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.'<it — Tort waived.
If warehousemen have wrongfully converted property in-
trusted to their care the bailor has the right to waive the tort
and sue in assumpsit foi- the money received on the sale of the
grain. Ives v. Hartley, 51 111. 520; Leonard v. Dunton, 51 111.
482.
ILLINOIS. • 163
Change of ownership — Warehouse conducted by hank — Same —
Liability jar conversion — Ultra vires no defense.
The defendant, a national bank, took possession of a ware-
house, after default in the payment of obligations to it, as
security for the payment of such debts. The refusal to deliver
grain stored therein, to the holders of the warehouse receipts,
constituted a conversion for which the bank was liable. The
fact that, under the charter of the bank, it was not authorized
to conduct a warehouse business, is no defense. The question
is whether or not there was a conversion, and, if there were, it
makes no difference whether the bank was authorized by its
charter to conduct a warehouse business or not. German Na-
tional Bank v. Meadowcroft, 4 111. App. 630, aff'd 95 111. 124.
Pleading — Averment to furnish storage.
The averment that the appellees had kept and performed all
the covenants on their part and at all times were willing to
furnish storage for the company to the amount of one million
bushels, is not an averment, or the equivalent of an averment,
that they were at all times willing and ready to furnish the
storage that may be necessary for a business of five millions
of bushels in a year. Therefore, a demurrer to a petition con-
taining the above allegation should have been sustained. Chi-
cago, M. & St. P. Ry. Co. V. Hoijt, 37 111. App. 64; Same v.
Same, 50 111. App. 583 ; Same v. Same, 44 111. App. 48.
Warehouse commission — Action of, in depriving a warehouse-
man of his license, reviewable by the courts — Certiorari.
Where the Railroad and Warehouse Commission of Illinois
had revoked the license of defendants, alleging that they vio-
lated the law of the state, concerning the business of public
warehousemen, it was contended on the behalf of the commis-
sion, that its action in investigating the facts and determining
that there had been a violation of the law by the warehouse-
man was a judicial act involving the exercise of judicial dis-
cretion, and, therefore, was not reviewable by the courts. The
court held that this contention could not be maintained and,
therefore, it reviewed on certiorari the evidence of the Rail-
road and Warehouse Commission where it had revoked the
164 ILLINOIS DECISIONS.
license of the warehouseman for the alleged violation of law.
Cantrell et al. v. Seaverns, 64 111. App. 273.
Sayne — Warehouseman storing his own grain prohibited — No
implication of the legality of such practice derived from inaction
of warehouse commission.
It appeared that, after the act of 1871, which, among other
things, provided that warehousemen should not deposit their
own grain in their warehouses ; that the practice of doing so was
continued, and it further appeared that. the Warehouse Com-
mission knew of the continuance of this practice. It was held
that the commission was derelict in its duty, that it should have
brought such cases to the attention of the attorney general for
prosecution, and that the contention that this inaction on the
part of the commission amounted to a construction of the law
that such practice w^as legal, could not be sustained. Central
Elevator Co. v. TJie People, 174 111. 203.
Same — The right of the Railroad and Warehouse Commission to
inspect grain a legal one — Police power.
In an action by the people against one who had formerly been
chief inspector of grain, appointed by the Railroad and Ware-
house Commission, for the recovery of fees collected by him,
which he had appropriated to his own use, it was held that
such appointment having been made by said commission, pur-
suant to authority conferred upon it by the act of 1871, by
which it was created, was a proper delegation of police power
by the legislature, and further, that the provisions made by
the Railroad and Warehouse Commission, in regard to the fees to
be charged for such a collection was a proper delegation of
power by the legislature. The People v. Harper et al., 91 111. 357.
Inspectors of grain — '^Legally appointed inspectors'' defined.
The warehouse law of 1871, as amended by act of 1897, pro-
vided that 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, etc., and subject to a fine therein
provided. It was held that such inspectors, in order to be
legally ajjpointed must have received their commission pur-
ILLINOIS. IH.')
suant to the terms of the amendatory act of 1879 read in con-
nection with the original warehouse law of 1871. Public in-
spection being authorized under section 14, private inspec-
tion thereupon became unlawful. Dutcher v. The People, 11
111. App. 312.
Evidence — Delivery — Storage in warehouse — Custom.
Delivery pursuant to a contract of sale cannot be shown by
storage in warehouse, nor will evidence be received to show
that such was the custom when it has been proved that the
party claiming the property had no knowledge of any such
custom. Larson v. Johnson, 42 111. App. 198.
Same — Recitals in receipts given by draymen.
The court instructed the jury that statements contained in
the receipts signed for the warehouse company by the draymen
or teamsters, that the flour when received by them was in good
condition, were not binding on the warehouse company as ad-
missions. Further, that such receipts could only be considered
as evidence of the course of business employed by the ware-
houseman in the transactions to which they relate. This in-
struction was held to be correct. Central Warehouse Co. v.
Sargeant, 40 111. App. 438.
H.
Storage charges — Failure to pay — Demand.
It appeared from the evidence that the defendant, a ware-
houseman, received wheat for storage, for which there should
be no charge for a short time in order that the plaintiff might
have the opportunity to remove the same. The w^arehouse-
man also agreed to deliver the wheat upon demand by the
owner. In the trial of the case for the recovery of the wheat
or the value thereof, it was held that it was error for the court
to instruct the jury that, if it found that the plaintiff had not
offered to pay a reasonable charge before suit brought, it should
find for the defendant. The appellate court held that plain-
tiff was entitled to judgment for the value of the wheat and that
the defendant was, at most, entitled to a deduction from such
166 ILLINOIS DECISIOSrS.
amount equivalent to a reasonable charge for storage. Leon-
ard V. Dunton et ah, 51 111. 482.
Same — Liability for — Warehouse receipt.
Corn was removed from a warehouse by the assignee of
the warehouse receipt ; in an action against liim for the re-
covery of the storage charges, it was held that although the
lien against the corn for the charges was gone, the warehouse-
man could still hold such assignee personally responsible there-
for. Where one accepts a warehouse receipt he, at the same
time, assumes liability to pa}- storage charges accrued against
property represented thereby. Cole v. Tyng et ah, 24 111. 100.
Lien — Not lost by fraudident issue of receipt.
The mere fact that a warehouseman fraudulently issues re-
ceipts for goods not on store with him does not deprive him of
his lien for storage charges against other goods in his posses-
sion. Low V. Martin, 18 111. 286.
Same — }yhen goods are surrendered only lien allowed will he
that stipidated for.
At the time of the disastrous fire in Chicago there were more
than 1,000,000 bushels of grain stored in the warehouses, a
large proportion of which was destroyed. The Board of Trade,
with the consent of the warehousemen, took possession of all
wheat remaining in the warehouses immediately after the fire,
the warehousemen reserving a lien of two cents per bushel for
storage. The grain was sold, and after the proceeds were ob-
tained the warehousemen claimed an amount in addition to
the sum agreed upon for storage. It was held that they were
entitled to but two cents per bushel less the expense of pre-
serving it. The manner in which the warehousemen released
the property constituted a waiver of all liens thereon except
such as were expressly reserved by the stipulation existing be-
fore the sale. Board of Trade v. Buckingham et ah, 65 111. 72.
Same — Lost by parting with the goods not revived if possession
he again obtained.
The court ruled that, where goods were redelivered by a
ILLINOIS. 167
warehouseman to the consignee upon receipt of the note of the
consignee for the freight tlue, that the lien which the warehouse-
man held was lost and that when the property again came into
possession of the warehouseman, there was no revival of the
lien. The above ruling was held correct. Hale v. Barrett, 26
111. 195.
Same — Not subject to attachment as property of the warehouse-
man.
Where, in an action against a warehouseman, an attachment
is levied by the sheriff against not only the warehouse itself
but against the property stored therein on the ground that the
warehouse company, having a lien on all the property stored
for its lawful storage charges, that such lien was attachable
property. The court held that this was a wrongful levy. While
it is true that such warehouse company had a lien on goods
stored, it was but a mere personal lien and was nothing more
than a right to retain possession of said goods until the charges
for storage were paid or tendered. Liens of this character con-
fer no rights beyond the mere right to retain the property — they
give no power of sale. It follows, therefore, that after the
sheriff has seized stored goods, by virtue of his attachment
writ, and taken same into his possession, no right or interest
of the warehouseman in the goods remains in the sheriff's
hands which could be subject to sale on execution. It was
further held that, as the property was stored in a public ware-
house, it was protected from removal therefrom by the policy
of the law. Hanchett v. First National Bank, 25 111. App.
274.
Contract between warehouseman and railroad company — In-
ability to store amount of grain offered — Reasonable construction
of contract.
A railroad company agreed with a warehouseman that the
"total amount of grain received at its elevator shall be at
least 5,000,000 bushels on the average for each year," during
the term of its lease. It appeared from the evidence that the
warehouseman could not store at any one time more than
1,100,000 bushels. The above section of the contract was
168 ILLINOIS DECISIONS.
construed to mean that the railroad company was obhged,
during the ten years in which the agreement was to continue
in force, to offer to the warehouseman an average of 5,000,000
bushels of wheat per year. Dunlap et al. v. Chicago, M. & St.
P. Ry. Co., 151 111. 409.
Warehouseman has right to terminate storage contract.
Where a warehouseman made a contract with the depositor
of grain, by the terms of which the warehouseman agreed to
store the same at one-fourth (\) cent per month until sold,
it was held that the warehouseman could terminate such con-
tract upon giving notice to the depositor of his intention to do
so. The court said that it was not reasonable to suppose that
a warehouseman, by a contract of this kind, should be ham-
pered through life for the inconsiderable compensation stipu-
lated for therein. Cushman v. Hayes, 46 111. 145.
I.
Commingling of goods — When replevin may he maintained.
In order to maintain an action of replevin against a ware-
houseman, where the property has been commingled with other
property stored, the plaintiff must show that the property re-
plevied was his property, that is, the identical property deliv-
ered in store; or that the intermixture by defendant, which
made identification of his property practically impossible, was
the fault of the warehouseman, or that it was done at least
without consent of the plaintiff. Low v. Martin, 18 111. 286.
Same — Custom — Constitutes sale — Depositary becomes debtor of
owner.
It was shown that it was customary in Chicago for commis-
sion merchants to receive grain consigned to them by their
customers and to immediately deposit the same in a public
warehouse, where it would be mixed with other grain of a like
grade and quality, it was held that, upon this being done, the
warehouseman did not hold the grain as a bailee but that he
was the debtor of the owner who was represented by his com-
mission merchant. If the owner had desired his grain kept
separately and the identical grain sold when he might give
ILLiNOIS. 169
the order, he could have so provided under the terms of the
Warehouse Act. Bailey v. Bensley et al., 87 111. 556.
Same — Right to maintain trover not affected thereby — A bail-
ment and not a sale.
Where oats were stored in a warehouse and mingled with
other oats, it was held that this fact did not deprive the owner
of his right to maintain trover. Further, that, by the inter-
mixture, his title to the property was not affected and that
each individual owner would be entitled to retain and control
an ownership of his particular portion of the whole ; that neither
of the parties in interest would have a right to dispose of the
other's share of the entire amount, and that if one did so,
trover would lie for the conversion. German National Bank v.
Meadowcroft, 95 111. 124; Hoive v. Munson, 65 111. App. 674.
Same — Common property — In case of loss, to be borne pro rata
— Equity jurisdiction.
Where grain belonging to several different owners was stored
in a public warehouse in a common mass, without objection
on the part of the several owners, it became common property
owned by all, in the proportions in which each had contributed
to the common mass. It being owned in common, the owners
are all liable to sustain any loss which may occur by diminu-
tion, decay, or otherwise, in proportion to their respective in-
terests. Persons who purchase warehouse receipts become like-
wise liable to sustain their pro rata share of any loss, precisely
as would the persons from whom they purchased the receipt.
A court of equity, as part of its ordinary and inherent jurisdic-
tion, will, in view of the fact that the property is a trust one,
compel the proper protection thereof, and will require the
trustee to render the court an account of his proceedings under
the trust. Dole et al. v. Olmstead, 36 111. 150; Same v. Same,
41 111. 344.
Same — Assignment by warehouseman — Partial delivery.
Where, in the above case, the warehouseman assigned all the
interest wliich he had in grain stored in his warehouse, belong-
ing to various parties, which grain was there commingled with
170 ILLINOIS DECISIONS.
grain of his own, it was held that such assignee held title to
all of the grain as trustee, that he was bound to deliver the
grain, belonging to the holders of receipts, which was in store
at the time, and, having done so, he was exonerated from
further liability. If, lunvever, it then appeared that any grain
remained, the warehouseman was entitled thereto. Id.
Suhstitution of other property — Equitable lien — Estoppel.
A warehouseman becoming insolvent, a receiver was ap-
pointed, upon petition of his creditors. It appeared that he
had issued warehouse receipts for a large amount of goods
stored in his warehouse and that the owner of the goods had
pledged the receipts to a bank to secure a loan. Subsequently,
and without the bank's knowledge, the goods represented by
the receipts were removed by the depositor, with the consent
of the warehouseman, and other goods were substituted in their
place. It was contended in behalf of the general creditors that,
by this substitution, the bank lost its lien upon the property.
It was held that the bank had a right to suppose that the prop-
erty pledged to them remained in the warehouse subject to
their order at any time, on surrender of the receipt; that the
action of the owner of the goods and of the warehouseman con-
stituted a violation of the statute pertaining to warehousemen,
and a fraud against the bank. It was further held that the
bank had an equitable lien upon the stored property and that
the warehouseman was estopped to deny that the goods in his
warehouse were the identical goods represented by the receipt
held by the bank. It was further held that the appointment
of the receiver did not affect the claim of the bank, which claim
was a lien against the goods prior to the appointment. Hoff-
man et al. V. Schoyer et ol., 143 111. 598.
Substitution of other goods — Constitutes a fraud.
If a warehouseman, who has issued a negotiable warehouse
receipt for property stored with him, allows the owner thereof
to remove part of the goods so stored and substitute other
goods in their stead, violates the law of the state and commits a
fraud against such person as may then be the owner or holder
of the receipt. Id.
ILLINOIS. 171
K.
Attachment — Grain deposited in mass not subject to, in an ac-
tion against warehouseman.
A deposit of grain in a common mass in a public warehouse
is a bailment and not a sale theieof ; therefore, in an action
against a warehouseman, an attachment cannot be legally levied
against the grain of any other depositors, the title thereto re-
maining in them. National Bank of Pontiac v. Langan, 28 111.
App. 401.
L.
Replevin — When it lies — Grain in bulk.
In order to maintain an action of replevin, if the grain stored
has been mixed with other grain, the plaintiff must show that
such intermixture was a wrongful act of the warehouseman or,
at least, was done without the consent of the plaintiff. Low
V. Martin, 18 111. 286.
Same — Breach of bond — Burden of proof.
When the conditions of the replevin bond are broken, any
person injured may sue in the name of the sheriff to his own
use. AVhere a bank is one of the parties in interest in which
an action is brought on a replevin bond, the court instructed
the jury to the effect that the defendant must show, in addi-
tion to other facts, that it took the warehouse receipts pledged
with it as collateral without notice of any fraud, whereas the
correct instruction should have been that the plaintiff must
show by the evidence that the defendant took the receipts with
notice of the fraud. Hanchett v. Buckley et al., 27 111. App.
159; Atkin v. Moore, 82 111. 240; Replevin Act, sees. 10, 25,
ch. 119, R. S.; Jones v. Simpson, 116 U. S. 609; Montague v.
Hanchett, 20 111. App. 222.
M.
Pledge — Right to sell — Notice.
A pawnee is not bound to wait for a sale under a decree of
foreclosure as a mortgagee is in the case of a mortgage upon
land, but he may sell, without judicial process, upon giving
a reasonable notice to the debtor to redeem. The notice to
the pledgor is indispensable, as to the time and ]:)lace of sale,
172 ILLINOIS DECISIONS.
in the absence of a contract that the pledgee may sell of his
own motion. Cushman v. Hayes, 46 111. 145.
Negligence — Misdelivery — Warehouseman responsible — Sam-
pler's ticket not a warehouse receipt.
It appeared from the evidence that it was the custom in
Peoria, when grain was received, to have a sampler, who was
employed by the Board of Trade, make an examination of the
wheat and issue what was known as a sampler's ticket therefor,
together with a sample of the wheat. This was done, and the
wheat stored with defendant, a warehouseman. A sale of the
wheat took place on the Board of Trade and the purchaser re-
ceived, in accordance with the custom, the sampler's ticket
with the name of the seller and of the purchaser written thereon,
together with the sample. The warehouseman delivered to the
purchaser the wheat represented, upon the presentation to him
of such ticket. It appeared that the check given by the pur-
chaser, for the payment of such wheat, was not paid. It was
held that the warehouseman acted beyond his authority when
he delivered the wheat upon the presentation of this ticket,
that in the absence of authority from the seller such ticket was
not equivalent to a warehouse receipt, and that the warehouse-
man was responsible to the owner for the value of the wheat.
Peoria & Pekin Union Ry. Co. v. Buckley e^ aZ., 114 111. 337.
Cold storage — Agreement as to temperature — Instruction to the
jury.
In an action, brought by plaintiff for the recovery of storage
charges, for having placed in cold storage a quantity of onions
belonging to the defendant, it appeared that there was a great
conflict of testimony as to whether there was an agreement con-
cerning the temperature in which the onions were to be stored.
Under these circumstances, instruction to the jury to the fol-
lowing effect was held erroneous: If it found, from the evidence,
that the plaintiff violated his contract with the defendant in
failing to keep the onions in question in the temperature agreed
upon and if the onions rotted as a result of such failure, the jury
was then to find for the defendant. From the above charge,
ILLINOIS. 173
the jury might conclude that a certain temperature had been
agreed upon, whereas this fact was in controversy. Western
Union Cold Storage Co. v. Ermeling, 73 III. App. 394.
0.
Measure of darnages.
Where, in an action for the conversion of wheat stored, the
market price thereof being proved, it is a fair presumption that
the warehouseman procured such price and the measure of
damages is the value of the wheat at the time it should have
been delivered. Leonard v. Dunton et at., 51 111. 482.
Same — Where taking not tortious.
Where there has been a breach of contract of bailment and
the taking of the property has been tortious, assumpsit lies and
the value of the property converted, at the time of demand, is
the proper measure of damages. The actual amount received
is the proper measure where the taking was not tortious. O'Reer
V. Strong, 13 111. 690; McDonald v. Brown, 16 111. 320; Cushman
V. Hayes, 46 111. 145.
Same — Cold storage.
In a case where goods are received in cold storage and it is
alleged that they have depreciated in value as result of failure
on the part of the warehouseman to maintain the requisite
temperature, the proper measure of damages should be the
market value of the goods on the day of demand less the storage
charges due thereon. Western Union Cold Storage Co. v. Ermel-
ing, 73 111. App. 394.
P.
Insurance — Joint owners have an insurable interest — Other in-
surance.
A party stored grain in a warehouse and procured a policy
of insurance thereon in the name of a member of the firm doing
the warehouse business. There was an indorsement on the
policy to the effect that loss, if any, should be paid to the de-
positor as his interest may appear. In an action, brought by
such depositor, against the insurance company, after the de-
struction of the grain by fire, it was held that the action could
174 ILLINOIS DECISIONS.
be maintained by him and that the issuance of the policy to a
member of the firm operating the warehouse was proper and
that he, or his partner, had an insurable interest in the grain.
The policy also provided that there should be no other insur-
ance placed thereon. It appeared that the warehousemen had
insured the property in another company and that the loss was
payable to them. Held that this did not constitute ''other
insurance" within the meaning of the policy. Traders' Insur-
ance Co. V. Pacaud et al., 150 111. 245.
Contract by warehouseman to insure — Not responsible if suit
on policy terminates against him without his fault.
Defendant, a warehouseman, contracted with plaintiff to re-
ceive and store a large number of barrels of apples, the ware-
houseman agreeing to keep them insured with responsible com-
panies. This the warehouseman did and, after destruction by
fire, the warehouseman brought an action against the companies
for the recovery of the amount stated in the policies. The
warehouseman had given a receipt to the owner which provided
that a large proportion of the property stored was to be insured
only up to a date prior to the destruction by fire. This receipt
had been given to the owner, at his request, and on account
thereof, the warehouseman failed to recover from the insur-
ance company for the loss of the property. In an action be-
tween the owner of the goods and the warehouseman, it was
held that, as the latter had complied with all the terms of his
contract, he could not be compelled to bear this loss but that
it must fall upon the owner. Cole v. Favorite, 69 111. 457.
Warehouse receipts — Issued by private warehousemen — Quasi-
negotiable.
Warehouse receipts, issued by private agents, or by ware-
housemen other than those described by the statute of this
state as public warehousemen, are on the same footing as bills
of lading in respect of their gwasz-negotiable character. Nor-
throp et al. V. First National Bank, 27 111. App. 572; Western
Union Ry. Co. v. Wagner et al., 65 111. 197.
ILLINOIS. 175
Sayyie — Receipts issued by factors.
Where it appeared tliat a firm, whicli had never been in the
business of warehousing, issued what were in form warehouse
receipts against their own property stored therein ; it was held
that tliese were not warehouse receipts within the meaning of
the statutes and that the holder thereof was in no better position
than one who held an unrecorded chattel mortgage. Trum-
bull et al. V. Union Trust Co. et al, 33 111. App. 319; aff'd,
137 111. 146.
Warehouse receipts — Failure to state distinguishing marks as
required by statide — Effect.
Where warehouse receipts were issued for tea and other
property stored, and they failed to have stated thereon the
distinguishing marks as required by section 24 of the act of
April 25, 1871, it was contended that the effect of such failure
was that they were void since they were issued in violation of
law. It was held that, since the statute did not impose any
penalty in the case of such omission, the failure did not in any
wise vitiate or impair the lien against the property represented,
in favor of the person holding the receipt as security. In such
a case, evidence will be received to ascertain the exact prop-
erty intended to be represented by the receipt. Hoffman et al.
V. Schoyer et al., 143 111. 598.
Same — Receipt held to be a sale by way of mortgage.
Parties delivered to a w^arehouseman a large quantity of
wheat and at the same time delivered to him an instrument in
which it was stated that the wheat was delivered to the ware-
houseman free of all incumbrance except that held by the
warehouseman and that the latter was at liberty to dispose of
the same and to deduct his claim for storage and all accrued
costs and charges and to pay the balance to the owner ; further,
that the assignment of such receipt by the warehouseman should
at once vest in the holder full title and owmership in the property
mentioned the same as. if the receipt had been originally issued
to him. It was held that this did not constitute a ware-
house receipt but was a sale by way of mortgage. Sny docker
V. Blatchley et al, 72 111. App. 519.
176 ILLINOIS DECISIONS.
Same — When a valid tender.
Where, under a contract of sale of wheat, the seller tenders
warehouse receipt, this has been held to constitute a valid
tender unless the purchaser objects thereto. Where the pur-
chaser is absent, a mere readiness to tender warehouse receipt
for the property cannot be construed to be a vahd tender
thereof. McPherson v. Gale, 40 111. 368; McPherson v. Hall,
44 111. 264.
Sajjie — Interpretation — Execution against warehouseman.
Where a warehouseman received corn in storage and issued
a receipt which was regular in all respects but that it had at
the end thereof "Subject to their order for all advances of
money on the same," it was held that this expression did not
reduce the transaction to a mere pledge. The testimony of
the warehouseman showed that he purchased this corn with
money furnished by the party in whose name the receipt was
issued. Under these facts, an execution issued against the
warehouseman would not lie against the corn. Cool et al. v.
Phillips & Carmichael, 66 111. 216.
Same — Same — Free storage — Reasonable time — Notice.
A warehouseman received a quantity of corn and issued a
receipt therefor in which it was stated that the same was re-
ceived free of storage charges and was to be placed on boats
to be sent by the owner. It was held that the warehouseman
was only obliged to keep the same free of storage for a rea-
sonable time, and, after notice to the owner, storage could
be charged at a reasonable rate. Myers et al. v. Walker, 31
111. 353; Same v. Saine, 24 111. 123.
Same — Same — Where warehouseman sells the goods and sub'
sequently receives them for storage — Not subject to execution against
him.
The law does not prohibit a public warehouseman from sell-
ing his own grain and, if he does so in good faith, he may, as
well as any one else, become its future custodian. The fact
that he 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. Under such
ILLINOIS. 177
circumstances, an execution cannot be validly issued against
property stored in his warehouse in the name of his purchaser.
Broadwell v. Howard et al., 77 111. 305.
Same — Negotiability — Statute construed.
Warehouse receipts are not negotiable instruments within
the meaning of the statute of the state of Illinois. Under the
rules of construction that a statute is not to be construed as
changing the common law further than its terms expressly de-
clare, it was held that a negotiable instrument must be an
absolute and unconditional promise to pay money or deliver
property at a time that will certainly happen. It may be un-
known in advance when it will transpire but it must be abso-
lutely certain that it will be sometime. Although it may be
in the power of the party to whom the promise is made to render
it certain, by his subsequent act, this will not be sufficient.
It cannot be such a time as will depend upon his will or his
pleasure. Under the statutes a warehouseman is not responsi-
ble for wheat destroyed by fire in the absence of negligence,
nor is he pledged to redeliver unless the receipt is properly in-
dorsed and all the proper charges paid ; it is, therefore, impos-
sible to know, in advance, with absolute certainty, that the
warehouseman will ever be required to redeliver the wheat.
It is precisely as if the promise were to redeliver upon con-
dition that none of these things allowed as excuses for non-
dehvery should intervene, as well as all future conditions actu-
ally written in the receipt. It does not follow that, because
the statute has made bills of lading and warehouse receipts
negotiable by indorsement and delivery, that all the conse-
quences of indorsement and delivery of bills and notes before
maturity ensue, or are intended to result from such negotia-
tion. Canadian Bank v. McCrea et al, 106 111. 281 ; Burton v.
Curyea, 40 111. 320; Shaw v. R. R. Co., 101 U. S. 557; Western
Union R. R. Co. v. Wagner, 65 111. 197; Chicago Dock Co. v.
Foster, 48 111. 507. See also Northrop v. First National Bank,
27 111. App. 527, and the cases there cited.
Same — Sa?ne — Suit by assignee.
A warehouse receipt was duly indorsed to plaintiff, who re-
12
178 ILLINOIS DECISIONS.
ceived at the same time a certificate stating that the condition
of the property represented by it was good. It subsequently
appeared that the property was not in the condition stated in
the certificate, which was dehvered to tlie original holder of
the receipt. It was held untler such conditions, that the as-
signee could maintain an action for this breach, and that, under
the statutes of the state, warehouse receipts are made negotia-
ble instruments, not possessing, however, all the qualities of
negotiable paper, which furnish full protection to the innocent
holder, but are, nevertheless, negotiable to the extent of trans-
ferring to the assignee all the interest, rights, and remedies,
of the original assignor thereof. A judgment in the suit of
the indorsee would be a bar to another action against the
defendant. Sargent v. Central Warehouse Co., 15 111. App. 553.
Same — Same — Assignor not liable — Custom.
In an action, brought by plaintiff against defendant, to re-
cover back the purchase money paid by the former to the latter
in the purchase of whiskey, the transfer of which was repre-
sented by warehouse receipts, it was held that the purchaser
could look only to the warehouseman. In this case, it ap-
peared that the defendant offered to prove that it was a cus-
tom, well known in the whiskey trade, that the seller of ware-
house receipts was never looked to as the responsible party
but that sole reliance was placed upon the warehouseman. It
was held that such custom or usage should have been allowed
to have been proved. Mida v. Geissman, 17 111. App. 207.
Same — Bona fide holder, protected.
Plaintiff sold certain grain, rej^resented by warehouse receipts,
which were duly transferred to the jjurchaser, and received his
check in payment therefor. The purchaser thereupon attached
such warehouse receipts to a draft, drawn upon one in another
city, and deposited them to his credit in the defendant bank.
The check given by the purchaser was not presented until the
next day when payment was refused, in the meantime the pur-
chaser having failed. The plaintiff thereupon sued the bank
in trover for the value of the wheat. It was held that the bank
was a bona fide holder of the receipt and hence not liable in
ILLI^'OIS. 170
such action. The court stated that, in view of the fact that
the sale was for cash it was conditional upon the payment to
the plaintiff of the check given for the wheat and, therefore,
he could properly demand its return from the purchaser. Hide
& Leather National Bank v. West et al., 20 111. App. 61.
Same — Collateral security — Estoppel .
Where warehouse receipts were pledged by the bailor as
collateral security for a loan, it was held that, where there
was no evidence to show that the lender knew of any facts
impairing the title of the bailor to sucli goods, such lender will
be protected when classed with the general creditors, in case
of the insolvency of the bailor. Further, it was shown that
part of the goods originally stored had been removed and
other goods substituted in their place. This fact not being
known to the person holding the receipt as collateral it did
not afTect the security, although the warehouseman violated
the statute and committed a fraud against such party by al-
lowing substitution of goods. Under the above facts, the
receipt holder became entitled as against the bailor to an
equitable lien on the merchandise, such lien arising, if on no
other, at least upon the ground of estoppel. Hoffman et al.
v. Schoyer et al, 143 111. 598; Union Trust Co. v. Trumbull,
137 III. 146.
Same — Same — Legal effect of sale — Burden of proof on plain-
tiff.
The pledge of a warehouse receipt as collateral security,
to secure the payment of a note, is, in legal effect, a sale to
the bank of the property called for by the receipt for a valua-
ble consideration and vests the legal title thereto in the bank.
The burden is upon the plaintiff to show that the defendant
bank took with notice of fraud in the original jiurchase. Han-
chett V. Buckley et al., 27 111. App. 159; Chicago Dock Co. v.
Foster, 48 111. 507; Jewett v. Cook, 81 111. 266; 0. & M. R. R.
Co. V. Kerr, 49 111. 458.
Same — Action by one holding as collateral security.
Where a person who held a warehouse receipt as collateral
180 ILLINOIS DECISIONS.
security brought an action in case against the warehouseman;
upon demurrer to the declaration, in which it was alleged that
the receipt was frautlulently issued, it was held that a person
holding warehouse receipts could properly maintain such an
action and that it was immaterial whether the loss to the plain-
tiff, from the wrongful act of the defendant, consisted of his
being deprived of his money or the grain. Low v. Martin, 18
111. 290.
Same — Warehouseman^ s obligation upo7i.
Persons holding grain receipts have only the obligation of
the warehouseman for the proper storage and delivery of their
grain, according to the terms of their receipts, or, in case of
default, to recover of the warehouseman the damages growing
out of a breach of the contract. The giving of the receipts
creates no specific or general lien on the property of the ware-
houseman. Dole V. Olmstead, 36 111. 150; Same v. Same, 41
111. 344.
Same — Fraudulent unless they truly represent the property in
store.
A warehouseman issued receipts, in the name of a bank, to
secure the payment of loans made to him by the bank. The
statements contained in such receipts, as to the kind of goods
which they represented, were false. It was contended that, in
view of the fact that the statements were knowm to the bank
to be untrue, the provisions in the warehouse act, in relation
to the issuance of false receipts, did not apply. The court held
that this contention was not correct, that the act included the
issuance of any warehouse receipt which was in any wise false
or fraudulent and that the receipts are required, by the act,
to be the true representatives of the property actually in store
and that their issuance is prohibited under any other conditions
or circumstances. Further, that this was the purpose of the
legislature is manifest from its other provisions which make
warehouse receipts transferable in lieu of the property which
they represent. Sykes v. The People, 127 111. 117.
Same — Goods not in existence when issued.
Where the evidence showed that a receipt, issued by one
TLIJXOm. 181
who was not a public warehouseman, represented goods which
were not in existence at the time, it was held that such receipt
was void. It was not, in fact, a warehouse receipt at all
within the meaning of the statutes. If any of the goods, which
were represented, were in existence, the receipt would simply
constitute an acknowledgment, by the person having issued it,
that he had received such merchandise. Montgomery, Ward
& Co. V. Union Trust and Savings Bank, 71 111. App. 20.
Same — Parol evidence excluded.
In an action upon a warehouse receipt evidence in support
of the claim, that it was understood between the parties that
the wheat should be stored free of charge for a short time only,
will not be received as this would be an attempt to vary the
terms of the receipt, which is a contract between the parties,
by parol evidence. Leonard v. Dunton, 51 111. 482.
Same — Purpose of surrender to warehouseman — Erroneous in-
struction.
In an action against a warehouseman, for the value of grain,
where the plaintiff was not in the possession of the receipt, the
court instructed the jury as follows: "If the jury believe from
the evidence that the warehouse receipt in evidence was not
held by the plaintiff at the time of the levy of the execution,
offered in evidence, but had been surrendered to the warehouse-
man prior to that time, then the plaintiff is not entitled to any
of the property replevied, by reason of his once having held
such receipt." It was held that this instruction, when applied
to the evidence tending to show that the receipt was surren-
dered for the purpose of securing the delivery of the grain, was
clearly erroneous. Nelson et al. v. Mclntyre, 1 111. App. 603.
Injuries to warehouse employees — When warehouseman not
liable — Improper instruction to jury.
Where it appeared, in an action brought by one who had
been employed in a warehouse, against the owners thereof, for
personal injuries received while in the performance of his duties,
that the plaintiff was injured by reason of the defective condi-
tion of a trigger in a trapdoor through which grain was dumped
182 ILLINOIS DECISIONS.
into the bins in the warehouse. The court instructed the jury
that, in this case, it would not be sufficient fov the defendants
simply to prove that they had purchased proper and safe ma-
chinery but that if it appeared by the preponderance of evidence
that the same was not kept in a safe condition or that the dump
in (luestion was defective and by reason thereof the alleged in-
jury resulted, then tli(^ plaintiff is entitled to recover, provided
he exercised due care. It was held that this instruction was
erroneous, for no degree of care on the part of the defendants
would exonerate them from liability for injury actually caused
by a defect in their machinery. It practically attempts to
make them insurers. Wilson v. Kelly, 52 111. App. 124.
U.
Penal sections of warehouse act are embraced in the title thereof,
and are valid.
A warehouseman was indicted under that provision of the
warehouse act which declares it to be a crime to issue false or
fraudulent warehouse receipts. The contention was made, in
his behalf, that this provision of the warehouse law was void
for the reason that it was not embraced in the title of the act,
that title being "An act to regulate public warehousemen and
the warehousing and inspection of grain and to give effect to
article 13 of the constitution of the state." It was held that
the section under consideration was manifestly germane to the
purpose of the act as stated in this title, and, therefore,
the above contention could not be sustained. It was also con-
tended that this section of the warehouse act was repealed by
sections 124 and 125 of the criminal code. The court held that
the provisions of this section were not repugnant to the ware-
house act and, therefore, there was no repeal by implication.
Sykes v. The People, 127 111. 117: Same v. Same, 132 111. 32.
Public warehousemen — Statutes requiring license and pre-
scribing rates of storage, constitutional.
The legislature of Illinois, in 1871, passed an act entitled
"An act to regulate public warehouses and the warehousing
and inspection of grain, and to give effect to Article 13 of the
constitution of the state." Under sections 3 and 4 of this act
ILLINOIS. Igii
the defendant was indicted for the violation thereof, in that
he conducted a pubhc warehouse in the city of Chicago without
first having procured a license as required by this act. The
act further provided a maximum charge which warehousemen
doing business in said state, should be allowed to make. It
appeared that the defendant had been doing business as ware-
houseman for a long period prioi- to .the enactment of said
statute. The contention was made in his behalf that the act was
unconstitutional and void, in that it deprived him of property
without due process of law. The court held that, by the terms
of the law under consideration, no right of property was taken
away or destroyed. That all the property the owners ever had
in their possession remained to them untouched by the strong
hand of the legislature, that the act must be held to be an
honest effort on the part of the legislature to arrest a great
and growing evil by the regulation of the charges which ware-
housemen could demand, and placing them under bond that
they could not violate its provisions. Miinn v. Illinois, 69 111.
80, aff'd 94 U. S. 113. See also People v. Budd, 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 ; People v. Miller, 82 N. Y. Supp. 582.
See State v. Associated Press, 159 Mo. 410, in which the authori-
ties are fully reviewed and the doctrine of Mnnn v. Illinois
severely criticised and departed from ; see also note to People
V. Budd, in New York decisions, this volume, page 601.
id4 IM DIANA LAWS.
CHAPTER XIII.
INDIANA.
LAWS PERTAINING TO WAREHOUSEMEN.
Classes permit — Record of permit and withdrawal :
Public warehouses shall be divided into two classes, to be
designated as classes "A" and "B," respectively. Any per-
son or incorporated company desiring to keep any such public
warehouse shall be entitled to do so upon recei^-ing a permit
therefor from the auditor of the county in which such warehouse
shall be kept.
Such permit shall be granted upon the written application,
signed by the owner or owners of such warehouse, if natural
persons, or, if owned by a corporation, by the president and
secretary thereof. Every warehouse receiving such permit shall
continue, subject to the provisions of this act, until the owner
or owners thereof shall file in said auditor's office written no-
tice, signed as aforesaid, that they desire to renounce the char-
acter of public warehousemen; and such auditor shall keep a
record of such permit and renouncement. AVarehousemen not
taking out such permit shall not be in any wise affected by the
provisions of this act. Homer's Annotated Statutes, 1901,
sec. 6525.
AVhat classes " A " and " B " embrace :
Public warehouses of class "A" shall embrace all ware-
houses, elevators, or 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;
public warehouses of class "B" shall embrace all other ware-
houses or places where property of any kind is stored for a con-
sideration. Any corporation, company, individual, or lessee,
operating or conducting a public warehouse, shall be deemed a
INDIANA. 185
public warehouseman. Where a permit has been heretofore
obtained, or may hereafter be obtained under this act, to keep
a pubhc warehouse, such permit shall be so construed as to
have included and to include more than one building or room,
or parts of Iniildings or places of storage at the same time:
Provided, That such places were or are all in the same county
in which the permit was or may be issued, and jjrovided that
the distinctions between the classes "A" and "B," as stated
in this section, have been or shall be preserved by the ware-
houseman. Id. sec. 6526.
Duty of class "A" — Inspecting — Grading — Storing — Re-
ceipt :
It shall be the duty of every warehouseman of class "A" to
receive, for storage, any grain that may be tendered to him in
the usual manner in which warehouses are accustomed to re-
ceive the same in the ordinary and usual course of business,
not making any discrimination between persons desiring to
avail themselves of warehouse facilities. Such grain, in all
cases, shall be inspected and graded by a duly authorized in-
spector, and stored with grain of a similar grade; but if the
owner or consignee so request, and the wareliouseman consent
thereto, his grain 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. 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 case where such warehouse is necessarily closed. Id.
sec. 6527.
Warehouse receipt for class " A " :
Upon the application of the owner or consignee of grain
stored in a public warehouse of class "A" (the same being ac-
companied with evidence that all transportation or other charges
which may be a lien upon such grain, including charges for in-
spection, have been paid), the warehouseman shall issue, to
the person entitled thereto, a warehouse receipt therefor, sub-
186 INDIANA LAWS.
ject 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 re-
ceived into store, to be stored with grain of the same grade by
inspection, and tliat 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 l)e 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." Nothing in this section shall be so con-
strued as to require any warehouseman or warehouse company
to issue a duplicate or substituted receipt, vmless sufficient and
satisfactory evidence of the loss of the original is produced, and
unless good and sufficient security and indemnity against lia-
bility on the original receipt shall be given. Id. sec. 6528.
Receipt, when cancelled, void :
Upon 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 it shall thereafter be void, and shall not again be put in
circulation, nor shall grain again be delivered twice upon the
same receipt. Id. sec. 6529.
Receipt only for actual delivery :
No warehouse receipt shall be issued except upon the actual
delivery 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 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 parts 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
INDIANA. 187
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 receipts shall bear the same date as the
original, and shall state, on its face, that it is the 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 all had been delivered. In case it be desirable to divide
one receipt into two or more, or in case it be desirable to con-
solidate 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; 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. All new re-
ceipts issued for old ones, cancelled as herein provided, shall
bear the same date as those originally issued, as near as may be.
Id. sec. 6530.
Delivery of property :
On the return of any warehouse receipt issued by any ware-
houseman, properly 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:
Provided, No warehouseman shall be held in tlefault in deliv-
ering, if the property be delivered in the order demanded, or
in the order that transportation may be furnished, and as
rapidly as due diligence, care, and prudence will justify. Id.
sec 6531.
Responsibility for loss or damage :
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 pre-
serve 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 heating
or damage was the result of causes beyond his control. Id.
sec. 6532.
188 INDIANA LAWS.
Duty as to grain out of eoiidition :
In case, however, any warehouseman of class "A" shall dis-
cover 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 posting
a notice in the most public place, for such a purpose, in the
city or town in which such warehouse may be located) of its
actual condition, as near as he can ascertain it, and shall state,
in such notice, the kind and grade of grain, the bins in which
it is stored, the receipts outstanding, upon which such grain
shall be delivered, giving the numbers, amounts and dates of
each (which receipts shall be those of the oldest dates then in
circulation or uncancelled), that the grain represented has not
been previously 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. The enumeration of receipts 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 re-
ceipts, and the unreceipted grain upon the request of owner or
person in charge thereof. Id. sec. 6533.
Further duty as to such grain — Sale :
Notliing 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 it shall not be mixed with any
other grain while in store in such warehouse. Notliing in this
section shall be so construed as to permit any warehouseman
to deliver any grain stored in a separate 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 thirty days from the date of the notice of its being out
of condition, it shall be lawful for the warehouseman with whom
INDIANA. 189
the grain is stored to sell the same at pul}lic auction, for ac-
count of said owner, by giving ten days' public notice by ad-
vertisement in a newspaper (daily, if there be such) published
in the city or town where such warehouse is located. Id.
sec. 6534.
Good faith required :
It shall not be lawful for any public warehouseman to select
different qualities of the same grain 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
profit to himself or any other person. Nothing in this section,
however, shall prevent any warehouseman from moving grain
while within his warehouse, for its preservation or safe-keeping.
Id. sec. 6535.
Owners and inspectors may examine warehouse :
All persons owning property, or who may be interested in
the same, in any public warehouse, and all duly authorized
inspectors of such property, at all times during ordinary busi-
ness hours, shall 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 persons by the warehouse-
man, his agents or servants, for an examination. All parts of
public warehouses shall be free for the inspection and exam-
ination of any person interested in property stored therein,
or of any authorized inspector of such property. Id. sec. 6536.
Receipts negotiable— Receipts of class " B " :
Warehouse receipts for property stored in any class of public
warehouses, as herein described, shall be negotiable and trans-
ferable by the indorsement of the party to whom such receipt
may be issued; and such indorsement shall be deemed a valid
transfer of the property represented by such receipt and may
be either in blank or to the order of another. Every indorsee
or transferee of such receipt may, in like manner and with like
effect, negotiate and transfer the same, by indorsement, to the
order of another, or in blank, or by delivery by a prior indorse-
ment in blank, Every such indorsement shall be deemed to
190 INDIANA LAWS.
be a warranty that the indorser has good title and lawful au-
thority to sell the property named in such receipt. No sale
of grain in store, which is not evidenced or accompanied by a
transfer of the warehouse receij^t gi^'en therefor, shall be valid
as against the bona fide holder of such receipt. All warehouse
receipts for property stored in i)ublic warehouses of class ''B"
shall distinctly state, on their face, the brand or distinguishing
mark on such property. Id. sec. 6537.
Frail (liileiit receipts, or removing property, felony :
Any warehouseman of any jjublic 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
fraudulent in character, either as to date, or as to the quantity,
quality or inspected grade of such property; or who shall re-
move any property from store, except to preserve it from fire
or other sudden damage, without the return and cancellation
of any and all outstanding receipts that may have been issued
to represent such property, — shall be deemed guilty of a crime,
and, upon conviction thereof, 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. 6538.
Appointment of grain inspectors :
There shall be appointed, annually by the board of trade
or other commercial organization, one or more inspectors of
grain and other property, for the county where such board is
organized, and in case there be no such organization in any
county, then the judge of the circuit court may appoint such
inspectors. Every inspector, before entering upon the duties
of his office, shall take an oath to faithfully and honestly per-
form his duty according to law. AVhere there are two or more
such organizations in any city, the one whose members deal
most exclusively with grain and produce shall make such ap-
pointment, and it shall provide for his compensation, and for
that purpose may fix a schedule of fees to be paid by the owners
of such property as may be inspected. Id. sec. 6539.
INDIANA. 191
Duty of inspectors — Compeiisation :
Such inspector may classify and determine the grade to which
any article of property submitted to his inspection belongs;
but where there is a board of trade or other commercial or-
ganization in such county, it shall have th(^ exclusive authority
to fix the grade of property, defining what shall constitute
grade numbers one, two, etc., the inspector determining only
as to what grade the same belongs. Where there is no such
organization in any county, then the grading and rates of com-
pensation for inspection adopted by such organization in the
city nearest to the point where such grain or property is in-
spected, shall govern the inspector in his inspection. Id. sec.
6540.
Elevator or warehouse receipts :
That all persons, firms or corporations owning and dealing
in corn, wheat, oats, rye, barley, or other grain who may desire
to sell, transfer, assign, pledge, or hypothecate the same, or
any part thereof, by issuing elevator or warehouse receipts or
certificates, are hereby required to file with the recorder of
deeds, in the county where any such grain is stored, a written
declaration setting forth the name and residence of such per-
son, firm or corporation that such person, firm or corporation
desires to keep, own or control a warehouse, elevator, crib or
other place for the storage and keeping of grain, an accurate
description of the place and locality where the same is to be
kept, owned, or controlled, and of the elevator, warehouse,
crib or other place, the dimensions and quality thereof, and the
names of any other persons than the one making tlie declara-
tion, having any interest in knd or structure; such declaration
shall be duly acknowledged and filed for record in the same
manner as instruments for the conveyance of personal property.
Id. sec. 6540a.
May pledge grain — Certificate showing law complied with :
Any person, firm or corporation owning, keeping or con-
trolling any such elevator, warehouse, crib, or other place for
the storage of grain, and who has filed the declaration as pro-
vided in section one hereof, may execute and issue bills, certifi-
192 INDIANA LAWS.
cates or warehouse receipts, for any grain that may actually
be in said elevator, warehouse, crib or other place described
in said declaration, or for any part or quantity thereof, and
may sell, convey, assign, transfer, pledge or incumber said
grain, or any part or quantity thereof. But such bill, certifi-
cate or warehouse receipt shall have written or printed on it a
statement that the person, firm or corporation issuing it has
complied with section one hereof, with the book and page in
the recorder's office where the same is recorded, the name and
address of the party issuing it, and to whom issued, the location
of the premises and elevator, warehouse, crib or other place
where the grain is stored, the date of issuance, and the quantity
of grain and its kind, and shall be signed by the person, firm
or corporation issuing it; and bills, certificates and receipts
issued in the manner and form aforesaid shall operate and have
the effect to transfer the title to the grain described in them,
and vest the same in the holder thereof, and the holders thereof
may sell, assign, transfer, or otherwise dispose of the same in
like manner without the purchaser, assignee or holder being
required to have the same recorded or give notice to protect
himself against existing creditors or subsequent purchasers, as
required in other cases where property is left in the possession
of the vendor. Id. sec. 65406.
Receipts and certificates :
Every person, firm or corporation making the declaration
and issuing receipts and certificates for grain, as herein con-
templated, shall keep a regular well-bound book, wherein shall
be kept and entered at the date of issuance thereof, full account
of each and every receipt or certificate, with the date of issu-
ance, number, name of person to whom issued, the quality
and kind of grain covered by such; and such book shall be sub-
ject to the inspection and examination of each and every
person holding any such receipt or certificate, his agent or
attorney.
Any person wrongfully altering, changing, or willfully destroy-
ing any such book shall, upon conviction, be fined not exceed-
ing one thousand rlollars, and may be imprisoned in the county
jail not exceeding one year; and any person, firm or corpora-
INDIANA. 193
tioii issuing any receipt or certificate, without entering and
preserving in such book the required memoranda shall be fined,
upon conviction, not to exceed one hundred dollars for each
certificate so issued and be liable for all damages sustained in
consequence of such omission. Id. sec. 6540c.
Penalty for issuing false certificate :
Any person, firm or corporation who shall knowingly issue
any such receipt or certificate for grain when the grain described
is not actually in the elevator, warehouse, crib or other place
mentioned therein, or shall knowingly, with intent to defraud,
issue a second receipt or certificate for grain, for which, or part
of which, any former receipt or receipts, certificate or certifi-
cates, are outstanding, uncancelled, and valid and subsisting,
shall, beside being liable for all damages caused by such second
issue, be deemed guilty of felony, and for each offense be fined
not to exceed one thousand dollars, and may be imprisoned in
the penitentiary not exceeding five years. Id. sec. 6540(i.
Penalty for removing grain :
Any person, firm or corporation owning, possessing or con-
trolling any elevator, warehouse, crib or other place for storing
grain as provided in this act, who shall sell or remove, or know-
ingly permit to be removed therefrom, any grain for which any
receipt or certificate has been issued and is outstanding, held
by any other person than the person issuing the same, and any
person knowingly receiving, or helping to remove the same,
shall be deemed guilty of grand larceny and punished as pro-
vided by statute, and such grain so removed shall be deemed
and regarded as stolen property and may be pursued and re-
covered or its value recovered by the owner and holder of the
said receipt or certificate. Id. sec. 6540e.
Who are warehousemen :
Every person, firm, company, or corporation, receiving cot-
ton, tobacco, pork, grain, corn, rye, oats, wheat, hemp, whiskey,
coal, any kind or produce, wares, merchandise, connnodity, or
any other kind or description of personal property or thing
whatever in store, or undertaking to receive or take care of the
13
194 INDIANA LAWS.
same, with or without compensation or reward therefor, shall
be deemed and be held a warehouseman. Id. sec. 6541.
Receipt for property — Evidence :
Every warehouseman, receiving anything enumerated in the
preceding section, shall, on demand of the owner thereof, or
the person from whom he received the same, give a receipt
therefor, setting forth the brand, quality, quantity, kind and
description thereof, which shall be designated by some mark;
which receipt shall be evidence in any action against said ware-
houseman. Id. sec. 6542.
Receipts negotiable :
All receipts issued by any warehouseman, an provided by
this act, shall be negotiable and transferable by indorsement
in blank, or by special indorsement, and with like liability as
bills of exchange now are, and like remedy thereon. Id. sec. 6543.
Receipts given only for property stored :
No warehouseman, or other person, shall issue any receipt
or other voucher for any goods, wares, merchandise, produce,
or thing enumerated in section one of this act (sec. 6541) or
for any other commodity or thing, to any person, company,
or corporation, unless such goods, wares, merchandise, produce,
property, commodity, or thing shall have been bona fide received
into and stored 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. 6544.
Fraudulent receipts forbidden :
No warehouseman or other person shall issue any receipt or
voucher for any goods, wares, merchandise, produce, commodity,
l^roperty, or other thing, of any description or character what-
ever, to any person, company, or corpoi'ation, as security for
any money loaned, or for other indebtedness or indemnity, un-
less such goods, wares, merchandise, produce, commodity, prop-
erty, or other thing, so receipted for, shall be, at the time of
issuing such receipt or voucher, the property, without incum-
brance, of said warehouseman, and if incumbered by proper
lien, then the character, extent and amount of that lien shall
INDIANA. 196
be fully set forth and explained in the receipt, and shall be
actually in store and under control of said warehouseman at
the time of giving such receipt or voucher. Id. sec. 6545.
No receipt while one outstanding :
No warehouseman or other person shall issue any receipt or
other voucher for any goods, wares, merchandise, produce, or
other thing enumerated in section one of this act (sec. 6541),
while any former receipt for such goods, wares, merchandise,
produce, or thing as aforesaid, or any part thereof, shall be out-
standing and uncancelled. Id. sec. 6546.
Warehouse receipts — Unlawful issue :
That it shall be unlawful for any corporation, firm or person,
their agents or employees, to issue, sell, pledge, assign, or trans-
fer in this state, any receipt, certificate or other written in-
strument purporting to be a warehouse receipt, or in the simili-
tude of a warehouse receipt or designed to be understood as a
warehouse receipt, for goods, wares or merchandise stored or
deposited, or claimed to be stored or deposited, in any ware-
house, public or private, or any other state, unless such re-
ceipt, certificate or other written instrument shall have been
issued by the warehouseman operating such warehouse. Id.
sec. 6546a.
False receipts :
It shall be unlawful for any corporation, firm or person, their
agents or employees, to issue, sell, pledge, assign or transfer
in this state any receipt, certificate or other written instrument
for goods, wares or merchandise claimed to be stored or de-
posited, in any warehouse, public or private, in any other state,
knowing that there is no such warehouse located at the place
named in such receipt, certificate or other written instrument,
or if there be a warehouse at such place, knowing that there are
no goods, wares or merchandise stored or deposited therein as
specified in such receipt, certificate or other written instrument.
Id. sec. 65466.
Description must he definite :
It shall be unlawful for any corporation, firm, or person, their
196 INDIANA LAWS.
agents or employees, to issue, sign, sell, pledge, assign or trans-
fer, in this state, any receipt, certificate or other written in-
strument evidencing, or purporting to evidence, the sale, pledge,
mortgage or bailment of any goods, wares or merchandise stored
or deposited, or claimed to be stored or deposited, in any ware-
house, public or private, in any other state, unless such re-
ceipt, certificate or other written instrument shall plainly desig-
nate the number and location of such warehouse, and shall also
set forth therein a full, true and complete copy of the receipt
issued by the warehouseman operating such warehouse wherein
such goods, wares, or merchandise are stored or deposited, or
are claimed to be stored or deposited: Provided, That the pro-
visions of this section shall not apply to the issue, signing, sale,
pledge, assignment or transfer of bona fide warehouse receipt
issued by the warehouseman operating public or bonded ware-
houses in other states, according to the laws of the state wherein
such warehouses may be located. Id. sec. 6546c.
Penalty :
Every corporation, firm or person, agent or employee, who
shall knowingly violate any of the provisions of this act shall
be deemed guilty of a nnsdemeanor, and upon conviction thereof
shall be fined in any sum not less than fifty nor more than one
thousand dollars, to which may be added imprisonment in the
county jail for any period not exceeding one year. Id. sec. 6546<i.
Not to sell receipted property :
No warehouseman or other person shall sell or incumber, ship,
transfer, or in any manner remove beyond his immediate con-
trol any goods, wares, merchandise, produce, commodity, prop-
erty or chattel ff)r which a receijit or voucher shall have been
given, without the written consent of the person holding anfl
producing such receipt. Id. sec. 6547.
Act extends to ^auger's receipts :
The provisions of this act shall extend to ganger's receipts
issued for distilled spirits which may be in the bonded ware-
houses of the distillers in the state of Indiana under the con-
trol of the revenue officers of the United States or under any
INDIANA. 197
law of the United States ; and such receipts shall be transferable
by indorsement as provided in section three of this act. Id.
sec. 6548.
Penalty for cheating or swindling — Criminal and civil :
Any warehouseman or person who shall willfully, knowingly,
and purposely violate any or the provisions of this act shall be
deemed a cheat and swindler, and subject to indictment in a
court of competent jurisdiction, and, upon conviction, shall be
fined in any sum not exceeding five thousand dollars, and shall
be imprisonetl in the state prison for any determinate period
not exceeding five years. Every person aggrieved by the vio-
lation of any of the provisions of this act shall have and main-
tain an action against the person, company, or corporation
violating the same, to recover all damages, immediate, conse-
quent, and legal, which he may have sustained by reason of
such violation as aforesaid, whether such person may have
been convicted criminally or not. Id. sec. 6549.
Receipt as collateral, how sold :
When any receipt or voucher shall have been issued, as pro-
vided by this act, and used or pledged as collateral security for
the loan of money, or to indemnify, for any purpose, the bank,
person, or corporation 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 to in writing by the parties at
the time of making the pledge. Id. sec. 6550.
Warehouses— Crimes against — Burglary :
Whoever, in the night-time, breaks and enters into any dwell-
ing house, kitchen, smoke-house, out-house, shop, office, store-
house, ware-house, mill, distillery, pottery, factory, barn or
stable, school-house, church, meeting-house, or building used
for the purpose of religious worship, boat, wharf-boat, or other
water-craft, car-factory, freight-house, station-house, depot, or
railroad car, with intent to commit a felony, is guilty of burg-
lary and, upon conviction thereof, shall be imprisoned in the
state prison not more than fourteen years nor less than two
198 INDIANA LAWS.
years, and disfranchised and rendered incapable of holding any
office of trust or profit for any determinate period. Id. sec. 1929.
Entering house, etc., to conmiit felony :
Whoever, in the day-time or night-time, enters any dwelling-
house, kitchen, smoke-house, out-house, shop, office, store-
house, ware-house, mill, distillery, pottery, factory, barn, stable,
school-house, church, meeting-house, or building used for the
purpose of religious worship, boat, wharf-boat, or other water-
craft, car-factory, freight-house, station-house, depot, or rail-
road car, and attempts to conmiit a felony, shall be imprisoned
in the state prison not more than fourteen years nor less than
two years, and disfranchised and rendered incapable of holding
any office of trust or profit for any determinate period. Id.
sec. 1930.
House breaking in day-time to steal :
Whoever, in the day-time, breaks and enters into any dwell-
ing-house, kitchen, smoke-house, out-house, shop, office, store-
house, ware-house, mill, distillery, pottery, factory, barn, stable,
school-house, church, meeting-house, or building used for the
purpose of religious worship, water-craft, car-factory, freight-
house, station-house, depot, or railroad car, with intent to com-
mit the crime of larceny, shall be imprisoned in the county jail
not more than six months nor less than ten days, and fined not
exceeding two hundred dollars. Id. sec. 1931.
INDIANA. 199
DECISIONS AFFECTING WAREHOUSEMEN.
A.
Bailment — What constitutes, contract of.
A receipt drawn by a warehouseman for a certain quantity
of wheat "received in store subject to our charges. Fire at
owner's risk" constitutes a contract of bailment. Drudge v.
Leiter et at., 18 Ind. App. 694.
Same — Injury.
In an ordinary case of bailment, uncontrolled by special
stipulation, and in the absence of negligence or misconfluct
by the bailee, an injury to the property bailed falls on the bailor.
Conwell V. Smith, 8 Ind. 530.
Same — Destroyed by accident.
Where property in the custody of a bailee is destroyed acci-
dentally, without any fault on his part, the bailee is not liable.
Drudge v. Leiter et at., 18 Ind. App. 694.
Bailment and sale.
Where it appeared from the evidence that wheat which had
been delivered to dealers had been placed in railroad cars for
shipment and not stored in warehouse, and where they retain
it for the purpose of obtaining a better price therefor, it was
held that this constituted a sale of the wheat and not a bail-
ment, and, in event of destruction by fire, the dealers were liable
for the unpaid price thereof. Woodward et al. v. Boone et al.,
126 Ind. 122.
Same — Agreement to deliver flour and bran for wheat deposited.
Defendants were dealers in grain, conducting a warehouse
and flour mill, and the plaintiff agreed to furnish wheat to them,
for which the defendants were to deliver, on request, a desig-
nated number of pounds of flour and bran for each bushel of
wheat delivered. The flour and bran were to remain in the
possession of the defendants subject to delivery on demand of
the plaintiff. Before the delivery of all of the flour and bran
200 INDIANA DKCISIONS.
to the plaintiff, the mill and warehouse were burned without
any negligence on the part of the defendants. Under the above
facts, it was held that it was essentially a contract of sale, not
a bailment, and that the defendants were, therefore, liable for
the value of the flour and bran undelivered. . Woodicard et al.
V. Semans et al, 125 Ind. 330.
Same — Commingling of grain.
The plaintiff delivered, to the defendant w'arehouseman, a
large quantity of grain and took a receipt therefor in which it
was stated that the grain had been received to be stored free for
tliirty days, after which time there would be a certain charge
each month per bushel. The receipt further stated that the
defendants agreed to pay the market price for such grain at
any time between the date of the issuance thereof and nearly
a year thereafter, and that the grain was held subject to ow^ner's
risk of loss by fire or heating. The evidence also showed that
the defendants' warehouse and most of the contents had been
destroyed by fire without any fault or negligence on their part.
After the fire the defendants had some grain which was not
destroyed and which they distributed, pro rata, among their
depositors to all those who would accept, the plaintiffs declin-
ing to do so. The court stated as conclusions of law, first, that
the title to the grain remained in the plaintiffs and that the
defendants were liable as bailees; second, that the defendants
were not liable to the plaintiff for the value of such grain nor
for damages resulting from its destruction; third, that the law
is with the defendants and that the plaintiff should take nothing
by his suit. It w^as held on appeal that the conclusions of law
were correct, that the contract w^as one of bailment and not of
sale and therefore the judgment given for the defendant was af-
firmed. McGrew v. Thayer et al, 24 Ind. App. 578.
B.
Warehouseman — Manufacturing company cannot act as.
A corporation organized under the laws for the incorporation
of manufacturing and mining companies, for the manufacture
and sale of nails and other products of steel and iron, is not
authorized to engage in the business of a public or private ware-
INDIANA. 201
houseman, or to issue waroiiouso receipts. Franklin Nat. Bank
et al. V. Whitehead et al., 149 Ind. 560.
Same — Sa77ie — Statute construed.
A manufacturing corporation not empowered to do the busi-
ness of a pubHc warehouseman cannot be authorized to do so
by the county auditor upon petition, under sec. 8704, Burn's
R. S. 1894, provi(Hng that any person or incorporated com-
pany desiring to Iveep a pubhc warehouse shall be entitled to
do so upon receiving a permit therefor from the county auditor
of the county in which such warehouse shall be kept. Id.
Same — Same — Creditors bound to know powers of corporation.
Creditors of a corporation organized under the laws for the
incorporation of manufacturing and mining companies are bound
to know that such corporation has no power to carry on either
a public or private warehouse or issue warehouse receipts. Id.
Same — Same — Contract ultra vires — Void contracts.
The doctrine, " that when a corporation enters into a contract
merely beyond its powers, which if made by a private person
would have been binding upon him, and such contract has been
performed by the other party thereto, the corporation will not
be permitted to deny its power to make such contract," does not
apply to contracts that are forbidden by statute, or are con-
trary to public policy. Id.
Ordinary care.
Warehousemen and wharfingers are not responsible for all
goods intrusted to their care and not lost through the act of
God or public enemy ; but are only responsible for ordinary care
and diligence. Cox et al. v. 0' Riley and Another, 4 Ind. 368;
Cincinnati & Chicago A. L. R. R. Co. v. McCool, 26 Ind. 140.
Conversion — Demand and refusal.
Where the bailor demands the property intrusted to his bailee
and pays, or makes a valid tender to pay, the storage charges
due to date, if the warehouseman refuse to deliver, this consti-
tutes a conversion. Pribble v. Kent, 10 Ind. 325.
202 INDIANA DECISIONS.
Same — Action for.
Where a warehouseman sold wheat on deposit and appro-
priated the money to his own use, an action against such ware-
houseman, waiving the conversion and seeking a recovery upon
an impHed contract, must be for the price received for the
wlieat, and not for the value of the converted wheat. Drudge
V. Letter et at., 18 Ind. App. 694.
Same — Plaintiff must he oivner or entitled to possession.
A person cannot maintain an action for conversion where he
neither owns nor is entitled to possession of the property alleged
to have been converted. Baker v. Brown, 17 Ind. App. 422.
Same — Pleadings — Sufficiency of complaint.
In an action against a warehouseman for the conversion of
certain corn deposited with him, the complaint should allege
that prior to the commencement of the action defendant did
not have a sufficient f[uantity of corn of the kind and quality
deposited with him with which to meet the demand by plain-
tiff; that a demand was made; that storage charges or expenses
were tendered, or that storage charges had not attached. Ba-
ker v. Born, 17 Ind. App. 422.
Same — Same.
An allegation in a complaint in an action against a ware-
houseman for conversion of a quantity of corn deposited with
him, that on and before a specified date defendant had no corn
in his warehouse or under his control, of the quality of the
plaintiff's corn deposited prior to a specified earlier date, but
had sold such corn, is not equivalent to an allegation that on
a certain day the defendant did not have in his warehouse
sufficient corn of the kind and quality deposited by plaintiff. Id.
H.
Sale for storage charges without notice — Conversion.
Sale for storage charges without notice to the owner con-
stitutes a conversion of the property. Jordan v. Shireman, 28
Ind. 136.
INDIANA. 203
Lien for charges.
The bailor of goods, deposited in a warehouse, retains the
property in the goods, and the warehouseman has a Hen thereon
for his charges. Pribhle v. Ke7it and Another, 10 Ind. 325.
I,
Commingling of grain — Tenants in common — Destruction by
fire — Liability of warehouseman.
Owners of wheat deposited with a warehouseman engaged
in receiving grain in store and minghng same in common re-
ceptacle and selling and shipping the grain so stored, are owners
as tenants in common of the entire quantity of the grain so
commingled, and a depositor of grain who has so deposited a
certain quantity is an owner of an undivided portion of the
whole amount, not only while his grain is actually present in
the common store, but his title as tenant in common will con-
tinue as long as any grain so deposited by any of the depositors
remains in store, unless withdrawn or transferred by him. If
at any time the whole mass is less than the aggregate deposits,
then each depositor owns such proportion of the grain in store
as his deposit bears to the aggregate of all the deposits; and if
the warehouse and contents be destroyed by fire, without fault
of the warehouseman, at a time when there is not a sufficient
amount of grain in the warehouse to satisfy the demands of all
depositors, by reason of sales made thereof by the w^arehouse-
man, a depositor can recover for the value of the grain deposited
by him, less his proportionate share of the aggregate amount
on deposit at the time of the fire. Drudge v. Leiter et al., 18
Ind. App. 694; Rice et al. v. Nixon, 97 Ind. 97 ; Schindler et al. v.
Westover et al, 99 Ind. 396.
Same — Sale — Innocent purchaser protected.
Where grain is mixed in a common mass in a warehouse, with
grain belonging to the owner of the warehouse and the ware-
houseman is regularly selling grain to purchasers from such
common mass, such depositor cannot set up his title to the
grain against that of an innocent purchaser. Preston et al. v.
Witherspoon et al., 109 Ind. 457.
204 INDIANA DECISIONS.
M.
Pledge — Receipts of private warehouseman against his own goods
— Creditors protected — Bankruptcy.
Dealers in apples and other produce issued a receipt repre-
senting their own property stored in their own warehouse and
pledged the same to secure the payment of a loan. Subse-
quently, they were adjudged bankrupts, and the assignee took
possession of and sold all of their property, including the apples
represented by the j)ledged receipt. The pledgee, a national
bank, brought action, asking that a lien, on the fund arising
from the sale of the apples, be declared in its favor. It ap-
peared from the evidence that the defendants had never been
engaged legally in the business of warehousemen, and, on ap-
peal, it was held that the receipt which the bank held was not
a warehouse receipt within the meaning of the statute, and that
the bank must stand as a common, instead of a preferred, cred-
itor of the bankrupts. Adorns v. Merchants' National Bank of
Indianapolis, 2 Fed. Rep. 174.
N.
Cold storage — lyijury by deleterious odors — Contract to keep the
goods therein — Breach of.
The defendant, a warehouseman, was sued by the plaintiff
for damage to a large quantity of butter which was stored with
the former in the cold storage rooms in his warehouse. The
complaint alleged that owing to the fact that the butter had
become impregnated with deleterious odors and flavors, that
it was greatly diminished in value. It being shown on the trial
that the butter had been so injured, judgment was given for the
plaintiff. Holt Ice & C. S. Co. v. Arthur Jordan Co., 25 Ind.
App. 314.
Loss by accident — Negligence must be shown.
Where goods intrusted to a warehouseman are accidentally
destroyed, there being no negligence shown on his part, he is
not liable for their loss. Drudge v. Leiter et al, 18 Ind. App. 694.
Evidence — Burden of proof — Prima facie case — Negligence.
In an action against a warehouseman for the loss of butter
INDIANA. 205
stored with liim in his cold storage department, the court in-
structed the jury, in effect, that the general rule was that the
burden of proof was on the plaintiff to prove negligence, but
that when the bailor had proved delivery to the warehouseman
and the return of the butter in a damaged condition, that the
plaintiff' had made out a prima facie case and that the burden
then shifted t(j the warehouseman to account for the injury
in some manner consistent with the exercise of ordinary care
on his part. It was held that this instruction was substan-
tially correct and the case was affirmed on appeal, the court
observing, however, that, strictly speaking, there was no shift-
ing of the burden of })roof and that it remained upon the
plaintiff throughout. That it might be true that the burden
of the proceeding did shift; that when the bailor had shown a
delivery in good condition and a failure to deliver on demand
or a delivery in a damaged condition, the onus was upon the
defendant to prove that the injury was caused without his
fault, the plaintiff having made out a prima facie case against
the warehouseman. Holt Ice & C. S. Co. v. Arthur Jordan Co.,
25 Ind. App. 314.
Same — Best evidence to prove condition of eggs.
The best evidence to prove the condition of eggs alleged to
have been injured while in cold storage is the testimony of the
candler who examined them. An unsigned memorandum made
at the time by another person and transcribed by a bookkeeper
in the employ of the plaintiff' does not constitute the best evi-
dence as to the condition of the eggs. Adams et at. v. Sullivan,
100 Ind. 8.
0.
Measure of damages — Value on date of demand.
Where the owner of goods stored wdth a warehouseman de-
mands their return after paying charges and is met with a re-
fusal, the measure of damages is their value at the time of
demand and refusal. Pribble v. Kent, 10 Ind. 325; Stevens v.
Loiv, 2 Hill, 132.
Same — Place of injury — Average price.
In an action for the recovery of the value of eggs injured while
206 INDIANA DECISIONS.
being ill cold storage, the court instructed the jury as follows:
"The plaintiff is, however, entitled to recover the highest market
price he could have obtained, at the time of the injury, for the
goods, had the defendants fully performetl their duty and prop-
erly preserved the goods during the time they were bound
under their contract to keep them in storage." It was held
that, in spite of the obscurity of the phraseology of this instruc-
tion, it was erroneous, in so far as it stated to the jury that, in
event of a finding for the jilaintiff, the eggs should have been
estimated at the highest market value which the plaintiff could
have obtained for them, whether by shipment or otherwise, at
the time they were injured. The jury ought to have been told
that, in assessing the damages, the eggs should have been esti-
mated according to the market value in the place where they
were injured; further, where the market is fluctuating and the
prices at the time of injury were indefinite, the average range
of price about the time affords the proper standard of the
market value. Adams et al. v. Sullivan, 100 Ind. 8.
P.
Insurable interest — Grain commingled.
It appeared that the plaintiffs, commission merchants, en-
gaged in buying and selling grain, in connection with their busi-
ness owned and conducted a grain elevator in the usual manner.
Those who took i-eceipts from the plaintiffs knew that their
grain could never be distinguished from the mass with which
it was mingled. The plaintiffs insured in their own name, with
the defendant, the grain stored to the full value thereof. In
an action for the recovery of the amount of the policy, it was
held that the plaintiffs had an insurable interest therein and
that the defendant was liable to them for the amount of the
loss. Baxter v. Hartford Fire Ins. Co., 12 Fed. Rep. 481.
Q-
Warehouse receipt — Representations .
Warehouse receipts represent as true, two very essential
things: That the warehouseman received the property men-
tioned in the receipts, as warehouseman, and that it will be
delivered only on the return of the certificate, properly indorsed.
INDIANA. 207
If the warehouseman allows the goods, represented by the re-
ceipts, to be withdrawn without the knowledge of the person,
who had relied ui)on the representations in the receipts, he must
bear the loss. Babcock et al. x. Peoples' Savings Bank, 118
Ind. 212.
Same — Contract .
A warehouse receipt is a contract of bailment and parol evi-
dence is not receivable to vary its terms. Toner et al. v. Citi-
zens' State National Bank, 25 Ind. App. 29.
Sayne — General rule — A contract — Parol evidence — Custom.
As a general rule, a warehouse receipt is not a contract and
parol evidence may be admitted touching its subject-matter,
while the rule in regard to contracts generally is that such evi-
dence is not admissible. A receipt, however, may be so drawn
as to constitute a contract, and in the interpretations or con-
structions of a contract established customs may be considered.
Pribhle v. Kent, 10 Ind. 325.
Same — Construction — Commercial usage.
A receipt given by a warehouseman for wheat received may
be construed by adopting the meaning of its own terms as ex-
plained by commercial usage. Drudge v. Leiter et al., 18 Ind.
App. 694.
Same — Mining and manufacturing company cannot issue.
A corporation organized under the mining and manufactur-
ing laws is not authorized to engage in the warehouse business
or to issue warehouse receipts. Franklin National Bank et al.
V. Whitehead et al., 149 Ind. 560.
Same — Issued to secure warehouseman' s own debt — Knowledge
— Public and private warehouseman.
A public warehouseman has no power to issue warehouse re-
ceipts upon his own property in his possession, and deliver
the same as a pledge to secure an indebtedness. And parties
dealing with a public warehouseman are heJd to know that he
has no such power. If a private warehouseman has such power
208 INDIANA DECISIONS.
it is by virtue of section 8724, Burn's R. S. 1894. National Bank
et at. V. Whitehead et al., 149 Ind. 560.
Same — Same — Not a warehouse receipt.
Where a debtor who is not a warehouseman issues a receipt
purporting to be a warehouse receipt, on property in his pos-
session and owned by him, for the sole purpose of securing a
creditor, the same is not in any sense a warehouse receipt. Id.
Same — Negotiability — Private warehouseman.
Receipts issued by a private warehouseman against his own
property are not warehouse receipts within the meaning of
the act of March 9, 1875. Adams v. Merchants' National
Bank, 2 Fed. Rep. 174.
Same — As collateral security — Without indorsement — Pledgee
takes subject to equities.
The plaintiff took a warehouse receipt issued by the defend-
ant warehouseman as security for the payment of indebtedness
due the warehouseman from the person to whom the receipt
was issued. The receipt was not indorsed to the plaintiff but
was simply delivered to him. Default being made in the pay-
ment of the indebtedness, the plaintiff instituted an action
against the warehouseman for the recovery of the property
represented by the receipt. The person to whom the receipt
was issued was made a party defendant to the suit and he de-
faulted. The defendant warehouseman offered evidence to
show that the person to whom the receipt was issued was in-
debted to him and in his motion for a new trial claimed that
the damages were excessive and that he should have been given
credit for this sum. It was held on appeal that this was cor-
rect, that the plaintiff had taken the receipt without indorse-
ment and that therefore the claim of the defendant warehouse-
man against the person to whom the receipt was issued was
valid. The case was therefore reversed and remanded. Toner
et al. V. Citizens' State National Bank, 25 Ind. App. 29.
Same — Delivery of goods ivithout surrender of receipt — Ware-
houseman liable — Bona fide holder protected.
The plaintiff, in good faith, loaned to a commission merchant
INDIANA. 209
$4,000, and accepted as security therefor a warehouse receipt
issued by the defendant to the commission merchant, in wliich
it was stated that the flour represented by the receipt was de-
Uverable only upon the return thereof, properly indorsed, and
on payment of charges and insurance. Subsequently, and with-
out plaintiff's knowledge, defendant allowed the commission
merchant to remove the flour represented by the receijjt. The
court hdd that this constituted a conversion for which the de-
fendant was liable to the plaintiff. Babcock et at. v. Peoples'
Savings Bank, 118 Ind. 212.
B.
Bill of lading — Parol evidence.
A bill of lading, in so far as it is a receipt, may be explained,
. varied or even contradicted by parol evidence ; but as a con-
tract, expressing the terms and conditions upon which the
property is to be transported, it is to be regarded as merging
all prior and contemporaneous agreements of the parties, and,
in the absence of fraud, concealment or mistake, its terms or
legal import, when free from ambiguity, cannot be explained
or added to by parol. Louisville, E. & St. L. R. R. Co. v. Wilson
et al., 119 Ind. 352; Indianapolis & C. R. R. Co. v. Remmy, 13
Ind. 518; Snoiv v. Indiana, etc., R. W. Co., 109 Ind. 422.
14
210 INDIAN TERRITORY LAWS.
CHAPTER XIV.
INDIAN TERRITORY.
LAWS PERTAINING TO WAREHOUSEMEN.
If any carrier or other bailee shall embezzle, or convert to his
own use, or make way with or secrete with intent to embezzle,
or convert to his own use, any money, goods, rights in action,
property, effects or valuable security, which shall have come to
his possession, or have been delivered to him, or j^laced under
his care or custody, such bailee, although he shall not break
any trunk, package, box of other thing in which he received
them, shall be deemed guilty of larceny, and on conviction
shall be punished as in cases of larceny. An. Stat. 1899, sec.983.
Note. It seems that there are in Indian Territory no decisions affecting
warehousemen.
IOWA. 211
CHAPTER XV.
IOWA.
LAWS PERTAINING TO WAREHOUSEMEN.
Elevator or warehouse certificates :
All persons, firms or corporations engaged in owning or deal-
ing in grains, seeds or other farm products; the slaughtering of
cattle, sheep and hogs, and dealing in the various products
therefrom ; the buying or selling of butter, eggs, cheese, dressed
poultry or other commodities; who own or control the buildings
wherein any such business is conducted, or such commocUties
stored, may issue elevator or warehouse certificates for any of
such commodities actually on hand and in store, the property of
the person, firm or corporation issuing such certificates and may
by such method sell, assign, transfer, pledge or incumber such
commodity to the amount described in such certificate. Such
certificates shall contain the name and address of the person,
firm or corporation issuing them, and the name and address of
the party to whom issued, the location of the elevator, ware-
house, building or other place where the commodity therein
described is stored, the date of the issuance of such certificate,
the quantity of each commodity therein mentioned, the brands
or marks of identification thereon, if any, and be signed by the
person or firm issuing the same, unless issued by a corporation,
in which case they shall be signed by such corporation by its
secretary or business manager if it has such manager other than
its secretary. Code of la. 1897, see. 3122.
Declaration :
Before any such person, firm or corporation is authorized to
issue such elevator or warehouse certificates, he or it must file
in the office of the recorder of deeds, in the county where any
such elevator, warehouse or other building is situated, a written
declaration, giving the name and place of residence or location
212 IOWA LAWS.
of such person, firm or corporation, that he or it designs keeping
or controlling an elevator, warehouse, crib or other place for
the sale and storage of commodities mentioned in the preceding
section, an accurate description of the elevator, warehouse,
crib or other building to be kept or controlled and where the
same is or is to be located, the name or names of any person,
other than the one making such declarations, who has any in-
terest in such elevator, warehouse or other building, or in the
land on which it is situated, such declaration to be signed and
acknowledged by the party making the same before some officer
authorized to take acknowledgments of instruments, and re-
corded in the chattel mortgage record, the party making such
declaration, to be treated as the vendor in indexing such dec-
laration, and the public as vendee. Id. sec. 3123.
Effect of certificate — Assignment :
Each certificate issued by any person, firm or corporation
shall have printed on the back thereof a statement that the
party issuing it has complied with the requirements of the pre-
ceding section, giving the book, page and name of the county
where the record of such declaration may be found; and, when
such certificate is so issued and delivered, it shall have the effect
of transferring to the holder thereof the title to the commodities
therein described or enumerated, and shall be assignable by
written indorsement thereon, signed by the lawful holder there-
of, which shall transfer the title of commodities therein enumer-
ated, and be presumptive evidence of ownership in such holder.
No record or other notice shall be necessary to protect the rights
of the holder of the certificate as against subsequent purchasers
of the property. Id. sec. 3124.
Registration of certificates and transfers :
All certificates given under the provisions of this chapter
shall be registered by the party issuing them in a book kept
for that purpose, showing 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 certificates
IOWA. 213
that may be outstanding and in forco, or his agent or attorney;
and when any connnodity eniunei-ated in any such certificate
is deHvcred to the holder thereof, or it in any other manner be-
comes inoperative, tlie fact and date of such dehvery or other
termination of such habihty shall be entered in such register
in connection with the original entry of the issuance tiiereof.
Id. sec. 3125.
Property subject to certificate :
No person, firm or corporation shall issue any elevator or
warehouse certificate for any of the commodities enumerated
in this chapter unless such property is actually in the elevator
or warehouse or other building mentioned therein as being the
place where such commodity is stored, and it shall remain there
until otherwise ordered by the lawful holder of such certificate,
subject to the conditions of the contract between the ware-
houseman and the person to whom such certificate was issued,
or his assignee, as to the time of its remaining in store ; and no
second certificate shall be issued for the same property or any
part thereof while the first is outstanding and in force, nor
shall any such commodities be by the warehouseman sold, in-
cumbered, shipped, transferred or removed from the elevator,
warehouse or other building where the same was stored at the
time such certificate was issued, without the written consent
of the holder thereof. Id. sec. 3126.
Section 2171 of the Code of 1873 (containing provisions
similar to above) construed :
A warehouse receipt issued to the proprietor of the ware-
house against his own goods solely for the purpose of using
the same as collateral security, held invalid within the meaning
of section 2171 of the Code which contains provisions similar
to the above. Sexton & Abbott v. Graham et at., 53 la. 181.
Damages :
Any one injured by the violation of any of the provisions of
this chapter may recover his actual damages sustained on ac-
count thereof, and if willfully done, in addition thereto, exem-
plary damages in any sum not exceeding double the actual dam-
214 IOWA LAWS.
ages, which actual damages shall be found and returned by
special verdict. Id. sec. 3127.
Section 2175 of the Code of 1873 (eontaiiiiug provisions
similar to above) construed :
In ortler to hold a warehouseman liable for exemplar}- dam-
ages under the above section, it nmst be shown that he was
guilty of a willful departure from his duties as a warehouseman
and a mere failure to observe all the legal requirements in at-
tempting to enforce his right of sale is not sufficient. Jeffries
V. Snyder J 110 la. 359.
Penalties :
Any person who shall willfully alter or destroy any register
or certificates provided for in this chapter, or issue any receipt
or certificate without entering and preserving in such book, the
registered memorandum; or who shall knowingly issue any
certificate herein provided for when the commodity or com-
modities therein enumerated are not in fact in the building or
buildings it is certified they are in; or shall, with intent to de-
fraud, issue a second or other certificate for any such conmiodity,
for which, or for any part of which, a former valid certificate
is outstanding and in force; or shall, while any valid certificate
for any part of the commodities mentioned in this chapter is
outstanding and in force, sell, incumber, ship, transfer, or re-
move from the elevator, 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 certificate; 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 dollars,
or by imprisonment in the penitentiary not exceeding five
years. Id. sec. 3128.
Section 2171, Code 1873 (containing similar provisions to
above) construed :
Weighmasters' tickets held not warehouse receipts in meaning
of similar provisions to above. Cathcart v. Snow, 64 la.
584.
IOWA. 215
Certificates Jis evidence — Lieu :.
All warehouse certificates or other evidences of the deposit
of property, issued by any warehouseman, wharfinger or other
person engaged in storing property for others, shall be in the
hands of the holder thereof presumptive evidence that the title
to the property therein described is in the holder of such in-
strument. Such property shall remain in store until otherwise
ordered by the holder of such certificate or other evidence of
dei)osit, and shall not be removed by such warehouseman, or
knowingly suffered to pass from his control, without the written
consent of the depositor or his assignee, and shall be subject to
all just charges for storage thereof; and such warehouseman or
other depositary shall have a lien thereon for such charges,
and may retain possession thereof until they are paid. Id.
sec. 3129.
Unclaimed property— Lieu for charges :
Property transported by, or stored or left with, any forward-
ing and commission merchant, express company, carrier or
bailee for hire shall be subject to a lien for the lawful charges
thereon for the transportation and storage thereof, or charges
and services thereon or in connection therewith; and if any
such property shall remain in the possession, unclaimed, of any
of the persons named in this section for three months, with the
just charges thereon due and unpaid, such person shall first
give notice of the amount of the charges thereon to the owner
or consignee thereof, if his whereabouts is known, if not, he shall
go before the nearest justice of the peace, and make an affi-
davit, stating the time and place where such property was re-
ceived, the marks or brands by which the same is designated, if
any, and, if not, then such other description as may best answer
the purpose of indicating what the property is, and the probable
value of the same, and to whom consigned, also the charges paid
thereon, accompanied by the original receipt for such charges
and by the bill of lading, also any other charges due and unpaid,
and whether the whereabouts of the owner or consignee is known
to the affiant, and whether such notice was first given to him as
herein provided ; which affidavit shall be filed by the justice for
the inspection of any one interested therein, and an entry made
216 IOWA LAWS.
in the entry book of the substance of the affidavit, and a state-
ment when, where and by whom made. Id. sec. 3130.
Section 26, General Statutes, chapter 107 of Laws 1873
(containing provisions similar to above), construed :
Under similar provision to the above, it was held that the
notice to the owner must be given before the sale and that if
this be done the statute is complied with. It is not necessary
that in every case the notice be given to the owner before the
expiration of three months from the receipt of the goods. Jef-
fries V. Snyder, 110 la. 359.
Sale — Notice :
If the property remains unclaimed and the charges unpaid,
the person in possession, if the probable value does not exceed
one hundred dollars, shall advertise the same for fourteen days,
by posting notices in five of the most public places in the city
or locality where said property is held, giving such description
as will indicate what is to be sold ; if the goods exceed the proba-
ble value of one hundred dollars, the length of notice shall be
four weeks, and there shall be a publication thereof for the same
length of time in some new^spaper of general circulation in the
locality where the property is held, if there be one, and, if not,
then in the next nearest newspaper published in that neighbor-
hood, at the end of which period, if the property is still unclaimed
or charges unpaid, it may be sold by him at public auction, be-
tween the hours of ten o'clock a. m. and four o'clock p. m., for
the highest price the same will bring, which sale may be con-
tinued from day to day, by puljlic announcement to that effect
at the time of the adjournment, until all the property is sold;
and from the proceeds thereof all charges, costs and expenses
of the sale shall be paid, which sales shall be conducted after the
manner of sheriffs' sales, and like costs taxed for the services.
Msec. 3131.
Section 2179 of the Code of 1873 (containing provisions
similar to above) construed :
Whether or not the value of the goods is less or more than
one hundred dollars, and whether or not the notices were posted
IOWA. 217
in such places as to coiifoi'iu to the nHiuireiiients of siinihir pro-
visions to the above, held proper tiuestions for the jury. Jeffries
V.Snyder, 110 la. 359.
Perishable property :
Fruit, fresh hsh, oysters, game and other perisliable property
thus held shall be retained twenty-four hours, and, if not claimed
within that time and charges jiaid, after the proper affidavit is
made as required by the second preceding section, may be sold
either at public or private sale, in the discretion of the party
holding the same, for the highest price that the same will bring,
and the proceeds of the sale disposed of as provided in the last
preceding section. In either case, if the owner or consignee of
said unclaimed property resides in the same city, town or locality
in which the same is held, and is known to the agent or party
having the same in charge, then personal notice shall be given
to him in writing that the goods are held subject to his order
on payment of charges, and that, unless he pays the same and
removes the property, it will be sold as provided by law. Id.
sec. 3132.
Disposition of proceeds :
After the charges on the property and the costs of sale have
been taken out of the proceeds, the seller shall deposit the ex-
cess with the county treasurer of the county where the goods
were sold, subject to the order of the owner, take a receipt
therefor, and deposit the same with the county auditor. At
the same time he shall also file a verified schedule of the prop-
erty with the treasurer, giving the name of the consignee or
owner, if known, of each piece of property sold, the sum realized
from the sale of each separate package, describing the same,
together with a copy of the advertisement hereinbefore pro-
vided for, and a full statement of the receipts of the sale, and
the amount disbursed to pay charges and expenses of sale, which
shall all be filed and preserved in the treasurer's office for the
inspection of any one interested in the same. Id. sec. 3132.
Duty of treasurer — Refunding? to owner :
If the money remains in the hands of the treasurer unclaimed,
218 IOWA LAWS.
he shall place the same to the credit of the county in his next
settlement, and if it so remains unclaimed for one year, it shall
be paid to the school fund; but any claimant therefor may any
time within ten years appear before the board of supervisors
and establish his right to the same by competent legal evidence,
in which case the original sum deposited shall be paid liim out
of the county treasury. Id. sec. 3133.
False warehouse receipts— Penalty :
If any person sell, transfer or dispose of any receipt or voucher,
given or purporting to have been given by any person for prop-
erty in store, knowing that such person has not in his posses-
sion such property, or any part thereof, he shall be fined not
exceeding one thousand dollars and imprisoned in the peni-
tentiary not exceeding five years. Id. sec. 5068.
Section 4088 of the Code of 1873 (containing provisions
similar to above) construed :
Where a warehouseman shipped wheat out of the state, with-
out the return of the warehouse receipt, held, under section 4088
of the Code of 1873, that he was criminally liable, that such stat-
ute was for the protection of the holder of the receipt and also
third persons. Evidence tending to show the shipment to have
been made with consent of owner held inadmissible. State v.
Stevenson, 52 la. 701.
IOWA. 219
DECISIONS AFFECTING WAREHOUSEMEN.
A.
Bailment— Bailee may maintain action for loss or damage.
A bailee, altliough he has not the title, has, in addition to the
possession of the chattel, a special limited or qualified property
therein, which gives him a right of action against any one,
whether the bailor or a stranger, interfering with his possession
or doing damage to the chattel. Allen v. Barrett & Carlton
et al, 100 la. 16.
Bailment and sale.
A warehouseman received wheat with the understanding that
when the depositor got ready to sell the former would give the
highest market price therefor or an equal amount of wheat of
the same grade and quality. It was shown that it was a custom
among Avarehousemen, when they received wheat to ship it for
sale, w^henever they saw fit, retaining a sample. It was held
that this constituted a sale and not a bailment. Johnston v.
Browne et al, 37 la. 200; Barnes Bros. v. McCrea & Co. et al
75 la. 267.
Same — Commingling of grain.
Where a receipt, given for grain received in storage, provided
in express terms that the grain might be stored with other
grain of the same kind and grade, and it Avas shown that the
warehouseman was in the habit of issuing such receipts to his
other depositors, and it was also shown to be his known practice
to purchase grain on his own account and mingle it with the
grain of his depositors and that he was continually making
sales from the grain stored, so that in all likelihood the whole
mass was changed during a period of a few months, it was held
that the transaction was one of bailment and not of sale and
that the depositors and warehouseman became tenants in com-
mon. Sexton & Abbott v. Graham et al, 53 la. 181; Nelson v.
Brown, Doty & Co., 44 la. 455; Same v. Same, 53 la. 555; Arthur
V. Chicago, R. I. & Pac. Ry., 61 la. 648. But see Barner Bros.
V. McCrea et al, 75 la. 267.
220 IOWA DECISIONS.
Same — Contract construed.
Plaintiff delivered to defendants a large quantity of corn and
received therefor a receipt in the following words: ''Received
in store, of C. K. Marks, one load of corn, subject to storage.
Number of bushels, 2,920." During the night after the day of
delivery, the corn and elevator were burned. An action was
brought to recover the value of the corn on the theory that the
defendants purchased the same. It was held that the contract
was one of bailment and, therefore, the defendants were not
liable. Marks v. The Cass County Mill & Elevator Co., 43 la.
14Q; Arthur v. Chicago, Rock Island & Pacific Ry. Co., 61 la. 648.
Same — Same — Effect of statement in receipt "bought of" etc.,
"at owner's risk as to fire."
In an action against a warehouseman in which it was alleged
that he was responsible for grain which had been destroyed
by fire while stored with him, on the ground that there had been
a sale thereof, the evidence showed as follows : That the grain
in question had not been mixed in a common bin; that there
had been no demand made by the plaintiff for the return of the
grain but that the defendant by his agent had, a short time
before the fire, made an offer to the plaintiff to purchase the
grain. It was held that the transaction was not a sale but a
bailment, and while it is true that the word "bought" in the
receipt unexplained, would import a sale, but that when taken
in connection with the expression "at owner's risk," etc., and
in the light of certain parol evidence which was received to
explain the word, that it clearly appears that a sale was not
contemplated by the parties. Irons v. Kentner, 51 la. 88.
Same — Same — Continues a bailment while stored — Mixing with
other grain not conversion.
A warehouseman issued a receipt as follows: "Received of
C. C. Cowell for Thompson in store for account and risk C. C.
Cowell, one hundred and eighty-three bushels No. .3 wheat,
loss by fire, heating and the elements at owner's risk. Wheat
of equal test and value, but not the identical wheat, may be
returned." The court construed the above contract to mean
IOWA. 221
that so long as the wheat remains in the elevator, loss by fire,
heating and the elements is at the risk of the depositor. In
other words, so long as the wheat is kept in the elevator, though
thrown in a common bin and mingled with other wheat of like
quality, it is a mere bailment. But the warehouseman is not
under obligation to retain the wheat of the depositor in his
warehouse. He may, without breach of contract, and without
being guilty of conversion, ship the wheat away on his own ac-
count. When he avails himself of this privilege the character
of the transaction and the relation of the parties change. There
is then a completed sale, and the warehouseman assumes a lia-
bility which he can discharge only by payment in wheat of like
quality and value, or in money. Nelson v. Brown, Doty & Co.,
44 la. 455.
Same — Statute of limitations in case of.
In cases of bailment the statute of limitations does not com-
mence to run until the bailee holds the property adversely to
the claim of his bailor, that is, until there has been a conver-
sion. Reizenstein v. Marquardt, 75 la. 294.
H.
Unclaimed goods — Sale of — Statutory notice — Questions for the
jury.
In an action for conversion against a warehouseman, the de-
fendant alleged that the goods in question had been stored
with him and that after the period of six months had elapsed
without the payment of charges, he sold the same, as he was
authorized to do by law; that pursuant to the statute he had
deposited the balance remaining, after deducting his proper
charges, with the county treasurer. The plaintiff obtained
judgment for the value thereof and the defendant appealed.
It is provitled by the law^ that if the goods are of a greater value
than one hundred dollars, n different form of notice shall be
given than if they are worth one hundred dollars or less. It
was left to the jury to say whether the value of the goods ex-
ceeded one hundred dollars. It was held that this was a proper
question for the jury and also, whether or not the notices required
by statute were posted in "the most public places in the city."
222 IOWA DECISIONS.
The plaintiff contended that he was entitled to exemplary
damages. It was held that no such damages should have been
allowed, ^'erdict and judgment for plaintiff. The case was
modified and affirmed to the extent that if the plaintiff would
remit two hundred dollars from the amount of the judgment juid
pay costs of appeal that the same would be affirmed. That
otherwise the case would be reversed. Jeffries v. Snyder, 110
la. 359.
I.
Commingling of grain — // unauthorized constitutes conversion.
A warehouseman received from the plaintiff a quantity of
grain and issued to him the following receipt: "Received in
store, of C. Dierkson, twelve loads of wheat, subject to storage.
No. of bushels, 462 20-60." Immediatel}- ui)on the delivery
of the grain to the warehouseman it was mingled with other
grain therein stored and subse(iuently sold. The warehouse
and contents were destroyed by fire. It was contended on
behalf of the plaintiff that the transaction constituted a
sale and that the warehouseman was liable for the value of
the grain. The defendant contended that as the evidence
showed he had in store at the time of the fire more wheat than
that claimed by the plaintiff, he was not liable as the contract
was one of bailment. The court held that under these cir-
cumstances, it made no difference whether it were bailment or
sale, that the mixture of the plaintiff's wheat with other wheat,
without his authority, constituted a conversion and that de-
fendant thereupon became absolutely liable for the value
thereof to the plaintiff". Dierkson v. The Cass County Mill &
Elevator Co., 42 la. 38. But see Arthur v. Chicago, R. I. & Pac.
Ry. Co., 61 la. 648.
Same— Without authority of depositor— Does not constitute con-
version.
In an action against to a warehouseman for the loss of grain
destroyed by fire, in which it was shown that the grain had been
mingled with other grain, it was held that the mere fact of ad-
mixture of goods of the same quality does not divest the owner
of his property, whether they acted with or without his knowl-
edge. Arthur v. Chicago, R. I. & Pac. Ry. Co., 61 la. 648.
IOWA. 223
Same — Separation by warehouseman.
Grain belonging to a warehouseman's several depositors, and
some belonging to himself, were mingled with the knowledge
of all parties. The warehouseman without the consent of his
depositors shipped an amount of the grain from the warehouse
in excess of that which he owned. It was held that the grain
remaining in the warehouse belonged to the several parties
who held valid receipts therefor. Sexton & Abbott v. Graham
et al, 53 la. 181.
Warehouse receipts — When invalid — Gambling transactions
through board of trade.
An instruction to the jury that certain warehouse receipts
were void if, they found from the evidence that the receipts
were delivered, not for the purpose of affecting a sale of the
commodity which they represented, and that the purchase
price therefor was never to be paid, but that the matter was
to be settled and adjusted by the payment of the difference
between the purchase or selling price, and the market price
at the time of the settlement, was held correct on the ground
that it was a gambling contract. Lowe Bros. v. Young, 59 la.
364, following Pixley v. Boynton, 79 111. 351.
Same — Negotiability — Scale tickets not warehouse receipts —
Purchaser not protected.
The plaintiff purchased certain scale tickets from one who
had deposited a quantity of wheat with the defendant ware-
houseman. Such depositor had been notified by the defend-
ant to surrender the tickets and receive in lieu thereof ware-
house receipts. He failed to do this, however, and sold the
tickets to the plaintiff. Before such sale was made the defend-
ant had sold the wheat and had appropriated the money re-
ceived therefrom towards the payment of a debt owed by the
depositor to the warehouseman. On the above stated facts
it was held that the plaintiff could not recover, that the scale
tickets held by plaintiff were not warehouse receipts and that
when he took the same he took no title thereby. The tickets
failed to show that the transaction was a contract and there
224 IOWA DECISIONS.
was no statement thereon as to the number of bushels or grade
of the wheat nor as to terms or conchtions of storage. Cathcart
V. Snow & Huber, 64 la. 584.
Same — As collateral — Person to whom issued having no title
to the goods — Effect.
A warehouseman issued a receipt to one who had no grain in
store at the time but to secure the payment of indebtedness
due by the warehouseman to such person. It was held that
such receipt was invahd as against one who was the bona fide
holder of the original valid receipt and that under sections 2171
and 2172 of the Code, the person to whom the warehouse receipt
is issued must be the owner of the goods represented thereby.
Sexton (fc Abbott v. Graham et ah, 53 la. 181.
Same — Parol evidence not receivable to contradict or vary the
terms thereof.
If warehouse receipts are regarded merely as receipts they
may be explained by parol evidence and a contract existing
between the parties may be shown by competent testimony.
But if they are to be regarded as contracts, they cannot be
explained or varied by oral evidence. While such evidence
may be admitted to explain the language of the receipts, if
ambiguous, the terms, conditions and obligations of the contract
cannot be changed in that way. Marks v. The Cass County
Mill & Elevator Co., 43 la. 146 ; Lowe Bros. & Co. v. Young,
59 la. 364.
Same — Evidence of oral agreement receivable — Custom.
The plaintiff sued the defendant, a warehouseman, for the
value of certain grain which he had stored with him, expressly
alleging that the contract was not in writing. After the storage
of the grain, the warehouse and contents were destroyed by
fire. The defendant, in his answer, set forth that the wheat,
in accordance with the custom known to the plaintiff, had been
mixed with other wheat then in store and that the same number
of bushels of other grain of the same grade were stored in the
warehouse at the time of its destruction. The defendant showed
that this custom was known to plaintiff. At the trial the
plaintiff offered his warehouse receipts in evidence to prove
IOWA. 225
that the contract was one of sale and not bailment. The court
held that as the plaintiff had stated in his declaration that
the contract was an oral one, he could not at the trial introduce
proof to the effect that the warehouse receipt contained all the
terms of the contract. It was further held that the evidence
of the custom in regard to the mixing of grain was properly
received. This case distinguished from Joh?ison v. Browne, 37
la. 20. Hughes v. Stanley, 45 la. 622 ; Irons v. Kentner, 51
la. 88.
R.
Bill of lading — "Good order," effect of.
Where plaintiff took bill of lading from steamboat company
in which it acknowledged to have received "in good order"
230 barrels of mess pork, held that the good order, etc., re-
ferred only to the external condition and not to the state of the
pork itself. West v. Steamboat Berlin, 3 la. 532; Mitchell v.
U. S. Ex. Co., 46 la. 214.
Same — Effect of assignment — Parol testimony.
An assignment of a bill of lading operates as a transfer of the
title to the property therein represented. Where, therefore,
there was a provision printed across the face of a bill of lading
to this effect, "This bill to be surrendered before property is
delivered," it was held that a party taking such bill of lading
as collateral had a right to rely upon this provision and that it
was part of the contract. Further, that parol testimony would
not be received to vary or contradict the bill of lading in so far
as the same was a contract. Garden Grove Bank v. Humeston,
etc., Ry. Co., 67 la. 526; Hewett v. Chicago, B. & Q. Ry. Co., 63
la. 611; Wilde v. Merchants' Despatch T. Co., 47 la. 272; Chapin
& Irish V. Chicago, M & St. P. Ry. Co., 79 la. 582; Higley &
Co. V. Burlington, C. R. tfc N. Ry. Co., 99 la. 503; First National
Bank v. Mt. Pleasant Milling Co., 103 la. 518. But see Anchor
Mill Co. V. Burlington, C. R. & N. Ry. Co., 102 la. 262.
Same — Delivery pursuant to consignee's directions without re-
turn of hill of lading — Subsequent assignment of bill of lading by
consignee ineffectual.
The plaintiff purchased a carload of wheat from the consignee
15
226 IOWA DECISIONS.
thereof which was stored in the cars belonging to the defendant
railroad conipanj'. The consignee tlirected the defendant to
place the cars at a certain point designated by the plaintiff
which it accordingly cUd. At this time the consignee did not
surrender the bill of lading to the plaintiff' but he used the same
in the purchase of a draft at a bank which became an intervenor
in tliis action. At the trial the court, on motion of the inter-
venor, directed a verdict for it which was accordingly rendered.
On appeal it was held that the placing of the cars by the defend-
ant railroad company in the location designated by the con-
signee constituted a delivery to the plaintiff, and the liability
of the defendant as carrier thereupon ceased. That the plain-
tiff then became the purchaser thereof and the subsequent as-
signment of the bill of lading to the intervenor could not de-
prive the plaintiff of his title to the wheat. Anchor Mills Co.
V. Burlington, C. R. & N. Ry. Co., 102 la. 262.
KANSAS. 227
CHAPTER XVI.
KANSAS.
LAWS PERTAINING TO WAREHOUSEMEN.
Corporations iriay be formed :
In addition to the purposes for which private corporatioiLs
may be formed, as designated in section five of chapter twenty-
three of the General Statutes of 1868, as said section has been
heretofore enlarged and amended, private corporations may be
formed and organized in the manner prescribed in said chap-
ter twenty-three for the construction and maintenance ef ware-
houses, elevators and granaries. Gen. Stats. Kan. 1901,
sec. 1431.
Property left in warehouses :
If any person shall leave in any public or private warehouse
in this state any property of a perishable nature, or which, if
not taken away and sold within fifteen months from the time
at which such property was so left, would not at the expiration
of that time be worth the charges which should then be due
upon such property, and if the charges upon such property shall
not be paid, then and in that case it shall be lawful for the oc-
cupant or occupants of such warehouse to sell at auction to the
highest bidder so much of such property as will pay the charges
due, and the expenses of selling and advertising the same, upon
giving not less than three weeks' public notice of the time and
place of such sale, in two or more newspapers i:)ublished in the
town where such warehouse may be situated, or the vicinity
thereof. Id. sec. 1432.
Receipts may be issued :
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
228
KANSAS LAWS.
purporting to be the owner or owners thereof, unless such goods,
wares, merchandise, or other produce or commodity shall have
been bona fide received into store by such warehouseman,
wharfinger, or other person, and shall be in store and under
his control at the time of issuing such receipt. Id. sec. 1433.
Not to be issued :
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 com-
modity shall be, at the time of issuing such receipt, the prop-
erty of such warehouseman or wharfinger, or other person, and
shall be in store and under his control at the time of issuing
such receipt or other voucher, as aforesaid. Id. sec. 1434.
Written assent :
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-
son or persons holding such receipt. Id. sec. 1435.
Private and public :
All persons who shall keep a warehouse in this state for the
storing of grain, in which the grain of each person stored therein
shall be kept in a separate bin, distinct from the grain of all
other persons, shall be dominated "private warehousemen,"
and all persons keeping a warehouse for the storing of grain
in bulk, and in which the grain of different owners shall in any
way be mixed, shall be dominated "pubhc warehousemen."
Id. sec. 1436.
Give receipt :
Every public and private warehouseman receiving grain into
store shall, on demand of the owner thereof, receipt to such
owner, setting forth the quantity, kind and grade of such grain,
which receipt, in any action against such warehouseman for
KANSAS. 229
damages to such grain, or lor other cause relating thereto, shall
be evidence of the quantity, kind and grade of such grain, and
when received by such warehouseman. Id. sec, 1437.
Grain kept separate :
Every private warehouseman shall keep the grain of every
person that may be stored with such warehouseman entirely
separate and distinct from the grain or property of a like nature,
kind or quality, of any other person or persons; and upon the
surrender of the warehouse receipt provided in section three
of this act shall deliver to the person so surrendering the same
the identical grain described in such receipt, and for which said
receipt was issued. Id. sec. 1438.
Grain in bnlk :
It shall be lawful for public warehousemen to store grain in
bulk, and mix the grain of like kind and grade of different
owners; and the provisions of this act prohibiting the mixing
of the grain of different owners have no application to public
warehousemen. Id. sec. 1439.
Receipts— Numbered— Duplicates— Cancellation— Punish-
ment :
All warehouse receipts issued to the owners of grain stored in
any warehouse shall be consecutively numbered, and no two
receipts bearing the same number shall be issued for the same
grade of grain by any warehouseman from the same warehouse
during the same calendar year; nor shall any warehouseman
issue to any person any second receipt for any grain in store
while any former or other receipt for the same grain, or any
part thereof, shall be outstanding and uncancelled, except in
cases of lost receipts, when "duplicates," so marked, may be
issued ; nor shall any receipt be issued to any person for a greater
amount of grain than such person shall have delivered in store
at the time of the issuing of such receipt; nor shall any receipt
be reissued on which grain has once been delivered; nor shall
any receipt be issued unless the grain for which such receipt
is issued shall be actually in store and under the control of the
warehouseman issuing such receipt :it the time such receipt
was issued; and every receipt, when once surrendered, and the
230 KANSAS LAWS.
grain for which it was issuetl tleUvcreel, shall be cancelled, and
shall never thereafter be put in circulation. Any person who
shall violate any of the provisions of this section, or who shall
negotiate or put in circulation any warehouse receipt issued in
violation of any of the provisions of this act, knowing the fraudu-
lent character of such receipt, shall be deemed guilty of a felony,
and on conviction thereof shall be fined in a sum not less than
one thousand dollars nor more than five thousand dollars, and
imprisoned in the penitentiary not less than one year nor more
than five years. Id. sec. 1440.
Negotiable :
All receipts for grain issued by any warehouse shall be nego-
tiable by indorsement in blank, or by special indorsement, in
the same manner and to the same extent as bills of exchange
and promissory notes. Id. sec. 1441.
Above section construed :
Secretary and manager of an elevator company having full
authority to issue warehouse receipts did so to the plaintiff bank
as security for a loan. Held, the receipt was negotiable paper
and defendant was estopped to deny its liability thereon. Bank
V. Capital Elevator Co., 9 Kan. App. 144.
Right to visit scales :
All persons interested in any grain stored in any warehouse
shall at all times have the right to visit such warehouse, and
every part thereof containing grain, and shall have the right to
examine the bin or bins into which his grain is being delivered,
or from which it is being taken, or into which it is or may be
stored, and shall also have the right to inspect and test the
scales on which such grain is being weighed; and in case any
inaccuracy is suspected, may demand that the public sealer
of weights may test the said scale. If they are found correct,
he shall pay the fees of such sealer, but if found incorrect, such
fees shall be paid by the warehouse keeper. And all persons
authorized by law to inspect or grade grain shall have the
right during lousiness hours to visit and examine all the bins
of each warehouse and the grain therein stored. Id. sec. 1442.
KANSAS. 231
Damaged grain :
It shall be lawful for aii)^ public warehouseman to sell any or
all damaged grain which has remained in store for one year or
more, and which shall have become damaged while stored in
his warehouse, for account of parties having claim thereto,
after giving thirty days' notice, by publication in some news-
paper published in the city or town where such warehouse is
situated. Id. sec. 1443.
Duties of railway companies — Liability— Notice to con-
signee :
It shall be unlawful for any railroad or railway company to
deliver any grain into any warehouse, other than that to which
it is consigned, without consent of the owner or consignee there-
of; and it shall be the duty of said party or parties, at the time
of shipment of said grain, or before it reaches its destination, to
give notice to the railroad or railway company, by card on the
car or otherwise, of the warehouse into which said grain is to be
delivered; and for the failure to deliver grain according to the
direction of the owner or consignee thereof, such railroad or
railway company shall be liable to the warehouseman to whom
the same should have been delivered for two months' storage
of all such grain so consigned or refused, and also to such ware-
houseman and to the owner of such grain for all other damages
either of them may have sustained by reason of such refusal
or neglect of said railroad or railway company, including all
necessary expenses incurred by him or them in the prosecution
of suit or suits against such railroad or railway company; or,
if such grain is to be taken from the cars without delivery into
any warehouse, the railroad or railway company, shall be notified
in like manner thereof; and in such case said railroad or rail-
way company shall notify said owner or consignee of the arrival
of said grain at its destination, and give a seasonable [reason-
able] time for the removal of the same, and for the failure to
give such notice, when necessary, to the owner or consignee of
the arrival of grain, or for delivery of the same into any ware-
house without the consent of such owner or consignee, or with-
out notice or opportunity to remove the same from the cars of
said railroad or railway company, where said consent is not
232 KANSAS LAWS.
given, such railroad or railway company shall be liable to the
owner of such grain for all damages he may have sustained by
reason of the illegal action of such railroad or railway company,
including all necessary expenses incurred by him in the prosecu-
tion of such suits therefor, and all necessary expenses incurred
by him against other parties to recover possession of such grain.
Id. sec. 1444.
Grain inspection :
That a department of record for the inspection and weighing
of grain is hereby established, to be called the state grain in-
spection department. Said department shall have full charge
of the inspection and weighing of grain in the state at all rail-
road temiinals, public warehouses or other points within the
state wherever state grain inspection and weighing may here-
after be established, at the discretion of the chief inspector.
Id. sec. 3223.
Inspector :
It shall be the duty of the governor to appoint a suitable
person, to be confirmed by the senate, who shall be known as
the chief inspector of grain for the state of Kansas, whose term
of service as such shall continue for two years from date of his
appointment, unless removed for cause. Said chief inspector
shall not directly or indirectly be interested in buying or sell-
ing grain, either on his own account or for others, nor shall he
be directly or indirectly interested in handling or storing grain
as a public warehouseman or on private account during his
term of office. Id. sec. 3224.
Duties :
It shall be the duty of the chief inspector to have a general
supervision of the inspection and weighing of grain as required
by this act or laws of the state; to supervise the handling, in-
specting, weighing and storage of grain; to establish necessary
rules and regulations for the weighing, grading and inspection
of grain as have not otherwise been herein provided for, and
for the management of the public warehouses of the state, 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
KANSAS. 233
same; to keep proper records of all the inspecting and weighing
done, for which purpose he shall have power to employ the
necessary office force and procure the necessary books, blanks
and other material needed in order to keep perfect and proper
records. He shall investigate all complaints of fraud or op-
pression in the grain trade, and correct the same so far as may
be in his power : Provided, That nothing in this section shall be
construed as delegating any power or authority to said chief
inspector inconsistent or in conflict with the powers and au-
thority delegated to other persons by the provisions of this act.
Id. sec. 3225.
Oath and 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 duties 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
Kansas in the penal sum of ten thousand dollars, with sureties
to be approved in the same manner as bonds of other appointed
officers, 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, rules and regulations of this
act. Id. sec. 3226.
Assistant inspector :
The said chief inspector shall be authorized to recommend
to the governor suitable persons as may be qualified for assistant
inspectors, or weighmasters, to be acting inspectors or weigh-
masters in the absence of the chief inspector, who shall not be
interested in any public or private grain warehouse, or in the
buying or selling of grain, either directly or indirectly, and also
such other employees as may be necessary to properly conduct
the business of his office; and the governor shall be authorized
to make such appointment if found by him necessary. Id.
sec. 3227.
Bond of assistant :
All assistant inspectors or weighmasters appointed under this
act shall be under the supervision of the chief inspector, to
234 KANSAS LAWS.
whom they shall report in detail all service performed by them
at the close of each working-tlay, and each assistant inspector
or weighmaster shall take the same oath as the chief inspector,
and execute a bond in the penal smn of five thousand dollars,
with like conditions and to be approved in like manner as pro-
vided for the bond of the chief inspector. Suit may be brought
upon bonds of either the 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 the act of said chief inspector or assistant inspectors. Id.
sec. 3228.
Establish grades :
The chief inspector shall, before the first day of September
of each year, establish a grade for all kinds of grain brought or
handled nn the state, which shall be known as "Kansas grades,"
and to facilitate this object he shall notify the board of trade
in the state, so that they may send representatives to consult
and counsel with the chief inspector in establishing the grades;
and the grades so established shall be published in three daily
papers in the state each day for the period of one week. Id.
sec. 3229.
Samples :
It shall be the duty of the chief inspector of grain to furnish
any public elevator or warehouse in this state standard samples
of the several grades as established by official inspection, when
requested so to do by the proprietor, lessee or manager thereof,
at the actual cost of such samples. Id. sec. 3230.
Fees — Keport :
The fees for inspecting, weighing and sampling of grain by
the officers of the state grain inspection department shall be
as follows: For inspecting and sampling each carload, forty
cents; for inspecting out of elevators, thirty-five cents per car;
for weighing, twenty-five cents per car; for reinspecting, where
the former inspection and grade are sustained, fifty cents per
car; and in all cases where samples of carlots of grain inspected
are demanded, the charge for each sample shall be twenty-five
KANSAS. 235
cents. Any and every person, firm, company, corporation or
association for whom grain shall be inspected, weighed or sam-
pled by any of the officers of said department shall on or before
the tenth day of each month, file a sworn and detailed report
with the auditor of state, setting forth the number of cars of
grain inspected or weighed by and the number of samples of
grain received from the officers of said department during the
preceding month; also the amount of money paid for such
services, with the date of payment, and the name of the person
to whom paid. And every person, for himself, or as an officer
or representative of any such firm, company, corporation, or
association, who shall fail or neglect to comply with the pro-
visions of this section shall be guilty of a misdemeanor, and
upon conviction thereof shall be fined not less than one hun-
dred dollars nor more than five hundred dollars. Id. sec. 3231.
Charges a lien :
The charge for inspection and weighing of grain shall be and
constitute a lien on the grain so inspected or weighed, and when-
ever such grain is in transit the said charges shall be treated as
advanced charges, shall be collected and paid by the common
carrier in whose possession the same is at the time of such in-
spection or weighing. Id. sec. 3232.
Report :
The chief inspector of grain shall, on or before the tenth day
of each month, file with the auditor of state a full and detailed
report, under oath, of the work done in his department for the
preceding month, setting forth the number of cars of grain in-
spected and weighed, and by whom, the number of samples
furnished, the amount of revenue collected by himself and the
assistant inspectors and weighmasters ; and the chief inspector
shall at the time of filing his report with the auditor of state,
pay into the state treasury all money received as fees for the
inspecting, weighing or sampling of grain for the preceding
month, which money shall be credited to the general fund.
Id. sec. 3233.
Assistants — Salaries— Employees :
In every city or at every railroad terminal in the state where
236 KANSAS LAWS.
more than one assistant inspector is employed, the cMef in-
spector shall designate one of the assistant inspectors, to be
known as first assistant inspector, whose duty it shall be to
make and compile report of his respective jurisdiction, and
who shall collect the reports of the other assistants and forward
the same to the chief inspector. The chief inspector shall keep
his office and place of business in the city of Kansas City, Kan-
sas, and shall receive an annual salary of fifteen hundred dollars
in monthly payments of one hundred and twenty-five dollars
each, and shall be allowed all actual and necessary travelling
expenses paid in cash while attending to official duties; said
salary and expenses to be paid said chief inspector upon sw^orn
vouchers, properly itemized, and audited by the state auditor
the same as other vouchers, and warrants drawn upon the state
treasurer for the payment thereof; and the assistant inspectors
shall each receive a salary of eighty-five dollars per month;
and the weighmasters, who are not inspectors, shall each re-
ceive a salary of sixty-five dollars per month ; and the employees
known in said department as ''helpers" shall each receive a
salary of sixty dollars per month; all said salaries to be paid in
the same manner as the salary of the chief inspector; and all
other employees of said department shall receive their salaries
in the same manner as provided for the payment of the salary
of the chief inspector: Provided, however, That if at any place
where state inspection has been or may hereafter be established
the total revenue obtained is less than the salary paid to an
assistant inspector, the chief inspector may abolish such branch
of the service, or at his discretion arrange with the officer in
charge to accept as full compensation for his service an amount
equal to the whole revenue obtained at such place. Id. sec. 3234.
Penalties :
Any duly authorized chief inspector, assistant inspector or
weighmaster of grain under this act who shall be guilty of neg-
lect of duty, or who shall knowingly or carelessly inspect, grade
or weigh any grain improperly, or who shall accept any money
or other valuable consideration, directly or indirectly, for any
neglect of duty as such grain inspector, assistant inspector, or
weighmaster, shall be deemed guilty of a misdemeanor, and on
KA^•sAS. 237
conviction shall be fined in the sum not less than five hundred
dollars nor more than one thousand dollars, or shall be im-
prisoned in the county jail not less than six months nor more
than twelve months, or both such fine and imprisonment, in
the discretion of the court, and upon conviction of any such
offense, such chief inspector, assistant inspector or weigh-
master shall forfeit his office. Id. sec. 3235.
Only qu.alifie(l inspectors to act :
The inspection or grading of grain in this state, whether into
or out of warehouses, elevators, or in cars, barges, wagons, or
sacks, arriving at or shipped from points where state grain
inspection is established, must be performed by such persons
as may be duly appointed, sworn, and have given bond under
this act; and any person who shall assume to act as inspector
or weigher of grain, who has not first been appointed and qual-
ified in accordance with the provisions of this act, shall be guilty
of a misdemeanor, and upon conviction thereof shall be pun-
ished by a fine of not less than one hundred dollars nor more
than five hundred dollars, or imprisoned in the county jail for
not less than three months nor more than six months, or both
such fine and imprisonment, at the discretion of the court, for
every such offense so committed. Id. sec. 3236.
Exclusive control :
The chief inspector of grain and assistant inspectors and
weighmasters shall have exclusive control of the weighing and
inspecting of grain in all public warehouses and all places where
grain is weighed or inspected under this act, for the purpose of
inspection of scales, and the action and certificates of such in-
spectors and weighmasters shall be conclusive upon all parties
interested. Id. sec. 3237.
Bribery :
Any person, or any representative of a firm, trust, corporation
or association who shall bribe or offer to bribe any of the officers
created under this act shall be deemed guilty of a felony, and
upon conviction shall be punished by confinement at hard labor
in the penitentiary for a term not exceeding seven years. Id.
sec. 3238.
238 KANSAS LAWS.
Decision final :
The decision or any of the assistant inspectors as to the grade
of grain shall be final and binding on all parties, unless an ap-
peal is taken from such decision as hereinafter provided. Id.
sec. 3239.
Appeals :
In case any owner, consignee or shipper of grain, or any ware-
house manager, shall be aggrieved by the decision of any as-
sistant inspector, an appeal may be taken to a standing com-
mittee of three, which the chief inspector shall appoint at every
point where state inspection may be established. Said com-
mittee shall consist of experienced grainmen, and their decision
shall be final in the controversy: Provided, That the party ap-
pealing shall pay said committee a sum not to exceed three
dollars per case before said appeal shall be entertained, and
in case said appeal is not sustained the said three dollars so
deposited shall be full compensation for such arbitration. In
the event of the appeal being sustained, the three dollars so
deposited shall be returned to the party appealing, and the
arbitration committee shall receive three dollars in full for
their services from the state inspection department. Id. sec.
3240.
Selling grain by sample :
Nothing in this act shall be construed so as to prevent any
person from selling grain by sample, regardless of grade; but
the provisions of this act shall not change the liabilities of the
warehouseman on grain now in store, nor the inspection thereof,
but said inspection shall be had under the same system under
which it was received into store. Id. sec. 3241.
Attorney :
The attorney general of the state of Kansas shall be ex officio
attorney for the chief inspector, and shall give him such counsel
and advice as he may from time to time require, and said at-
torney general shall institute and prosecute all suits which
said chief inspector may deem expedient and proper to insti-
tute; and he shall render to said chief inspector all counsel,
KANSAS. 239
advice and assistance necessary to carry out the provisions of
this act, according to the true meaning and intent thereof. In
all criminal prosecutions against a warehouseman for a viola-
tion 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. Id. sec. 3242.
Repeal :
Be it further enacted, that sections 16 to 32 (both inclusive)
and sections 35 to 42 (both inclusive) of chapter 248 of the
Session Laws of 1891, and all acts and parts of acts and all laws
inconsistent with the provisions of this act, are hereby repealed.
An Ad to regulate warehouses, the inspection, grading, weigh-
ing and handling of grain, and the providing for the appoint-
ment of a state grain inspector. Id. sec. 3243.
Public warehouses :
That all elevators or warehouses located in this state 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, and doing business for a compensation, and having
capacities of less than seventy-five thousand bushels each, are
hereby declared public warehouses. Id. sec. 3244.
Above section construed :
Grain deposited under provisions of this chapter does not
become property of warehouseman. The title is in the holders
of the respective warehouse receipts. Bryan v. Congdon, 54
Kan. 109.
Procure license :
That the proprietor, lessee or manager of any public ware-
house shall be required, before transacting any business, to
procure from the regular chartered and acting board of trade
in the nearest city of the first or second class, as the case may
be, a license permitting such proprietor, lessee or manager to
transact business as a public warehouseman under the laws of
this state, which license shall be issued by said board of trade
upon written application therefor; and said application shall
240 KANSAS LAWS.
set forth the name of such warehouse, and the individual name
of each person interested as owner or principal in the man-
agement of the same; or if the warehouse be owned or man-
aged by a corporation, the names of the president and secretary
shall be stated, and said license shall give authority to carry on
and conduct the business of a public warehouse in accordance
with the laws of the state, and shall be revocable by the board
of trade issuing the same upon a summary proceeding before
said board, upon complaint of any person in writing setting
forth the particular violation of law; satisfactory proof to be
taken in such manner as said board may direct, having first
been made of such violation. Id. sec. 3245.
Above section construed :
In a proceeding under the above statute to restrain an alleged
improper exercise of power thereunder, the state must be party
plaintiff. Jones v. Board of Trade, 52 Kan. 95.
File bond :
Any person receiving a license as herein provided shall file
immediately with the secretary of state a bond to the state of
Kansas for the benefit of all persons interested, with good and
sufficient sureties approved by said board of trade, in the penal
sum of not less than ten thousand dollars nor more than fifty
thousand dollars, in the discretion of the board of trade issuing
such license, conditioned for the faithful performance of his
duty as a public warehouseman and his full and unreserved
compliance with all laws of this state in relation thereto. A
fee of two dollars for the issuance of each license and filing of
said bond shall be paid to the secretary of state by the person
obtaining said license and filing said bond : Provided, That when
any person or corporation procures a license for more than one
warehouse in any one county in the state, no more than one
bond need be given. Id. sec. 3246.
Penalty :
Any person who shall transact the business of a public ware-
houseman without first procuring a license and fifing said bond
as herein provided, or who shall continue to transact any such
KANSAS. 241
business after such license has been revoked (save only that he
be permitted to deliver property previously stored in such
warehouse), shall on conviction thereof be fined in a sum not
less than one hundred dollars nor more than five hundred dol-
lars for each and every day such business is carried on in such
manner; and the board of trade having such warehouse under
its supervision may refuse to renew any license or grant a new
one to any person whose license has been revoked, within one
year from the time the same was revoked. Id. sec. 3247.
Receive for storage :
It shall be the duty of every public warehouseman to receive
for storage any grain, dry and suitable for warehousing, that
may be tendered to him in the usual manner in which ware-
houses are accustomed to receive the same in the ordinary and
usual course of business, not making any discrimination be-
tween the persons desiring to avail themselves of warehouse
facilities. Such grain to be in all cases inspected and graded
by a duly authorized inspector, but to be stored with grain of a
similar grade ; 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 grains so kept separate,
it shall state on its face it is a special bin, and shall state the
number of such bin; and all grain delivered from such ware-
house shall be inspected on its delivery 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 a ware-
house in which there is not sufhcient room to accommodate or
store it properly, or in cases where such warehouse is necessarily
closed. The charge for inspection, upon receipt and delivery,
shall be paid by the warehouseman, and may be added to the
charge of the storage. The licensing board of trade may re-
cover such charges of the warehouseman by an appropriate ac-
tion in its name. Id. sec. 3248.
Warehouse receipt :
Upon the application of the owner or consignee of grain
16
242 KANSAS LAWS.
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 the charges for freight, in-
spection and weighing, have been paid, the warehouseman shall
issue to the person entitled to receive it, a warehouse receipt
therefor, subject to the order of the owner of 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 grade mentioned on
it has been received into store to be stored with grain of the
same grade by inspection, and that the grain represented thereby
is deliverable upon the return of the receipt, properly indorsed
by the person to whose order it was issued, and the payment of
l^roper charges for storage. Id. sec. 3249.
Receipts uuiiibered :
All warehouse receipts for grain issued by the same warehouse
shall be consecutively numbered, and no two receipts bearing
the same number shall be issued from the same warehouse dur-
ing any one yeiw, except in the case of a lost or destroyed re-
ceipt, in which case the new receipt shall ])ear the same date
and number as the originid, 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 on the receipt, with
the amount it contained; if from barges or other vessels, the
name of such craft; if from team or other means, the manner
of its receipt shall be stated on its face. Id. sec. 3250.
«
Cancellation of receipt :
Upon the delivery of grain from store upon any receipt, such
receipt shall be plainly marked across its face the word, ''Can-
celled," with name of the person cancelling the same, and there-
after 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 an 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 fjuantity of grain than was con-
tained in the lot or parcel so received, nor shall more than one
KANSAS. 243
receipt be issued for the same lot of grain, except in cases where
a receipt for a part of a lot is desired, and then the aggregated
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
delivered out of the stoi-e and the remainder is left, a new re-
ceipt may be issued for such remainder, but the 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 consents thereto, the original receipt or re-
ceipts shall be cancelled the same as if the grain had been de-
livered from the store, and the new receipt or receipts shall
express on their face that they are a part of another receipt or
consolidation of other receipts, as the case may be, and the
number of the original receipts shall also appear on the new
ones issued as explanatory of the change; but no consolidation
of receipts differing more than ten days in date shall be per-
mitted. All new receipts issued for old ones cancelled as herein
provided shall bear the same date as those originally issued,
as near as may be. Id. sec. 3251.
Not alter receipt :
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. sec. 3252.
Property delivered ou return of :
On the return of any warehouse receipt properly indorsed,
and the tender of all proper charges upon the property repre-
sented by it, such property shall be immediately delivered to
the holder of such receipt, and 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 hours after such demand
shall have been made and the cars or vessels for transporta-
244 KANSAS LAWS.
tion of same shall have been furnished. The warehouseman
in default shall be liable to the owner of such receipt for dam-
ages occasioned by such default in the sum of one cent per
bushel, and in addition 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 ])i'0]5erty is delivered in the order demanded and as rapidly
as due diligence, care and prudence will justify; but no grain
shall be delivered from store or warehouse until the receipt
for same shall hiixe been actually returned. Id. sec. 3253.
Furnish statement :
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 the board of trade issuing his license shall
require antl prescribe, a statement concerning the condition and
management of the business as such warehouseman. Id.
sec. 3254.
Statement to be posted up :
The warehouseman of every public warehouse located in this
state shall, on or before every Tuesday morning of each week,
cause to be made out and shall keep posted up in business office
of his warehouse, in a conspicuous place, a statement of the
amount of each kind and grade of grain in store at his ware-
house at the close of business on the previous Saturday, and
shall on each Tuesday morning render a similar statement
made under oath by one of the principal owners or operators,
or by the bookkeeper thereof having personal knowledge of
the facts, to the secretary of the board of trade issuing the
license of said warehouse; he shall also be required to furnish
daily to said secretary a correct statement of the amount of
each kind and grade of grain received in store in such ware-
house on the previous day for which receipts have been issued,
also the amount of each kind and grade of grain delivered or
shipped by such warehouseman during the previous day for
which receipts have been returned, and what warehouse re-
ceipts upon which the grain has been delivered on such day
have been cancelled, giving ihc number of each receipt, and the
KANSAS. 24f>
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<l: Provided,
That nothing herein contained shall prevent any warehouseman
or commission merchant from hypothecating or pledging or
issuing receipts to the extent of any advancements they may
have made to the owner of said tobacco on same. Id. sec.
4804.
KENTUCKY. 269
Reclamations —When to be made :
That chiinis for reclamation shall be made in ninety days
after sale, anless the tobacco is exported to foreign countries,
then the reclamation must be made within six months after
the sale, and if not done within said time, the claim shall be
barred by limitation. Id. sec. 4805.
Nesting and side-prizing — Penalty :
That if any person shall nest, side-prize or fraudulently prize
any leaf tobacco, such person so offending shall be deemed
guilty of a misdemeanor, and upon indictment and conviction
in the circuit court of the county in which said offense is com-
mitted, shall be fined not less than twenty-five nor more than
one hundred dollars, in the discretion of the court or jury try-
ing the case, and every hogshead, bale or box so prized shall
constitute a separate offense. Id. sec. 4806.
Liability of warehousemen — Evidence :
That the proprietor of any warehouse shall, for any viola-
tion of the provisions of the nine proceeding sections, be liable
to the party aggrieved thereby in the sum of not less than
twenty-five and not more than one hundred dollars, and on the
trial, the bills, accounts, statements of sale rendered by said
warehousemen shall be 'prima facie evidence of guilt. Id. sec.
4807.
Additional penalties and liabilities :
That any person guilty of nesting, side-prizing or otherwise
fraudulently prizing leaf obacco, in addition to penalties de-
nounced in section four thousand eight hundred and six of this
act, shall be liable to the party aggrieved in such damages as
he may have sustained, to be recovered in any court having
jurisdiction in the county where said tobacco is nested, side-
prized or fraudulently prized. Id. sec. 4808.
Rejections — When permitted fees :
If the sale of any tobacco is rejected by either the buyer or
seller, the party rejecting shall only be required to pay the
fee for the hogsheads, bales or boxes rejected by hinr Pro-
vided, hoioever, That the buyer shall not be permitted to reject
270 KENTUCKY LAWS.
any hogshead, box or bale of tobacco unless the seller shall
first have rejected, and then only an equal number of boxes,
bales or hogsheads as the seller may have rejected. Id.
sec. 4809.
Coiiibination to control or interfere with bidding unlawful :
That it shall be unlawful for any tobacco warehousemen,
corporation or individuals to combine together, by any rule,
by-law or otherwise, for the purpose of controlling, or in any
way interfering with, the free and unrestricted right to bid on
or to purchase leaf tobacco offered for sale at public auction
at any warehouse or place of sale where tobacco is sold by
such warehousemen for others in this commonwealth. Id.
sec. 4810.
Preventing persons from bidding — Unlawful :
That it shall be unlawful for any organization or corporation
under the laws of this state to prohibit any of its menbers or
others from bidding on or purchasing leaf tobacco at any ware-
house that now exists or may hereafter be organized or estab-
lished in this commonwealth. Id. sec. 4811.
Sales to be free and open :
That all sales of leaf tobacco at public auction in this state
shall be free and open to all responsible bidders. Id. sec. 4812.
Discrimination between purchasers forbidden :
That all tobacco warehousemen selling leaf tobacco in this
state shall make no distinction or difference between pur-
chasers as to charges, samples, warranty or otherwise, whether
said purchasers be members of the tobacco exchange or not.
Id. sec. 4813.
Penalties for violation of four preceding sections :
Any warehouseman, agent, manager, corporation or organ-
ization who shall violate any of the provisions of the four
preceding sections shall be guilty of a misdemeanor, and shall,
upon trial and conviction in any court of competent jurisdic-
tion, be fined for each offense in any sum not less than twenty-
five dollars nor more than one hundred dollars, in the discre-
KENTUCKY. 271
tion of the court or jury trying the case and, in addition, shall
forfeit all their corporate rights and privileges under the laws
of this state. Id. sec. 4814.
Distiller, who is, in nieaiiiii;^ of this section :
That every person (firm, joint stock company or corporation)
who produces distilled spirits, or who brews or makes mash,
wort or wash, fit for distillation, or for the production of spirits,
or who by any process of evaporation separates alcoholic spirits
from grain, molasses, or fruit, or any other substance fermented,
or who making or keeping mash, wort or wash, has also in his
possession or use a still, is within the meaning of this act a
distiller. Id. sec. 2572a.
Warehouse receipts to be issued by distiller— Penalty :
That no person, firm or corporation shall issue or sign any
warehouse receipt or substitute for such receipt on whiskey
stored in a distillery bonded warehouse in this commonwealth,
except the distiller, and any person other than the actual owner
and operator of a distillery, who shall issue or sign any ware-
house receipt or substitute therefor in violation of section two
of this act, shall be guilty of a felony, and, upon indictment
and conviction, be confined in the penitentiaiy for a period of
time not less than two nor more than ten years in the discre-
tion of the jury. Id. sec. 2572a, subsec. 6.
272 KENTUCKY DECISIONS.
DECISIONS AFFECTING WAREHOUSEMEN.
A.
Bailment and sale — Mixing of grain.
Where a party deposits his grain for storage merely and it is
mixed with other grain he does not part with his title — there
is no sale but merely a bailment. Ferguson, Jr., Assignee, v.
Northern Bank of Kentucky, 14 Bush. 555; Moss v. Meshew, 8
Bush, 187; Newcomb, Buchanan ^ Co. v. Caball, 10 Bush, 460;
May V. Hoaglan, 9 Bush, 171; Crawford v. Smith, 7 Dana, 59;
Jenings v. Flanagan, 5 Dana, 217.
B.
Warehouseman' s authority and liability commences with the
reception of goods.
A warehouseman has no interest in, or power over goods,
nor liability for the same, until they are actually received by
him. Jefferson R. R. Co. v. White, 6 Bush, 251.
Ordinary care — Liability for goods stolen.
Nine hundred barrels of salt w^ere stored and two hundred and
forty of them stolen at ten different times during a period ex-
tending over a month. Held the warehouseman was liable,
not having used ordinary diligence to preserve the salt. Cheno-
with & Co. V. Dickinson & Shrewsberry, 8 B. M. 156.
Damages against warehouseman for violation of warehouse law
— Res judicata.
The plaintiff bank brought an action against the defendant
on his note which he had issued to one M., a warehouseman,
M. in turn having indorsed the same to the plaintiff. To this
suit the defendant set up a number of defenses by way of set-
off and counterclaim, and on account of usury. The defenses
were substantially allowed by the lower court with the excep-
tion of counterclaim for a large sum alleged to be due him for
damages growing out of the violation by the warehouseman of
the statutes regulating his duties. This action was brought on
the equity side of the court, there being a mortgage on certain
KENTUCKY. 273
property to secure the payment of the note. Later the de-
fendant brought an action against the warehouseman for the
identical cause of action alleged in his counterclaim. The trial
resulted in a judgment for a small amount for him but the
court, by the instructions, limited the recovery to those viola-
tions of the statute occurring prior to a certain date (why this
was done does not appear on record). After this common-law
suit had terminated, the defendant in the original action filed
an amended answer in counterclaim in the equity suit in which
he claimed damages for violations subsequent to the aforesaid
date. It was held, on appeal, that this was error, that the
proceedings in the common-law action put in issue the alleged
violations of the warehousemen's act and although there had
been another warehousemen's law enacted, the court ought to
have controlled the action of the jury by instructions under
these statutes. Had the court refused to do so, M. would have
had his right of appeal. The very facts attempted to be put
in issue by the amended answei' and covmterclaim in the
eciuity suit had already been put in issue in the common- law
action, and were either tried out before the jury or should
have been. Miirrell v. Citizen's Savings Bank, 19 K. L. R.
693.
Warehouseman's bond — That business constituted a monopoly
vx) defense for sureties — Effect of suspension from the exchange.
A consignor of tobacco brought an action against G., a ware-
house company, and several individuals, who had become sure-
ties on the bond of the company that it would account for the
proceeds of all sales made of tobacco consigned to it. The de-
fendant answered and alleged that G. had been suspended from
membership in the exchange and therefore that the bond given
by it and the other defendants to the exchange was no longer
in effect. By an amended answer the defendants alleged that
the purposes for which the exchange was formed were illegal,
in that they attempted to create a monopoly or trust and thus
stifle competition; and, consequently, the bond given to it was.
void and of no effect. The answer also contained a denial of
the shipment and sale and of the indebtedness. Demurrers to
all of the matters contained in the answer except that last
18
274 KENTUCKY DECISIONS.
stated, were sustained and, by agreement of the parties,
the case was submitted to the court, a jury trial being
waived. Judgment was given for the plaintiff for the full
amount of his claim. On api)eal it was held that the plea of
the appellants in regard to the illegal nature of the business of
the exchange and in regard to the suspension of the company
as a member of the exchange was not sufficient in law to re-
lieve them of their liability as principal and sureties on the
bond. That before the order of suspension could relieve the
sureties from liability it would have to be shown that it was
either brought to the attention of the plaintiff or that public
notice thereof had been given. Globe Tobacco Warehouse Co.
V. Leach, 19 K. L. R. 1287.
Public warehousemen — Duty to the public — Cannot lessen their
liability by changing name.
Public warehousemen are invested with a monopoly of certain
public privileges, made so as a matter of necessity, and this
authorizes the exercise of legislative power over them for the
public welfare. Warehousemen have assumed a gwasi-public
character under the protection of the law, and will not be al-
lowed to exercise all the privileges that have heretofore be-
longed to tvarehousemen, and evade all the duties and responsi-
bilities of the position by the passage of a resolution declaring
that they are operating their business, not in the capacity of
warehousemen, bid as commission merchants. Such warehouse-
men are obliged, therefore, to receive from the jjublic tobacco
in store for which they can make a reasonable charge ; but
while this right exists it does not follow that a court of equity
will undertake to grant relief by injunction where one party is
as much in fault as the other. Nash v. Page, 80 Ky. 539; A^
D. ex rel Stoeser v. Brass, 2 N. D. 482, affirmed 153 U. S. 391 ;
Munn V. Illinois, 69 111. 80, affirmed 94 U. S. 113. See also
People V. Biidd, 117 N. Y. 1, affirmed 143 U. S. 517. See
State V. Associated Press, 159 Mo. 410.
Same — Sale of goods not belonginy to bailor — Effect of recording
chattel mortgage.
Where a public warehouseman, acting in the usual course of
KENTUCKY. 276
business, received tobacco for sale and sold the same and
turned the proceeds over to his customer, in the absence of
any notice that he was not the owner thereof, it was held that
he was not liable to the real owner although there was a chattel
mortgage covering the tobacco in question duly locorded. Be-
ing a public warehouseman he assumes the obligations of serv-
ing the entire pubHc, having no right to select his customers,
provided they conform to reasonable rules and regulations.
Abernathy & Long v. Wheeler M. & Co., 92 Ky. 320 ; Nash v.
Page, 80 Ky. 539.
Conversion — Sale by bailee.
If the bailee of property sell it to an innocent purchaser,
his sale does not transfer the property to the purchaser, but
the bailor may have recourse against the bailee or against the
vendee. Chism v. Woods, Hardin, 531.
Same — Ratification of unauthorized sale.
Where a warehouseman sold, without authority, goods in his
care and the owner received the proceeds of sale and failed
to promptly disavow the same by returning the money, held
the sale had been ratified. Clay v. Spratt & Co., 7 Bush, 334.
Same — What amounts to.
The mere possession of goods received by a bailee, without
any claim or interest in the chattels, in ignorance of the fact that
his possession is adverse to that of the real owner, does not
amount to a conversion; there must be an exercise of dominion
or control over the property foi- the benefit of tlio bailee that
is inconsistent with the claims of the real owner. He must
assert some lien upon or have some interest in the property
before there can be a conversion, in the absence of a demand
and refusal. Newcomb- Buchanan Co. v. Baskett, 77 Ky. 658.
H.
Storage charges — Paid twice — Warehouseman liable — Ware-
house receipt.
If a warehouseman issue a receipt in which it is jirovided
that the storage charges are to be paid when the goods are de-
276 KENTUCKY DECISIONS.
livered, whereas in fact the charges were paid at the time of
the deposit of the goods, it was held that if the person to whom
the receipt was transferred paid such charges that the ware-
houseman was hable to the original bailor for the amount paid
by him. Atherton v. Bonnie Bros., 9 K. L, R. 107.
Lien — Superiority of pledgee's lien.
A warehouseman having notice as to who was the real owner
of tobacco stored with him, sold the same as the tobacco of the
person to whom the same was pledged. It appeared that the
owner had agreed with the warehouseman that the latter should
sell the tobacco for liim. In an action between the warehouse-
man and the pledgee for the purchase price, it was held that
the contention of the warehouseman that he was entitled to de-
duct from such sum the amount which he had paid to the
owner under the contract to ship the goods to him for sale
could not be sustained, the lien of the pledgee being superior
to that of the warehouseman. Hare, McLeod & Co. v. Kelly,
11 K. L. R. 309.
Same — None for other debts.
Neither the custody of the warehouseman nor the pledge of
whiskey by delivery of the warehouse receipts gives the ware-
houseman or pledgee, any general lien for debts not arising
from relation of warehouseman or pledgee.
The plaintiff, a warehouseman, was merely a bailee, and
when the warehouse receipts were delivered to him he became
a pledgee as well ; but neither relation gave him a general lien
to cover debts or charges not connected with his position as
warehouseman or pledgee for a specific purpose. Indeed, the
express agreement of plaintiff to return the whiskey when the
specified debts were paid would seem to preclude a claim of a
lien for debts other than those specified. Atherton Co. v. Ives,
20 Fed. Rep. 894.
M.
Pledge— By factor— Pledgee acting in good faith— Amount of
damages.
There is no substantial difference between the pledge made
by a factor and a pledge made by a pledgee. The courts while
KENTUCKY. 277
holding that a factor has no right lo pledge the goods of his
principal hnw nevertheless allowed the amounts sought lo \)c.
recovered of the innocent pledgee of the factor, to be reduced
by the sums justlv due from the principal to his factor. Firat
National Bank v. Boyce, 78 Ky. 42.
Pledge — By bill of lading.
Property may be pledged by the transfer and delivery of the
bill of lading representing same. Petitt & Co. v. First Na-
tional Bank of Memphis, 4 Bush, 334; Douglas, Receiver, v.
Peoples' Bank of Kentucky, 86 Ky. 176.
Same — Legal title does not pass.
To constitute a valid lien by a pledge of property, it is not
necessary that the legal title should be transferred as in the
case of a mortgage, but on the contrary, the title generally re-
mains in the pledgor. Id.
Loss by fire — Diligence — Effect thereon of appointment of gov-
ernment storekeeper.
The appointment by the Internal Revenue Department of
storekeepers who are invested with the joint custody, with the
warehousemen, of the warehouses and goods stored therein,
does not lessen in any degree the diligence which the latter, as
bailees for hire, are by the general laws reciuired to exercise to
prevent fire from being communicated to their houses or to the
goods in their custody. Macklin v. Frazier, 9 Bush, 3.
Same — Failure to remove goods.
Where a fire occurred at night and warehouseman failed to
remove plaintiff's whiskey, although there was an opportunity
to do so, but a statute prohibited removal of spirits at any time
except between sunrise and sunset, held it was the duty of the
warehouseman to disregard this provision of the law only when
the destruction of the whiskey was inevitable. Id.
Misdelivery — Liable for conversion.
In regard to delivery, the warehouseman is obliged to deliver
to his bailor or in accordance with his order. Any other dis-
278 KENTUCKY DECISIONS.
position of the goods intrusted to him constitutes a conversion.
Jejjerson R. R. Company v. White, 6 Bush, 251.
Accident — There must be no negligence.
A warehouseman or other bailee cannot, by stipulating that
he will not be liable in case of loss or damage resulting from
accidents, ( scape his liabilit}'^ for any loss or damage due to his
negligence. Bridwell v. Moore, 8 K. L. R. 535.
Burden of proof — Negligence.
With certain exceptions such as common carrier and inn-
keeper, the burden of proof of negligence is upon the bailor,
and mere proof of loss is not sufficient to put the bailee upon
his defense. Power v. Brooks & Parker, 7 K. L. R. 204 ; Craigs,
Admn., v. Lee, 14 B. M. 119, distinguished.
Evidence — Custom — Usage.
In order to establish that a certain usage or custom exists,
evidence must be received to show what has been generally
done under similar circumstances and the admission of testimony
as to particular acts is error. Bridwell v. Moore, 8 K. L. R.
535.
0.
Measure of damages — Allowance of interest.
The value of the property at the date of conversion is the
true criterion, and the jury, in their discretion, may allow or
refuse to allow interest. Newcomb-Buchanan Co. v. Baskett, 77
Ky. 663.
P.
Insurance — Notice of loss.
Warehousemen had a large quantity of tobacco in store, upon
which they carried open policies of insurance. After destruc-
tion by fire they notified the owner of one of the hogsheads to
advise them of the value thereof. The warehousemen received
no reply to the notification and settled with the insurance com-
pany as best he could under the circumstances. It was held
that this ation was conclusive on the part of the owner of the
hogshead and that she could not be heard to complain after-
wards. Burks V. Sawyer, Wallace & Co., UK. L. R. 762.
KENTUCKY. 279
Same — Custom — Effect of instructions.
Where there was a custom among warehousemen to insure all
tobacco intrusted with them, such custom will not be binding
on one who receives instructions from his depositor not to insure
the tobacco. This is conclusive upon the warehouseman and
exonerates him from Hability for failure to insure. Cottrell v.
Branin, B. & G., 14 K. L. R. 580 ; Western Dist. Warehouse
Co. V. Haijes, 16 K. L. R. 763.
Same — Effect of failure to make proof of loss within time stated
in policy.
The failure to make the proof of loss of the insured goods,
within the time stated in the policy, does not work a forfeiture
thereof but such proof must be made before the beginning of
the action upon the policy of insurance. Dwelling House In-
surance Co. V. Freeman, 12 K. L. R. 894.
Warehouse receipt — Right to issue — Estoppel.
An instruction to the jury to the effect that the jury must
find, first, that the warehouseman was authorized to sell the
goods in question and secondly that he was authorized to issue
a receipt therefor. It was held that this was error, that an
authorization to sell carried with it the necessary authority to
issue a warehouse receipt for the goods sold. Although sec-
tion 7 of the Warehouse Laws of 1869 requires a written
permission from the holder of the first receipt, before the ware-
houseman can issue a second one, that the act did not apply
to the case above. Where the holder of the first receipt had
already instructed the warehouseman to sell the goods, he
would be estopped to deny that the warehouseman had author-
ity to sell and consequently the authority to issue the receipt.
That the purposes of the above act are for the prevention of
fraud and the encouragement of commerce ; and the statute
would not be applied in a case where the effect thereof would
be to the contrary. Farmer v. Gregory & Stagg, 78 Ky. 475 ;
Taylor v. Farmer, 81 Ky. 458.
Same — For his own goods.
A warehouseman may issue a receipt for his own goods
280 KENTUCKY DECISIONS.
stored in his warehouse. But warehousemen can assert no
claim against such goods unless it be shown upon the ware-
house receipt. G eenbaum Bros. & Co. v. Megihben, 10 Bush,
419 ; Cochran & Fulton v. Ripley, Hardie & Co., 13 Bush, 495 ;
Ferguson, Jr., Assignee, v. Xorthern Bank of Ky., 14 Bush, 555.
Same — Distinguishing marks.
By act of March 6, 1869, it is required " that a warehouse
receipt shall set forth the quality, quantity, kind, and descrip-
tion of the property it represents, and which shall be desig-
nated by some mark." It was held that the usual or known
trade-mark of a firm, found on all of its property stored in a
warehouse, is not a sufficient designation by marks to comply
with this statute. It must be such as will enable the party to
identify the particular property and to distinguish it from that
of a similar kind and quality ; such is the plain purpose of the
statutes. Ferguson Jr., Assignee, v. Northern Bank of Ken-
tucky, 14 Bush, 555.
Same — Notice as to unpaid purchase price — What the receipt
must contain.
A warehouse receipt for goods for which the purchase price
has not been paid need not contain a statement as to the
amount of the unpaitl purchase price in order to protect the
vendor. The receipt on its face must contain such facts as
would put a person accepting the same on inquiry. Western
Bank v. Marion Co. Distilling Co., 9 K. L. R. 500 ; Same v.
Same, 89 Ky. 94 ; Pike v. Greenhaum, 12 K. L. R. 423.
Same — Negotiability — What a holder thereof takes.
Although warehouse receipts are made negotiable l)}- the law
of this state, the holder of a receipt takes no better title, and
stands in no better attitude, than if the goods themselves had
been delivered to him. Such receipts, no matter under what
section of the act of 1869 they are issued, are in lieu of, and
represent the property to which they refer, and their negotia-
bility serves only to ward off any defense which the warehouse
keepers may have. First Natiomd Bank of Louisville v. Boyce,
78 Ky. 42 ; Greenbaum Bros. & Co. v. Megibben, 10 Bush, 419.
KEJ^TUCKY. 281
Same — Same — Indorser's liability — Warehouse receipts are ne-
gotiable and transferable by indorsement.
The indorser's liability is the same as that of one who in-
dorses bills of exchange. Cochran & Fulton v. Ripley, Hardie
& Co., 13 Bush, 495 ; Greenbaum. Bros. & Co. v. Megibben, 10
Bush, 419 ; Ferguson, Jr., Assignee, v. Northern Bank of Ken-
tucky, 14 Bush, 555 ; Greenbaxim v. Burns, 13 K. L. R. 267.
Same — Negotiability — Innocent holder protected.
A warehouseman sold whiskey and accepted the purchaser's
note in payment therefor and then issued to the purchaser a
warehouse receipt, in which it was stated that the whiskey was
deliverable on return of the receipt and payment of storage
charges. The purchaser borrowed money and gives this receipt
as collateral security for the payment of the debt. In an ac-
tion, by the one who had loaned the money to the purchaser,
against the warehouseman, it was held that the whiskey should
be sold, applying the proceeds first to the plaintiff's debt and
the balance, if any, to the warehouseman for the payment of
the debt due him, from the purchaser, on the purchase price
anrl storage charges. Greenbaum Bros. & Co. v. Megibben,
10 Bush, 419.
Same — Same — For goods not actually in store — Bona fide holder.
The fact that a warehouseman has incurred a penalty, by
issuing receipts for goods not in his warehouse, will not effect
the validity of such receipt in the hands of one acting in good
faith. Cochran & Fulton v. Ripley, Hardie & Co., 13 Bush, 495.
Same — Same — Bona fide holder.
Where a warehouse receipt is taken for a prior indebtedness,
the transferror having no right to assign the receipt, such
person cannot be said to be a bona fide holder and thus take
free and clear of all equities. Carstairs, McC. & Co. v. Kelly,
16 K. L. R. 64.
Same — Same — Same — Notice as to purchase price being unpaid.
A warehouseman who was also a wholesale licjuor dealer sold
a large quantity of whiskey to D., and took in payment there-
282 KENTUCKY DI<:CIS10NS.
for D.'s accepted draft due in thirty days. At the time of the
acceptance of the draft tlie warehouseman dehvered to 1). ten
warehouse receipts representing the whiskey purchased. There
was nothing stated on the receipt to show that the purchase
price was unpaid, and it was therein stated that the whiskey
was deliverable only upon the return of the receipt properly
indorsed, and on the payment of the government and state
tax and storage charges due thereon. D. sold the whiskey to
plaintiff who took the warehouse receipts without notice that
the purchase price was not paid. On the above stated facts, it
was held that the lilaintiff was entitled to recover, that the
warehouseman having issued and given currency to the negoti-
able receipts, he could not escape liability thereon at the suit
of an innocent purchaser for value, without establishing by
proof that the owner had actual notice that the purchase money
had not been paid, and that it was the agreement that it should
be paid before the whiskey should be delivered ; that any other
construction of it would enable the warehouseman to take ad-
vantage of his own wrong. That where a warehouseman issues
such receipts he puts it in the power of the holder to treat on
the face of it; he enables a holder to say, and to induce others
to believe, that he has certain property which he can sell, or
pledge for the loan of money. And if a warehouseman gives
to the party who holds such a receipt a false credit, he will
not be suffered to contradict the statement which he has made
in the receipt so as to injure the party who has been misled
by it. Collins & Co. v. Rosenham, 19 K. L. R. 1445 ; McNeal
v. Hill, 1 WoU. W. (U. S.) 96.
Same — As collateral — Goods not in warehouse — Bona fide holder.
A warehouseman issued receipts as collateral security to one
who had made a loan to him. At the time of this transac-
tion the goods represented by the receipts were not in
the warehouse. When the loan came due the same was re-
newed and the warehouseman issued new receipts to the
lender. At this time the goods represented were actually in
store. It was held that although the warehouseman had vio-
lated the statutes in the first inst;mce by issuing receipts when
goods represented thereby were not in his possession, this would
KENTUCKY. 288
not deprive the lender of his rights of a borui fide holder with-
out notice, since the second receipts which he held were not in
violation of the statutes. Further, that the extension of th(>
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, <S20 bushels
number One wheat at owner's risk from elements, at 10 cents
less Detroit quotations for same grade when sold to us. Stored
for days.
"HiBBARD 6: Graff."
The wheat was all stored, with plaintiff's knowledge, in bins
from which the defendants drew from day to day for |)urposes
372 IdlCHIGAN DECISIONS.
of their business and nianulacture. No storage was ever charged
and the dealings between the parties remained entirely unsettled
and open until the failure of the defendants. Plaintiff then de-
manded his wheat and failing to obtain the same brought an
action of replevin for the recovery thereof. The defendants
undertook to show that the plaintiff' demanded not the wheat
but the price thereof, but on this point the jury decided against
them. It was contended in behalf of the plaintiff that the trans-
action was a bailment and that it was at the option of the plain-
tiff" to take the value at ten cents less than the Detroit quota-
tions or to receive back the wheat or an equal amount of the
same kind and quantity. It was held that the relations of the
parties was to be determined from the receipt and that as long
as the wheat was held by the defendants at the risk of the plain-
tiff" it was a bailment and not a sale. That the plaintiff could
have converted the bailment into a sale by notifying the de-
fendants of his election to receive the price fixed according to
the terms of the contract. Further, that if the receipts were
issued by the defendants as warehousemen they stood for the
goods for which they had been issued and the fair presumption
was that the grain, or its equal in kind and quantity, was to be
kept in the warehouse to meet the receipt on presentation, and
that this presumption could only be overcome by some act
unequivocal in its nature. Further, that usage can never vary
the written stipulations of parties, though it may aid in the ex-
planation of their terms and perhaps add incidents in respect to
which they are silent. Ledyard v. Hibbard et al, 48 Mich. 421.
H.
Lien for charges— By statute extends to all valid claims for
storage, etc., against the order.
Under sec. 2, chap. 127, Laws of 1897, it was Md that a ware-
houseman has a valid lien for all claims which he may have
against the oicner of property deposited with him for storage
charged and for all moneys advanced by him for cartage, labor,
insurance, weighing, coopering and other necessary expenses to
or on such property. That, therefore, where goods had been
removed from the warehouse and possession thereof was after-
wards obtained that the lien for former storage ciiarges would
MICHIGAX. 373
attach and that tlio warehouseman could hold such fj;oo(ls for
storage charges and I'oi- other advances and charges mentioned
in the statute. Kaufman \. Leonard (Wayne County Circuit
Court, May, 1903, not yet reported) following Stillman v. Kim-
herly, 121 N. Y. 393, aff d 53 Hun, 531.
M.
Pledge — Warehouse receipt — Issued against warehouseman's
own goods.
The defendant warehouseman issued to the plaintiff national
bank as security for the payment of a note, a warehouse receipt
for a large quantity of wheat. In this i-eccupt it was statcul
that the defendant held to the account of the plaintiff wheat
represented thereby, to be delivered in the wheat or its equiva-
lent in flour upon the return of the receipt properly indorsed.
It further appeared that at the date of this transaction the
defendants were not only buying, selling, storing in their factory
and shipping wheat on their own account, but were also re-
ceiving into their mills wheat to be stored for others for which
they issued the customary warehouse receipt. The court in-
structed the jury that the receipt issued by the defendant to
the plaintiff constituted a valid pledge in the nature of a mort-
gage of the property described therein as security for the note
to which it referred. Under these facts the jury found that
the defendants were the general owners of the wheat replevied
and that the plaintiff had a special property therein to the
amount of the unpaid loan. It was held on appeal that this
instruction was correct, that the contention made in behalf of
the defendants that there was not a valid pledge made of the
wheat on the ground that the plaintiff never had ]:)ossession
thereof, which was essential to a pledge, could not be sustained ;
that the warehouse receipt passed the title to the wheat repre-
sented thereby and that there was a> 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(l<z;('d by due course
of law, for violation of any clause of this chapter, or of chap-
ter 79 of the Revised Statutes of Missouri, 1899, and his or their
full and unreserved compliance with the laws of this state in
relation thereto. Id. p. 282.
Transacting business without a license— Penalty :
Any person or persons who shall transact within a city of
over fifty thousand inhabitants, the business of storing for com-
pensation other property than grain, without first procuring
license and giving a bond as herein provided, or who shall con-
tinue to transact such business after such license has been re-
voked, or such bond may have become void or found insuffi-
cient security 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 S500 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
whose license has been revoked, within one year from the time
same was revoked. Id. p. 282.
Property to be sold for storage charges :
If the owner of any goods, merchandise or other propert}'
shall store the same in any warehouse created by this chapter,
and shall not pay the storage charges upon the same within a
period of sixty days after said charges have become due, it shall
be lawful for the warehouseman to sell such goods, merchandise
or other property, or so much thereof as will pay all storage
and other charges, at auction to the highest bidder, first having
450 MISSOURI LAWS.
given cither twenty days' notice by advertisement in a daily
paper, or four weeks' notice by advertisement in a weekly paper,
of the time and place of the sale, and having further given notice
to the owner by mailing him, at least twenty days before the day
of sale, if his address is known, a notice of the time and place of
sale; and if there be any surplus left after paying the storage
charges, 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; and if no such demand for such
surplus is made within sixty days after the time of such sale,
then said surplus shall be paid into the county treasury, sub-
ject to the order of the owner. Id. p. 282.
Warehouseman, etc., not to issue receipt until goods ac-
tually in store :
No warehouseman, wharfinger, or other person, shall issue
any receipt or other voucher for any goods, wares, merchandise,
grain, flour, or other produce or commodity, to any person or
persons purporting to be the holder, owner or owners thereof,
unless such goods, wares, merchandise, grain, or other produce
or commodity, shall have been actually received into 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 control at the time of issuing such receipt. R. S.
1889, sec. 739^.
Not to issue any receipt for money loaned, etc., until
goods actually in store :
No warehouseman, wharfinger, or other person, shall issue any
receipt or other voucher upon any goods, wares, merchandise,
grain, flour, or other produce or commodity, to any person or
persons, for any money loaned, or other indebtedness, unless
such goods, wares, merchandise, grain, flour, or other produce
or commodity, shall be, at the time of issuing such receipt, in
the custody of such warehouseman, 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. 740.
MISSOURI. 457
Not to issue second receipt— When :
No warehouseman, wharfinger, or other person, shall issue any
second or cluijlicate receipt for any goods, wares, merchandise,
grain, flour, or other produce or commodity, whilo any former
receipt foi- any such goods, wares, merchandise, grain, flour, or
other produce or commodity, as aforesaid, or any i)art thereof,
shall be outstanding and uncancelled, without writing across the
face of the same duplicate. Id. sec. 741/i.
Not to sell, etc., ^oods without written assent of person
holdini^ receipt :
No warehouseman, wharfinger, or other person, shall sell or in-
cumber, ship, transfer, or in any manner remove, or pcrniit to be
shipped, transferred or removed beyond his 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 purpose, without the written assent of the person or
persons holding such receipt. Id. sec. 742i.
Not to give shipping receipt until goods are actually on
boat, etc. :
No master, owner or agent of any boat or vessel of any de-
scription, forwarder, or ofhcer or agent of any railroad, trans-
fer or transportation company, or other person, shall sign or
give any bill of lading, receipt or other voucher or tlocument
for any merchandise or property, by which it shall appear that
such merchandise or property has been shipped on board of
any boat, 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, to be carried and convej'^ed as expressed in
such bill of lading, receipt or other voucher or document. Id.
sec. 743y.
Receipts, bills of lading, etc., declared negotiable :
All receipts issued or given by any warehouseman, or other
person or firm, and all bills of lading, transportation receipts
and contracts of affreightment, issued or given by any person,
boat, railroad or transportation or transfer company, for goods,
458 MISSOURI LAWS.
wares, merchandise, grain, flour or other produce, shall be and
are hereby made negotiable by written indorsement thereon, and
delivery in the same manner as bills of exchange and promissory
notes; and no printed or written concUtions, clauses or provi-
sions inserted in or attached to any such receipts, bills of lading
or contracts, shall in any way limit the negotiability or affect
any negotiation thereof, nor in any manner impair the right
and duties of the parties thereto, or persons interested therein;
and every such conchtion, clause or j^ro vision purporting to
limit or affect the rights, duties or liabilities created or declared
in this chapter, shall be void and of no force or effect. Id.
sec. 744A;.
How transferred — Lien created — Exemption :
Warehouse receipts given by any warehouseman, wharfinger
or other person or firm, for any goods, wares, merchandise, grain,
flour or other produce or commodity, stored or tleposited, and
all bills of lading and transportation receipts of every kind,
given by any carrier, boat, vessel, railroad, transportation or
transfer company, may be transferred by indorsement in writ-
ing thereon, and the delivery thereof so indorsed ; and any and
all persons to whom the same may be so transferred shall be
deemed and held to be the owner of such goods, wares, mer-
chandise, grain, flour or other produce or commodity, so far as
to give validity to any pledge, lien or transfer given, made or
created thereby, as on the faith thereof, and no property so
stored or deposited, as specified in such bills of lading or receipts,
shall be dohvered, except on surrender and cancellation of such
receipts and bills of lading; Provided, however, That all such
receipts and bills of lading, which shall have the words not ne-
fjotiable plainly written or stamped on the face thereof, shall
be exempt from the provisions of this act. Id. sec. 745/.
Penalty for violation of the provisions of this chapter :
Any warehouseman, whai'finger, forwarder or other person
who shall violate any of the provisions of this chapter 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 imprisonment in the penitentiary or this state
Missoriu. 459
not exceeding five years, or both; ami all and cNory person or
persons aggrieved by the viohilion of an\- of the provisions of
this chapter may have and maintain an action at law against
the person or persons, corporation or corporations, violating any
of the provisions of this cliapter, to recover all damages, imme-
diate or conso(iuential, which lie or they may have sustained
by reason of any such violation, as aforesaid, before any court of
competent jurisdiction, whether such person or persons shall
have been convicted of fraud, as aforesaid, under this chapter,
or not. Id. sec. 746m.
This chapter applicable to bills of lading :
All the provisions of this chapter shall apply and be ai)pli-
cable to bills of lading, and to all persons or corporations, their
agents or servants, that shall or may issue bills of Uuhng of any
kind or description, the same as if the words forwarder and hills
of lading were mentioned in every section of this chapter. Id.
sec. 747n.
Exception as to application :
So much of the preccnling sections of this chapter as forbids
the delivery of property except on surrender and cancellation
of the original recei])t or bill of lading, 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. 748o.
Railroad and warehonse commissioners :
The present botird of lailroad commissioners of the state of
Missouri shall be charged with the sujiervision of the execution
of the details of this article, and shall hereafter be known as the
board of railroad and warehouse commissioners of the state of
Missouri. Id. sec. 5605.
Board to appoint chief inspector — Dnties :
It shall be the duty of the l)oard of railroad and warehouse
commissioners to appoint a suitable person, who shall not be a
member of the board of trade, who shall not be interested, either
directly or indirectly, in any warehouse in this state, who shall
be a grain expert, and who shall be known as the chief inspector
460 MISSOURI LAWS.
of grain for the state of Missouri, whose term of service as such
shall continue for two years from the date of his appointment
under this article, and further terms of office of the cliief in-
spector shall be for four years, connnencing from the date of
expiration of service of the first incumbent. It shall be the
duty of the chief inspector to have a general supervision C/f the
inspection of grain, as required by this article or laws of this
state under the immediate direction of the board of railroad and
warehouse commissioners of the state of Missouri. Id. &,ec.
5606.
Public w.irelioiises :
All buildings, elevators or w^arehouses, wherever state grain
inspection may be established by the state board of railroad and
warehouse commissioners in this state, and having a capacity
of not less than fifty thousand bushels, erected and operated,
or which hereafter may be erected and operated, by any person
or persons, association, copartnership or corporation, for the
purpose of storing the grain of different owners for a compensa-
tion, are hereby declared public warehouses, and the person or
persons, associations, copartnership or corporation owning such
building or buildings, elevator or elevators, warehouse or ware-
houses, which are now or may hereafter be located or doing
business within this state, as above described, whether said
owners of operators reside within this state or not, are public
warehousemen within the meaning of this section. Id. sec.
5607, amended. Laws, 1893, p. 180^.
License for pul^lic warehouse :
The proprietor, lessee or manager of any public warehouse
shall be required, before transacting any business in such ware-
house, to procure from the circuit court of the county in which
such warehouse is situated — or if to i)rocure 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 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 clerk of said court upon written application, which
shall set forth the location and name of such warehouse, and the
-MISSoil;!. 401
individual name of each person inteieslcd as owner or principal
in the management of the same, or, if the warehouse be owne^l
by or managed by a corporation, Uk; names 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 |)ublic warehouse in ac<'oi'danc(' with the laws of
this state, and shall be revocal)le by the said couit upon a sum-
mary 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 tlirected by the court. Id. sec. 5608.
Public wareliouseineii to ^ive bond :
The person or persons 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 Missouri, with good and sufficient
security to be approved by said court, in the penal sums as per
the following schedule of capacities by measurement: For a
public warehouse with a capacity not exceeding 50,000 bushels,
$2,500. For a public w-arehouse with a capacity of more than
50,000 bushels and not exceeding 100,000 bushels, $5,000. For
a public warehouse with a capacity of more than 100,000 and
not exceeding 200,000 bushels, $10,000. For a public ware-
house with a capacity of more than 200,000 bushels and not
exceechng 300,000 bush(>ls, $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. 53<S5.
Loss by fire — Heating — Order of delivery — Grain out of
condition :
No i^ublic 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 pre-
serve 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 heating or dam-
age was the result of causes beyond his control, and in ordei- that
no injustice may result to the holder of grain in any pul>lic 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 <luties of the
board of transportation :
In addition to their present duties the board of transjjorta-
tion shall examine into the condition and management anrl all
other matters concerning the business of public warehouses in
this state, so far as the same pertain to the relation of such ware-
houses to the i^ublic and to the acconunodation and security of
persons doing business therewith, and whether such warehouses,
their officers, directors, managers, lessees, agents and em-
ployees comply with the laws of this state now in force or which
shall hereafter be in force concerning them. And whenever it
shall come to their knowledge, either upon com]:)laint or other-
wise, or they shall 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 such corporations or persons guilty
of such violation. In order to enable said board of trans-
portation to efficiently 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 public warehouse and personally iniiuiro
into the management of such warehouse business. Id. sec. 5400.
Statement of public warehousemen :
It shall be the duty of every owner, lessee and manager of
every public w^arehouse in this state to furnish in writing, under
oath, at such times as said board of transportation shall re-
quire and prescribe, a statement concerning the condition and
management of his business as such warehouseman. Id. .sec.
5401.
Cancellation of warehouse licenses :
Said board of transportation are hereby authorized to hoar
526 NEBRASKA LAWS.
and determine all application.s for the cancellation of warehouse
licenses in this state, which may be issued in pursuance of anj'
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 warehouse-
man has been guilty of violating any law of this state concern-
ing the business of public warehousemen, said commissioners
may cancel and revoke the license of said public warehouse-
men, and immecUately notify the officer who issued such license
of such revocation and cancellation, and no person whose license
as a pubHc warehouseman shall be cancelled 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 not
less than six months from the date of such revocation and can-
cellation, and until he shall have again been licensed; Provided,
That this section shall not be construed as to prevent any such
warehouseman from delivering any grain or other property 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. sec. 5402.
Power to examine books, etc. :
The property, books, records, accounts, papers and proceed-
ings of all such public warehousemen shall at all times, during
business hours, be subject to the examination and inspecti(jn
of the said board of transportation, and they shall have power
to examine under oath or affirmation any and all owners, man-
agers, lessees, agents and employees of such [)ublic warehouses
and other persons concerning any matter relating to the condi-
tion and management of such business. Id. sec. 5403.
May examine witness, etc. :
In making any examinations as contemplated in this act or
for the purpose of obtaining information pursuant to this act,
said board of transportation shall have the power to issue sub-
poenas for the attendance of witness and may administer oaths.
In case any person shall willfully fail or refuse to obey said sub-
poena, it shall be the duty of the county court of any county
XEHKASKA. 527
upon application of said board of tiaii.si)ortatioii to issue an
attachment for such witness, and compel such witness to attend
before the said board of transportation, and give his testimony
upon such matters as shall be lawfully recjuired by the said
boaiTJ of transportation, and the said court shall have pow<'r
to punish for contempt as in othei- cases of refusal to obey th(!
process and order of such court. Id. sec. 5404.
Penalty against witness :
Any i)erson who shall willfully neglect or refuse to obey the
process of subpania issued by said board of transportation and
a])pear and testify as therein required shall be guilty of a mis-
demeanor and shall l)c liable lo an indictment in any court of
competent jurisdiction, and on conviction thereof shall l)c pini-
ished for each offense by a fine of not less than twenty-five (25)
dollars, nor more than five hundred (500) dollars, or by im-
prisonment of not mow than thirty days, or both, in the dis-
cretion of the court before which such con^'iction shall be had.
Id. sec. 5405.
Penalty against iniblic warehousemen, etc. :
Every railroad corporation and every ownei*, lessee, manager
or employee of any public warehouse who shall willfully neglect
to make and furnish any report required in this act at the tinm
heroin required, or who shall willfully and unlawfully hinder,
delay or obstruct said board of transportation in the tlischarge
of the duties hereb}' imposed upon them shall forfeit and pay
a sum of not less than one hundred dollars ($100) nor more
than five hundred dollars ($500) for each offense, to be recov-
ered in an action of debt in the name and for the u.se of the
people of the state of Nebraska. Id. sec. 5406.
Attorney i?eneral and county attorney to prosecute suits:
It shall be the duty of the attorney general and the county
attorney in every district and county on the request of said
board of transportation to institute and ])rosecute any and all
suits and proceechngs which they or any of them shall be di-
rected I)y said board of transjwrtation to institute and prose-
cute for a violation of this act or any law of this state concern-
528 NEBRASKA LAWS.
ing public warehouses or the officers, employees, owners, opera-
tors, or agents of any such public warehouse. Id. sec. 5407.
Same — In name of people :
All such prosecutions shall be in the name of the people of
the state of Nebraska, and all moneys arising therefrom shall be
paid into the state treasury by the sheriff or other officer collect-
ing the same. No suits commenced by said board of trans-
portation shall be dismissed except said board shall consent
thereto. Id. sec. 5408.
Right of iudividuals 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 public warehouses from prosecuting for his private dam-
ages in any manner allowed by law. Id. sec. 5409.
Board of transportation to establish grades :
"\Mthin thirty days after this act becomes a law the said
board of transportation shall establish a proper number and
standard 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 thirty days prior thereto, by publication in one or
more daily newspapers printed in each city containing ware-
houses of Class A, and. provided further, that no mixture of old
and new grades, even though designated by the same names or
distinction, shall be i^ermitted while in store. Id. sec. 5410.
Committee of appeals :
^^'ithin twenty days after this act takes effect the said board
of transportation shall appoint three discreet and competent
persons to act as a committee of appeals in every city wherein
is located a public warehouse of Class A, who shall hold their
office for one year, and until their successors are appointed.
And (nvry year thereafter a, like committee shall be appointed
by the said board of transportation, who shall hold their office
for one year and until their successors are appointed: Provided,
said board of transportation shall have in their discretion to
NEBRASKA. 529
remove from office any member of saitl cominittoe at any lime,
and fill vacancies thus created by the appointment of other dis-
creet persons. Id. sec. 5411.
Appeals — Notices :
In all matters involving doubt on t]w part of the cliicf in-
spector or any assistant inspector as tcj tlic j)r()))(M- inspection
of any lot of grain or in case any owner, consignee or shii)per of
grain, or any warehouse manager shall be dissatisfied with the
decision of the chi(;f inspector or any assistant inspector, an
appeal may be made to said committee of appeal and the de-
cision of a majority of said committee sliall be final. Said
board of transjjortation are authorized to make all necessary
rules governing the manner of appeals as herein provided. And
all complaints in regard to the inspection of grain and all no-
tices requiring the services of the committeee of appeal may be
served on said committee or may be filed with the warehouse
registrar of said city, w^ho shall immediately notify said com-
mittee of the fact and who sliall furnish said committee with
such clerical assistance as may be necessary foi- tlie i)roi:)er dis-
charge of their duties. It shall be the duty of said committee
on receiving such notice to innnediately act on and render a
decision in each case. Id. sec. 5412.
CoiniMittee on appeals — Oath — Bond— Who may serve on :
The said conmiittee on apj^eals shall, before entering upon
the duties of their office, take an oath as in the case of other in-
spectors of grain, and shall execute a bond in tlu> ))('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)lea<l.
The court held that the motion of the complainant for an in-
junction pendente lite must be denied on the ground that he;
had no right to maintain an action of interi)leatler as he must
defend himself at law, the question at issue being one purely
of the legal title to the property. Bartlett et al. v. His Imperial
Majesty, The Sultan, etc., 23 Fed. Rep. 257; Crawshay v. Thorn-
ton, 2 Mylne & C. 1.
G.
Government bonded warehouse— Effect of statute— Burden of
proof.
In an action against a government bonded warehouseman for
the value of certain cigars, alleged to have been lost while in
his custody, it was contended on behalf of the defendant that
the goods deposited with him were at the owner's risk undei-
the terms of the Act of Congress pertaining to bonded warehoase-
men (10 U. S. Stat, at L. p. 270). It was held that the pi-o-
vision of this statute stating that the goods were held at the
owner's risk aj^plied only to the United States government and
not to the w^arehouseman, it not ])eing the intention of congress
to change thereby the liability of bonded warehousemen for
the exercise of due and ordinary care. Schwerin et al. v. McKie
etal.,51'N.Y.180.
Same — Statute requiring withdrawal within one year — Effect of
such ivithdraical when negotiable xmrehouse receipt outstanding —
One taking receipt after the expiration of the year not a bona fide
holder.
The defendants, who conducted a bonded warehouse, tleliv-
ered to a depositor a negotiable receipt for a large quantity
of whiskey which was stored therein. In the receipt it was
stated that the wliiskey was deliverable to the bearer only
572 NEW VOllK DECISIONS.
after the payment in cash of the short price, the government
tax and storage charges. On the back of the receipt tliere was
a copy of tlie statutes of Kentucky by which such receipts
were made negotiable and transferable by indorsement in
blank with the same liability attaching to the negotiation of
bills of exchange. The defendants duly gave a bond as required
by the Revised Statutes of the United States conditioned that
they would pay the tax on the whiskey as specified on the entry,
before removal from the distillery warehouse and within one
year from the date of the bond. A year thereafter the de-
fendants shipped ■ the whiskey to the depositor. It subse-
quently appeared that this depositor had indorsed the receipt
after the expiration of the year to the plaintiff who brought an
action for conversion against the defendant warehouseman.
Upon the above stated facts, it was held that the warehouse-
man was not liable; that the plaintiff when he took the ware-
house receipt was in a similar position to one who accepts a
bill of exchange after maturity, that is, he took with all the
equities ; that the warehouseman had no right nor power
under the ReAdsed Statutes of the United States to hold the
whiskey after the expiration of the year and that the plaintiff
was chargeable \\dth knowledge of this statute. -An examina-
tion of the receipt would have shown the plaintiff that a year
had expired since the issuance thereof and that, therefore, it
could not then be lawfully in the warehouse of the defendant.
Van Schoonhoven v. Curley et al, 86 N. Y. 187.
Same—Rejyresentatio7i on warehouse receipt that liquor in "free
warehouse.^'
If a warehouse receipt state that the liquor represented
thereby is stored in a "free warehouse" whereas in fact the
government tax has not been paid, such warehouseman will be
liable for the amount of such tax to an innocent holder of the
receipt. First Nat. Bank v. Dean et al, 137 N. Y. 110, afT'g
Same v. Same, 16 N. Y. Supp. 107.
Same— Sureties on bond— Discharge by postponement of sale
— Principal liable.
By the Revised Statutes of the United States (12 Stat, at L.
NKW yoi:k. fuH
p. 293) goods left in a Initcd States governiiieiit bonded ware-
house are deemed to be abandoned after three years, if all taxes
antl penalties due thereon are not paid. The regulations of the
treasury department proviile that such goods shall be sold on
a certain day after the expiration of saitl three years. Where
the secretary of the treasury issued an order postjKjning such
sale and afterward the Unitetl States brought an action against
the sureties on the bond for the recovery of the deficit existing
after the sale, it was held that by such postponement the sureties
were released. Such postponement of sale liad ])recisely the
same result as an extension of credit would have in a case of
other sureties. A surety is entitled to have the sale take place
on the day specified in the treasury regulations ; a postponement
thereof will increase the amount for which he is liable and for
which lie must look to his principal, ^^'ith regard to the prin-
cipal, the case is different. He is liable for the whole duties
as importcM- without limitation of time and irrespective of the
goods held as security. United StateswDe Visser, 10 Fed. Rep.
642.
H.
Storage charges — Contract an entirety — Charges not earned until
contract fully performed.
The plaintiff, a warehouseman, agreed with the defendant
to store a number of barrels of wine for a definite i)eriod of
time for a stipulated price per barrel. Prior to the expiration
of such time, and while the plaintiff still had a large number
of the barrels in his possession, the warehouse and contents
were destroyed by fire without negligence or fault on his part.
In an action for the storage charges, it was held that the plain-
tiff could not recover because the contract was an entirety ; and
as he had not fully performed the same he was not entitled to
any part of his storage charges. It appeared from the e\idence
that the defendant had paid a certain sum in cash on account
of such storage charges at the time the agreement was made.
It was held that although the defendant in his answer did not
claim the return of this sum that, nevertheless, the plaintiff
was not entitled to retain the same. Arclier v. McDonald ct ai,
36 Hun, 194.
574 NEW YORK DECISIONS.
Same — No implication to reduce storage charges on account of
insurance — Custom.
The plaintiffs, warehousemen, sued the defendant for storage
charges due on account of sugar stored. The defendant ad-
mitted the storage and the rate thereof and set up an imphed
agreement, based upon custom, by which he claimed a set-off
against such charges on account of sums paid by him for insur-
ance. The defendant alleged that it was a custom in that
vicinity to allow to depositors, in reduction to their storage
charges, a certain sum for insurance when the goods were stored
in a warehouse in which goods of a fibrous nature were stored.
It was held that the defendant had failed to establish any legal
right to the counterclaim as alleged. Woodruff et al. v. Acosta,
11 St. Rep. 286.
Advances by warehouseman to depositor — Usury — Intent a ques-
tion for the jury.
It appeared that the plaintiff's, who were warehousemen,
loaned money to the defendant who had deposited goods with
them and secured the payment of the notes given therefor by
the warehouse receipts. The warehouseman agreed to procure
the money from another source by the use of his name, it being
further agreed that he was to receive compensation for these
services. It was held that although the facts showed that the
plaintiffs' compensation amounted to a usurious rate of interest
that, nevertheless, he was entitled to compensation for his
services in procuring the money for the defendant although it
appeared that the money advanced was in reality money be-
longing to the plaintiff himself ; and further held, that it was a
question of fact for the jury to determine whether this form of
transaction was gone through with for the purpose of covering
a usurious transaction. Linds et al. v. Grant, 37 St. Rep. 60.
Same — Action for freight — Custom — Apparent good order.
By the custom of warehousemen, known and established, they
have the right to receive goods from a carrier, if in apparent
good order, and advance to the latter his reasonable charges
for the carriage of them, and to hold them subject to the lien
NEW YORK. 575
of the carrier for the amount thus advanced; and if deUvered
to the owner without immediate payment, at the owner's re-
quest, a suit may be maintained to recover the amount ad-
vanced to the carrier, and if the gootls have been injured by
the carrier, which injury is not ai)parent or known to the ware-
houseman, before or at the time of his receiving tlie goods, the
owner must look to the carrier for his chimages, and cannot
recoupe the same in an action by the warehouseman. Sage et al.
V. Gittner et al., 11 Barb. 120; Western Transportation Co. v.
Barber, 56 N. Y. 544.
Sale for storage charges — Agreenient.
The right given to warehouseman (Laws, 1883, ch. 421) to
sell goods for storage charges when one year's storage is due,
may be altered by special agreement between the parties. State
Trust Co. V. Casino Co., 5 App. Div. 381.
Lien — Given only to ivarehousemen.
The lien of a warehouseman for his charges is governed by
ch. 526 of the Laws of 1885 (see also ch. 418, Laws of 1897)
by the terms of which act, in order to be entitled to a lien, a
person must be engaged regularly in the business of storing
goods, wares and merchandise for hire. A person not so en-
gaged does not come within the terms of the statute. Merritt
V. Peirano, 10 App. Div. 563 ; In re Kelly, 18 Fed. Rep. 528.
Same — Must sell goods within a reasonable time after expira-
tion of the year.
After there has been a default in the payment of storage
charges and one year has elapsed, a warehouseman must sell the
goods for such charges within a reasonable time. He has no
right to keep the goods for an indefinite period allowing his
charges to increase. Although the statute is not mandatory
and does not require the warehouseman absolutely to sell at
the expiration of the year, nevertheless the rights and duties
of the contracting parties are fixed by fundamental principles
of law which do not depend upon the statute. TherefcM-e. :i
warehouseman cannot unreasonnblv neglect to avail himself
576 NEW YORK DECISIONS.
of his rights of sale after the same has accrued. Morgan v.
Murtha, 18 Misc. 438, reversing Same v. Same, 17 Misc. 292.
Savie — Right to retain undelivered portion of goods for storage
due on entire lot.
A warehouseman has a hen upon goods remaining in store,
which are part of a large quantity of goods originally stored,
for the storage charges due upon all of the goods. Schmidt &
Webb V. Blood & Green, 9 Wend. 268.
Same — General and not specific — May hold goods for all legal
demands for storage against the owner — Sec. 1. ch. 526, Laws of
1885, construed.
By sec. 1, ch. 526, of the Laws of 1885, it is provided that
a warehouseman or person lawfully engaged in the business of
storing property for hire shall have a lien thereon for his storage
charges and for moneys advanced by him for cartage, labor,
weighing and coopering paid on goods deposited and stored
with him, the statute extends such hen to all legal demands for
the above which he may have against the owner thereof. It
was held that the warehouseman has a general lien on any and
all goods which he may have in his possession for any and all
legal chai-ges which he may have against the owner of such
goods for storage or for money advanced for the purposes speci-
fied in the statute. Stallman & Fulton v. Kimberly & Johnson,
53 Hun, 531, aff'd 121 N. Y. 393, this case followed in Kaufman
V. Leonard et al, decided in Wayne County Circuit Court (Michi-
gan), May, 1903, not yet reported ; Baumann v. Post, 26 Abb.
N. C. 134. See note on liens and the effect of the act in 23
Abb. N. C. 245.
Same— Warehouseman's lien subordinate to rights of mortgagee
under chattel mortgage.
\\Tiere one mortgaged his furniture, the mortgage having been
duly recorded as required by statute, and had made default
in the payment thereof, and, further had removed the
furniture and stored the same contrary to the terms of the
mortgage, it was held, in an action by the mortgagee against the
warehouseman, that the hen of the former was superior to that
NEW YORK. 577
of the latter. It was contended in behalf of the warehouseman
that by sec. 1, ch. 526, of the Laws of 1885, warehousemen
were given a specific hen upon goods stored with them. The
court stated that it was true that a specific lien was given by the
act and that a general lien was also given thereby, but that there
was nothing in the statute which was intended to give a ware-
houseman ;. lien upon goods belonging to another, stored by a
stranger in fraud of the true owner's rights. Baumami v. Post,
26 Abb. N. C. 134 ; Eisler v. Union Transfer and Storage Co',
16 Daly, 456 ; Baumann v. Jefferson, 4 Misc. 147; Banfkld \
Haeger, 13 J. & S. 428.
Same— When warehouseman's lien superior to rights of mwt-
gagee under chattel mortgage.
Where the mortgagee under a chattel mortgage had failed to
refile the mortgage within thirty days prior to the expiration
of the first year, and the goods were stored with a warehouse-
man, it was held that the lien of the latter for his storage charges
was superior to that of the mortgagee. State T. Co. v. Casino
Co. et al, 5 App. Div. 381.
Same— Same— Chattel mortgage must he filed within thirty days
before expiration of year.
Where a warehouseman held goods on storage which had been
mortgaged and the mortgage had been recorded forty-eight (48)
days before expiration of the year and not witliin thirty (30) days,
as required by the statute, it was held that such refiling was
absolutely nugatory and that the lien of the warehouseman for
his storage charges was superior to that of the mortgagee, and
that the goods could be sold by the former for such charges.
Industrial Loan Association v. Saul, 34 Misc. 188.
Same — Purchaser taking with notice thereof.
A warehouseman, having in his possession a large quantity
of oil upon which he had made advances, was instructed by the
general owner to deliver the same to a purchaser thereof. The
warehouseman was to receive the payment from the purchaser
out of which he was to first pay all of his advances. The pur-
chaser received and paid for part of the goods and when the
37
578 NEW YORK DECISIONS.
balance was sent to him stated that as the general owner was
indebted to him, he had paid himself out of the price of the
goods and held the balance subject to the order of the ware-
houseman. In an action to recover the full price of the goods,
it was held that the warehouseman was entitled thereto; that
the purchaser took with constructive if not actual notice of his
lien for advances and charges and that he was bound to pay
the same. Carnngton et al. v. Ward et at., 71 N. Y. 360.
I.
Commingling of goods — Valid sale of a part thereof without
segregation.
A party, owning a large quantity of grain w^hich was stored
in mass in his warehouse, sold a portion thereof and gave to the
purchaser his warehouse receipt acknowledging that he held,
subject to the order of the vendee, the number of bushels of
grain purchased. The vendor owned other grain in the ware-
house wdth which the grain sold w^as mingled and there w^as no
separation made at the time of the sale nor was it intended
by the parties that any such separation should be made. It
was held that this was a valid sale of the grain represented by
such receipt. Kimberly et al. v. Patchin, 19 N. Y. 330. See
also Gardiner v. Snydam, 7 N. Y. 357.
Same — Contract an executory one — Above case distinguished.
The defendants, ha\dng a large quantity of oil in their ware-
house, agreed with the plaintiff for the sale thereof and deliv-
ered to him a bill of sale in which it was stated that they had
received payment therefor by a note at three months. The
bill also stated that the oil was to be delivered when called
for, subject to his charge for storage, and the quality of the
oil to be like a sample which was then deUvered. The plaintiffs
paid the note when it became due and subsequently demanded
the oil w^hich when offered proved to be of an inferior quality
and twelve hundred gallons less than the amount called for.
It appeared that the loss was due to leakage and that the de-
terioration in quality was due to the same cause. There was no
separation of the oil from that of a large quantity stored nor
was there any request for such separation. It was contended
NEW YORK. 579
in behalf of the defendant that the doctrine of the case of A'm-
herhj et at. v. Patchin, 19 N. Y. 330, ajjphed; that the contract
was one of sale ; that the plaintiff was liable for the deterioration
and loss after the title had vested in him. It was held that the
present case was distinguished from Kimbcrly v. Patchin, in
that there was a delivery of a receipt in the latter case, in lieu
of a manual delivery of the grain, and that there was no such
attempt in the present case to constitute the defendant bailee
for the plaintiff. Foote et at. v. Marsh et al., 51 N. Y. 288.
Substitution of other property — A contract for such substitution
held not contrary to any statute of this state.
The owner of certain bales of burlap stored the same with
a warehouseman and took negotiable receipts therefor. At the
time he requested that the warehouseman refrain from placing
on the receipts any identification marks for the reason that he
would subsequently desire to substitute other bales of burlap
for those then deposited. In an action brought by the pledgee
of the receipts against the owner of the burlap, it was held that
the agreement providing for the substitution of other burlap
for that originally deposited was a valid one, that no statute
was violated thereby and that there was no apparent reason
for deeming it against public policy for a warehouseman to
make such an agreement for the substitution of goods. New
York Security & Trust Co. v. Lipman, 91 Hun, 554.
L.
Replevin — Improper delivery to defendant in replevin suit —
Warehouseman liable for.
A warehouse company, pursuant to an order obtained under
ch. 633 of the Laws of 1895, delivered to the sheriff prop-
erty which had been formerly stored with it by the defendant
in an action of replevin. It appeared that prior to the serAice
of the order on the warehouseman that it had issued a receipt
to a third party as the owner of the goods in accordance with
an order of the defendant. It was held that the delivery to
the sheriff of the goods under such circumstances attempted
to deprive such third party of his proj)erty without flue process
of law; that the warehouse company was liable to such third
o80 NEW YOKK DECISIONS.
party for this wrongful delivery for it was its duty to have noti-
fied him of this order so that he might protect the goods him-
self. The order in the case was for the delivery to the sheriff
of any property belonging to the defendant and if the ware-
houseman had at the time no property belonging to such de-
fendant the order became a nullity and might safely have been
disregarded. Whitman et al. v. Kleimann et al., 24 Misc. 554.
M.
Pledge — Unauthorized sale by pledgee, conversion.
Where a pledgee of property sells the same without the au-
thority of the pledgor, such sale constitutes a conversion and
the transaction operates as a payment of the debt to the extent
of the value of the property. If such value exceeds the debt
the pledgees are liable for the market value of the property
converted, less the amount of the debt. Kilpatrick v. Dean
et al, 3 N. Y. Supp. 60, aff'd 4 N. Y. Supp. 708.
Same — A factor may pledge.
By the Factor's Act of this state, a factor in possession of
the goods and having the necessary muniments of title may
pledge the same as validly as the owner thereof. Brooks v.
Hanover Nat. Bank, 26 Fed. Rep. 301.
N.
Injury to goods — Liability for when goods subsequently de-
stroyed.
A warehouseman is liable for the negligent injury of goods
stored with him for hire, though it appear that after the hap-
pening of the injury, the goods were destroyed without his
fault, and that they must have been so destroyed even if no
damage had previously occurred. Powers v. Mitchell, 3 Hill 545,
Loss by fire — Negligence must be proven — Burden of proof al-
ways on plaintiff.
Where an action is brought against a warehouseman for the
value of grain stored with him, and the defendant shows that
the destruction of the goods was caused by fire, the burden of
proof remains upon the plaintiff to show that the fire was caused
NEW YORK. 5H1
by the negligence of the defendant. While it is true that a de-
mand upon a warehouseman for goods stored with him met by
an unexplained refusal constitutes a -prima facie case of conver-
sion against him, this rule does not apply where the warehouse-
man alleges that the goods were destroyed by fire, for if the
fire was not due to his negligence or fault he is not liable for
the loss resulting therefrom and the plaintiff having alleged
negligence in his complaint is bound to prove the same. Liberty
Ins. Co. V. Central Vt. R. R. Co. et al., 19 App. Div. 509; Claflin
V. Meyer, 75 N. Y. 260; Lamb v. Camden & Amboy R. R. S: T.
Co., 46 N. Y. 271; Grieve v. A^. Y. C. & H. R. R. R. Co., 25
App. Div. 518.
Same — Negligence question for the jury.
A common carrier was sued for the destruction of property
which he held in the capacity of warehouseman. It appeared
that the building in which the property was stored was de-
stroyed by fire and, in spite of the fact that the plaintiff offered
testimony to prove negligence on the part of the defendant, the
trial court granted a nonsuit. The evidence as to the negli-
gence of the defendant was as follows: It appeared that the
defendant had an office in one corner of the building which
was used as a warehouse and that in such office there was a
small stove ; that the woodwork in close proximity to the stove
was charred and that on a previous occasion the office had
caught fire from a live coal which had dropped out of the stove.
Further, that an employee of the defendant had requested his
superiors to have a new stove placed in the office stating that
the stove there was dangerous and that this request had not
been complied with, and finally that the fire originated in the
office near the stove. It was held on apjx'al that these facts
should have gone to the jury to determine whether or not the
defendant was guilty of negligence. Grieve v. A". Y. C. d' H.
R. R. R. Co., 25 App. Div. 518.
Loss by theft — Watching entrance to warehouse — Prrrautinn.s' —
Questions for the jury.
In an action against a warehouseman, for the loss of a large
quantity of cigars, the defendant alleged that the cigars had
582 NEW YORK UECISIONS.
been stolen from him without his faiih and offered testimony
to show that he used due care in properly watching the en-
trances to his warehouse in the day-time, and in having them
securely fastened at night. The plaintiff offered testimony
to the effect that two witnesses had gone into the warehouse
during the day-time without being detected by the defendant
or liis employees. Upon motion of the defendant a verdict
was given for him. On appeal a new trial was ordered on the
ground that the plaintiff had a right to go to the jury for their
verdict on the question as to whether or not the guard main-
tained by the defendant was sufficient. Madan v. Covert et at.,
10 J. &S. 135.
Same — Negligence — Burden of proof.
A warehouseman is not responsible for goods intrusted to
him, stolen or embezzled by his storekeeper or servant, unless
negligence be shown ; and the onus of showing negligence lies
upon the owner. Schmidt v. Blood, 9 Wend. 268 ; Claflin v.
Mycr, 75 N. Y. 260, rev'g Savie v. Same, 11 J. & S. 1; Grossman
v. Fargo, 6 Hun, 310; Weed v. Barney, 45 N. Y. 344; Draper v.
Del. & Hud. Canal Co., 118 N. Y. 118.
Negligence — A question of fact — Presumption from nature of
transaction.
In an action against a warehouseman, for the recovery of
the value of goods deposited with him, the defendant attempted
to excuse his non-delivery by showing that the goods were de-
stroyed in the collapse of his warehouse while the same was
being repaired after a fire. It was held that, generally speak-
ing, the burden of proof was on the plaintiff to show negligence
on the part of the defendant but that there are some instances
where an accident is shown that negligence will be presumed
from the nature of the accident. That loss may result from
fires and thefts and the warehouseman be free from all negli-
gence but in absence of earthquake or other act of God, the
collapse of a warehouse presupposes negligence for which the
defendant will be liable. Kaiser v. Latimer, 40 App. Div.
149.
NEW YOKK. 583
Same — Burden of proof on piainiiff throughout.
In an action against a warehouseman for failure to deliver
on demand property intrusted to him, it was held to be well
settled that the burden of proof rests on the plaintiff through-
out the entire case. It is true that when the plaintiff has niadr
out a prima facie case by proving the contract of storage, the
receipt of the goods and failure to deliver that the warehouse-
man is liable unless he can show that the damage resulted from
acts on his part which were in no wise negligent and for which
he was not responsible. The plaintiff, thereupon, must resume
his proof and the burden of establishing, by a preponderance
of evidence, that the defendant has been negligent. Maulner
et at. V. Terminal Warehouse Co., 25 Misc. 729; Liberty Ins. Co.
V. Central Vt. R. R. Co. et al., 19 App. Div. 509 ;Claflin v. Meyer,
75 N. Y. 260; Schmidt & Webh v. Blood & Green, 9 Wend. 260.
Same — What the defendant must prove.
In the case of failure on the part of a warehouseman to de-
liver upon demand goods intrusted to him, it was lield that
the burden of proof was upon him to establish that he was with-
out fault after demand and refusal and that he was bound to
show that he exercised ordinary care in keeping and presei'V'ing
the property until called for. Bank of Oswego v. Doyle et al.,
91 N. Y. 32, citing Schwerin v. McKie, 5 Robt. 404, aff'd 51
N. Y. 180; Burnell v. A^. Y. C. R. R. Co., 45 N. Y. 184.
Same — Same — Defendant must give some account of property.
A defendant, liable as a warehouseman, nmst give some ac-
count of the property intrusted to his care, which he fails to
deliver on demand, before he can cast upon the plaintiff the
burden of proving him negligent. Bush v. Miller, 13 Barb. 481.
Same — Misdelivery — Conversion.
An action of trover was brought against a warehouseman
for his failure to deliver property intrusted to him, on demand
of the owner. The case was tried and submitted to the jury
upon the assumption that the property had been taken from
the possession of the defendant by some person other than the
owner. The jury found that the property had been delivered
584 NEW YOIiK DECISIONS.
to such person by the mistake or neghgence of the defendant;
that is, by his act, not by Ms mere omission. It was held that
tliis constituted a conversion of the property for which the
defendant was Hable. Williard v. Bridge, 4 Barb. 361 ; Pashinska
V. Self, 20 Misc. 665.
/Same — Same — Liability.
Warehousemen are not only hable for losses occasioned by
their negligence but also for those which arise from innocent
mistakes in the delivery of goods to persons not entitled to
receive them. Bank of Oswego v. Doyle et al., 91 N. Y. 32.
Cold storage — Fruit ruined by temperature becoming too low —
Not entitled to storage charges — Liability for damages.
The plaintiff, a warehouse company, brought an action for
storage charges against the defendant who had stored a quan-
tity of fruit in the former's cold storage rooms. The defendant
counterclaimed, alleging and proving that the fruit was dam-
aged and rendered useless while being kept at too low a tem-
perature and judgment was rendered for the defendant in amount
of his damages. On appeal this judgment was affirmed, the
court holding that it appeared clearly from the testimony that
the plaintiff was to store the fruit at a temperature ranging
from thirty-five to forty degrees and that by his failure to do
this he became liable to the defendant in damages which the
latter had sustained by reason of this breach of contract. Green-
wich Warehouse Co. v. Maxfield, 8 Misc. 308.
Saive — When owner has access to cold storage rooms — Knowl-
edge of their temperature.
The plaintiff stored a large cjuantity of eggs in the cold stor-
age warehouse of the defendant, and it appeared from the
testimony that there was no express contract of storage made
between the parties. It also appeared that the storage was to
be temporary and that the plaintiff at all times had access to
the warehouse where the eggs were deposited and from time to
time inspected the eggs and handled them, thus being possessed
of the information, or means of information, as to the daily
temperature of the storage rooms. Further that a large quan-
NEW YORK. 68")
tity of the eggs amounting in value to several hundred dollars
were ruined owing to a rise in temperature in the rooms in
which they were stored. It was held under such circumstances
that the defendant was not Hable and that the plaintiffs acted
on their own judgment as to the capabilities of the warehouse
in the matter of temperature. The court furtlier lield th it the
plaintiffs had failed to make out any contract by which the
defendant agreed to keep the temperature of the rooms at a
uniform or at a certain minimum degree. Sunderland et al. v.
Albany C. S. & W. Co., 55 App. Div. 212.
Same — Meaning of term defined.
The phrase "cold storage" used in a warehouse receipt is
indefinite and ambiguous in its meaning where the receipt
simply states that the goods are to be kept in "cold storage."
Where, therefore, the degree of temperature at which the goods
were to be kept was of highest importance in the matter of their
preservation, evidence would be received to show that this
term meant below freezing, or, that it may have meant a tem-
perature cold enough to preserve the goods. Behrman v. Linde,
47 Hun, 530.
Evidence — Receivable to show special value of lost property.
In an action against a warehouseman for damages for the
loss of certain sheet music stored with him, it was held that
evidence showing a special value of the sheet nuisic to the
plaintiff, in that it contained notes thereon made by her hus-
band, was properly received. Leoncini v. Post, 37 St. Rep. 255.
Same — Instructions to jury — Where alleged to be stolen the loss
by such theft must be established.
The defendants, who were liable as warehousemen, had a
large quantity of cigars stored with them, and upon failure to
deliver upon demand, the plaintiff instituted suit against them.
The defendant attempted to show that the cigars in ([uestion
had been stolen from him without his fault. The court in-
structed the jury that the defendant must prove that the loss
w^as immediately connected with the theft, and. further, that in
spite of such theft he had exercised ordinary care, or that the
686 NEW YORK DECISIONS.
loss occurred without negligence on the part of the defendant.
Schwerin et al. v. McKie et at., 51 N. Y. 180; Claflin et al. v.
Meyer, 75 N. Y. 260, rev'g Same v. Same, 11 J. & S. 1; Madan
V. Covert et al, 10 J. & S. 135; Williamson v. iV. Y., N. H. (^ H.
Ry. Co., 22 St. Rep. 431; Leoncini v. Post, 37 St. Rep. 255;
Lichensteiri v. Jarvis, 31 App. Div. 33; Abecasis v. Gray, 11
J. & S. 573; Oderkirk v. Fargo, 61 Hun, 418; Liberty Ins. Co. v.
Central Vt. R. R. Co., 19 App. Div. 509.
0.
Measure of damages.
Where a warehouseman converts to his own use the property
intrusted to his care by an unauthorized sale of the same, the
measure of damages is the value of the property at the time
of its conversion less any sum which may be properly due the
warehouseman for charges or advances. Kilpatrick v. Dean
et al, 3 N. Y. Supp. 60, aff'd 15 Daly, 182.
Same — Interest aUoicable from date of demand.
A warehouseman had failed to deliver to his depositor certain
cigars stored with him upon demand being made therefor. In
the trial of the action, the warehouseman was found to be
liable for their loss. In regard to the claim of the plaintiff
for interest on the value of the goods from the date of demand,
the court said: "The cigars in question were the property of
the plaintiffs, and when they demanded them they were en-
titled to one of three things: To the goods, the pay for them,
or a valid excuse for not delivering them. The defendants
having failed to do either; and having thus occasioned the plain-
tiffs the loss of interest upon the value of their property with-
out a valid excuse, they cannot justly complain of being charged
with interest." Schwerin et al v. McKie et al, 51 N. Y. 180.
Same — Purchase price does not always govern.
In ascertaining the amount of damages resulting from the
loss of goods stored with a bailee, the purchase price is not al-
ways a criterion of the value thereof. There may be circum-
stances which would render such a criterion manifestly unfair.
NKW VdRK. 587
hence other evidence will be received. Jonea v. Moryan, 24
Hun, 372; aff'd 90 N. Y. 4; Leoncini v. Pod, 37 iSt. Rep^ 255.
P.
Warranty— Re-presentations that warehouse is frost proof-
Opinion.
In an action against a warehouseman to recover the value of
certain bulbs alleged to have been ruined by frost while stored,
the evidence adduced by the plaintiff, although not conclusive,
was to the effect that the defendant had stated that his ware-
house was free and safe from frost, that the bulbs would keej;
therein and that the warehouse was as frost proof as brick, iron
and mortar could reasonably be expected to make it. It wa.s
held that the charge to the jury to the effect that if defendant
stated as a matter of fact that his warehouse was as frost proof
as brick, iron and mortar could reasonably be expected to make
it, and that as said warehouse was not so frost proof, that the
plaintiffs were entitled to recover, was error. That even though
evidence was conclusive that the defendant had made such a
statement that it would have been at most merely an expres-
sion of opinion as to what could be expected of brick, iron and
mortar, and that it was not a warranty that all goods stored
therein would not be injured by frost. Hallock et al. v. Mallett,
23 R. & S. 265.
Same — Advertisement containing false statements as to the con-
struction of the warehouse — Liability of warehouseman therefor.
The plaintiff brought an action against the defendant, a ware-
houseman, for the loss of her goods by fire while stored. Testi-
mony showed that she had been induced to store her goods
in this warehouse by representations contained in a circular
issued by the warehouseman which stated among other things
that "no expense has been spared in supplying light, ventila-
tion and protection against the spread of fire. th(^ exterior
being fireproof, and interior being divided off by heavy i^rick
walls, iron doors," etc. The evidence showed thtit the ware-
house had caught fire from an ailjacent building and that the
fire had been communicated to the warehouse and its contents
through wooden window frames. The plaintiff referred to the
588 NEW YORK DECISIONS.
Act of 1874, ch. 547, sec. 5, in that it required certain struc-
tures, among which are warehouses, to have doors, blinds and
shutters made of fireproof material on every \vindow and open-
ing above the first story. It was held that in view of the evi-
dence that the window frames of the warehouse were wooden;
that at the outside of the windows there were no shutters and
that the cornices were of wood covered with tin, the state-
ments contained in the circular were false. That the meaning
of the term fireproof was well known and that it conveyed
no other idea than that the material of which an article was
constructed was incombustible. That the statement in regard
to the construction of his warehouse was not an expression of
opinion for which he would not be liable but was a statement
of fact. That being false he was liable for the consequences
therefor, being chargeable with knowledge of the conditions
about his warehouse. Hickey v. Morrell, 102 N. Y. 454, rev'g
Saine v. Same, 12 Daly, 482. See Gruel v. Yetter, 26 Misc. 851.
Warehouse receipt — When goods not actually in store — Act
construed.
Where a receipt was issued and all of the goods represented
thereby were not actually in store and the receipt was trans-
ferred or pledged, it was held that the receipt did not thereby
become void and that the person taking the same, either as
purchaser or pledgee, took title to all goods actually in store at
the time of the transaction. McComhie et at. v. Spader, 1 Hun,
193.
Same — Same — Receipt issued to one not real owner — Purchaser
of receipt with notice.
A warehouseman issued a receipt individually to a repre-
sentative of a firm to which certain goods belonged, but such
goods had not at the time of issuance of the receipt been received
in store by the warehouseman. The representatives of the firm
sold the receipt and the purchaser subsequently sold the same
for value to the warehouseman. The property represented by
the receipt had, in the meantime, been purchased by one who
had no notice of these transactions. It was held that the pur-
NEW YUUK. 589
chaser of the goods took a good title thereto and that the re-
ceipt which was issued when the goods were not actually in
store and to one who was not in reality the owner of the goods
and had no authority to so act for the owner, was void as to
the purchaser of the goods in good faith. Delaware, L. tt M'.
R. R. Co. V. Corwith et al, 37 St. Rep. 728.
Same — Refusal to deliver — Identification.
Household furniture was stored with the defendant ware-
houseman but no receipt given at the time of the storage. Sub-
sequently the depositor executed a bill of sale to the plaintiff
for the furniture and sent an agent with the vendee to the ware-
house. At this time, the defendant warehouseman gave to
such agent a receipt in the name of the vendoi- in which it was
stated that the furniture woukl be delivered only upon the
written order of the depositor or proper identification. The
agent of the vendor, who was present at the warehouse with
the vendee, identified such vendee but the warehouseman re-
fused to deliver without written order of the vendor. Held
that the refusal was unjustifiable, that aside from the identifi-
cation that there was considerable doubt whether or not the
clauses referring to delivery of the goods upon the written order
and to identification were not merely notices and not part of
the contract. Therefore, the dismissal of the complaint by the
trial court was reversed on appeal. Willner v. Morrell, 8 J. <^' S.
222.
Same — Implication that corn sold is marketable cor 12 — Parol
evidence inadmissible.
The defendant contracted to sell a quantity of corn to another
and for the purposes of delivery deposited the same in a ware-
house and took therefor a receipt in his own name. Held that
in spite of the fact that the defendant by this transaction in-
tended to deliver the corn to the purcha.ser, that, in reality,
the title to the corn remained in him. Further, that a contract
to sell a quantity of corn means marketable corn and that
parol evidence of conversations between the parties is not ad-
missible to vary the terms of the warehouse receipt is.'^ued to
the defendant. Peck v. Armstrong, 38 Barb. 215.
590 NEW YORK DECISIONS.
Sa7ne — Valid tender may be made by.
A tender of the warehouse receipt, and an offer to pay charges
due thereon, is a vahd tender to dehver property under a con-
tract of sale. Hayden v. De77iets, 53 N. Y. 426, aff'd 2 J. &
S. 344.
Same — Warehouseman not bound by description contained in
the receipt.
A warehouseman received in storage a number of barrels said
to contain Portland cement. He issued receipts therefor in
which it was stated that he had stored in his warehouse a
number of barrels containing such cement. It afterwards ap-
peared that the barrels did not contain cement of the grade
mentioned but were filled with a sandy substance which was
practically worthless. The warehouse receipt had been pledged
to secure a loan and the plaintiff had obtained possession thereof
from the pledgee after having paid the note for which the receipt
was given, he being the guarantor thereon. It was contended
in behalf of the plaintiff that if the goods were not Portland
cement as represented in the receipts that such receipts were
untruthful and therefore issued in violation of the first section
of the Factors Act of 1858 as amended by that of 1866 (ch. 326,
Laws of 1858 ; ch. 440, Laws of 1866). It was held that this
act did not apply to such a case; further that the character of
the representation made by the warehouseman on the receipt
was nothing more than that he had actually received a certain
number of barrels of what purported to be Portland cement
packed as such cement was usually packed and bearing the
outward indicia of such article; that the statement as to the
contents of the barrels received was in no sense a warranty by
the defendant that such contents were actually as described,
and that the fault lies wholly with the plaintiff, who placed
a degree of faith in the correctness of description contained
ill the receipt which was totally unwarranted from the
nature of the transaction and for which the defendant ought
not to be held responsible. Dean et al. v. Driggs, 137 N. Y.
274, distinguishing First Nat. Bank of Chicago v. Dean et al,
137 N. Y. 110; Myer v. Peck, 28 N. Y. 590; Armour v. Ry. Co.,
65 N. Y. 101 ; Miller v. Hannibal & St. Jo. Ry., 24 Hun, 607.
NEW YORK. 59J
Same— Estoppel—Statement in receipt that liquor is stored in
"free warehouse" binding on warehouseman.
The plaintiff became the holder of a negotiable warehouse
receipt for a ciuantity of brandy. Printed on the to|, uf thr
receipt was a list of warehouses operated by the defendant
The list also stated which were "free warehouses" and which
were bonded, and it further appeared that the brandy repre-
sented by this receipt was stored in one of the warehouses which
was stated to be free. It appeared that in the parlance of this
business the term "free warehouse " means one not bonded or
where liquor is stored upon which the government tax has been
paid. It afterward appeared that in fact the brandy repre-
sented by the receipt was stored in a bonded warehouse and
that it could not be withdrawn except upon the payment of the
government tax thereon. Held that the plaintiff' was a bona
fide holder of the receipt within the meaning of the warehouse
laws of the state, and that he was entitled to the possession
of the brandy upon the payment of storage charges only and
that the defendant was bound to pay the government tax due
thereon, being estopped by the statement on the receipt that
the brandy was in a free warehouse. First Nat. Bank of Chicago
v. Dean et al, 137 N. Y. 110.
Same — Negotiability.
Warehouse receipts are made negotiable in this state by
statute. The indorsement and transfer thereof vests the title
to the merchandise represented in the transferee. Brooks v.
Hanover Nat. Bank, 26 Fed. Rep. 301.
Same — Act construed — Bona fide holder.
It was the intention of the legislature by the act of 1858
(sec. 6, ch. 326, Laws of 1858) that warehouse receipts, upon
which the word non-negotiablo was not j)lainly written or
stamped, were to have certain negotiable qualities imparted
to them. Held that it followed from such act that a bona fide
transfer, in the manner specified in this law with intent to trans-
fer the title to the property, vests such title in the transferee
together with all the remedies of the trnnsferrnr against the
592 NEW YOKK DECISIONS.
warehouseman for failure to make due delivery. Whitlock et
at. V. Hay, 58 N. Y. 484 ; Brooks v. Hanover Nat. Bank, 26. Fed.
Rep. 301.
Same — Negotiability — Not negotiable the same as bills and notes.
The negotiability of a warehouse receipt is not the same as
that of a promissory note or bill of exchange. By the in-
dorsement and delivery of such a receipt the indorsee for value
is entitled to hold the property represented thereby under the
conditions stated in the warehouse law of this state. Unless
there has been fraud or neglect in the issuance of the receipt
the holder is entitled to no more than the original property
deposited. Dean et al. v. Driggs, 137 N. Y. 274.
Same — As collateral — Liability of pledgee for storage charges —
Must take possession of the goods — What constitutes possession a
question of fact.
Where a warehouse receipt has been used as collateral security
to secure the payment of a note and the pledgee surrenders the
receipt to one who was guarantor on the note, and who paid
the same, it was held that by thus obtaining possession of the
receipt such guarantor did not thereby become liable for the
payment of storage charges, and that in order to hold him so
liable it would be necessary to show that he did some act from
which it could be shown that he took possession of the goods.
It appeared from the evidence that one in the employ of such
holder of the receipt had sent his clerk to the warehouse to
examine the property. In reply to an inquiry made by an em-
ployee of the warehouseman asking whether or not a bill should
be sent for the storage charges, such clerk stated that they had
better send such a bill. It was further held that this evidence
was not sufficient upon which to direct the verdict and that
the question was one of fact as to whether or not the holder of
the receipt had taken possession of the goods, and that the
person who becomes the holder of a warehouse receipt as col-
lateral security does not by reason of his having possession of
the receipt become bound for the storage (charges due upon
the property. He has a qualified title to the property and if
he so elects may reduce the property to possession by the
NEW VUKK. o'ii'6
payment of storage charges. Drigas v. Dean, Hu X. Y 121,
rev'g *Same v. Same, 37 App. Div. 030.
Sajne — Same — Effect of substihition of other rjoods.
The plaintiff trust company brought an action again.st the
defendant on certain warehouse receipts which had been j>letlged
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. Bu<Id,
three justices dissented; in tlie last cnse, iV. D. ex rel. Sfneser v. Tiran.%,
there were four dissenting justices. See also State v. Associated Pre^n.
159 Mo. 410, in which Mr. Justice Sherwood severely criticizes the doctrine
of People V. Munn; See also the following leadine oases : People v. Wahh.
117 K Y. 621. (The report of this case in 22 N. E. Rep. p. CJO. contnins Mr.
Justice Peckham's dissenting opinion.) Dow v. Beidelmnn. 12.') V. S. CSO ;
Los Angeles City Water Co. v. City of Los Angeles. 177 U. S. 5.')8 ; Covington
& L. T. Co. V. Snndford, 164 U. S. 578 : Lake Shore rf- M. 7?.v. Co. v. Swith,
173 U. S. 684 ; M. & St.. Paul 7??/. Co. v. State, \?A V. S. 418 : M\nneaj>oHa
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!;<iiiist forging, etc., inspector's receipt :
Any person who forges or counterfeits any receipt or note of
any inspector, or alters the description of the quantity or quality
of tobacco expressed in such receipt or note, or offers in trans-
fer or sale such forged, counterfeit or altered receipt or note,
knowing the same to be forged, counterfeited or altered, shall
be proceeded against in the same manner, and be subject to the
same punishment, as though he had forged a promissory note
for the payment of money. Id. sec. 4354.
Penalty against inspector tor issuing false receipt :
No inspector shall, on any pretense, give out any note or
receipt for tobacco, unless he has received and passed the full
quantity of tobacco, for which such note or receipt is given,
under the penalty of one hundred dollars for every such offense.
Id. sec. 4355.
Placing in packages other substance than tobacco :
Any person or persons, who shall intentionally place, or cause
to be placed, in any hogshead, barrel, box, package, or parcel
of leaf tobacco, any substance other than tobacco, with intent
that the said hogshead, barrel, box, package, or parcel shall be
exposed to sale, or sold, and with the intent that the purchaser
thereof shall purchase the same in ignorance of the presence
of such foreign substance, or if any person shall falsely pack,
or cause to be falsely packed, in a manner commonly known
as " nesting," any hogshead, box, package, or parcel of leaf
tobacco with the intent that the same shall be exposed for
sale or sold, and with intent that the purchaser thereof shall
purchase the same in ignorance of its real character, or if any
person shall deliver, or cause to be delivered, any hogshead,
box, package, or parcel of tobacco, containing such foreign
on TO. 643
substance, or falsely packed, and nested tobacco, to any ware-
houseman, commission merchant, or dealer in tobacco, or manu-
facturer thereof, to be sold knowing it to contain such foreign
substance, or to be so falsely packed, or nested, with intent
that the same shall be sold to purchasers ignorant of its real
character, or if any person shall change or alter in any way
any sample selected by the insjjector, as provided in section
lou7' thousand three hundred and forty-seven with intent thereby
to defraud anj'^ purchaser or other person, the person or jx-rsons
so offending shall be deemed guilty of a misdemeanor, and shall
forfeit and pay a fine of not less than one hundred, n(M- more
than five hundred dollars, or be imprisoned in the jail of the
county Miierein the offense was conmiitted, not less than thirty
days, nor more than six months, or fined and imjirisoned both,
at the discretion of the court, and shall also be liable to the
inspector and the person injured thereby in a civil action for
the amount of such injury. Id. sec. 4355a.
Proprietor of tobacco warehouse liable for failure of sam-
ples to represent package :
The proprietor of any such commission leaf tobacco warehouse
shall (each) be held liable to the purchaser of any hogshead,
barrel, package, box or parcel of tobacco, inspected and weighed
at his warehouse, for the failure of the samples drawn therefrom
to represent the tobacco packed therein, ami in like manner
shall be liable for imderweight existing in such tobacco in-
spected, and marked by such inspector as required by the pro-
visions of this chapter. Id. sec. 4355?).
Failure of proprietor of tobacco warehouse to give homi,
etc. :
Any proprietor of any such leaf tobacco warehouse, who
refuses or neglects to procure a license, and appointment of such
inspector and weigher of tobacco, at his warehouse, as provided
for in section four thousand three hundred and thirttj-fnur, or
neglects or refuses to perform any of the duties refjuired of him
by the provisions of this chapter, shall forfeit and pay a penalty
of not less than fifty nor more than one thousand dollars, at
the discretion of the court; and each day's continuance in busi-
644 OHIO LAWS.
ness, after written notice of such omission, shall be deemed an
adcUtional offense within the provisions of this section. Id. sec.
4355c.
Burglary — Attempts at burglary — Having possession of
burglar's tools :
Whoever, in the night season, maliciously and forcibly breaks
and enters, or attempts to break and enter, any dwelling-house,
kitchen, smoke-house, shop, office, store-house, ware-house,
malt-house, still-house, mill, pottery, factory, water-craft, school-
house, church or meeting-house, barn or stable, railroad car, car
factory, station-house, hall or any other building, with intent
to commit a felony, or with intent to steal property of any value,
shall be imprisoned in the penitentiary not more than ten years,
nor less than one year ; and if any person shall have, or keep in
his possession, any tools, implements, or other things used by
burglars for house-breaking, forcing doors, windows, locks, or
buildings, or other places where goods, wares, merchandise or
money is kept, with the intention of using such tools or imple-
ments burglariously, shall be confined in the penitentiary not
more than five years, nor less than one year. Id. sec. 6835.
Above section construed :
A house used exclusively for storing goods is a warehouse,
although the building had been constructed and formerly used
for another purpose, and although the goods were owned by
the tenant. Allen v. The State, 10 0. S. 287.
Entering house, etc., in day-time or night season, and at-
tempting to commit felony — How punished :
Whoever maliciously, either in the day-time or night season,
enters any dwelling-house, kitchen, shop, store-house, malt-
house, still-house, mill, office, treasury, bank, railroad car, pot-
tery, water-craft, schoool-house, church or meeting-house,
smoke-house, barn or stable, and attempt to commit a felony,
shall be imprisoned in the penitentiary not more than two years
nor less than one year. Bates' Annotated Ohio Stats. 1900,
sec. 6836.
Above section construed :
Under the above a defendant was indicted for maliciously
OHIO. 04 'i
entering a storehouse, and attt'iiij)tin<^ to steal personal jjrop-
erty of the value of more than thirty-five dollars. He was
found guilty and sentenced to the penitentiary. A motion to
reverse on the ground that the crime for which defendant was
indicted was not embraced within the above section, held to
have been proi:)erly overruled. Grijfin v. The State, 34 0. S. 299.
Breaking? into buildini? in day-time to steal :
Whoever maliciously, in the day-time, breaks and enters any
dwelling-house, kitchen, shop, store, ware-house, malt-house,
still-house, mill, factory, pottery, water-craft, school-hou.se,
church or meeting-house, smoke-house, barn, stable, railroad
car, car factory, depot, station-house, hen-house, wagon-hou.se,
sugar-house, boat-house, grain-house, or green-house, with in-
tent to steal, shall be fined not more than three hundred dol-
lars, or imprisoned not more than six months or both. Bates'
Annotated Ohio Stats. 1900, sec. 6837.
646 OHIO DECISIONS.
DECISIONS AFFECTING WAREHOUSEMAN.
Bailment and sale — Mixing of grain — Consent of parties or
custom of trade — Liability for loss.
Where a warehouseman receives wheat, and by the con-
sent of the owner, or in accordance with the custom of trade,
mixes the wheat in a common mass with the other wheat in his
warehouse, and with the understanding that he is to retain oi
ship the same for sale on his own account, at pleasure, and on
presentation of the warehouse receipt is either to pay the market
price thereof in money, or redeliver the wheat, or other wheat
in place of it; the transaction is not a bailment but a sale, and
the property passes to the depositary, and carries with it the
risk of loss by accident. Chase v. Washburn, 1 0. S. 244. See
O'Dell, Assignee, v. Leyda et al, 46 0. S. 244.
Same — Same — Receipt construed.
A warehouseman received a large quantity of wheat from the
plaintiff and issued a receipt in the following words: "New
London, Ohio, August 18, 1891. Received in store from A. Gibb,
403 45-60 bushels of wheat, which we store at ^ cent per bushel
per month, and we are to have at the market price when called
for, unless we prefer to furnish the grain. Subject to the order
of A. Gibb on the surrender of this receipt and the payment of
charges. To be kept insured by us. No. 66. Dean & Lilly."
Subsequently, the warehouseman went into the hands of a re-
ceiver and the warehouse and contents were destroyed by fire.
The plaintiff demanded the wheat of the receiver and upon his
refusal to deliver brought an action against him for the value
thereof. It appeared that in accordance with the consent and
understanding of the parties, the wheat was mingled with other
wheat of like kind and quality and that the warehouseman had
no doubt shipped the identical wheat received from the plain-
tifT prior to the destruction of his warehouse. Held that this
transaction constituted a sale and not a bailment ; it was a sale
in which the warehouseman was to pay for the wheat either in
money or in other wheat. The doctrine laid down in Chase v.
OHIO. 647
Washburn, 1 0. S. 244, followed. Gibb v. Townsend Recr 9
C. C. 0. 409.
Same — Same — Bailment.
Plaintiff stored wheat with a warehouseman and took there-
for a receipt in the following words:
"Big Prairie, Sept. 9, '82.
"Rec'd of George Ledya 173 bii. 20-60 one hundred & seventy-
three bus. twenty lbs. of No. 2 Wheat. Owner of stored wheat
at their own risk.
" W. H. Easterd.w & Bro."
There was no agreement made that the wheat should be mixed
with other wheat, or that the warehouseman might ship or sell
or otherwise dispose of it; nor was there any specified time
agreed upon which the wheat should remain in the warehouse,
but it was to be kept until the plaintiff was ready to sell. There
was no charge made for storage. The wheat was mingled with
the wheat of others deposited and the warehouseman sold from
the common mass. He always reserved, however, a greater
quantity than that depositefl with him but not the identical
wheat. Subsequently the warehouseman made an assignment
to the defendant, and the sheriff issued an execution against the
defendant attaching the wheat as the property of the ware-
houseman in an action against him. Whereupon, the plaintiff
depositor brought an action of re{)le\'in against the assignee
and sheriff for the amount of wheat. It was held that the
receipt which the warehouseman had given to the defendant,
interpreted according to its terms in commercial usage, con-
stituted a bailment and not a sale and that the plaintiff'.s title
was not extinguished or transferred to the warehouseman when
the wheat was mixed, with the consent of the parties, witli
wheat of like quality and grade stored by others on like terms
or, with the wheat belonging to the warehouseman. Upon the
same principle, where a warehouseman, who has received on
deposit in his warehouse, the grain of others, to be stored at
their risk, mixes it with his own, and without authority from
them, sells from the common mass, but never more than his
648 OHIO DECISIONS.
own quantity, always reserving enough to return to the de-
positors their proper quantity of the same grade and quahty,
but not the grain so deposited, the depositors may claim the
grain so substituted for theirs; and, if it be for their benefit to
accept the substitution, such acceptance will be presumed, and
their title upheld against the warehouseman and his assignee
for the benefit of creditors. O'Dell, Assignee, v. Ledya et al.
46 0. S. 244; Inglebright v. Hammond, 19 0. S. 337.
Same — Sajue — Questions for the jury.
The plaintiff brought an action against the defendant ware-
houseman for the value of a quantity of wheat which he alleged
he, as executor, had sold to the defendant. He received there-
for weigher's receipt in the following words :
"Received of J. C. Plank, Admr., load of wheat, eleven bush-
els, five pounds. Not transferable. Present this at office.
"Weigher."
which was afterward exchanged for storage receipt a copy of
which is as follows :
"James & Neer,
"Dealers in Grain & Seed.
" No. 240. DeGraff, 0., January 5, 1886.
"Received of Joseph C. Plank, four hundred and fifty-two
bushels and 25 pounds of wheat (452 35-100 bushels). Subject
to the following rules:
"Storage free until June 1, 1886. One cent per bushel per
month or any part thereafter. All grains stored at owner's
risk. We will not be responsible for loss or damage in any way.
Grain taken out of house by owner, five cents per bushel and
usual storage.
"James & Neer."
Without fault of the defendant the warehouse and contents were
destroyed by fire. The contention of the defendants was that
the transaction was a bailment, and that, therefore, they were
not liable for the value of the wheat. At the trial of the case
the court instructed the jury, after the evidence had been given,
OHIO. (J4'.l
to find for the plaintiff, for under the undisputod facts the
transaction was a sale. Judgment was rendered upon the ver-
dict which was affirmed by the circuit court and tlie case brought
to the supreme court by writ of error. It a|)i)eared from the
writ that evidence had been offered which tended to show the
existence of a custom of dealing in vogue for many years in tiie
vicinity, to the effect that grain dejiosited in a warehouse for
which weigher's receipts were given was regarded as grain in
store until such receipts were presented to the oflfice and the
holder then had the option to exchange weigher's receipt for a
storage receipt and continue the storage upon the terms speci-
fied in that form of receipt, or, to sell at the price ruling at the
time that such weigher's receipts were presentetl; and that the
receipt of the wheat and the giving of weigher's receipt did not
constitute a sale of the wheat, but that it remained the property
of the depositor until the weigher's receipts were presented at
the office and an election to sell made. The trial court assumed
that upon the undisputed facts, a sale was conclusively shown,
and that a question of law only remained. It was held that the
court erred in this and that the question should have been sub-
mitted to the jury to determine if the understanding between
the parties was that the contract was to be a bailment or a sale.
That the jury should have passed upon the question as to
whether or not the custom, as claimed by the defendant, actu-
ally existed and was known to the plaintiff. To determine also
from the other facts appearing, that the understanding was,
that although the wheat might l)e mingled with other wheat
belonging in part to the plaintiff and part to defendant, yet
defendants were to sell from the common mass from time to
time, their portion only, always leaving sufficient on hand to
satisfy all depositors. And if the jury should find that the
defendants observed this understanding and, especially, if, in
addition to the foregoing, they further found that a distinct un-
derstanding of the parties was, by virtue of such cu.'^tom. that the
wheat was to be regarded as in store until the plaintiff should
elect to make the sale of it, then, if it appeared that no demand
for the pay had been made by the presentation of receipts at the
office before the fire, the jury would have been justified in find-
650 OHIO DECISIONS.
ing for the defendants. Therefore, the case was reversed and
a new trial in accordance with instructions ordered. James &
Neer v. Plank, Exr., 48 0. S. 255; Inglebright v. Hammond, 19
0. S. 337.
6.
Ordinary care — Questions for the court and jury — Not liable for
loss resulting from act of God.
Warehousemen are obhged to exercise reasonable and ordi-
nary care in the custody and safe-keeping of property intrusted
with them. Such care must have reference to the surrounding
conditions and circumstances. The duty of a warehouseman
is a matter of law for the court, what was done by him is a ques-
tion of fact for the jury. Warehousemen are not liable for the loss
or injury to goods resulting from the act of God or the public
enemy which could not have been prevented by the exercise of
ordinary care. Backus & Soiis v. Start et at., 13 Fed. Rep. 69.
I.
Commingling and changing identity of wheat — Warehouseman
liable.
In case of a regular deposit of wheat with a warehouseman,
which required of the depositary the use of ordinary diligence
in taking care of the wheat, and a redelivery of the same, on
demand, to the depositor, on being paid a reasonable compensa-
tion for his services, the warehouseman would be liable to the
depositor for the value of the wheat, in case he mixes it with
other wheat in his warehouse, and ships the same for sale on
his own account, notwithstanding he may supply the place of
the depositor's wheat by other wheat procured and deposited
in his warehouse; and the destruction by accident of the ware-
house and the wheat supplied to take the place of the depos-
itor's wheat, will not protect the warehouseman from liability
to the owner. Chase et al. v. Washburn, 1 0. S. 244.*
N.
Counterclaim — Evaporation — Conversion — Trover.
The plaintiff deposited oil with the defendant upon a definite
*NOTE. "The case of Chase v. Washburn, 1 Ohio State, 244, has long been
ref^arded as a case settling the law arising upon questions in cases of this
kind." Gibb v. Townsend, Rec'r, 9 C. C. O. 409.
OHIO. f.r.i
agreement as to the amount to be allowed for cvaporalioii. und
also as to rates to be charged by the defemlant for storage. An
action in trover was brought against the defendant warehouses
man for his failure to deliver the oil on demand and the plain-
tiff sought to enforce the agreement of storage. The defendant
set up as a defense the terms and conditions upon which it was
liable to redeliver the oil ; setting forth the terms of the agreement ,
so far as they were binding on the plaintifT. Denun-rer wa.s
filed to the answer which was sustained and judgment rendered
for the plaintiff. It appeared that the i)etition alleged that the
defendant wrongfully and unlawfully converted the oil to its
own use. The court held that such an attempt to turn the case
from one of contract to one of tort, and thereby to exclude set-
offs, could not be allowed. That the instruction of the court
that they were to consider the receipts and to allow such de-
ductions in damages as they should find the reasonable charge
for storage amounted to and also reasonable deduction for
evaporation was clearly in error. If the receipts held in evi-
dence and the terms were binding on the parties, they furnished
the rule of liability between them. Instead of reasonable al-
lowances and reasonable charges, the defendant was entitled
to the actual allowances and the actunl charges agreed upon in
the receipt for storage. Therefore, judgment was reversed.
Cow Run Co. V. Lehmer, 41 0. S. 384.
Q.
Warehouse receipt — By debtor against his oum goods — Void as
to other creditors.
A firm, engaged in the business of slaughtering hogs and
packing ham, borrowed money and issued to tiie lender, as
security for the notes given in payment thereof, two receipts
which were alleged to be warehouse receijits. for ;i large quan-
tity of ham then in the firm's pork-house. The goods were
marked and set apart in the pork-house with the name of the
lender thereon. Subsequently the firm, without the knowl-
edge of the lender, the plaintiff herein, sold the pork repre-
sented by the receipts and applied the proceeds to the payment
of an indebtedness due the defendant bank. This action was
brought by the lender against the bank on the grounti tiiat the
652 OHIO DECISIONS.
warehouse receipts had passed the title to the pork from the
firm of packers to him. The court instructed the jury that if
the papers called warehouse receipts were in reality given by
the firm to the lender ' ' simply by way of security for a loan of
money made by him to them, and not otherwise, that the bank
was not liable for it was a creditor of the firm at the time of the
issuance of these receipts." It was held on appeal that the
verdict given for the defendant and the above charge was right.
That the hams in question were not pledged to the lender for
the reason that he did not have possession thereof and that the
receipts were not warehouse receipts such as would pass pos-
session by delivery; that there was nothing in the statute in
force at the time of this transaction relating to the warehouse
receipts which affected the question to be decided. It was
further Md that as to third persons, other than creditors of
the firm and subsequent purchasers and mortgagees in good
faith, that the plaintifT had acquired an interest in the hams,
but that the instruments not being warehouse receipts were not
binding on third persons who were creditors of the firm at the
time of the transaction. By statutes in force at the time in
order to secure a valid mortgage of goods and chattels there
must be an immediate delivery followed by an actual and con-
tinued possession of the things mortgaged, and further, the
mortgage must be recorded with the township clerk, otherwise
the same would not be vaUd against creditors of the mortgagor
and subsequent purchasers and mortgagees in good faith. The
firm here had never been engaged in the business of warehouse-
men and there was no record made of the instruments in ques-
tion. Therefore the judgment given for the defendant was
affirmed. Thome v. First National Bank, 37 O. S. 254.
Same — Estoppel in pais — Boija fide holder.
The defendants, to whom certain warehouse receipts had been
issued by one conducting a distillery with which there was con-
nected a government bonded warehouse, negotiated a sale of
the whiskey represented by the receipts. The purchaser, B. &
Co., declined to accept the original receipts with the note for
the purchase money attached thereto, but insisted upon having
such a receipt as would indicate possession and apparent title
OHIO. 053
to the goods without conditions save as to the payment of tlic.
government tax and storage. Such a receipt was issued and
delivered to B. & Co. by the defendants. B. & Co. acceptf>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 nc<rk'ct or refuse to obey the
process of subpcrna issued by said conunissioners, and aj^pear
and testify as therein recjuired, shall be guilty of a iiiisdcnieanor,
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. 48.
Conimissioiiers to direct county attorney :
It shall be the duty of the county attorney in every county,
on the request of said commissioners, to institute and prosecute
any and all suits or proceedings which they or either of them
shall be directed by said commissioners to institute and prose-
cute for a violation of this act, or any law of this territory con-
cerning public w\arehouses as constituted by tliis act. oi- the
officers, employees, owners, operators or agents of such ware-
houses. Id. sec. 49.
Prosecutions how brought :
All prosecutions under this act shall be in the name of the
territory of Oklahoma, and all moneys arising therefrom shall
be paid into the territorial treasury by the sheriff or other officers
collecting the same. Id. sec. 50.
Damages not affected :
This act shall not be construed so as to waive or affect the
right of any person injured by the violation of any l.iw in re-
gard to warehouses from prosecuting for his private damages
in any manner allowed by law. Id. sec. 51.
Grain in transit :
Any person or persons, partnership or corporation may have
grain, in carload lots in transit or otherwise, inspected by said
inspectors under this act, the same as though in warehouses and
subject to the same rules and regulations as herein prescribed.
Id. sec. 52.
43
674 OKLAHOMA LAW.S.
This act shall take effect and be in force from and after its
passage and approval.
Approved March 10, 1899. Id. sec. 53.
Every person who while lawfully in possession of an article
of personal property, renders any service to the owner thereon
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 to him from the owner for such services. Sec. 3210, St. 1893.
Note. See also article 3, cliap. 11, Statutes of Oklahoma, 1893.
OKLAHOMA. 875
DECISIONS AFFECTING WAREHOUSEMEN.
B.
Ordinary care — Warehousemen not insurers.
Warehousemen are not insurers of property intrusted with
them but are Hable only for negligence or the want of orflinary
care. There must be some dereliction nf duty on the part of a
warehouseman in relation to the goods in order to make him
liable to the owner for the loss. Walker v. Eikleberry, 7 Okla.
599.
676 OREGON LAWS.
CHAPTER XXXVII.
OREGON.
LAWS PERTAINING TO WAREHOUSEMEN.
Warehousemen, etc., must give receipts :
It shall be the duty of every person keeping, controlling,
managing, or operating, as owner or agent or superintendent
of any company or corporation, any warehouse, commission
house, forwarding house, mill, wharf, or other place where grain,
flour, pork, beef, wool, or other produce or commodity is stored,
to deliver to the owner of such grain, flour, pork, beef, wool,
produce, or commodity, a warehouse receipt therefor, which
receipt shall bear the date of its issuance, and shall state from
whom received, the number of sacks, if sacked, the number of
bushels or pounds, the condition or quality of the same, and
the terms and conditions upon which it is stored. Hill's Anno-
tated Laws of Oregon, 1892, sec. 4201.
Above section construed — Negotiability :
The aim of the above statute was to facilitate the transfer
of stored goods and its purpose was to protect the holders of
warehouse receipts from imposition and fraud. Under this
section the indorsement may be in blank, or, to the order of
another; warehouse receipts may thus pass from hand to hand.
The implications arising from the words "to whose order" do
not limit the statute to such receipts as are only negotiable in
form, when its clear purpose was to make any receipt issued
by a warehouseman or wharfinger for the storage of grain or
other commodity negotiable without regard to form. State v.
Koshland, 25 Ore. 178.
Fraudulent receipt prohibited :
No person shall issue any receipt or other voucher as provided
for in section 4201 for any grain, flour, wool, pork, beef, or other
I )i;i;(;( >v.
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 resi<l(Mice.
so far as known, of the person whose property ha.s been sold,
and the price at which it was 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
708 RHODE ISLAND LAWS.
affidavit, when filed as above provided, shall be admitted as
e\adence of the giving of the notice. Id. ch. 206, sec. 27.
Inspection, sale and keeping of inflammable and explosive
fluids.
Penalty for keeping or selling inflammable or explosive
fluids not inspected :
Every person who shall keep or offer for sale in any place or
building within the state, petroleum oil or any product thereof,
or shall keep or offer for sale any mixture of naphtha or inflam-
mable fluids for illuminating purposes that will flash or inflame
at a less temperature or fire test than one hundred and ten
degrees Fahrenheit, or that has not been inspected, tested and
the cask, barrel or package containing the same marked with
the degrees Fahrenheit at which the contents thereof will flash
or inflame in manner provided by section two of this chapter,
and every person who shall empty any petroleum oil or any
product thereof or any mixture of naphtha or inflammable
fluids which shall be at any time brought into the state out of
the original packages in which it is brought into the state, until
the same has been inspected by an inspector of kerosene, shall
be fined not less than fifty dollars or be imprisoned not less
than six months, and the name of every such person shall be
published in some newspaper published in or nearest to the
town where such offense was committed. Id. ch. 144, sec. 1.
Duties of the inspector of kerosene — Fees :
The inspector of kerosene shall inspect and test all petroleum
oil, kerosene and coal oil and their compounds and every product
or mixture thereof which may be manufactured, ofTered for sale
or stored in the state, and every inspector shall legibly mark
upon every cask, barrel or package so tested by him the degrees
Fahrenheit at which the contents thereof are inflammable or
■will flash or explode, by cutting, branding or painting the same
thereon, together with his official brand or stamp and the
initials of his name. The owner of kerosene or other fluids
made liable to inspection by the provisions of this chapter,
shall pay to the inspector who shall inspect the same the sum
itiioni: ISLAND. 70*)
of one dollar for every lunir employed in such inspection, hi.
ch. 144, see. 2.
Sale for expoitatioii :
Nothing contained in the preceding two sections shall he so
construed as to apply to the sale of petroleum or any of its
products for exportation from the state, hi ch. Ill, sec. 3.
How to be kept for sale or stored— Amount limited :
Petroleum oil or any of its products or the comixnmds thereof
that are not inflammable or which tlo not Hash at a less tem-
perature or fire test than one hundred and ten degrees I*'ahren-
heit, may be kept on sale or stored in the state in the following
manner only and subject to the terms and condition.s herein-
after named, namely: In quantities not exceeding one hundred
and fifty gallons, in any store or warehouse; in (juantities ex-
ceeding one hundred and fifty gallons and xuA exceeding ten
barrels, in cellars at least four feet below the surface of the
street, properly ventilated, and under buildings no part of which
is occupied as a dwelling-house; in ( juantities exceeding ten
barrels and not exceeding one hundred barrels, in warehouses
constructed of brick, stone or iron especially adapted to that
purpose; in quantities exceeding one hundred barrels, in ware-
houses constructed of brick, stone or iron situated more than
fifty feet distant from the nearest building or wharf, or. if
within fifty feet from tlie nearest building or wharf, there shall
be a wall of brick or stone between said warehouse and such
building or wharf at least ten feet high and sixteen inches thick ;
and all such warehouses shall be so constructed and arninged
that no overflow or escape of the articles therein storetl beyond
the limits thereof can possibly take place. Id. ch. 144, sec. 4.
Insj»ectorsto examiue the premises where |M'trolcnm oil iN
stored :
The inspectors of kerosene shall examine from time to time
all premises within their resjiective towns wherein |)etroleum
oil or any product thereof or any mixture of naphtha or in-
flammable fluid for illuminating ))ur|)oses is stored or kept,
and the owners and occupants of all such premi.s(>s 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 <jf a
warehouseman within this state, may become a j)ul)hc' ware-
houseman and authorized to keep and maintain j)ubHc ware-
houses for the storage of cotton, goods, wares, and other mer-
chandise as hereinafter prescribed, and upon giving the bond
hereinafter required. Code of South Carolina, 1902, sec. 1712.
To give boud :
Every person or corporation so authorized under the pre-
ceding section to become a public warehouseman shall give
bond, to an amount based on the estimated value said ware-
houseman will provide storage for, to the clerk of the court of
common pleas of the county wherein is situated the warehouse
of said public warehouseman, with sufficient sureties, to be aj)-
proved by the said clerk of court, for the faithful performance
of the duties of a public warehouseman. Id. sec. 1713.
Liability on bond :
Whenever such warehouseman fails to perform his duty, or
violates any of the provisions of this chapter, any jierson in-
jured by such failure or violation may bring an action in his
name, and to his own use, in ;iny cdurt of competent juri.>^(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 .<?ervice
shall be made by some officer authorized to serve civil proce.ss.
or by some other person, with an affida\it of the truth of the
return. If the party storing such goods cannot with rea.«?on-
able diligence be found within this state, then such notice ."«hall
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 toun
where such warehouse is located; or if there be 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
720 SOUTH OAKULINA LAWS.
party storing such goods shall have parted with the same, and
the purchaser shall have notified the warehousemen, with his
address, such notice shall be given to such person in lieu of the
person storing the goods. Id. sec. 1726.
Surplus after sale :
Such warehousemen shall make an entry, in a book kept for
that 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. If such
balance or surplus is not called for or claimed by such party or
owner of said property within six months after such sale, such
balance or surplus shall be paid by said warehouseman to the
clerk of the court of the county in which said warehouse is lo-
cated, who shall pay the same to the parties entitled thereto,
if called for or claimed by the original owner within five 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. Id.
sec. 1727.
Perishable property, how disposed of :
Whenever a public warehouseman has in his possession any
property which is of a perishable nature, or 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
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
remove 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 public 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 proceeds after deducting the amount of said storage
and 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
SOUTH CAKOLIKA. 721
made without any notice, and the i)n)ceeds of sucIj sale, after
deducting the amount of storage, expenses of sale, :iii<l' other
proper charges, shall be paid to tli(> 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 th<i consent of the
holder indorsed thereon, or, in case of any partial delivery, the
indorsement of such delivery thereon. Nothing herein con-
tained shall be so construed as to prohibit the bona fide dehvery
of the property to the person entitled thei-eto, if the receipt be
lost or destroyed : Provided, that before such delivery is made,
notice of such loss or destruction be inserted for two successive
weeks in a newspaper published in the city or county where
the place of storage is, or if there be no newspaper published in
the county, the notice shall be posted for two successive weeks
at the front door of the courthouse of such county, and proof
of such publication or posting shall be filed with tlie person by
whom the receipt was issued. Nor shall anything herein con-
tained be so construed as to impose any liability on any de-
positary for any property mentioned in any receipt as aforesaid
taken from his possession by any legal process, but it shall be
his duty, when such property is so taken from liis possession,
or any process affecting or relating thereto is served on liim,
forthwith to give notice of the fact, if practicable, to the holder
of such receipt. Id. sec. 1T93.
Storage of property— A bailment— What receipt to state :
Whenever any grain shall be dehvered to any person for stor-
age as provided in section seventeen hundred and ninety -one,
such delivery shall in ail cases be deemed a bailment and not a
sale of the property, notwithstanding what is so delivered shall
be mingled by the depositary with the grain of other persons.
The grain so delivered, or any of like kind and grade substituted
for it by the depositary, shall not be subject to any of the lia-
bilities of said depositaiy whatever. \n any receipt given for the
storage of grain as aforesaid, it shall be sufficient to state the
kind, grade and quantity of the grain so stored. Id. sec. 1794.
Wrongful removal of property by warehouseman— Larceny
— Penalty for other violations :
If any warehouseman or other depositary, by whom a receipt
has been given as afoi-esaid, wrongfully and fraudulently re-
780 VIRGINIA LAWS.
move, or permit to be removed from its place of storage, the
pro])ei-ty mentioned in such receipt, or any part thereof, he
shall be deemed guilty of larceny thereof. If such warehouse
man, or other depositary, wrongfully and fraudulently violate
any other provision of this chapter, he shall be fined not exceed-
ing one thousand dollars, or, in the discretion of the jury, be con-
fined in jail not exceeding three years. Id. sec. 1795.
Forgery of receipts— Penalty :
If any person wrongfully and fraudulently make or issue
any paper purporting to be a storage receipt as aforesaid, or
wrongfully and fraudulently alter any storage receipt, he shall
be confined in the penitentiary not less than two nor more than
ten years. Id. sec. 1796.
Establishmeut of Avarehouses— Their discontinuance :
Tobacco warehouses, which were public warehouses of the
day before this Code takes effect (May 1, 1888) shall continue
to be such ; and the several county and corporative courts may
hereafter authorize the erection of tobacco warehouses, or may
establish the same, as public warehouses, within their respective
counties and corporations ; which said warehouses shall be con-
structed, or shall have been constructed, so as to keep safely,
and guard against fire and weather as far as practicable, all to-
bacco stored therein, and shall be kept in good repair and at all
times (Sunday excepted) be open for receiving, storing, selling,
and devliering tobacco : Provided., That the owner of any such
warehouse shall have the right to discontinue the same as a public
warehouse, after having published a notice of his intention to do
so once a week for four successive weeks in some newspaper pub-
lished in the county or corporation wherein such warehouse is
situated, or if no newspaper be published therein, after having
posted such notice at the front door of the courthouse of such
county or corporation for four successive weeks. Id. sec. 1797.
Samplers — Their appointment and term :
For each such public warehouse there shall be two samplers
of tobacco, who shall be appointed by the governor, b}' and
with the advice and consent of the senate, for the term of four
years, commencing on the first day of October succeeding
VIRGINIA. 781
their appointment. They shall be appointed in January or
February of the year eighteen hundred and ninety, and every
fourth year thereafter, and the samplers in office when tliis
code takes effect shall continue therein until the term for which
they \vere appointed shall have expired by limitation, id.
sec. 1798.
How Tacancy filled :
If a vacancy occui- in the office of sampler during his term,
the governor shall appoint another in his place to serve lor such
part of the term as shall not have expired. Id. sec. 1799.
Qualification and bond :
Every sampler shall, within sixty days after his appointment,
qualify and give bond before the court of the county or cor-
poration wherein the warehouse for which he is appointed is
situated, in the penalty of ten thousand dollars. If he fails to
qualify and give bond within the time prescribed his office shall
be deemed vacant. Within thirty davs after the execution of
such bond, the clerk of the court in which it is given shall
transmit a copy thereof to the auditor of public accounts, and
if he fail to do so, he shall for such failure forfeit one hundred
dollars. Id. sec. 1800.
Deputy sampler :
Any sampler may nominate to the governor a deputy, who
shall be appointed by the governor, if approved by him. Such
deputy, after taking the oath required of his principal, may
perform any of the duties of his principal, whenever the ])rin-
cipal is unable to perform the same ; and the principal and the
sureties on his official bond shall be responsible for all the acts
of his deputy as such. Id. sec. 1801.
New samplers to give receipts to predecessors :
New samplers, appointed at any such warehouse, shall give
to those whom they succeed, a receipt, containing the numbers,
marks, and gross tare and net weight, of every hogshead or cask
of tobacco which shall be then at the warehouse. They shall
be thereupon chargeable with the delivery of such hogsheads
and casks of tobacco, but in no way accountable for any loss of
weight or defect of quality of said tobacco, which may have
occurred without their fault. Id. sec. 1802.
782
VIKGIMA LAWS.
Saiiipliug, weighing and braiidiug tobacco :
The samplers shall uncase and break every hogshead, cask,
tierce or box of tobacco brought to their respective warehouses
to be sampled ; weigh and sample it, and mark or brand the
same, as "Virginia" or "Western," according to the facts ;
and also, with the name of the warehouse, the tare of the hogs-
head, cask, tierce, or box ; the quantity of net tobacco therem,
and the condition thereof. The net weight shall be ascertained
by weighing the hogshead, cask, tierce or box before it is uncased,
and deducting therefrom the weight of the empty hogshead,
cask, tierce or box. The sample shall not exceed eight pounds
weight, and shall belong to the buyer of the tobacco from whom
it was taken. Id. sec. 1803.
Sampler's receipts :
The samplers shall thereupon, if required by the owner or
his agent, give a receipt or note for every such hogshead, cask,
tierce, or box in the following form, if the tobacco be good,
sound, well-conditioned and merchantable :
a
The-
Warehouse.
-day of, 18—.
VIRGINIA
TOBACCO.
Marks.
No.
Gross.
Tare.
Net.
Passed :
etc., of tobacco, marks, numbers,
weights, and species, as per margin,
to be delivered to the said or
order, on demand.
Witness our bands.
"Samplers."
Id. sec. 1804.
When tobacco unsound, etc., or western, what receipt to
state :
If the tobacco, received to be sampled, be found to be not
good, sound, well conditioned, merchantable and clear of trash,
the samples, in addition to the marks required as to passed to-
bacco, if required by the owner or his agent, shall also give a
receipt in the form prescribed for passed tobacco, except that
VIRGINIA. 783
the word "refused" shall be [)laiiily written on the lace there-
of, instead of the word " passed."
If the tobacco be of good quality, and only too high in order
for shipment, then the sampler shall not mark the receipt " re-
fused," but shall mark it with the woi-ds "too high." If the
tobacco sampled shall be western, the receipt shall so state.
Id. sec. 1805.
Penalty for false branding, etc.:
If any person fraudulently make any false mark or brand
upon any such hogshead, cask, tierce, or box, or with a fraudu-
lent intent, alter, obliterate, or remove any mark or brand
thereon, or shift the contents thereof, or cause the same to be
done, he shall, for every such offense, forfeit fifty dollars.
And if any person use, or permit to be used on any hogshead,
cask, tierce, or box of tobacco, any name, brand, or mark in-
dicating the name of a planter who neither raised nor sold said
tobacco, he shall forfeit twenty tloUars for each hogshead, cask,
tierce, or box so falsely marked or branded ; and if any per-
son other than the owner, or the authorized agent of sucli
owner, alter, obliterate, or remove an}'^ mark or brand upon
any prized package of tobacco, or otherwise divert said prized
package from the warehouse to which it was directed to be
weighed and sampled, he shall forfeit fifty dollars for each
offense. Id. sec. 1806.
" Western tobacco " to be so branded :
Before any unmanufactured western tobacco, whether
stemmed or unstemmed, brought to Virginia in hogsheads or
prized packages, shall be offered for sale, or shipped, or ex-
ported therefrom, except such tobacco in transitu the owner
thereof, his agent, or a sampler of tobacco, shall mark or brand
each hogshead or package with the words, " Western tobacco."
If any person shall sell or offer for sale, or ship or export any
such tobacco representing the same by marks, brands, or other-
wise as Viro^inia tobacco, he shall be fined not less than fiftv
nor more than one hundred dollars, for each hogshead oi* pack-
age so sold or offered for sale, one half to go to the use of the
state and the other half to the informer. Id. sec. 1807.
Loose tobacco :
The samplers shall receive and weigh all loose tobacco
784 VIRGINIA LAWS.
brought to their warehouses, and give certificates for the
same, and issue manifests thereof when delivered out. Id.
sec. 1808.
Samplers to give receipts :
They shall, inimechately on the delivery of any tobacco to
their warehouses, if required by the person bringing the same,
give a receipt therefor, describing the same as unsampled to-
bacco. Any sampler refusing to do so shall forfeit to the
owner of such tobacco fifty dollars. Id. sec. 1809.
Penalty for delivering tobacco withont order of owner :
Any sampler who shall deliver from his warehouse any to-
bacco without an order from the owner or his authorized agent,
shall, for every hogshead, cask, or parcel of tobacco so delivered,
forfeit to the owner one hundred and fifty dollars. Id.
sec. 1810.
Samplers to furnish manifests :
The samplers shall furnish with all tobacco delivered out of
their warehouses, if required by the owner or his authorized
agent, a manifest or list of the same, describing, as in notes, re-
ceipts, or certificates given therefor, when the same was in-
spected, or, in the manifest thereof, when received from another
warehouse. Id. sec. 1811.
Receipts, etc., to be printed and dated :
All notes or receipts and manifests shall be on printed blanks,
and the date inserted at full length. Id. sec. 2812.
Penalty for illegal receipts, etc. :
Every sampler who shall issue a note, receipt, or manifest, in
any other manner than is prescribed by law, shall be fined one
hundred dollars. Id. sec. 1813.
Resampling :
The samplers of any warehouse, at the request of the owner,
or his authorized agent, of the sampled tobacco stored therein,
shall resample and weigh it, and if found to be damaged, or that
any part of it has been embezzled, it shall be so entered on their
books, and be subject to the order of the owner. Id. sec. 1814.
VIRGINIA. 785
Penalty for delivering wronj; tobacco :
It" any sampler deliver out, in tliscliargo of any note or re-
ceipt, other tobacco than that for which the same was issued,
or alter or shift any tobacco from the hogshead or cask, in
which the same was received, except in a case expressly autiior-
ized by law, he shall be fined for every such offense one hun-
dred and fifty dollars. Id. sec. 1815.
Penalty for not delivering tobacco on demand :
If any sampler fail to deliver any lobacco, when it is de-
manded, to the owner thereof, or his authorized agent, he shall
forfeit to such owner double the value of such tobacco. Id.
sec. 1816.
Samplers to keep books— What entries to make :
The samplers shall provide and keep books, in which they
shall enter the numbers, weights, marks, the names of owners
of all tobacco received, sampled, or delivered out by them, as
well at the time the same wms received as at the time the same
was sampled or delivered out, and note the state and condition
of each hogshead, cask, tierce, or box ; and in which, also, they
shall keep fair and true account of all money received by thera
to the use of the proprietors of the warehouses. Id. sec. 1817.
Not to buy tobacco, etc. :
If any sampler directly or indirectly, buy, stem or manufac-
ture any tobacco other than tobacco grown on his plantation,
he shall forfeit ten dollars for every hundred pounds of tobacco
so bought, stemmed or manufactured. Id. sec. 1818.
Discharge from liability on delivery of tobacco :
If any hogshead or cask of tobacco be delivered out by a
sampler, and received by the owner, such sampler, from the
time of such delivery, shall be discharged from any liability by
reason of the fact that the said tobacco was unsound or un-
merchantable, or of less quantity than the notes or receipts
given for the same specify, unless it be proved that such loss
was due to the negligence of the sampler. Id. sec. 1819.
Samplers' fees :
There shall be paid to said samplers for each hogshead, cask,
50
786 VIKGIMA LAWS.
tierce, or box, weighing- not less than five hundred pounds,
sampled by them, one dollar for opening, sampling, coopering
up, furnishing nails, marking, and weighing, to be paid by the
owner. For a review, the fees shall not exceed one dollar ; and
for re-sampling the fees shall be the same. Id. sec. 1820.
For rent :
For each hogshead, cask, tierce, or box of tobacco, weighing
not less than five hundred pounds, received, sampled, stored,
or delivered out of any warehouse, rent shall be paid to the
samplers at the following rates, to wit : Seventy-five cents for
a period of four months, or any less time, and ten cents for each
month or part of a month after four months that the tobacco
shall remain in said warehouse, to be paid by the purchaser or
person to whom the hogshead, cask, tierce, or box is delivered,
which rent shall be for the exclusive use of the proprietors of
the warehouse. Id. sec. 1821.
For storage :
For every hogshead, cask, tierce, or box, of the weight afore-
said, of sampled tobacco, received on storage at any warehouse,
there shall be paid to the samplers thereof one dollar. Id.
sec. 1822.
For deliveriug tobacco :
There shall be paid to the samplers of each hogshead, cask,
tierce, or box, of five hundred pounds and over, delivered out
of their Avarehouse, fifty cents, to be paid by the person to
whom the hogshead, cask, tierce, or box is delivered. Where
tobacco is reviewed or resampled in the same warehouse in
which it was originall}' sampled, there shall be but one storage
fee and one delivery fee, for each hogshead, cask, tierce, or box ;
Provided., that should there be any extra storage on said re-
sampled tobacco, it shall attach to the resampled number.
and be paid by the purchaser. Id. sec. 1823.
When only half fees to be paid :
For such services by the sampler, rent, and storage, as are
mentioned in the four ])residing sections, only one half the
amount prescribed therein shall be paid where the hogshead,
cask, tierce, or package is of less weight than five hundred
VIRGINIA. 787
pounds, and the same shall be paid by the persons respectively
mentioned in said sections. Ld. sec. 1824.
Fees for sale of loose tobacco :
For all loose tobacco sold at any public warehouse, the fol-
lowing charges shall be paid, to wit : On every one hundred
pounds of such tobacco so sold, eight cents shall be paid by the
owner and the like sum by the purchaser, one half of which
shall be for the samplers and the other half for the pi-oprietors
of the warehouse ; and there shall be no other charges or fees
for loose tobacco sold as aforesaid, but the said charges shall
be in full of all services rendered in respect thereto, including
receiving, unloading, weighing, and delivering. Id. sec. 1825.
Wlieu fees to be paid :
The samples shall require payment of all sums to be paid to
the proprietors of their wareliouses before the delivery of the
tobacco for which they are due, and shall not be bound to de-
liver any such tobacco until such sums and all their own fees
have been paid. Id. sec. 1826.
When sampler from another warehouse to act — How his
fees are paid:
A sampler from another warehouse shall be authorized to
act w^henever his services shall be required in consequence of
the disagreement in opinion of the two samplers at any ware-
house as to the quality of tobacco, or in consequence of the ab-
sence of either of them, or to sample tobacco belonging to one
of them. He shall be paid for his services in the first case, out
of the fees of the other two samplers in the proportion to the
time he acts, and, in the other cases, out of the fees of the sam-
pler who is absent, or whose tobacco is to be sampled. Id.
sec. 1827.
Division of fees, etc., prohibited :
No sampler shall divide his sample fees with any person, nor
shall any sampler or pi-oprietor of any warehouse pay to an-
other a bonus to induce tobacco to be carried to his warehouse ;
and if any sampler or proprietor of any warehouse violate this
provision, or demand or receive for his services any other fees,
greater or less than are allowed by law, he shall be deemed
788 VIRGINIA LAWS.
guilty of a misdemeanor ; and any agent or representative of
any person for the sale of tobacco, who receives any lebate oi-
bonus of any part of the sampler's fees, or warehouse fees,
shall be deemed guilty of a misdemeanor, and on conviction
thereof be lined not less than twenty nor more than one hun-
ilred dollars : Provided^ that nothing in this section shall be
c(jnstrued to prevent any sampler or proprietor of a warehouse
from making and publishing a uniform reduction for the bene-
fit of the public generally, of the fees to be charged at his ware-
house for the services of such sampler, or the rent of such ware-
house, respectively. Id. sec. 1828.
When samplers to settle with proprietors — Insurance :
The samplers of each warehouse shall account for and pay to
the proprietors thereof, on the tenth day of April, the tenth
day of July, the tenth day of October and the tenth day of
January, in each year, all money received, or which ought to
be received, by them, to the use of said proprietors. And the
proprietors of every such warehouse shall keep, free of charge
to the planter and owner of tobacco, an open policy of insur-
ance upon their respective warehouses, sufficient to cover every
loss by fire or water which any person having tobacco stored
therein may sustain ; and for a failure so to do, they shall be
liable to the owners thereof for any damage or loss they may
sustain by reason of any partial or total destruction of said
tobacco by fire or water. Id. sec. 1829.
Where tobacco of planter to be stored — To be sampled be-
fore sale :
Every commission merchant or other person, to whom un-
manufactured tobacco, in hogsheads or packages, owned by a
farmer or planter is consigned for sale, shall store such tobacco
in a pubhc warehouse, where it is practicable, unless otherwise
instructed in writing by the owner at the time of shipment,
and it shall be unlawful for any person to offer such unmanu-
factured tobacco, when so stored in a public warehouse, for sale
by sample, unless such sample has been drawn and certified
by a sampler of tobacco appointed by the governor, and quali-
fied according to law : Branded., that the owner of any pack-
age of prized tobacco, in person or by his authorized agent act-
ing for him, may have the same exposed for sale, uncased and
VIRGINIA. 789
uncovered and sampled, as loose tobacco, in the presence of
both buyer and seller, without being sampled according to the
provisions of this section. Id. sec. 1830.
Proprietors to furnish scales, etc. :
The proprietor of every warehouse shall have proper scales
or balances and weights, and all other proper conveniences
provided, and see that they are kept in repair, and that the
weights conform to the lawful standard. Id. sec. 1881.
'o'
Removal of samplers :
On complaint to the governor of neglect of duty or miscon-
duct by a sampler, he shall hear the said complaint, upon giv-
ing notice of the time and place of hearing to said sampler, and
being satisfied that the complaint is sustained, he shall remove
him. Id. sec. 1832.
Use of false brand — Punished :
If any person use, or permit to be used, on any cask, box, or
keg of manufactured tobacco, any brand or mark indicating a
place or a manufacturer different from the place in which, or
the manufacturer by whom, it was really manufactured, he
shall forfeit ten dollars for each cask, box, or keg so falsely
marked or branded ; one half thereof shall be to the informer.
Id. sec. 1833.
Manufactured tobacco :
None of the })rovisions of this chapter, other than the pre-
ceding section, shall be construed to apply to the manufactured
tobacco. Id. sec. 1834.
Nesting punished :
If any person nest a hogshead of tobacco with inferior to-
bacco, or other thing, with the intent to defraud the purchaser
he shall be fined one hundred dollars for each hogshead or cask
so nested. Id. sec. 1835.
Penalties for certain violation :
If any person violate any of the provisions of section eighteen
hundred and twenty or of the sections following to 1826 in-
clusive, or of section 1830, he shall be fined one hundred dollars,
one half to go to the informer. Id. sec. 1836.
790 VIRGINIA LAWS.
Record to be kept by coinnijiiider of vessel, etc., for to-
bacco shipped :
The commander of any boat or vessel taking on board of his
vessel any tobacco, in bulk or in parcels, otherwise than in
hogsheads or casks, to be transported for hire from one part of
the state to another part thereof, shall keep a record of the
quantity of such tobacco, how incased, if at all, and the
names and addresses of the consignors and consignees ; which
record shall be open to the inspection of any party inter-
ested. For every violation of this section, such commander
shall be tined twenty dollars. Id. sec. 1837.
Pimishmeiit for receiving tobacco without consent of
owner :
If the commander of such boat or vessel, or other person
employed thereon, shall knowingly, without the consent of the
owner, take any tobacco on board, or conceal the fact of its
being on board, the party so offending, if he be the commander
of such boat or vessel, shall forfeit ten cents for ever}^ hundred
pounds weight of such tobacco ; if he be a person other than
the commander, shall forfeit twenty dollars for such offense.
All tobacco put on board such boat or vessel Avithout the
knowledge of the ow^ner shall be restored to him. Id. sec.
1838.
Publication of insurance :
Evei-y proprietor of a public tobacco warehouse shall, at
least once a year, publish in some newspaper published in this
state, once a week for four successive weeks, a statement show-
ing the amount of insurance he has on such warehouse, the
companies in w^hich the insurance has been effected, and the
length of time the policies have to run. Id. sec. 1839.
Reprized packages :
Each sampler shall keep in a different column an account of
all reprized packages from original samples. For the failure
to comply with the provisions of this section, the sampler shall
be fined one hundred dollars, and it shall be sufficient cause for
removal from ofl&ce. Id. sec. 1840.
Punishment for sending tobacco to wrong warehouse :
If any person or corporation send the tobacco of a planter
VIRGINIA. 791
or other person to aii}' warehouse other than that to which
such tobacco is marked by the owner or his iigent, the person
or corporation so sending sucii tobacco shall be deemed guilty
of a misdemeanor, and, upon conviction thereof, be fhied not
less than twenty nor more than fifty dollars for each package
so sent. Id. sec. 1841.
Sale by samplers of uiiclaliiied tobacco— Disposition of
proceeds :
When any tobacco shall have remained in any warehouse in
the city of Kiclimoiid undemanded for a term of three years
from the time of its inspection therein, the inspectors or
samplers for said warehouse shall advertise in some newspaper
published in said city once a week for three consecutive weeks,
a list of marks, numbers and weights of such tobacco, with the
names of the persons to whom notes or receipts for it were
given, and if no owner claims said tobacco and pays the ac-
crued extra storage thereon within sixty days after date of
such advertisement, they shall sell or cause the same to be sold
on account of whom it may concern. The proceeds of such
sale shall be paid into the treasury, after deducting therefrom
all the usual charges for selling. The amounts so paid into the
treasury shall be refunded to the owner of said tobacco, on
the return to the inspectors or samplers of the notes or re-
ceipts issued for the same. Id. sec. 1842.
Judges to charge grand juries :
The judges of the county and corporation courts, in such
counties and corporations as have public tobacco warehouses
therein, shall give the provisions of this chapter in charge to
the grand juries. Id. sec. 1843.
When receipts not to be issued — Duplicate receipts :
No person shall issue any such licensed warehouse or other
licensed storage receipt unless he be the keeper of a regu-
larly licensed warehouse or other licensed place of storage in
this state for goods, wares, merchandise, cotton, graiji, flour,
tobacco, lumber, iron or other commoditv stored with such
7 7 c'
person and shall have duly paid to the commonwealth the tax
for such license, and unless the property therein mentioned
shall be actually in store or on his premises and under his con-
792 VIRGINIA LAWS.
trol at the time of 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 " duplicate " ; and the said duplicate shall express on its
face the reason for the issuance of the same, stating- whether
the original receipt was lost, burned, or stolen, and the per-
son to whom said duplicate receipt is issued shall give to the
warehouse issuing the same a bond in the penalty of double
the value of the article for whicli said original receipt was
given ; and it shall be the duty of such person keeping such
licensed warehouse or licensed phice of storage to cause to be
posted prominently over the door of his place of business a
sign indicating that such warehouse or ]:tlace of storage is duly
licensed ; and such person shall also cause to be written or
stamped in plain letters upon the bill-heads and envelopes used
by him in said business words indicating that the warehouse or
place of storage kept by him is duly licensed. Any person
violating the provisions of this act shall be deemed guilty of a
misdemeanor, and upon conviction fined not less than fifty
dollars nor more than one hundred dollars for each offense.
Supplement to the Code of Virginia, 1887-98, sec. 1792.
Fraudulent sale, negotiation, pledge, or hypothecation of
licensed warehouse or other licensed storage receipts, and to
provide punishment in respect thereto :
Any firm or person, natural or artificial, who shall issue any
licensed warehouse or other licensed storage receipt for farm
product in his own name, being in possession of said farm prod-
uct for or on account of another, and sell, negotiate, pledge,
or hypothecate such licensed warehouse or other licensed storage
receipt and fraudulently fail to account for or pay over to his
principal or the owner of the property the amount so received
on such sale, negotiation, pledge, or hj^pothecation less the
charges and amount due him shall be deemed guilty of the
larceny of such money or the farm product of the receipt, and
upon conviction thereof punished by confinement in the pene-
tentiary not less than one year nor more than five years, and
the failure to account for or pay over to such principal or owner
shall he 2?ri7na facie ^roof ot fraudulent intent. Id. sec. 3718a.
VIRGINIA. 793
An Act to provide for weighing leaf tobacco in warehouses,
requiring proprietors thereof to furnish itemized statements and
fixing a penalty. Approved, March 6, 19U0 :
Be it enacted by the general assembly of Virginia, that all
leaf tobacco sold upon the Hoor of any tobacco warehouse in the
state of Virginia shall first be weighed by some reliable person
who shall have first sworn and subscribed to the following
oath, to wit :
I do solemnly swear (or affirm) that I will correctly and ac-
curately weigh all tobacco offered for sale at the warehouse of
, and correctly test and keep accurate the scales upon
which the tobacco offered for sale is weighed.
Said oath to be filed in the office of the clerk of the county
or city court of the county or city in which said warehouse is
situated.
The proprietor of each and every warehouse shall render to
each seller of tobacco at his warehouse a bill plainly stating the
amount charged for weighing and handling, the amount charged
for auction fees, and the commission charged on such sale, or
any other charges made for selling and handling such tobacco.
That for each and every violation of the provisions of this
act, a penalty of ten dollars be enforced, and the same may be
recovered by any one so offended.
This act shall be in force from and after the first day of Oc-
tober, nineteen hundred. Laws of Virginia, 1900, chapter 901.
794 VIRGINIA DECISIONS.
DECISIONS AFFECTING WAREHOUSEMEN.
A.
Bailment and sale — Ambiguous receipts — Question for the
jury.
riaintilf's intestate delivered wheat to the defendant and re-
ceived therefor a receipt in the following terms : " Eeceived,
June 4th, 1886, of William Reherd, seven hundred one and 51,
of No. Two Avheat in store, less five bushels paid Isaac Bill-
himer, for which we are to pay market pi-ice same quality of
wheat whenever Mr. Reherd wants to sell same." The prop-
erty was destroyed by fire and it was not alleged that the de-
fendant was guilty of negligence. Upon demand being made
of the defendant for the value of the wheat it was refused on
the ground that the contract was one of bailment and not of
sale. It was /tehl on appeal that the plaintiff was entitled to
have had the following instruction given to the jury and that
the court's refusal thereof constituted reversible error : " If the
jury believe from the evidence that AYilliam Reherd in his life-
time delivered the wheat which is the subject of controversy
into the mill of the defendants, upon a contract with the de-
fendants, that they, the defendants, should pay for the same in
money at the market price whenever the said William Reherd
should name the time of the market price therefor, and that
the defendants had the right to use said wheat as they thought
proper, then such contract was a sale of the wheat and not a
bailment^ Reherd' s Admr. v. Clem & Wenger, 86 Va. 374.
Same — Wheat to be ground — Fire — Bailment.
Where wheat is delivered at a mill to be ground, upon an
agreement that the miller shall return to the farmer a given
quantity of flour for so many bushels of wheat, the miller is a
hailee and not a j'^w^'cAas^^r, and therefore if the wheat be con-
sumed by accidental fire, the miller will not be responsible for
it. This conclusion will not be altered bv an understanding
between the parties that the miller is not bound to return
flour made from that identical wheat, but flour of a certain
quality, made from any wheat in the mill. SlaugJiter v. Green
et al., 1 Rand. 3.
VIKGIN'iA. 79;j
L.
Detinue — Bailee may maintain — Counts in declaration.
A bailee of chattels may maintain detinue for them upon his
right of possession as bailee. Two counts in a declaration in
detinve^ one countinq (jn a right of i)roi)erty in the |)laiiititl",
and the other on a right of possession in him as bailee: Held
no misjoinder of actions. Boyh'. v. Toiones^ 9 Leigh, 158.
N.
Lon.s. by theft — When reputation of bailee not in question.
Where property" was intrusted to one and an action was
broug'ht against his administrator by the bailor for the rec(jverv
thereof, the defendant pleaded non aH-Humpsit. The i)laintili'
alleged that the reputation and character of the original bailee
was in issue because the declaration, being assumpsit, chai'ged
him with an intent to deceive and defraud the plaintiff, and as
the defendant had failed to put in any testimony showing that
the character of the bailee was good, the counsel for the plain-
tiff relied on this fact as a sio:nificant one tending to show that
the character and reputation of the bailee was bad. After ar-
gument of counsel on both sides, the court, on its own motion,
instructed the jury that the character of the bailee was not in
issue and that the jury should disregard all arguments made
before them based on the failure of the defendant to introduce
testimony as to the bailee's character. On appeal, this ruling
Avas held correct on the ground that in civil cases evidence of
general character is never receivable unless the nature of the
action involves the character of the party or goes directly to
affect the same. Danville Bank v. WaddiWs Admr.., 31 Grat.
469.
P.
Insurance — Warehouseman's own goods — Pro rata distribution.
A w^arehouseman insured the contents of his warehouse, in
which there was also stored some of his own goods, against
loss of fire. It was held, after loss had occurred, that he could
recover the full amount of insurance, that he was entitled to
pay out of such sum all costs, including the costs of the policies
paid either by himself or other owners, and attorneys' fees in-
curred in the collection thereof ; and that the balance nmst be
796 VIRGINIA DECISIONS.
distributed j-^/'o ra^a among the several owners, including him-
self. Boycl^ Trustee et al., v. McKee et al., 99 Va. 72.
Warehouse receipt — When ambiguous, parol evidence will he
received.
Where a warehouse receipt is ambiguous in its terras and is
susceptible of explanation tending to sho\v whether or not the
contract was a sale or bailment, evidence will be received to
show what was the purpose and intent of the parties. Re-
herd's Adrnr. v. Clem c& Wenger, 86 Va. 374.
WAailLNGTOi^. 797
CHAPTER XLVII.
WASHINGTON.
LAWS PERTAINING TO WAKEIIOUSEMEN.
Bill of lading or warehouse receipt, what is :
A bill of lading or warehouse receipt is an instrument in
writing signed by a carrier, warehouse prcjprietor, or his
agent, describing the freight so as to identify it, stating the
name of the consignor or owner, the terms of the contract for
carriage or storage, and agreeing or directing that the freight
be delivered to the order or assigns of a specified person at a
specified place. Codes & Statutes of Washington (Ballinger),
1897, sec. 3590.
Above section construed :
A receipt signed by a mill owner as " warehouseman " does
not thereby become a warehouse receipt. SteauUi v. Blaine
Nat. Baiik, 11 Wash. 426.
Warehouse receipts to be given by whom, and to show
what :
It shall be the duty of every person keeping, controlling,
managing, or operating, as owner or agent or superintendent
of any company or corporation, any warehouse, commission
house, forwarding house, mill, wharf, or other place where
grain, flour, pork, beef, wool, or other produce or commodity
is stored, to deliver to the owner of such grain, flour, ])ork,
beef, wool, or produce or commodity, a warehouse receipt there-
for, bearing the full name of those operating said houses, which
receipt shall bear the date of its issuance, and shall state from
whom received, the number of sacks, if sacked, the number of
bushels or pounds, the condition or quality of the same, and the
terms and conditions upon which it is stored. Codes & Stat-
utes of Washington (Ballinger), 1897, sec. 3591.
798 WASHINGTON LAWS.
General form of warehouse receipt :
The receipt required in the last preceding section of this
chapter shall 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., net, lbs.. No (give here
grade and name of commodity), at owner's risk of unavoidable
damage, to be delivered at this warehouse, upon return of this
receipt, properly indorsed, and payment of charges. This re-
ceipt negotiable when duly indorsed by consignor. Storage to
(here give amount and date).
Signed (Name of firm or company.)
(Name of agent). Agent.
Id. sec. 3592.
Receipts not to be given, when— Duplicates must be so
marked :
No person shall issue any receipt or other voucher, as pro-
vided for in section 359f , for any grain, flour, wool, pork, beef,
or other 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, without writing
across the face thereof the Avord " duplicate." Id. sec. 3593.
Warehousemen must not mix grain, etc., so as to destroy
identity :
No person operating any warehouse, commission liouse, for-
warding house, mill, wharf or other place where grain, flour,
pork, beef, wool, or other produce or commodity is stored shall
mix any grain, flour, beef, pork, wool, or other pi-oduceor com-
modity of different grades together, or deliver one grade for
another, or in any way tam])er with the same while in his pos-
session or custody, with a view of securing any profit to himself
or any other person, and in no case mix different grades to-
gether while in store: Provided^ That nothing in this act shall
be construed to prohibit any person operating any warehouse,
commission house, forwarding house, mill, wharf, or other place
"WASHINGTON. 799
where grain, pork, wool, or other produce or commodity is
stored from keeping, filling or storing any [)rodiice or commodity,
offered for storage separate and apart from other produce or
commodity, by marking such produce oi- commodity in such a
manner that it can be identilied and delivered on presentation
of the warehouse receipt or voucher which was given for same;
in which case the receipt given shall designate the mark on the
produce or commodity so stored. Id. sec. 3594.
Consent of receipt holder necessary for release of goods :
JXo person operating any warehouse, commission house, for-
warding house, mill, wharf, or other place of storage, shall sell,
incumber, ship, transfer, or in any manner remove or permit to
be shipped, transferred, or removed from the place of stoi-age at
which the receipt is given, any grain, flour, beef, pork, wool, or
other produce or commodity for which a receipt has been given
by him as aforesaid, whether received for storing, shipping,
grinding, or manufacturing, or other purposes, without the writ-
ten consent of the holder of the receipt. Id. sec. 3595.
Goods must be delivered on presentation of receipt :
On the presentation of the receipt given by any person op-
erating any warehouse, commission house, forwarding house,
mill, wharf, or 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, \vharf-
inger, mill man, or other person having the possession thereof,
to deliver such commodity to the owner of such receipt with-
out further expense to such owner, and without unnecessary
delay. Id. sec. 3596.
Criminal prosecutions and actions for damages :
Any person who shall violate any of the provisions of this
act shall be liable to 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-
800 WASHINGTON LAWS.
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 re-
cover 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. 3597.
Receipts, etc., declared negotiable— Indorsement — Effect
of:
All checks or receipts given by any person operating any
warehouse, commission house, forwarding house, mill, wharf, oi-
other place of storage, for any grain, flour, pork, beef, wool, or
other produce or commodity, stored or deposited, and all bills
of lading, and transportation receipts of every kind, 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. 3598.
Above section construed— Negotiability :
A statute making warehouse receipts negotiable by indorse-
ment cannot be construed as making an indorsement of a ware-
house receipt effective otherwise than as a transfer of the in-
terest of the holder in and to the property represented by the
receipt. Yarioood v. Happy, 18 Wash. 246.
Same — Negotiability of warehouse receipt :
All the title to the freight which the tirst holder of a bill of
lading or warehouse receipt had, when he received it, passes to
every subsequent indorser 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. Codes & Statutes
of Washington (Ballinger), 1897, sec. 3599.
When drawn to " bearer," transferred by delivery :
When a bill of lading or warehouse receipt is made to
" bearer," or in equivalent terms, a simple transfer thereof by
delivery conveys the same title as an indorsement. Id.
sec. 3600.
WASHINGTON. 801
Not to affect certain rights :
A bill ol' lading or warehouse receipt does not alter the rights
or obligations of the carrier or warehouse proprietor as delined
in this chapter, unless it is plainly inconsistent therewith. Id.
sec. 3601.
Duplicate bills of lading, etc.:
A carrier or warehouse proprietor must subscribe and deliver
to the consignor on demand any reasonable number of bills of
lading or warehouse receipts, not exceeding three (one original,
and the balance marked "duplicate," and the original to state
the number of duplicates issued), of the same tenor, expressing
truly the original contract for carriage or storage, and if he
refuses to do so, the consignor may take the freight from him,
and recover from him, besides, all damages thereby occasioned.
Id. sec. 3602.
Exoneration of carrier, etc.:
A carrier or w^arehouse proprietor is exonerated from liabil-
ity for freight by delivery thereof, in gootl faith, to any holder
of an original bill of lading or warehouse receipt thereof, proj)-
erly indorsed, or made in favor of the bearer. Id. sec. 3603.
Carrier may require bill or indemnity :
When a carrier or warehouse proprietor has given a bill of
lading, warehouse receipt, or other instrument substantially
equivalent thereto, he may require its surrender, or a reason-
able indemnity against claims thereon, before delivering the
freicrht. Id. sec. 3604.
o
Singular number to import plural:
Words used in this act in the singular number shall be con-
strued to import the plural number, whenever such construction
is necessary to give force and effect to the provisions of this
act. Id. sec. 3605.
When lien exists :
Whenever property upon which charges for advances, freight,
transportation, wharfage, or storage, due and unpaid, and a
lien shall remain and be held in store by the person or ]->er-
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 defen<lant railroad company attempting to compel the
latter to operate a certain spur or track in front of the plain-
tiff's warehouse and to receive his goods from such spur. A
demurrer was filed to the complaint and it was held on appeal
that since the complaint did not show either who constructed
WISCONSIN'. H],")
the spur or who owned it, that it failed to show a case williin
the statute. There was nothing in evidence to show that the
spur in question had not been constructed by the raih'oad at its
own expense. The evidence also failed to show any considera-
tion which would support an agreement between the {)arties
under which the railroad would be obliged to operate the track
for the benefit of the plaintiff, Bartlett v. Chicago <& JV. Ry.
Co., 96 Wis. 335.
Of factors, brokers, etc., for advances, etc. :
Every factor, broker or other agent intrusted by the owner
with the possession of any bill of lading, custoiu-house permit,
warehouse receipt or other evidence of the title to personal
property, or wdth the possession of personal property for the
purpose of sale or as security for any advances made or lia-
bility by him incurred in reference to such pro|)erty, shall have
a lien upon such personal property for all such advances, lia-
bility incurred or commissions or other moneys due him for
services as such factor, broker or agent, and may retain the
possession of such property until such advances, commissions
or moneys are paid or such liability is discharged. Ke vised
Statutes, Wisconsin, 1898, sec. 3346.
How such liens enforced :
Every person having a lien given by either of the four last
sections or existing in favor of any bailee for hire, carrier,
warehouseman or pawnee or otherwnse, by the common law,
may, in case such debt remain unpaid for three months and the
value of the property affected thereby does not exceed one
hundred dollars, sell such projierty at public auction and apply
the proceeds of such sale to the payment of the amount due
him and the expenses of such sale. Notice, in writing, of the
time and place of such sale and of the amount claimed to be
due shall be given to the owner of such property personally,
or by leaving the same at his place of abode, if a resident of
this state, and if not, by publication thereof once in each week,
for three weeks successively, next before the time of sale in
some new^spaper published in the county in which such lien ac-
crues, if there be one, and if not, by posting such notice in three
public places in such county. If such property exceed in value
one hundred dollars, then such lien may be enforced against
816 WISCONSIN LAWS.
the same by action in any court having jurisdiction. Id.
sec. 3347.
Transferee of warehouse receipt, etc., deemed owner :
Warehouse receipts, bills of lading- or railroatl receipts given
for any goods, wares, merchandise, lumber, timber, grain, flour
or other produce or commodity stored, shipped or deposited
with any warehouseman, wharhnger, vessel, boat or railroad
company or other person on the face of which shall not be
plainly written the words "not negotiable " may be transferred
by delivery with or without indorsement thereof ; and any per-
son to whom the same may be so transferred shall be deemed
and taken to be the owner of the goods, wares and merciiandise
therein specified so far as to give validity to any pledge, lien or
transfer made or created by such person or persons ; but no
such property shall be delivered except on surrender and can-
cellation of said original receipt or bill of lading or the indorse-
ment of such delivery thereon in case of partial delivery. Id.
sec. 4194.
Penalty for bnrning building :
Any person who. shall willfully and maliciously burn, in the
night-time, any meeting-house, church, court-house, town-house,
college, academy, jail or other building erected for ])ublic uses,
or any ship, steamboat or other vessel, or any banking house,
warehouse, store, manufactory or mill of another, or of which
he is lessee or tenant, or any barn, stable, shop or office of an-
other, or of which he is lessee or tenant, within the curtilage
of any dwelling-house or other building, by the burning whereof
any building mentioned in this section shall be burnt in the
night-time, shall be punished by imprisonment in the state prison
not more than fifteen years nor less than five years ; but if such
offense was committed in the day-time the person guilty thereof
shall be punished by imprisonment in the state prison not more
than eight years nor less than four years. Id. sec. 4401.
Burning other l>nildings :
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?<cd.
to interfere witli bklding unlawful, Ky. 270
of warehousemen unlawful, 111. Ill
COMMINGLING OF GRAIN. See also GRAIN.
not to be done without owner's permission, Minn. 3.S6
where flour to be returned in place oj grain, transaction in a .sa/f, Mo. 'I'Jl
when it jnakes transaction a sale, III. 1G8, Minn. 4.'J2, Ohio. G40
does not change transaction into a sale,
Ind. 200, Iowa, 219, Ky. 272, Minn.43-i,N.D.(i2\,Ohio, GJ7,0rc. GS2
declared by statute to be a bailment, . . .Minn. 380, S. I). 73G, Va. 779
segregation not necessary when a part .soW, .V. 1'. 578
owners are tenants in common, Minn. 43G, Ind. 203
warehouse receipt to represent portion stated therein, N. C. 603
effect of i^ubsequent separation, replevin, TT'i'.s. 827
when replevin will lie, ///. 1G8
replevin will not lie for portion of, N. D. 625
when bailee of part of such fjrain becomes insolvent, N. D. 616
innocent purchaser of grain protected, Ind. 202
in case of loss, to be borne pro rata, lU. 1G9, Ore. 683
effect of mixture with grain of better quality, Wis. 828
different grades not to be mixed,
Minn. 383, 390, Mo. 463, Neb. 511, Wash. 797
action of trover in case, Muh . 37 1
right to maintain trover not affected by, ///. 109
when warehouseman becomes insolvent, S. D. 736
when conversion takes place in case of, Minn. 434
does not constitute conversion, la. 220, Ore. 682
not conversion although unauthorized, la. 222
when it constitutes conversion, Ohio, 650
if unauthorized constitutes conversion, la. 222, Kan. 252
conversion if less than aggregate mass in store, Ind. 203, TT'V^. 827
where there has been conversion equity has jurisdiction, Minn. 434
grain to be stored with that of same grade, Mo. 462
of equal grades allowed, ^^ is. 824
grain of equal grade to be delivered on return of receipt,.. .N. D. 016
warehousemen have an insurable interest in stored and commingled
grain, ^'xl- "-f"''
warehouse receipt for mixed grain may be pledged, Minn. 436
what warehouse receipt represents in case of,
Me. 310, Ma.ss. 334,S. C. 718
COMMISSIONS,
not allowed for paying money to seller Ky. 268
allowed for selling tobacco at auction, Ky. 26S
COMMISSIONER OF AGRICULTURE,
to appoint inspector, weigher and registrar of grain, Ky. 262
COMMISSIONERS. See also BOARD OF COMMISSIONS ; RAII^
ROAD COMMISSIONERS.
858 INDEX.
References to laws are printed in roman. Those to decisions are in italics.
COMMISSIONERS OF RAILROADS, page
rules of, regarding grain, etc., to be published, N. D. 613
duty to supervise handling of grain, make rules, etc., X. D. 613
duties and powers imposed by warehouse act, devolve upon, N. D. 613
COMMISSION MERCHANT,
warehouseman's liability not changed by styling himself such,. . .Ky. 274
COMMITTEE OF APPEALS. See also APPEAL ; BOARD OF AP-
PEALS.
creation and personnel of, 111. 147
creation of, term of office, Neb. 528
power of, 111. 147
appeals to, from chief inspector of grain, Neb. 529
who may serve on, oath, and bond, 111. 148, Neb. 529
COMMODITIES,
weights per bushel of certain, fixed by law, Minn. 424
COMMON CARRIERS. See CARRIERS.
COMMON -LAW,
remedies at, not impaired liy warehouse act
111. 145, Mo. 478, Neb. 524
COMMON PROPERTY,
depositors have, xohen goods are commingled, III. 169
COMMONWEALTH,
action on warehouseman's bond to he brought in the name of, Mass. 332
COMPENSATION,
of grain inspectors, Ind. 191, Neb. 517, Okla. 669
to be paid carrier for construction of warehouse on its right of way,
Minn. 416, S. Dak. 742
of state weighmaster and assistants, 111. 157, IMo. 480, Neb. 531
allowed for selling tobacco at auction, Ky. 268
COMPLAINT,
what it must contain in an action for conversion, Ind. 202
COMPLAINTS,
against inspectors of grain, how made, Minn. 412, Mo. 474
COMPROMISE,
when valid agreement made other defcn-^es barred, Colo. 71
CONCEALING COTTON,
liability of warehouseman for, Ala. 5
CONDEMNATION,
of land for warehouse sites, procedure, S. Dak. 744
CONDITION,
warehouseman's duty when grain becoming out of condition,
Minn. 390, Mo. 468, Neb. 519, Okla. 664
INDEX. 8;j9
References to laws are printed m roman. Those to decisions are in italics.
CONDITION— Con/mwed. p^ob
of property must be stated in receipt, Ala. 1
when statement on bill of lading as to, not receivable, Ga. 121
statement as to, made to original assignor, inures to benefit of as-
signee, ///. 177
CONDITIONAL SALE,
warehouseman's lien superior to a chattel mortgage given under,
when, N. Y. 5G3
CONDITIONS,
shall not be inserted on warehouse receipts, bills of lading, etc.,
restricting negotiability, '. .Mo. 457
CONSIDERATION,
extension of loan sufficient, for issuance of warehouse receipt, .... Kij. 2S2
pre-existing debt good for transfer of warehouse receipt, Cal. 59
CONSIGNEE,
has no authority to pledge bill of lading of goods sent subject to his
order, Mass. 350
is agent of owner, \la. 8
fraud on the part of, penalties, Neb. 532
to have lien on shipped property, ( )hio, 028
duty of, upon receipt of property, Wis. Nl 1
when maj^ sell goods for freight and storage charges, lli.'js. 44s
must keep record of property, Minn. '.\~'>
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'. \'<i. s()[)
delivery to bailor after notice of real owner's claim, rule .staled,. . Tex. 7(J7
wheji removal of goods by bailee, under bailor'.'^ orders, con.'<titutes, Tex. 7G6
wrongful sale constitutes a conversion, both by bailee and jmrchaser,
Vt. 776
the purchase of a mortgaged chattel is not, N . D. 625
depositary liable for value of property converted, La. 2!)9
where bailee parts with goods without bailor's consent, Tcnn. 753
sale by bailee constitutes, Ky. 275
sale of goods by warehouseman's son, \rk. 30
that it icas the custom of warehousemen to ship grain at certain season,
no defense, Ore. 682
delivery to receipt holder when chattel mortgage on goods constitutes
conversion, -l/«- 1 1
when mortgagee may maintain action for, against warehousemen, Cal. 50
innocent redelivery of stolen property by bailee, not, Conn. 79
if warehouseman j)arts with possession of goods without depositors
consent, Ore. 682
improper sale for storage charges constitutes, Cal. 54, Ind. 202, N. Y. 568
authority to receive offers does not carry power to sell, A/ass. 341
when delivery to holder of receipt constitutes, Ala. 1 1
sheriff liable for, if goods sold for storage citargcs, Cal. 54
delivery to officer pursuant to attachment is not, Mass. 340
delivery pursuant to order of one not owner constitutes, N . Y . 583, Ore. 683
refusal to deliver on demand constitutes, X.C. 600
refusal to deliver on demand does not alone constitute, Cal. 49
is shown where tliere is a tender, a demand and a refusal, Ind. 201
an unqualified refusal to deliver con.^titutes, .V. 1 . 568
presumed where bailee fails to deliver on demand,
Ala. 9, iVci'. 540, A'. C. 60<)
effect of refusal to deliver, Neb. 537
persistent refusal to deliver ronstitutc.s, Cal. 49
warehousemen may excuse refusal to deliver by evidence of justifiable
inability, Cal. 49
delivery by warehouseman ivithout return of receipt, R. I. 713
delivery when claim of th ird person knoivn, Cal. 50
bailee may set off amount of claim .-iecured by lien A'. ./. 548
measure of damages, where tcillful and where not .^finn. 138
of property held for better prices, measure of damage.^, I.n 303
measure of damages in case of,
III. 173, Ky. 278, Mass. 347, A. )'. ->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. \<M\
864 INDEX.
References to laws are printed in roman. Those to decisions are in italics.
CREDITORS, PAGE
a warehouse receipt issued by a debtor against his own goods is void
a^ to, Ohio, 651
bound to know powers of a corporation, Ind. 201
CRIMES. See also CRIMINAL LAW.
against warehousemen, Ind. 197
CRIMINAL LAW. See also EMBEZZLEMENT; INDICTMENT;
LARCENY ; FELONY; FORGERY.
criminal prosecutions for violations of warehouse act, S. Dak. 738
violation of warehouse act a criminal offense,. . .Tenn. 752, Wash. 799
statute impoiing penalties on icarehousemen, constitutional,. . . .Ore. 686
unlawful sale of goods by warehouseman, indictment, Mo. 498
penalties for crimes against warehouses, Ind. 197
larceny from warehouse at night, Me. 31 1
penalty for breaking into warehouse, Wis. 817
larceny and burglary from warehouse, Mo. 495
penalties for burning property, Wis. 816
one who steals receipt cannot plead want of authority in warehouse-
man to issue, Minn. 444
insufficient allegations in an indictment of a warehouseman,. . . .Ore. 686
" warehouse " and " storehouse " synonymous, Mo. 495
"granary warehouse " means, " warehouse,'' Mo. 498
CUSTOM. See also USAGE.
that assignor of receipt not liable thereon, provable, III. 178
knowledge of, must be shown, III. 165
considered in ascertaining contract between depositor and trare-
houseman, Tenn. 753
as to insurance, consignor may rely upon, La. 303
must be proven by what has been generally done, Ky. 278
cannot change law, Ga. 108
evidence as to, not conclusive as to ordinary care, Minn. 433
to show jyractice of storing goods in any warehouse, will not relieve
warehouseman ivho has contracted to store cotton in fireproof
warehouse, Tex. 769
CIS to shipping grain at certain time of year, irhen no defense in ac-
tion of conversion, Ore. 682
what not a good custom in regard to transfer of receipts, Ala. 20
of making an allowance for tare in cotton bale:, abolished, . . .S. C. 724
may be varied by instructions from owner, Ky. 279
admission of evidence as to particular acts, error, Ky. 278
evidence as to mixing grain, when receivable, la. 224
by which commingling of goods becomes a sale, ///. 168
DAILY,
statements to ho made to registrar, Minn. 389
DAMAGES. See also EXEMPLARY DAMAGES.
recovera'ole for violations of warehouse act,
Del. 84, Ky. 272, Minn. 405, N. Y. 556, S. C. 718, Wis. 823
iNDicx. 835
References to laws are printed in ronian. Those to decisions nrr in italics.
DAMAGES— Continued. ^^^^^
for violation of warehouse act, exemplary, rciovoral.lc, la. 21 :i
warehouseman hable for, in case of neglect or violation, .' Kaii. 'JJ?
bailee may maintain action for, /„ '>|<,
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,'<s. 453
in good order, Ida. 125
negligence, Fla. 95, R. I. 712
ordinary care,
Ala. 7, Ga. 104, Minn. 433, Xeb. 536, A'. Me.x. 550, A'. Y. 565,
S. C. 726, Tenn. 753, Wis. 827
ordinan- diligence, Ga. 102
fledge, W. Va. 810
public elevators, Ky. 259
public granaries, Ky. 259
public warehouses,
Colo. 63, Kan. 239, Ky. 259, X. D. 613, Okla. 656, S. D. 731
warehousemen, Pa. 689
warehousemen, Ind. 193, Mich. 352, X. Y. 563, Tenn. 751
warehouse receipt, .\riz. 21, Wash. '797
warehouse receipt, Cal. 59
DELI\TRY. See also PARTIAL DELIVERY.
a depositarj^ must deliver on demand, Cal. 34
failure to deliver on demand, effect of, Ga. 96
what constitutes valid excuse for failure to deliver, Xeb. 537
consignee may waive terms of contract as to, Ala. 8
presumption from refusal to deliver, without explanation, Ala. 9
bailee protected, if he delivers in good faith to bailor, Cal. 47
duty of depositor in case of joint-o"miership, Cal. 35
warehouseman must not deliver after service of summons in garnish-
ment, Ga. Ill
if made on a sampler's ticket not valid, ///. 172
must be actual before receipt issued, Ind. 1S6
trover uill riot lie for mere failure to deliver, Ala. 13
of grain by carrier, penalty, 111. 149
if made upon a judgment, warehouseman protected, La. 3C6
wrongful when made to broker, Ga. 107
wrongful, by warehouseman prohibited, Colo. 67
prohibition against, not operative when removed Ijy process of
law, Conn. 75
notice when grain not to be delivered into store, X'eb. 522
by placing cars containing grain at point designated by consignee, la. 225
failure to make promptly followed by loss by fire, Minn. A2!7
failure to deliver on demand doe.'i not show negligence, Ma.'s. 346
should be made on order for "balance due," Mass. 349
action for failure to deliver on demand, Minn. 381
at warehouse for purpose of being weighed, effect of, Cal. 48
bailee protected if he delivers to true owner, Ala. 10
INDEX. 807
References to laws are printed in roman. Those to decisiom are in Holies.
BELIYERY— Continued. ,.^,.^.
of key of warehouse a delivery of contenta, S . Y . TM't
facts not constituting a good delivery at warehouse, \ 1'. 507
improper delivery by warehouseman to defendant %n replevin suit,
-V.v! ."<.»
facts not constituting a valid delivery to a warehouseman, Pa. »)'.»(>
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<l. 319
of persons through possession of warehouse receipts, penalty, Xel>. 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.), .M<i. 468
when damaged may be sold, manner of, Kan. 2.31
maj^ be run through machinery, when, Mo. 403
when replevin lies in case of grain in bulk, ///. 1 7 1
when lawful to so keep grain in bulk, Kan. 229
what warehouse receipt represents where grain commingled, S. C. 71S
all grain to be weighed on receipt, Neb. 519
requirement as to weighing, 111. 1 26
fees for weighing of, 111. 150
rules for the weighing of, III. 157
weighing of, under supervision of state weighmastcr, Miim. 393
when stored, not subject to the liabilities of the warehouseman, Va. 779
warehousemen's duty as to preservation of, Okla. (501
grades of, to be established, how,
Ind. 185, Kan. 234, Mo. 475, Neb. 528, S. Dak. 735
different grades must not be mixed,
Ky. 266, Minn. 383, 390, Mo. 463, Neli. 520, ( >kla. (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). <iltl
INQUIRIES,
made by holder of warehouse receipt as to propriety of its issuance,
effect, V. r . .''17
INSPECTION. See also INSPECTION OF GIl.VIN; TERMINAL
INSPECTION,
owners have the right at all times to inspect stored property, . . 111. 126
of warehousemen's books, by wliom, N. C. 003
INSPECTION OF GRAIN. See also GRAIN.
statute providing for, Kan. 232
board of transportation to exercise general supervision over, Neb. r)17
laws governing, »"• ' -'
rulesfor, -^Jj""- -^95
exclusive control of inspectors and weighmasters, Kan. 237
right of board of trade to provide for, A'«". 251
fund from, to l)e placed in state treasury, Nol). r)30
rules for government of inspectors, '11- b^"*
duties bond and fee to be prescribed bv secretary of agriculture,
Ky. 202
necessary expenses of, how paitl, ^'eb. 518
rules for charges, ^^''- ^^^
board of commissioners may fix charges for, • HI. 1J9
all moneys collected to be paid into state treasury, Minn. 399
charges declared a lien on inspected grain, Kan. 2.35, Minn. 397, Nol). .WO
fees for, fixed by statute, Kan. 2;}4
all grahi to be inspected, Mo. JfiJ, Okla. 0.>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.<i right to rely on, La. 303
when loss estimated on pro rata basis, Md. 32S
to be dii^tribiited pro rata among bailors, la. 79"j
publication of, by proprietors of tobacco warehoiLses Va. 790
no implication to reduce storage charges on account of .\ . 1 . rx I
acts making a warehouseman an insurer, ""■ ■»•*•''
duty of bailor to appri-'^e bailee of in.^urance on gno<ls Conn. SO
of property in bonded warehouse ^"- ^^
agreement to give depositor notice of removal of goods, effect,. .Minn. 437
double policies, /' . . -
contract by warehousemen to m.'^ure '"• " "♦
SSH Index.
References to laics are printed in roman. Those to decisions are in italics.
INSURANCE— Co«fmwfd. page
ichat statements on a warehouse receipt held to constitute a contract of,
Minn. -^39
facts constituting contract of insurance by warehouseman, Pa. 699
contract of, irhen irarehouseman does not become insurer, Tenn. 756
contracts to keep property insured, construed, Tenn. 756
icarehoitseman's liability for breach of contract to insure, Tenn. 757
when statement in receipt not a contract of, Ga. 115
implied coidract passes with assignment or receipt, Minn. 442
contract to insure in bailor's name, Ga. 114
proprietor of tobacco warehouse to keep open policy of, Va. 788
ivhere right of subrogation denied insurer by lease, policy valid, . .S. C. 729
to be made payable to holder of warehouse receipt, Minn. 430
recovery of, by owner from insurers will defeat his action against the
warehouseman for breach of contract to insure, Tenn. 757
penalty for burning property to injure insurer, Wis. 817
where storage free implied contract of, teryninatcs Minn. 440
when preyniums not recoverable ivhere delivery delayed, Ala. 9
effect of failure to make proof of loss within time stated in policy, Ky. 279
facts constituting sufficient evidence of loss, Ky. 278
INTEREST,
allowance of in discretion of jury, when, Ky. 278
allowed from date of demand in case of conversion, .... Ga. 113, .V. Y . 586
rate of, on loans on warehouse receipts, N. Y. 552
demand loans of S5,000 and upwards maj-- bear an}' interest, N. Y. 557
INTERPLEADER. See also PLEADINGS.
when right to exist in case of disputed title, Ga. 105
bailee cannot compel third party to interplead, N.J. 548
warehousemen cannot compel various claimants of the title to stored
property to interplead, .V. 1". 571
INTOXICATION,
evidence as to, of watchman receivable, Mass. 347
INVENTORY,
to be made where unclaimed property sold,
Mich. 363, 364, Nel>. 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, <Va. 100
LANDLORD AND TENANT ACT,
does not apply where contract made regarding crops, Tex. 707
LARCENY,
removal of property by warehouseman, ^ «• ""^^
failure to deliver on demand declared to be, penalty, S. D. 730
wrongful conversion by bailee declared to bo,. . .N. H. 541, Ore. 080
890 INDEX.
References to laws are printed in roman. Those to decisions are in italics.
LARCEKY—Contimied. page
embezzlement by bailee constitutes, Ind. Terr. 210
opening packages by bailee constitutes, Conn. 78
failure to deliver grain on demand, X. D. 616
by night from warehouse, Me. 31 1
embezzlement from warehouse deemed, Mich. 368
by employee of icarehouseman, G'a. 123
by assistant foreman, form of embezzlement, Cal. 62
from warehouses, penalties, 'Wis. 817
of warehouse receipt, indictment for, Minn. 444
LAW MERCHANT,
warehouse receipts not go^•erued by, Ala. 16
LEAF TOBACCO. See also TOBACCO.
provisions regarding the weighing of, Va. 793
oath to be taken before weighing, Va. 793
LEAKAGE,
warehouseman not liable for, Cal. 58
LEGAL PROCESS,
seizure of property under, discharges bailee, Miss. 451
bailees not liable for property taken by, Pa. 692
LESSEE,
liability of, when acting in capacity of agent and individually,. .Ga. 107
LETTER,
from warehouseman offering to compromise case, not proper evidence,
Mass. 347
LIABILITY,
commences upon receipt of goods, Ark. 31
of warehouseman, when it attaches, S. C. 727
of warehousemen coextensive with possession, Mass. 340
of warehouseman for violation of warehouse act, Conn. 75
for violations of laws pertaining to tobacco, Kv. 269
of warehousemen not to be limited, 111. 133
limitation of, prohibited, Tia. 293
of depositor for storage charges, Mass. 338
common-law liability cannot be restricted, Ky. 259
bailee's, affected by u.^age, Tenn. 753
if sample be mutilated or false weights used, Ky. 267
of warehouseman cannot be lessened by designation as commission
merchant, Ky_ 274
of warehousemen and carriers not affected by warehouse receipts
and bills of lading, when, Wash. 801
extent to which bailees may limit, Tex. 766
a valid stipulation limiting same, Cal. 48
INDEX. ,S1>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/<i/u-/..
LIEN — Continued. i'aoe
sale under, manner of, D ^f (; j^jj
possession essential, rule stated, \'(./, 537
vendor's lien superior to warehouseman 's, [,;, -u,)',
when sheriff stores goods, irarcliouscman jrrotected, M,,. ■}<);{
of warehousemen on unclaimed or pcrishaljje property,
la. 21'), Mini,. 37S
where a purchaser takes loith notice of, irarrhounrma II protected A'. >'. r>77
warehouseman's superior to chattel m<jrtp;aj;e, when,
Mich. 354, N. Y. .%:}, Wyo. S35
of irarehouseman, when superior to unrecorded chattel mortgage, \. Y. 57G
warehouseman's subordinate to a chattel mortgage, when
Mo. 493, .V. }'. -)7()
warehouse receipt must contain notice of, Ind. 194
if on stored property must appear on warehouse receipt, Ky. 250
not lost by fraudulent issue of receipt, ///. 1 (jo
is not subject to attachment as property of icarehouseman, ///. 1G7
bailee cannot create, as against bailor, Mc. 31 3
existence of, will not justify conversion, Mich. 3GS
does not extend to persons employed by bailee, Fla. 9o
ivhat constitutes waiver of, 1 rk. 30, Cal. 54
may be terminated by tender of amount due, Mo. 493
LIMITATION,
of time within which erection of warehouse, on railway's ripht of
way must be begun, Minn. 420
LITTLE FALLS,
made a terminal point, Minn. 402
LIVE STOCK,
is perishable property within meaning of statute, Ohio, 633
LOADING,
warehousemen liable for, when, N . \' . 563
LOANS,
demand loans of $5,000, and upwards may bear any interest. .N. Y. .557
LORD'S DAY. See also SUNDAY.
business on, prohibited, Mf 312
LOSS OF GOODS. See also LOSS BY FIRE; LOSS HY THEFT;
LOSS BY WATER, etc.
LOSS OF GOODS,
warehouseman need not show jyreci.<ie manner of Mans. MH
proof that it occurred irithoui fault of irarehouseman .s(///ir»>H^. 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<je
iva7-ehou.seman's liability in cafse of A';/. "272
burden on plaintiff to show warehouseman'. >< 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.<i. 451
will be presumed against depositarj' if he fails to explain injury
to goods, Cal. 36
a bailee for hire ansirerable for ordinary 7icgl>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,<is. 3-13
must be indorsed on back of warehouse receipt,,
Cal. 38, 43, OUla. OGl, S. Dak 737
PARTNERSHIP,
delivery to a partner constitutes delivery to firm, Ala. 9
PENALTIES,
for violation of warehouse act,
Ariz. 23, Cal. 39, Colo. 68,111. 138, Ind. 190, la. 214, Kv. 257,
La. 294, Mich. 356, Minn. 414, Mo. 458, 471, X. J. 545, N. d!
617, Ohio, 633, Ore. 678, Pa. 690, R. I. 710, S. Dak. 739, Tenn.
752, Wasli. 799
for violation of warehouse act, ivarehouseman held liable, la. 218
for violations of certain provisions of warehou.se act,
Okla. 667, Va. 780, 791, Wyo. 833
for failing to make any report required by warehouse act, .... Xeb. 527
for charging higher rate for storage of cotton than that allowed by
law, S. C. 725
for delivery of goods when negotiable bills of lading or receipts
outstanding, S. Dak. 748
for transaction of warehouse business without a license,
111. 130, Kan. 240, Ky. 260, La. 291, Mo. 455, 462, Xeb. 511,
Okla. 658, S. Dak. 733
for issuance of fraudiilent bill of lading,
Neb. 532, X. Y. 559, X. D. 621, Ohio, 635, S. Dak. 746
for issuance of fraudulent warehouse receipts,
Colo. 67, 111. 145, 157, Ind. 193, la. 218, Me. 312, Ma.ss. 335,
Mich. 369, Minn. 380, Mo. 466, Mont. 501, Xeb. 508, 524, 533.
N. Y. 559, N. D. 621, Ohio, 636, Okla. 662, Ore. 681, S. Dak.
746, Va. 780, Wash. 803, Wis. 820
for unauthorized sale of property by warehousemen or carriers,
X. Y. 560
for forgery of warehouseman's signature, Ma.-vs. 335
for fraud committed through warehouse receipts, Xeb. 5;j-l
for fraudulent sale or pledge of warehouse receipts Va. 792
for improper issuance of duplicate receipts or bills of ladiiiir, Md. 317
for destruction or alteration of warehouse receipt Wis. 823
for issuing unmarked duplicate warehouse receipts, Mont. 502
if receipt holder fail to comply with terms thereof Md. 319
for failing to have notice of advances appear on warehou.'ic receipt,
Minn. aSO
for fraud on part of one holding advances against property- rci)re-
sented by warehouse receipts, ^^<^■ •'^19
for disposing of receipt without disclosing attachment, Me. 309
904 txDE5^.
References to laws are printed in roman. Those to decisions are in italics.
TEN AhTIES—C ontinued. page
none provided for failure to place brands on warehouse receipts, III. 145
for the false branding of tobacco, Va. 782
against tobacco inspectors taking illegal fees, Ohio 639
for division of fees by samplers of tobacco, Va. 787
imposed upon samplers for dealing in tobacco, Va. 785
for neglect of duty by tobacco inspectors, Ohio, 639
for speculation by tobacco inspectors, Ohio, 638
against appropriation of samples by tobacco inspectors,. . .Ohio, 641
for failure of sampler to keep record of reprised packages ot to-
bacco, Va. 790
for violation of provisions respecting weighing of leaf tobacco, Va. 793
for violation of certain laws relating to tobacco, Va. 789
for delivering tobacco without order of owner, Va. 784
for failure of proprietor of tobacco warehouse to give bond, Ohio, 643
for violation of laws pertaining to auction sales of tobacco, . . .Ky. 270
for altering marks of tobacco inspectors, Ohio, 639
for placing in packages other substances than tobacco, .... Ohio, 642
for failure of tobacco inspector to attend, ]\Io. 481
for unauthorized inspection of tobacco, Mo. 484
for receiving tobacco without owner's consent, Va. 790
for sending tobacco to wrong warehouse, Va. 790
for illegal receipts by samplers of tobacco, Va. 784
for nesting hogsheads of tobacco, Ky. 269, Va. 789
for use of false brands on tobacco, Va. 789
for not delivering tobacco on demand, Va. 785
for neglect of duty of grain inspector, Minn. 396
for bribery of those in grain inspection service, Kan. 237
upon carrier for failure to deUver grain, III. 149
for permitting grain to be delivered when receipts not cancelled. 111. 146
for removal of grain when receipt outstanding, Ind. 193
for attempting to influence grain inspectors, III. 143
for neglect of inspector or weigher of grain, Ky. 266
for violation of grain inspection law by inspectors, Kan. 236
for delivering grain without authority of owner or for mixing dif-
ferent grades, Minn. 383
for coloring grain, or sale thereof, Minn. 420
for acting as inspector of grain v/ithout authority, Minn. 396
for unlawful breaking of seals, Minn. 405
for fraudulent weighing of grain, Mo. 480
for assuming to act as grain inspector, Mo. 473
for malfeasance of inspectors of grain, Mo. 473
for carrier refusing to receive grain, etc., Mo. 488
for misconduct of grain inspectors, Neb. 522
against bogus grain inspectors, Neb. 522
for neglect or fraudulent conduct of grain inspectors, Okla. 669
for failure to deliver grain on presentation of receipt Ky. 262
for keeping inflammable or explosive fluids, R. I. 708
INDEX. oo:,
Referenc s to laws are printed in roman. Thouc to decisions arc in italics.
FENATIES—Continucd. ,.^Qg
which town councils may inflict for violalioii of l.iw ir Mnliir^
storage of kerosene, 1 ; ( 711
for mcddUng with ofiicial brands on kerosene c:i.sks, i; I 710
for putting uninspected kerosene in branded casks, \l I 710
for removal of goods without consent of receipt holder, 111. \r>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, ]<y 'j.")?
"REGISTERED FOR CANCELLATION."
warehouse receipts must be, when, III. mq
REGISTER OF DEEDS,
declaration must be filed with, before warehouse receipts may be
issued, Wis. 821
REGISTRAR. See also WAREHOUSE REGISTR.Ur
appointment, removal, qualifications and compensation of, ..Ky. 262
daily reports to be made to, by public warehousemen, Minn. 390
secretary of railroad and warehouse commission to be, . . . .Minn. 3{M)
daily statements to be made to, Ky. 202
REGISTRATION,
of warehouse receipts or certificates by party is.suing them. . . Wi.s. S22
REMEDIES,
civil, in addition to the penalties in warehouse act, .\ld. 318
REMOVAL,
of inspectors of grain and othcs from oliico, iicw made N«'b. .'JIS
goods must not be removed without the written coii.scnt of the
holder of receipt, Vriz. 22. Cal. M
916 INDEX.
References to laws are printed in roman. Those to decisions are in italics.
REMOVAL — Contintted. page
of inspector of grain, Minn. 396
of members of board o' appeals by the governor, Minn. 425
REMOVAL OF GOODS,
prohibited unless consent of the receipt holder be obtained, ....
Cal. 42, 111. 158, Mo. 457, N. J. 544, Ore. 677, S. C. 717, S. Dak.
748, Wyo. 832
by warehouseman without written consent of owner prohibited,
Kan. 227
prohibited unless receipt surrendered,
Del. 84, Ind. 193, 196, Iowa, 213, Ky. 256, Md. 318, Mich.
355, Tei n. 751
without consent of owner, conversion, Tenn. 753
warehouseman liable if he permits the removal tvhile receipts out-
standing, Ohio, 654
duty as to, where bonded warehouse on fire during night-time, . . . Ky. 277
penalty for improperly permitting same, Moi.t. 502
place of storage may be changed, Conn. 78
if wrongfully done by warehouseman it is larceny, Va. 779
when by operation of law parts of warehouse act do not apply, S. C. 718
when warehouseman authorized to remove grain, Neb. 520
indictment for doing so unlawfully, requisites of, Mo. ^^98
may be made for preservation of, Kan. 24,1
bailor's right of, Ga. 114
agreement to give notice of, effect of failure, Minn. 437
RENT,
to be paid samplers of tobacco, rate of, Va. 786
to be paid by warehouseman for use of part of carrier's right of
way, Minn. 419
to be paid railways, how determined, N. D. 618
REPAIRS,
when property left with mechanics for repairs may be sold, . .S. C. 724
REPLEVIN,
prior demand not necessary, Del. 85, Te7in. 755
when bailor cannot maintain, Miss. 451
owner may maintain, for bailed property, Me. 313
warehouseman may maintain for goods, when, Mich. 359
bailee may maintain, jlf o. 494
when it will lie where goods commingled, III. 168 171
when grain has been mingled and subsequently divided, TT'^'s. 827
will not lie where grain has been commingled, N . D. 625
writ will be quashed when storage not paid, D. of C. 89
tender of storage due not necessary before replevin brought, wJien,
D. of c\ 88
storage charges must be paid before it will lie, Ark. 31
INDKX. .(jY
References to lait^ are printed in roman. Those fo .Irrisu.,,. „o ;., Holies.
REPLEVIN— Continued.
tender of charges must be made before action brought K„n ' oyi
burden of proof where there is a breach of l,ond,. .' .'.'.".'.". .///' J";!*
breach of bond in, . _
cannot be maintained by holder of false warehouse rccei pi, IJ-,,' .s3l
will he for property delivered by mistiike, .' . p,/ ,•,,,.>
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.<<e Ga. 109
924 INDEX.
References to laws are printed in roman. Those to decisions are in italics.
STORAGE CUARGES— Continued. page
promise to pay not toithin statute of frauds when, Ala. 12
if entitled to, lien attaches, TT yo. 837
continue when warehouseman holding under his lien, S. C. 728
lien for general balance due, when, S.C. 728
lien for, superior to chattel mortgage, Wyo. 835
lien for, superior to rinrecorded chattel mortgage, iV. y. 577
when lien for, subordinate to chattel morlgcge, Mo. 493, iV. Y. 576
lien for, distinguished from lien for freight, Minn. 436
lieii for, revives with regained possession, Mich. 372
lien on balance of goods after partial delivery, Mass. 343
recoverable where no agreement as to temperature of storage rooms.
Conn. 79
there must be some act of possession by transferee of receipt to hold
him liable for, N.Y. 592
when not earned until storage completed, N.Y. 573
ivhen carrier storing goods not liable for, R. I. 712
when contract an entire one, pro rata charges cannot be recovered, Cal. 53
not earned where property ruined, N.Y. 584
if goods destroyed, must be paid to date of destruction, Ala. 12
when they will exceed value of property, Mass. 337
surrender of warehouse receipt by pledgee to guarantor; liability of
latter for charges, N.Y. 592
rate of, must be stated on warehouse receipts, S.C. 716
no implication to reduce, on account of insurance, N.Y. 574
against unclaimed property, la. 215
assignee of icarehouse receipt assumes the same, Ill, 166
what held to be sufficient notice on warehouse receipt of non-payment
Minn. 439
judgment for, not a bar to an action for conversion, N.Y. 569
overcharging by railroads, penalty, S. C. 723
lien on freight for, when, Ohio, 632
on freight to be filed by railroad commission, S.C. 722
if agent stores goods as his own, personally liable for, Ga. 105
sheriff liable if he alloics goods to be sold for, Cal. 54
when goods stored by sheriff, warehousemen entitled to, regardless of
termination of suit Mo. 493
for cotton fixed by statute, S.C. 722
tobacco warehousemen entitled to, after three months, Ohio, 641
amount to be paid samplers of tobacco for, Va. 786
warehouse fees for tobacco limited by statute, Mo. 486
receipts from bonded warehouses must state, Ga. 97
depositor liable for storage charges, bonded warehouses, Ga. 101
SALE FOR.
when warehousemen have right of, X. C. 604, S. C. 719
when may be made, manner of, etc.,
Cal. 40, D. of C. 86, Me. 310, Mass. 336, Mich. 356, Miss. 448,
Mo. 455, N. Y. 546, 553, R. I. 706
INDEX. <)^),-
References to laws are printed in roman. Those to decision arc in italics.
STORAGE CHARGES-Conlinued. ,.^,.,.
notice of, how given,
Cal. 54, Ind. 202, la. 216, Ky. 258, Mass. 33s,"Mirh. •157,
R. I. 707, S. C. 7 HI, \Va.sli. .S02, Wyo! S3J
question as to notice given, etc., for junj, /a -jKi
provisions concerninp;, j ^^ .„jr
of different kinds of property, when it may be made Wa-sh. H()2
record cf sale to be kept, ;^Ij,.|, ;jr^
// made without not'ce constitutes conversion, N . Y. 508
must be made within reasonable time after expiration of year, . . N. Y. hlTy
warehouseman's right to sell may be modified bjj agreement, .V. 1'. 575
lien holders may purchase, W'vo. s:i5
clerk and crier may be appointed by lien holder, Wyo. s:}5
liability for, when improperly made, Cal. 53
bill of sale to be given, W'vo. 835
oath and duty of appraisers, Wvo. .S3 1
appointment of appraisers, W'vo. S33
depositor liable for any deficiency after sale,
Mass. 338, S. C. 721, W'yo. 835
disposition of proceeds,
Conn. 77, la. 217. Ky. 258, La. 295, Mass. 337, N. Y. 5.')5,
X. C. 604, R. I. 707
when proceeds in,snfficient, depositor liable, N. C. (MM*
application of proceeds, W'asii. ,S02
adjournment of, \\'\o. 835
must not sell more goods than required to pay charges and costs, Minn. 435
penalty if made in unlawful manner, X. C. 605
disposition of surplus, X. C. 605, S. ('. 720
owner may recover surplus, when, Mich. 3.58
surplus to be paid to covmty treasurer, Midi. .3.')8
procedure in case of perishable property, la. 217
bonded warehouses, Ga. 98
redemption before sale, X. Y. 554
STORAGE CONTRACT,
loarehouseman has right to terminate, ///. 1 68
inability to store amount of grain offered, effect, ///. 167
STORAGE FEES. See STORAGE CHARGES.
STORAGE RECEIPTS. See also WAREHOUSE RECEIPTS.
what constitutes issuance of, Md. 31(»
declared negotiable by statute, Md. 316
SUBPCENA,
failure to obey, of board of railroad and warehouse comnii.-4sloiiers,
penalty, M" 477, Okla. 763
SUBROGA TION,
where insurance company deprived of the right of, by haac, jwliry
valid, S. C. 729
926 INDEX.
References to laws are printed in roman. Those to decisions are in italics.
SUBROGATION— Continued. page
doctrine applies when warehouseman has paid third person his ad-
vances on goods, N. Y. 568
SUBSTITUTE,
of chief inspector of tobacco, appointment and oath of, Md. 323
SUBSTITUTION,
of property pledged, Minn. 437
if other property substituted when receipt is pledged lien is lost, . . Wis. 831
a fraud to substitute other property for that stored, III. 170
pledgor of receipt has equitable lien where other property substituted,
III. 170
of other goods ichen receipt outstanding held not contrary to law, N. Y . 593
a contract for substitution of other property held not contrary to law,
N. Y. 579
SUIT. See also ACTION.
against warehousemen to be in the name of the people, 111. 155
on warehouseman's bond, when, 111. 144, Neb. 523
qui tarn actions under warehouse act, 111. 155
attorney general and state's attorney to prosecute, III. 155
by railroad and warehouse commission, 111. 152
SULPHURIC ACID,
care to be exercised in the storage of, Ore. 684
SUNDAY. See also LORD'S DAY.
warehouses not to be kept open on, Mich. 365
SURETIES,
suspension from exchange no defense for, Ky. 273
that loarehouse business a monopoly no defense for, Ky. 273
on bond released where sale for duties postponed, N. Y. 572
SWINDLING,
by warehousemen, penalties for, Ind. 197
TAMPERING,
with stored grain prohibited, 111. 141
TARE,
no allowance for, in cotton to be made, S. C. 724
to be deducted from gross weight, Mo. 483
TAX,
on tobacco warehouses, graduation of, N. C. 608
not to be imposed upon auction sales of tobacco, when, Ohio, G36
on grain elevators, Tex. 765
notice of unpaid, must appear on xvarehouse receipt, Conn. SO
TAXABLE DEBT,
stored goods are not, until demand and refusal, Ga. 106
INDKX. <.(li7
References to laws are printed in roman. Those to decisions are tn ilalica.
TEMPERATURE. See also COLD STORAGE. paob
agreement as to, in cold storage contracts, erroneous instruction,. .III. 172
TENANTS IN COMMON,
owners of commingled grain are, la. 219, Ind. 203, Minn. KW
TENDER,
by elevator receipts, valid, Mich. 374
may be made by warehouse receipt, .V. Y . TM)
of storage charges may be icaivcd by trarchouscnian, Minn. 135
of damages .or land condemned for warehouse site, how made,
S. Dak. 7ir,
TERMINAL POINTS,
warehousemen to furnish pohce protection at, Minn. 105
act making Fergus Falls a, Minn. 101
act making Little Falls a, Minn. 402
act making New Prague a, Minn. 429
act making Saint Cloud a, Minn. 400
act making Willmar a, Minn. 429
act making Winona a, Minn. 401
TERMINAL INSPECTION,
application for service, how made, etc., Minn. 428
TERMINATION OF DEPOSIT,
depositary may terminate upon reasonable notice, Cal. 3G
THEFT. See also LOSS BY THEFT.
sale by a depositary constitutes a, I-o. 299
THIRD PERSONS,
where right acquired by, in thing bailed, bailor cannot revoke bailment,
Md. 327
loss of goods occasioned by, bailee may recover for, Conn. 78
TIMBER LIENS,
identification of property not required in cases of Wyo. 836
to be paid pro rata, ^^ yo- 836
TITLE. See also BAILEE.
IN GENERATj.
bailee has no better title than his bailor, Ala. 10
when none in depositor, Colo. ()9
bailee cannot confer, ''• of C. 88
of goods in issue, warehouseman not to be made defendant, D. of C. S7
dispute as to, the right to interplead, T/a. 105
there must be some as.'<ertion of, to constitute conversion Cal. 49
bailee cannot acquire title adverse to bailor, "'•"'• •*'''•''
warehouseman not guarantor of title of his depo.'iitor /-« 29j>
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 " -<M
nesting prohibited, penalty, ."' I
nesting and .sido-priziag forbidden, penaltv,. . k'!' .',!!!
penalty for u.se of false brands, ... " x' XZ
' \ 11 7tS'l
repnsnvg of packages, record of, penalty for failure to keep ." ." Va' 7'MJ
when .shipped, record of to be kept by conunandcr of ve^se' V-.' iIh)
sales of, to I>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 on carrier's right
of way, Minn IIS
of action to acquire warehou c site on railway, S. I)ak 713
objection must be made at, that receipt not indorsed to plairUiff, Mi> •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 <h;cinona are in ilalirji.
WAREHOUSE ACT —Continued. page
bonds given under, to be filed with state auditor S. I)uk. 7IW
warehousemen lial)lo on limid for violation of,
Neb. Wl\, N. ('. m-l, Ok la. 007
does not apply when goods removed by operation of law,
N J. 54G, N.D. OJ:i, S. C. 71S, S. Dak. 74S
sections imposing pcnaJtics for fraud, germane to sidijrrl of art, Mo. I'.JS
ivhen portion of, concerning irarchouse receipts dms not appli/, Mo. I'.Mi
construed and held to be penal in character, Minn. 410
notices under, rule governing, Wa.sh. K():{
producers not bound l)y provisions of, S. Dak. 710
declared to be retrospective, Minn. :JS0
duties and powers conferred thereby devolve upon ooinmi.s.sioners
of railroads, ^ • ' * '•' -^
requisites of loarehonse recei})ts prior to pa.fsage of, (Jre. (iS4
section prescribing maximum rales, construed, A . 1 . S.'j7
does not impair any rule of board of trade or law affecting ware-
house receipts, " '^- ^-"'
extends to grain stored in elevators and petroleum in barrels, Pa. GOO
held constitutional as not embracing more than one subject,
III. 182, Ore. GSG, Tcnn. 7G0
penalty for failing to make any report, required by, Neb. 527
prosecutions under, to be in name of the state,. . .Mo. 478, Nel). 528
penalties for violation,
Colo. 68, Del. 84, Ky. 257, La. 294, Mich. 35G, Minn. as4,
N. J. 545, N. D. G17, Ohio, G33, Pa. 690, R. I. 710. S. Dak. 739,
Teun. 752, Ore. 678, Va. 779, Wa.sh. 799, Wyo. 833
violations a misdemeanor,
Minn. 414, Mo. 458, 471, N. Y. 556, Okla. 667, S. Dak. 739
prosecution of violations of, how made, S. Dak. ..is
attorney general and county attorney to pro.secute suits under.
Neb. 527
board of commissioners to cause violations of to be prosecuted.
t)kla. 671
duty of board of transportation to enforce, • >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— Con<mw«d. page
license revoked if guilty of negligence, Mo. 470
WAREHOUSE RECEIPTS. See also BILLS OF LADING; STORAGE
RECEIPTS.
IN GENERAL.
defined by statute, Ariz. 21, Wash. 797
statute defining, construed, WasJt. 797
defined, Cal. 59
what is not, Tenn. 757
what two things they represent Ind. 206
warehousemen required to give, Ala. 1, Kan. 241
when to be issued, Ind. 185, Kan. 228, Md. 310, Mo. 464
when not to be issued Va. 791
act governing the issuance of, III. 146 , La. 290
statute requiring issuance of, construed, Ore. 676
must be issued by one regularly engaged in the icarehouse business,
Cal. 59, Md. 330, N. Y. 596, Pa. 702, Wash. 807, Wis. 828
issued by one not warehouseman and when goods not stored^ void,
III. 180
who besides warehousemen may issue, la. 211, Wash. 797, Wis. 821
manner of issuing, 111. 132, La. 292
classified by statute, Cal. 38, 43
tcarehouseman's obligation upon, III. 180
transfer of a symbolic delivery of the property, Tex. 770
illustration of what held not to constitute, Md. 317
form of, Ariz. 21, Wash. 798
issued for grain, form of, Ky. 260
need not be in any particular form, Neb. 538
what must be stated on, .
Ariz. 21, la. 211, Kan. 228, Minn. 380, Mo. 464, N. C. 603,
N. D. 615, Okla. 660, S. Dak. 733, S. C. 716, Tex. 762, Va. 779
what they must contain, Mo. 497
not to be issued unless property actually in store,
Ala. 1, Ark. 25, Cal. 37, 41, Conn. 74, Del. 83, Ind. 186, 194,
la. 213, Kan. 227, Ky. 255, 256, 261, La. 2S6, 292, Md. 316,
Mich. 355, Mo. 456, N. J. 543, Okla. 661, Pa. 688, S. C. 716,
Tenn. 751, Tex. 762, 763, Va. 778, 791, Wash. 798, Wis. 823, Wyo. 832
warehouseman must have possession of property when receipt issued.
Pa. 702
warehousemen must give, upon receipt of property, Ore. 676
effect of issuance when goods not actually in store, N . Y . 588
may be signed by an agent, Wis. 813
authority of superintendent to issue, Ga. 118
issued by superintendent to owner of a factory are not, N. Y . 596
railroad companies authorized to issue, Ohio, 634
issuance of, when another outstanding, prohibited, Ind. 195
warehousemen's duty in regard to, Kan. 229
INDKX. (»;17
References to laws are printed in roman. Those to dccixium an in Halirn.
WAREHOUSE RECEIPTS in r.KSKn.Ku—ConHnur,!. pa.jk
must be given by tobac-eo wureliouseim-ii wlieii tdbaccn ik-liveru*!,
Ohio, (vn
when distiller may issue, K v. 27 1
construction o/, as- slunring xvhethcr Iraimarlion n bailmrnl or xalr,
Ohio, 040
written parts of control jyrinlcd, Minn. 410
valid sale of part of commingled grain by dclivern "f receipt,. .S . Y . 578
where goods commingled warehouse receipt to stand for |Mirtioii of,
N.C. W)3
title to property passed by transfer of N. C. 603
exemptions in, will not cover negligence, .Minn. 43S
required to be surrendered if property taken under legal pr«K-es.s,
Ala. 2
penalty for disposing of without disclosing attachment, Me. 309
penalty for disposing of after attaciiment, Mjlhs. '.Mirt
notice that purchase price unpaid must appear on,. .Conn. SO, K'j. 2S1
issuance of, without knowledge of cutvatices against the })roj>ert]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.<<rman lialde,
hid. 20S, Ohio, 654
refusal to deliver when receipt oul.stcinduKj, Cal. 00
holder of, must give written consent before goods release*! hy
warehouseman, Wash. 799
to be surrendered and cancelled when goods delivered,
111. 133, 134, Ind. 1st), Kan. 242, La. 2S(), Minn. 3.S7, Mo.
466, Neb. 513, N. D. 623, Okla. 062, S. C. 717, S. Dak. 737,
747,Tenn. 7.')1, Va. 77s. Wis. 816
to be marked "Registered for Collection" when grain delivered,
Nel). 530
if cancelled must be so marked, Ky. 260
delivery upon, without notice of claims, .V. }'. 595
when rights or o!)Hgati()ns of wareliousemen not altered i)y, .Vriz. 24
liability upon, not to be limited by any language in,
111. 134, Kan. 243, Ky. 262, La. 293, Minn. 38S, Mo. 460, Neb. 514,
N. D. 615, Okla. 662, S. Dak. 733, Tenn. 752, Tex. 703
where property delivered by, attornment not necessary, Mo. 497
penalty for forging or altering, Ore. (i>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>o<is, Mass. 348
notice to be given holder of when another demands the goods, N. Y. 501
extension of loan sufficient consideral on for issuance, Ky. 282
void if transferred pursuant to gambling contract, la. 223
effect of transfer of a gambling debt. \la. 16
best evidence of title, ffO- 1 20
must state if cotton is exposed to weather .Tex. 702
goods may be pledged by, • Colo. 70
pledge may be made by a.ssignment of, I>a. 295
by a public warehou.'teman to .'<ccure his own debt, Ind. 207
warehousemen may issue against owti goods, effect, . . . . A'v 279
against irarehouseman's own goods, valid pledge by. Mich. 373
pledge may be made bj/, .ii i«n. 4.W
pledgee may dispose of Ky. 257
penalty for fraudulent sale, or pledge of,
940 Index.
References to laws are printed in roman. Those to decisions are in italics.
WAREHOUSE RECEIPTS in generai.— Continued. page
by warehouseman against his own goods, not a, Mo. 496
must not he issued against his own goods, Pa. 702
holder of deemed garnishee, when, Pa. 691
division and consohdation of, Mo. 465, Okla. 661, S. Dak. 737
indorsement "without guarantee" does not release the indorser from
the implied warranties, Neb. 538
indorsement of, by one since deceased, Ga. 1 17
issued in name of individual where property belong'^ to firm, . .N. Y. 588
full record of to be kept by warehouseman, Ind. 192
must be registered in warehouseman's book, la. 212
pre-existing debt good consideration for transfer, Cal. 59
rights and liabilities of warehousemen not afTected, by when. Wash. 801
a receipt cannot be made a warehouse receipt by being signed by one
as "warehouseman," Wa.9h . 807
mining corporation cannot issue, Ind. 207
interpretation when ambiguous, questions for jury, ]'-a. 794
pledged by warehouseman as factor to secure personal loan, Ga. 118
in name of warehouseman, valid pledge by, Ala. 15
goods may be pledged by, Ga. 112
to be registered by party issuing, Wis. 822
law concerning contents of, construed, S. Dak. 733
purpose of surrender to warehouseman erroneous in-'^truction,. . . .III. 181
estoppel by, III. 170, Minn. 440, .V. Y. 591, Tenn. 758
estoppel by, when no notice thereon as to unpaid purchase price,
Ohio, 652
when warehouseman not estopped by informal receipt, Minn. 443
indorsee estopped by, when, Pa 704
the discount of paper based upon, not considered a loan, when, Mo. 487
forgery of, war houseman jrotected, Cal. 61
penalty for fraud committed through possession of, Neb. 534
a receipt is ued by debtor to secure debt is not, Ind. 208
to bearer may be transferred by delivery, Ariz. 24
if issued in name of warehouseman, one icho takes is not a bona fide
holder, A\ 1'. 596
guarantor who takes up receipt does not thereby assxime accrued
storage charges, N . Y . 592
assignee assumes all storage charges due, ///. 166
right to .'surrender on acceptance of attached draft, La. 306
special agreements governing storage may be made Ore. 680
objection that, not indorsed to plaintiff must be made during the trial.
Miss. 451
if lien on property it must appear on receipt, K}\ 256
by debtor against his own. goods, void as to creditors, Ohio, 651
transfer of, passes all of holder's title, Ariz. 23
valid delivery by, Colo. 71, Ga. 116
allegation of ownership of, held equivalent to allegation of ownership
of property, Cal. 51
INDKX. jm
Refereru^es to laws are printed in roman. Thus^ to .Urision. arc „. UaUcs
WAREHOUSE RECEIPTS ix oexku.m.-C«„/,„„./
a valid tender ma,j be made b>/, /// ,-,. ^. 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.'<I. '
I'"' "". Ii IMl. Wis. ,S22
section of warehouse act to be printed upon, . (^j, 2«)0
authority to sell goods implies authority to issue ncctpt A',/ 279
holder of ineffectual receipt, may reach uarehousemanH assets in
hands of assignee, j^^^ 2s4
is a contract of bailment, j^^'j .^^
penalty if holder fail to comply with terms of ;^i,i 319
penalty for fraud on part of one havin- made advances against "
property represented, "^ ;^j,l 3,9
transfer of, on day of assignor's insolvency, valid, CaL 60
fraudulent transfer a question for jury, f'„/o 7j
larceny of, indictment, insufficient defense Minn. 444
AS COLLATERAL.
property must he actually in .store h fore i.ssiiancp
Conn. 74, Mich. 35.5, Mo. 4r>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.'<titution of other projxrty if unknoicn to pMgce, III. 1 79
Hen lost if other goods substituted H'l'/*. S31
tvhen not i.'isued by a public uarehnuseman, incffrrtunl Maxs. 348
allowing property to he removed when receipt outstanding, N. Y. 504
942 IMDEX.
References to laws are printed in roman. Those to decisions are in italics.
WAREHOUSE RECEIPTS— Con/mwed. page
effect of vendor's lieu in case of, La. 288
when pledge can be sold, La. 288
rights of pledgee in case of default, La. 288
it must be a valid receipt in order to effect a binding pledge, Wis. 830
by warehouseman against own goods, invalid, la. 213
when bank bona fide holder, Pa. 702
protection of pledgee, La. 305
insurance policies to be made payable to holder of receip , . .Minn. 430
in turn pledged by pledgee, original pledgor protected, Wash. 807
pledge by factor, ivhat constitutes notice, Ala. 18
factors may pledge goods entrusted to them, Wis. 828
pledge made by factor, pledgee protected, Ohio, 653
by factor, owner protected, La. 2S9, 304
innocent pledgee protected, Ky. 281
suit by pledgee, ///. 179
pledgee may sell, Ind. 197
chattel mortgage statute does not apply, Wis. 830
without indorsement, effect, Ala. 18, Ga. 117
possession of receipt by warehouseman evidence of fraud, Ky. 283
when person to whom, issued has no title, effect, la 224
taking without indorsement, equities let in, Ind. 208
in legal effect a sale, ///. 179
delivery of goods in settlement of antecedent debt will not def at pledge,
Pa. 703
national bank may take warehouse receipts as collateral, Ohio, 654
pledgee may maintain trover, Wis. 831
when title held to remain in pledgor, Cal. 56
issued against property afterwards sold, ivhen burden on defendant,
Minn. 442
BONA FIDE HOLDER.
protection of, Ga. 118, III. 178, Ky. 283, Tenn. 758
of fraudulent ivarehouse receipt issued by agent, protected,. .S. Dak. 749
if receipt state government tax has been paid, innocent holder pro-
tected, A^ Y. 572
when bank holding as collateral is, Pa. 702
where no notice thereon as to unpaid purchase price, Ohio, 652
protected where goods were never in store, Ky. 281
protected where warehouseman converts property, Minn. 441
protected if warehouseman deliver goods when receipt outstanding, Ind. 208
assignee for creditors is not, Pa. 703
one who takes for a prior indebtedness is not, Ky. 281
one who takes a receipt issued in name of president of ivarehouse
company is not, N. Y. 596
one faking receipt for goods in bond after one year, is not, N. Y. 571
who is, a question for the jury, Neb 538
may maintain action against purchaser of whiskey sold for storage
charges, Tenn. 758
INDEX. 043
References to laws are printed in roman. Tho.<<c to ckcisiom arc in Holies.
WAREHOUSE RECElPTS-Cou/mw^d. ,.^ok
DUPLICATES.
must be so marked,
Ariz. 24, Conn. 75, Ind. isr,, Kan. 220, 212, Ky. 260, La. 292,
Mich. 355, Minn. 3S7, 410, Mo. 457, Mont. 502. N J lu
N. Y. 560, N. D. 622, Okla. 660, Ore. 676, Pa. 6,s<), S. C. 717,'
S. Dak. 747, Tenn. 751, Tox. 762, Va. 778, 791, Wa.sh. 798
effect of is.mance of, A'j/. 2S-1
when warehouseman must is-sue two duplirate roccipt.s Ariz. 21
issuance of, prohibited, '
Ark. 25, Cal. 42, Colo. 67, Ky. 2.-.(;, Wyo. 832
title remains in lialdcr of original, Cnl 50
conditions under which they may be issued, Del. M, La. 2.S7, Md. 317
issuance of, constitutes ac'ual fraud, /v,, 2.S5
may be issued in any nvmiber provided so marked Wash. 801
counsel fees recoverable in an action caused hy issuance of, A';/. 2S5
warehousemen entitled to .security l)efore i.ssuance, Te.\. 762
issued innocently; good defense for warehouseman, Ohio, 655
when issuance of, prohibited, MJ. 317
FRAUDULENT.
false or second receipts, liability upon, \la. 3
issuance of, a crime,
Ariz. 22, Cal. 45, Colo. 67, 111. 127, 1-15, 1.57, Ind. 190, 195,
la. 218, Me. 312, Mass. 335, Mich. 369, Minn. 3S0, Mo. 466,
Mont. 501, Neb. 508, 524, 533, N. Y. 559, X. D. 621, Ohio, 636,
Okla. 662, Ore. 676, 681, S. Dak. 746, Va. 780, Wash. 803, Wi.s.
819, S2G
penalty for forgery of signature of wareliou.seman or indorscr,
Mas.s. 33,5
if through error no penalties incurred Mont. 501
when bailor protected in case of fraudulent issue of, (,'a. 116
effect of inquiries made by holder, A'. 1". 597
issued by president of warehouse company in his own name,. .X. Y. 59(>
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.<i. 831
lien on goods not lost by, ///. 1 (>(>
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
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