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wool to be forwarded to consignees named, were sent by the owner to the consignees, who, relying upon such receipts, accepted drafts drawn against the wool. The wool was attached while in the hands of the storage merchant as the property of the consignor. But it was held that the delivery of the receipts to the consignees vested the title and the possession of the wool in them, and that the wool was not liable for the consignor's debts, or if so liable, was first subject to the consignee's lien for advances. The delivery of the symbol of the property was as effectual as an actual delivery of the property itself.
Of course the assignee of a warehouse receipt having both title and possession, has the right to maintain an action for the conversion of the property, or for the recovery of it."
Even if the person issuing a receipt for merchandise is not a public warehouseman, the delivery of his receipt is by custom a symbolical delivery of the goods described in it, and the possession of it is equivalent to the possession of such goods so far as they are in esse at the time the receipt is given.'
§ 280a. A contract of storage is an essential element of a warehouse receipt. This receipt can only be issued by persons who pursue the calling of storing goods as a business of profit. The receipt is a written contract between the owner of goods and a warehouseman, whereby the latter is to store the goods and the former is to pay for that service. The contract need not be formally complete, for some of its terms may be implied, but the instrument must in some way show or indicate clearly that a contract of storage has been entered into."
1 Davis v. Bradley, 28 Vt. 118, 24 Vt. 55, 65 Am. Dec. 226; Bryans v. Nix, 4 M. & W. 775, is a similar case. Also Broadwell v. Howard, 77 Ill. 305.
Hale v. Milwaukee Dock Co., 29 Wis. 482, 9 Am. Rep. 603; Shepardson v. Cary, 29 Wis. 34, 42; Bucher v. Commonwealth, 103 Pa. St. 528, 534; Franklin Nat. Bank v. Whitehead, 149 Ind. 560, 49 N. E. Rep. 592.
5 Sinsheimer v. Whitely, 111 Cal. 378, 43 Pac. Rep. 1109; Lowrie v. Salz, 75 Cal. 349, 17 Pac. Rep. 232; Bishop v. Fulkerth, 68 Cal. 607, 10
2 Harris v. Bradley, 2 Dill. 284; M'Neil v. Hill, 1 Woolworth 96; First Nat. Bank v. Bates, 1 Fed. Rep. 702; Bank of Newport v. Hirsch, 59 Ark. 225, 27 S. W. Rep. 74. 3 Montgomery v. American Trust & Pac. Rep. 122. Sav. Bank, 71 Ill. App. 20.
Weighing tags given by a company that makes no charge for storage, which only show the weight and number of sacks of beans weighed on the company's scales, for the person named therein, are not warehouse receipts, and the transfer of such weighing tags to a pledgee thereof does not transfer possession of the beans, and they may be attached by a creditor of the pledgor.1
§ 280b. Receipts issued by a warehouseman or other person not openly engaged in the storage of goods for hire are not warehouse receipts which by custom represent the property described therein, and the assignment or indorsement of which is regarded as a delivery of the property itself. The fact that a receipt which is to have the effect of a warehouse receipt was executed by a person or company engaged in the business of storing property for a compensation, must be affirmatively shown by evidence.' The delivery of storage certificates representing pig iron by a furnace company engaged in smelting iron ore and making pig iron, and not engaged in storing such iron for others, is not a constructive delivery of the iron described in the certificates to one who has in good faith taken the certificates in pledge.*
§ 281. A warehouse receipt, at common law, is not, in a technical sense, a negotiable instrument, although the property be made deliverable to "order" or "assigns. The re
1Sinsheimer v. Whitely, 111 Cal. 378, 43 Pac. Rep. 1109; Carthcart v. Snow, 64 Iowa 584, 21 N. W. Rep. 94. In this case the weighmaster's ticket had the word "stored" written upon its face. See, also, First Nat. Bank v. Young, 20 Wash. 337, 55 Pac. Rep. 215.
2 Bell & Coggeshall Co. v. Kentucky Glass Works Co., 20 Ky. L. Rep. 1089, 48 S. W. Rep. 440; Geilfuss v. Corrigan, 95 Wis. 651, 70 N. W. Rep. 306, 37 L. R. A. 166; Shepardson v. Cary, 29 Wis. 34; Bucher v. Commonwealth,
103 Pa. St. 528; People's Bank v. Gayley, 92 Pa. St. 518; Farmers' & Mechanics' Nat. Bank v. Lang, 87 N. Y. 209; Yenni v. McNamee, 45 N. Y. 614; Union Trust Co. v. Trumbull, 137 Ill. 146, 23 N. E. Rep. 355, 27 N. E. Rep. 24.
Shepardson v. Cary, 29 Wis. 34. Geilfuss v. Corrigan, 95 Wis. 651, 70 N. W. Rep. 306, 37 L. R. A. 166. That the pledgee acted in good faith does not avail to make a pledge effectual in the absence of a delivery of the property either actual or constructive.
ceipt merely stands in place of the property it represents, and the delivery of it has the same effect in transferring the title to the property as the delivery of the property itself. The delivery of the receipt does not transfer the contract so as to enable the assignee or indorsee to maintain an action upon it in his own name. There is no privity of contract between the warehouseman and the assignee. The assignee occupies no better position, as regards the warehouseman, than his assignor had. Therefore where a warehouseman by mistake issued to the owner at different dates, two receipts for the same property, both of which he assigned as security for loans, and the assignee of the receipt first issued having recovered the property in replevin from the assignee of the other receipt to whom the warehoseman had delivered it, in a suit by the last named assignee against the warehouseman to recover the value of the property, it was held he could show the mistake as a defense to the action. The owner acquired no rights against the warehouseman by virtue of the second receipt, and he could give no rights by an assignment of that receipt.
In another case a warehouse receipt was delivered to a purchaser of the goods, who subsequently, for the purpose of having the goods repacked by the seller, indorsed the receipt in blank and delivered it back to him. The latter thereupon, in contravention of the purpose for which the receipt was delivered to him, pledged it to a bank for a loan; but it was held that although the bank acted in good faith it did not acquire title to the property represented by the receipt, as against the purchaser, who might, notwithstanding such transfer, maintain replevin for the property.
1 Burton v. Curyea, 40 Ill. 320, 89 Am. Dec. 350; Western Union R. Co. v. Wagner, 65 Ill. 197; Solomon v. Bushnell, 11 Ore. 277, 3 Pac. Rep. 677; Shaw v. Merchants' Nat. Bank, 101 U. S. 557; First Nat. Bank v. Boyce, 78 Ky. 42, 39 Am. Rep. 198; Canadian Bank v. McCrea, 106 Ill. 281.
2 Second Nat. Bank v. Walbridge, 19 Ohio St. 419, 2 Am. Rep. 408.
§ 282. There is a distinction between the quasi-negotiability of such receipts given by custom, and the full and complete negotiability given in some states by statute. Under such a statute warehouse receipts are, for the purposes of title, as negotiable as promissory notes or bills of exchange. Under all ordinary circumstances there is an imperative presumption of title and power of disposal in the holder. A factor holding such receipts in his own name or as indorsee is conclusively presumed to hold them as owner, with unlimited power of disposal. He can bind his principal, contrary to his instructions, by pledging them, exactly as at common law he might bind his principal by pledging securities negotiable at common law.1
§ 283. In several states warehouse receipts are declared by statute to be negotiable, and transferable by indorsement in blank or by special indorsement, in the same manner and with like effect as bills of exchange, and with like remedy thereon.❜ Under such statutes negotiability can not be extended beyond the express terms of the provisions of the statutes. Thus warehouse receipts made payable to bearer, and not transferred by indorsement as provided by statute, are not negotiable."
In general it may be said that the negotiability of ware
so of the warehouse receipts. But if he is not the owner, if he has stolen it, or if he is a bailee merely, and is attempting to make a fraudulent use of the property intrusted to his keeping, a person purchasing or receiving the property as security, does so in subordination to the title of the true owner. These are risks which men engaged in business must be content to encounter, and against which the law can afford them no protection. The law can punish roguery, but it can not secure innocent persons against losses from its multiform devices."
1 Price v. Wisconsin Marine & Fire Ins. Co., 43 Wis. 267. The cases of Hale v. Milwaukee Dock Co., 29 Wis. 482, 9 Am. Rep. 603, and Shepardson v. Green, 21 Wis. 539, in which expressions to the contrary are criticised. The decision in the latter case was modified in Shepardson v. Cary, 29 Wis. 34.
2 Newcomb v. Cabell, 10 Bush (Ky.) 460; Central Savings Bank v. Garrison, 2 Mo. App. 58.
Fourth Nat. Bank v. St. Louis Cotton Compress Co., 11 Mo. App. 333.
house receipts as conferred by statute extends only to making them effective to transfer the interests of the holders in the property represented by the receipts.' The Missouri, Pennsylvania and Wisconsin statutes in regard to the negotiability of warehouse receipts apply also to bills of lading, and these statutes have already been given in the preceding chapter. The statutes of other states relating exclusively to the negotiability of warehouse receipts are stated in the following sections.
§ 283a. Alabama.'-The receipt of a warehouseman, on which the words "not negotiable" are not plainly written or stamped, may be transferred 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; and the warehouseman must not deliver the things or property therein specified, 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 transfer thereof by indorsement, may make delivery of the things or property to the rightful owner thereof; if the things or property, or any part thereof, be claimed or taken from the custody or possession of the warehouseman under legal process, the surrender thereof may be made without the delivery or cancellation of such receipt, or without indorsement thereon.
§ 284. California.—Warehouse receipts for property stored shall be of two classes: First, transferable or negotiable; and,
1 Shaw v. Railroad Co., 101 U. S. 557, 565; Yarwood v. Happy, 18 Wash. 246, 51 Pac. Rep. 461.
* Missouri, § 237; Pennsylvania, § 239. Code 1896, § 4222. See, as to unauthorized or fraudulent pledge of such receipt, Commercial Bank v. Hurt, 99 Ala. 130, 12 So. Rep. 568;
Commercial Bank v. Lee, 99 Ala. 493,
* Codes & Stats. Supp. 1880, § 6855; Act Apr. 1, 1878, § 2; Civ. Code, § 1855; Davis v. Russell, 52 Cal. 611.