH, effect of death of principal, Ga. 108 DEBRIS, cost of removal, f/a 114 DEBT. See also ANTECEDENT DEBT. DEBTS, when stored property liable for those of bailee; rule stated, S.C. 726 DECLARATION. See also PLEADINGS. must be filed with recorder of deeds, la. 21 1. Ind. 101 must be filed with register of deeds before warehouse receipts may be issued, Wis. 821 DEFICIENCY, warehouseman may sue for, after sale of goods for storage and other charges, Wy(j. 835 DEFINITIONS, apparent good order, 1 rA-. 33 at owner's risk as to fire, In. 220 bailment, Ga. 101 bill of lading. La. 307, Me. 313, Mass. 349, X. D. 020, Wash. 797 bought of, as used in warehouse receipt la. 220 cold storage, A". )'. .585 diligence, , , Fla. 95 65 866 INDEX. References to laws are printed in roman. Those to decisions are in italics. BEFiy^nur.sS— Continued. ' page distiller, Ky. 271 embezzlement, Utah, 772 good order, la. 225, Me. 314 inevitable accident, Mi,' bill of lading to be cancelled when property delivered, N. Y. SfK) warehouse receipt to be marked and cancelled upon, La. 2,86, Mo 466, S. Dak. 7;i7 loss by overpowering force, sufficierU excuse for non-delivery, La. 302 refusal to deliver when receipt outstanding, Cal. (K) when warehouse receipt or bill of lading not returned indemnity may be required, Wash. 801 ta any partner is a delivery to the firm, Ma. 9 receipt holder must give WTitten consent to release of goods stored, Wa-sh. 799 of grain not to be made unless inspected, .Mo. 463, Ukla. 6.59 of grain by carriers, requirements, 111. 127 of grain to be made within 24 hours after car furnished, proviso, Minn. 409 property must be actually delivered before receipt issued Tenn. 751, Tex. 763 must be made ivithin reasonable time after demand, Kan. 2.>0 to a compress deemed actual delivery, \la. 2 warehoxw^emen must account for failure to deliver Pa. 701 statutory requirements as to, 111. 134 attornment by warehouseman where there is delivery of property by warehouse receipt, \fo. 497 full quantity and grade to be delivered on demand, Miim. 3S1 order of deliver}- of grain, . ^ Neb. 519 if made by mistake replevin will lie Pa. 692 to one purporting to be true owner, bailee assumes burden of jtruof, Ala. 9 by carrier by depositing in warehouse, S. C. 726 tvhen storage is not a delivery, ///. 165 if bills of lading or warehouse receipts be drawn to "bearer" they pass bj- delivery Wash. 800 to holder of original warehouse receipt, warehouseman exonerated by, Wash. 801 to holder of original bill of lading, carrier exonerate! by,. .Wa.«h. SOI ichen warehouseman not liable for mi.'^dclirery, diliynce Mo. 494 surrender of receipt for purpose of, ///. ISl without surrender of receipt, warehouseman liable, Ind. 208 of goods in damaged condition, effect .V. Y. 565 unreasonable requirements as to identification .V. }'. 5S9 liability of sampler of tobacco terminates upon, \'a. 7S5 payment to sampler of tobacco upon Va. 786 to bailor after notice of owner\'< claim, rule staled Ter. 767 by warehouse receipts, a symbolic one, Tex. 770 868 INDEX. References to laws are printed in roman. Those to decisions are in italics. DELIYERY— Continued. page by warehouseman without authority, conversion, N. Y. 566 refusal to deliver on demand constitutes conversion, X. C. 609 pursuant to order of one not owner, constitutes conversion, Ore. 683 of property by ivarchouseman ivithout notice of claims, X. Y. 595 warehouseman may defend by showing delivery to agent, S. C. 726 by process of law, sections of warehouse act do not appl\', N. Y. 561, S. Dak. 748 under judicial process; warehouseman protected, La. 299 whe7i receipt outstanding, warehouseman liable, A'. 1". 594 of goods when negotiable receipt or bill of lading outstanding, penalty, S. Dak. 748 liability for special and other penalties for failure to deliver, . . . La. 293 to one not holding warehouse receipt, burden of j/roof, Miss. 452 grounds of refusal to deliver cannot be changed, when, Minn. 435 where failure to deliver on demand is shown, burden then on bailee, X. Y. 570 on forged order, bailee liable, X. Y. 566 warehouseman's reasons for failure to deliver cannot be shifted dur- ing trial, Ore. 683 of goods wiihoid the return of the receipt, when law not applicable, X.'Y. 593 failure to make on demand declared to be larceny, N. D. 616, S. Dak. 735 must be made to owner when charges paid, Ore. 678 to true owner always good defense for bailee, Xeb. 536, Vt. 775 in case of lost warehouse receipt, Va. 779 without return of receipt, bailee liable, Xeb. 538, X. Y. 567 to holder of receipt exonerates warehouseman, Ariz. 24 in case of non-negotiable receipts consent of original depositor must be obtained, Cal. 43 to one holding unindorsed, receipt, warehouseman liable, Ala. 18 to be made upon surrender of warehouse receipt, Ind. 187, Kan. 243, Ky. 262, Minn. 388, Mo. 467, Xeb. 514, Okla. 663, S. Dak. 734, Tex. 763, Wash. 799 entitled to return of receipt before delivery made, Ga. 119 not to be made unless receipt returned, Pa. 688 DEM AX D, not necessary when warehouse closed, S. Dak. 749 not necessary before replevin brought, Del. 85, Tenn. 755 necessary before detinue brought, Tenn. 755 not necessary before assumpsit brought, R.I. 713 proper if ?nade on agent in charge of warehouse, Minn. 433 good if made after grain removed, Minn. 434 for storage charges must be made before sale, Me. 310 when unnecessary before action for conversion,. . . .X. D. 625, Pa. 697 necessary before action brought for conversion,. ...X. D. 624, Tenn. 753 iNi)i:x. 8G9 References to laws are printed in roman. Those to decisions are in italics. DEMAND— Continued. i-auk must be made within reasonable time in case of conversion, ... 11'. I a. SWJ no obligation to deliver without demand, C'al. 34 DENIAL, of storage by grain warehouseman, not pennitted, S. Dak. 736 DEPOSIT. See also BAILMENT. kinds of, defined liy statute, Cul. 34 DEPOSITARY, must obtain consent of depositor to use thing deposited,. . . .C'al. 3.5 must obey orders of depositor, La. 298 DEPOSITOR, what he must indemnify depositary' for, Cal. 35 liable for all storage charges, Ma.ss. 338 DEPUTIES, appointment and qualification of deputy inspectors of tobacco, Mo. 485 warehousemen maj- appoint, Mass. 335 DEPUTY INSPECTORS, appointment and qualifications of, Minn. 395, Mo. 472 oath and bond of, Minn. 395 appointment, salary, etc., of deputy inspectors of tobacco, Md. 320, Mo. 485 DESCRIPTION. See BRANDS AND MARKS. of property stored to be made by warehousemen, Nob. 505 in warehouse receipt must be definite, Ind. 195 DETENTION, action of trover ivill lie against bailee where there is a wrongful de- tention, ■ !''• 776 DETINUE, demand necessary before action brought, Tcnn. 755 no previous demand necessary, D. of C. 90 gist of the action, I), of C. 89 bailee may maintain, ' 'J- "*'•» warehouseman cannot plead his own xcrong Col. 17 maintainable where there xoas originally a bailment, D. of C. 89 pleading, confession and avoidance, D. of C. 90 DEFICIENCY, depositor liable for any, after sale for storage charges M;iss. 338 DILIGENCE. See also ORDINARY CARE. defined, ^Z"- ^-'^ reasonable diligence defined, '^"- S.* 870 INDEX. References to laws are printed in roman. Those to decisions are in italics. DILIGEXCE— Con/mwed. page where warehouseman delivers to wrong person, Mo. 494 delivery of grain to be made as rapidly as diligence, etc., will justify, Minn. 409 bailee mnst show, after proof of loss, Ga. 101 must be shown even where loss result of overpowering force, La. 302 depositary need only use due diligence, La. 301 warehouseman bound only to ordinary diligence, Ga. 96 DIRECTORS, duties and liabilities of, N. Y. 600 chargeable with knowledge as to manner of issuing warehouse receipts, N. Y. 597 fraud on part of one director not imputable to bank, Mass. 350 personally liable where there has been a failure to file annual reports, N. Y. 599 DIRECTIONS, of owner of grain must be obeyed, Minn. 398 DISAVOWAL, an unauthorized sale by bailee must be promptly disavowed, . . . .Ky. 275 DISCONTIXUAXCE, of one as warehouseman to be published, Mass. 334 DISCOUNT, of paper based on warehouse receipts not considered a loan, when, Mo. 487 DISCOVERY, owner may have, against one selling or attempting to sell his property, Ohio, 630 DISCRETION, warehouseman to use his own, in case of fire, N. C. 609 DISCRIMINATION, between persons by public warehousemen prohibited, 111. 131, Ind. 185, Minn. 386, Mo. 462, Neb. 511, Okla. 658 between purchasers of tobacco forbidden, Ky. 270 and excessive charges by railroads prohibited, S. C. 722 by railroads, penalty, S. C. 723 not to be made by carrier shipping grain, Mo. 489 in inspection of grain, complaints as to, Minn. 412 DISPUTES, concerning tobacco inspection to be referred to arbitration com- mittee, Md. 324 DISTILLER, who is within meaning of law, Ky. 271 may issue warehouse receipts, Ky. 271 INDKX. 871 References to laws are jirinted in roman. Those to decisions are in italics. DISTINGUISHING MARKS. See BRANDS AND MARKS. page DOUBLE POLICIES, what are and e]]ert of, Md. 329 DRAFT, if receipts attached to, they mai/ be surrendered on acceptance of draft, La. 30G DRY CLEAN, when warehouseman permitted to, Kan. 245 DRYING, warehouseman may dry and clean grain, Ill 111 DUE DILIGENCE. See DILIGENCE ; ORDINARY CARE. DULUTH, act providing for purchase of warehouse site at, iield unconstitu- tional, Minn. 403 warehouses in, where grain mixed, declared public waroliouses, .Miim. 384 DUPLICATE, railroad liable if it issue duplicate original bills of lading, Kan. 254 DUTIES, in the rumiing of country warehouse, defined, Minn. 408 additional duties of board of transportation defined, Nel). 525 DUTY, no duty or tax to be imposed upon auction sales of tobacco, when, Ohio, G36 of warehouseman defined, (^ia. 104 EGGS, best evidence to prove condition of, I'ld. 205 ELEVATOR CHARGES, maximum charge fixed by statute, N. \ . 556 ELEVATOR RECEIPTS. See WAREHOUSE RECEIPTS. penalty if holder fail to comply with terms of, Md. 319 valid tender may be made with, Mich. 373 ELEVATORS. See PUBLIC ELEVATORS; WAREHOUSES. EMBEZZLEMENT. See also CRIMINAL LAW. defined, ^'^f'' '^^^ is a species of larceny, ^ '''■ •^'- from warehouse deemed larceny, ^''^■''- ■^•*"*^ by bailee, larceny, I"^- Tv. 210 conversion by bailee is not, D. uf C. 88 872 INDEX. References to laivs are printed in roman. Those to decisions are in italics. EMBEZZLEMENT— Con/mwcd. page fraudulent conversion by Avurehouseman declared to be, Colo. 68, D. of C. 87 by warehouseman and others, penalty, 111. 158 by baUee, penalty, Fla. 93, Idaho, 124, Mich. 370, Utah, 772, Wis. 818 icarehousemen may maintain one action to recover gooch of several depositors, Cal. 58 EMPLOYEES, lessor of safe deposit boxes bound to use care in selection of, Cal. 52 care in selecting, liability, Ga. 103 indictment for larceny, Ga. 123 of warehouseman, not in possession as bailee, Ga. 123 injuries to, when ivarehouseman not liable, ///. 181 ENVELOPES, notice that warehouse is licensed must appear on warehouseman's envelopes, Va. 791 EQUITY, has not jurisdiction in case of conversion, Md. 328, TT'. Va. 809 has no jurisdiction where the dispute is simply one of title, .V. Y. 571, N. J. 548 has jurisdiction where commingled goods are destroyed, III. 169. Minn. 434 court has jurisdiction where receipt lost, Ga. 119 courts of, icill not compel stockyard company to do business with railroad, .Y. J. 549 powers of, to prevent fraudulent disposition of property in hands of factors, etc., N. Y. 559 whe7i there is also si.iit at laiv, res judicata, Ky. 272 EQUITABLE LIEN, arises in case of substitution of other property, ///. 170 when it does not exist, Ga. 114 EQUITIES, pledgee who takes receipt without indorsement takes subject to, . . Ind. 208 ESTOPPEL, by warehouse receipts, Minn. 440, A'. Y. 591 warehousemen not estopped by statements on receipts as to contents of packages, j\is. 829 warehouseman estopped by his receipt to deny that the goods were received, Tenn. 758 warehouseman not estopped to .'hoic goods are not acttially in store, when, JV^ Y 596 warehouseman estopped to deny that goods named in receipt are ''for^^, ///. 170 warehau.^eman estopped where agent issued false warehouse receipt, S.Dak. 749 INDEX. 87:^ References to lawf^ arc jrrinfed in roman. Those to decisions are in italics. ESTOPPEL—Conlinucd. i-a. , ,. by warehouse receipts wlien no notice on as to unpaid intrrhasr jrricr, Ohio, 052 \i)hen warehouseman not estopix-d by informal ncrijit, Minn. WW by indorsement of warehouse receipt, J'a. 70 1 when owner estopped to deny ivarehouseman's authority to i-tsut; receipt, A';/. 27«» by statements in hill of lading, when, Conn. Si carrier not estopped by bill of lading to deny that goods iccrc received, Ark: 33 warehouseman estopped to change his defense at the trial Ore. 083 assignee of warehouseman not estopped to deny sale by assignor, Ki/. 2.SI EVAPORATION, allowance to be made for, may be definitely fixed by contract, . . .Ohio, 650 EVIDENCE. See also PAROL EVIDENCE. ivarehouse receipts are evidence as to ownership of property re/rre- sented, Ohio, 054 an offer to compromise not admissible, Majis. 347 receivable to show special value of lost jrroprrty, .V. Y . 595 correspondence receivable to show contract of storage, when,. . ..^finn. 435 warehouseman's books best, as to weight of stored goods, (Ja. 1 12 of jyrior and independent actions by warehouseman not receivable, X. y. 500 not receivable to excuse non-delivery on a different ground than that given in the plea, Ore. 683 receivable to show what was meant by "cold storage," .\' Y . 585 receivable to explain "in good order," Idaho, 125 best to prove condition of eggs, Ind. 205 what warehouseman must show where failure to deliver on demand is proven A . ) . 570 wei2;hmastcr's certificates to be prima facie evidence Minn. 401 as to dangerous property near warehouse, when excluded Uo. 495 of sale of stored goods, On. 106 affidavit and notice of sale for stora;z;e chariies receivable in, Mil-^-^. 337 when opinion evidence receivable as to loss by fire, \la. 11 bills of lading and warehouse receipts conclusive evidence of their contents, Mil- •^l-'' when admissible to vary bill of lading, -U'/. 331 either of the duplicate Inlls of ladinir receivable, Kan. 249 warehouse receipts pre.suinptivc evidence of ownership la. 215 warehouse receipt receivable in, l^.V- 255 when receivable to show purpose of iudorscinent of receipt, da. 1 17 lohen statements of warehousemen receivable as part of res jresf :r, Cnl. 51 EXAMINATION, owners and persons interested niav examine stored pn)|>crty, Kan. 247, Mich. 360 874 INDEX. References to laws are printed in roman. Those to decisions are in italics. EXL\M1 X ATIOX— Con/inued. page all property in public warehouses subject to, by inspectors, ISIinn. 393 of railroads and warehouses by commissioners, 111. 152 of books by railroad and warehouse commission, 111. 153 by railroad and warehouse commissioners, 111. 152 EXCESSIVE CHARGES, by railroads prohibited, S. C. 722 EXCHANGE, suspension from, no defense for sureties, Ky. 273 "EXCHANGE TICKETS," and "inspector's tickets" both outstanding, carrier liable, Minn. 443 EXECUTION, when cannot be issued against stored property, III. 176 jyroperty held by bailee not subject to, in an action against him. Neb. 537 against property in factor's hands, Tex. 766 EXEMPTIONS, tvhat valid in bill of lading, Conn. 82, Md. 331 in bill of lading against unavoidable accident, effect, A". Mex. 550 in bills of lading cannot be against negligence, il/a.s.s. 350 burden on carrier to show that manner of loss was within,. . . .Mass. 349 against loss by fire, notice valid, Me. 313 scales under state weighmaster exempt from city weighers, Minn. 402 EXECUTORY CONTRACTS. See CONTRACTS. EXEMPLARY DAMAGES. See also DAMAGES. recoverable for violation of warehouse act, Wis. 823 EXPERIENCE, want of, on part of warehouseman, A'^. C. 611 EXPERTS, statement of, in case of defaulted pledge, La. 289 EXPLOSIVES, sale of, after dark, prohibited, Mont. 502 EXPLOSIVE FLUIDS, penalties for keeping when not inspected, R.I. 708 EXPORTATION, laws pertaining to inspection of kerosene do not apply when ex- ported, RI- 709 EXPRESS COMPANIES. See also CARRIERS. may refuse to deliver to consignee if not true ow7ier, Wis. 825 EXPRESSMEN . See also CA RRIERS . cannot escape liability by claiming to be "forwarders only," D. of C. 91 INDEX. 875 References to Imvs are printed in romnn. Tho.se to decis^iom are in italics. EXTRAORDINARY DILIGENCE, p^oe defined by statute, (j^ jq.> FACTORS, may pledge property entrusted with them, Ga. 100, X. Y. FM), r,\y.i, Ifw. 828 unaulhorizcd pledge of receipts by; owner protected La. 289 how far considered owner of goods, Mo. 3().S, N. Y. rwS, ( )liio, G2S property intrusted to remain principal's, /,«. 301 must act under instructions, (j^ \qj no presumption of ownership from possession by, La. 2f>.S 07ie cannot deal with and ignore owner's rights, /,a. ;j(X) cannot lawfully pledge principal's property for his oivn debts, La. 300 may pledge goods to extent of their interest, La. 301, 3(11, Tenn. 7.>1 may sell to recover advances, fja. 108 if he makes pledge for antecedent debt, owner protected,. . .N. Y. .558 principal liable for commissions and all disbursements of, Ga. 1 10 given liens for advances, Wis. 815 possession necessary to lien, Ca. 110 how liens of, enforced, Wis. 81 5 who is, unthin meaning of c. 54, sec. 2, Gen. Stats., Ma.fs. 341 liable if they fail to insure contrary to knoivn custom La. 303 not liable if they obey principal's ijistructions, La. .301 relations of, with principal, La. 299 when they may refuse to comply with an order to sell, Tenn. 754 fraudulent appropriation of merchandise by, penalty, Neb. .531 cannot charge up personal debt against their priticipal trustee,.. .La. 301 receipts of, not tvarehouse receipts, /// 1 75 nature of tlieir contracts ivith principal, La. 300 execution against property in the hands of, Tex. 700 powers of equity courts to prevent fraudulent disposition of prop- erty intrusted to, N. Y. 559 FALSE RECEIPTS. See WAREHOUSE RECEIPTS. FALSE WEIGHTS, penalt}^ for using, Ky. 207 FEES, for license of public warehousemen, N. D. 614 of samplers of tobacco, Va. 785 when tobacco samplers' fees to be paid Va. 787 when samplers of tobacco only to receive half fees Va. 780 division of, by samplers of tobacco, prohibited \'a. 7s7 of tobacco inspection, by whom paid, Mo. 4Sl for warehousing and inspection of tobacco limited by statute, . . Mo. 486 paid to samplers for sale of loose tobacco, Va. 787 of a sampler acting for aiiothor warehouse, how p.-iid, Vn. 787 penalty against the taking of illegal fees by tnl);i(t() inspectors. Ohio, 639 876 INDEX. References to laws dr6 printed in roman. Those to decisions are in italics. FEES — Continued. page when tobacco rejected, Ky. 269 of justice of the peace and constable where unclaimed or perishable property sold, Minn. 378 for inspection of kerosene, R.I. 708 of appraisers where goods sold for charges, Wyo. 835 of officers when unclaimed property sold, Wis. 813 for weighing of grain, Xeb. 531 for weighing grain, how fixed, Mo. 479 of state weighmaster, how fixed, Minn. 394 FELONY. See also CRIMINAL LAW; EMBEZZLEMENT. violation of warehouse act, constitutes, Cal. 44 violation of parts of warehoiise act deemed, Minn. 383 issuance of fraudulent receipts constitutes, Ind. 190 bribery of those in grain inspection service, penalty, Kan. 237 entering warehouse to commit, penalty, Ind. 198 FERGUS FALLS, made a terminal point, Minn. 401 FICTITIOUS NAME, bill of lading so issued not good in hands of one taking innocently, Ala. 19 FINDER, may place things found in storage, Cal. 39 FINES, for using weights and measures not proved, Minn. 422 FIRE. See LOSS BY FIRE. FIRE ESCAPES, when warehouses must be provided with, Mich. 365 FIREPROOF, warehouse need not be, Tenn. 753 contents of such warehouses need not be insured, when,. . . .?klinn. 430 advertisements that warehouse fireproof, liability, Tex 769 must be term of contract in order to constitute warranty, Ala. 15 FLOOD. See LOSS BY FLOOD. FLOUR, to be delivered for wheat deposited, a sale, Ind. 199 FORFEITURE, of spirits mixed u4th others fraudulently u'ithdrawn from bonded warehouse, Mass. 342 FORGERY. See also WAREHOUSE RECEIPTS. of tobacco inspectors' receipts, penalty-, Ohio, 642 of warehouseman's signature, penalty, Mass. 335 INDEX. 877 Refereiu:es to laws are printed in roman. Those to decisions are in italics. YOUGERX— Continued. p^oe of signature of indorser of warehouse receipt, Mass. 33,") delivery of goods on forged order, bailee liaiAe ,V. 1'. 566 of warehouse receipts, penalty, Mass. 33"), Va. 7K0, Wasli. K03 of warehouse receipt, warrhoitseman jrrotected, Tri/. (51 of warehouse receipt, what evidence warehouseman may introduce, Cal. 61 FORW.VHDERS, warehoase act made applicaljle to, Mo. 459 FRAUD, on part of holder of warehouse receipt, M. 534 in pledg" of hill of lading, owner jrrotected, • Mnsx. .3.')() of one holding advances against property represented i^y ware- house receipts, penalty, Md. 319 on part of factors or other agents intrusted with merchandise, penalty, ^ Xch. 531 on part of consignee, penalty, Neb. 532 issuance of duplicate receipts constitutes actual fraud, Ky. 285 in issuance of receipt, when bailor jyrotected, Ga. 116 if goods be taken from warehou.seman by, he may maintain re- plevin, Mich. 359 penalty for fraudulent disposition of goods by warehou.semen, Mich. 369 implied by possession of a receipt by warehouseman, in another's name, Ky. 283 exemptions in bill of lading not valid against, Colo. 73 warehouse receipt procured by, innocent piirchnser protected, .lla. 17 where goods fraudulently removed by pledgor, pledgee protected, Ala. 14 "FREEZER," absence of agreement that goods to be placed in, effect, Conn. 79 FREIGHT, notice of arrival must be given within three days, Colo. 63 warehouseman may recover in full for all advances for, ,V. Y . 574 lien on, for storage, when, Ohio, 632 register of, to be kept, f Jhio, 630 consignor ultimately liable for. •. .Ua.x.s. 349 sale of when unclaimed, when and how made Colo. 64, S. C. 723 when uncalled for may be stored, Colo. 63 sale of for charges, when and how may be made Ohio, 631 disposition of proceeds of sale of, Ohio, 631 suit to subject freight to payment of costs, Ohio, 632 reclamation of property after sale for charges Ohio, 633 when sold for charges, copy of notice, sale bill, etc., to be kept, Ohio. 633 when warehouseman liable for, -V. 1 • 566 878 INDEX. References to laws are printed in roman. Those to decisions are in italics. FROST PROOF, page what is not a warranty as to a ivarehouse being, N^. Y. 5S7 "FULL PAID," as applied to stock, construed, N. Y. 600 GAMBLING, receipts transferred under gambling contracts void, la. 223 warehouse receipts not gambling contracts, Ala. 16 gaIme, provision regarding the holding of during the close season, . . . N. Y. 563 GARNISHMENT, warehousemen liable if he delivers after .service of summons of,. .Ga. Ill against warehouseman holding goods of debtor, Pa. 697 entitled to bond in case of, when, Pa. 697 GAUGER'S RECEIPTS, warehouse act extends to, Ind. 196 "GOOD ORDER," used in bill of lading, construed, Me. 314 GOOD FAITH, required of warehousemen, Ind. 189 GOVERNMENT BONDED WAREHOUSES. See BONDED WARE- HOUSES. GOVERNMENT STOREKEEPER, appointment of, does not lessen liability of warehouseman, Ky. 277 GOVERNMENT TAX, if warehouse receipt states it has been paid innocent holder protected, N. Y. 572 GOVERNOR, to appoint samplers of tobacco, Va. 780 to appoint inspectors of tobacco, Md. 320 to appoint deputy samplers of tobacco, Va. 781 to appoint chief grain inspector, Okla. 656 to appoint chief inspector of grain, Neb. 515 to appoint board of appeals for the inspection of grain, Minn. 425 may license public warehousemen, Mass. 332 annual report to, by railroad and warehouse commission, 111. 152 GRADES, of grain to be established by railroad commissioners, S. Dak. 735 of grain to be established by board of railroad and warehouse commissioners, Mo. 475 INDEX. 879 References to laws are printed in roman. Those to decisions are in Holies. GRADES — Continued. ,.j^gk schedule of, to be kept posted l)y wurehousciiicn S. Dak. T.Vil different grades of coniiiiodities not to he mixed, Okla. iiTtW, Ore. (577 of grain to be established by board of transportation, \eb. 52S to be established by chief inspector f)f strain, Kan. 'J.'M of grain to be established by counnissioners, 111. 117 GRADING, grain to be graded, when, lad. i.s5 GRAIN. See also INSPECTION OF GRAIN; SAMPLE; SCALES; WEIGHING OF GRAIN, railroad and warehouse commission to exercise general super- vision over grain interests, .Minn. 399 duty of warehousemen concerning, Ky. 200 warehouse act extends to grain stored in elevators, Pa. 690 posting of grain in store, Nel). 514 heating of, warehouseman's duty in case of, Neb. 519 when out of condition, warehouseman's duty, ....111. V.V.), .Mkla. (559 "Minnesota grades" to be established Minn. 39S not to be tampered with while stored, Neb. 520 inspection of, a proper exercise of the police power, ///. 104 when warehouseman may mix, 1''- *31 mingling of equal grades allowed, »\ is. S-4 public warehousemen obliged to receive, when offeretl Okla. 058 warehousemen not obliged to receive when they have not room. Neb. 511. Okla. 6.'.9 all grain nuist be inspected Ill- !•♦-. <>kla. 6.58 may be inspected while in railroad cars same as in warehouses. Okin. 073 to be inspected prit)r to lieing mixed Okla. 600 samples of, to be furnished by chief inspector, Minn. 398 880 INDEX. References to laws are 'printed in roman. Those to decisions are in italics. GRAIN — Continued. page maximum charges for storage of, fixed by law, 111. 13S, Mimi. 390, Xeb. 518 maximum charge for elevating fixed by law, N. Y. 556 statute prescribing charges for storing and handling, X. D. 616 the handling, weighing and storage of, regulated, X. D. 613 kind, grade and quality to appear on warehouse receipts, .... Va. 779 to be delivered upon return of w^arehouse receipt, S. Dak. 734 yhat receipt to represent where grain mixed, Mass. 334 sale of when out of condition, how made, X"eb. 519 form of receipt for, Ky. 260 must be stored in separate bin when o-wner rec}uests, Okla. 658 preservation of, what may be done, Okla. 659 warehouseman storing his own, prohibited, ///. 164 police protection of, to be furnished bj^ railroads, when,. . . .Minn. 404 not to be stored against owner's wish, Minn. 397 posting of, 111. 134 requirement as to delivery, 111. 127 may be sold by sample, Kan. 238, Minn. 400 tampering with, prohibited, lU. 141 carriers obliged to receive in bulk, Mo. 488 removal of, when warehouse receipt outstanding prohibited, penalty, Ind. 193 no discrimination to be made by carrier, Mo. 489 when to be kept separate, Ind. 185, Kan. 229 consignments of deemed temporary, when, Mo. 489 designation of grade of grain on an informal receipt, not binding on warehouseman, Minn. 443 warehouseman may store his own, 111. 131 misdescription of, in ivarehouse receipt, of no effect between the par- ties, Minn. 445 in cars to be protected by warehousemen, when, Minn. 405 shipper to affix cards to cars containing, Minn. 406 coloring of, prohibited, penalty, Minn. 420 drying, cleaning and moving of stored grain, Xeb. 520 GRAIX ELEVATORS, tax on, Tex. 765 GRAIX IXSPECTIOX. See IXSPECTIOX OF GRAIN. GRAIN INSPECTORS, no provision for appointment of for class B, III. 142 GROSS XEGLECT. See also XEGLIGEXCE. defined by statute, Ga. 102 GROSS XEGLIGEXCE. See also XEGLIGEXCE. facts constituting, N. D. 626 when only liable for, , , . , Ala. 11 INDEX. H81 References to laws are jrrinled in roman. Those to (Iccinions arc in Ualicg. HEATING, i-AiiK when warehouscmon lial)lc for loss by, Minn. '.VM duty of warehouseman in case of, 111. ];v.) HOGSHEADS, of tobacco to Ije weighed and l)randcd jjcforc inspcM-tion, Mo. IS'2 when fnuidiilently packed, how to be nuirkiul Mo. IS! tobacco inspectors' fee for each, Mo. -IKt containing tobacco to be numbered, Md. 'V2i to be restored to good shipping order by tobacco inspectors,. . .Mo. 484 HOTEL KEEPERS, when and how unclauned and perishable property may be sold by, X. 1). C.JO HUSBAND, delivery to husband of bailee without the return oj tlie receipt, Ijailcr liable, -V. 1'. 567 HYPOTHECATION, of goods by warehousemen only to e.xtent of advances, Term. 752 of tobacco forbidden, exemption, Ky . 268 warehouse receipts must be paragraphed for, Im. 305 of property entrusted to warehousemen or carriers, jjrohibitod, Ohio, 630 IGNORANCE, of warehouseman, liability in case of, A . C. 61 1 INCOMPETENCY, of grain inspector, board of appeals may report same, Minn. 427 IDENTICAL GOODS, must be returned by bailee, when, D. of C. 88 IDENTICAL ARTICLE, when to be returned in one form or another, transaction a bailment. III. 1 00 IDENTIFICATION, unreasonable requirements as to, -N . i . 580 IMPORTER, liable for whole amount of duties, A . 1 . 5/ 2 IMPUTABLE NEGLIGENCE. See also NEGLIGENCE. there must be the relation of principal and agent, Ga. 102 "IN APPARENT GOOD ORDER," in bill of lading refers only to external condition ^rk. 33 IMPOSTER, one assuming to act as grain inspector, penalty, Okla. <>0J INCORPORATION, of warehouse companies, yi\ch. .«>U 56 882 INDEX. References to laws are printed in roman. Those to decisions are in italics. INCORRECT SCALES, page use of, penalty, 111. 143 INDEMNITY, warehouseman entitled to, where receipt not surrendered,. . .Ariz. 24 may be required by a warehouseman or carrier who delivers goods without the return of receipt or Inll of lading, Wash. 801 cannot be demanded of one who loses a icarehouse receipt, Tex. 770 INDICTMENT. See also CRIMINAL LAW. under warehouse act, what it must contain, Ky. 257 insufficient allegations in, Ore. 686 for theft from "granary icarehouse" equivalent to "icarehouse," Mo. 498 for burglary from "storehouse" equivalent to "warehouse," Mo. 495 of warehouseman for unlawful sale, requisites, Mo. 498 INDIVIDUALS, to have same rights in construction and maintenance of warehouses as corporations, N. D. 619 may prosecute for damages aside from warehouse act, 111. 155, Neb. 528 INDORSER, penalty for forgery of indorser's name on warehouse receipt, Mass. 335 INDORSEMENT. See also WAREHOUSE RECEIPT. what an indorser of a warehouse receipt warrants, Mich. 354 pledgee taking without, not protected, Ind. 208 when evidence received as to purpose of, Ga 117 delivery upon unindorsed receipt, warehouseman liable, Ala. 18 of bill of lading, effect, Mich. 374 INEVITABLE ACCIDENT, held to be synonymous with "act of God," Miss. 453 INFLAMMABLE FLUIDS, penalty for keeping, when not inspected, R.I. 708 INFLUENCE, attempting to influence grain inspectors, penalty, 111. 143 "IN GOOD ORDER," construed, Ida. 125 in bill of lading refers only to external condition, la. 225 INJURIES. See also TORT. warehousemen not liable for those done to goods prior to receipt by him, Mich. 353 liable for, although goods afterwards destroyed without warehouseman's fault, N. Y. 580 plaintiff m.ust show injury occurred subsequent to receipt by bailee. La. 302 an injury to property bailed falls on bailor, when, Ind. 199 when warehouseman not liable for injuries to employees, ///. 181 INDEX. SH3 References to laws are printed in roman. Tlinse to decisions are in italiai. m JURIES.— Continued. PA.iK liability of warehousemen for injuries received h;/ ]>mintnt coming in warehouse, .... Tri. 771 to visitor to ivarrhousr, urglignirc, f'al. (i'2 improper instruction to jurrj in case of, ///. ISl INSOLVENCY, assignment of receipt on day of, valid, Cnl. (V) application of mixed grain, wlicro bailee insolvent, N. 1). S grain mu.st be inspected before storage, ^'<'1>- •'^■-- must be inspected before delivery, ^'"- ^^^ when grain to be submitted to grain inspector for grading or J , „ Minn. 41 1 dockage, appointment of inspectors, Ind. 190, Kan. 2.32 appointment, removal, qualifications and compensation of m- , Kv. 202 spectors, ■ _ appointment of inspector, weigher and registrar, V .^ ' .;.'" oath and bond of in.spectors ^H- l^^*'- '^'^"- "'" appointment of chief inspector • ,',' ' ^--. Til, i:r,, Minn. 391, Mo. 4.7.), Neb. 51.). Okla. «..-.'» chief inspector to have general .suiiervision, • M"- J' • , r \ ■ e- t . Neb. 516 oath of chief inspector, 884 INDEX. References to laws are printed in roman. Those to decisions are in italics. INSPECTION OF GRM^—Conlinucd. page oath and bond of chief inspector, ]Mo. 472, Okla. 667 duty of chief inspector, 111. 136, Neb. 516, Okla. 656 duty and compensation of inspectors, Ind. 191 chief inspectors to make monthly report to auditor of state, Kan. 235 inspectors may examine warehouses, Ind. 189 only qualified inspectors to act, Kan. 237 inspectors to l)e governed by rules of board of railroad and ware- house commissioners, Mo. 472 "legally appointed inspectors" defined, III. 164 appointment of assistant inspectors, 111. 136, Kan. 233, Neb. 516, Okla. 667 appointment of deputy chief inspector, Okla. 667 deputy and assistant inspectors, how qualified, Mo. 472 oath and bond of assistant inspectors, 111. 137, Okla. 668 lack of authoritjj for appointment of inspectors of class B III. 128 board of commissioners to fix compensation of inspectors, . . Okla. 669 pay of inspectors and assistants, Neb. 517 compensation of inspectors, 111. 137, Mo. 473, Neb. 517 expenses of inspectors, 111. 138 salaries of assistant inspectors and employees, Kan . 235 inspectors to close and reseal cars after inspection, Minn. 404 inspectors to examine condition of cars of grain, Mii:n. 404 inspectors may examine grain at all times, Minn. 393 state weighmaster to be appointed, Neb. 530 scales subject to inspection and test, Mo. 470, Neb. 521 grain not to be mixed vmtil inspected, Okla. 660 not to be delivered unless inspected, Okla. 659 rights of owner when dissatisfied v/ith, . . . .111. 143, Kan. 248, Neb. 522 charges for, must be paid before receipt issued, Ind. 185 inspector to make a statement in triplicate, Minn. 411 restrictions on inspector and his deputies, Minn. 396 may be inspected while in railroad cars same as when in ware- houses, Okla. 673 samples to be furnished by chief inspector, Minn. 398 bonds of inspectors to be filed with secretary of state, Minn. 395 removal of inspector, Minn. 396, Okla. 670 bribery of those in inspection service a felony, Kan. 237 penalty for neglect or fraudulent conduct of inspectors, .... Okla. 669 assuming to act as inspector, how punished, 111. 142, Minn. 396, Mo. 473, Neb. 522 complaints against inspectors, Minn. 412, Mo. 474 misconduct of inspectors, penalty. III. 143, Kan. 236, Mo. 473, Neb. 522 penalty for neglect of duty of inspector, Ky. 266, Minn. 396 removal from office of inspectors and others, how made, Neb. 518 appointment of arbitration committee, Okla. 670 rules governing arbitration committee, Okla. 671 personnel of board of commissioners, Okla. 668 INDEX. S80 References to laws are printed in rnmnn. Thosr In .Irrixiom arc in italics. INSPECTION OF GnXiy^-Continucd. ,,^o„ act establishing board of appeals, \|i„„ ^25 board of appeals may report iiu-oinpeteiit iiispcftor^, Minn. .J27 when appeal may be taken to board of appeals. mj„,, 42(5 appeals from chief inspector to commit tee of appi^Ls Sv\}. 529 decision of inspectors final vmlcss appeal taken Kan •_»:«, Minn. .W when judgment and finding of chief inspector conclusive,. . ^Minn. -112 manner of taking appeal from decision of inspectors Kan. 23S appeal from inspector to railroad and warehoviso conuni-i-^ion, Minn. 397 appeal to arbitration committee when and how made Okla. G70 attorney general to be ex officio attorney for chief inspector. . . Kan. ZiH INSPECTION OF KEROSENE, appointment of inspectors, j{ j ^j j inspectors to examine premises where stored K.I. 7()«» duties of inspectors, K I -q,^ penalty for putting uninspected kerosene in branded casks,. . K. I 710 fees of inspectors, 1 { j jq^ INSPECTION OF TOBACCO, mode of, ^I„ .js^2 book to be kept by inspector, ]^Ii, 4,s^l record of to be kept, Ohio, 640 duties of inspectors, M„. .|,sf)^ ( )|,io_ G39 deputy samplers, how appointed, Wi. 7.SI newly appointed samplers to give receipts to predecessors Xn. 7S1 appointment and term of samplers of tobacco Va. 780 appointment of inspectors, tenure, salaries, etc., Md. 320 term of ofiice and qualification of inspector, Mo. 4S0 appointment and qualification of deputies, Mr). 4.S5 appointment of inspector by probate court, Ohio, G3fi appointment of chief clerk, Md. 321 entry of appointment of inspector to be made on court journal, Ohio, G37 removal of samplers, \'a. 789 removal of inspectors, MJ. 320 how vacancy in office of sampler of tobacco, filleil Va. 78 1 manner of sampling, weighing and branding tobacco \'a. 782 what entries to l)e made in books of samplers Va. 785 inspectors to give bond, Mo. I.sl, DJiio, 1)37 oath to be taken by inspectors, Ohio, 637 form of inspector's oath, and where filed, Mo. 482 cjualifications and bonds of samplers, Va. 781 bond of chief inspector, Md. 320 salaries of chief inspector and other officers, how paid Md. 323 fees allowed inspectors, < >liio, 638 penalty for altering inspector's marks Oluo, 639 fraudulently packed hogsheads, how to be market!, Mo. 484 886 INDEX. References to laws are printed in roman. Those to decisions are in italics. INSPECTION OF TOBXQCO—C ontinued . p.^ge inspectors have not an exclusive ?• ght to inspect all tobacco,. . .Ohio, 638 absence of chief inspector on account of sickness, substitute,. .Md. 323 when tobacco to be resampled, Ya 734 re-assortment of rejected tobacco, Ohio 640 what sampler's receipt to state when tobacco unsound or western, Va. 782 form of sampler's receipt, Ya 782 samplers required to give receipts, Ya. 784 inspector must give a receipt, Ohio 641 penalty for unauthorized inspection, Mo. 484 penalty against inspector for issuing false receipt, Ohio, 642 penalty against forging inspectors' receipts, Ohio, 642 samplers prohibited from dealing in tobacco, penalty, Ohio, 638, Va. 785 when sampler's liability terminates, Ya. 785 neglect of inspector, penalty, Mo. 481, Ohio, 639 samples to be done up, how, Mo. 483 selection of samples to be made by inspectors, Ohio, 640 proprietor of warehouse liable if sample does not represent package, Ohio, 643 penalties against the appropriation of samples by inspectors, Ohio, 641 sampler's fees, " Ya'. 785 when sampler's fees to be paid, Ya. 787 payment to sampler on delivery of tobacco, Ya. 786 fees and charges for, by whom paid, Mo. 481 fee per hogshead, ]^Io 434 hogsheads to be numbered, Md. 324 hogsheads to be weighed and branded before inspection, Mo. 482 hog.sheads to be restored to good shipping order, Mo. 483 when samplers to receive only half fees, Ya. 786 fees for .sale of loose tobacco, Ya 787 division of fees by samplers, penalty, Ya. 787 penalty against inspectors taking illegal fees, Ohio, 639 amount of rent to be paid samplers, Ya. 786 when samplers from another warehouse to act, Ya. 787 form of certificate of inspection, Mo. 483 placing in packages other substance than tobacco, penalty, . .Ohio, 642 daily reports to be made by clerks, Md. 322 amount of storage to be paid sampler, Ya. 786 when inspector may rent storage room for tobacco, Md. 325 warehou.seman entitled to storage fees after three months, . . Ohio, 641 when samplers to settle with proprietors of warehouses, Va. 788 fees for warehousing and inspection limited hy .statute, Mo. 486 appointment of local inspectors in other towns, ]\Io. 486 penalty for not delivering tobacco on demand, Ya. 785 penalty for delivery of wrong tobacco by sampler, Ya. 785 warehousemen and inspectors not liable for natural loss in weight, Mo. 485 INDEX. 887 References to laws are printed in roman. Those to decisions are in italics. INSPECTIOX OF TOBXCCO—Continucd. page scales and hands to be furnislicd inspector, Mo. 481 warehousemen to have tobacco inspected, Mo. 4,S1 "western tobacco" to be so liranded Vn. 7s:j dednction of tare from <:ross wciijht, Mo. 4S3 proprietors of warehouses mnst insure all tobacco stored Va. 7S8 selection, dutj' and jurisdiction of arbitration committee,. . . .Md. 324 INSOLVENCY, of warehouseman having grain stored in Ijulk S. I). 736 INSPECTORS. See also INSPECTION OF GR.\IX ; INSPECTION OF TOBACCO ; INSPECTION OF KEROSENE. INSPECTOR'S TICKETS, and "exchange tickets" both outstanding, carrier liable, Minn. 443 INSTRUCTIONS, factor not liable if he obeys those of his principal, La. 301 commission merchant.'^ liable for failure to obey, La. 298 bailee must follow bailor's instructions, Fla. 95 INSURABLE INTEREST, warehousemen have, in property stored, S. C. 728 warehousemen have, in commingled grain, Ind. 200 joint owners have, ///. 1 73 INSURANCE. See also INSURABLE INTEREST. when warehouseman may insure, Ala. 5 warehouseman may be required to insure stored property, . . Mass. 333 public warehousemen must insure stored property upon request, N.C. 603, S.C. 716 joint owners have insurable interest, ///. 173 warehousemen have insurable interest in goods drjiii.siird with them, Md. 329 compress company may insure for full value, \rk. 32 evidence as to custom, ichen receivable, da. 1 10 custom as to, may be varied by in.'itructions from owner Ky. 279 custom to insure, consignor ha.. 506, Wash. 805, Wis. 812 IN T 'OL UN TA R Y BA I LEE, entitled to reasonable compensation, Neb. 536 IRREGULAR DEPOSITS, contracts between factor and principal partake of nature of, La. 300 JOINT LESSEES, of safe deposit, right to require presence of both questioned, . .D. of C. 89 JOINT OWNERS, have insurable interest, ///. 173 duty of depositor as to delivery in case of, Cal. 35 INDEX. 889 References to laws are printed in rnmnv. Those to decisions an- in Unlicn. JUDGMENT, against bailee conclusive as to title, l/n. 10, l.n. :i()r» when ■paramount to factor's lien, OVi. 1 10 for storage charges does not bar an action for conversion, .V. }'. 509 JUDICIAL NOTICE, court vnll not take, that one is a warehouseman, Wis. 828 JUDICIAL PROCESS, if warehouseman deliver under, he is protected, La, 299 JURORS, in action to acquire warehouse site on railway, S. Dak. 713 JURY, to determine whether a transaction is a bailment or sale, Ohio, 648 a correct instruction to, as to ordinary care, Mass. 315 to determine question of ordinary care, Ohio 050 when question of ordinary care one for fury and when for court. Mo. 491 to decide irhefher or not place of storage was a safe one, .l/a-v.s. 348 question for negligence is one for, Minn. 137, .V. 1'. 581 whether warehouse properly guarded by watchmen question for jury, N. y. 5S1 instructions to, in case of injury by irater, Pa. 099 verdict of in action to acquire warehouse sites, S. Dak. 744 charge to, when unclaimed tobacco sold, Va. 791 questions for, when unclaimed goods sold for charges, la. 221 who a bona fide holder of warehouse receipt, a question for,. . . .Neb. 538 question for, in construing an ambiguous irarehousc receipt,. ... To. 794 fraudulent transfer question for jury, Colo. 71 JUSTICE OF THE PEACE, duties of, in case of sale of luiclaimed property, Mich. 363, Minn. 370, Xeb. 500, Wa.'^h. S04, Wis. 812, Si 3 KEROSENE. See also INSPECTION OF KEROSENE; PETRO- LEUM OIL. manner of storing may be prescribed by ordinances, li. I. 711 KEY, delivery of contents of warehouse by delivering key, N. Y. 500 LANDLORD, tenants' cotton cannot be taken for debt of, 1 References to laws arc printed in roman. Thosr l,, .lrr!.;on.H arc in italicH. LI A BILIT } '—Continued. ,..,„. of warehousemen not to he limited Ijy words on receipts, Kan. 243, Ky. 2(J2, Minn. 3S8, Mo. ICO, Xcl). .-ill, N. I), (lir,, Okla. 602, S. Dak. 7:«, Tetui. 752, Tex! 763 reduction of, by bill of lading, extent Conn. S2 object of the transaction must be considered, ///. k;^ for goods injured ivhich are subsequently destroyed, \, }'. riSO LICENSES, must be obtained by public warehousemen 111. 129, Kan. 239, Minn. 384, 400, Mo. -l.^}, 400, Xei). r)IO, OUla. 057, S. Dak. 732 must be procured where a warehouseman stores only his own grain, Minn. 440 of public warehousemen to be conspicuou.sly po.sted N. I). (514 of public warehousomon, fee for, .\'. I). 014 of public warehousemen, how obtained, \. 1). 014 notice that warehouse is duly licensed must appear on Inllheads, etc., Va. 791 fees for, of public warehou.semen, Minn. 3S5, ^100 from city also required, Ky. 200 to be procured from county clerk, Ky. 259 circuit court has right to grant, when, ///. 129 act requiring loarehouseman to procure, constitutional, ///. 1S2 statute concerning license of public warehousemen construed, . . Minn. 3X0 to be procured by proprietor of tobacco warehouse, Ohio, 037 if warehouseman ijuilty of ne,u;li,!;ence his license will be revoked. Mo. 470 penalty for doing warehouse business without, 111. 130, Ky. 2G0, Minn. 407, Mo. 455, Okla. G5S, S. D. 733 if revoked by commissioners' action, reviewable by courts, ///. 1G3 cancellation of warehousemen's licenses Xeb. 525 cancellation of, by railroad and warehou.se coinmi.ssion III. 153 revocable by circuit court, . Ky. 259 revocation of public warehousemen's, Minn. \0i\ LIEN. See also EQUITABLE LIEX; TIMBER LIEXS. warehousemen have, for advances and charges, Cal. 37, D. of C. 86, Ida. 124, Ind. 203, Iowa, 215. X. J. 540. N. Y. 553, R. I. 700, Utah, 772, Wash. SOI, Wyo. S33 extends to charges paid bj- warehousemen, Mich. 353 carrier has, on freight and baggage, t'oio. 00 what warehousemen's lien covei*s, Mich. 352 of carriers, warehousemen and agisters, ( >ro. 07S for storage charges and for advances for freight distinguished, . . Minn. -130 factor has Ida. 124 statutory lien for storage charges Conn. 70 given those who store, render .service to articles, etc., Okla. 074 factors, brokers and agents given liens for advances, etc.,. . . .Wis. 815 892 INDEX. References to laws are printed in roman. Those to decisions are in italics. LIEN — Continued. page manner of enforcing liens of warehousemen, carriers and agisters, Ore. 679 for charges paramount, D. of C. 89 statute concerning conMrued; conversion, Mich. 368 statute prescribing, construed, Mich. 352 act of congress giving lien, mandatory, D. of C. 89 superior to claim for advances, Ga. 110 possession essential, N. H. 542 if goods be surrendered only stipulated lien remains, III. 166 lost if possession lost, Del. 85, Miss. 450 lost if possession be lost, not revivable, when, ///. 166 not necessarily lo.'^t xcith possession in case of pledge, Mass. 343 only for debts arising from relationship of warehouseman, A'?/. 276 none on cotton except for storage and connected charges, Miss. 450 at common law and by statute distinguished, N.J. 548 must be regularly engaged in warehouse business, N . Y . 575 of warehousemen favored by the laio, Mo. 493 if bailor in lawful possession, lien attaches, TT^yo. 837 if one entitled to storage charges, lien attaches, Wyo. 837 storage charges continue when warehouseman holding under,. .S. C. 728 is specific not general, Pa. 697 is general and not specific, N . Y . 576 extends to balance of goods stored for charges on entire lot, -V. Y. 576, S. C. 728 warehouseman has not a general lien for balance due, Miss. 450 extends to advances and charges against any goods belonging to o-miers of stored goods, Mich. 353, N. Y. 553 may hold goods for all legal demands against owner, Mich. 372, A'. Y . 576 none for other indebtedness, .47-A;. 30 on goods remaining after partial delivery, Mass. 343 of pledgee superior to warehouseman's, when, Ky. 276 when rights of bona fide purchaser not affected by, W}-o. 836 consignee has, extent of, Ohio, 628 on freight for storage, Ohio, 632 of warehousemen not impaired by decree in case of lo.^^t warehouse receipt, Pa. 694 charges for inspecting grain a lien thereon, Kan. 235, Minn. 397, Xeb. 530 may he waived by special contract, N . H . 542 none attaches if contrary to terms of the contract of bailment, . . . .Neb. 537 may be created by delivery of warehouse receipt or bill of lading. Mo. 458, Pa. 688 holder of warehouse receipt has, Neb. 507 xuhere bailee converts property he may set off amount of his lien, N. J. 548 property may be sold to satisfy, Gal. 37, N. Y. 553 expenses of sale, a lien on proceeds, Conn. 77 remedy for enforcement of not exclusive, N. Y. 555 INIXEX. HH;j References to laws are pritUed in rmmm. Those to deciHwns arc in i/'. r>77 warehouseman's superior to chattel mH^. Max.s. 346 bailee may recover full value for, Conn. 78 894 INDEX. References to laws are printed in roman. Those to decisions are in italics. LOSS BY FIRE, pagr extent of warehouseman's liability, Tex. 769 warehousemen not responsible for, if reasonable care be used, Cal. 38, 44, Mo. 4GS, Xeb. 519, Okla. 664 duty of warehouseman in case of, Ky. 264 degree of diligence required, N. C. 609 when warehouseman liable for, Minn. 390 when warehousemen not liable, 111. 139, Ind. 1S7, Ky. 264 warehouseman to use his best judgment in case of fire, N. C. 609 not to take suggestions from bailor or others as to means of jsreserva- tion, A'. C. 609 duty to remove ivhiskey from warehou-'^e during night-time, Ky. Ill warehouse employees present at a fire during night-time not obliged to rescue goods, Mass. 343 evidence as to accumidation of property near by, receivable,. . .N. C. 610 warehouseman liable where presence of goods in warehouse due to his negligence, Minn. 437 dangerous surrounding conditions; loss must result therefrom. Miss. 451 evidence as to refining ivorks near ivarehouse excluded, Mo. 495 not liable unless negligence be shown, Ala. 14, Ga. 112, Kan. 253, La. 301, .V. Y. 580, Pa. 699, Tenn. 755, Tex. 768 burden of proof on plaintiff, Mass. 347, Pa. 701, Tenn. 755, Tex. 769 warehousemen not liable for, if vigilance be used, Mich. 360 facts constituting negligence, Ore. 684, Tex. 769 facts constituting gross negligence in case of, X. D. 626 notice to be given to owner, Ky. 264 facts stated which should have gone to jury on question of negligence, \. Y. 581 statement by ivarehouseman that goods are not in his possession con- stitutes negligence, Tenn. 155 valid stipulation in bill of lading against liability for, Tenn. 758 where warehouseman attempts to excuse non-delivery on this plea he has the burden of proving absence of negligence, N. D. 626 notice disclaiming liability for, when valid, Me. 313 when action for goods destroyed must be brought under the contract, Mass. 344 depositor may recover against railroads if negligence be shown, re- gardless of latter s contract with tvarehousemen, Cal. 57 evidence that watchman was of intemperate habits, receivable, Mass. 347 warehousemen liable if of incendiary origin, Cal. 57 insufficient declaration in case of, Pa. 700 when opinion evidence receivable, Ma. 11 . failure to sell within reasonable time not proocimate cause, Ala. 14 facts constituting contract of insurance, Pa. 699 valid claim for storage charges up to date of fire, Ala. 12 carrier liable for, Mass. 344 INDKX. 805 References lo lawfi are printed in roman. Those to decUions arc in Ualiai. LOSS BY THEFT. See also STOLEN GOODS. i'a< negligence, A'. }'. .Wi when reputation of bailee not in (',s.s7/r, I 'a. 7\)ri penalty for larcenj^ from warehouse, Wis. SI 7 what defendant must i>how to exonerate himself, .V. Y . r»S.'} protection bij watchman, question for jury, .V. Y . 5Sl when defense of, cannot be interposed, Colo. 71 LOSS BY WATER, what not reasonable care in attempted preservation iij goods \Id. 32S unprecedented rise of river, Mo. I'.M question of negligence one for the jury, I'n. (i'J*.) LOSS OF PROPERTY, liability of warehousemen for, rule stated, Mn.^s. 3 If) warehousemen need not fihow precise manner of, Muss. :il() LOSS OF WEIGHT, burden of proof, Ga. 113 LOST PROPERTY. See UNCLAIMED PROPERTY ; ABANDONED PROPERTY. MACHINERY, grain may be run through, when, Mo. lO:? MAGISTRATES, may seU property left with mechanics for repairs, S. C. 7J} MANUFACTURING COMPANY, cannot act as a warehouseman, Ind. '200 MARKS. See BRANDS AND MARKS. MAYOR, and board of aldermen to have control of warehouses, Miss. 440 MEASURE OF DAMAGES, of property damaged while in storage, rule slated, N. C. Oil place of injury is a factor in, I"d. 20') ordinary rule where property converted, 111. 173, Mass. 347, N. Y. oSG, R. I. 710 when conversion willful and when not; rule stated, Minn. 4as rule where property converted was held awaiting better jiricc.t, Im. 303 the purchase price does not always govern -^ • ^ • •'>^'''' interest allowable from date of dimand T/a. 1 13, .\ . ) . ."iSO average price where market fluctuating •''•''• -^•* usual ride as to, applies in spite of stipulation in bill of lading ft.riug damages, ^""'- ''"^^ value of bailee's special property, '"*• '"•* 896 I^■DEX. References to laws are printed in roman. Those to decisions are in italics. MEASURE OF DAMAGES— Continued. page where bonds are lost, is value at time of theft, Md. 329 when on pro rata basis to goods rescued, Md. 328 in case xvhere article delivered is of inferior quality^ Kan. 253 value on date of demand, Ind. 205 value of property at the date of conversion, Ky. 278 ivhere taking not tortious, ///. 173 MECHANIC, when property left with, for repairs may be sold, S. C. 724 MINING, a mining corporation cannot issue warehouse receipts, Ind. 207 MINNEAPOLIS, warehouses in, where grain mixed, declared public warehouses, Minn. 384 "MINNESOTA GRADES," of grain to be established, Minn. 398 MISDELIVERY, constitutes conversion, N. Y. 583 loarehott semen liable in case of, A'^. I^. 584 due to misinformation from former owner of imrehouse, Mass. 345 if not to bailor or his order it constitutes, Ky. 277 if made on sampler^s ticket, ///. 172 to one holding unindorsed bill of lading, Cal. 56 MISDEMEANOR, violation of certain sectioios of warehouse act, declared to be, N. Y. 556, Okla. 667, S. D. 739 penalty for commission of those defined in warehouse act,. .Minn. 414 refusal to obey subpoena of board of commissioners Okla. 673 issuance of fictitious warehouse receipts and bills of lading de- clared to be, N. Y. 559 neglect or fraudulent conduct of grain inspector, Okla. 669 assuming to act as a grain inspector, Okla. 669 the unlawful breaking of seals, Minn. 405 to state false grade or weight of grain in warehouse receipt, Minn. 411 MISFEASANCE, exemptions in bill of lading not valid against, Colo. 73 MISJOINDER OF PARTIES, in case for conversion, effect, Kan. 250 MISSING PROPERTY, the proprietors of cotton press liable for missing cotton, La. 302 VMiK INDKX. 807 References to laws are printed in roman. Those to decision are in italicH. MISTAKE, where property delivered through mistake rcplovii, will li,.,. . . . -Mich. 350, I'a. G92 m issuing duplicate warehouse receipts, good defense, Ohio, Or).-) property lost hy, when not incompatible with ordinani care, MnJ. :}"ir, warehousemen liable for innocent mistakes in delivering in-ojicrty, N. Y. 584 MIXING OF GRAIN. See COMMINGLING OF GRAIN. MIXTURE OF SPIRITS, United States entitled to fair proportion of, for taxes due, Mass. :H2 MOB, when goods destroyed by warehouseman's negligence must be shown. Ark. 32 MONEY, person intrusted with, as advances against property represented by warehouse receipts, i^Ij 3jg MORTGAGE. See also CHATTEL MORTGAGE. effect of segregation of stored goods, CqI 55 may maintain action against warehouseman for conversion,. . . .Cal. 50 mortgagee in possession of personal property deemed bailee, when, Ore. 680 NAME, warehousemen cannot lessen liability by change of, Ki/. 274 goods standing in wrong name, when tcarehouscman not liable for misdelivery, l/a^,^ 345 NATIONAL BANK, under U. S. Rev. Stats, may hold icarehouse receipts as collateral, Ohio, 654 NEGLIGENCE. See also IMPUTABLE NEGLIGENCE; GROSS NEGLIGENCE ; GROSS NEGLECT. defined, fla. 95, R. I. 712 facts constituting, 1 r^-. 31 warehousemen liable for loss or damage resulting from,. . . .Okla. 665 liable for damages, the result of X. C. 009, Tex. 768 warehousemen not liable in absence of, Wis. 827 the loss or injury must be connected with, Mis.gence A'. //. .541 must be shown to hold irarehousetnan liable Ind. 204, Minn. 390 bailee cannot by contract lessen his liability for negligence, 1'/. 775 67 898 INDEX. References to laws are printed in roman. Those to decisions are in italics. NEGLIGENCE— Continued. page stipulations against in bill of lading void, Colo. 73 Con/i. S2, D. of C. 91, La. 307, Mass. 350, Me. 314, Tenn. 759 punishment of warehousemen guihy of, Mo. 470 in failing to deliver promptly, loss by fire following, Minn. 437 must be shown to hold warehouseman liable for loss by fire, Kan. 253, N. Y. 580, Tenn. 755 fa^ts constituting, in case of loss by fire, Ore. 684 facts tending to show, Tex. 769 ichen false .statement that goods are not in warehouseman's possession amounts to, Tenn. 755 what degree of, must be shown where goods injured while in cold storage, Pa. 700 allowing brine pipes to drip, held to be, Minn. 438 a question of fact for the fury, Minn. 437, N . Y . 581, N . Y . 582 questions for court and jury, Ga. 104 there must be none in cose of loss by accident, Ky. 278 must be shown ivhere goods destroyed by mob, Ark. 32 burden on plaintiff to show, Ky. 278, Mass. 346, Pa. 699, Tex. 769 burden of proof on plaintiff throughout, N . Y . 583 if it he not alleged but defendant sets up manner of loss, burden is on defendant, Mass. 346 misdelivery a conversion, N.Y. 583 what the defendant must prove, N.Y. 583 of carrier cannot be imputed to owner, Miss. 451 whe7i failure to inspect goods does not constitute, Cal. 58 presumption of, if warehouse collapses, N. Y. 582 hability for, cannot exceed declared value of the goods, Cal. 36 storing of powder constitutes, Colo. 70 liability for injuries to visitors at warehouse, Cal. 62 NEGOTIABILITY. See WAREHOUSE RECEIPTS ; BILLS OF LAD- ING. NESTING, of tobacco forbidden, penalty, Ky. 269, Va. 789 NEW PRAGUE, declared to be a terminal point, Minn. 429 NIGHT, if fire occur at, warehouse employees not obliged to rescue goods, Mass. 343 NOTICE. See also .\CTUAL NOTICE. under warehouse act, rule governing \"^'ash. 803 of sale for storage charges must be given, manner of, Conn. 76, la. 215, Ky. 258, Me. 310, Mich. 356, N. C. 604, R. I 707. S. C. 719, Wash. 802, Wyo. 834 copy of, to be kept when freight sold for charges, Ohio, 633 INDEX. 899 References to laws are printed in roman. Those to decutions are in italics. NOTICE— Continued. ,.^og of sale of freight for charges, how given, Ohio, (iSl of sale for charges, bonded warehouses, Ga. 99 statutory notice of sale for chargei^ must be given, .... hid. L'O'J, la. 'J 10 221 what constitutes, to warehouseman of adverse claim of title to gotuls offered for storage, ^ j) c^.t how to be given owner of receipt of property, Ohio, (WJO rate of storage cannot be changed by a posted notice, 6'a. 1()9 to be given when grain is not to be stored, Xeb. 522 to be given owner where property left without directions, . . Xelj. 505 carriers obliged to give to consignee, Kan. '2'M to consignee as to true ownership of property, Ohi(», 028 when recordation of chattel mortgage is not, A'y. 271 when recordation of chattel mortgage constitutes, Ma. 11 to vendee or pledgee of goods by warehouse receipt of real owner's title, Wis. 828 facts constituting insufficient notice to warehouseman of pledge, Pa. 698 of grain being out of condition, publication of, Kan. 246, Minn. 300, Xd). 519 of sale of damaged grain, Kan. 231 to be given where demand for property is made by one not holding receipt, X. Y. 561 to be given owner if goods destroyed by fire, Ky. 204 of loss by fire, what sufficient, Ky. 278 disclaiming liability for loss by fire, when valid, Me. 313 to be given owner, when known, of receipt of unclaimed property, Wa.sh. S03 to be given when possible to owner of unclaimed property, Mich. 302 to be given of sale of unclaimed property, Minn. 375, 378, Xeb. 506, Vt. 773, Wash. 804, Wis. 811 required when perishable property sold, Wa.sh. 806 of irregularity on a warehouse receipt, followed by inquiries, effect, X. y. 597 where a warehouse receipt is both issued i7i the name of and signed by the president of ivarehouse company, this constitute.^, .V. }". 596 of unpaid purchase price and tax must appear on warehouse receipt, Conn. 80 of non-payment of purchase price must appear on receipt, Ky.2H\.Minn. 439 what constitutes, on warehouse receipt of unpaid purchase jrrice, Ky. 280 of advances made against stored grain must appear on the ware- house receipt, Miim. 380 of assignment to be mailed assignee or transferee, D. of C. 86 in case of pledge, '" 1 ~ 1 of acceptance or rejection of compensation for erection of ware- house on carrier's right of way, Minn. 110 issuance, revocation, etc., of warehouseman's license to be pul)- lished, ^lass. 334 900 INDEX. References to laivs are printed in roman. Those to decisions are in italics. NOTICE —Continued. page of attachment to be given owner by warehouseman, Mich. 359 of appeal from chief inspector of grain, Neb . 529 NUMBERS, warehouse receipts to bear consecutive numbers, Minn. 387, Mo. 464, Okla. 660, Neb. 512, S. Dak. 733 OATH, statement under oath to be made by warehousemen on request, Okla. 666 of appraisers where property to be sold for storage charges, Wyo. S34 to be taken before weighing leaf tobacco, form of,. .N. C. 607, Va. 793 of tobacco inspector, form of, Mo. 482, Ohio, 637 of tobacco inspector, where filed, Mo. 482 of chief inspector of grain, 111. 136, Kan. 233, Mo. 472, Neb. 516, Okla. 667 of assistant grain inspectors, Minn. 395, Neb. 516, Okla. 668 of members of committee of appeals, 111. 148, Neb. 529 to be taken by menibers of board of appeals, Minn. 427 of railroad and warehouse commissioners, 111. 151 OBJECT, the real object of a transaction to be considered, III. 162 ODORS, injury by, to goods in cold storage, Ind. 204 ONUS, on defendant after prima facie case made out, Ind. 204 OPINIONS, in regard to safety of warehouse, difference between and statements of facts, iV. Y. 587 OPTION, the holding of an option to buy does not constitute a sale, Minn. 432 ORAL AGREEMENT, ichen evidence of, receivable, warehouse receipt, la. 224 ORDERS ON WAREHOUSEMEN, ichen title passes by, Cal. 61 an order for "balance due," sufficiently definite, Mass. 349 inference that a non-negotiable receipt was issued, Cal. 60 ORDINARY CARE. See also REASONABLE CARE; WATCHMEN. defined, Ala. 7, Ga. 104, Minn. 433, Neb. 536, N. Mex. 550, N. Y. 565, S. C. 726, Tenn. 753, Wis. 827 warehousemen only boimd to the exercise of, Ark. 30, Cal. 36, Del. 85, Ind. 201, Mass. 340, Miss. 450, Mo. 491, Okla. 675, Pa. 696, Tex. 767, Vt. 775 INDILK. yOl References to laws are jyrinted in romnn. Thosr In dcdaiom arc in ilaJlt-n. ORDINARY CARE— Continued. p^^oe does not impose duty of closely inspecliiig stored casLs, Ctil. 58 how same determined, (Jliiu O.'iO care of own property, no criterion, 1 /a. 7 lack of, when goods stolen, /v";/. 272 want of, in one particular, effect, i /a. 7 liability of warehouseman when knoivn not to have any knou'lcdyr of tobacco, ,V. C. Gil removal to another place of storage, equally safe, not violative of, Conn. 78 a question of fact for jury, A'. }'. .005 questions for court and jury, Mo. 491, Ohio, G5() improper charge to jury, C'a. 113 correct instruction to jury, ///. 101, .l/o.s.<(. ,'J45 proprietors of bonded warehouses obliged to exercise, V. 1'. 571 evidence of custom not conclusive as to, Minn. 4'.i3 ORDINARY DILIGENCE. See ORDINARY CARE. defined, Ga. 102 OUT OF CONDITION. See GRAIN ; CONDITION. OVERCHARGING, for elevating grain, a misdemeanor, X. V. 5."j7 OVERPOWERING FORCE, if goods taken by less than, bailee liable, La. 303 when good excuse for failure to deliver on deman/l, La. 302 facts insufficient to constitute, La. 302 where loss by, warehouseman must show diligence, La. 302 OWNER, warehouseman holds for, C'a. 105 may examine warehouses, Ind. 189 receipt must be issued to, In. 224 notice to be given to, of receipt of property, ( )hio, 030 to receive notice where property left without directions, Xch. 505 may examine property and warehouse books, Nob. 510 when depositary may notify true owner that he holds his goods, Cal. 35 of tobacco to approve sale of, M<>- 4 5 has right to examine stored property, Mich. 300, Mo. 470 warehouseman must obey directions of, Kan. 250 unlawful for warehouseman to disobey directions of, Minn. 39S delivery by bailee to bailor, after notice of claim of, conversion, Tex. 7G7 remedy of, where propertv fraudulently hypothecated or sold. Ohio. 030 protected where warehouseman sells stored grain Minn. 434 delivery to alioays a good defense, t/«- 1'^. M >•''■'<■ 452 may compel delivery of his goods stored by another, Tex. 700, U'ts. 825 902 INDEX. References to laws ate printed in roman. Those to decisions are in italics. OWNER—Continned. page how far factor, shipper or agent considered owner of goods in his charge, Me. 308 rights of, where property pledged or deposited by factor or other agent, Me. 308, N. Y. 558, Ohio, 629 ^protected where factor pledges warehouse receipt, La. 304 rights of, if dissatisfied with grain inspection, 111. 143, Kan. 248, Neb. 522 personally liable for storage charges, S. C. 721 warehouseman's lien extends to all legal demands against, Mich. 372, JV. Y. 576 entitled to surplus from sale for storage charges, la. 217, Mass. 337 to receive notice of disposition of unclaimed property,. . . .Mich. 362 when entitled to balance from proceeds of sale of unclaimed prop- erty, Mich. 364, Neb. 507 grain not to be removed without authority of, Minn. 382 OWNERSHIP. See also OWNER. no presumption of, from possession by factor, broker, etc., La. 298 names appearing in bill of lading not conclusive as to, Aliss. 453 PACKAGES, ivarehousemen not bound by statements as to contents of sealed pack- ages, N.Y. 590, N. D. 622, Wis. 829 opening of, by bailee, larceny, Conn. 78 bailee not bound to know contents of, Pa. 696 PACKING, warehousemen liable for, when, N.Y. 563 PARAGRAPH, warehouse receipts must be paragraphed for hypothecation, La. 305 PAROL EVIDENCE. See also EVIDENCE. receivable to explain an ambiguous warehouse receipt, Va. 796 admissible to show that ivarehouse receipt was issued by one as agent. Ore. 685 when receivable to interpret ivarehouse receipt, Kan. 253 when not admissible to vary ivarehouse receipt, III. 181, Ind. 207, 224, A^. Y. 589, Tenn. 758 admissible to explain signature to warehouse receipt , Minn. 445 not receivable to vary contract in warehouse receipt, Minn. 444 receivable to explain meaning of terms in receipt, Ind. 207 receivable to explain term "cold storage" in warehouse receipt, N'. Y. 599 not receivable to vary bill of lading so far as it is a contract, la. 225 admissible so far as bill of lading is a receipt, Ind. 209, Me. 314 to what extent receivable to vary bill of lading, Mo. 497 admissible to show that goods, represented by bill of lading, were never received, N. C. 612 admissible to vary terms of bill of lading, Ore. 686 INDEX. 903 References to laws are printed in roman. Those to decisions are in ilalirs. PAROL EVIDENCE— Conllnued. I'AOB ivhen not receivable to show time of deUvrri/, f/„ yiy when receivable as to oral agrecmcnl, /„ ooi PARTIAL DELIVERY. See aho- DELIVERY. lien on balance of goods remaining Ma,S for unlawful disposition of goods, bonded warehouses, (Ja. 100 for unlawful sale of stored property Mass. 334, Mont. 502, X. D. 022, S. Dak. 717 those provided in warehouse act not exclusive of civil remedies, Md'. 318 for fraud on part of consignee, Neb. 532 for fraudulent appropriation of merchandise by factor or agent, Nob. 531 for breaking into warehouse, Ind. 197, 198, Mich. 307, Olii.., CI.-), Wis. ,S17 for embezzlement by warehousemen, Fla. 93, 111. 15S, Mich. 370, WU. 818 for larceny by warehousemen, S. Dak. 730, Wis. 817 for failure of commander of vessel to keep record of tobacco shipped, Va. 790 for crime of arson, ( )re. OSO for burning warehou.se, Mich. 300, W. Va. SOS, Wis. SIG for burning property to injure in.surer, Wis. 817 against forging tobacco inspector's receipts Ohio, 012 for being party to unlawful sale for storage charges, X. C. 605 for violation of laws pertaining to tol)acc() X'^. C. 60S for excessive storage charges or discrimination by railroads,. .S. C. 723 imposed upon railway companies for failure to construct side tracks, S. Dak. 741 for improper issuance of receipt of lionded warehouse, Ky. 271 for failure to make report to railroad and warehouse connnissiou, 111. 154 for cheating and swindling by warehousemen, Ind. 197 for burglary of warehouse, Ohi(j, 644 for using weights and measures not proved, Minn. 422 for neu;lect to procure standard weights and measures,. . . .Minn. 423 for interfering with state weighmaster or assistants, 111. l.')7, Minn. 391, Xeb. 531 for using false weights Ky. 207 for failure to deliver property upon return of warehou.sc receipt, Xeb. 514 stdute impofting them upon warchouscnwn conftlitulional Ore. OSO failure to refer to, in- title of warehous^e act does not render xame un- constitutional, Ore. 6S6 for refusing to obey subpc^na of l^nard of transportation Xeb. 527 for reftisal to obey subpcrna of board of commissioner Okla. 673 for failure to obey subpoena of board of railroad and warehouse commissioners, I"- '•'>'. ^'o- '"7 906 INDEX. References to laws are printed in roinan. Those to decisions are in italics. PERISHABLE PROPERTY, page warehousemen's duty in case of storage of, N. C. 605 warehousemen have Hen on, Minn. 378 when and how may be sold, Cal. 36, Colo. 65, la. 217, Kan. 227, Mass. 337, Mich. 358, Minn. 377, N. D. 619, S. C. 720, Wash. 806, Wis. 811 sale of, for freight charges, Ala. 4, Ohio, 633 notice required before sale of, Wash. 806, Wis. 811 owner liable for charges if sale of produces insufficient fund, S. C. 721 disposition of, when sale cannot be effected, S. C. 721 sale of, bonded warehouses, Ga. 100 live stock is, Ohio, 633 PERMIT, county auditor cannot iss7ie warehouse 'permit to manufacturing corporation, Ind. 201 PETITION, averments in, for warehouse site on railway, S. Dak. 742 PETROLEUM OIL, how to be stored, R.I. 709 not to remain in open air or on sidewalk R.I. 710 warehouse act extends to petroleum stored in barrels, Pa. 690 PLACE OF STORAGE, jury to decide whether it was safe, Mass. 348 PLEADINGS, necessary averments as to furnishing storage, III. 163 ivhat must be shoivn to maintain action against ivarehouseman, Mass. 345 declaration must allege ivarehouseman's refusal to deliver, Ala. 19 there must be no variance as to ground of refusal to deliver, Ore. 683 when declaration alleges refusal to deliver and answer sets up new matter, burden on defendant, Mass. 346 when plea of statute of limitations not inconsistent, S. C. 727 what complaint should contain in an action for conversion, Ind. 202 in an action to acquire a warehouse site on railroad, S. Dak. 743 allegation of ownership of receipts equivalent to allegations of owner- ship of property, Cal. 51 when declaration mu.'^t allege indorsement of warehouse receipt to plaintiff, Ala. 19 complaint must aver title in plaintiffs' vendor, Ala. 19 in trover complaint must aver ownership, Ala. 13 no departure by showing original bailment in action of detinue, D. of C. 89 complaint may contain counts charging defendants both as irare- housemen and carriers, Ala. 11 insufficient declaration where goods destroyed by fire, Pa. 7C0 what indictment under warehouse act must contain, Ky. 257 INDEX. 907 References lo lawn are printed in romnn. Those to derisions art- in italicn. PLEDGE. See also PLEDGEE. paob defined, If i-„ ^10 requisites of, W'ix. S'2S the elements of a bailment in case of, ]\\ \'a. SIO bailee has no right to pledge bailed i/roperl!/ Kan. 25:^ by bailee, is a mversion Colo. ti'J pledgor no right to possession unless he keeps his undertaking,. .Mo. 191 substitution of other goods, lien lost, Wi.1. H'i\ substitution of other propcrtij, when pledge not affected .Minn. 437 pledgee not deprived of his rights b>j fraudulent removal of the guod.t by pledgor, Ala. 14 may be made by warehouse receipts, Colo. 70, Ga. 112, lis, Mich. ;}7;^. M,>. 400 may be make by assignment of warehouse receipt, La. 296, Mo. 45S, Va. 778 may be made by cotton notes, Mo. 49G of warehouse receipt representing mixed grain, }finn. 430 warehouse receipt .sufficient to give pledgee possession, .Minn. 430 of warehouse receipt to secure usurious loan, Ga. 119 by a fictitious receipt, warehouseman protected, Pa. 09S receipts of private warehouseman against his own goods, effect, Ind. 204 may be made by warehouseman by his own receipts, Ala. 15, Mich. 373, Minn. 441 affidavit to be made where warehouse receipt used as collateral, La. 2S7 by pledgee of warehouse receipt, original pledgor protected, Mass. 34S, ll'a.s/i. 807 m.ade by pledgee, instruction to jury, D. of C. 90 factor cannot pledge principal's property for his own debts La. 300 factors may pledge goods intrusted with them uiuler the factors' act, N. Y. 5X0. U'/.v. 828 factors may pledge goods entrusted with them, to the extent of their interest, La. 301 , Tenn . 754 made by factor, damages Ky. 276 factor may pledge property entrusted to him X. Y. 5.58 by factor, when invalid, Ga. 109 by factor if unauthorized, owner protected, I. a. 2S9 by factor or agent, owner's rights, Me. 308 rights of owner where factor pledges, X. V. 55S p'.edgee may maintain action in his own name, N. Dik. 719 by parol and temporarily without possession, when valid,. . . .Tenn. 751 right to sell, notice, '" ' ' ' rights of pledges in case of default, La. 2^ > right of pledgee to sell implied where not expressly given Tex. 7(>S pledgee need not wait for mo.'it favorable market, to .fc//, Tex. 768 unauthorized sale by pledgee is conrersion, N. \ . .5X0 not defeated by delivery of goods in settlement of antecedent debt, Pa. 703 examination of pledge by experts in case ot default I.a. 2.88 mMy be made by bill of lading, ^y- 277 908 "INDEX. References to laws are printed in roman. Those to decisions are in italics. PLEDGE — Continued. page of stolen goods not valid, Wash. 807 facts constituting ineffectual notice to warehouseman, Pa. 698 PLEDGEE. See also PLEDGE. may maintain trover, Wis. 831 rights of, lohere bill of lading held as collateral, TF. Va. 810 pledge of warehouse receipt by, owner protected, Mass. 348 if he takes a receipt without indorsement equities are let in,. . . . Ind 208 of receipt fraudulently issued, protected, Kan. 230 lien of, superior to warehouseman's, when, Ky. 276 PLEDGOR. See PLEDGE; PLEDGEE. POLICE, protection of grain, when to be furnished by warehousemen, Minn. 405 POLICE POWER. See also CONSTITUTIONAL LAW. act prescribing storage charges held an exercise of, ///. 182, Mo. 493, N. Y. 601, N. D. 626 inspection of grain a proper exercise of, III. 164 state cannot erect a grain elevator under authority of, Minn. 446 a stockyard company not subject to legislative control, N.J. 549 POOLING, agreements between country warehouse^, Minn. 413 contracts of, between warehousemen prohibited, S. Dak. 731 POSSESSION, bailee has right to, of bailed property, Ga. 101 warehousemen must have possession of j roperty when receipt issued. Pa. 702 bailor must be in lawful possession or bailee's lien does not attach, Wyo. 837 essential to continuance of lien, ///. 166 lien lost by surrender of, Miss. 450 if regained lien not revived, III. 166 if possession of goods be regained lien attaches for former storage, Mich 372, N. Y. 576 executory contract of bailment does not give right of, Wis. 825 what constitutes taking possession by transferee of receipt, a question of fact, N Y. 592 if lost by legal process warehouseman not liable, Va. 779 POSTAL CARD, revenue stamp not required on, Pa. 702 POSTING, of copy of warehouse act required, ... .111. 145, Neb. 524, Okla. 666 of stored grain, when, Neb. 514 INDEX. j)Q9 References to laws are prir^ted in rornan. TUose to decisions are in italics. POWDER, storing of, constitutes negligence ,. , '''^"*' ' C olo. 70 POWERS, creditors bound to knoxo powers of a corporation, j,^ ^01 PRE-EXISTING DEBT, when a good consideration for transfer of warehouse receipt, .... Cal. 59 PREFERENCE, when assignmetit of warehouse receipt is not, Qal 60 PRESUMPTION, 7ioneas to oxmership from possession by factors, brokers, etc., . . U 29S that bonded goods are in charge of government oHiaal. U^i^v' Vl'" of knowledge of the contents of a bill of lading from acceptance, Tenn 7.VJ from failure !o deliver on part of bailee, ^y^,, ^.jq of negligence if a warehouse collapse, " y y kw2 PRESUMPTIVE EVIDENCE. See EVIDENCE. PRIMA FACIE CASE, what must be shown, y v rcr against warehouseman, how made, Ga. 10.5, J//.s.s. 4,51, A'. y\ 570 PRINCIPAL AND AGENT, when relation of, must exist to impute negligence, Qa.' 102 effect of death of principal, .....' Qa 108 PRIVATE PERSONS, may erect elevators if carriers refuse to handle grain at legal rate, Minn. 383 PRIVATE WAREHOUSES, storage of bonded goods in, presumption as to offical cotUrol,. .Matis. 342 PRIVATE WAREHOUSEMEN, how receipts of must be marked, L;i. 294 Tex. 764 negotiability of their receipts, ' _ /„^ OQS receipts of quasi-negotiable, /// 174 ■issuance of receipts by, against own jyropcrty to secure own debt, Ind. 207 warehouse act not applicable to, 'tcx. 764 PRIVITY, must exist to impute negUgence, Ga. 102 PROBATE COURT, appointment of tobacco inspectors by, Ohio, 636 PRODUCERS, not bound by warehouse act, S. Dak. 740 PROOF OF LOSS, failure to make, within time stated in insurance policy, Ky. 279 010 INDEX. References to Imvs are printed in roman. Those to decisions are in italics. PROPERTY. See also UNCLAIMED PROPERTY. page limit to value of, owned by warehouse companies, Mich. 361 PROPRIETORSHIP, change in proprietorship of warehouse, effect, N. Y. 569 what constitutes prima facie case against neiv proprietor, N. Y . 570 holding warehouse in official capacity no defense where goods injured, N. Y. 569 PROSECUTING ATTORNEY, duty to criminally prosecute warehousemen, when, III. 144 PROSECUTIONS, under warehouse act, how brought, Okla. 673 PROXIMATE CAUSE, failure to sell ivithin a reasonable time is not, Ala. 14 failure to gin cotton at time agreed, Ala. 8 warehouseman's statement that he did not have the goods, subsequent loss by fire, Tenn. 755 facts stated which did not constitute, N. C. 610 question for fury, Colx). 70 PRUDENCE, purchaser of warehouse receipt must exercise ordinary jyrudence, Minn. 442 PUBLIC, duty of warehousemen to, Xr/. 274 warehousemen must serve the entire piiblic, Ky. 274 PUBLICATION. of the rules and regulations of the railroad commissioners, N. D. 613, S. Dak. 731 of rates of storage, to be made each year, 111. 138, Mo. 467, Neb. 518, Okla. 663, S. Dak. 738 of rules governing inspection, weighing, grading, etc., of grain to be published, Minn. 399 of notices when grain out of condition, Kan. 246, Mo. 469, Neb. 519 of notice of warehousemen's licenses, qualifications of, etc., Mass. 334 must be made of notice of sale for storage charges, Cal. 40, N. Y. 554, N. C. 604, Wyo. 834 of notice of sale of unclaimed property, Neb. 506, Wis. 811 PUBLIC BUSINESS, the business of warehousing is, III. 161, 182, Mo. 499, N. Y. 601, N. Dak. 626 PUBLIC ELEVATORS, defined, Ky 359 PUBLIC GRANARIES, defined, Ky. 259 INDEX. Cjll References to laws are prmted in rornan. Tho.c to decisions arc in iUUic. PUBLIC POLICY, contracts of corporalions against, void, j^^j .^^^^ PUBLIC USE, when u,e of ground for warehouse a public use, . . w„ .^, the taking of land for a warehouse site is not, V.V.'.V.'.v'. }'' 50«) PUBLIC WAREHOUSES, defined by statute, Colo. G3 Kan. 239, Ky. 259,' X.' I).' ilKj; oUa.' (^..^.'s! 'nai; 731 subject to legislative control, ^jj^^i . any person may e.stablish f, ""'' J. , ^ , , ' Conn. 71 when must be kept open for business, Mi,,,,, .no, Okia Od.i to be inspected, (^ 1 ). L- ' -{ i in all cities of over fifty thousand inhabitants, ..." M., v, i erection of near railways, application for permission,. .. .'.'.Minn AIG manner of selecting sites for, on hues of railroads, 8. Dak 7-11 elevators and storehouses declared to he, ' .Xeb 509 all warehouses in Duluth, Minneapolis and St. Paul wliere grain is mixed declared to be, ^jj,,,^ r^^, proprietors must procure license, Xcb 510 owners may examine stored property and warehouse books, Xeb 510 grain need not be placed in, 'j^jj,,,, ^^j must display sign, " ' " ' ' "q^^^j^' -,j PUBLIC WAREHOUSEMEX. See also WAREHOUSEMEX. defined by statute, Me. 310, Mo. 4G0, X. D. 613, S. C. 715, Tex. 7G1 judicial definition of, jn jp , how corporations authorized to do a warehouse business may be- ^o™''' .• X. C. 602 d^i^^ies of' Minn. 3,S(5, Mo. 4G2 must give bond, Mass. 332, Mo. 455, 461, Xeb. 511, X. D. 615, Okla. 6.57^ S. C. 715, S. Dak. 732, Tex. 7GI bond of, amount, condition and liability upon, X. ('. 602 must procure license and file bond, Kan. 239, Minn. 384, 407, Okla. 657, S. Dak. 731 doing business without a license, penalty, Miim. 3S5, Mo. 462 to procure certificate from county court, Tex. 7()1 may be licensed by the governor, Miis.-;. 332 license of, how obtained, to be conspicuously posted, X. D. 61 1 statements and reports to be made by, Okla. G03 must keep books of entry, S. Car. 718 books, records and papers of, subject to inspection, Mass. 334, Mo. 476, X. C. 603, Okla. 672 statements and reports required of Minn. 3.S9 required to make weekly statements Xcb. ."iOO weekly statements to board of railroad and \wirehouse commis- sioners, ,,,,,.,,.,....,,,,,,,, Mo. 467 912 INDEX. References to laws are printed in roman. Those to decisions are in italics. PUBLIC WAREHOUSEMEN— Con^mwed. page required to publish rates of storage each 3'ear, Mo. 467 may be required to insure stored property, Mass. 333, N. C. 603, S. C. 716 not required to receive grain when they have insufficient room, Mo. 464, Okla. 659 must receive for storage grain offered, Kan. 241 duty as to preservation of grain Okla. 664 prohibited from mixing different grades of grain, Mo. 463, Neb. 520 not to mix grain without owner's permission, Minn. 386 may run grain through machinery, when, Mo. 463 shall not receive grain until it is inspected and graded, Mo. 464 not permitted to deny the storage, S. Dak. 736 not responsible for loss by fire if reasonable care be used, . . . Okla. 664 to furnish scales, when, Mo. 479 warehouse receipts of, what to contain, N. C. 603 may issue warehouse receipt for own goods, Tex. 764 cannot issue receipt against own property to secure own debt, . . . Ind. 207 notice of sale of goods for charges, Mass. 338 not permitted to enter into combination with railroads, Mo. 464, Okla. 660 not to discriminate between persons, Minn. 386, Neb. 511 determination of title of goods stored with, Mass. 339 duty of, when in possession of perishable or dangerous property, N. C. 605 duty of, when in possession of worthless property, N. C. 606 PUNISHMENT. See PENALTIES. PURCHASERS, when rights of bona fide purchasers not affected by liens, Wyo. 836 PURCHASE PRICE, toarehouse receipts must contain notice oj its non-payment, Ky. 281 notice of non-payment on warehouse receipt, effect, Minn. 439 QUI TAM ACTIONS, against warehousemen, Ill_ 155 RAILROAD COMPANIES. See also CARRIERS. constmction of warehouses on the right of way of, N. D. 617 side tracks for warehouses to be provided by, N. D. 618 RAILROAD COMMISSIONERS, authority conferred upon, S. Dak. 731 duties and powers of, S. Dak. 731 rules made by, to be printed and published, S. Dak. 731 to fix storage charges on freight, S. C. 722 warehousemen to make reports to, S. Dak. 734 to cause warehouses to be inspected, S. Dak. 734 may subpoena witnesses, ...,,.,,,, S. Dak. 734 INDKX. 013 Reference , to laws are printed in roman. Those to deci^iom arc in italics RAILROAD COMMISSIONERS— Con/ i«Mcc/. ..^.JB moneys collected by, to be paid into stiile trea-sury, S. Uuk. 7.V> attorney general to be the attorney for, S. Dak. 7;j}j to test scales in grain warehouses, S. l)uk 739 to furnish copy of warehouse act to warohousenien S Dak. 739 to provide standard weights and nica.surcs S. Dak. 739 to select warehouse sites, when, <5 Dak 741 when to fix location of warehoases, g Dak 741 decision of, regarding warehouse sites final, when, S. Dak. 711 RAILROAD AND WAREHOUSE COMMISSION, appointment and term of office of commissioners, Ill i,-,() jurisdiction of, HI j;^ all grain elevators and warehouses under control of, Mum. 40G to have general supervision of grain interests, Minn. '.V.)0 qualifications of members, oath, bond, 111. i.',i board of railroad commissioners to be known as, Mo. 459 seal of, 111. 15.5 records of, 111. 156 annual reports to governor, III. 152 appointment of arbitration committee to be made by Mo. 475 secretary of, to be registrar, Miim. 390 to fix salaries of members of board of appeals Minn. 428 to make rules governing inspectors of grain, Mo. 473 to establish grades of grain, 111. 147, Mo. 475 to visit and examine warehouses, Mo. 476 may require statements of warehousemen, . . 111. 151, Minn. 389, Mo. 470 to make rules governing the inspection of grain, Minn. 395 to receive complaints of unfairness in inspection of grain,. . .Minn. 412 may examine books and witnesses, 111. 153 to make rule for county warehouses, Miim. 408 to appoint chief inspector of .grain, Minn. 304 to fix compensation to be paid to inspectors of grain, 111. 149, Mo. 473 its right to inspect grain a legal one, ///. 164 to adopt rules regulating weighing of grain, III. 157, Minn. 394 state weighmaster to be appointed by, Miiui. 393 to fix compensation of weighmasters, 111. 156, Mo. 480 property, books, records, etc., of warehousemen subject to exam- ination by, Mo. 476 inaction of, not a constniction of Inir binding on the courts, ///. 164 may designate points to be terminal points, Minn. 429 may pronounce warehouses fireproof, effect, Miiui. 430 appeals to, from inspector of grain, Minn 307 may cancel licenses, ^"- '•'••^ action of, reveiwahle by the courts, tvhen and how ///. 163 acts of, not judicial, '"■ ^^^ duty to report violations of law to attorney general, ///. 164 58 914 INDEX. References to laws are printed in roman. Those to decisions are in italics. RAILROAD AND WAREHOUSE COMMISSION— Conimw€d. page shall prosecute those violating law, Ill- 152 attorney general to be attorney for, Minn. 399 RAILWAYS, warehouses located near tracks of, permission to build,. . . .Minn. 416 RAILWAY COMPANIES. See CARRIERS. RAIN, damage as result of unusual rain, reasonable care, Md. 328 RATES, maximum, for selling leaf tobacco, S. C. 721 maximum rate allowed by law for handling grain m elevators, Minn. 383 RATES OF STORAGE. See also STORAGE CHARGES. prescribed by statute, 111. 138 to be published by public warehousemen each year, 111. 138, Kan. 245, 263, Mo. 467, S. Dak. 738 RATIFICATION, hji icarehousemen of illegal sale, Ark. 30, Ky. 275 REAL ESTATE, warehouse corporations may purchase and lease, Ohio, 634 REAL OWNER. See OWNER. REASONABLE CARE. See also ORDINARY CARE. correct instruction to jury as to, Md. 327 , lack of where damage due to flood, Md. 328 RE- ASSORTMENT, of rejected tobacco, when allowed, Ohio, 640 RECEIPTS. See also WAREHOUSE RECEIPTS. of private warehouseman against own goods, creditor protected,. .Ind. 204 given by drayman, recitals in, III. 165 issued by one not ivarehouseman and goods not stored, void, III. 180 statute governing the issuance of ^•arious kinds of receipts used as collateral, etc., La. 286 of all kinds and bills of lading, etc., declared negotiable, Ore. 677 form of, to b given by samplers o1 tobacco, Va. 782 to be given by newly appointed samplers of tobacco, to prede- cessors, ♦^a- '81 penalty for issuance of illegal receipts by samplers of tobacco, Va. 784 issued by debtor, not a warehouseman, to secure debt, not a warehouse receipt, Ind. 208 INDEX. r)]r^ References to laws are printed in roman. Those to dccidons arc in italics. RECEIPT OF GOODS, in action on bill of lading evidence admissUdc !o show ginnU nevrr received, ... , ., , ,.,.,. ^ld. .1.11 bailee s liability commences ui)on i- .,-., ' ' i\\l . Zi z RECLAMATION, of property after beinjj; sold for freight charges, ohi,,, fi:}3 claims for, when to l)c made, j^,.' .,-.,, RECORD, of all warehouse receipts to he kep , j., .,j., of railroad and wareliouso conuuissioii, HI j^jj of all ori,!j;iual and substituted seals to be kept by inspectors, .Minn. -134 of proceeds of sale for storage charges, how to be kept, Mich. 3.-)S, |{. I. 7(17 to be kept of unclaimed property sold y^ 77.} of all property received by warehousemen to be kept Mich. 3.->4 RECORDER OF DEEDS, declaration must be filed with, j.j -i j j RE-DELIVERY. See DELIVERY. REDEMPTION, before sale for storage charges, how made, X. '\'. 554 REGISTER, to be kept of all freight received, < )l,i,, c.-jq to be kept by warehousemen, ] improper deliverij to defendant in suit, icarehouscman iiablr, . . .V }•' rilO xvill not lie against warehouseman who has Mivered on a valid re- ' "f^V : Pa.im prohibition against removal of goods without return of receipt does not apply in case of, y^^' ^ ^g REPORTS. See also ANNUAL REPORTS. to be made daily by clerks of chief inspector of tobacco, Md. .'}22 of chief grain inspector to be filed monthly with auditor of stato^ . . Kan. 235 of gram inspectors to be filed monthly with auditor of state, Kan. Zii to be made quarterly by chief inspector of tobacco, '. . Md. 323 to railroad and warehouse commission, penalty for failure to make, III'. ir,.t to be made by warehousemen to railroad commissioners, S. Dak. 73 J to be made by warehousemen to board of commissioners,. .Okja. G03 of country warehouses to railroad and warehouse comniis.sion, Minn. 413 from country warehouses, to whom made, Minn. 413 REPUTATION, of bailee not in issue in case of theft, ivhen, Ta. 795 RES GESTM, when warehouseman's statements constitute, Col. 51 RES JUDICATA, in case actions at law and in equity, A' y. 273 RESTRICTIONS, governing the location of warehouses, S. Dak. 740 REVENUE LAW, no tax on postal cards notifying co7isignee of arrival of gotxh Pa. 702 REVIVAL, of lien with regained possession, UiV/i. 372 REVOCATION, of licenses, how made, Mo. 401 of license of warehousemen, when, .Minn. IOC). M<>. 470 RIVER, unprecedented rise in, act of God, U.». 494 what reasonable notice of umis}ial rise of, Md. 328 918 INDEX. References to laws are -printed in roman. Those to decisions are in italics. RULES, PAGE of railroad commissioners to be published, N. D.613, S. Dak. 731 publication of rules governing inspection, weighing, etc., of grain, Minn. 399 governing country warehouses to be posted, Minn. 408 for the weighing of grain, 111. 157 SAFE DEPOSIT, right to open only in presence of both lessees, questioned,. . . .D. of C. 89 bailee must not retain duplicate key, Cal. 52 lessor not entitled to know value of articles stored, Cal. 53 lessors bound to ordinary care, Cal. 52 lessor must use due care in their selection of employees, Cal. 52 ST. PAUL, warehouses in, where grain mixed declared public warehouses, Minn. 384 SALE, what constitutes, Ala. 7, III. 159 for storage charges, when and how made, Cal. 40, Colo. 65, Conn. 77, D. of C. 86, la. 215, Ky. 258, La. 295, Mich. 356, Miss. 448, Mo. 455, N. J. 546, R. I. 706, S. C. 719, Wash. 802 for storage charges, bonded warehouse, notice of, Ga. 98, 99 tlie requirement as to notice of sale for charges must be strictly com- plied with, Colo. 66 ivhen a sale for charges is excessive, Minn. 435 prohibition against, when warehouse receipt outstanding, .... Va. 778 by bailee conveys no title on purchaser, N. H. 542 a contract for sale of grain constrxied, .storage an incident, .... Minn. 444 of unclaimed property, when and how made, Fla. 92, Mich. 363, Minn. 375, Mo. 486, Xeb. 505, X. D. 619, Vt. 773, Wash. 804, Wis. 811 of perishable property, when and how, Ala. 4, Mass. 337, Mich. 358, X. D. 619, S. C. 720 of perishable property, bonded warehouses, Ga. 100 penalty for unauthorized sale by warehouseman or carrier, X^. Y. 560 by carrier or warehouseman prohibited, X^. Y. 559 of colored grain prohibited, penalty, Minn. 420 tobacco to be sampled prior to, Va. 7S8 of unclaimed tobacco, how made, Va. 791 pledgee has right to sell whether stated in agreement or not, .... Tex. 768 rigid to sell pledged property, III. 171 by pledgee authorized, when, Ind. 197 pledge of warehouse receipt in legal effect a, III. 179 when factors may refuse to comply with owner's order to sell, . . Tenn. 754 no implication of conversion therefrom, Cal. 48 INDEX. out References to laws are printed in roman. Those to decisions arc in Ualicn. SALE — Continued. pagk no implication of, from a bailment, /'a (Vjo of property for freisrht, \vhei\ and liow inmU', Ohio, 031 of freight for churges, disposition of proceeds Ohio, tVM of goods without consent of holder of receipt or liill of ludiii'^, Mo. 457, X. I). G22, S. Duk'. 747 when the mixing of grain makes the transaction a sale, Ohio, G40 of grain when out of condition, I„d. 188 Xol». ."iU) holding an option to buy does not constitute, Minn. V.i* agreement to deliver flour for wheat deposited, constitxites, Ind. HH) ivhere wheat commingled and flour to be returned, Mo. 491 when commingling of goods ejfects a sale, ///. ics, Minn. 432 of explosives after dark, prohibited, Mont. '»()2 order upon warehousemen, bona fide purchaser protected, Cal. 49 by warehouseman of stored grain, owner protected, Minn. 434 essentials of sale by way of warehouse receipt, Ga. 1 IG when transfer of a receipt constitutes sale by way of mortgage,. . . .III. 175 of warehouse receipt without indorsement, title transferred,. . . .Minn. 441 dealers holding grain in railroad cars, constitutes, I ml. 199 holding option to purchase, when a sale, la. 219 made unlawfully by warehouseman, indictment, Mo. 498 by bailee constitutes conversion, Ki/. 275 assent in writing must be obtained, \la. 2 of bailor's goods, effect, Ky. 274 of stored goods prohibited, Conn. 75 penalty for unlawful sale of deposited property, M;uvs. 334 of goods while in loarehouse, Ga. lOG, Ind. 19G ratification of unauthorized sale, Ky. 275 SAMPLE, grain may be sold by, Kan. 23S, Minn. KM) of grain to be furnished by chief inspector, Kan. 234 of tobacco to be selected by inspectors, Ohio, G40 of tobacco must represent package, . .Ohio, G43 tobacco inspector prohibited from appropriating, Ohio, G41 mutilation of tobacco samples, Ky. 2G7 of tobacco, how done up, Mo. 483 of grain to be furnished by chief inspector, Minn. 398 SAMPLERS. See also INSPECTION OF TOBACCO. manifests and receipts to be furnished by sampler of tobacco, . . Va. 784 removal of, Va. 7S9 when only half fees to be paid to, ^ a. 78,5 to keep records of reprized packages, penalty for failure, Va. 790 to sell unclaimed tobacco Va. 791 not to deal in tobacco, penalty, Va. 78.5 fees of, for sampling tobacco ^ a- 785 liability of, terminates on deliverj' and acceptance of tobacco, Va. 785 920 INDEX. References to laws are printed in roman. Those to decisions are in italics. SAMPLER'S TICKET, page not a ivarehouse receipt, ///. 172 SAMPLING, manner of sampling tobacco, Va. 782 SCALES, right of inspection of, 111. 142, Kan. 230, Neb. 521 subject to inspection and test, Mo. 470 in public warehouses subject to inspection and test, Okla. 666 in grain warehouses to be tested by railroad commissioners, S. Dak. 739 proprietors of tobacco warehouses to furnish, Va. 789 to be furnished inspector of tobacco, Mo. 484 to be furnished by warehousemen, when, Mo. 479 carriers to furnish, when, Mo. 479 under state weigher exempt from jurisdiction of city weighers, Minn. 402 penalty for refusing state weighmaster access to, Minn. 394 must be sealed, Minn. 393 SCALE TICKETS, not warehouse receipts, la. 223 purchaser of, not protected, when, la. 223 SCHOOL FUND, when proceeds of sale of unclaimed property paid into, Neb. 507, Wash. 806 SEAL, of railroad and warehouse commission, 111. 1 55 record of all original and substituted seals to be kept, Minn. 404 the breaking of, a misdemeanor, penalt}-, Minn. 405 SEALERS OF WEIGHTS AND MEASURES, who to be for state and counties, deputies, Minn. 421 SEGREGATION, what constitutes, and effect of, CaJ. 55 essential to jyrotect purchaser of portion of goods, Cal. 55 ivhen warehousemen estopped to set up want of, Cal. 56 SEPARATE BIN, grain to be stored in, if owner desire, .Mo. 462, Neb. 512 if grain stored in, receipt shall so state, Ind. 185 SERVICE, of notice of sale for storage charges, how made, Mass. 336, Mich. 356 SETTLEMENT, must be with "party aggrieved," Ky. 267 with customer must be an actual settlement, Ky. 267 INDEX. 021 References to laws are printed in roman. Those to decisions are in italics. SHERIFF, vAc.K goods stored by, warehouseman protected, Ma. VXi may break outer door, I /. 77 "> to make sale of unclaimed property, Ncl). 'AH> liable if he alloics goods to be sold for storage charges, Cat. 54 SHIPMENT, of wheat oxit of state, when receipt not returned, ivarehouscman crimi- nally liable, /a. 218 SHIPPERS, facilities which railroads must furnish to, S. Dak. 7ir» when side tracks must be constructed for, S. Dak. 710 to affix cards to cars containinu; grain, effect of failure,. . . .Minn. i(M'> how far considered owner of goods, Me. 30.S SHIPPING ORDERS, violation of, by warehouseman followed by loss constitutes conversion, Wis. 826 SHIPPING RECEIPT, not to be given until goods actually on boat, Mo. 457 SHORTAGE, may be one-fourth of one per cent, Kan. 249 SIDE TRACKS, to warehouses to be provided by railways, N. D. 618, S. Dak. 740, Wis. 814 when owner of warehouse may demand construction of Minn. 414 when railroads must construct, for shipper.';, S. Dak. 740 failure to agree upon location of, effect, Minn. 415 agreement as to compensation for, Minn. 415 to be kept in repair by railroad company, Minn. 415 penalty for failure to construct, f^- I'^ik. 740 ivhat must be shown in an action to compel carrier to operate,. . Wis. 814 SIGNATURE, penalty for forgery of warehousemen's, Ma.s.s. 335 "SPECIAL," grain in separate bins to be so marked, Okla. 6.5S SPECULATION, • . .. by tobacco inspectors prohibited, penalty, < >l>io. (j:W in grain in own warehouse prohibited, ''' ' '•' STABLE KEEPERS, lien of, yUun.3S0 STATE, . suits under warehouse act to be in the name of, Neb. 528 922 INDEX. References to laivs are printed in roman. Those to decisions are in italics. STATE— Continned. page authority of, to regulate grain warehouse business iinll not permit state to erect warehouses, Minn. 446 STATE AUDITOR, bonds given under warehouse act to he filed with, S. Dak. 738 STATEMENT, of condition and management of warehouse to be furnished when- ever required, 111. 151, Minn. 389, Neb. 525 requirement of the constitution as to statements l^y warehouse- men, " 111. 126 to be furnished board of trade by warehousemen, Kan. 244 by public warehousemen to be posted weekly, 111. 134, Kan. 244, Ky. 262, Minn. 389, Neb. 509 to be made to registrar daily, 111. 134, Ky. 262, Minn. 389 to be posted by public warehousemen, Okla. 663 of proceeds of sale for charges to he filed with county treasurer, Mich. 358 to be made in case of sale of unclaimed property, la. 215 STATE TREASURER, to hold all fines and penalties collected under warehouse act, S. Dak. 735 to receive all moneys from inspection of grain,. . .Minn. 399, Neb. 530 to keep records of sales of unclaimed property,. . .Mich. 365, Vt. 774 to be sealer of weights, Minn. 421 STATE WEIGHMASTER. See V>^EIGHING OF GRAIN; GRAIN. STATUTE OF FRAUDS, transfer of property by bill of lading complies with, Mont. 504 promise to pay storage charges not tcithin, Ala. 12 STATUTE OF LIMITATIONS, when it begins to run in cases of bailment, la. 221, S. C. 726, Tex. 767, W. Va. 809 begins when bailee holds title adversely to bailor, Ga. 104 begins from date of demand and refusal, D. of C . 89 begins to run on date of last item of account, Ga. 104 when not inconsistent in pleading, S. C. 727 STEALING, penalty for stealing from warehouse, Mich. 368 STOCKHOLDERS, liability of, N. Y. 600 STOCKYARD, analogy between business of and warehousing, N.J. 549 INDKX. [)■>:] References to laws are printed in romau. Those to ,lrri.sio„s an- in italics. STOLEN GOODS. See also LOSS BY 'J-IIIOFT. pa.jk cannot be validhj pledged, |j„j./, m„~ one in possession of must proi^e innocence or disjmn'c identity of ^'"'^^' Cal. 58 STOLEN PROPERTY, innocent redelivery of, by bailee not conversion, Cotui. 7<) STOPPAGE IN TRANSITU, right of, may continue after goods stored, s. Dal:. 719 right of ceases upon assignment of liill of lading, Mr. :u \ STORAGE, when tobacco inspectors may rent storajje room, M<1. 32r> when a contract is one of storage and not of carriage, ///. ] 02 of grain, contract for construed, ///_ 1 07 STORAGE CERTIFICATES. See WAREHOUSE RECEIPTS. STORAGE CHARGES. See also RATES OF STORAGE. IN GENERAL. bailor personally liable for, Ga. 1 10 need not be a warehouseman to be entitled to, Il'i/o. 837 when contract for an entirety, .V. }'. .')73 must be uniform, Mo. -102 maximum rate fixed by statute, .' Kan. 245, Minn. 390, Neb. 518, X. I). GIG, Okla. GG3 limit of, in country warehouses, Minn. -108 maximum rate for handlini:; jjrain in elevators, Minn. .'583 act prescribing held constitutional, ///. 127, 182, .1/0. 499, .V. Y. 601, .V. D. ()]7, 620 statute fixing, being penal must be strictly con.ttrued S.C. 725 warehouseman not to be made defendant when he claims only, I), of C. 87 when a contract to pay will be implied, S. C. 727 when court will fix at a reasonable rate, ///. IG."), .V. }*. 5G0 goods received free of storage, charge can he made, when, ///. 179 tender of, may be waived by wairhouseman, Minn. 435 when tender not necessary, D. of C. SS must be paid before replevin brcvght, Arh. 31, D. of C. 89, Kau. 252 when not recoverable, Tcttn. ITA if paid twice warehouseman liable for, Ky. 275 schedule of, to be published annually, Kan. 245, Minn. 390, Mo. ACu, Nob. 518, Okla. 663, S. Dak. 7.as rates to be posted semi-annually, Ky. 263 warehousemen may hold goods until paid, Ga. 109 warehousemen may hold goods until paid Mo. -^^^ warehou.semen have lien for, Conn. 76, la. 215, N. J. 516, N. Y. 553 cannot be changed by notice in warehou.< the legal title of phdyd property remains in pledgor A'.V- '^~ parol reservations as to, when valid, Tenn. 1 5-1 928 INDEX. References to laws are printed in roman. Those to decisions are in italics. TITLE IN GENERAL — Continued. page when none in bailor, delivery to true oivner a good defense, Vt. 775 judgment gainst bailee conclusive as to, Ala. 10 bailee has reasonable time in which to investigate title to goods held, N. Y. 568 if bailee alleges it to be in another than bailor he must prove it, . . .Ore. 682 to stored property, how passed, N. C. 603 when title in dispute bailee must defend himself at law, N. J. 548, N. Y. 571 when question of title of stored goods in issue, riglits of ware- housemen, N. Y. 551 determination of title to property held by public warehousemen, Mass. 339 of loarehouse act embraces sections against fraud, Mo. 498 none conveyed to purchaser from bailee, N. H. 542 pledgee of bill of lading has sufficient, to recover of one who converts the property represented, Mass. 350 of stored grain remains in holders of (he receipts, Kan. 239 to stored property passes by sale of warehouse receipt, Minn. 441 to goods passes by indorsement of warehouse receipt, Me. 309 legal title passes by assignment of bill of lading, Me. 314 passes by delivery of order on warehouseman, when, Cal. 61 BAILEE CANNOT DENY BAILORS TITLE. notice of adverse claim, Ala. 9 cannot set up title in himself, Kan. 250 cannot show ownership in third person, N . Y . 567 bailee may show assignment since bailment, Me. 31 evidence tending to impeach bailor's title not receivable, La. 299 TOBACCO. See also TOBACCO WAREHOUSES ; INSPECTION OF TOBACCO; LEAF TOBACCO, establishment, construction and discontinuance of warehouses for the storage of, Va. 780 who are tobacco warehousemen, Ky. 266 duties of tobacco warehousemen, Ky. 267 manner of sampling, weighing and branding, Va. 782 maximum rates for selling, S. C. 721 compensation for selling at auction, Ky. 268 auction sales of, to be free and open, Ky. 270 bills for tobacco sold to be furnished seller, S. C. 721 where tobacco of planter to be stored, Va. 788 mutilating samples, penalty, Ky. 267 hypothecation of, forbidden, exception, Ky. 268 rejections, when permitted, fees, Kj'. 269 liability for violation of provisions relating to, Ky. 269 form of oath to be taken by weigher of, N. C. 607 punishment for receiving without consent of owner, Va. 790 penalty for not delivering on deinaiid Va. 785 penalty for the delivery of the wrong tobacco by sampler,. . . .Va. 785 INDEX. r)29 References to laws are printed in roman. Those I,, decision, are in ilalirs. TOBACCO—Continwd. penalty for delivering without consent of ow.uT v- '-i1 penalty for .sendin- to wrong wiireiiouse, .... ' v " -e approved l)y owner, ' j^,,^ .^r when unclaimed to be sold, manner of, 'y.[ In? penalty for false branding, [' y||' ' samplers to furnish manifests, y^^ _ , if unsound or " western," what sampler'.s receipt must state,. .' Va' 78^ loose tobacco to be weighed by samplers, Vj, ^J^.^ to be weighed on scales of tobacco warehouseman, . . . . . . . ' " ' '\:, 7^^ act does not apply to mainifactured tobacco .' [[ yj,' 7^9 to be protected by open policy of insurance bv proprietor of ware^ ^°"^"' Va.788 TOBACCO WAREHOUSES, annual tax placed upon, graduation of, X. C. 60S sworn statement to be made for tax purposes, X. c (iOS bill of charges to be rendered seller, • X (' 607 charges of, regulated by statute, X. C 607 TORT. See also INJURIES. conversion a tortious act, q^jJ ,,, waiver of, in action in assumpsit for conversion ///, kjo an action on a contract cannot be turned into one in tort, Ohio, d'A) liability of warehousemen for injuries received by /wrsom coming iu warehouses, j'^^ — . action in, will not lie where goods destroyed by fire, Maji.H. 3.M TOWN COUNCILS, may pass ordinances regulating the storage of kerosene R.I. 711 TRANSFERS, record of transfers of warehou.se receipts to Ije kept, l.i 2\2 TRANSFER OF TITLE, bailees consent to, effect, fia j).*, TRESPASS, action of, against one for entering a warehouse, pleading.^, ]'t. 77.'» act of ivar does not constitute, Ga. 112 TRIAL, by judge or jury where warehouse to be erecte •l.'i;J 59 930 INDEX. References to laws are printed in roman. Those to decisions are in italics. TROVER, PAGE warehouseman may maintain, Ala. 14, S. C. 728 when bailee may ynaintain, against owner, S. C 728 conversion the gist of the action, Ala. 13 conversion shown by demand and refusal, D. of C. 89 demand must be made, Ga. Ill actual conversion must be shown, Ga. Ill complaint must contain averment of ownership, Ala. 13 when not maintainable against warehouseman, Ala. 13 when it will lie against bailee, improper use of bailed property,. . 17. 77G action of, ivill lie against bailee if he fail to deliver on demand, . .]'t. 776 right to mainta'.n not effected by commingling of goods,. ....... .III. 169 action of, where grain commingled, Mich. 371 pledgee cf warehouse receipt may maintain, Ga. 112, TT'^'s. 831 will lie against one holding under second receipt, Cal. 56 if goods attached while bailed, owner cannot maintain, Tenn. 754 will not lie where goods taken by armed force, Ala. 13 TRUE OWNER. See OWNER. TRUSTEE, if dealing with factor, cestui que trust protected, La. 301 UNCLAIMED GOODS, sale of, for charges, statutory notice must be given, la 221 UNCLAIMED BAGGAGE, delivery to warehouseman, Minn. 378 UNCLAIMED PROPERTY. See also ABANDONED. disposition of, Vt. 773 procedure in case of sale, Fla. 92, Neb. 505, Wash. 804, Wis. 812 when may be sold, Ark. 28, Cal. 44, Minn. 375, Mo. 486, N. D. 619, Vt. 773, Wash. 804, Wis. 811 affidavit, inventory, etc., in case of sale, Minn. 376, Wash. 804 disposition of proceeds from sale, Mich. 364, Minn. 376, 379, Neb. 506, S. C. 723, Vt. 774, Wash. 805 county treasurer to hold balance of proceeds of sale, Cal. 45, Minn. 377, Neb. 507 when proceeds of sale to belong to county, Minn. 377 title to proceeds of sale, to vest in state, when,. . .Mich. 365, Vt. 774 when balance of proceeds to go into school fund, Wash. 806 when owner entitled to balance of proceeds of sale, Mich. 364, Wash. 805 warehousemen have lien on, Minn. 378 making charges out of, la. 215 notice of sale of, how given, Mich. 362, Minn. 378, S. C. 723, Wash. 803, Wis. 811 notice of intention to sell, how given, Wash. 804 INDEX. 031 References to Inws are printed in roman. Those to dcamom are in italics. UNCLAIMED PROPFAITY -Conlinud. X . 1 ^. . PAGE inventory to be filed ui case of sale, ■^Vw 81' return of sale, how made, y^-^^' j^ji^ justice of tlie peace to make disposition of proceeds Win! H 1 ii duty of officer makinj;; sale of, ' y^^^ y- , officers' fees in case of sale of, y^^■^^ ^[.^ record to be kept of, .'.'.'. V.V.Vwa.sh .' WKl books of the sale of, to be kept for inspection, S. C. 721 sale by samplers of unclaimed toliacco, how made, Va" 791 carriers may sell, when and how, c; q 70;^ UNFAIRNESS, complaints of, in inspection of grain, to whom made, Minn. 412 ULTRA VIRES, if contrary to statute or public policy are void, /„^. 2()1 no defense where a bank is running a warehouse and is guilty of con- version, fii jf>,3 UNLAWFUL SALE. See SALE. UNSALABLE PROPERTY, disposition of, bonded warehouses, Ga. 101 USAGE. See also CUSTOM. evidence receivable as to, y ,,./, ^j \ evidence of, to explain terms of a receipt, /n^/ 2(J7 effect of, in interpretation of warehouse receipt, Mich. 371 bailee's liability affected by, Tcnn. 7.53 USURY, advances made by warehousemen to depositors, V. )'. ,')7 I pledge of warehouse receipt to secure usurious loan, da. l ly VALUE, limitation as to, in bill of lading, valid, Cnl. 62 statement of, in bill of lading, binding on shipper, Conn. 81 VARIANCE, when not material in case of date of conversion, Cat. .50 VENDOR'S LIEN, fully considered, Mo. 492 effect of, where warehouse receipt used as collateral La. 2S.S preserved where non-negotiable receipt given, Mo. 492 preference over warehouseman's claims, I^. 29.5 lien of, not destroyed by goods being stored in bonded warehouse. Mo. 492 VIGILANCE, if warehousemen exercise, they arc not liable for loss by lire. .Mich. .300 VOID, warehouse receipts arc, if i.-^sucd under gambling eonlraci la. 223 932 INDEX. References to laws are printed in roman. Those to decisions are in italics. VOUCHERS. See BILLS OF LADING; WAREHOUSE RECEIPTS. WAIVER, PAGE what constitutes when goods returned ivithout bill of lading, Ga. 120 when statement of warehouseman constitutes waiver of his lien, . . CaL 54 WAR. See ACT OF WAR. WAREHOUSES. See also PUBLIC WAREHOUSES; WAREHOUSE SITES. classified, 111. 128, Neb. 510 all in cities of over fifty thousand inhabitants declared public. Mo. 454 synonymous with storehouse, Mo. 491 what is, within meanivg of penal statutes, Ohio, 644 need only be reasonably and ordinarily safe, Miss. 450 m,ust be reasonably safe, R. I. 712 need not be fireproof, Tenn. 753 presumed to be real property, Cal. 51 control of, by mayor and board of aldermen, Miss. 449 to be visited and examined by board of railroad and warehouse commissioners, Mo. 476 for storage of cotton may be an inclosed parcel of land, Tex. 761 consignments to, when regarded a:i temporary, Mo. 489 restrictions as to location, S. Dak. 740 where a loarehouse collapses negligence is presumed, N.Y. 582 for the storage of tobacco, establishment, construction and dis- continuance of, Va. 780 change of proprietorship; request to withdraw goods, effect, .... A'^. Y . 569 delivery to carrier by depositing in, S. C. 726 tax on grain elevators, Tex. 765 operating in official capacity, no defense where goods injured, . . N. Y. 569 use of ground for, when a public use, Mo. 499 construction of, on right of way of railroad, N. D. 617 penalty for burning, Mich. 365, Vi. Va. 808, Wis. 816 penalty for stealing from, Mich. 367 embezzlement from, deemed larceny, Mich. 368 corporations for the purpose of constructing may purchase or lease real estate, Ohio, 634 WAREHOUSE ACT. See also POSTING. who are warehousemen, within meaning of, Pa. 689 does not apply to private warehousemen, . La. 294 copy to be posted in warehouses, 111. 145, Ky. 266, Wyo. 470, Neb. 524, Okla. 666, S. Dak. 739 section of, to be printed on warehouse receipts, La. 296 not to apply to certain villages and towns, N.Y. 556 Act of 1876 construed, Minn. 441 does not affect right to make special contract of storage, etc.. Wash. 802 use of singular number in, imports plural, Wash. 801 IXDKX. M3 References to laws are jrrinted in romnit. lliosc Id jeb. 525 duty of county attorney to prosecute under, Okla^ 667 duty of attorney general and prosecuting attorneys in ca.se of . , ,. f Mo. t< I violations ot, duty of prosecuting attorney in cases of violation.. . Mo. 4- 1 penalty for violation of sections referring to toijacco.. . . . . .N. «- . wis provisions of imposing penalties on icarehousemca constxluUonal. ^^^ liability for violation of, damages recoverable for neglect of duty uiuler. . . . . . . -_^. •_• • ^ ■^ Ky '>!'' Md 31S, Minn. 40.5, Mo. 47S, N. \. ."i-A .S. (. /!« applies to warehouseman issuing receipt against his o«-n goods. ^^^ , , , . . Okla. 673 prosecutions under, how lirougUt 934 INDEX. References to laws are 'printed in roman. Those to decisions are in italics. WAREHOUSE ACT— Continued. page individuals may prosecute for damages aside from, 111. 155, Mo. 478, Neb. 524, 528, N. Y. 555, Okla. 673 appropriation to carry out, Minn. 400 WAREHOUSE CERTIFICATES. See WAREHOUSE RECEIPTS. V/AREHOUSE COMPANIES, may borrow money, how, La. 290 "WAREHOUSED," construed, Mass. 342 WAREHOUSEMEN. See also WAREHOUSE COMPANIES; PUB- LIC WAREHOUSEMEN. WAREHOUSEMEN. See also BAILEE. defined, Ind. 193, Mich. 352, N. Y. 563, Tenn. 751 who deemed, Ky . 255 a depositary for hire, Ga. 96 liability of, in general, La. 298 liability of, coextensive ivith posses.sion, Mass. 340 uifien the liability of attaches, S. C. 727 authority to incorporate, Mich. 360 duty on receipt of consignment, Kan. 250 duty of, when property consigned to, Wis. 811 must keep a record of all property received, Kan. 257, Me. 309, Mich. 354, Minn. 375, Neb. 505 to file monthly report with auditor of state, Kan. 234 ivho are, within meaning of ivarehouse act, Pa. 689 must be regularly engaged in warehouse business to i.ssue warehouse receipts, Ky. 255 owe duty to the public, III. 161, Ky. 247 mu.st give bond, Minn. 379 must file bond with clerk of district court, La. 291 must procure certificate from district court, La. 291 act providing that they should not be made defendants in certain cases, held unconstitutional, N. Y. 552 representing oneself to be, liability, Pa. 690 what constitutes prima facie case against, Miss. 451, A'^. Y. 565 a.s-.s/^/ie' of, assumes obligations of, HI. 169 guilty of conversion if he ships in a manner contrary to instructions and loss follows, Wis. 826 prohibited from selling goods stored without owner's consent, Wyo. 832 liability for violations of provisions concerning tobacco, Ky. 269 who are tobacco warehousemen, Ky. 267 state must be party plaintiff in action for improper exercise of power, Kan. 240 cannot lessen liability by change of name, Ky. 274 a manufacturing company cannot act as, Ind. 200 INDKX. 93r> References to laws are printed in roman. Thoav to dccinionn are in italicn. WWIEIIOVSEMEN—Contimwd. ,.a„b change in ownership of warehouse, when purchaser not liable fur misdelivery, ,)/„«, :i.|-, combinations with carriers or others, unlawful III. Ml, Mo. U'A when lial)le for carryinir, Inadintj, packini,' and \nipackinj:, ..\. Y. WWJ duty of, wluMi demand made on, for property l)y person not hold- ing receipt, X. Y. 501 have lien for charges ( )rc. GTS, Pa. 70(», Wyo. s:j:j extent of lien on stored goods, Mic-h. ^')2 manner of enforcing liens, Ore. 079 may retain goods until charges paid, \lo. 4S6 must provide fire escapes, when, Muh. 305 when to hold goods subject to order of court, .\. Y. 551 prohibition against sale of stored goods, X. Y. 559 penalty for fraudulent disposition of property, Mich. 369 prohibited from tampering with stored property,. .Ind. 189, Ore. 077 if they contract to insure goods they arc liable therefor, Mo. 495 have insurable interest in stored property, Md. 329, .S. C. 728 advances by, to depositors, .V. V . 574 when liable as carriers, .V. }'. 500 when they may replevy goods after delivery, Midi. 359 duty concerning grain, Ky. 200 prohibited from mixing different grades of property together. Wash. 798 when not liable if contents of packages are not as represented, N. Y.500, X.D. 622 not to issue receipts unless .goods actually in store, Wyo. S32 must give warehouse receipts when property received (Jre. 070 prohibited from selling goods unless receipt returned, Pa. Gs9 need not show precise manner of loss of goods, Mass. 3-10 exonerated by delivery to holder of original warehouse receipt, W.»sh. 801 must keep full record of all receipts, Ind. 192 required to furnish receipt upon delivery of toljacco to them, Ohio, 041 may issue receipts against their own property Ya. 77S when may pledge grain, Ii>«i- 1^1 prohibited from hypothecating property entru-stetl to them, Ohio, 630 prohibited from hypothecating goods to greater extent than ad- vances, ." Toiin. 752 embezzlement by, penalty, \\ is. Sl.S at terminal points must protect grain in cars Miim. 405 to have tobacco inspected, ^'"- ■*•**' not liable when property taken from them l)y legal process,. . .Pa. 092 penalty for unauthorized sale of property by N. ^ • 500 must defend themselves at law ichere tUle in ismte, . .N . 1 . 570 when not liable for injury to employees, l^ '81 may appoint deputies •^'"«'- ^'' carrier not entitled to license as, • ■ ^- 298 930 lNt)EX. References to laws are printed in roman. Those to decisions are in italics. WAREHOUSEMEN— Conert]i, warehouseman not liable, .V. 1'. V.m the issuance of, with notice of adverse claim of title constitutes a conversion, X. D. 025 statements on, constituting notice of unpaid purchcu^e price,. . .Minn. 439 what sufficient notice that purchase price not paid, A'v. 2S0 warehouseman protected when he issues to one having pc^session nf goods, .V. /;. 024 issued in name of one not depositor, effect, Cal. 59 issuance to one not the real oicner, .\'. V. 5.*vS inquiries made by holder thereof, effect, \ . Y . 507 when statements in, not a contract to insure, Oa. 115 statements on, held constituting a contract of insurance .Winn. 439 implied contract of insurance passes ivith assignment of, .\finn. 441 interpretation of, warehouseman's interc.'it in the goods ///. 170 property deemed persons to whom receipt was i.s.sued, Me. 309 presumptive evidence of ownership, la. 215 of private warehousemen to be so marked Tex. 7»>-l interpretation of, copy given, .Uir/i. 371 what is not a fatal indefiniteness in, Mich. 373 conclusive evidence of their contents, Md. 315 a contract not subject to be contradicted by jiarol ///. ISl, ,Vinn. 444, Trnn. 75S parol evidence not receivable to vary '«■ -- '. A . i . .»s.» when parol evidence, admissible, '"• --■•. Ann. 2.)3 parol evidence admissible to show that jKrson issuing the recrijA acted asagent, ; ^' f"] if ambiguous, parol evidence receivable to explain • I fl. «5X» parol evidence receivable to crplain term "mid slorngr." A . } . 50S varol evidence admissible to explain signature of imr,hou.s,mnn. ^ .Miun. 445 938 INDEX. References to laws are printed in roman. Those to decisions are in italics. WAREHOUSE RECEIPTS ix general— Confmi^d. page terms open to explanation, usage, Ind. 207 description of goods must be definite, Ind. 195 must state condition of goods, Ala. 1 ichat they represent as to quality of property, etc., N. Y. 590 statements on, as to nature of goods not a warranty, Wis. 829 effect of description of contents of packages, Wis. 829 warehouseman not bound by description given on the receipt, N. Y. 590, Pa. €96 usual trade-marks are not distinguishing marks, Ky. 280 failure to state brands and marks thereon, effect, ///. 145, 175 misdescription of grain in, of no effect between the parties,. . . .Minn. 445 when brands and marks must appear thereon, 111. 144 to contain brands and marks, Wis. 821 must contain distinguishing marks; nature of Ky. 283 must deliver identical goods whcji identified by brands and marks, R. I. 713 bonded warehouses must issue, contents of, Ga. 97 withdrawal of goods from bonded warehouse tchen receipt outstanding, N. Y. 571 statements that liquor is in "free warehouse" binding on warehouse- man, A', y. 591 must be consecutively numbered, Kan. 229, 242, Minn. 387, 408, 410, Mo. 4G4, Neb. 512, N. D. 615, Okla. 660, S. Dak. 733, Tex. 762 numbering of, from country warehouses, Minn. 408 must be returned before warehouseman can sell goods, Pa. 689 charter provisions that liability should be only such as icas stated in the receipts, void, A . C. 612 effect of statement as to rate of storage, Minn. 440 holder of, must consent to removal of property represented, .... N. J. 544, S. C. 717 must be returned before surrender of foods, Mich. 355 grain not to be delivered unless receipt returned, Minn. 382 delivery without return of, warehouseman liable, Neb. 538 delivery of goods without return of, ivhen section of penal code not applicable, A^ Y. 593 grain to be delivered upon presentation of, Okla. 663 must be .surrendered on return of goods, Ala. 2, Ariz. 24 holder of, entitled to property on presentation of , . . . .- Ariz. 23, La. 293, Minn! 388, 409, Mo. 467, Tex. 763, Wash. 799 goods not to be removed, sold or incumbered when receipt out- standing, Ky. 256 selling goods wit'iout consent of holder of, penalty S. Dak. 747 prohibition against sale of property when receipt outstanding, Va. 778 must be indorsed to person demanding goods, Ala. 18 entitled to its return before delivery, Ga. 119 property to be delivered on return of, Kan. 243 delivery to one not holding, burden of proof, Miss. 452 INDEX. fi:>0 References to Imvs are printed in roman. Thosr to decimom are in italics. WAREHOUSE RECEIPTS im CKSKHKL-Continued. vaok delivery to liolder of oriiiiiiHl, exonerates warehoascmari,. . W.-c^li SOI partial delivery to be indorsed u])on, Cal. 3S, Okla. CGI, Pa. Css, S. Dak. IM, W u-,, SlO negotiation after withdrawal of part of goodx Sib. .W7 if goods be delivered when outstanding, wnrrhnu.<SI penalty for destruction or alteration of WL->. S23 how far, factor or agent considered owner of property represented. Me. 308 penalty for issuing false, as security, Colo. 07 tenants in common of grain stored in mass, Minn. 436 for grain in mass, what they represent, Me. 310 mu.st represent correct amount of grain, Minn. 410 misdemeanor to falsely state grade or weight of grain in,. . .Minn. 41 1 if grain stored in separate bin it must so appear, Ind. 1S5 posses.^ion of does not neces.^arily indicate ownership of gi>oa. 295 by a public warehou.'teman to .'/, /// ,-,. ^. j. .'j representing corn means marketable corn, . . ...... " ' '" y )' L; title to must be in plaint ill . ' . ,' When not necessary to show indorsement to plaintijj, . ""\la 11 when held to be a sale by mortgage ' j^ ,,^ scale tickets are not, ' .j'^"' sampler's ticket not eqnimlrnt to, Ul y--> iveighing lags do not co7istitute, _ '_ (.^f '' weightnaster's tickets are not, j^^ .,, receipts issued by factors are not, m 7-^ of private warehousemeti, how to ho iiiarUfd j ;, -h^I must contain a statement that necessary declaration has hoon filf.'l], X. J. 543, S. C. 716 property not actually in store, ^/^ ^^y^ when goods not originally in ivarehouse, /{,. 2S2 statute governing issuance of, deli\-ery of property upon, etc., La. 2S6 purchase price not paid, pledgee protected Colo 72 property may be pledged by ivarehouse receipt, Mo. 497 affidavit (o be filed in case of, i .^ .>S7 issued by secretary of elevator company, latter cstopi)ed to denif validity, A*„„ 230 examiiuition of pledge by experts in case of default. . . .1^. 289 pledgee may maintain assumpsit against uarehotiscman /,'. /. 713 penalty, if fraudulently made, \'„ 792 rate of interest on loans on, X. Y 552 must be paragraphed for hypothecation, . . ./^. 305 the discount of paper \M\Hpd upon, not a loan, wlicii .Mo. 4S7 not to be i.ss\ied and pledged by warehousemen unless he be the owner of the goods Wvo. 832 not affected by .vu1i.' pledge by, ineffectual, /'a. 69S pledgee taking, protected, Kan. '2110 receipts are fraudulent unless they truly represent jiroj^rty ///. Isrt holder of, cannot maintain replevin, \\'i.(> warehousemen estopped by, when, .S". Dak. 719 LOST OR DESTROYED. rights of owner, Pa. 693 action of court in case of, Pa. 691 bond to be given in case of, Pa. 694 how delivery to be made in case of, N'a. 779 conditions of bond, Pa. 695 costs and counsel fees to be paid by petitioner Pa. 695 what not an admission in case of, Ga. 120 warehouseman may be compelled to deliver, . .O'n. 119 944 INDEX. References to laws are printed in roman. Those to decisions are in italics. WAREHOUSE RECEIPTS— Continited. page NEGOTIABILITY extent of, defined, Wis. 830 defined, Wis. 820 effect of assignment of, la. 212 statute construed, Wash. 800, Wis. 830 declared so by statute, Ala. 2, Ariz. 23, Ark. 26, Cal. 38, Colo. 63, Conn. 75, Del. 83, Ind. 189, 194, Neb. 507, Wis. 813 declared negotiable and that holder has lien, Neb. 507 transferee deemed owner of the property represented, Me. 309, Mass. 333, Minn. 382, Neb. 524, N. J. 545, Okla. 677, Pa. 688, S. C. 718, Wash. 800, Wis. 816, 820 held to be negotiable paper, Kan. 230, Wis. 828 indorser's liability same as one who indorses bill of exchange, . . . .Ky. 281 same as bills of exchange, Kan. 230, Ky. 255, La. 293, Md. 315, Mo. 457, Tenn. 752, Tex. 763, Wash. 800 delivery of, equivalent to delivery of property, Ark. 32, Conn. 80, Ga. 116, Ky. 2S0, La. 304, Minn. 441 conveys clear title as against all claiming subsequent to its issuance. Wis. 822 to be negotiable in form, Mass. 333, N. C. 603, S. C. 716 if drawn to bearer it passes by deliver}-, Wash. 800 effect of notice to vendee or pledgee, Wis. 828 may be negotiated regardless of form, Okla. 676 what an indorser warrants, Mich. 354 assignor of receipt not liable, III. 178 suit by assignee, Ill- 177 when custom will not control, Ala. 20 any printed or written conditions on, declared void, Mo. 457 how transferred, Mo. 458 scale tickets are not, la. 223 by private warehousemen, quasi-negotiable, III. 174 if issued by private warehouseman against own goods, are not,. .Ind. 208 are nogotiable unless marked "non-negotiable," Cal. 59 to be marked "negotiable," Va. 778 all rights of original assignor pass to assignee, ///. 177 are not negotiable sinless declared so by slafvte, Ore. 684 any law or rule of board of trade affecting, not impaired by ware- house act, Wis. 824 are not negotiable instruments, Ala. 16, III. 177, .V. Y. 592, Ohio, 653, Tex. 770 not negotiable within meaning of mercantile law, Ore. 685 full negotiability, quaere, Conn. 81 payees and indorsers may maintain action as in case of bill of ex- change, Wis. 814 may be transferred by indorsement, 111. 144, Mo. 466, Okla. 662, Va. 778 INDKX. 945 References to laws are printed in roman. Those to dcciaiona are in Ualicii. WAREHOUSE RECEIPTS, ^KnonxmwvY-Continued. .-auk there must be both indorsement and delivery, >/„ .lyij although negotiable in terms it is merely the reprcncntativc o/ tlu- Property, ...\[a.sM. 348 warehouseman becomes bailee of each transferee, [rk. 32 from bonded warehouses, title passes, Ga. OS only pass interest of holder, W'atih s()7 transferee takes vendor's title, jl'i'.s S2<> requisites of negotiability prior to warehouse act, Ore. 084 transfer without indorsement good between the parties, Miss. 452 serves only to ward off any defenses warehousemen may have, .... Ky. 2K0 bona fide holder of, protected, Tcnn. T.W bank holding as collateral a bona fide holder, when, pa. 702 procured through fraud, innocent purchaser protected, Ala. 17 innocent holder protected, Ky. 281 delivery when receipt outstanding, penaltj', S. Dak. 74.S warehouseman entitled to bond in case of garnishment, 6'a. G97 when owner of goods protected though receipt in hands of third person, -Uo. 496 one holding receipt protected allliough depositor was not true owner, Md. 329 purchaser of receipt must exercise ordinary prudence, Minn. 442 transfer vests title in the transferee, X. Y. 591 transfer the same as bill of lading, Cal. 62 NON-NEGOTIABLE. to be SO marked, Ala. 2, Cal. 38, 43, Colo. 63, Conn. 75, Del. 83, Ga. 97, La. 293. Mass. 333, Mich. 354, Minn. 382, Mo. 4.58, N. C. 003, Pa. OSS, S. C. 716, S. Dak. 748, Tenn. 752, Tex. 763, Wi.s. 820 assignment of not effectual until recorded, Mass. 333, S. C. 718 issued to carrier, latter not liable for storage chagrcs, when,. . . .R. I. 712 facts constituting insufficient notice of pledge, Pa. 698 vendor's lien preserved, .\fo. 492 delivery must not be made except on written order of per.-^on to whom receipt was issued, Cal. '3s WAREHOUSE REGISTRAR, appointment of, Ill- 1 37 daily statements to be made to, 111. 134, Neb. 514 WAREHOUSE SITES, procedure to obtain, SI ^ak. 71 1 applicant for, to file petition, S. Ihik. 712 summons to issue in action to acquire, S. Dak. 743 amendment of petition for, S. Dak. 712 issue to be tried, what limited to, S. D:»k 71 1 railroad commissioners to select, when ami how S D:ik 711 trial, jurors and pleadings iu an action to acquire, S. Dak 74o 60 946 INDEX. References to laws are printed in roman. Those to decisions are in italics. WAREHOUSE SITES— Continued. paCxE jury may view the premises, when, S. Dale. 744 duties of board of appraisers when land condemned for,. .S. Dak. 744 pay of appraisers, S. Dak. 746 damages to be paid where land condemned, S. Dak. 745 tender of damages, how made, S. Dak. 745 extension of lands condemned, S. Dak. 744 costs of condemnation to be paid by applicant, S. Dak.' 746 verdict of jury in action to acquire, S. Dak. 744 compensation to be paid for to railroads, S. Dak. 742 WARRANTIES, that warehouse is frost proof, N. Y. 587 statements as to "fire proof" must be in contract in order to constitute, Ala. 15 false advertisements as to manner of construction of warehouse, N. Y. 587 indorsement of warehouse receipt "without guarantee," effect,. .Neb. 537 by an indorser of a warehouse receipt, extent of, Mich. 354 WATCHMEN, warehouses must be watched in a manner proportional to the risk, Tenn. 753 question as to what is adequate protection one for the fury, . . . .N.Y . 581 testimony showing intoxication of, receivable, Mass. 347 when presence of, necessary to the exercise of due care, Md. 327 WATER. See LOSS BY WATER. WEEK, depositary entitled to one week's storage for any fraction thereof, Cal. 36 WEIGHING, of leaf tobacco, Va. 793 manner of weighing tobacco, Va. 782 charges for weighing cotton fixed by statute, S. C. 725 WEIGHING OF GRAIN. See also GRAIN. requirements as to, 111. 126 state weighmasters to have control of, Minn. 393 appointment of weighmasters, 111. 156, Minn. 393, Mo. 478, Neb. 530 weighmaster, qualifications, bond and compensation, 111. 157, Minn. 394, Neb. 531 duties of weighmaster, 111. 156, Neb. 530 board of transportation to adopt rules for, Neb. 531 fees to be paid state weighmaster,. . . .111. 156, Minn. 394, Neb. 531 compensation of weighmasters, Mo. 480 weighmasters must give bond, Mo. 480 all grain to be weighed on receipt, Neb. 519 weighmasters to furnish certificates of weights, Minn. 401 INDKX. 947 References to laws are printed in roman. Those to derimons arc in ilaiics. WEIGHING OF GRMN—Continwd. i-aqe certificates of weif^lmijistors prima facie cvitlonco Miim. 101 weij!;hmasters to iceep accurate accounts of all \vei^;hinn,. . . .Miiui. KX) interference with state weigluniuster or assistantn, penalty, 111. 157, Mich. :m, Neb. Ml penalty for fraudulent weighing, Mo. ISO WEIGHING TAGS, held not warehouse receipts, (^af. (V) WEIGHMASTERS. See WEIGHING OF GRAIN. WEIGHMASTER'S TICKETS, not warehouse receipts, In. '2\\ WEIGHT, warehousemen not responsible for natural loss in weight of tobacco, Mo. 4.S5 weight per bushel of various commodities fixed by law,. . . .Minn. 424 WEIGHTS AND MEASURES, laws pertaining to, Minn. 421 standards of, to be provided, Minn. 421, S. Dak. 739 penalty for using not proved and sealed, Minn. 422 neglect to procure standard, penalty, Minn. 422 action against sealer, how instituted, Miim. 423 "WESTERN TOBACCO," what sampler's receipt to state in case of, Va. 7S2 to be so branded, ^•^- "^^^ WHARF, when inspector of tobacco to have control of, .^Id. 32.'> liability where goods placed upon rotted wharf, Wash. S07 WHARFINGER, liable where goods lost due to being placed on rotted wharf, H axh. ROT in absence of state wharfinger, inspector of tobacco ha.s <-ontr<»l nf wharves, '^***- •^'^'^ WIFE, delivery to wife of bailor on forged order, bailee liable. \ ) . rM\ WILLFUL, violation must be shoiim, before recovery of cxrmplarii damage^,, .la. 214 WILLMAR, declared to be a terminal pomt, •"'""• «-* WINONA, made a terminal point ^""" '"* 948 INDEX. References to laws are printed in roman. Those to decisions are in italics. WITHDRAWAL, of spirits through fraud, permit void, Mass. 342 WITNESSES, may be subpoenaed bj-^ railroad commissioners, S. Dak. 734 may be subpoenaed by board of railroad and warehouse commis- sioners, 111. 154, Mo. 477 may be subpoenaed by board of transportation, Neb. 526 may be subpoenaed by board of commissioners, Okla. 672 WORTHLESS PROPERTY. See also UNCLAIMED PROPERTY. disposition of, Mass. 338 warehousemen's duty in case of storage of, N. C. 606 LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES UCSOlJTf •-: imwR-. AA 000 744 330 ^